<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 1, 1996
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AMERICA WEST AIRLINES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 4512 86-0418245
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
STEPHEN L. JOHNSON
SENIOR VICE PRESIDENT
AMERICA WEST AIRLINES, INC.
4000 EAST SKY HARBOR BOULEVARD 4000 EAST SKY HARBOR BOULEVARD
PHOENIX, ARIZONA 85034 PHOENIX, ARIZONA 85034
(602) 693-0800 (602) 693-0800
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
EXECUTIVE OFFICES)
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With Copies to:
DAVID J. GRAHAM
ANDREWS & KURTH L.L.P.
4200 TEXAS COMMERCE TOWER
HOUSTON, TEXAS 77002
(713) 220-4200
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time, which time is to be determined by the Selling Securityholders.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SHARES AMOUNT TO BE AGGREGATE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE PRICE FEE(1)
- --------------------------------------------------------------------------------------------------
Class B Common Stock...... 804,334 Shares $21.25 $17,092,098 $5,894
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(1) Fee calculated pursuant to Rule 457(c) based on the average of the high and
low sale prices reported on the New York Stock Exchange on March 28, 1996.
------------------------
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE
PROSPECTUS INCLUDED IN THIS REGISTRATION STATEMENT ALSO RELATES TO (I) 1,200,000
SHARES OF CLASS A COMMON STOCK, (II) 6,019,672 SHARES OF CLASS B COMMON STOCK
AND (III) 5,735,900 WARRANTS TO PURCHASE CLASS B COMMON STOCK PREVIOUSLY
REGISTERED UNDER A REGISTRATION STATEMENT ON FORM S-3, REGISTRATION NO.
33-54243.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
AMERICA WEST AIRLINES[tm]
1,200,000 SHARES CLASS A COMMON STOCK
6,762,306 SHARES CLASS B COMMON STOCK
5,735,900 CLASS B COMMON STOCK WARRANTS
------------------------
This Prospectus relates to (i) 1,200,000 shares of Class A Common Stock,
par value $.01 per share ("Class A Common Stock"), of America West Airlines,
Inc. ("America West" or the "Company"), (ii) 6,762,306 shares of Class B Common
Stock, par value $.01 per share, of the Company ("Class B Common Stock", and
together with the Class A Common Stock, the "Common Stock"), and (iii) 5,735,900
warrants, each entitling the holder thereof to purchase one share of Class B
Common Stock for $12.74 at any time prior to August 25, 1999 and such shares of
Class B Common Stock (the "Warrants," and together with the Common Stock, the
"Securities"). The Securities may be offered by the Selling Securityholders (as
defined herein) from time to time in transactions in the over-the-counter
market, on a national securities exchange or otherwise at fixed prices which may
be changed, at market prices prevailing at the time of sale, at prices related
to such market prices or at negotiated prices. The Selling Securityholders may
effect such transactions by selling the Securities to or through underwriters,
brokers, dealers or agents who may receive compensation in the form of
discounts, concessions or commissions from the Selling Securityholders or the
purchasers of the Securities for whom such underwriters, brokers, dealers or
agents may act. The Company will not receive any of the proceeds from the sale
of any of the Securities by the Selling Securityholders.
Holders of Class B Common Stock are entitled to one vote per share, and
holders of Class A Common Stock are entitled to 50 votes per share on all
matters submitted to a vote of common stockholders, except that voting rights of
holders who are not United States citizens are limited as described herein. The
Class B Common Stock and the Warrants are listed on the New York Stock Exchange.
The Company does not intend to file an application to have the Class A Common
Stock listed on any national securities exchange and does not expect an active
trading market to develop for the Class A Common Stock.
The Selling Securityholders and any underwriters, brokers, dealers or
agents participating in the distribution of the Securities may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933 as amended (the
"Securities Act"), and any profit on the sale of the Securities by the Selling
Securityholders and any commissions received by any such underwriters, brokers,
dealers or agents may be deemed to be underwriting commissions or discounts
under the Securities Act. Pursuant to the terms of the Registration Rights
Agreements (as hereinafter defined) the Company has agreed to indemnify the
Selling Securityholders against certain liabilities, including liabilities under
the Securities Act.
Underwriters, brokers, dealers or agents effecting transactions in the
Securities should confirm the registration thereof under the securities laws of
the state in which such transactions will occur, or the existence of any
exemption from registration.
SEE "RISK FACTORS" BEGINNING ON PAGE 7 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS IN THE SECURITIES OFFERED
HEREBY.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------------
The date of this Prospectus is April 1, 1996
<PAGE> 3
AVAILABLE INFORMATION
America West Airlines, Inc. ("America West" or the "Company") is subject to
the informational requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports and
other information with the Securities and Exchange Commission (the
"Commission"). Reports and other information concerning America West can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549; The Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661; and Seven World Trade Center, 13th Floor, New York, New York
10048. Copies of such material can be obtained from the Public Reference Room of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Class B Common Stock and the Warrants are listed on the New York
Stock Exchange and the Company's registration statements, reports, proxy and
information statements and other information may also be inspected at the
offices of the New York Stock Exchange (the "NYSE"), 20 Broad Street, New York,
New York 10005.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, this
Prospectus relates to Securities registered under the Registration Statement of
which this Prospectus is a part and Registration Statement No. 33-54243. This
Prospectus does not contain all of the information set forth in such
Registration Statements and the exhibits and schedules thereto. For further
information with respect to America West and the Securities offered hereby,
reference is made to the Registration Statements, including the exhibits and
schedules thereto. The Registration Statements can be inspected at the Public
Reference Room of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549.
The Company is a Delaware corporation. Its executive offices are located at
4000 East Sky Harbor Boulevard, Phoenix, Arizona 85034, and its telephone number
is (602) 693-0800.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates herein by reference (i) its Annual Report
on Form 10-K for the year ended December 31, 1995 and (ii) the description of
the Class B Common Stock contained in its Registration Statement on Form 8-A, as
filed with the Commission pursuant to the Exchange Act.
All documents filed by the Company pursuant to Section 13(a), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of this offering shall be deemed to be incorporated by reference in
this Prospectus, and to be a part hereof from the date of filing of such
documents. Any statement incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus. The Company will provide without charge to each person, including
any beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of such person, a copy of any document incorporated by
reference in this Prospectus (other than exhibits to such documents unless such
exhibits are specifically incorporated by reference to such documents). Requests
for such copies should be directed to Patricia Penwell, Corporate Secretary,
America West Airlines, Inc., 4000 East Sky Harbor Boulevard, Phoenix, Arizona
85034 (telephone (602) 693-0800).
2
<PAGE> 4
PROSPECTUS SUMMARY
The following summary information is qualified in its entirety by the
detailed information and financial statements (including the notes thereto)
appearing elsewhere or incorporated by reference in this Prospectus.
THE COMPANY
America West Airlines, Inc. is the ninth largest commercial airline carrier
in the United States, operating through its principal hubs located in Phoenix,
Arizona and Las Vegas, Nevada and a mini-hub located in Columbus, Ohio. The
Company believes it is the lowest cost full service carrier in the United States
and, during 1995, generated the second highest operating margin among the major
domestic airlines. At December 31, 1995, the Company served 51 destinations,
including five destinations in Mexico and one in Canada, with a fleet of 93
aircraft. The Company offers service to an additional 23 destinations through an
alliance agreement with Continental Airlines, Inc. ("Continental") and 17
commuter service and regional destinations through an alliance agreement with
Mesa Air Group, Inc. ("Mesa").
America West is the leading airline serving Phoenix and Las Vegas, with
approximately 35% and 26% of total revenue passenger miles, respectively, based
on the twelve months ended September 30, 1995. The Phoenix and Las Vegas
airports are the seventh and thirteenth largest airports in the United States as
measured by passenger enplanements. In addition, these cities are among the
fastest growing in the nation. The Company believes these hubs are well
positioned for continued growth due to their geographically favorable locations
with strategic access to key Southwestern and West Coast markets, relatively low
operating costs, year-round fair weather and modern, uncongested facilities.
Substantially all of the Company's passenger traffic is channeled into or
through its hubs, which serve as gateways for the Company's route network.
Through its hub and spoke system, the Company serves more markets with greater
frequency than would be possible with the same number of aircraft in a
point-to-point route system.
America West operates with one of the lowest cost structures among the
major U.S. airlines. The Company's operating cost per available seat mile
("ASM") for 1995 was 7.19 cents, which was approximately 16% less than the
average operating cost per ASM of the eight largest other domestic full service
airlines. Management believes that the Company's low cost structure is a
significant competitive advantage relative to other full service carriers and
also enables the Company to compete effectively against low cost carriers in its
short-haul local markets. As a full service airline, the Company believes it
distinguishes itself from other low cost carriers by offering passenger services
that include assigned seating, meal service, participation in computerized
reservation systems, interline ticketing, first class cabins, baggage transfer
and various other services.
The Company completed its reorganization under Chapter 11 of the U.S.
Bankruptcy Code in August 1994, after having filed for protection in June 1991.
Following a restructuring implemented during its bankruptcy proceedings, the
Company has achieved 12 consecutive quarters of profitability, beginning with
the first quarter of 1993. The Company's bankruptcy filing was the result of a
combination of adverse industry factors and the Company's rapid expansion beyond
its core base of operations. From 1990 to 1992, the airline industry experienced
significant operating losses attributable in large part to high fuel prices,
depressed traffic levels and intense fare competition brought about by the
Persian Gulf conflict, a fear of terrorism in the United States and the
deepening national recession. America West was acutely affected by these
conditions, which occurred at a time when the Company's indebtedness had
increased significantly to finance expansion. While in bankruptcy, the Company,
under new leadership, developed and implemented a restructuring plan focusing on
the Company's competitive strengths, which included its hub positions in Phoenix
and Las Vegas and its low cost structure. The Company reduced its fleet from
five aircraft types to three, eliminated routes that did not adequately support
strategic objectives and implemented cost reduction programs. Due in part to
these measures and improved economic and industry conditions, total operating
revenues grew by 19.8% during the period from 1992 through 1995, while total
operating expenses declined by 2.0%.
3
<PAGE> 5
STRATEGY
America West's strategy seeks to achieve additional revenue growth and
profitability by capitalizing on the Company's key competitive strengths while
maximizing financial flexibility. This strategy focuses on (i) strengthening the
Company's position in its existing hubs through strategic expansion, (ii)
maintaining its position as a leading low cost full service carrier, (iii)
operating a modern and efficient fleet, and (iv) continuing to develop its
passenger base through key alliances. Principal elements of the Company's
strategy are as follows:
Strengthen Position in Existing Hubs through Strategic Expansion. America
West's growth plan is designed to capitalize on its strong positions in its
Phoenix and Las Vegas hubs. In connection with the Company's restructuring, the
Company's operations in Phoenix contracted somewhat during a period when
airlines generally were expanding their strategic hub operations. In February
1996, the Company began implementation of its two-year plan to expand its
principal hub operations and increase connecting traffic and service to
longer-haul nonstop markets. The expansion plan provides for an increase in
available seat miles of 29% and total departures of 17% and the addition of at
least eight new cities to the Company's route network.
As the Company adds aircraft required to support the expansion of the
Phoenix hub, the Company intends to continue to optimize asset utilization
through the expansion of its Nite Flite service to Las Vegas. By utilizing
aircraft for this service that would otherwise be idle overnight, the Company is
able to compete in a low cost market segment without diminishing asset
availability for use in its Phoenix operations. The Company believes that its
existing service at its Columbus mini-hub is adequate based on current demand.
Maintain its Position as a Leading Low Cost Full Service Airline. America
West is committed to maintaining its low cost structure, which the Company has
achieved primarily through its favorable labor costs per ASM and asset
utilization enhancements. The Company has focused on increasing productivity at
all levels. In 1995, the Company's workforce decreased by 18.7% despite an
increase in ASMs of 7.5%. In May 1995, a five-year collective bargaining
agreement with the Company's pilots became effective. The terms of this contract
are consistent with the Company's goal of maintaining a low cost structure. In
December 1995, the Company outsourced its heavy aircraft maintenance, which
reduced the Company's workforce by approximately 500. Aircraft utilization has
been enhanced through a restructuring of the Company's route network including
expansion of its Las Vegas Nite Flite program. The Company's fleet
configuration, consisting of three aircraft types, permits the Company to
minimize spare parts inventories and simplify maintenance and training
operations.
Operate a Modern and Efficient Fleet. The Company enjoys operational
efficiencies due to its modern, fuel efficient fleet. At December 31, 1995, the
Company's fleet consisted of 61 Boeing 737s, 18 Airbus A320s and 14 Boeing 757s,
with an average age of approximately 9.9 years. Most of the Company's existing
aircraft are held under leases, including leases on 23 aircraft expiring prior
to December 1998. As a result, in the event general economic conditions change
adversely, the Company may reduce its fleet size by not renewing expiring
aircraft leases. Management currently intends to lease the additional aircraft
necessary to support the Company's expansion plan.
Continue to Develop Passenger Base through Alliances. The Company plans to
continue to capitalize on its alliance agreement with Continental to further
expand the Company's passenger base while achieving cost savings through the
reduction of redundant labor and facilities. This agreement provides for
codesharing arrangements, coordination of flight schedules, linking of frequent
flyer programs, sharing of ticket counter space, coordination of ground handling
operations and joint purchasing and marketing efforts. Through codesharing, each
airline is able to offer additional destinations to its customers without
materially increasing operating and capital expenses. Management believes that
its codesharing activities result in increased demand for travel on America West
and intends to pursue additional alliances as opportunities warrant.
As a part of America West's ongoing strategy, the Company from time to time
evaluates opportunities for additional alliances and code sharing arrangements
as well as investment opportunities pursuant to which the Company may capitalize
on its key strengths and market position.
4
<PAGE> 6
SUMMARY DESCRIPTION OF SECURITIES
The principal terms of the Common Stock and Warrants are summarized below.
For a more complete description, see "Description of Capital Stock" and
"Description of Warrants," respectively. The Selling Securityholders will
receive all of the net proceeds from the sale of the Securities offered hereby,
and the Company will not receive any proceeds from the Offering.
Common Stock:
Securities Registered............ 1,200,000 shares of Class A Common Stock
6,762,306 shares of Class B Common Stock(1)
Common Stock Outstanding......... 1,200,000 shares of Class A Common Stock
44,141,330 shares of Class B Common Stock(2)
Total.................. 45,341,330 shares of Common Stock
Voting Rights.................... Class A Common Stock and Class B Common
Stock have identical economic rights and
privileges and rank equally, share ratably,
and are identical in all respects as to all
matters other than voting rights. The Class
A Common Stock votes together with the
Class B Common Stock on all matters except
as otherwise required by law. Each share of
Class B Common Stock has one vote; each
share of Class A Common Stock has 50 votes.
Listing.......................... The Class B Common Stock is listed on the
New York Stock Exchange. The Company does
not intend to apply for listing of the
Class A Common Stock on any national
securities exchange or authorization for
quotation on the NASDAQ System. The Company
does not expect that an active trading
market for the Class A Common Stock will
develop.
Class B Common Stock Trading
Symbol........................... "AWA"
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(1) Includes 655,000 shares of Class B Common Stock underlying stock options.
(2) As of December 31, 1995, excludes 12,538,619 shares of Class B Common Stock
reserved for issuance upon exercise of outstanding Warrants and options.
Warrants:
Securities Registered............ 5,735,900 Warrants, each entitling the
holder to purchase one share of Class B
Common Stock at a price of $12.74 per share
and such shares of Class B Common Stock.
Warrants Outstanding............. 10,380,286 Warrants(1)
Expiration....................... The Warrants are exercisable by the holders
at any time prior to August 25, 1999.
Redemption....................... The Warrants are not redeemable.
Anti-Dilution.................... The number of shares of Class B Common
Stock purchasable upon exercise of each
Warrant is subject to adjustment in certain
events, including (i) the issuance of a
dividend in or other distribution of Common
Stock to holders of Common Stock; (ii)
certain combinations, subdivisions or
reclassifications of the Common Stock; and
(iii) certain rights issuances.
Voting Rights.................... Warrant holders have no voting rights.
Listing.......................... The Warrants are listed on the New York
Stock Exchange.
Warrants Trading Symbol.......... "AWAws"
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(1) As of December 31, 1995.
5
<PAGE> 7
SUMMARY FINANCIAL DATA
The following table summarizes certain financial and operating data with
respect to the Company contained elsewhere or incorporated by reference in this
Prospectus and should be read in conjunction therewith. Statements of income
data and balance sheet data for, and as of the year ended December 31, 1995, the
period August 26 through December 31, 1994, the period January 1 through August
25, 1994 and the year ended December 31, 1993 are derived from the audited
financial statements of the Company. The data presented below should be read in
conjunction with the financial statements for the respective periods, the
related notes and the independent auditors' report incorporated by reference
herein. As a result of the adoption of fresh start reporting as of August 25,
1994, results for periods after such date are not comparable to prior periods.
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REORGANIZED COMPANY | PREDECESSOR COMPANY(1)
----------------------------- | --------------------------
PERIOD FROM | PERIOD FROM
YEAR ENDED AUGUST 26 TO | JANUARY 1 TO YEAR ENDED
DECEMBER 31, DECEMBER 31, | AUGUST 25, DECEMBER 31,
1995 1994 | 1994 1993
------------ ------------ | ---------- -----------
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(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS AND
OPERATING DATA)
STATEMENTS OF INCOME DATA: |
Operating revenues....................................... $1,550,642 $ 469,766 | $ 939,028 $1,325,364
Operating income......................................... 154,732 38,871 | 107,506 121,054
Income (loss) before income taxes and extraordinary |
items.................................................. 108,378 19,736 | (201,209) 37,924
Income (loss) before extraordinary items................. 54,770 7,846 | (203,268) 37,165
Extraordinary items(2)................................... (984) -- | 257,660 --
Net income............................................... 53,786 7,846 | 54,392 37,165
Earnings per share(3): |
Primary................................................ 1.16 .17 | 1.99 1.50
Fully diluted.......................................... 1.15 .17 | 1.41 1.04
BALANCE SHEET DATA (AT END OF PERIOD): |
Working capital deficiency............................... $ (70,416) $ (47,927) | $(163,572) $ (124,375)
Total assets............................................. 1,588,709 1,545,092 | 1,053,780 1,016,743
Long-term debt, less current maturities(4)............... 373,964 465,598 | 597,839 620,992
Total stockholders' equity (deficiency).................. 649,472 595,446 | (286,395) (254,262)
OPERATING DATA: |
Available seat miles (in millions)....................... 19,421 6,424 | 11,636 17,190
Revenue passenger miles (in millions).................... 13,313 3,972 | 8,261 11,221
Passenger load factor (%)................................ 68.5 61.8 | 71.0 65.3
Yield per revenue passenger mile (cents)................. 10.91 11.02 | 10.68 11.11
Passenger revenue per available seat mile (cents)........ 7.48 6.81 | 7.58 7.25
Operating cost per available seat mile (cents)........... 7.19 6.71 | 7.15 7.01
Full time equivalent employees (at end of period)........ 8,712 10,715 | 10,849 10,544
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(1) Includes net expenses incurred by the Predecessor Company in connection with
its reorganization of $273.7 million for the period January 1 to August 25,
1994 and $25.0 million for the year ended December 31, 1993.
(2) Includes (i) an extraordinary loss of $984,000 in 1995 resulting from the
exchange of debt by the Company and (ii) an extraordinary gain of $257.7
million in the period from January 1 to August 25, 1994 resulting from the
discharge of indebtedness pursuant to the consummation of the Company's Plan
of Reorganization.
(3) Historical per share data for the Predecessor Company are not meaningful
since the Company has been recapitalized and has adopted fresh start
reporting as of August 25, 1994.
(4) Includes certain balances reported as "Estimated Liabilities Subject to
Chapter 11 Proceedings" for the Predecessor Company.
6
<PAGE> 8
RISK FACTORS
FORWARD-LOOKING INFORMATION MAY PROVE INACCURATE
This prospectus contains various forward-looking statements and information
that are based on management's beliefs as well as assumptions made by and
information currently available to management. When used in this document, the
words "anticipate," "estimate," "project" and similar expressions are intended
to identify forward-looking statements. Such statements are subject to certain
risks, uncertainties and assumptions. Should one or more of these risks or
uncertainties materialize, or should underlying assumptions prove incorrect,
actual results may vary materially from those anticipated, estimated or
projected. Among the key factors that may have a direct bearing on America
West's results are competitive practices in the airline industry generally and
particularly in the Company's principal markets, the ability of the Company to
meet existing financial obligations in the event of adverse industry or economic
conditions or to obtain additional capital to fund future commitments and
expansion, the Company's relationship with employees and the terms of future
collective bargaining agreements and the impact of current and future laws and
governmental regulations affecting the airline industry and the Company's
operations.
COMPETITIVE INDUSTRY CONDITIONS
The airline industry is highly competitive and industry earnings are
volatile. From 1990 to 1992, the airline industry experienced unprecedented
losses due to high fuel costs, general economic conditions, intense price
competition and other factors. Airlines compete on the basis of pricing,
scheduling (frequency and flight times), on-time performance, frequent flyer
programs and other services. The airline industry is susceptible to price
discounting, which involves the offering of discount or promotional fares to
passengers. Any such fares offered by one airline are normally matched by
competing airlines, which may result in lower industry yields without a
corresponding increase in traffic levels.
Most of the Company's markets are highly competitive and are served by
larger carriers with substantially greater financial resources than the Company.
Also, in recent years several new carriers have entered the industry, typically
with low cost structures. In some cases, new entrants have initiated or
triggered further price discounting. The entry of additional new carriers on
many of the Company's routes, as well as increased competition from or the
introduction of new services by established carriers, could negatively impact
America West's results of operations.
LEVERAGE; FUTURE CAPITAL REQUIREMENTS
At December 31, 1995, the Company had $428.1 million of long-term
indebtedness (including current maturities). America West does not have
available lines of credit or significant unencumbered assets. The Company may be
less able than certain of its competitors to withstand adverse industry
conditions or a prolonged economic recession. In addition, at December 31, 1995,
the Company had commitments for a total of 24 Airbus A320-200 aircraft for
delivery beginning in 1999. The aggregate net cost of such aircraft is based on
formulae that include certain price indices (including indices for various
aircraft components such as metal products) for periods preceding the various
delivery dates. Based on an assumed 5% annual price escalation, the Company
estimates such aggregate net cost to be approximately $1.2 billion. The Company
has arranged for financing for up to one-half of the commitment relating to such
aircraft and will require substantial capital from external sources to meet its
remaining financial commitment. There can be no assurance that the Company will
be able to obtain such capital in sufficient amounts or on acceptable terms. In
addition, pursuant to the Company's growth plan, the Company is expanding its
fleet, increasing frequencies to existing cities and adding destinations to its
route system. This expansion will require the lease of additional aircraft.
There can be no assurance that the Company will be able to negotiate such
leasing arrangements in sufficient amounts or on acceptable terms.
7
<PAGE> 9
INCREASES IN FUEL PRICES
Fuel costs constituted approximately 12.5% of America West's total
operating expenses during 1995. A one cent per gallon change in fuel price would
affect the Company's annual operating results by approximately $3 million at
1995 consumption levels. Accordingly, either a substantial increase in fuel
prices or the lack of adequate fuel supplies in the future would likely have a
material adverse effect on the operating results of the Company. Fuel price
increases or supply shortages can occur at any time as a result of, among other
things, geopolitical developments and markets for other petroleum-based products
including heating oil. The Company purchases fuel on standard trade terms under
master agreements. The Company does not currently hedge its fuel costs but may
elect to do so in the future.
LABOR NEGOTIATIONS
In October 1993, the Air Line Pilots Association ("ALPA") was certified by
the National Mediation Board as the bargaining representative of the Company's
pilots. In May 1995, a five-year collective bargaining agreement with the
Company's pilots became effective. In June 1994, the National Mediation Board
(the "NMB") accepted the Association of Flight Attendants' ("AFA") petition to
represent the Company's flight attendants. In September 1994, the Company's
flight attendants voted in favor of AFA representation and contract negotiations
are ongoing. In January 1996, the Company's ground operations workers petitioned
the NMB for a union representation election requesting that the Transportation
Workers Union represent them. In January 1996, the International Brotherhood of
Teamsters filed an application with the NMB seeking to be certified as the
bargaining representative for the Company's mechanics, including related
personnel. There have been numerous attempts by unions to organize the employees
of the Company, and the Company expects such organization efforts to continue in
the future. The Company cannot predict the terms of any future collective
bargaining agreement and therefore the effect, if any, on the Company's
operations or financial condition.
GOVERNMENT REGULATION
The Company is subject to the Federal Aviation Act of 1958, as amended,
under which the Department of Transportation (the "DOT") and the Federal
Aviation Administration (the "FAA") exercise regulatory authority. This
regulatory authority includes (i) the determination and periodic review of the
fitness (including financial fitness) of air carriers; (ii) the certification
and regulation of flight equipment; (iii) the approval of personnel who may
engage in flight, maintenance and operations activities; and (iv) the approval
of flight training activities and the enforcement of minimum air safety
standards set forth in FAA regulations. In accordance with the Airline
Deregulation Act of 1978, domestic airline fares and routes are no longer
subject to significant regulation. The DOT maintains authority over
international aviation, subject to review by the President of the United States,
and has jurisdiction over consumer protection policies, computer reservation
system issues and unfair trade practices.
In the last several years, the FAA has issued a number of maintenance
directives and other regulations relating to, among other things, retirement of
older aircraft, collision avoidance systems, airborne windshear avoidance
systems, noise abatement and increased inspections and maintenance procedures to
be conducted on older aircraft. At December 31, 1995, the Company's fleet
consisted of 93 aircraft of which 22 aircraft meet the FAA's Stage II (but not
Stage III) noise reduction requirements and must be retired or significantly
modified prior to the year 2000. These modifications may require substantial
capital expenditures. Management is currently considering its options regarding
such aircraft. Additional laws and regulations have been proposed from time to
time that could significantly increase the cost of airline operations by
imposing additional requirements or restrictions on operations. Laws and
regulations have been considered from time to time that would prohibit or
restrict the ownership and transfer of airline routes or slots.
CONCENTRATION OF VOTING POWER; INFLUENCE OF CERTAIN PRINCIPAL STOCKHOLDERS
At March 1, 1996, TPG Partners, L.P. ("TPG") (together with its affiliates
TPG Parallel I, L.P. ("TPG Parallel") and Air Partners II, L.P. ("Air Partners
II")), Continental and Mesa owned in the aggregate
8
<PAGE> 10
approximately 6.0 million shares of the outstanding Class B Common Stock
(assuming the exercise of all Warrants held by such persons) and 100% of the
Company's Class A Common Stock, and thereby controlled approximately 61% of the
total voting power of America West. As a result, TPG, TPG Parallel, Air Partners
II, Continental and Mesa, whose shares are subject to the terms of a
Stockholders' Agreement (defined herein), are able to elect a majority of their
designees to the Board of Directors and otherwise to control the Company by,
among other things, taking or approving actions to (i) amend the America West
charter or effect a merger, sale of assets or other major corporate transaction;
(ii) defeat any takeover attempt; (iii) determine the amount of dividends, if
any, paid to themselves and the other holders of Common Stock; and (iv)
otherwise control the outcome of virtually all matters submitted for a vote of
the stockholders of the Company, subject to certain restrictions. Mesa and
Continental are engaged in the airline industry and are parties to alliance
agreements with the Company. The general partner of each of TPG, TPG Parallel
and Air Partners II is a limited partnership whose general partner is TPG
Advisors, Inc., a Delaware corporation. The executive officers and directors of
TPG Advisors, Inc. are David Bonderman, James G. Coulter, William Price, James
O'Brien, Richard P. Schifter and Richard Ekleberry. Mr. Bonderman, Mr. Coulter
and Mr. Price, through their positions in Air Partners, L.P., a partnership
formed to participate in the funding of the reorganization of Continental and a
significant shareholder of Continental, may be deemed to own beneficially a
significant percentage of Continental's common stock. Mr. Bonderman is also a
director and chairman of the board of directors of Continental and Mr. Price is
a director of Continental. Larry L. Risley, a director of the Company, is the
chairman and chief executive officer of Mesa. As a result, there can be no
assurance that the interests of Continental, Mesa, TPG, TPG Parallel and Air
Partners II will not differ from the interests of the Company or that any such
party will not seek to influence the Company in a manner that serves their
interests.
Pursuant to the terms of the Stockholders' Agreement, AmWest Partners, L.P.
("AmWest"), a limited partnership in which TPG, TPG Parallel, Air Partners II,
Continental and Mesa participated, agreed to certain limitations on its ability
to control the Company, including, that for a three-year period beginning on
August 25, 1994 (the "Effective Date"), the Company shall have a Board of
Directors of up to 15 members, six members of which may be designated by parties
other than AmWest or its partners (including three Creditors' Committee
Directors, one Equity Committee Director, one Independent Company Director and
one GPA Director, as such terms are defined in the Stockholders' Agreement). In
addition, the Stockholders' Agreement provides that until the first annual
meeting after August 25, 1997, the approval of certain transactions in which
AmWest or its affiliates may participate will require the affirmative vote of
the holders of a majority of the voting power of the outstanding shares of each
class of common stock of the Company entitled to vote, voting as a single class
and excluding any shares owned by AmWest or any of its affiliates (other than
Mesa). Transactions to which such restriction applies include any merger or
consolidation of the Company with or into AmWest or any of its affiliates, any
sale or other disposition of all or a substantial part of the assets of the
Company to AmWest or any of its affiliates and certain other transactions with
or involving the Company in which AmWest or any of its affiliates would acquire
an increased percentage ownership of voting equity securities in the Company.
The shareholder voting requirements specified above will not apply to a proposed
action approved or recommended by (i) the Board of Directors and (ii) at least
three Independent Directors, unless otherwise required by applicable law. The
Company does not believe these restrictions will have any adverse effects on the
stockholders of the Company. Upon the dissolution of AmWest on the Effective
Date, the provisions of the Stockholders' Agreement with respect to AmWest
became binding upon TPG, TPG Parallel, Air Partners II, Continental and Mesa.
LIMITATION ON VOTING BY FOREIGN OWNERS
The Company's Restated Certificate of Incorporation provides that no more
than 25% of the voting stock of the Company may be beneficially owned or
controlled by persons who are not U.S. citizens and that the voting rights of
such persons are subject to automatic suspension to the extent required to
ensure that the Company is in compliance with applicable laws relating to
ownership or control of a U.S. carrier. United States law currently requires
that no more than 25% of the voting stock of the Company (or any other domestic
airline) may be owned, directly or indirectly, by persons who are not U.S.
citizens. See "Description of Capital Stock -- Limitation on Voting by Foreign
Owners."
9
<PAGE> 11
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Securities
by the Selling Securityholders.
CAPITALIZATION
The following table sets forth the capitalization of the Company at
December 31, 1995.
<TABLE>
<CAPTION>
DECEMBER 31, 1995
--------------------
(IN THOUSANDS)
<S> <C>
Long-term debt, including current maturities..................... $ 428,121
Stockholders' equity:
Class A common stock (1,200,000 shares authorized and 1,200,000
shares issued and outstanding).............................. 12
Class B common stock (100,000,000 shares authorized and
44,141,330 shares issued and outstanding(1))................ 441
Additional paid-in capital..................................... 588,927
Retained earnings.............................................. 61,632
Less treasury stock, 112,000 shares of Class B common stock at
cost........................................................ (1,540)
----------
Total stockholders' equity............................. 649,472
----------
Total capitalization............................................. $1,077,593
==========
</TABLE>
- ---------------
(1) Excludes 12,538,619 shares of Class B Common Stock reserved for issuance
upon exercise of Warrants and options at December 31, 1995.
10
<PAGE> 12
SELLING SECURITYHOLDERS
The Selling Securityholders are shown in the table below. In connection
with the Company's reorganization, the partners of AmWest, together with Lehman
Brothers Holdings Inc. ("Lehman") and Fidelity Management Trust Company and
certain of its affiliates ("Fidelity"), as assignees of AmWest, invested $205.3
million in consideration for the issuance of securities by the Company,
consisting of 1,200,000 shares of Class A Common Stock at a price of $7.467 per
share; 12,981,636 shares of Class B Common Stock, including 12,259,821 shares at
a price of $7.467 per share and 721,815 shares at $8.889 per share; 2,769,231
Warrants; and $100 million principal amount of senior notes. In addition, TPG
and Fidelity, as the holders of preferred equity interests of the Company, each
received $250,000 and TPG purchased 125,000 shares of Class B Common Stock
(representing shares acquired pursuant to certain subscription rights at a price
of $8.889 per share). The Company also executed letter agreements with Fidelity
and Lehman reflecting the principal terms relating to the settlement of certain
prepetition claims held by Fidelity and by Lehman. Pursuant to these letters, on
October 14, 1994, the Company issued additional senior notes to Fidelity and
Lehman. See "-- Certain Transactions."
In exchange for certain concessions principally arising from cancellation
of the right of GPA to lease to America West 10 Airbus A320 aircraft at
specified rates, GPA, received 900,000 shares of Class B Common Stock; 1,384,615
Warrants; a cash payment of approximately $30.5 million; the right to require
the Company to lease up to eight aircraft; and the right to designate one
director of the Company for so long as GPA owns 2% of the voting equity
securities (assuming the exercise of all Warrants) of the Company. GPA
subsequently sold its 900,000 shares of Class B Common Stock.
The Registration Statement of which this Prospectus is a part also covers
shares (and shares underlying options) held by William A. Franke, the Company's
Chairman and Chief Executive Officer. Of such shares, 125,000 were issued to Mr.
Franke in connection with a Reorganization success bonus. The remaining shares
and options were issued to Mr. Franke pursuant to his employment agreement with
the Company.
The following table sets forth as of March 1, 1996 the name of each Selling
Securityholder and the amount of the Securities owned by each such Selling
Securityholder which are subject to being offered hereby. Securities subject to
being offered hereby represent all of the Securities held by the Selling
Securityholders.
<TABLE>
<CAPTION>
CLASS A COMMON
STOCK
OWNED AND CLASS B COMBINED CLASS SHARES OF WARRANTS
SUBJECT TO COMMON STOCK A & B VOTING CLASS B OWNED AND
OFFERING OWNED(1) PERCENTAGE COMMON STOCK SUBJECT
------------------- ------------------- BEFORE SUBJECT TO TO
SHARES PERCENT SHARES PERCENT OFFERING OFFERING OFFERING
--------- ------- --------- ------- -------------- ------------ ---------
<S> <C> <C> <C> <C> <C> <C> <C>
TPG Partners, L.P........... 780,473 65.0% 3,198,292 6.9% 39.8% 1,613,586 1,584,706
TPG Parallel I, L.P. ....... 78,644 6.6% 322,274 * 4.1% 162,592 159,682
Air Partners II, L.P. ...... 82,314 6.9% 337,316 * 4.3% 170,181 167,135
Continental Airlines,
Inc....................... 158,569 13.2% 1,120,000 2.5% 8.6% 317,140 802,860
Mesa Air Group, Inc......... 100,000 8.3% 1,000,269 2.2% 5.7% 200,502 799,767
GPA Group plc............... -- -- 1,384,615 3.0% 1.3% -- 1,384,615
The Copernicus Fund, L.P.... -- -- 70,700 * * 70,700 --
Belmont Capital Partners II,
L.P....................... -- -- 872,888 1.9% * 373,367 499,521
Belmont Fund, L.P........... -- -- 392,750 * * 373,378 19,372
Lehman Brothers
Holdings Inc.............. -- -- 2,844,768 6.4% 2.7% 2,551,526 293,242
William A. Franke........... -- -- 929,334 2.1% * 929,334 --
</TABLE>
- ---------------
* Less than 1%.
(1) Includes shares of Class B Common Stock issuable upon exercise of
outstanding Warrants and options held by the Selling Securityholders.
11
<PAGE> 13
STOCKHOLDERS' AGREEMENTS
On August 25, 1994 (the "Effective Date"), the Company, AmWest, GPA, and
certain designated stockholder representatives entered into an agreement (the
"Stockholders' Agreement") with respect to certain matters involving the
Company. Upon the dissolution of AmWest, which occurred immediately following
the Effective Date, the provisions of the Stockholders' Agreement with respect
to AmWest became binding upon TPG, TPG Parallel, Air Partners II, Continental
and Mesa. As used below, "AmWest" means TPG, TPG Parallel, Air Partners II,
Continental and Mesa in their capacities as successors-in-interest to AmWest
under the Stockholders' Agreement.
The Stockholders' Agreement provides that, for a period lasting until the
first annual meeting after August 25, 1997 (the "Voting Period"), America West's
Board of Directors will be comprised of up to 15 members consisting of (i) nine
members designated by AmWest; (ii) one member designated by GPA for as long as
GPA retains at least 2% of the voting equity securities of the Company (assuming
the exercise of all Warrants); and (iii) five independent directors (the
"Independent Directors") initially including (a) three directors designated by
the official committee of the unsecured creditors, (b) one member designated by
the official committee of the equity security holders and (c) one director
designated by the pre-Reorganization Board of Directors from among the executive
officers of the Company. The Stockholders' Agreement provides that during the
Voting Period, AmWest and GPA will vote all shares of Common Stock owned by them
in favor of the re-election of the initially designated Independent Directors
for as long as such Independent Directors continue to serve.
In addition, AmWest and GPA agreed that (i) AmWest will vote in favor of
GPA's nominee to the Company's Board of Directors, and (ii) GPA will vote in
favor of AmWest's nine nominees to the Company's Board of Directors for so long
as (a) AmWest owns at least 5% of the voting equity securities of the Company
and (b) GPA owns at least 2% of the voting equity securities, assuming the
exercise of all Warrants, of the Company.
The Stockholders' Agreement also provides that no director nominated by
AmWest will be an employee or officer of Continental. All directors who are
selected by or who are directors of Continental or Mesa and all directors who
are employees or officers of Mesa are required by the Stockholders' Agreement to
recuse themselves from voting on or receiving confidential information on any
matters involving negotiations or direct competition between their respective
companies and America West.
In addition, the Stockholders' Agreement provides that until the first
annual meeting after August 25, 1997, the approval of certain transactions in
which AmWest or its affiliates may participate will require the affirmative vote
of the holders of a majority of the voting power of the outstanding shares of
each class of common stock of the Company entitled to vote, voting as a single
class and excluding any shares owned by AmWest or any of its affiliates (but not
excluding shares owned by Mesa). Transactions to which such restriction applies
include any merger or consolidation of the Company with or into AmWest or any of
its affiliates, any sale or other disposition of all or a substantial part of
the assets of the Company to AmWest or any of its affiliates and certain other
transactions with or involving the Company in which AmWest or any of its
affiliates would acquire an increased percentage ownership of voting equity
securities in the Company. The stockholder voting requirements specified above
will not apply to a proposed action approved by (i) the Board of Directors and
(ii) at least three Independent Directors, unless otherwise required by
applicable law. The Company does not believe these restrictions will have any
adverse effects on the stockholders of the Company.
Under the terms of the Stockholders' Agreement, neither AmWest nor any
affiliate of AmWest may sell or otherwise transfer any Common Stock (other than
to an affiliate of the transferor) if, after giving effect thereto and to any
related transaction, the total number of shares of Class B Common Stock
beneficially owned by the transferor is less than twice the total number of
shares of Class A Common Stock beneficially owned by the transferor, except in
certain circumstances (which include a transfer or disposition of all shares of
Common Stock owned by such person, subject to other applicable provisions of the
Stockholders' Agreement).
12
<PAGE> 14
In addition, the Stockholders' Agreement provides that, for a period
lasting until the first annual meeting after August 25, 1997, without the prior
written consent of the Company given pursuant to a resolution adopted by the
affirmative vote of not less than 75% of all directors of the Company, AmWest
shall not sell, in a single transaction or related series of transactions,
shares of Common Stock representing 51% or more of the combined voting power of
all shares of Common Stock then outstanding, other than (i) pursuant to or in
connection with a tender or exchange offer for all shares of Common Stock and
for the benefit of all holders of Class B Common Stock on a pro rata basis at
the same price per share and on the same economic terms, (ii) to any affiliate
of AmWest or any affiliate of AmWest's partners, (iii) pursuant to a bankruptcy
or insolvency proceeding, (iv) pursuant to judicial order, legal process,
execution or attachment, (v) in a public offering or (vi) in any other
transaction where the purchase price per share is equal to or less than the
then-current market price per share.
TPG, TPG Parallel and Air Partners II have entered into an agreement with
Continental pursuant to which such parties have granted Continental the right of
first refusal to purchase all, but not less than all, of the America West
securities that they may propose to sell, and have agreed to notify Continental
prior to selling any such securities. Continental would have the right to
purchase such securities on the same terms and conditions that such securities
would have been sold, or at a market price. Under the agreement, TPG, TPG
Parallel and Air Partners II have agreed to share with Continental certain of
the proceeds from their sale or disposition of the securities of America West
covered by the agreement, if such sharing of proceeds is necessary to ensure
that Continental receives a specified rate of return on its investment in the
securities of America West.
See "Description of Capital Stock" for information regarding limitations on
ownership of the Company's Common Stock.
CERTAIN TRANSACTIONS
The Company has certain alliance agreements with Continental and Mesa.
Pursuant to a codesharing agreement with Mesa entered into in December 1992
(which was prior to Mesa becoming a significant stockholder), the Company
assesses a per passenger charge for facilities, reservations and other services
from Mesa for enplanements on the Mesa system. Such payments by Mesa to the
Company totalled approximately $2.5 million for 1994.
On October 14, 1994, the Company issued $13 million of its 11 1/4% Senior
Unsecured Notes due 2001 ("11 1/4% Notes") to Fidelity and $10 million of such
notes to Lehman in satisfaction of certain claims and other prepetition
obligations totalling approximately $25 million held by Fidelity and Lehman. In
connection with the issuance of such notes, Fidelity and Lehman also received
cash payments of $2.1 million and $1.2 million, respectively, representing the
portion of claims and other prepetition obligations not satisfied by the
issuance of the notes and other payments made in connection with the settlement
of such claims. In addition, Fidelity held an additional $100 million principal
amount of the 11 1/4% Notes. In August 1995, the Company repurchased $48 million
principal amount of the 11 1/4% Notes and exchanged the remaining $75 million
principal amount of such notes for 10 3/4% Senior Unsecured Notes due 2005. In
connection with such transaction, Fidelity was paid a fee equal to 3 5/8% of the
principal amount of the new notes ($2,718,750). Fidelity and Lehman are
principal stockholders of the Company. See "Selling Securityholders."
In 1994 and 1995, the Company loaned Mr. Franke $470,282 and $203,136,
respectively, for the purpose of enabling him to pay income taxes attributable
to certain grants of Class B Common Stock made to Mr. Franke in 1994. In January
1996, the Company loaned Mr. Franke an additional $40,000 in connection with
such grants. The loans are each payable in two equal installments on September
26, 2000 and September 26, 2001. The 1994 loan bears interest (payable
semi-annually) at the rate of 8% per annum (11% per annum after maturity) and
the 1995 and 1996 loans bear interest at the rate of 6.02% per annum (10% per
annum after maturity). The loans are secured by a portion of the shares granted
to Mr. Franke, but are otherwise non-recourse to Mr. Franke.
13
<PAGE> 15
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 1,200,000 shares of
Class A Common Stock, $.01 par value, 100,000,000 shares of Class B Common
Stock, $.01 par value, and 48,800,000 shares of preferred stock, $.01 par value
(the "Preferred Stock"). As of December 31, 1995, there were 1,200,000
outstanding shares of Class A Common Stock and 44,141,330 outstanding shares of
Class B Common Stock.
The material terms of the Company's capital stock are summarized below. The
following description is a summary only, however, and is not intended to be
complete and is qualified by reference to the provisions of the Company's
Restated Certificate of Incorporation (the "Certificate of Incorporation") and
Restated Bylaws (collectively, the "Charter Documents") and the agreements
referred to in this summary description, copies of each of which have been filed
as exhibits to the Registration Statement of which this Prospectus is a part. As
used in this section, except as otherwise stated or required by context, each
reference to AmWest includes any successor by merger, liquidation, consolidation
or similar transaction and any wholly owned subsidiary of such entity or such
successor.
COMMON STOCK -- ALL CLASSES
Holders of Common Stock of all classes participate equally as to any
dividends or distributions on the Common Stock, except that dividends payable in
shares of Common Stock, or securities to acquire Common Stock, are paid in
Common Stock, or securities to acquire Common Stock, of the same class as that
held by the recipient of the dividend. Upon any liquidation, dissolution or
winding up of the Company, holders of Common Stock of all outstanding classes
are entitled, subject to the rights of preferred stockholders, if any, to
receive pro rata all of the assets of the Company available for distribution to
the stockholders. Holders of Common Stock have no preemptive, subscription,
conversion or redemption rights (other than conversion rights of TPG, TPG
Parallel, Air Partners II, Continental and Mesa described below), and are not
subject to further calls or assessments. Holders of Common Stock have no right
to cumulate their votes in the election of directors. The Common Stock votes
together as a single class, subject to the right to a separate class vote in
certain instances required by law.
CLASS B COMMON STOCK AND CLASS A COMMON STOCK
The holders of Class B Common Stock are entitled to one vote per share, and
the holders of Class A Common Stock are entitled to 50 votes per share, on all
matters submitted to a vote of common stockholders, except that voting rights of
non-U.S. citizens are limited as set forth below under "-- Limitation on Voting
by Foreign Owners."
As set forth under the heading "Principal Stockholders," as of March 1,
1996, certain assignees of AmWest (TPG, TPG Parallel, Air Partners II,
Continental and Mesa) owned in the aggregate 100% of the outstanding Class A
Common Stock and 5,978,151 shares of the outstanding Class B Common Stock
(assuming the exercise of all Warrants held by such persons), which collectively
represented approximately 61% of the total voting power of America West. As a
result of certain agreements and understandings among TPG, TPG Parallel, Air
Partners II, Continental, Mesa and GPA, such parties comprise a "group" within
the meaning of Section 13(d)(3) of the Exchange Act, and accordingly each of
such parties may be deemed to beneficially own the securities of the Company
owned by the others. As of March 1, 1996, such parties collectively owned
7,362,766 shares of Class B Common Stock (assuming the exercise of all Warrants
held by such parties) and 100% of the outstanding Class A Common Stock, which
collectively represented approximately 62% of the total voting power of America
West. See "Selling Securityholders -- Stockholders' Agreement" above for a
discussion of arrangements regarding the composition of the Board of Directors
of the Company.
Holders of Class A Common Stock may at any time elect to convert such
shares into an equal number of shares of Class B Common Stock. Class B Common
Stock is not convertible into Class A Common Stock.
14
<PAGE> 16
PREFERRED STOCK
Pursuant to the Company's Certificate of Incorporation, the Company is
authorized to issue 48,800,000 shares of Preferred Stock. The Company's Board of
Directors by resolution may authorize the issuance of the Preferred Stock as a
class, in one or more series, having the number of shares, designations,
relative voting rights, dividend rights, liquidation and other rights,
preferences and limitations that the Board of Directors fixes without any
stockholder approval. No shares of Preferred Stock have been issued.
LIMITATION ON VOTING BY FOREIGN OWNERS
The Certificate of Incorporation defines "Foreign Ownership Restrictions"
as "applicable statutory, regulatory and interpretive restrictions regarding
foreign ownership or control of U.S. air carriers (as amended or modified from
time to time)." Such restrictions currently require that no more than 25% of the
voting stock of the Company be beneficially owned or controlled, directly or
indirectly, by persons who are not U.S. citizens for purposes of the Foreign
Ownership Restrictions, and that the Company's president and at least two-thirds
of its directors be U.S. citizens. The Certificate of Incorporation provides
that the voting rights of such persons are subject to automatic suspension to
the extent required to ensure that the Company is in compliance with applicable
laws relating to ownership or control of a U.S. carrier. The Certificate of
Incorporation provides that no shares of capital stock may be voted by or at the
direction of non-U.S. citizens, unless such shares are registered on a separate
stock record (the "Foreign Stock Record"). The Company's Restated Bylaws further
provide that no shares will be registered on the Foreign Stock Record if the
amount so registered would exceed the Foreign Ownership Restrictions.
Registration on the Foreign Stock Record is made in chronological order based on
the date the Company receives a written request for registration.
LIMITATION OF DIRECTOR LIABILITY AND INDEMNIFICATION
The Company's Charter Documents provide, to the fullest extent permitted by
Delaware law as it may from time to time be amended, that no director shall be
liable to the Company or any stockholder for monetary damages for breach of
fiduciary duty as a director. Delaware law currently provides that such waiver
may not apply to liability (i) for any breach of the director's duty of loyalty
to the Company or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law (the "DGCL")
(governing distributions to stockholders), or (iv) for any transaction from
which the director derived any improper personal benefit. The Charter Documents
further provide that the Company will indemnify each of its directors and
officers to the fullest extent permitted by Delaware law and may indemnify
certain other persons as authorized by law.
Additionally, America West entered into written agreements with each person
who served as a director or executive officer of America West as of the date of
an Investment Agreement (as defined below) executed in connection with the
Reorganization providing for similar indemnification of such person and that no
recourse or liability whatsoever with respect to the Investment Agreement, the
Plan or consummation of the transactions contemplated thereby shall be had by or
in the right of America West against such person.
DELAWARE BUSINESS COMBINATION STATUTE
Pursuant to the Plan, the Company has elected not to be governed by Section
203 of the DGCL. In general, Section 203 of the DGCL ("Section 203") prohibits a
Delaware corporation from entering into a "business combination" with an
"interested stockholder" for a period of three years unless certain exceptions
are applicable.
By opting out of Section 203, America West may be foregoing certain
"anti-takeover" protections that may otherwise be available to it under Section
203 in the event of an unsolicited takeover offer from a party other than
AmWest. However, given the limited protections provided by Section 203, the
significant holdings of Common Stock by AmWest or its affiliates after the
Effective Date and certain other factors, the Company does not believe that the
protections afforded by Section 203 are very significant or that an unsolicited
takeover offer is likely to occur.
15
<PAGE> 17
With respect to a possible "business combination" by AmWest or its
affiliates involving the Company, the protective provisions of Section 203 would
not apply to such a transaction because the Board of Directors of the Company
approved the transactions contemplated by a third revised investment agreement
("Investment Agreement") executed in connection with the Reorganization and
otherwise described herein prior to the date such agreement was entered into and
prior to the date that AmWest acquired any shares of Common Stock. However, the
Stockholders' Agreement provides that until the first annual meeting after
August 25, 1997, the approval of certain transactions in which AmWest or its
affiliates may participate will require the affirmative vote of the holders of a
majority of the voting power of the outstanding shares of each class of common
stock of the Company entitled to vote, voting as a single class and excluding
any shares owned by AmWest or any of its affiliates (but not excluding shares
owned by Mesa). Transactions to which such restriction applies include any
merger or consolidation of the Company with or into AmWest or any of its
affiliates, any sale or other disposition of all or a substantial part of the
assets of the Company to AmWest or any of its affiliates and certain other
transactions with or involving the Company in which AmWest or any of its
affiliates would acquire an increased percentage ownership of voting equity
securities in the Company. The stockholder voting requirements specified above
will not apply to a proposed action approved by (i) the Board of Directors and
(ii) at least three Independent Directors, unless otherwise required by
applicable law. The Company does not believe these restrictions will have any
adverse effects on the stockholders of the Company.
TRANSFER AGENT
The transfer agent for the Common Stock is First Interstate Bank of
California, whose address is 707 Wilshire Boulevard, Los Angeles, California
90017.
DESCRIPTION OF WARRANTS
GENERAL
The Warrants were issued under a Warrant Agreement dated August 25, 1994
(the "Warrant Agreement") between the Company and First Interstate Bancorp as
warrant agent (the "Warrant Agent"). The material terms of the Warrants and the
Warrant Agreement are summarized below. The statements under this caption
relating to the Warrants and the Warrant Agreement are summaries only, however,
and do not purport to be complete. Such summaries make use of terms defined in
the Warrant Agreement and are qualified in their entirety by express reference
to the Warrant Agreement, which has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part. All section references under this
heading are references to sections of the Warrant Agreement.
Each of the 5,735,900 Warrants offered hereby entitles the registered
holder to purchase from the Company one share of Class B Common Stock at a price
of $12.74 subject to adjustment as provided in the Warrant Agreement. The
Warrants are exercisable by the holders at any time before August 25, 1999 (the
"Expiration Date"). (Section 3.01)
CERTAIN TERMS OF THE WARRANTS
Exercise of Warrants. Warrants may be exercised by surrendering the
Warrant Certificate evidencing such Warrants at the Warrant Agent's Office with
the Election to Exercise form duly completed and executed. Surrendered Warrant
Certificates must be accompanied by payment in full to the Warrant Agent for the
account of the Company (i) in cash, (ii) by certified or official bank check or
(iii) by any combination of (i) or (ii) of the exercise price for each share of
Class B Common Stock as to which Warrants are exercised and any applicable taxes
that the Company is not required to pay as set forth in Sections 4.08 or 6.01.
(Section 3.02(a)).
The Company will not be required to issue fractional shares of Class B
Common Stock upon the exercise of the Warrants. In lieu thereof, the Company, at
its option, may purchase the fraction for an amount in cash equal to the
then-current market value of the fraction (as defined in Section 4.01(d)) or
issue scrip of the
16
<PAGE> 18
Company that is non-dividend bearing, non-voting and exchangeable in combination
with other similar scrip for the number of full shares of Class B Common Stock
represented thereby. (Section 3.03)
The Company has the right, except as limited by law or other agreement, to
purchase or otherwise acquire Warrants at such times, in such manner and for
such consideration as it may deem appropriate. (Section 3.04)
The Company will, at all times, reserve and keep available free of
preemptive rights out of its authorized and unissued Class B Common Stock, the
full number of shares of Class B Common Stock, if any, issuable if all
outstanding Warrants then exercisable were to be exercised. Any shares of Class
B Common Stock issued upon a Warrant holder's exercise of any Warrant shall be
validly authorized and issued, fully paid, non-assessable, free of preemptive
rights and free from all taxes (other than those required to be paid by the
holder or its transferees), liens, charges, security interests and claims
created or incurred by the Company in respect of the issuance thereof. (Sections
3.02(b); 4.06)
Adjustment of Warrant Price. The exercise price for the Warrants and the
number of shares of Class B Common Stock purchasable upon exercise of each
Warrant are subject to adjustment in certain events, including (a) the payment
of a dividend in Common Stock or combinations, subdivisions, or
reclassifications of the Common Stock, (b) the issuance to holders of Class B
Common Stock (without any charge to such holders) of rights, options or warrants
entitling the holders thereof to purchase Common Stock (or securities
convertible into Common Stock) at a price per share less than the then-current
market price per share, and (c) certain distributions by the Company to holders
of Common Stock of evidences of its indebtedness or assets (excluding any cash
dividend or distribution out of retained earnings), all as described in the
Warrant Agreement. The Company is not required to make any adjustment to the
exercise price unless such adjustment would require an increase or decrease of
at least $.05 in the exercise price then subject to adjustment; provided,
however, that any adjustments that are not made for this reason must be carried
forward and taken into account in any subsequent adjustment. (Section 4.01) The
Company may, at its option, reduce the exercise price at any time.
Rights Upon Consolidation, Merger, Sale, Transfer or Reclassification. In
the event of certain consolidations with or mergers of the Company into another
corporation or in the event of certain leases, sales or conveyances of the
property of the Company to another corporation, the holder of each outstanding
Warrant shall have the right to receive, upon exercise of the Warrant, the kind
and amount of shares, securities, property or cash receivable upon such
consolidation, merger, lease, sale or conveyance by a holder of one share of
Class B Common Stock. (Section 4.05(a))
In the event of any liquidation, dissolution or winding up of the affairs
of the Company, each holder of a Warrant may receive, upon exercise of such
Warrant in accordance with the Warrant Agreement, the same kind and amount of
any stock, securities or assets as may be issuable, distributable or payable on
any such dissolution, liquidation, or winding up with respect to each share of
Class B Common Stock of the Company. (Section 4.05(b))
In the event of certain reclassifications or changes of the shares of Class
B Common Stock issuable upon exercise of the Warrants or in the event of the
consolidation or merger of another corporation into the Company in which the
Company is the continuing corporation in which the holders of the shares of
Common Stock thereafter receive shares, other securities, property or cash for
such shares of Common Stock, each holder of a Warrant shall have the right to
receive, upon exercise of the Warrant, the kind and amount of shares, other
securities, property or cash receivable upon such reclassification or change.
(Section 4.05(c))
Rights as Warrantholders. A holder of Warrants does not have any rights
whatsoever as a stockholder of the Company, either at law or equity, including
but not limited to the right to vote at, or to receive notice of, any meeting of
stockholders of the Company. No consent of any holder of Warrants is required
with respect to any action or proceeding of the Company, nor do holders, by
reason of the ownership or possession of a Warrant, have any right to receive
any cash dividends, stock dividends, allotments or rights, or other
distributions paid, allotted or distributed or distributable to the stockholders
of the Company. A holder of a
17
<PAGE> 19
Warrant shall not have any rights unless the right is expressly conferred by the
Warrant Agreement or by a Warrant Certificate held by the holder. (Section 5.01)
TRANSFER AGENT
The transfer agent for the Warrants is First Interstate Bank of California,
whose address is 707 Wilshire Boulevard, Los Angeles, California 90017.
PLAN OF DISTRIBUTION
Selling Securityholders may sell or distribute their Securities in
transactions through such underwriters (as may be approved by the Company),
brokers, dealers or agents from time to time or through privately negotiated
transactions, including in distributions to shareholders or partners or other
persons affiliated with one or more Selling Securityholders; provided, however,
that pursuant to the Stockholders' Agreement, certain of the Selling
Securityholders have agreed that (i) they will not dispose of any Common Stock
(other than to an affiliate of the transferor) if, after giving effect thereto
and to any related transaction, the total number of shares of Class B Common
Stock beneficially owned by the transferor is less than twice the total number
of shares of Class A Common Stock beneficially owned by the transferor;
provided, however, that the preceding will not prohibit any person from
transferring or otherwise disposing of all shares of Common Stock owned by such
person, subject to other applicable provisions of the Stockholders' Agreement;
(ii) all of the Securities issued to such Selling Securityholders shall bear a
legend to the effect that the Securities may not be sold, transferred or
otherwise disposed of except in accordance with applicable securities laws and
the Stockholders' Agreement; and (iii) subject to certain exceptions they will
not, prior to the end of the Voting Period, without the prior written consent of
the Company given pursuant to a resolution adopted by the affirmative vote of
not less than 75% of all of the directors of the Company, sell in a single
transaction or a related series of transactions shares of Common Stock
representing 51% or more of the combined voting power of all shares of Common
Stock then outstanding, other than pursuant to or in connection with a tender or
exchange offer for all shares of Common Stock and for the benefit of all holders
of Class B Common Stock on a pro rata basis at the same price per share and on
the same economic terms. See "Selling Securityholders -- Stockholders'
Agreement."
The distribution of the Securities may be effected from time to time in one
or more transactions (which may involve crosses or block transactions) (i) in
the over-the-counter market, (ii) in transactions otherwise than in the
over-the-counter market or (iii) through the writing of options on the
Securities (whether such options are listed on an options exchange or
otherwise). Any of such transactions may be effected at market prices prevailing
at the time of sale, at prices related to such prevailing market prices, at
negotiated prices or at fixed prices. If the Selling Securityholders effect such
transactions by selling Securities to or through underwriters, brokers, dealers
or agents, such underwriters, brokers, dealers or agents may receive
compensation in the form of discounts, concessions or commissions from the
Selling Securityholders or commissions from purchasers of Securities for whom
they may act as agent (which discounts, concessions or commissions as to
particular underwriters, brokers, dealers or agents might be in excess of those
customary in the types of transactions involved). The Selling Securityholders
and any brokers, dealers or agents that participate in the distribution of the
Securities might be deemed to be underwriters, and any profit on the sale of
Securities by them and any discounts, concessions or commissions received by any
such underwriters, brokers, dealers or agents might be deemed to be underwriting
discounts and commissions under the Securities Act. Selling Securityholders may
pledge their Securities from time to time in connection with such
Securityholders' financing arrangements. The Copernicus Fund, L.P. may pledge
some of its Class B Common Stock to Bear, Stearns Securities Corp. To the extent
any such pledgees exercise their rights to foreclose on any such pledge, and
sell the underlying Securities, such pledgees may be deemed underwriters with
respect to such Securities and sales by them may be effected under this
Prospectus. The Company will not receive any of the proceeds from the sale of
any of the Securities by the Selling Securityholders.
At the time a particular offer of Securities is made, a Prospectus
Supplement, to the extent required, will be distributed which will set forth the
aggregate amount and type of Securities being offered, the names of the
18
<PAGE> 20
Selling Securityholders, the purchase price, the amount of expenses of the
offering and the terms of the offering, including the name or names of any
underwriters, brokers, dealers or agents, any discounts, commissions and other
items constituting compensation from the Selling Securityholders and any
discounts, commissions or concessions allowed or reallowed or paid to dealers.
Under the Exchange Act and applicable rules and regulations promulgated
thereunder, any person engaged in a distribution of any of the Securities may
not simultaneously engage in market making activities with respect to the
Securities for a period, depending upon certain circumstances, of either two
days or nine days prior to the commencement of such distribution. In addition,
and without limiting the foregoing, the Selling Securityholders will be subject
to applicable provisions of the Exchange Act and the rules and regulations
promulgated thereunder, including without limitation Rules 10b-6 and 10b-7,
which provisions may limit the timing of purchases and sales of any of the
Securities by the Selling Securityholders.
Under the securities laws of certain states, the Securities may be sold in
such states only through registered or licensed brokers or dealers. In addition,
in certain states the Securities may not be sold unless the Securities have been
registered or qualify for sale in such state or an exemption from registration
or qualification is available and is complied with.
LEGAL MATTERS
The validity of the shares of Common Stock and certain legal matters
relating to Warrants offered hereby have been passed upon for the Company by
Andrews & Kurth L.L.P., Houston, Texas.
EXPERTS
The financial statements and financial statement schedule of America West
Airlines, Inc., as of December 31, 1995 and 1994, and for the year ended
December 31, 1995, the period August 26, 1994 through December 31, 1994, the
period January 1, 1994 through August 25, 1994 and for the year ended December
31, 1993, have been incorporated by reference herein and in the registration
statement in reliance upon the reports of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
The reports of KPMG Peat Marwick LLP as of December 31, 1995 and 1994 and
for the year ended December 31, 1995, the period August 26, 1994 through
December 31, 1994, the period January 1, 1994 through August 25, 1994 and for
the year ended December 31, 1993 contain an explanatory paragraph that states on
August 25, 1994, America West Airlines, Inc. emerged from bankruptcy. The
financial statements of the Reorganized Company reflect the impact of
adjustments to reflect the fair value of assets and liabilities under fresh
start reporting. As a result, the financial statements of the Reorganized
Company are presented on a different basis of accounting than those of the
Predecessor Company and therefore, are not comparable in all respects.
19
<PAGE> 21
======================================================
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY, THE SELLING SECURITYHOLDERS OR ANY UNDERWRITERS. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY
SECURITIES IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION
THAT THERE HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR
IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. 2
Incorporation of Certain Documents
by Reference........................ 2
Prospectus Summary.................... 3
Risk Factors.......................... 7
Use of Proceeds....................... 10
Capitalization........................ 10
Selling Securityholders............... 11
Description of Capital Stock.......... 14
Description of Warrants............... 16
Plan of Distribution.................. 18
Legal Matters......................... 19
Experts............................... 19
</TABLE>
======================================================
AMERICA WEST AIRLINES[tm]
1,200,000 SHARES
CLASS A COMMON STOCK
6,762,306 SHARES
CLASS B COMMON STOCK
5,735,900 CLASS B
COMMON STOCK WARRANTS
------------------------
PROSPECTUS
------------------------
APRIL 1 ,1996
======================================================
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the issuance and distribution of the securities being registered hereby
(and estimated expenses in connection with Registration Statement No. 33-54243):
<TABLE>
<S> <C>
Securities and Exchange Commission Filing Fee............ $ 5,894*
Blue Sky Filing Fees and Expenses........................ 15,000
Printing Costs........................................... 200,000
Legal Fees and Expenses.................................. 200,000
Accounting Fees and Expenses............................. 100,000
Miscellaneous............................................ 29,106
--------
Total.......................................... $550,000*
========
</TABLE>
* Does not include a filing fee of $75,432 paid in connection with Registration
Statement No. 33-54243.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") authorizes,
inter alia, a corporation generally to indemnify any person ("indemnitee") who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding (other than an action by or in the right
of the corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation, in a similar position with another corporation or
entity, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. With respect to actions or
suits by or in the right of the corporation; however, an indemnitee who acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation is generally limited to attorneys' fees and
other expenses, and no indemnification shall be made if such person is adjudged
liable to the corporation unless and only to the extent that a court of
competent jurisdiction determines that indemnification is appropriate. Section
145 further provides that any indemnification shall be made by the corporation
only as authorized in each specific case upon a determination by the (i)
stockholders, (ii) board of directors by a majority vote of a quorum of
disinterested directors so directs, that indemnification of the indemnitee is
proper because he has met the applicable standard of conduct. Section 145
provides that indemnification pursuant to its provisions is not exclusive of
other rights of indemnification to which a person may be entitled under any
by-law agreement, vote of stockholders or disinterested directors or otherwise.
Section 8.02 of the Company's By-laws, a copy of which is filed as Exhibit
3.2 to this Registration Statement provides, in substance, that directors,
officers, employees and agents shall be indemnified to the fullest extent
permitted by Section 145 of the DGCL.
Article 12.0 of the Company's Restated Certificate of Incorporation, a copy
of which is filed as Exhibit 3.1 to this Registration Statement, limits the
liability of directors of the Company to the Company or its stockholders (in
their capacity as directors but not in their capacity as officers) to the
fullest extent permitted by the DGCL. Specifically, directors of the Company
will not be personally liable for monetary damages for breach of a director's
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for unlawful payments of dividends or unlawful stock
repurchase or redemptions as provided in section 174 of the DGCL or (iv) for any
transaction from which the director derived an improper personal benefit. The
Restated Certificate of Incorporation also provides that if the DGCL is amended
after the approval of the Restated Certificate of Incorporation to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Company will be eliminated or
limited to the full extent permitted by the DGCL, as so amended.
II-1
<PAGE> 23
The form of the Third Revised Investment Agreement filed as Exhibit 10.1 to
this Registration Statement contains certain provisions for indemnification of
directors and officers of the Company and the Selling Securityholder against
civil liabilities under the Securities Act. Certain of these provisions are set
forth in the form of the Registration Rights Agreement filed as Exhibit 4.6 to
this Registration Rights Agreement.
The Company has indemnification agreements with certain of its directors
providing for indemnification to the fullest extent permitted by the laws of the
State of Delaware. These agreements provide for specific procedures to better
assure the directors' rights to indemnification, including procedures for
directors to submit claims, for determination of directors entitled to
indemnification (including the allocation of the burden of proof and selection
of a reviewing party) and for enforcement of directors' indemnification rights.
ITEM 16. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER TITLE
------- -----
<S> <C>
1.1 -- Form of Purchase Agreement -- Incorporated by reference to the Company's
Form S-3 (33-54243).
2.1 -- The Company's Plan of Reorganization, as amended under Chapter 11 of the
Bankruptcy Code -- Incorporated by reference to the Company's Report on
Form 8-K dated September 9, 1994.
4.1 -- Indenture for 10 3/4% Senior Unsecured Notes due 2003 -- Incorporated by
reference to the Company's Form S-4 (No. 33-61099).
4.2 -- Form of Senior Note (included as Exhibit A to Exhibit 4.1 above).
4.3 -- Warrant Agreement dated August 25, 1994 between America West Airlines,
Inc. and First Interstate, N.A., as Warrant Agent -- Incorporated by
reference to the Company's Report on Form 8-K dated September 9, 1994.
4.4 -- Form of Warrant (included as Exhibit A to Exhibit 4.3 above).
4.5 -- Stockholders' Agreement for America West Airlines, Inc. dated August 25,
1994 among America West Airlines, Inc., AmWest Partners, L.P., GPA Group
plc and certain other Stockholder Representatives -- Incorporated by
reference to the Company's Report on Form 8-K dated September 9, 1994.
4.6 -- First Amendment to Stockholders' Agreement for America West Airlines, Inc.
dated September 6, 1994 among Air Partners II, L.P., TPG Partners, L.P.,
TPG Parallel I, L.P., Continental Airlines, Inc., Mesa Airlines, Inc., GPA
Group plc and certain other stockholder representatives -- Incorporated by
reference to the Company's Report on Form 8-K dated September 9, 1994.
4.6 -- Registration Rights Agreement dated August 25, 1994 among America West
Airlines, Inc., AmWest Partners, L.P. and other holders -- Incorporated by
reference to the Company's Report on Form 8-K dated September 9, 1994.
4.7 -- Article 4.0 of the Company's Restated Certificate of Incorporation
(included in Exhibit 3.1 above).
*5.1 -- Opinion of Andrews & Kurth L.L.P.
*23.1 -- Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1 above).
*23.2 -- Consent of KPMG Peat Marwick LLP (independent auditors).
*24.1 -- Power of Attorney (included on the signature pages of this Registration
Statement.)
</TABLE>
- ---------------
* Filed herewith.
All other schedules for which provision is made in Regulation S-X of the
Commission are not required under the related instructions or are
inapplicable or the required information is included in the financial
statements or notes thereto and, therefore, have been omitted.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes: (1) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement to include any material information
II-2
<PAGE> 24
with respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
<PAGE> 25
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF PHOENIX,
STATE OF ARIZONA, ON THE 31ST DAY OF MARCH, 1996.
AMERICA WEST AIRLINES, INC.
By: /s/WILLIAM A. FRANKE
------------------------------------
William A. Franke
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints William A. Franke, W.
Douglas Parker and Stephen L. Johnson, and each of them acting alone, as his or
her true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him, or her and in his or her name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments or additional registration statements) to this Registration
Statement, and to file the same, with all exhibits thereto, and all other
documents in connection therewith, with the Securities and Exchange Commission,
and grants unto said attorney-in-fact and agent full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he or she might or would do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, or his
or her substitute and substitutes, may lawfully do or cause to be done by virtue
hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED BELOW ON MARCH 31, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ WILLIAM A. FRANKE Chairman of the Board and Chief Executive
- ------------------------------------------ Officer
William A. Franke
/s/ W. DOUGLAS PARKER Senior Vice President and Chief Financial
- ------------------------------------------ Officer
W. Douglas Parker
/s/ MICHAEL R. CARREON Vice President and Controller
- ------------------------------------------
Michael R. Carreon
/s/ JULIA CHANG BLOCH Director
- ------------------------------------------
Julia Chang Bloch
/s/ STEPHEN F. BOLLENBACH Director
- ------------------------------------------
Stephen F. Bollenbach
/s/ FREDERICK W. BRADLEY, JR. Director
- ------------------------------------------
Frederick W. Bradley, Jr.
</TABLE>
II-4
<PAGE> 26
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
Director
- ------------------------------------------
James G. Coulter
/s/ JOHN F. FRASER Director
- ------------------------------------------
John F. Fraser
/s/ JOHN L. GOOLSBY Director
- ------------------------------------------
John L. Goolsby
/s/ RICHARD C. KRAEMER Director
- ------------------------------------------
Richard C. Kraemer
/s/ JOHN R. POWER Director
- ------------------------------------------
John R. Power, Jr.
/s/ LARRY L. RISLEY Director
- ------------------------------------------
Larry L. Risley
/s/ FRANK B. RYAN Director
- ------------------------------------------
Frank B. Ryan
/s/ RICHARD P. SCHIFTER Director
- ------------------------------------------
Richard P. Schifter
/s/ JOHN F. TIERNEY Director
- ------------------------------------------
John F. Tierney
/s/ RAYMOND S. TROUBH Director
- ------------------------------------------
Raymond S. Troubh
</TABLE>
II-5
<PAGE> 27
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER TITLE
------- -----
<S> <C>
1.1 -- Form of Purchase Agreement -- Incorporated by reference to the
Company's Form S-3 (33-54243).
2.1 -- The Company's Plan of Reorganization, as amended under Chapter 11
of the Bankruptcy Code -- Incorporated by reference to the
Company's Report on Form 8-K dated September 9, 1994.
4.1 -- Indenture for 10 3/4% Senior Unsecured Notes due
2003 -- Incorporated by reference to the Company's Form S-4 (No.
33-61099).
4.2 -- Form of Senior Note (included as Exhibit A to Exhibit 4.1 above).
4.3 -- Warrant Agreement dated August 25, 1994 between America West
Airlines, Inc. and First Interstate, N.A., as Warrant
Agent -- Incorporated by reference to the Company's Report on
Form 8-K dated September 9, 1994.
4.4 -- Form of Warrant (included as Exhibit A to Exhibit 4.3 above).
4.5 -- Stockholders' Agreement for America West Airlines, Inc. dated
August 25, 1994 among America West Airlines, Inc., AmWest
Partners, L.P., GPA Group plc and certain other Stockholder
Representatives -- Incorporated by reference to the Company's
Report on Form 8-K dated September 9, 1994.
4.6 -- First Amendment to Stockholders' Agreement for America West
Airlines, Inc. dated September 6, 1994 among Air Partners II,
L.P., TPG Partners, L.P., TPG Parallel I, L.P., Continental
Airlines, Inc., Mesa Airlines, Inc., GPA Group plc and certain
other stockholder representatives -- Incorporated by reference to
the Company's Report on Form 8-K dated September 9, 1994.
4.6 -- Registration Rights Agreement dated August 25, 1994 among America
West Airlines, Inc., AmWest Partners, L.P. and other
holders -- Incorporated by reference to the Company's Report on
Form 8-K dated September 9, 1994.
4.7 -- Article 4.0 of the Company's Restated Certificate of
Incorporation (included in Exhibit 3.1 above).
*5.1 -- Opinion of Andrews & Kurth L.L.P.
*23.1 -- Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1
above).
*23.2 -- Consent of KPMG Peat Marwick LLP (independent auditors).
*24.1 -- Power of Attorney (included on the signature pages of this
Registration Statement.)
</TABLE>
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* Filed herewith.
<PAGE> 1
EXHIBIT 5.1
ANDREWS & KURTH L.L.P.
4200 TEXAS COMMERCE TOWER
HOUSTON, TEXAS 77002
APRIL 1, 1996
America West Airlines, Inc.
4000 Sky Harbor Boulevard
Phoenix, Arizona 85034
Ladies and Gentlemen:
We have acted as counsel for America West Airlines, Inc., a Delaware
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-3 (the "Registration Statement") relating to the
registration under the Securities Act of 1933, as amended, of the offering and
sale by a selling stockholder of an aggregate of 804,334 shares of Class B
common stock, par value $.01 per share, of the Company ("Common Stock").
In so acting, we have examined a copy of the Registration Statement, copies
of the Company's certificate of incorporation and bylaws, and such other
instruments and documents as we have deemed necessary as a basis for the
opinions hereinafter expressed. In giving such opinions, we have assumed that
all signatures on all documents examined by us are genuine, that all documents
submitted to us as originals are authentic, that all documents submitted to us
as copies are true and correct copies of the originals thereof and that all
information submitted to us was accurate and complete.
Based on our examinations as aforesaid and subject to the assumptions and
limitations herein set forth, we are of the opinion that the shares of Common
Stock to be sold as described in the Registration Statement are validly issued,
fully paid and non-assessable.
This opinion is limited in all respects to the General Corporation Law of
the State of Delaware and the laws of the United States of America insofar as
such laws are concerned.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to the use of our firm name under the
caption "Legal Matters" therein.
Very truly yours,
/s/ Andrews & Kurth L.L.P.
--------------------------------------
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors and Stockholders
America West Airlines, Inc.
We consent to the use of our reports incorporated herein by reference and
to the reference to our firm under the heading "Experts" in the prospectus.
Our report dated March 20, 1996, contains an explanatory paragraph that
states that as discussed in Notes 14 and 15 to the financial statements, on
August 25, 1994, America West Airlines, Inc. emerged from bankruptcy. The
financial statements of the Reorganized Company reflect the impact of
adjustments to reflect the fair value of assets and liabilities under fresh
start reporting. As a result, the financial statements of the Reorganized
Company are presented on a different basis than those of the Predecessor Company
and, therefore, are not comparable in all respects.
KPMG Peat Marwick LLP
Phoenix, Arizona
March 29, 1996
