SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
America West Airlines, Inc.
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(Name of Issuer)
Class A Common Stock, $.01 par value
Class B Common Stock, $.01 par value
Warrants to Purchase Class B Common Stock
-------------------------------
(Title of Class of Securities)
023650 302
023650 203
023650 112
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(CUSIP Numbers)
Charles T. Goolsbee
Executive Vice President - Corporate Affairs
Continental Airlines, Inc.
2929 Allen Parkway, Suite 2010
Houston, Texas 77019
(212) 834-5000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 25, 1994
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(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this Schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [X].
SCHEDULE 13D
CUSIP Nos. 023650 302, 023650 203, 023650 112
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Continental Airlines, Inc.
74-2099724
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
[ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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7 SOLE VOTING POWER
CLASS A COMMON STOCK 325,505
CLASS B COMMON STOCK 2,311,094
WARRANTS 802,860
NUMBER OF
SHARES -----------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH CLASS A COMMON STOCK 1,200,000
CLASS B COMMON STOCK 14,501,967
WARRANTS 4,897,538
2
-----------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH CLASS A COMMON STOCK 325,505
CLASS B COMMON STOCK 2,311,094
WARRANTS 802,860
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
CLASS A COMMON STOCK 1,200,000
CLASS B COMMON STOCK 14,501,967
WARRANTS 4,897,538
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
CLASS A COMMON STOCK 1,200,000
CLASS B COMMON STOCK 14,501,967
WARRANTS 4,897,538
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
CLASS A COMMON STOCK 100%
CLASS B COMMON STOCK 29.7%
WARRANTS 47.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
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Item 1. Security and Issuer.
The securities to which this statement relates are the Class A Common
Stock, $0.01 par value per share (the "Class A Common"), the Class B Common
Stock, $0.01 par value per share (the "Class B Common"), and the Warrants to
Purchase Class B Common (the "Warrants") of America West Airlines, Inc., a
Delaware corporation (the "Company"). The principal offices of the Company are
located at 4000 East Sky Harbor Boulevard, Phoenix, Arizona 85034. Pursuant to
a Plan of Reorganization (the "Plan") which was confirmed by the United States
Bankruptcy Court for the District of Arizona (the "Bankruptcy Court") on August
10, 1994 and which became effective on August 25, 1994 (the "Effective Date"),
the Company has emerged from bankruptcy and is no longer operating as a debtor-
in-possession under Chapter 11 of the United States Bankruptcy Code.
Item 2. Identity and Background.
This Schedule 13D is filed by Continental Airlines, Inc. ("Continental").
Continental is a Delaware corporation, whose principal executive offices are
located at 2929 Allen Parkway, Suite 2010, Houston, Texas 77019. Continental is
a United States air carrier engaged in the business of transporting passengers,
cargo and mail.
Pursuant to General Instruction "C" for Schedule 13D, set forth below is
certain information concerning (i) each executive officer and director of
Continental, (ii) each person controlling Continental and (iii) each executive
officer and director of such controlling person.
The executive officers of Continental are: Sam E. Ashmore (Senior Vice
President - Civil and Airport Affairs), Gordon M. Bethune (President and Chief
Operating Officer), Donald J. Breeding (President and Chief Operating Officer,
Continental Micronesia), D. Sam Coats (Senior Vice President - Customer
Service), Jonathan Ornstein (President, Continental Express), William S.
Diffenderffer (President, System One), Daniel P. Garton (Senior Vice President
and Chief Financial Officer), Charles T. Goolsbee (Executive Vice President -
Corporate Affairs), Robert R. Ferguson, III (Vice Chairman and Chief Executive
Officer and also a director), Thomas Kalil (Senior Vice President - A/P
Service), David A. Loeser (Senior Vice President - Human Resources), John E.
Luth (Senior Vice President - Continental Lite), Clarence McLean (Senior Vice
President - Operations), Barry P. Simon (Senior Vice President - International
Widebody Fleet), Donald G. Valentine (Senior Vice President - Marketing and
Sales). The directors of Continental are: David Bonderman, Joel H. Cowan,
Patrick Foley, Rowland C. Frazee, C.C., Robert R. Ferguson, III, Hollis L.
Harris, Robert L. Lumpkins, Douglas McCorkindale, David E. Mitchell, O.C.,
Richard W. Pogue, William Price, Donald L. Sturm, Claude I. Taylor, O.C., Jack
T. Trotter, and Karen Hastie Williams, each of whom is a natural person.
Sam E. Ashmore has his principal business address at 2929 Allen Parkway,
Suite 2010, Houston, Texas 77019. His principal occupation is as Senior Vice
President - Civil and Airport
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Affairs of Continental, which has its principal business address at 2929 Allen
Parkway, Suite 2010, Houston, Texas 77019. Mr. Ashmore is a citizen of the
United States.
Gordon M. Bethune has his principal business address at 2929 Allen Parkway,
Suite 2010, Houston, Texas 77019. His principal occupation is as President and
Chief Operating Officer of Continental, which has its principal business address
at 2929 Allen Parkway, Suite 2010, Houston, Texas 77019. Mr. Bethune is a
citizen of the United States.
Donald J. Breeding has his principal business address at 2929 Allen
Parkway, Suite 2010, Houston, Texas 77019. His principal occupation is as
President and Chief Operating Officer of Continental Micronesia, which has its
principal business address at 2929 Allen Parkway, Suite 2010, Houston, Texas
77019. Mr. Breeding is a citizen of the United States.
D. Sam Coats has his principal business address at 2929 Allen Parkway,
Suite 2010, Houston, Texas 77019. His principal occupation is as Senior Vice
President - Customer Service of Continental, which has its principal business
address at 2929 Allen Parkway, Suite 2010, Houston, Texas 77019. Mr. Coats is a
citizen of the United States.
Jonathan Ornstein has his principal business address at 2929 Allen Parkway,
Suite 2010, Houston, Texas 77019. His principal occupation is as President of
Continental Express, which has its principal business address at 2929 Allen
Parkway, Suite 2010, Houston, Texas 77019. Mr. Ornstein is a citizen of the
United States.
William S. Diffenderffer has his principal business address at 2929 Allen
Parkway, Suite 2010, Houston, Texas 77019. His principal occupation is as
President of System One, which has its principal business address at 2929 Allen
Parkway, Suite 2010, Houston, Texas 77019. Mr. Diffenderffer is a citizen of
the United States.
Daniel P. Garton has his principal business address at 2929 Allen Parkway,
Suite 2010, Houston, Texas 77019. His principal occupation is as Senior Vice
President and Chief Financial Officer of Continental, which has its principal
business address at 2929 Allen Parkway, Suite 2010, Houston, Texas 77019. Mr.
Garton is a citizen of the United States.
Charles T. Goolsbee has his principal business address at 2929 Allen
Parkway, Suite 2010, Houston, Texas 77019. His principal occupation is as
Executive Vice President - Corporate Affairs of Continental, which has its
principal business address at 2929 Allen Parkway, Suite 2010, Houston, Texas
77019. Mr. Goolsbee is a citizen of the United States.
Robert R. Ferguson, III has his principal business address at 2929 Allen
Parkway, Suite 2010, Houston, Texas 77019. His principal occupation is as Vice
Chairman, Chief Executive Officer and director of Continental, which has its
principal business address at 2929 Allen Parkway, Suite 2010, Houston, Texas
77019. Mr. Ferguson is a citizen of the United States.
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Thomas Kalil has his principal business address at 2929 Allen Parkway,
Suite 2010, Houston, Texas 77019. His principal occupation is as Senior Vice
President - A/P Service of Continental, which has its principal business address
at 2929 Allen Parkway, Suite 2010, Houston, Texas 77019. Mr. Kalil is a citizen
of the United States.
David A. Loeser has his principal business address at 2929 Allen Parkway,
Suite 2010, Houston, Texas 77019. His principal occupation is as Senior Vice
President - Human Resources of Continental, which has its principal business
address at 2929 Allen Parkway, Suite 2010, Houston, Texas 77019. Mr. Loeser is
a citizen of the United States.
John E. Luth has his principal business address at 2929 Allen Parkway,
Suite 2010, Houston, Texas 77019. His principal occupation is as Senior Vice
President - Continental Lite of Continental, which has its principal business
address at 2929 Allen Parkway, Suite 2010, Houston, Texas 77019. Mr. Luth is a
citizen of the United States.
Clarence McLean has his principal business address at 2929 Allen Parkway,
Suite 2010, Houston, Texas 77019. His principal occupation is as Senior Vice
President - Operations of Continental, which has its principal business address
at 2929 Allen Parkway, Suite 2010, Houston, Texas 77019. Mr. McLean is a
citizen of the United States.
Barry P. Simon has his principal business address at 2929 Allen Parkway,
Suite 2010, Houston, Texas 77019. His principal occupation is as Senior Vice
President - International Widebody Fleet of Continental, which has its principal
business address at 2929 Allen Parkway, Suite 2010, Houston, Texas 77019. Mr.
Simon is a citizen of the United States.
Donald G. Valentine has his principal business address at 2929 Allen
Parkway, Suite 2010, Houston, Texas 77019. His principal occupation is as
Senior Vice President - Marketing and Sales of Continental, which has its
principal business address at 2929 Allen Parkway, Suite 2010, Houston, Texas
77019. Mr. Valentine is a citizen of the United States.
David Bonderman has his business address at 201 Main Street, Suite 2420,
Fort Worth, Texas 76102. Mr. Bonderman's principal occupation is as a director
and President of TPG Advisors, which has its business address at 201 Main
Street, Suite 2420, Fort Worth, Texas 76102. Mr. Bonderman is a citizen of the
United States.
Joel H. Cowan has his principal business address at 781 Marietta Street,
Atlanta, Georgia 30318. His principal occupation is as President of Cowan &
Associates, which has its business address at 781 Marietta Street, Atlanta,
Georgia 30318. Mr. Cowan is a citizen of the United States.
Patrick Foley has his business address at 333 Twin Dolphin Drive, Redwood
City, California 94065. His principal occupation is as Chairman of the Board,
President and Chief Executive Officer of DHL Airways, Inc., which has its
principal business address at 333 Twin Dolphin Drive, Redwood City, California
94065. Mr. Foley is a citizen of the United States.
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Rowland C. Frazee, C.C. has his business address at Royal Bank of Canada, 1
Place Villa Marie, 3rd Floor, Montreal Quebec Canada H3B 4A7. He is retired.
Mr. Frazee is a citizen of Canada.
Hollis L. Harris has his business address at Air Canada Center, Montreal
International Airport (Dorval), P.O. Box 1400, Postal Station, Saint-Laurent,
Canada H4Y 1H4. His principal occupation is as Chairman of the Board, President
and Chief Executive Officer of Air Canada, which has its principal business
address at Air Canada Center, Montreal International Airport (Dorval), P.O. Box
14000, Postal Station, Saint-Laurent, Canada H4Y 1H4. Mr. Harris is a citizen
of the United States.
Robert L. Lumpkins has his business address at P. O. Box 5724, Minneapolis,
Minnesota 55440-5724. His principal occupation is as Senior Vice President,
Chief Financial Officer and Director of Cargill, Inc., which has its business
address at P. O. Box 5724, Minneapolis, Minnesota 55440-5724. Mr. Lumpkins is a
citizen of the United States.
Douglas McCorkindale has his principal business address at 1100 Wilson
Boulevard, Arlington, Virginia 22234. His principal occupation is as Vice
Chairman, Director and Chief Financial and Administrative Officer of Gannett
Co., Inc., which has its principal business address at 1100 Wilson Boulevard,
Arlington, Virginia 22234. Mr. McCorkindale is a citizen of the United States.
David E. Mitchell, O.C. has his business address at Suite 3900, 421 7th
Avenue Southwest, Calgary, Alberta, Canada T2P 4K9. His principal occupation is
as Chairman of Alberta Energy Company, Ltd., which has its business address at
Suite 3900, 421 7th Avenue Southwest, Calgary, Alberta, Canada T2P 4K9. Mr.
Mitchell is a citizen of Canada.
Richard W. Pogue has his business address at 1301 East 9th Street, Suite
1300, Cleveland, Ohio 44114. His principal occupation is with Dix & Eaton
which has its business address at 1301 East 9th Street, Suite 1300, Cleveland,
Ohio 44114. Mr. Pogue is a citizen of the United States.
William Price has his business address at 201 Main Street, Suite 2420, Fort
Worth, Texas 76102. His principal occupation is as a director and Vice
President of TPG Advisors, which has its business address at 201 Main Street,
Suite 2420, Fort Worth, Texas 76102. Mr. Price is a citizen of the United
States.
Donald L. Sturm has his business address at 3033 East 1st Avenue, Denver,
Colorado 80206. His principal occupation is as Chairman of the Board and Chief
Executive Officer of The Bank of Cherry Creek, which has its business address at
3033 East 1st Avenue, Denver, Colorado 80206. Mr. Sturm is a citizen of the
United States.
Claude I. Taylor, O.C. has his principal business address at Air Canada
Center, Montreal International Airport (Dorval), P.O. Box 14000, Postal Station,
Saint-Laurent, Canada
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H4Y 1H4. His principal occupation is as Chairman Emeritus of Air Canada, which
has its business address at Montreal International Airport (Dorval), P.O. Box
14000, Postal Station, Saint-Laurent, Canada H4Y 1H4. Mr. Taylor is a citizen
of Canada.
Jack T. Trotter has his business address at 1000 Louisiana, Suite 3600,
Houston, Texas 77002. His principal occupation is as an attorney. Mr. Trotter
is a citizen of the United States.
Karen Hastie Williams has her business address at 1001 Pennsylvania Avenue,
N.W., Suite 1100, Washington, D.C. 20004. Her principal occupation is as
Partner of Crowell & Mooring, which has its business address at 1001
Pennsylvania Avenue, N.W., Suite 1100, Washington, D.C. 20004. Ms. Williams is
a citizen of the United States.
Air Partners, L.P. and Air Canada could be deemed to be controlling persons
of Continental.
Air Partners, L.P. is a Texas limited partnership whose principal executive
offices are located at 201 Main Street, Suite 2420, Fort Worth, Texas 76102.
Air Partners, L.P. is a limited partnership formed to invest in the securities
of Continental.
Pursuant to General Instruction "C" for Schedule 13D, set forth below is
certain information concerning (i) the general partners of Air Partners, L.P.,
(ii) the general partners of the general partners of Air Partners, L.P. and
(iii) each person controlling each such general partner.
The general partners of Air Partners, L.P. are Air II General, Inc. and
1992 Air GP. The general partners of 1992 Air GP are 1992 Air, Inc. and Air
Saipan, Inc.
David Bonderman is the majority shareholder of Air II General, Inc. and
1992 Air, Inc. Information regarding Mr. Bonderman is set forth above.
Larry L. Hillblom is the sole shareholder of Air Saipan, Inc. Mr. Hillblom
has his business address at One Post Street, Suite 2450, San Francisco,
California 94104. His principal occupation is as a private investor. Mr.
Hillblom is a citizen of the United States.
No other person controls Air Partners, L.P., Air II General, Inc., 1992 Air
GP, 1992 Air, Inc. or Air Saipan, Inc.
Air Canada is a Canadian corporation whose principal executive offices are
located at Air Canada Center, Montreal International Airport (Dorval), P.O. Box
1400, Postal Station, St. Laurent, Canada H4Y 1H4. Air Canada is a Canadian air
carrier engaged in the business of transporting passengers, cargo and mail.
8
Pursuant to General Instructions "C" for Schedule 13D, set forth below is
certain information concerning (i) each executive officer and director of Air
Canada, (ii) each person controlling Air Canada, (iii) each executive officer
and director of such controlling person.
The executive officers of Air Canada are: Hollis L. Harris (Chairman,
President and Chief Executive Officer), Jean-Jacques Bourgeault (Executive Vice
President and Chief Operating Officer), Lamar Durrett (Executive Vice President,
Technical Operations and Corporate Services), Paul E. Brotto (Vice President,
Financial Planning and Controller), John Dickie (Vice President, Technical
Operations), L. Cameron DesBois, Q.C. (Vice President and General Counsel), Paul
R. Garratt (Vice President, Human Resources), Allen B. Graham (Vice President,
Customer Service), Egon Koch (Vice President, International-Europe), Paul
Letourneau, Q.C. (Secretary of the Company), G. Ross MacCormack (Vice President,
Corporate Strategy), B. Wayne MacLellan (Vice President, Flight Operations),
R.A. (Sandy) Morrison (Vice President, Corporate Communications, Government and
Industry Relations), M. Robert Peterson (Vice President, Finance and Chief
Financial Officer), Douglas D. Port (Vice President, Passenger Marketing and
Sales) and H. Alan Thompson (Vice President, Corporate Affairs and Passenger
Sales - B.C., Alberta and Pacific Rim). The directors of Air Canada are: Hon.
W. David Angus, Q.C., J.V. Raymond Cyr, O.C., John F. Fraser, O.C., David A.
Ganong, Hollis L. Harris, William James, Fernand Lalonde, Q.C., Gordon F.
MacFarlane, David E. Mitchell, O.C., Paul D. Mitchell, Claude I. Taylor, O.C.
and Louise Brais Vaillancourt, C.M.
Each of the executive officers has as his or her principal business address
Montreal International Airport (Dorval), P.O. Box 14000, Postal Station, Saint-
Laurent, Canada H4Y 1H4 and his or her principal occupation is as indicated
above with Air Canada at the same address. All of the executive officers are
citizens of Canada, except for Messrs. Harris, Durrett and Koch, who are
citizens of the United States.
Hon. W. David Angus, Q.C. has his business address at 1144 Rene Boulevard,
Room 3603, Montreal Quebec, Canada H3B 3V2. His principal occupation is as
Senior Partner of Stikeman, Elliot, which has its business address at 1144 Rene
Boulevard, Room 3603, Montreal Quebec, Canada H3B 3V2. Mr. Angus is a citizen
of Canada.
J.V. Raymond Cyr, O.C. has his principal business address at 1050 Beaver
Hall Hill, 19th Floor, Montreal, Canada H2Z 1S4. His principal business
occupation is as Chairman of the Board of Bell Canada, which has its business
address at 1050 Beaver Hall Hill, 19th Floor, Montreal, Canada H2Z 1S4. Mr. Cyr
is a citizen of Canada.
John F. Fraser, O.C. has his business address at One Lombard Place, Suite
1600, Winnipeg, Manitoba Canada R3B 0X3. His principal occupation is as
Chairman of the Board of Federal Industries Ltd., which has its business address
at One Lombard Place, Suite 1600, Winnipeg, Manitoba Canada R3B 0X3. Mr. Fraser
is a citizen of Canada.
9
David A. Ganong has his business address at One Chocolate Drive, St.
Stephen, New Brunswick, Canada E3L 2X5. His principal occupation is as
President of Ganong Bros. Limited, which has its business address at One
Chocolate Drive, St. Stephen, New Brunswick, Canada E3L 2X5. Mr. Ganong is a
citizen of Canada.
Information regarding Hollis L. Harris is set forth above.
William James has his business address at 150 York Street, Suite 1508,
Toronto, Ontario, Canada M5H 3S5. His principal occupation is as President and
Chief Executive Officer of Denison Mines Limited, which has its business address
at 150 York Street, Suite 1508, Toronto, Ontario, Canada M5H 3S5. Mr. James is
a citizen of Canada.
Fernand Lalonde, Q.C. has his business address at One Place Ville-Marie,
Montreal, Quebec, Canada H3B 3N2. His principal occupation is as Partner of
Ahern, Lalonde, Nuss Drymer, which has its business address at One Place Ville-
Marie, Montreal, Quebec, Canada H3B 3N2. Mr. Lalonde is a citizen of Canada.
Gordon F. MacFarlane has his business address at 3777 Kingsway, 21st Floor,
Burnaby, British Columbia, Canada V5H 3Z7. His principal occupation is as
Director of BC TELECOM Inc., which has its business address at 3777 Kingsway,
21st Floor, Burnaby, British Columbia, Canada V5H 3Z7. Mr. MacFarlane is a
citizen of Canada.
Information regarding David E. Mitchell, O.C. is set forth above.
Paul D. Mitchell has his business address at 890 Woodlawn Road West,
Guelph, Ontario, Canada N1K 1A5. His principal occupation is as President and
Chief Executive Officer of McNeil Consumer Products Company, which has its
business address at 890 Woodlawn Road West, Guelph, Ontario, Canada N1K 1A5.
Mr. Mitchell is a citizen of Canada.
Information regarding Claude I. Taylor, O.C. is set forth above.
Louise Brais Vaillancourt, C.M. has her business address at Montreal
International Airport (Dorval), P.O. Box 14000, Postal Station, Saint-Laurent,
Canada H4Y 1H4. Her principal occupation is as a corporate director. Ms.
Vaillancourt is a citizen of Canada.
No other person controls Continental.
During the last five years, none of Continental, its executive officers or
directors and, to the best knowledge of Continental, none of the executive
officers, directors or controlling persons of Air Partners, L.P. or Air Canada
has been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors). During the last five years, none of Continental, its
executive officers or directors and, to the best knowledge of Continental, none
of the executive officers, directors or controlling persons of Air Partners,
L.P. or Air Canada has been a party to a civil proceeding of a judicial or
administrative body of competent
10
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The aggregate amount of funds required by Continental to purchase the Class
A Common, the Class B Common and the Warrants from the Company was $18,771,001.
All funds used by Continental to purchase the Class A Common, the Class B Common
and the Warrants were obtained from the working capital of Continental and no
part of the purchase price for the Class A Common, Class B Common or Warrants
consisted of borrowed funds.
Item 4. Purpose of Transaction.
The purpose of the purchase of the Class A Common, Class B Common and
Warrants by Continental is for general investment purposes.
Continental intends to review continuously its equity position in the
Company. Depending upon future evaluations of the business prospects of the
Company and upon other developments, including, but not limited to, general
economic and business conditions and money market and stock market conditions,
Continental may determine to increase or decrease its equity interest in the
Company by acquiring additional shares of Class A Common, Class B Common or
Warrants or by disposing of all or a portion of its holdings of Class A Common,
Class B Common or Warrants, subject to any applicable legal and contractual
restrictions on its ability to do so.
Continental has acquired its interests in the Class A Common, Class B
Common and Warrants as a result of the assignment by AmWest Partners, L.P.
("AmWest") of certain rights granted to AmWest under the Third Revised
Investment Agreement (the "Investment Agreement") between AmWest and America
West Airlines, Inc., prior to its reorganization ("Old America West"), including
AmWest's right to purchase Class A Common, Class B Common and the Warrants from
the Company on the Effective Date.
AmWest and Old America West entered into the Investment Agreement on April
21, 1994. Pursuant to the Investment Agreement, AmWest agreed, in connection
with and as part of the Plan, to acquire certain voting securities, debt
securities and warrants of the Company. In addition, pursuant to the Investment
Agreement, the Company, AmWest, the Official Creditors' Committee and the
Official Equity Committee agreed to appoint a new Board of Directors for the
Company, to amend the charter and by-laws of the Company and to enter into
certain other agreements described in Item 6 below. Following the successful
completion of the transactions contemplated by the Investment Agreement on
August 25, 1994 (including the assignment by AmWest of its rights under the
Investment Agreement to certain parties,
11
including Continental), certain affiliates of Continental, including TPG
Partners, L.P. ("TPG"), TPG Parallel I, L.P. ("TPG Parallel") and Air Partners
II, L.P. ("Air Partners II") (TPG, TPG Parallel and Air Partners II,
collectively, the "TPG Parties") own a controlling interest in the Company. A
copy of the Investment Agreement is filed as an exhibit hereto and incorporated
herein by reference.
Except as set forth herein, Continental does not have any plans or
proposals which would relate to or result in:
(a) The acquisition of additional securities of the Company, or the
disposition of securities of the Company;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its
subsidiaries;
(c) A sale or transfer of a material amount of assets of the Company or of
any of its subsidiaries;
(d) Any change in the present board of directors or management of the
Company, including any plans or proposals to change the number or term
of directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend policy
of the Company;
(f) Any other material change in the Company's business or corporate
structure;
(g) Changes in the Company's charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of control
of the issuer by any person;
(h) Causing a class of securities of the Company to be delisted from a
national securities exchange or to cease to be authorized to be quoted
in an inter-dealer quotation system of a registered national
securities association;
(i) A class of equity securities of the Company becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934 (the "Exchange Act"); or
(j) Any action similar to any of those enumerated above.
12
Item 5. Interest in Securities of the Issuer.
(a) - (b) At the date hereof, Continental has the sole power to vote and
dispose of 325,505 shares of the Class A Common, 1,508,234 shares of the Class B
Common, and 802,860 Warrants. The Warrants entitle holders to purchase one
share of the Class B Common at a price of $12.74 per share, subject to
confirmation of such price by the Bankruptcy Court pursuant to a final order and
to certain adjustments. The Class A Common held by Continental represents
approximately 27.1% of the 1,200,000 shares of Class A Common outstanding as of
August 31, 1994, based on information provided by the Company. The Class B
Common held by Continental represents approximately 3.4% of the 43,925,000
shares of Class B Common outstanding as of August 31, 1994, based on information
provided by the Company. The Warrants held by Continental represent
approximately 7.7% of the 10,384,615 Warrants outstanding as of August 31, 1994,
based on information provided by the Company. Assuming exercise of the Warrants,
the Class B Common and Warrants held by Continental represent approximately 5.2%
of the 44,727,860 shares of Class B Common which would be assumed to be
outstanding upon such exercise.
As set forth in Item 5(d) and 6, the TPG Parties have certain
understandings and agreements regarding the voting and disposition of the
securities of the Company held by them with GPA Group plc, an Irish public
limited company ("GPA"), Continental and Mesa Airlines, Inc., a New Mexico
corporation ("Mesa"). As a result of these agreements and understandings, the
TPG Parties together with each of GPA, Continental and Mesa comprise a group
within the meaning of Section 13(d)(3) of the Exchange Act, and each may be
deemed to beneficially own the securities of the Company owned by the other.
Information concerning the ownership of Class A Common, Class B Common and
Warrants by each of the TPG Parties, GPA and Mesa is contained in separate
Schedules 13D being filed by each of the TPG Parties, GPA and Mesa. As a group,
such parties beneficially own 1,200,000 shares of the Class A
Common, 9,604,429 shares of the Class B Common, and 4,897,538 Warrants. The
aggregate amount of Class A Common beneficially owned by the group represents
100% of the 1,200,000 shares of Class A Common outstanding as of August 31,
1994, based on information provided by the Company. The aggregate amount of
Class B Common beneficially owned by the group represents approximately 21.9% of
the 43,925,000 shares of Class B Common outstanding as of August 31, 1994,
based on information provided by the Company. The aggregate amount of Warrants
beneficially owned by the group represents approximately 47.2% of the 10,384,615
Warrants outstanding as of August 31, 1994, based on information provided by the
Company. Assuming exercise of the Warrants, the aggregate amount of Class B
Common and Warrants beneficially owned by the group represents approximately
29.7% of the 48,822,538 shares of Class B Common which would be assumed to be
outstanding upon such exercise.
13
Except as described herein, Continental does not have the sole or shared
voting power to vote or the sole or shared power to dispose of any shares of
Class A Common, Class B Common or any of the Warrants.
To the knowledge of Continental, none of the individuals named in Item 2
has the sole or shared power to vote or the sole or shared power to dispose of
any shares of Class A Common, Class B Common, or of any Warrants.
(c) Except as stated herein, no transactions in shares of Class A Common,
Class B Common or Warrants were effected during the past 60 days by Continental
or to the best of its knowledge, any of the individuals identified in Item 2.
(d) On August 25, 1994, the TPG Parties and Continental entered into a
Priority Distribution Agreement (the "Priority Distribution Agreement"). The
following is a brief description of the Priority Distribution Agreement, and is
qualified in its entirety by reference to such agreement, a copy of which is
filed as an exhibit hereto and incorporated herein by reference.
The Priority Distribution Agreement provides that the TPG Parties will
share with Continental certain of the proceeds from their sale or disposition of
the securities of the Company covered by such agreement (including certain
shares of Class A Common and Class B Common), if such sharing of proceeds is
necessary to ensure that Continental receives a specified rate of return on its
investment in the securities of the Company. Pursuant to the Priority
Distribution Agreement, the TPG Parties have also granted Continental a right of
first refusal with regard to the sale by any of the TPG Parties of any of the
securities covered by such agreement.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer.
On August 25, 1994, AmWest Genpar Inc., a Texas corporation ("AmWest
Genpar"), Apcal, L.P., a Texas limited partnership ("Apcal"), and Mesa entered
into an agreement (the "Termination Agreement"), pursuant to which AmWest was
dissolved. Apcal and Mesa were limited partners of AmWest; AmWest Genpar was
its general partner. The limited partners of Apcal included TPG and
Continental, and TPG and Continental have agreed to and acknowledged certain
provisions of the Termination Agreement and have (together with the other TPG
Parties and Mesa) additionally entered into certain related assignment and
assumption agreements with AmWest (copies of which agreements are attached as an
exhibit hereto and incorporated herein by this reference). The following is a
brief description of the Termination Agreement and is qualified in its entirety
by reference to such agreement, a copy of which is filed as an exhibit hereto
and incorporated herein by reference.
14
The Termination Agreement provides that AmWest assign to each of AmWest
Genpar, Apcal and Mesa its rights and obligations under the Investment Agreement
to purchase from the Company on the Effective Date certain shares of Class A
Common, Class B Common and Warrants and that each of AmWest Genpar and Apcal
assign such rights and obligations to certain of their affiliates (including the
TPG Parties and Continental) in accordance with certain agreements entered into
between such affiliates and AmWest. The Termination Agreement further provides
that each of AmWest Genpar, Apcal and Mesa (and each of their respective
affiliates, including Continental, to which rights to acquire securities have
been assigned) assume all obligations of AmWest under the Investment Agreement
in connection with the purchase of such securities. As described below, the
Termination Agreement also contains certain provisions concerning the assignment
and assumption of certain rights of AmWest under the Stockholders' Agreement and
the Registration Rights Agreement (each as defined below).
Pursuant to the Termination Agreement, AmWest has assigned to TPG its right
under the Stockholders' Agreement to designate certain directors of the Company
and their replacements, if any, provided that for as long as Mesa owns
securities representing at least 2% of the aggregate voting power of the
outstanding voting equity securities of the Company, TPG has agreed with Mesa to
cause one person identified by Mesa, who shall be reasonably acceptable to TPG,
to be included among TPG's designated directors. In addition, each of the
parties to the Termination Agreement and their respective partners and
affiliates, including Continental, have agreed to assume certain of the
obligations of AmWest under the Stockholders' Agreement concerning the voting
and disposition of Class A Common and Class B Common and to be bound by the
terms of the Stockholders' Agreement as they relate to such actions. The
Termination Agreement also provides that AmWest assign to TPG certain of its
rights under the Registration Rights Agreement (including the right to issue a
notice of demand), subject to certain notice and consent requirements.
On August 25, 1994, AmWest, the Company, Lehman Brothers Inc., a Delaware
corporation ("Lehman"), Belmont Fund L.P., a Delaware limited partnership
("Belmont"), Fidelity Copernicus Fund, L.P., a Delaware limited partnership
("Copernicus"), and Belmont Capital Partners II, L.P., a Delaware limited
partnership ("Belmont II"), entered into a Registration Rights Agreement (the
"Registration Rights Agreement"). The following is a brief description of the
Registration Rights Agreement, and is qualified in its entirety by reference to
such agreement, a copy of which is filed as an exhibit hereto and incorporated
herein by reference.
Pursuant to the Registration Rights Agreement, the Company has agreed to
file a shelf registration statement with respect to the securities issued or
issuable to each of the parties thereto and their respective affiliates and to
maintain effective such shelf registration statement for a period of three years
from the Effective Date (the "Shelf Period"). After the Shelf Period, AmWest
(or its designated assignee, which is TPG) may provide the Company with a notice
of demand to register under the Securities Act of 1933 such securities as are
included in such notice of demand or otherwise includable pursuant to the
Registration Rights Agreement, for disposition in accordance with the terms of
such notice of demand. The Registration Rights
15
Agreement also provides that the parties (including Continental) may include
securities held by them in any registration of equity securities by the Company
(whether or not on its own behalf), pursuant to certain limitations on such
inclusion in the event that the managing underwriter of any such registration
informs the Company of its belief that the amount of securities requested to be
included in such registration exceeds the amount which can be sold in an
acceptable price range. The Registration Rights Agreement also provides that
the Company shall undertake certain specified actions with regard to the
registration and offering of any securities covered by the Registration Rights
Agreement and, pay stated amounts of liquidated damages to holders of
registrable securities in the event of the suspension or ineffectiveness of the
shelf registration statement covering such securities.
On August 25, 1994, AmWest, GPA, the Company and certain other parties
entered into a Stockholders' Agreement (the "Stockholders' Agreement"). The
following is a brief description of the Stockholders' Agreement, and is
qualified in its entirety by reference to such agreement, a copy of which is
filed as an exhibit hereto and incorporated herein by reference.
The Stockholders' Agreement has a term of approximately three years,
commencing on August 25, 1994 and ending on the date of the first annual meeting
of the Company occurring after August 25, 1997. Pursuant to the Stockholders'
Agreement, the parties have agreed that the Board of Directors of the Company
shall consist of up to 15 members to be designated as follows: nine members to
be designated by AmWest or its designated assignees (which assignee is TPG);
three members to be designated by the Official Creditors' Committee, provided
that each such member be reasonably acceptable to AmWest or its designated
assignees; one member to be designated by the Official Equity Committee,
provided that such member be reasonably acceptable to AmWest or its designated
assignees; one member to be designated by the Board of Directors of Old America
West, provided that such member be reasonably acceptable to AmWest or its
designated assignees; and one member to be designated by GPA for so long as GPA
shall own 2% of the voting equity securities of the Company, provided that such
member be reasonably acceptable to AmWest or its designated assignees. The Board
of Directors of the Company has been designated in accordance with these
provisions of the Stockholders' Agreement. The parties to the Stockholders'
Agreement, including Continental, have agreed to vote, or recommend the voting
of, the shares of Class A Common and Class B Common held by each of them in a
manner such that the provisions of the Stockholders' Agreement will be given
effect during its term and in order that both the election and removal of
directors will be consistent with its provisions.
The Stockholders' Agreement also provides that, during its term, the
affirmative vote of a majority of the voting power of the outstanding shares of
each of the Class A Common and Class B Common entitled to vote (excluding any
shares owned by AmWest or any of its affiliates (including Continental) but not,
however, excluding shares owned, controlled or voted by Mesa or any of its
transferees or affiliates that are not otherwise affiliates of AmWest) voting as
a single class, shall be required to approve, adopt or authorize: (i) any merger
or consolidation of the Company with or into AmWest or any affiliate of AmWest,
(ii) any sale,
16
lease, exchange, transfer or other disposition of all or any substantial part of
the assets of the Company to AmWest or any affiliate of AmWest, (iii) any
transaction as a result of which AmWest or any affiliate of AmWest will, as
result of the issuance of voting securities of the Company (or securities
convertible or exchangeable for such voting securities) acquire an increased
percentage of the Company's voting securities, subject to certain exceptions and
(iv) any related series or combination of transactions having the same direct or
indirect effect as any of the foregoing. In addition, the Stockholders'
Agreement obligates AmWest, its partners and affiliates, including Continental,
not to (a) sell or otherwise transfer any shares of Class A Common or Class B
Common, if, after such transaction, the total number of shares of Class B Common
beneficially owned by the transferor is less than twice the number of shares of
Class A Common beneficially owned by the transferor (unless such transaction
results in the sale or transfer of all of such party's Class A Common and Class
B Common); and (b) sell or transfer, in a single transaction or related series
of transactions, shares of Class A Common and Class B Common representing 51% or
more of the combined voting power of all shares of Common Stock of the Company
then outstanding without the consent of the Company, pursuant to an affirmative
vote of not less than 75% of its directors and subject to certain enumerated
exclusions (including, without limitation, transfers to affiliates and sales in
connection with a public offering or tender offer for all shares of common stock
and for the benefit of all holders of Class B Common on a pro rata basis at the
same price and on the same economic terms).
On August 25, 1994, AmWest and GPA entered into a Voting Agreement (the
"GPA Voting Agreement"). The following is a brief description of the GPA Voting
Agreement, and is qualified in its entirety by reference to such agreement, a
copy of which is filed as an exhibit hereto and incorporated herein by
reference.
The GPA Voting Agreement provides that GPA shall vote for the nominees of
AmWest or its designated assignee to the Company's Board of Directors and that
AmWest (and its affiliates or assignees, including Continental, who receive
Class A Common or Class B Common as a result of an assignment by AmWest, subject
to certain enumerated exceptions) shall vote for GPA's nominees to the Company's
Board of Directors, in each case, for so long as AmWest or its affiliates own 5%
of the voting equity securities of the Company and GPA owns at least 2% of the
voting equity securities of the Company or until August 25, 2004, whichever
comes first. In addition, the GPA Voting Agreement provides that AmWest shall
not transfer or assign any voting equity securities of the Company to Mesa, if
after giving effect to any such transfer or assignment, Mesa shall hold 7% or
more of the combined voting power of all such securities then outstanding.
On August 25, 1994, Continental and the TPG Parties entered into a Priority
Distribution Agreement, which is described in Item 5(d) above.
There are no other contracts, understandings or agreements with respect to
the securities of the Company between Continental and the other persons
identified in Item 2 and any other parties.
17
Item 7. Material to be Filed as Exhibits.
Exhibit 1 -- Investment Agreement
Exhibit 2 -- Priority Distribution Agreement
Exhibit 3 -- Termination Agreement
Exhibit 4 -- Assignment and Assumption Agreements
Exhibit 5 -- Registration Rights Agreement
Exhibit 6 -- Stockholders' Agreement
Exhibit 7 -- GPA Voting Agreement
18
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
accurate.
Dated: September 6, 1994
CONTINENTAL AIRLINES, INC.
By: /s/ Elizabeth A. Hessler
-------------------------------------------
Name: Elizabeth A. Hessler
Title: Vice President and Corporate Secretary
0174232.04
099402/1329
19
THIRD REVISED INVESTMENT AGREEMENT
----------------------------------
April 21, 1994
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Attention: William A. Franke
Chairman of the Board
Gentlemen:
This letter agreement (this "Agreement") sets forth the agreement
between America West Airlines, Inc., a Delaware corporation (including, on or
after the effective date of the Plan, as defined herein, its successors, as
reorganized pursuant to the Bankruptcy Code, as defined herein) (the "Company"),
and AmWest Partners, L.P., a Texas limited partnership ("Investor").
The Company will issue and sell to Investor, and Investor hereby agrees
and commits to purchase from the Company, a package of securities of the Company
for $244,857,000 in cash (subject to adjustment as herein provided), consisting
of (i) shares of Class A Common Stock of the Company ("Class A Common"), (ii)
shares of Class B Common Stock of the Company ("Class B Common" and, together
with the Class A Common, "Common Stock"), (iii) senior unsecured notes of the
Company ("Notes") and (iv) warrants to purchase shares of Class B Common
("Warrants"), all on the terms and subject to the terms and conditions
hereinafter set forth.
Investor's purchase of the securities referred to above (the
"Investment") will be made in connection with and as part of the transactions to
be consummated pursuant to a joint Plan of Reorganization of the Company (the
"Plan") and an order (the "Confirmation Order") confirming the Plan issued by
the Bankruptcy Court, as defined herein. The Plan will contain provisions
called for by, or otherwise consistent with, this Agreement.
In consideration of the agreements of Investor hereunder, and as a
precondition and inducement to the execution of this Agreement by Investor, the
Company has entered into the Third Revised Interim Procedures Agreement with
Investor, dated the date hereof (the "Procedures Agreement").
SECTION 1. Definitions. For purposes of this Agreement,
except as expressly provided herein or unless the context otherwise requires,
the following terms shall have the following respective meanings:
"Affiliate" shall mean (i) when used with reference to any partnership,
any Person that, directly or indirectly, owns or controls 10% or more of
either the capital or profit interests of such partnership or is a partner
of such partnership or is a Person in which such partnership has a 10% or
greater direct or indirect equity interest and (ii) when used with reference
to any corporation, any Person that, directly or indirectly, owns or
controls 10% or more of the outstanding voting securities of such
corporation or is a Person in which such corporation has a 10% or greater
direct or indirect equity interest. In addition, the term "Affiliate," when
used with reference to any Person, shall also mean any other Person that,
directly or indirectly, controls or is controlled by or is under common
control with such Person. As used in the preceding sentence, (A) the term
"control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of the entity
referred to, whether through ownership of voting securities, by contract or
otherwise and (B) the terms "controlling" and "controls" shall have meanings
correlative to the foregoing. Notwithstanding the foregoing, the Company
will be deemed not to be an Affiliate of Investor or any of its partners or
assignees.
"Alliance Agreements" shall have the meaning specified in Section 5.
"Approvals" shall have the meaning specified in Section 8(b).
"Bankruptcy Code" shall mean Chapter 11 of the United States Bankruptcy
Code.
"Bankruptcy Court" shall mean the United States Bankruptcy Court for the
District of Arizona.
"Business Combination" means:
(i) any merger or consolidation of the Company with or into Investor
or any Affiliate of Investor;
(ii) any sale, lease, exchange, transfer or other disposition of all
or any substantial part of the assets of the Company to Investor or any
Affiliate of Investor;
(iii) any transaction with or involving
2
the Company as a result of which Investor or any of Investor's
Affiliates will, as a result of issuances of voting securities by the
Company (or any other securities convertible into or exchangeable for
such voting securities) acquire an increased percentage ownership of
such voting securities, except pursuant to a transaction open on a pro
rata basis to all holders of Class B Common; or
(iv) any related series or combination of transactions having or
which will have, directly or indirectly, the same effect as any of the
foregoing.
"Class A Common" shall have the meaning specified in the second
paragraph of this Agreement.
"Class B Common" shall have the meaning specified in the second
paragraph of this Agreement.
"Common Stock" shall have the meaning specified in the second paragraph
of this Agreement.
"Company" shall have the meaning specified in the first paragraph of
this Agreement.
"Confirmation Date" shall mean the date on which the Confirmation Order
is entered by the Bankruptcy Court.
"Confirmation Order" shall have the meaning specified in the third
paragraph of this Agreement.
"Continental" shall mean Continental Airlines, Inc.
"Creditors' Committee" shall mean the Official Committee of the
Unsecured Creditors of America West Airlines, Inc. appointed in the
Company's Chapter 11 case pending in the Bankruptcy Court.
"Disclosure Statement" shall mean a disclosure statement with respect to
the Plan.
"Effective Date" shall mean the effective date of the Plan; provided
that in no event shall the Effective Date be (a) earlier than 11 days after
the Bankruptcy Court approves and enters the Confirmation Order providing
for the confirmation of the Plan or (b) before all material Approvals are
obtained.
"Electing Party" shall have the meaning specified in Section
4(a)(2)(ii).
"Equity Committee" shall mean the Official Committee of
3
Equity Holders of America West Airlines, Inc. appointed in the Company's
Chapter 11 case pending in the Bankruptcy Court.
"Equity Holders" shall mean the Company's equity security holders
(including holders of common stock and preferred stock) of record as of the
applicable record date fixed by the Bankruptcy Court.
"Governance Agreements" shall have the meaning specified in Section 6.
"GPA" shall mean GPA Group plc or, if applicable, any direct or indirect
subsidiary thereof.
"GPA Put Agreement" shall have the meaning specified in Section 7(j).
"Independent Directors" shall have the meaning specified in Section
6(a)).
"Initial Order" shall have the meaning specified in Section 8(a).
"Investment" shall have the meaning specified in the third paragraph of
this Agreement.
"Investor" shall have the meaning specified in the first paragraph of
this Agreement.
"Mesa" shall mean Mesa Airlines, Inc.
"Monthly Targets" shall mean the amounts specified in the Monthly
Targets Schedule.
"Monthly Targets Schedule" shall mean the letter agreement between the
Company and Investor dated the date hereof.
"Notes" shall have the meaning specified in the second paragraph of this
Agreement. The Notes shall be subject to the terms and conditions set forth
in Exhibit B hereto.
"Outside Date" shall mean August 31, 1994; provided that Investor shall
have the right from time to time to irrevocably extend the Outside Date to a
date not later than November 30, 1994, but only if Investor gives the
Company prior written notice of its election to extend the then current
Outside Date (which notice shall specify the new Outside Date) and then only
if, at the time of the giving of such notice, Investor is not in breach of
any of its representations, warranties, covenants or obligations under this
Agreement, the Procedures Agreement or any Related Agreement (excluding any
breach by Investor which is not willful or intentional and which is capable
of
4
being cured on or before the new Outside Date). Unless waived by the
Company, any notice given pursuant to this definition shall be delivered to
the Company not less than 15 days prior to the then current Outside Date
except that, in the event the Effective Date has not occurred for any reason
arising within such 15-day period not due to a breach by Investor of any of
its representations, warranties, covenants or agreements hereunder, such
notice shall be given as soon as practicable but in no event later than the
then current Outside Date.
"Person" means a natural person, a corporation, a partnership, a trust,
a joint venture, any Regulatory Authority or any other entity or
organization.
"Plan" shall have the meaning specified in the third paragraph of this
Agreement.
"Plan 9" means the Company's Plan Revision No. 9 which consists of the
Summary Pro Forma Financial Statements: June 1993 Through December 1994,
dated July 15, 1993.
"Plan R-2" shall mean the Company's Summary Pro Forma Financial
Statements, 5 Year Plan: 1994 Through 1998, Plan No. R-2, dated January 13,
1994.
"Procedures Agreement" shall have the meaning specified in the fourth
paragraph of this Agreement.
"Projections" shall mean the projections set forth in Plan 9 on pages 15
and 18 of Tab E and pages 7 and 8 of Tab F.
"Purchase Price" shall have the meaning specified in Section 2.
"Regulatory Approvals" shall mean all approvals, permits,
authorizations, consents, licenses, rulings, exemptions and agreements
required to be obtained from, or notices to or registrations or filings
with, any Regulatory Authority (including the expiration of all applicable
waiting periods, if any, under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended) that are necessary or reasonably appropriate to
permit the Investment and the other transactions contemplated hereby and by
the Related Agreements and to permit the Company to carry on its business
after the Investment in a manner consistent in all material respects with
the manner in which it was carried on prior to the Effective Date or
proposed to be carried on by the reorganized Company.
"Regulatory Authority" shall mean any authority, agency, commission,
official or other instrumentality of the United States, any foreign country
or any domestic or foreign state, county, city or other political
subdivision.
5
"Related Agreements" shall have the meaning specified in Section 3.
"Securities" shall mean the securities of the Company issued to the
Unsecured Parties, Investor and its assigns and GPA under this Agreement.
The Securities are described in Section 4.
"Unsecured Creditors" shall mean, as of any date, the Persons holding of
record as of such date the allowed or allowable prepetition unsecured claims
without priority of the Company.
"Unsecured Parties" shall mean the Equity Holders and the Unsecured
Creditors.
"Warrants" shall have the meaning specified in the second paragraph of
this Agreement.
SECTION 2. Commitment to Make Investment. Subject to the terms and
conditions of this Agreement and the Procedures Agreement, on the Effective
Date, the Company shall issue and sell and Investor shall purchase Securities in
accordance with this Agreement and the Plan. Such Securities shall be issued,
sold and delivered to Investor, its designees and/or one or more third party
investors, and the $244,857,000 purchase price therefor, as such purchase price
may be adjusted pursuant hereto (the "Purchase Price"), shall be paid by wire
transfer of immediately available funds on the Effective Date.
SECTION 3. Related Agreements. The agreements necessary to effect
the Investment (the "Related Agreements", such term to include the Alliance
Agreements and the Governance Agreements) shall be in form and substance
reasonably satisfactory to Investor and the Company, and shall contain terms and
provisions, including representations, warranties, covenants, warranty
termination periods, materiality exceptions, cure opportunities, conditions
precedent, anti-dilution provisions (as appropriate), and indemnities, as are in
form and substance reasonably satisfactory to such parties; provided, however,
that the Related Agreements shall contain provisions called for by, or otherwise
consistent with, this Agreement.
SECTION 4. Capitalization. (a) Upon consummation of the Plan, the
capitalization of the Company shall be as follows:
(1) Class A Common. There shall be 1,200,000 shares of Class A Common,
all of which shares shall, in accordance with the Plan, be issued to
Investor. Investor shall pay $8,960,400
6
for the Class A Common. At the option of the holders thereof, shares of
Class A Common shall be convertible into shares of Class B Common on a share
for share basis.
(2) Class B Common. There shall be 43,800,000 shares of Class B Common,
all of which shares shall, in accordance with the Plan, be issued as
follows:
(i) Investor. Investor shall be issued 13,875,000 shares plus the
number of shares (if any) to be acquired by Investor pursuant to clause
(ii) below minus the number of shares, if any, purchased by the Equity
Holders pursuant to the second sentence of clause (iii) below. For each
share of Class B Common issued to it, Investor shall pay $7.467;
provided that (A) for each share acquired by Investor pursuant to clause
(ii) below and (B) for each share not purchased by the Equity Holders
pursuant to clause (iii) below, Investor shall pay $8.889.
(ii) Unsecured Creditors. The Unsecured Creditors (or a trust
created for their benefit) shall be issued 26,775,000 shares.
Notwithstanding the foregoing, each Unsecured Creditor shall have the
right to elect to receive cash equal to $8.889 for each share of Class B
Common otherwise allocable to it under this clause (ii). The election
of each such Person (the "Electing Party") must be made on or before the
date fixed by the Bankruptcy Court for voting with respect to the Plan;
provided, however, that in the event that such elections of all Electing
Parties aggregate to more than $100 million, then (A) the amount of cash
so paid shall be limited to $100 million and (B) the Electing Parties
shall each receive proportionate amounts of cash and Class B Common in
accordance with the Plan. Subject to the foregoing proviso, Investor
shall increase the Investment by the amount necessary to pay all
Electing Parties the cash amounts payable to them under this clause (ii)
in respect of the shares of Class B Common specified in their elections
and, upon payment of such amounts, such shares shall be issued to
Investor without further consideration. Notwithstanding the foregoing,
Investor's acquisition of shares of Class B Common pursuant to this
clause (ii) shall, if permitted by applicable securities and other laws,
be consummated immediately after the issuance of such shares to the
Electing Parties on the Effective Date. If such shares are not so
acquired post-consummation of the Plan, all shares of Class B Common
acquired by
7
Investor pursuant to this clause (ii) shall, for all purposes hereof, be
deemed to be part of the Securities acquired by Investor hereunder.
(iii) Equity Holders. The Equity Holders (or a trust created for
their benefit) shall be issued 2,250,000 shares. In addition, the
Equity Holders shall have the right to purchase up to 1,615,179 shares
allocable to Investor pursuant to clause (i) above at $8.889 per share.
Such election must be made by each Equity Holder on or before the date
fixed by the Bankruptcy Court for voting with respect to the Plan. The
Plan shall set forth the terms and conditions on which the foregoing
rights may be exercised.
(iv) GPA. 900,000 shares shall be issued to GPA.
(3) Warrants. There shall be Warrants to purchase 10,384,615 shares of
Class B Common at the exercise price as specified in and subject to the
terms of Exhibit A hereto, and such Warrants shall, in accordance with the
Plan, be issued as follows:
(i) Warrants to purchase up to 2,769,231 shares of Class B Common
shall be issued to Investor; and
(ii) Warrants to purchase up to 6,230,769 shares of Class B Common
shall be issued to the Equity Holders or a trust or trusts created for
their benefit; and
(iii) Warrants to purchase up to 1,384,615 shares of Class B Common
shall be issued to GPA.
(4) Senior Unsecured Notes. Investor shall, in accordance with the Plan
and subject to the terms of Exhibit B hereto, be issued $100 million
principal amount of Notes against payment in cash of not less than 100% of
the principal amount thereof to the Company; provided, however, that the
Company shall have the right, exercised at any time prior to the date fixed
by the Bankruptcy Court for voting with respect to the Plan, to increase the
principal amount of the Notes to be so purchased by Investor to up to $130
million. GPA shall, in accordance with the Plan, be issued $30,525,000
principal amount of Notes; provided, however, that GPA shall have the right
to elect to receive cash in lieu of all or any portion of the Notes
otherwise issuable to it under this paragraph (4), such election to be made
on or before the date fixed by the Bankruptcy Court for voting with respect
to the Plan.
8
(b) Holders of the Class A Common shall have fifty votes per share.
Holders of Class B Common shall have one vote per share. Holders of Class A
Common and holders of Class B Common shall vote together as a single class
except as otherwise required by law or the provisions of this Agreement.
Investor may elect, with respect to any shares of Class B Common held by it, to
suspend the voting rights relating to such shares by giving prior written notice
to the Company, which notice shall describe such shares in reasonable detail and
state whether or not the voting suspension is permanent or temporary and, if
temporary, specify the period thereof.
(c) Neither Investor nor any Affiliate of Investor or of any partner of
Investor will transfer or otherwise dispose of any Common Stock (other than to
an Affiliate of the transferor) if, after giving effect thereto and to any
concurrent transaction, the total number of shares of Class B Common
beneficially owned by the transferor is less than 200% of the total number of
shares of Class A Common beneficially owned by the transferor; provided,
however, than nothing in this paragraph (c) shall prohibit any Person from
transferring or otherwise disposing, in a single transaction or a series of
concurrent transactions, of all shares of Common Stock owned by such Person.
SECTION 5. Business Alliance Agreements. Continental and the Company
shall enter into mutually acceptable business alliance agreements on the
Effective Date, which agreements may include, but shall not be limited to,
agreements to share ticket counter space, ground handling agreements, agreements
to link frequent flier programs, and combined purchasing agreements, and
schedule coordination and code sharing agreements. On the Effective Date, Mesa
shall enter into agreements with the Company extending the existing contractual
arrangements between the Company and Mesa for five years from the Effective Date
and modifying the termination provisions thereof consistent with such extension.
Such agreements with Continental and Mesa are herein collectively referred to as
the "Alliance Agreements".
SECTION 6. Governance Agreements. On the Effective Date, the Company,
Investor and Investor's partners (other than any such partner holding shares of
Class B Common the voting rights with respect to which have been suspended as
contemplated by Section 4(b)) shall enter into one or more written agreements
(the "Governance Agreements") effectively providing as follows:
(a) At all times during the three-year period commencing on the
Effective Date, the Company's board of directors shall consist of 15 members
designated as follows:
9
(i) nine members (at least 8 of whom are U.S. citizens) shall be
designated by Investor, with certain of the partners of Investor having
the right to designate certain of Investor's designated directors;
(ii) three members (at least two of whom are U.S. citizens) shall be
designated bythe Creditors' Committee; provided that each such member
shall be reasonably acceptable to Investor at the time of his or her
initial designation;
(iii) one member shall be designated by the Equity Committee;
provided that such member shall be a U.S. citizen reasonably acceptable
to Investor at the time of his or her initial designation;
(iv) one member shall be designated by the Company's board of
directors as constituted on the date preceding the Effective Date;
provided that such member shall be a U.S. citizen reasonably acceptable
to Investor at the time of his or her initial designation; and
(v) one member shall be designated by GPA for so long as GPA shall
own at least 2% of the voting equity securities of the Company;
provided that such member shall be reasonably acceptable to Investor at
the time of his or her initial designation.
The directors (and their successors) referred to in clauses (ii), (iii) and
(iv) above are hereinafter referred to collectively as the "Independent
Directors".
(b) In the case of the death, resignation, removal or disability of an
Independent Director after the Effective Date, his or her successor shall be
designated by the Stockholder Representatives, except that if such
Independent Director was initially designated by the Creditors' Committee or
the Equity Committee and if, at the time of such Independent Director's
death, resignation, removal or disability (as the case may be), the
Creditors' Committee or the Equity Committee (as the case may be) remains in
effect, the successor to such Independent Director shall be designated by
the Creditors' Committee or the Equity Committee (as the case may be). As
used herein, "Stockholder Representatives" shall mean, collectively, (A) one
individual who, on the date hereof, is serving as a director of the Company,
(B) one individualwho, on the date hereof, is serving as a member of the
Creditors' Committee and (C) one individual who, on the date hereof, is
serving as a member of
10
the Equity Committee. The initial Stockholder Representatives shall be
selected on or before the Effective Date (x) by the Company's board of
directors in the case of the individual referred to in clause (A) above, (y)
by the Creditors' Committee in the case of the individual referred to in
clause (B) above and (z) by the Equity Committee in the case of the
individual referred to in clause (C) above. In case of the death,
resignation, removal or disability of a Stockholder Representative after the
Effective Date, his or her successor shall be designated by the remaining
Stockholder Representatives.
(c) Until the third anniversary of the Effective Date, Investor will
vote and cause to be voted all shares of Common Stock (other than those the
voting rights of which have been suspended) owned by Investor or any of its
partners or by the assignees or transferees of all or substantially all of
the Common Stock owned by Investor or any of its partners (other than a
Person who acquires such stock pursuant to a tender or exchange offer open
to all stockholders of the Company) in favor of the election as directors of
any and all individuals designated for such election as contemplated by
clauses (ii), (iii), (iv) and (v) of paragraph (a) above.
(d) No director nominated by Investor shall be an officer or employee of
Continental. All Company directors, if any, who are selected by, or who are
directors of, Continental shall recuse themselves from voting on, or
otherwise receiving any confidential Company information regarding, matters
in connection with negotiations between Continental and the Company
(including, without limitation, those relating to the Alliance Agreements)
and matters in connection with any action involving direct competition
between Continental and the Company. All Company directors, if any, who are
selected by, or who are directors, officers or employees of, Mesa shall
recuse themselves from voting on, or otherwise receiving any confidential
Company information regarding, matters in connection with negotiations
between Mesa and the Company (including, without limitation, those relating
to the Alliance Agreements) and matters in connection with any action
involving direct competition between Mesa and the Company.
(e) During the three-year period commencing on the Effective Date, the
Company will not consummate any Business Combination unless such transaction
shall be approved in advance by at least three Independent Directors or by
a majority of the stock voted at the meeting held to consider such
transaction which is owned by stockholders of the Company
11
other than Investor or any of its Affiliates; provided, however, that
neither Mesa nor any fund or account managed or advised by Fidelity
Management Trust Company or its Affiliates (or any of their non-Affiliated
transferees) will be deemed an Affiliate of Investor for purposes of voting
on any Business Combination involving Continental.
SECTION 7. Plan of Reorganization. The Plan shall (i) be proposed
jointly by the Company and Investor, (ii) contain terms and conditions
reasonably satisfactory to Investor and the Company, and (iii) include the
following provisions; provided that Investor and the Company may, by mutual
agreement, modify the Plan or otherwise restructure the Investment in a manner
consistent with the contemplated economic consequences to the Company, Investor,
the Unsecured Parties and GPA in order to enable the Company, as reorganized, to
more fully utilize its existing tax attributes:
(a) Debtor-in-Possession Financing. The Company's debtor-in-possession
financing shall be repaid in full in cash on the Effective Date.
(b) Administrative Claims. All allowed administrative claims shall be
paid as required pursuant to Section 1129(a) of the Bankruptcy Code,
provided that such claims do not exceed the amount set forth in Plan R-2
plus $15 million, and provided further that payment of such claims in excess
of those set forth in Plan R-2 would not, if payment was to be made in the
month immediately preceding the Effective Date, cause the Company to fail to
meet any of the Monthly Targets for such month.
(c) Tax Claims. All priority tax claims shall be paid over the maximum
term permitted by the Bankruptcy Code, as determined by the Bankruptcy
Court, with interest accruing at a rate determined by the Bankruptcy Court,
provided that such claims do not exceed the amounts set forth in Plan R-2
plus $8.5 million, and provided further that payment of such claims in
excess of those set forth in Plan R-2 would not, if payment was to be made
in the month immediately preceding the Effective Date, cause the Company to
fail to meet any of the Monthly Targets for such month .
(d) Nontax Priority Claims. All nontax priority claims shall be paid as
required pursuant to Section 507 of the Bankruptcy Code, provided that such
claims do not exceed the amounts set forth in Plan R-2.
(e) Secured Claims. Secured debt claims shall be treated
12
as provided in Plan R-2 subject to (i) modification based on updated
appraisals of collateral values to be conducted by the Company and
consistent with the applicable provisions of the Bankruptcy Code, or (ii)
such other terms as shall be reasonably satisfactory to the Company and
Investor.
(f) Unsecured Creditors. In consideration for the shares and cash
issued or paid, as the case may be, to the Unsecured Creditors pursuant to
Section 4(a)(2)(ii), the unsecured claims of the Unsecured Creditors shall
be cancelled as specified in the Plan.
(g) Equity Holders. In consideration for (A) the right to purchase
shares pursuant to Section 4(a)(2)(iii), (B) the shares issued to the Equity
Holders pursuant to Section 4(a)(2)(iii), and (C) the Warrants issued to the
Equity Holders pursuant to Section 4(a)(3)(ii), the equity interests of the
Equity Holders shall be cancelled as specified in the Plan.
(h) Leases. All aircraft leases which have been assumed prior to the
date hereof will be honored by the Company in accordance with their terms
and without reduction of rentals thereunder, provided that with the consent
of the Company, Investor and any applicable lessor, any such lease may be
amended to reduce the rentals payable thereunder, it being understood that,
in consideration of any such amendment and with the consent of the
Creditors' Committee, securities of the Company may be issued to such
lessors from securities otherwise allocable to the Unsecured Parties to the
extent consistent with any agreement in writing entered into by Investor and
the Equity Committee on or before the date hereof.
(i) Kawasaki. The contractual right of Kawasaki Leasing International
Inc. ("Kawasaki") to require the Company to lease certain aircraft and
aircraft engines shall be modified on terms satisfactory to the Company,
Investor and Kawasaki or, in the absence of such modification, honored.
(j) GPA. In consideration for (A) the shares issued to GPA pursuant to
Section 4(a)(2)(iv), (B) the Warrants issued to GPA pursuant to Section
4(a)(3)(iii), (C) the Notes and cash issued or paid, as the case may be, to
GPA pursuant to Section 4(a)(4) and (D) the granting to GPA on the Effective
Date of the right (the "New GPA Put") to require the Company to lease from
GPA on or prior to June 30, 1999, up to eight aircraft of types consistent
with the fleet currently operated by the Company, GPA shall, as specified in
the Plan, cancel and waive all rights to put any aircraft to the Company
which it may have
13
pursuant to the Put Agreement between GPA and the Company, dated as of June
25, 1991 (the "GPA Put Agreement") and/or the related Agreement Regarding
Rights of First Refusal for A320 Aircraft, dated as of September 1, 1992
(the "First Refusal Agreement") and all other claims of any kind or nature
arising out of or in connection with the GPA Put Agreement and/or the First
Refusal Agreement (other than claims for reimbursement of expenses incurred
by GPA in connection therewith). Each such lease shall provide for the
payment by the Company of a fair market rental (determined at or about the
time of delivery of the related aircraft to the Company on the basis of
rentals then prevailing in the marketplace for comparable leases of
comparable aircraft to lessees of comparable creditworthiness); and each
such lease shall have such other terms and provisions and be in such form as
is agreed upon by the Company and GPA with the approval of Investor (which
approval shall not be unreasonably withheld or delayed) and attached to the
agreement pursuant to which GPA is granted the New GPA Put.
(k) Prepetition Aircraft Purchase Contracts. The prepetition contract
for the purchase of aircraft between the Company and The Boeing Company
shall either be modified on terms satisfactory to Investor, the Company and
The Boeing Company or, in the absence of such agreement, rejected. The
Company's aircraft purchase contract with AVSA, S.A.R.L. ("Airbus") shall be
amended on terms consistent with the provisions of the AmWest - A320 Term
Sheet, dated as of February 23, 1994 by and between Investor and Airbus.
(l) Employees. The Company shall have the right to release employees
from all currently existing obligations to the Company in respect of shares
of Company stock purchased by such employees pursuant to the Company's stock
purchase plan, such release to be in consideration for the cancellation of
such shares.
(m) Exculpation. The Plan will contain customary exculpation provisions
for the benefit of the Creditors' Committee and the Equity Committee and
their respective professionals.
SECTION 8. Conditions to Investor's Obligations Relating to Investor's
Obligations Relating to the Investment. The obligations of Investor to
consummate the Investment and the other transactions contemplated
herein shall be subject to the satisfaction, or the written waiver by
Investor, of the following conditions:
14
(a) an initial order approving the Procedures Agreement, which order
shall be in form and substance reasonably satisfactory to Investor (the
"Initial Order"), shall have been entered by the Bankruptcy Court on or
prior to May 6, 1994 and, once entered, shall be in effect and shall not be
modified in any material respect or stayed;
(b) subject to Section 10(b), the Company and Investor, as applicable,
shall have received all Regulatory Approvals, which shall have become final
and nonappealable or any period of objection by Regulatory Authorities shall
have expired, as applicable, and all other material approvals, permits,
authorizations, consents, licenses and agreements from other third parties
that are necessary or appropriate to permit the Investment and the other
transactions contemplated hereby and by the Related Agreements and to permit
the Company to carry on its business after the Effective Date in a manner
consistent in all material respects with the manner in which it was carried
on prior to the Effective Date (collectively with Regulatory Approvals, the
"Approvals"), which Approvals shall not contain any condition or restriction
that, in Investor's reasonable judgment, materially impairs the Company's
ability to carry on its business in a manner consistent in all material
respects with prior practice or as proposed to be carried on by the
reorganized Company;
(c) the certificate of incorporation and bylaws of the Company shall
contain the terms contemplated by this Agreement and shall otherwise be
reasonably satisfactory to Investor;
(d) there shall be in effect no injunction, stay, restraining order or
decree issued by any court of competent jurisdiction, whether foreign or
domestic, staying the effectiveness of any of the Approvals, the Initial
Order or the Confirmation Order, and there shall not be pending any request
or motion for any such injunction, stay, restraining order or decree;
provided, however, that the foregoing condition shall not apply to any such
injunction, stay, order or decree requested, initiated or supported by
Investor or any of its partners or other Affiliates or to any such request
or motion made, initiated or supported by Investor or any its partners or
other Affiliates;
(e) there shall not be threatened or pending any suit, action,
investigation, inquiry or other proceeding (collectively, "Proceedings") by
or before any court of competent jurisdiction or Regulatory Authority
(excluding the Company's bankruptcy case, but including adversary
proceedings
15
and contested matters in such bankruptcy case, and excluding any such
Proceedings fully and accurately disclosed by the Company in Schedule I
hereto), or any adverse development occurring since December 31, 1993 in any
such Proceedings, which Proceedings or development, singly or in the
aggregate, in the good faith judgment of Investor, are reasonably likely to
have a material adverse effect on the Company's ability to carry on its
business in a manner consistent in all material respects with prior
practices or are reasonably likely to impair in any material respect
Investor's ability to realize the intended benefits and value of this
Agreement, the Procedures Agreement or any Related Agreement; provided,
however, that the foregoing condition shall not apply to any such Proceeding
or development requested, initiated or supported by Investor or any of its
partners or other Affiliates;
(f) the Company shall have delivered to Investor appropriate closing
documents, including the instruments evidencing the Securities being issued
to Investor, certifications of the Company officers (including, but not
limited to, incumbency certificates, and certificates as to the truth and
correctness of statements made in the Disclosure Statement or any other
offering document distributed in connection with any securities issued in
respect of this Agreement or the Related Agreements) and opinions of legal
counsel, all of which shall be reasonably satisfactory to Investor;
(g) by no later than March 31, 1994, the Company shall have delivered to
Investor audited financial statements as of December 31, 1993, and for the
year then ended, which statements shall reflect a financial performance and
a financial position of the Company consistent in all material respects with
the unaudited results previously announced by the Company for such year,
and, if requested by Investor, the Company shall have discussed such
financial statements with Investor and provided an opportunity for Investor
to discuss such financial statements with the Company's auditors;
(h) since December 31, 1993, except for the matters disclosed in
Schedule I hereto, no material adverse change in the Company's condition
(financial or otherwise), business, assets, properties, operations or
relations with employees or labor unions shall have occurred and no matter
(except for the matters disclosed in Schedule I hereto) shall have occurred
or come to the attention of Investor that, in the reasonable judgment of
Investor, is likely to have any such material
16
adverse effect;
(i) the following shall be true in all material respects (in each case
based on the Company's actual monthly or daily financial statements, which
shall be prepared by the Company in a manner consistent in all material
respects with its historical monthly and daily financial statements
previously furnished to Investor): (A) the Company's actual monthly
Operating Cash Flow (as defined on the Monthly Targets Schedule) shall not,
in any month, be less than the minimum amount therefor established as part
of the Monthly Targets, (B) the Company's actual 4 month Rolling Cash Flow
(as defined on the Monthly Targets Schedule) shall not be less, as of the
end of any four calendar month period, than the minimum amount therefor
established as part of the Monthly Targets, (C) the Company's actual end of
month Reported Cash Balance (as defined in the Monthly Targets Schedule)
shall not, as of the end of any calendar month, be less than the minimum
amount therefor established as part of the Monthly Targets, (D) the
Company's actual five-day average Minimum Cash Balance (as defined in the
Monthly Targets Schedule) shall not be, as of the end of any five day
period, less than the minimum amount therefor established as part of the
Monthly Targets; (E) the Company shall not have taken any actions which the
Company knew or reasonably should have known would likely impair or hinder
in any material respect the Company's ability to achieve the Projections;
(F) the amount and nature of the obligations and liabilities (including,
without limitation, tax liabilities and administrative expense claims)
required to be paid by the Company on the Effective Date or to be paid by
the Company following the Effective Date pursuant to obligations assumed by
the Company during the course of its bankruptcy proceedings shall not be in
excess of the amounts reflected in Plan R-2 plus any additional allowances
provided in Section 7 (as reduced by any repayments of the existing
debtor-in-possession loan made on or prior to the Effective Date) and shall
not be materially different in nature than those specified in Plan R-2
(except with respect to administrative claims not known to the Company when
Plan R-2 was developed); and (G) the Company shall have paid all fees and
expenses due Investor under the Procedures Agreement;
(j) since the date hereof, there shall have occurred no outbreak or
escalation of hostilities or other international or domestic calamity,
crisis or change in political, financial or economic conditions or other
adverse change in the financial markets that impairs (or could reasonably be
expected to impair) in any material respect the Company's ability to carry
17
on its business in a manner consistent in all material respects with prior
practice or impairs (or could reasonably be expected to impair) in any
material respect Investor's ability to realize the intended benefits and
value of this Agreement or any Related Agreement;
(k) the Related Agreements, including all Alliance Agreements, to be
executed by the Company shall have been executed by the Company on or before
the Effective Date and, once executed, shall not have been modified without
the consent of Investor, shall be in effect and shall not have been stayed;
(l) the Company shall have performed in all material respects all
obligations on its part required to be performed on or before the Effective
Date under this Agreement, the Procedures Agreement and the Related
Agreements and all orders of the Bankruptcy Court in respect thereof that
are consistent with the provisions of such intruments;
(m) all representations and warranties of the Company under this
Agreement, the Procedures Agreement and the Related Agreements shall be true
in all material respects as of the Effective Date;
(n) the Plan and Disclosure Statement each shall have been filed by the
Company on or prior to May 15, 1994, and, once filed, shall have been served
by the Company on all appropriate parties and, once served, shall not have
been modified in any material respect without the prior consent of Investor
(which consent shall not be unreasonably withheld), withdrawn by the Company
or dismissed;
(o) the Disclosure Statement (in the form approved by the Bankruptcy
Court and as amended or supplemented, if applicable) shall have been true
and correct in all material respects as of the date first mailed to
Unsecured Parties and as of the date fixed by the Bankruptcy Court for
voting on the Plan and such Disclosure Statement shall not contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein (taken as a whole),
in light of the circumstances under which they were made, not misleading;
provided, however, that the foregoing condition shall not apply to
statements or other information furnished or provided by Investor or any of
its Affiliates for use in the Disclosure Statement;
(p) the order approving the Disclosure Statement shall have been entered
by the Bankruptcy Court on or prior to June
18
30, 1994, and, once entered, shall not have been modified in any material
respect, shall be in effect and shall not have been stayed;
(q) the Plan (including all securities of the Company to be issued
pursuant thereto and all contracts, instruments, agreements and other
documents to be entered into in connection therewith), the Disclosure
Statement and the Confirmation Order shall be consistent with the terms of
this Agreement and otherwise reasonably satisfactory in form and substance
to Investor;
(r) the Confirmation Order shall have been entered by the Bankruptcy
Court in form reasonably satisfactory to Investor on or before August 15,
1994, and, once entered, shall not have been modified in any material
respect, shall be in effect and shall not have been stayed and shall not be
subject to any appeal;
(s) the Effective Date shall have occurred on or prior to the Outside
Date unless the reason therefor shall be attributable to the breach by
Investor or its Affiliates of any of their respective representations,
warranties, covenants or obligations contained herein or in the Procedures
Agreement or any Related Agreement;.
(t) either pursuant to the Confirmation Order or otherwise, the
Bankruptcy Court shall have established one or more bar dates for
administrative expense claims pursuant to an order reasonably acceptable to
Investor, which bar date or dates shall occur on or before dates reasonably
acceptable to Investor; and
(u) the Securities and Exchange Commission shall have declared effective
a shelf registration statement with respect to the Securities issuable to
Investor.
In the event any of the conditions set forth in clause (a) (n), (p) or (r) is
not satisfied by the date specified in such clause (the "Deadline"), then, on
the 15th day following the then current Deadline, the Deadline shall be
automatically extended on a day-to-day basis unless the Company and Investor
otherwise agree in writing or unless Investor gives a notice of termination to
the Company pursuant to Section 20(b) of the Procedures Agreement within such
15-day period. If any Deadline is automatically extended as aforesaid, Investor
may thereafter establish a new Deadline by giving notice to the Company
specifying the new Deadline, provided that the new Deadline may not be sooner
than 30
19
days after the date of such notice.
SECTION 9. Conditions to Company's Obligations Relating to Investment.
The Company's obligations to consummate or to cause the consummation of the
issuance and sale of the Securities and the other transactions contemplated by
this Agreement shall be subject to the satisfaction, or to the effective written
waiver by the Company, of the condition described in Section 8(b) and the
following additional conditions:
(a) payment of the Purchase Price;
(b) Investor shall have delivered to the Company appropriate closing
documents, including, but not limited to, executed counterparts of the
Related Agreements and certifications of officers, and opinions of legal
counsel, all of which shall be reasonably satisfactory to the Company;
(c) there shall be in effect no injunction, stay, restraining order or
decree issued by any court of competent jurisdiction, whether foreign or
domestic, staying the effectiveness of any of the Approvals, the Initial
Order or the Confirmation Order, and there shall not be pending any request
or motion for any such injunction, stay, restraining order or decree;
provided, however, that the foregoing condition shall not apply to any such
injunction, stay, order or decree requested, initiated or supported by the
Company or to any such request or motion made, initiated or supported by the
Company;
(d) the Related Agreements to be executed by Investor or any of its
partners shall have been executed by such parties on or before the Effective
Date and, once executed, shall not have been modified without the consent of
the Company, shall be in effect and shall not have been stayed;
(e) Investor, Continental and Mesa shall have performed in all material
respects all obligations on their part required to be performed on or before
the Effective Date under this Agreement, the Procedures Agreement and the
Related Agreements and all orders of the Bankruptcy Court in respect thereof
that are consistent with the provisions of such instruments;
(f) all representations and warranties of Investor, Continental and Mesa
under this Agreement, the Procedures Agreement and the Related Agreements
shall be true and correct in all material respects as of the Effective Date;
(g) the Company shall be reasonably satisfied that the
20
Alliance Agreements, when fully implemented, shall result in an increase to
the Company's pretax income of not less than $40 million per year; provided,
however, that Investor shall have no liability for any failure of the
Company to achieve any such increase in net income except to the extent such
failure results from a default by Investor or its partners pursuant to the
terms of such Alliance Agreements;
(h) since the date hereof, there shall have occurred (A) no outbreak or
escalation of hostilities or other international or domestic calamity,
crisis or change in political, financial or economic conditions or other
adverse change in the financial markets or (B) any adverse change in the
condition (financial or otherwise), business, assets, properties or
prospects of Continental or Mesa, in each case that materially impairs the
ability of either Continental or Mesa to perform its obligations under the
Alliance Agreements or the Company's ability to realize the intended
benefits and value of this Agreement, the Alliance Agreements (as
contemplated by clause (g) above) or the other Related Agreements;
(i) since the time of their initial filing by the Company, neither the
Plan nor the Disclosure Statement shall have been modified in any material
respect without the prior consent of the Company (which consent shall not be
unreasonably withheld or delayed), withdrawn by Investor or dismissed;
(j) the certificate of incorporation and bylaws of the Company shall
contain the terms contemplated by this Agreement and shall otherwise be
reasonably satisfactory to the Company;
(k) the Plan (including all Securities to be issued pursuant thereto
and all contracts, instruments, agreements and other documents to be entered
into in connection therewith), the Disclosure Statement and the Confirmation
Order shall be consistent with the terms of this Agreement and otherwise
reasonably satisfactory in form and substance to the Company;
(l) the Confirmation Order shall have been entered by the Bankruptcy
Court in form reasonably acceptable to the Company and, once entered, shall
not have been modified in any material respect, shall be in effect and shall
not have been stayed and shall not be subject to any appeal; and
(m) the Effective Date shall have occurred on or prior to the Outside
Date unless the reason therefor shall be attributable to the breach by the
Company of any of its representations, warranties, covenants or obligations
contained
21
herein or in the Procedures Agreement or any Related Agreement.
SECTION 10. Cooperation. (a) The Company and Investor will cooperate
in a commercially reasonable manner, and will use their respective commercially
reasonable efforts, to consummate the transactions contemplated hereby,
including all commercially reasonable efforts to satisfy the conditions
specified in this Agreement. The Company will use commercially reasonable
efforts, and Investor will cooperate in a commercially reasonable manner in
seeking, to obtain all Approvals.
(b) Notwithstanding anything in Section 8 or 9 to the contrary, if prior
to the Outside Date, the Department of Justice or any other Regulatory Authority
raises any antitrust objection to the consummation of the Investment or the
implementation of any Alliance Agreement, which objection has not been resolved
on or before the Outside Date, Investor nevertheless shall be required to
consummate the Investment and, to that end, agrees to timely make such
adjustment to the composition of its partnership and to the Alliance Agreements
as required to resolve such antitrust objection; provided, however, that nothing
in this paragraph (b) shall affect the rights of the Company under Section 9(g)
or obligate the Company to enter into or approve any adjustment or modification
of the Alliance Agreements which, in the Company's reasonable judgment, is
prejudicial to the Company or the Unsecured Parties in any material respect and
which, if entered into or approved, would materially impair the Company's
ability to realize the reasonably anticipated benefits of such Alliance
Agreements.
SECTION 11. Registration Rights Agreement. Investor and the Company
will enter into a registration rights agreement on terms acceptable to Investor
and the Company. The registration rights agreement will reflect the
understanding of the parties with respect to their registration rights and
obligations and will provide that Investor, its partners and any assignees and
transferees, shall have the right to cause the Company to (i) include the
Securities issuable to Investor pursuant to the Plan (including any such
Securities issued or issuable in respect of the Warrants or by way of any stock
dividend or stock split or in connection with any combination of shares, merger,
consolidation or similar transaction), on customary terms, in "piggyback"
underwritings and registrations and (ii) to effect, on customary terms, one
demand registration under the Securities Act for the public offering and sale of
the Securities issued to Investor under the Plan at any time after the third
anniversary of the Effective Date.
SECTION 12. Applicable Provisions of Law and Regulations.
22
It is understood and agreed that this Agreement shall not create any obligation
of, or restriction upon, the Company or Investor or the partners of Investor
that would violate applicable provisions of law or regulation relating to
ownership or control of a U.S. air carrier. At all times after the Effective
Date, the certificate of incorporation of the Company shall provide that, in the
event persons who are not U.S. citizens shall own (beneficially or of record) or
have voting control over shares of Common Stock, the voting rights of such
persons shall be subject to automatic suspension as required to ensure that the
Company is in compliance with applicable provisions of law or regulation
relating to ownership or control of a U.S. air carrier.
SECTION 13. Representations and Warranties of the Company. The
Company represents and warrants to Investor as follows:
(a) The Company has complied in all material respects with the terms of
all orders of the Bankruptcy Court in respect of the Investment, this
Agreement and the Procedures Agreement.
(b) The Company has delivered to Investor copies of the audited balance
sheets of the Company as of December 31, 1992 and the statements of income,
stockholders' equity and cash flows for the years then ended, together with
the notes thereto. Such financial statements, and when delivered to
Investor the financial statements of the Company referred to in Section 8(g)
will, present fairly, in accordance with generally accepted accounting
principles (applied on a consistent basis except as disclosed in the
footnotes thereto), the financial position and results of operations of the
Company as of the dates and for the periods therein set forth.
(c) When delivered to Investor, the unaudited financial statements of
the Company referred to in Section 15(b)(ii) will (i) present fairly, in
accordance with generally accepted accounting principles (applied on a
consistent basis except as disclosed therein and subject to normal year- end
audit adjustments), the financial position and results of operations of the
Company as of the date and for the period therein set forth, it being
understood and agreed, however, that the foregoing representation relating
to conformity with generally accepted accounting principles is being made
only to the extent such principles are applicable to interim unaudited
reports and (ii) reflect a financial position and results of operations not
materially worse than those set forth in the pro forma financial statements
contained in Plan 9.
23
(d) The Projections and the Monthly Targets were prepared in good faith
on a reasonable basis, and when prepared represented the Company's best
judgment as to the matters set forth therein, taking into account all
relevant facts and circumstances known to the Company. Nothing has come to
the Company's attention since the dates on which the Projections and the
Monthly Targets, respectively, were prepared which causes the Company to
believe that any of the projections and other information contained therein
were misleading or inaccurate in any material respect as of such dates. It
is specifically understood and agreed that the delivery of the Projections
and the Monthly Targets shall not be regarded as a representation, warranty
or guarantee that the particular results reflected therein will in fact be
achieved or are likely to be achieved.
(e) No written statement, memorandum, certificate, schedule or other
written information provided (or to be provided) to Investor or any of its
representatives by or on behalf of the Company in connection with the
transactions contemplated hereby, when viewed together with all other
written statements and information provided to Investor and its
representatives by or on behalf of the Company, in light of the
circumstances under which they were made, (i) contains or will contain any
materially misleading statement or (ii) omits or will omit to state any
material fact necessary to make the statements therein not misleading.
(f) The board of directors of the Company has approved the Investment
and Investor's acquisition of Securities hereunder for purposes of, and in
accordance with the provisions and requirements of, Section 203(a)(1) of the
General Corporation Law of the State of Delaware and, as a consequence,
Investor will not be subject to the provisions of such Section with respect
to any "business combination" between Investor and the Company (as such term
is defined in said Section 203).
SECTION 14. Representations and Warranties of Investor. Investor
represents and warrants to the Company as follows:
(a) The general and limited partners of Investor (other than one such
partner which will elect to suspend the voting rights of its Securities as
contemplated by Section 4(b)) are U.S. citizens within the meaning of
Section 101(16) of the Federal Aviation Act of 1958, as amended.
(b) Investor has, or has commitments for, sufficient funds to pay the
Purchase Price and otherwise perform its obligations
24
under this Agreement.
(c) No written statement, memorandum, certificate, schedule or other
written information provided (or to be provided) to the Company or any of
its representatives by or on behalf of Investor in connection with the
transactions contemplated by the Alliance Agreements, when viewed together
with all other written statements and information provided to the Company
and its representatives by or on behalf of Investor, in light of the
circumstances under which they were made, (i) contains or will contain any
materially misleading statement or (ii) omits or will omit to state any
material fact necessary to make the statements therein not misleading.
SECTION 15. Covenants. (a) Investor covenants (i) to support,
subject to management's recommendation, increases in employee compensation
through 1995 at least equal to those set forth in Plan R-2 and (ii) after the
Effective Date, to cause the board of directors of the Company to consider
implementation of a broad based employee incentive compensation plan and a
management stock incentive plan.
(b) The Company covenants (i) to use commercially reasonable efforts to
cause the shelf registration statement referred to in Section 8(u) to remain
effective for three years following its effective date and (ii) as soon as
available, to deliver to Investor a copy of the unaudited balance sheet of the
Company as of the end of each fiscal quarter of the Company prior to the
Effective Date and the unaudited statements of income and cash flows for the
periods then ended.
SECTION 16. Certain Taxes. The Company shall bear and pay all
transfer, stamp or other similar taxes (if any are not exempted under Section
1146 of the Bankruptcy Code) imposed in connection with the issuance and sale of
the Securities.
SECTION 17. Administrative Expense. All amounts owed to Investor or
its assignees by the Company under this Agreement, the Related Agreements, the
Procedures Agreement and all orders of the Bankruptcy Court in respect thereof
shall be treated as an allowed administrative expense priority claim under
Section 507(a)(1) of the Bankruptcy Code.
SECTION 18. Incorporation by Reference. The provisions set forth in
the Procedures Agreement, including, but not limited to, the provisions
regarding confidentiality, liability indemnity and termination, are hereby
incorporated by reference and such provisions shall have the same force and
effect herein as if they
25
were expressly set forth herein in full.
SECTION 19. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) or by prepaid express courier to the parties at the following addresses
or facsimile numbers:
If to the Company: America West Airlines, Inc. 4000 East Sky Harbor
Boulevard Phoenix, Arizona 85034 Attention:
William A. Franke and
Martin J. Whalen Fax Number: (602) 693-5904
with a copy to: LeBoeuf, Lamb, Greene & MacRae
633 17th Street, Suite 2800 Denver, Colorado 80202
Attention: Carl A. Eklund Fax Number: (303)
297-0422
and a copy to: Andrews & Kurth L.L.P. 4200 Texas Commerce Tower
Houston, Texas 77002 Attention: David G. Elkins
Fax Number: (713) 220-4285
and a copy to: Murphy, Weir & Butler
101 California Street, 39th Floor
San Francisco, California 94111
Attention: Patrick A. Murphy
Fax Number: (415) 421-7879
and a copy to: Lord, Bissell and Brook 115 South LaSalle Street
Chicago, IL 60603
Attention: Benjamin Waisbren
Fax Number: (312) 443-0336
If to Investor: AmWest Partners, L.P. 201 Main Street, Suite 2420
Fort Worth, Texas 76102 Attention: James G.
Coulter Fax Number: (817) 871-4010
26
with a copy to: Arnold & Porter
1200 New Hampshire Ave., N.W. Washington, D.C.
20036
Attention: Richard P. Schifter
Fax Number: (202) 872-6720
and a copy to: Jones, Day, Reavis & Pogue
North Point 901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske
Fax Number: (216) 586-7864
and a copy to: Goodwin, Procter &Hoar
Exchange Place
Boston, MA 02109
Attention: Laura Hodges Taylor, P.C.
Fax Number: (617) 523-1231
and a copy to: Murphy, Weir & Butler
101 California Street, 39th Floor
San Francisco, California 94111
Attention: Patrick A. Murphy
Fax Number: (415) 421-7879
and a copy to: Lord, Bissell and Brook 115 South LaSalle Street
Chicago, IL 60603
Attention: Benjamin Waisbren
Fax Number: (312) 443-0336
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail or by express courier in the manner described above to the address as
provided in this Section, be deemed given upon receipt (in each case regardless
of whether such notice is received by any other person to whom a copy of such
notice, request or other communication is to be delivered pursuant to this
Section). Either party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other party hereto.
SECTION 20. Governing Law. Except to the extent inconsistent with the
Bankruptcy Code, this Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of Arizona, without reference
to principles of
27
conflicts or choice of law under which the law of any other jurisdiction would
apply.
SECTION 21. Amendment. This Agreement may only be amended, waived,
supplemented or modified by a written instrument signed by authorized
representatives of Investor and the Company. Investor may extend the time for
satisfaction of the conditions set forth in Section 8 (prior to or after the
relevant date) by notifying the Company in writing. The Company may extend the
time for satisfaction of the conditions set forth in Section 9 (prior to or
after the relevant date) by notifying Investor in writing.
SECTION 22. No Third Party Beneficiary. This Agreement and the
Procedures Agreement are made solely for the benefit of the Company and Investor
and their respective permitted assigns, and no other Person (including, without
limitation, employees, stockholders and creditors of the Company) shall have any
right, claim or cause of action under or by virtue of this Agreement or the
Procedures Agreement, except to the extent such Person is entitled to protection
as contemplated by Section 28(b) or to expense reimbursement pursuant to the
Procedures Agreement or may assert a claim for indemnity pursuant to the
Procedures Agreement.
SECTION 23. Assignment. Except as otherwise provided herein, Investor
may assign all or part of its rights under this Agreement to any of its partners
(each of whom may assign all or part to its Affiliates) or to any fund or
account managed or advised by Fidelity Management Trust Company or any of its
Affiliates and may assign any Securities (or the right to purchase any
Securities) to any lawfully qualified Person or Persons, and the Company may
assign this Agreement to any Person with which it may be merged or consolidated
or to whom substantially all of its assets may be transferred in facilitation of
the consummation of the Plan and the effectuation of the issuance and sale of
the Securities as contemplated hereby or by the Related Agreements. None of
such assignments shall relieve the Company or Investor of any obligations
hereunder, under the Procedures Agreement or under the Related Agreements.
SECTION 24. Counterparts. This Agreement may be executed by the
parties hereto in counterparts and by telecopy, each of which shall be deemed to
constitute an original and all of which together shall constitute one and the
same instrument. With respect to signatures transmitted by telecopy, upon
request by either party to the other party, an original signature of such other
party shall promptly be substituted for its facsimile.
SECTION 25. Invalid Provisions. If any provision of this
28
Agreement is held to be illegal, invalid or unenforceable under any present or
future laws, rules or regulations, and if the rights or obligations of Investor
and the Company under this Agreement will not be materially and adversely
affected thereby, (a) such provision will be fully severable, (b) this Agreement
will be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof, (c) the remaining provisions of
this Agreement will remain in full force and effect and will not be affected by
the illegal, invalid or unenforceable provision or by its severance herefrom,
and (d) in lieu of such illegal, invalid or unenforceable provision, there will
be added automatically as a part of this Agreement a legal, valid and
enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible. If the rights and obligations of
Investor or the Company will be materially and adversely affected by any such
provision held to be illegal, invalid or unenforceable, then unless such
provision is waived in writing by the affected party in its sole discretion,
this Agreement shall be null and void.
SECTION 26. Tagalong Rights. On the Effective Date, Investor shall
enter into a written agreement for the benefit of all holders of Class B Common
(other than Investor and its Affiliates) whereby Investor shall agree, for a
period of three years after the Effective Date, not to sell, in a single
transaction or related series of transactions, shares of Common Stock
representing 51% or more of the combined voting power of all shares of Common
Stock then outstanding unless such holders shall have been given a reasonable
opportunity to participate therein on a pro rata basis and at the same price per
share and on the same economic terms and conditions applicable to Investor;
provided, however, that such obligation of Investor shall not apply to any sale
of shares of Common Stock made by Investor (i) to any Affiliate of Investor,
(ii) to any Affiliate of Investor's partners, (iii) pursuant to a bankruptcy or
insolvency proceeding, (iv) pursuant to judicial order, legal process, execution
or attachment, (v) in a widespread distribution registered under the Securities
Act of 1933, as amended ("Securities Act") or (vi) in compliance with the volume
limitations of Rule 144 (or any successor to such Rule) under the Securities
Act.
SECTION 27. Stock Legend. All securities issued to Investor pursuant
to the Plan shall be conspicuously endorsed with an appropriate legend to the
effect that such securities may not be sold, transferred or otherwise disposed
of except in compliance with (i) Section 26 and (ii) applicable securities laws.
SECTION 28. Directors' Liability and Indemnification. (a)
29
Upon, and at all times after, consummation of the Plan, the certificate of
incorporation of the Company shall contain provisions which (i) eliminate the
personal liability of the Company's former, present and future directors for
monetary damages resulting from breaches of their fiduciary duties to the
fullest extent permitted by applicable law and (ii) require the Company, subject
to appropriate procedures, to indemnify the Company's former, present and future
directors and executive officers to the fullest extent permitted by applicable
law. In addition, upon consummation of the Plan, the Company shall enter into
written agreements with each person who is a director or executive officer of
the Company on the date hereof providing for similar indemnification of such
person and providing that no recourse or liability whatsoever with respect to
this Agreement, the Procedures Agreement, the Related Agreements, the Plan or
the consummation of the transactions contemplated hereby or thereby shall be
had, directly or indirectly, by or in the right of the Company against such
person. Notwithstanding anything contained herein to the contrary, the
provisions of this Section 28(a) shall not be applicable to any person who
ceased being a director of the Company at any time prior to March 1, 1994.
(b) Investor agrees, on behalf of itself and its partners, that no
recourse or liability whatsoever (except as provided by applicable law for
intentional fraud, bad faith or willful misconduct) shall be had, directly or
indirectly, against any person who is a director or executive officer of the
Company on the date hereof with respect to this Agreement, the Procedures
Agreement, the Related Agreements, the Plan or the consummation of the
transactions contemplated hereby or thereby, such recourse and liability, if
any, being expressly waived and released by Investor and its partners as a
condition of, and in consideration for, the execution and delivery of this
Agreement.
SECTION 29. Jurisdiction of Bankruptcy Court. The parties agree that
the Bankruptcy Court shall have and retain exclusive jurisdiction to enforce and
construe the provisions of this Agreement.
SECTION 30. Interpretation. In this Agreement, unless a contrary
intention appears, (i) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision and (ii) reference to any Section means
such Section hereof. The Section headings herein are for convenience only and
shall not affect the construction hereof. No provision of this Agreement shall
be interpreted or construed against either party solely because such party or
its legal representative drafted such
30
provision.
SECTION 31. Termination. This Agreement shall terminate concurrently
with the termination of the Procedures Agreement.
SECTION 32. Entire Agreement. The Agreement supersedes any and all
other agreements (oral or written) between the parties in respect to the subject
matter hereof other than the Procedures Agreement.
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.,
its General Partner
By: /s/ James G. Coulter Title:
-------------------------
President
Accepted and Agreed to
this 21th day of April, 1994.
AMERICA WEST AIRLINES, INC.
as Debtor and Debtor-in-Possession
By: /s/ William A. Franke
----------------------
Title: Chairman
31
PRIORITY DISTRIBUTION AGREEMENT
-------------------------------
PRIORITY DISTRIBUTION AGREEMENT, dated as of August 25, 1994, by and
among TPG Partners, L.P., a Delaware limited partnership ("TPG Partners"), TPG
Parallel I, L.P., a Delaware limited partnership ("Parallel"), Air Partners II,
L.P., a Texas limited partnership ("APII", and, collectively with TPG Partners
and Parallel, "TPG") and Continental Airlines, Inc., a Delaware corporation
("Continental", and collectively, the "Parties").
WHEREAS, each of the Parties owns the amounts, set forth on Exhibit "A"
attached hereto, of shares of Class A and Class B Common Stock issued by America
West Airlines, Inc. or its successor as reorganized pursuant to Chapter 11 of
the United States Bankruptcy Code;
WHEREAS, each of the Parties desires to share with the other Parties, in
the manner set forth in this Agreement, certain of the proceeds of the shares of
Class A and Class B Common Stock set forth on the attached Exhibit "A".
NOW, THEREFORE, in consideration of the premises and the mutual
representations, covenants and agreements set forth in this Agreement, the
parties agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
(a) "Basic Threshold Amount" shall mean the amount necessary to ensure
that Continental, from all Deemed Proceeds or actual proceeds, as the case may
be, and nonrefunded payments to Continental by TPG hereunder, has been returned
its Cost Basis in all of its Securities plus its 10% Return.
(b) "Class A Common Stock" and "Class B Common Stock" and "Warrants"
shall mean the shares of Class A common stock, Class B common stock and warrants
to acquire Class B common stock issued by America West Airlines, Inc. (or its
successor as reorganized pursuant to Chapter 11 of the United States Bankruptcy
Code, "AWA") that are reflected on Exhibit "A", as adjusted for any sales or
conversions thereof or any stock dividends or splits with respect thereto. Any
shares of Class A or Class B common stock or warrants of AWA acquired by any of
the Parties after the date of this Agreement (other than shares of Class B
common stock acquired pursuant to the exercise of Warrants) shall not constitute
shares of Class A Common Stock, Class B Common Stock or Warrants subject to this
Agreement.
(c) "Cost Basis" shall mean the per Security price set forth on Exhibit
A hereto.
(d) "Securities" shall mean collectively, the Class A Common Stock, the
Class B Common Stock and the Warrants.
(e) "Specified Percentage" shall mean 200%, provided that if the
Securities owned by Continental and TPG are either (i) covered by a currently
effective registration statement filed with the Securities and Exchange
Commission (the "SEC"), under the Securities Act of 1933 (the "Securities Act")
or (ii) all able to be sold promptly pursuant to Rule 144 promulgated by the SEC
under the Securities Act, then the Specified Percentage shall be 150%.
(f) "10% Return" shall mean the amount required to return (with either
Deemed Proceeds or actual proceeds, as the case may be) to Continental or TPG,
as the case may be, a 10% per year return (compounded annually) on the
unreturned (either with Deemed Proceeds or actual proceeds as the case may be)
Cost Basis of the Securities in question.
(g) "Value" shall mean:
(A) if Securities are listed on a national securities exchange or on
the National Market System Quotations, or are traded in the over-the-counter
market and reported in the National Association of Securities Dealers' Automated
Quotation System, the last sales price of the Securities, on the valuation date,
or in the absence of a sale on such date, the last bid price on the valuation
date; and
(B) if Securities are not listed or traded in the manner specified in
clause (A) above, the fair market value, as reasonably determined by TPG of the
Securities.
2. Proceeds from TPG Sales.
Each time that TPG sells all or any portion of its Securities ("Actually
Sold Securities"), Continental shall be deemed to sell a corresponding portion
(on a percentage basis) of its similar type of Securities ("Deemed Sold
Securities") for the same price per share as received by TPG ("Deemed Proceeds")
(with the understanding that Continental's 10% Return shall be deemed to have
continued to accrue on the Deemed Sold Securities through the date of the deemed
sale for purposes of such determination). TPG agrees to utilize the proceeds
from its Actually Sold Securities as follows:
(i) First, to pay Continental any 10% Return accrued with respect to all
of its Deemed Sold Securities and not previously returned with Deemed
Proceeds or actual sale proceeds (as applicable) or nonrefunded prior
payments by TPG hereunder;
2
(ii) Second, to retain amounts sufficient to receive a 10% Return accrued
with respect to all of its Actually Sold Securities and not previously
retained by TPG in connection with previous actual sales or refunded
to TPG by Continental hereunder;
(iii) Third, to pay Continental amounts, if any, necessary to ensure that
Continental has received from Deemed Proceeds or actual sale proceeds
(as applicable) and nonrefunded prior payments by TPG hereunder both
its 10% Return and its Cost Basis with respect to its Deemed Sold
Securities; and
(iv) Finally, to retain any excess.
Notwithstanding anything contained herein to the contrary, the proceeds
and timing of any actual sales of Securities by Continental shall be utilized
instead of the Deemed Proceeds and timing of the deemed sale of the
corresponding Deemed Sold Securities (i.e., the first Securities actually sold
shall be matched against the first Securities deemed sold) to the extent both
(i) actual sales preceded the deemed sales and (ii) utilization of actual sales
would reduce the amount owed by TPG hereunder or increase the amounts refundable
by Continental to TPG hereunder.
For example, assume (i) the Parties acquired their Securities on 1/1/94,
(ii) TPG acquired twice the amount of Securities as did Continental, (iii) each
Party had a Cost Basis of $10 per share and (iv) the Parties actually sold
Securities as follows:
Seller Shares Date Price per Share
----------- --------- ------ ---------------
1. Continental 100,000 1/1/95 $10
2. Continental 100,000 1/1/96 20
3. Continental 100,000 1/1/97 30
4. Continental 100,000 7/1/97 40
5. TPG 1,000,000 1/1/98 30
6. Continental 100,000 7/1/98 40
For purposes of this Agreement, Continental would be deemed to have sold the
above Securities on the sale dates and for the amounts as follows with
Continental's 10% Return accruing through the sale date utilized for purposes of
this Agreement (either actual or deemed, as the case may be) and continuing with
respect to any portion of its Cost Basis not returned with Deemed Proceeds or
actual proceeds as the case may be:
3
Price
Seller Shares Sale Date per Share
----------- ------- --------- ---------
1. Continental 100,000 1/1/98 $30
2. Continental 100,000 1/1/98 30
3. Continental 100,000 1/1/97 30
4. Continental 100,000 7/1/97 40
5. Continental 100,000 1/1/98 30
At any time that an actual sale by TPG of its remaining Securities for
their Value would net Continental Deemed Proceeds and required payments by TPG
to Continental hereunder of less than the Specified Percentage of Continental's
Basic Threshold Amount, then Continental shall have the right to require TPG (by
written notice to TPG) to pay (and TPG shall pay) in cash, within fifteen (15)
business days, the amount which TPG would have been required to pay pursuant to
this Section 2 if TPG actually sold all of its remaining Securities for their
Value as of the date TPG receives such notice; provided, however, that the
provisions of the last sentence of this paragraph will continue to apply if,
thereafter, TPG retains any Securities. If any amounts are paid by TPG to
Continental hereunder and, upon the deemed sale of Continental Securities,
Continental has received Deemed Proceeds and payments from TPG hereunder in
excess of its 10% Return and its Cost Basis with respect to its Deemed Sold
Securities, then Continental shall within five business days of such deemed sale
repay TPG amounts paid to it to the extent of such excess. For purposes of this
Agreement, proceeds from the sale of Class B Common Stock acquired by
Continental or TPG pursuant to the exercise of Warrants shall be determined by
deducting any exercise price paid therefor and TPG shall be entitled to first
recover any such exercise price prior to any such proceeds being subject to this
Agreement.
3. Certain Rights of First Refusal. TPG shall not sell shares without
first notifying Continental. Continental shall have the right of first refusal
to purchase all (but not less than all) of the Securities ("Offered Shares")
owned by TPG that TPG has notified Continental it desires to sell ("Sale
Notice"). Continental shall have the right to purchase the Offered Shares for
either (i) if such Offered Shares are not proposed to be sold on a public
exchange, on the same terms and conditions that the Offered Shares would have
been sold, or (ii) if such Offered Shares are proposed to be sold on a public
exchange, for the last sales price per share on the date on which Continental
issued its written notice described in the following sentence (or if there were
no sales on such date, the last sales price per share preceding such date).
Continental may exercise this right only if (x) it provides written notice to
each of the other Parties of its intention to do so within five (5) business
days after its receipt of the Sale Notice, and (y) it purchases all of such
4
Offered Shares on or before the tenth (10th) business day following such written
notice.
4. Notice.
(a) All notices, demands or requests provided for or permitted to be given
pursuant to this Agreement must be in writing.
(b) All notices, demands and requests to be sent to a Party pursuant to
this Agreement shall be deemed to have been properly given or served if: (i)
personally delivered, (ii) deposited for next day delivery by Federal Express,
or other similar, overnight courier services, addressed to such Party, (iii)
deposited in the United States mail, addressed to such Party, prepaid and
registered or certified with return receipt requested or (iv) transmitted via
telecopier or other similar device to the attention of such Party.
(c) All notices, demands and requests so given shall be deemed received:
(i) when personally delivered, (ii) twenty-four (24) hours after being deposited
for next day delivery with an overnight courier, (iii) forty-eight (48) hours
after being deposited in the United States mail or (iv) three (3) hours after
being telecopied or otherwise transmitted and receipt has been confirmed.
(d) The Parties shall have the right from time to time, and at any time,
during the term of this Agreement, to change their respective addresses and each
shall have the right to specify as his or its address any other address by
giving to the other parties at least thirty (30) days written notice thereof, in
the manner prescribed in Section 11(b); provided, that to be effective, any such
notice must be actually received (as evidenced by a return receipt).
5. GOVERNING LAW. THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE
INTERPRETED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
6. Entire Agreement. This Agreement, including all exhibits to this
Agreement and, if any, exhibits to such exhibits, contains the entire agreement
among the Parties relative to the matters contained in this Agreement.
7. Waiver. No consent or waiver by any Party to or for any breach or
default by any other party in the performance by such other party of his or its
obligations under this Agreement shall be effective unless expressly set forth
in writing or be deemed or construed to be a consent or waiver to or of any
other breach or default in the performance by such other party of the same or
any other obligations of such other party under this Agreement.
5
Failure on the part of any party to complain of any act or failure to act of any
of the other Parties or to declare the other Parties in default, regardless of
how long such failure continues, shall not constitute a waiver by such Party of
his or its rights hereunder.
8. Severability. If any provision of this Agreement or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such provisions
to other persons or circumstances shall not be affected thereby, and the intent
of this Agreement shall be enforced to the greatest extent permitted by law.
9. Binding Agreement. Subject to the restrictions on transfers and
encumbrances set forth in this Agreement, this Agreement shall inure to the
benefit of and be binding upon the undersigned Parties and their respective
legal representatives, successors and assigns. Whenever, in this Agreement, a
reference to any Party is made, such reference shall be deemed to include a
reference to the legal representatives, successors and assigns of such Party.
10. Captions. Captions are included solely for convenience of reference
and if there is any conflict between captions and the text of this Agreement,
the text shall control.
11. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original for all purposes and all
of which when taken together shall constitute a single counterpart instrument.
Executed signature pages to any counterpart instrument may be detached and
affixed to a single counterpart, which single counterpart with multiple executed
signature pages affixed thereto shall constitute the original counterpart
instrument. All of those counterpart pages shall be read as though one, and
they shall have the same force and effect as if all of the Parties had executed
a single signature page.
Executed to be effective as of the 25th day of August, 1994.
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard Ekleberry
----------------------
Title: Vice President
--------------
6
TPG PARALLEL I, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard Ekleberry
----------------------
Title: Vice President
----------------
AIR PARTNERS II, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard Ekleberry
-----------------------
Title: Vice President
----------------
CONTINENTAL AIRLINES, INC.
By: /s/ Barry Simon
-----------------------
Title: Senior Vice President
----------------------
7
EXHIBIT "A"
Shares of Shares of
Class A Per Share Class B Per Share Per Warrant
Party Common Stock Cost Basis Common Stock Cost Basis Warrants Cost Basis
- ------------- ------------ ---------- ------------ ---------- ----------- ----------
TPG 774,495 $7.01 5,012,852 $7.01 1,910,295 $2.00
Continental 325,505 $9.36 1,508,234 $9.36 802,860 $2.00
8
TERMINATION AGREEMENT
This Termination Agreement (this "Agreement") is made and entered into
effective and dated as of August 25, 1994, by and among AmWest Genpar, Inc., a
Texas corporation ("Genpar"), Apcal, L.P., a Texas limited partnership
("Apcal"), and Mesa Airlines, Inc., a New Mexico corporation ("Mesa"). All
capitalized terms used in this Agreement without definition shall have the
meanings assigned to them in the Limited Partnership Agreement of AmWest
Partners, L.P., dated as of March 16, 1994, as amended (the "Partnership
Agreement").
WITNESSETH:
-----------
WHEREAS, each of the parties hereto is a Partner in AmWest Partners, L.P.
(the "Partnership"), a Texas limited partnership, formed for the purpose of
investing in Securities of America West Airlines, Inc., including its successor
as reorganized pursuant to Chapter 11 of the United States Bankruptcy Code
("AWA");
WHEREAS, the Partnership previously has assigned to the Partners the
Partnership's rights and obligations to purchase the Securities pursuant to
notices dated August 23, 1994 and which rights and obligations have been assumed
by the Partners as provided for in such notices;
WHEREAS, the parties desire to terminate and dissolve the Partnership and
to assign to the Partners and certain affiliates of the Partners the Securities
and certain rights and obligations of the Partnership under the Securities
Agreements and certain related agreements as provided herein; and
WHEREAS, the parties desire to delegate to Genpar the obligations
specified herein requiring Genpar to serve as agent for the Partners for the
mutual benefit of each of them.
NOW THEREFORE, in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the adequacy, receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
SECTION 1. Dissolution of the Partnership.
(a) Pursuant to Section 6.02(c) of the Partnership Agreement, the
Partnership is hereby dissolved. The execution and delivery of this Agreement
shall constitute the written consent of each Partner to the dissolution of the
Partnership pursuant to said Section 6.02(c). The rights and obligations of
each Partner relating to dissolution of the Partnership set forth in this
Agreement shall control any contrary provision in the Partnership Agreement.
Genpar is authorized to take all actions necessary or advisable for the
dissolution and termination of the Partnership, and each Limited Partner
constitutes and appoints Genpar, with full power of substitution, as its true
and lawful attorney-in-fact for the limited purpose of dissolution of the
Partnership and the specific obligations contemplated by this Agreement and
empowers and authorizes such attorney, in the name, place and stead of such
Limited Partner, to make, execute, sign, swear to, acknowledge and file in all
necessary or appropriate places all documents necessary or appropriate in the
dissolution of the Partnership.
(b) In connection with the dissolution of the Partnership, Genpar shall
prepare and file a final federal income tax return for the 1994 taxable year, as
well as any other reports required to be prepared and filed under Section 4.04
of the Partnership Agreement on behalf of the Partnership and shall exercise on
behalf of the Partnership and the Partners the responsibilities set forth in
Section 2.08 of the Partnership Agreement. In connection with an audit of the
Partnership by the U.S. Internal Revenue Service, each Partner shall have all
rights under Sections 6221-6233 of the Code to have notice of and participate in
any such audit. Genpar shall not extend the statute of limitations nor enter
into a settlement agreement with respect to any issue raised in an audit of the
Partnership without the prior written consent of each Partner. Any direct, out-
of-pocket expense incurred by Genpar in carrying out its responsibilities and
duties under this Section 1(b) shall be allocated and charged to the Partners as
an Expense under Section 3(b) of this Agreement.
SECTION 2. Distribution of Securities. Pursuant to Section 23 of the
Investment Agreement, the Partnership has notified AWA of its assignment of the
right and obligation to purchase Securities thereunder to the Partners or their
Affiliates (as such term is defined in the Investment Agreement, hereinafter
"Affiliates") and other third parties. Pursuant to prior notice, the
Partnership has assigned to each Partner, and each Partner has assumed, the
following rights and obligations of the Partnership under the Investment
Agreement to purchase Securities:
Name of Class A Class B
Partner Common Common Warrants Price
- --------- --------- --------- --------- -----------
Genpar 12,000 83,328 26,357 $ 727,639
Apcal 1,088,000 6,066,067 1,806,619 53,337,272
Mesa 100,000 2,183,343 799,767 18,698,983
2
Genpar and Apcal's rights and obligations to purchase Securities have been
assigned to their Affiliates in accordance with Subscription Agreements, as
amended, entered into between such Affiliates and the Partnership. Each Partner
(and/or such Affiliates) has been notified by Genpar of its assignment of
rights and obligations under the Investment Agreement to purchase Securities and
agrees to remit, or cause its Affiliates to remit, cash to AWA, via wire
transfer or otherwise, in consideration of such right in the amount and manner
set forth in the notices received by each Partner (and/or Affiliate).
Notwithstanding anything to the contrary in the Partnership Agreement, each
Partner, or its Affiliates or designees, shall receive its Securities directly
from AWA and will not acquire any Indirect Shares under the Partnership
Agreement.
SECTION 3. Expenses.
(a) Any Expenses of any Partner not heretofore reimbursed by or
submitted to Genpar under Section 2.05(b) of the Partnership Agreement shall be
submitted to Genpar. Upon receipt of appropriate documentation, setting forth
in reasonable detail the amount for which reimbursement is sought and the basis
on which the charges were incurred, Genpar shall reimburse such expenses to the
requesting Partner. Each Partner agrees that it (or, in the case of Apcal, its
constituent partners) shall contribute to Genpar its respective percentage (as
set forth below) of all Expenses and of all similar expenses of Fidelity not
reimbursed by AWA; provided, however, that Genpar shall first seek reimbursement
of all Expenses and all similar expenses of Fidelity from AWA in accordance with
Section 2 of the Third Revised Interim Procedures Agreement dated as of April
21, 1994, by and between AWA and the Partnership (the "Procedures Agreement").
As soon as practicable following the Effective Date, Genpar shall seek
reimbursement from AWA of all Expenses incurred on or after March 1, 1994 by or
on behalf of each Partner and of all similar expenses of Fidelity, without
regard to the limitations set forth in Section 2(a) of the Procedures Agreement.
Genpar shall notify each Partner of any sums due Genpar pursuant to the third
sentence of this Section 3(a) and may set off from any amounts due any Partner
any amount owing from such Partner under this Section 3(a).
3
For Unreimbursed Expenses as to Which
Fidelity is Obligated to Contribute
--------------------------------------
Name of Partner or Affiliate Reimbursement Percentage
- ---------------------------- ------------------------
Genpar 1.00%
TPG Partners, L.P. 37.10%
Continental Airlines, Inc. 19.05%
Mesa 19.05%
For Unreimbursed Expenses as to Which
Fidelity is Not Obligated to Contribute
----------------------------------------
Name of Partner or Affiliate Reimbursement Percentage
- ---------------------------- ------------------------
Genpar 1.32%
TPG Partners, L.P. 48.68%
Continental Airlines, Inc. 25.00%
Mesa 25.00%
(b) Attached hereto as Schedule A is a summary of all Expenses which
have been submitted to the Partnership for reimbursement as of the date hereof.
Each Partner (or, in the case of Apcal, its constituent partners) shall have the
right, from time to time and upon reasonable request to Genpar, to receive
information concerning the amount of any reimbursement for Expenses sought on
behalf of each Partner or the Partnership or for similar expenses sought on
behalf of Fidelity, the amount of Expenses previously paid to or on behalf of
each Partner or the Partnership and of similar expenses previously paid to or on
behalf of Fidelity, and the amount of Expenses owing to or on behalf of each
Partner or the Partnership and of similar expenses previously paid to or on
behalf of Fidelity.
(c) Each Partner (or Affiliate) shall pay or reimburse Genpar and the
Tax Matters Partner its respective percentage (based on the percentages set
forth in the second table under Section 3(a) hereof) of all direct, out-of-
pocket expenses incurred by such parties with respect to the formation,
operation and dissolution of the Partnership, including, without limitation,
third-party accounting expenses, legal fees and other direct costs associated
with the formation, operation and dissolution of the Partnership. All payments
or reimbursements of such expenses shall not exceed $12,500 in any calendar
quarter or $50,000 in the aggregate.
4
SECTION 4. Indemnification and Confidentiality.
(a) Rights and Obligations Regarding Indemnification and Liability of
the Partnership Pursuant to the Interim Procedures Agreement.
(i) Genpar hereby assigns to each Partner the rights of the Partnership
pursuant to Section 8 of the Procedures Agreement, with respect to elimination
of the Partnership's liability to AWA.
(ii) Genpar hereby assigns to each Partner the rights of the Partnership
pursuant to Section 9 of the Procedures Agreement, with respect to any claim
that such Partner may have against AWA as an Investor Indemnified Party (as such
term is defined in the Procedures Agreement, hereinafter, an "Investor
Indemnified Party").
(iii) Each Partner (or, in the case of Apcal, its constituent partners)
agrees that to the extent that the Partnership is found to be liable to AWA
under the Investment Agreement or under Section 8 or Section 9 of the Procedures
Agreement as a result solely of any action or omission of a particular Partner
or any of its Affiliates, such Partner (or such Affiliate, as the case may be)
shall indemnify and hold harmless the Partnership and each other Partner (and
its Affiliates, if any) against any and all claims or liabilities of any nature
whatsoever, including reasonable legal fees and other expenses reasonably
incurred, arising out of or in connection with any such liability; provided,
however, that no Partner or Affiliate shall have any obligation to indemnify the
Partnership and each other Partner (and its Affiliates, if any) in an amount,
singly or in the aggregate, in excess of the lesser of (i) the purchase price of
the Securities acquired by such Partner (or its Affiliates) on the Effective
Date (as such term is defined in the Investment Agreement, hereinafter, the
"Effective Date") from AWA or (ii) the Value (as defined without regard to the
definition of "Valuation Date" as set forth in the Partnership Agreement) of any
such Securities held by such Partner (or such Affiliate(s)) at the time that
such Partner (or such Affiliate(s)) becomes obligated to indemnify the
Partnership and each other Partner (and its Affiliates, if any) pursuant to this
Section 4(a)(iii). In addition, in the event that the Partnership shall be
found in a final judgment by a court of competent jurisdiction to be liable for
any breach of the Investment Agreement or the Procedures Agreement for any
action or omission not solely the responsibility of a particular Partner (or its
Affiliates), each Partner (or its Affiliate(s) which purchased Securities
pursuant to any assignment by a Partner of its right to purchase Securities
under the Investment Agreement) shall contribute to any judgment owed by the
Partnership in the respective percentage set forth opposite its name (or, in the
case of Apcal, its constituent partners' name) in the second table under Section
3(a) hereof; provided, however, that such
5
contribution shall in no event exceed, singly or in the aggregate, the lesser of
(i) the purchase price of the Securities acquired by such Partner (or such
Affiliates) on the Effective Date from AWA or (ii) the Value of any such
Securities held by such Partner (or such Affiliate(s)) at the time that such
Partner (or such Affiliate(s)) becomes obligated to contribute to any such
judgment.
(b) Rights and Obligations Regarding Indemnification and Liability of
the Partners. Each Partner (or, in the case of Apcal, its constituent partners)
shall, to the fullest extent permitted by law, indemnify and hold harmless (in
such capacity, an "Indemnifying Partner") the Partnership and each other
Partner, its directors, officers, shareholders, employees, agents and Affiliates
(each, an "Indemnified Party") from and against any and all claims or
liabilities of any nature whatsoever, including reasonable legal fees and other
expenses reasonably incurred, arising out of, or in connection with the
registration and or sale of all or any portion of the Indemnifying Partner's
Securities if, and only to the extent that, such claims and liabilities arise
out of or in connection with any information provided by such Indemnifying
Partner in writing for use in any registration statement utilized by AWA in
connection with any such registration or sale; provided, however, that no
Partner (or, in the case of Apcal, its constituent partners) shall have any
obligation to indemnify the Partnership and each other Partner (or, in the case
of Apcal, its constituent partners) in an amount, singly or in the aggregate, in
excess of the lesser of (i) the purchase price of the Securities acquired by
such Partner (or its Affiliates) on the Effective Date from AWA or (ii) the
Value of any such Securities held by such Partner (or such Affiliate(s)) at the
time that such Partner (or such Affiliate(s)) becomes obligated to indemnify an
Indemnified Party pursuant to this Section 4(b). If an Indemnified Party
becomes involved in any capacity in any suit, action, proceeding, or
investigation in connection with any matter which an Indemnifying Partner is
required to provide indemnification pursuant to this Section 4(b), the
Indemnifying Partner periodically shall, upon the request of such Indemnified
Party and receipt of invoices and such supporting documentation as the
Indemnifying Partner reasonably may request, reimburse such Indemnified Party
for its reasonable legal and other expenses (including the cost of any
investigation and preparation) incurred in connection therewith; provided,
however, that prior to any such advancement of expenses (i) such Indemnified
Party shall provide the Indemnifying Partner with an undertaking in form and
substance satisfactory to the Indemnifying Partner to repay promptly the amount
of any such expenses paid to it if it shall ultimately be determined by a court
or arbitrator of competent jurisdiction that such Indemnified Party is not
entitled to be indemnified by the Indemnifying Partner as herein provided in
connection with such suit, action, proceeding, or investigation; and provided
further that the failure for any reason of the Indemnifying Partner to advance
funds to any
6
Indemnified Party shall in no way affect such Indemnified Party's right to
reimbursement of such costs if it is ultimately determined that such Indemnified
Party is entitled to indemnification pursuant to the terms hereof.
(c) Genpar hereby assigns to each Partner the rights of the Partnership
pursuant to Section 7 of the Procedures Agreement, with respect to the retention
and protection of Confidential Information (as defined in the Procedures
Agreement, hereafter "Confidential Information"). Each of the Partners hereby
agrees to be bound by the provisions of said Section 7 with respect to any
Confidential Information obtained from any other Partner.
(d) Genpar hereby assigns to each Partner the rights of the Partnership
pursuant to Section 21 of the Procedures Agreement, with respect to the sharing
of certain attorney-client privileged communications. Each of the Partners
hereby agrees to be bound by the provisions of said Section 21 with respect to
any confidential communications received from any other Partner.
SECTION 5. Stockholders' Agreement. Pursuant to Section 6 of the
Investment Agreement, the Partnership, AWA and certain other parties on the
Effective Date shall enter into a Stockholders' Agreement relating to certain
matters concerning the composition and voting of the board of directors of AWA
and the transfer of Securities by certain shareholders of AWA. The Partnership
hereby assigns to the Partners (and, in the case of Apcal, to its constituent
partners), and such Partners (and, in the case of Apcal, its constituent
Partners) hereby assume the Partnership's rights and obligations under the
Stockholders' Agreement as follows:
(a) The Partnership hereby assigns to TPG Partners, L.P. ("TPG"), an
Affiliate of Genpar, the Partnership's right under the Stockholders' Agreement
to designate the AmWest Directors (as such term is defined in the Stockholders'
Agreement, hereinafter, "AmWest Directors") and any replacement of any AmWest
Director; provided, however, that for so long as Mesa owns, directly or
indirectly, securities representing at least 2% of the aggregate voting power of
the outstanding voting equity securities of AWA, TPG shall cause one person
identified by Mesa, who shall be reasonably satisfactory to TPG (the "Mesa
Director"), to be included among the Partnership's or TPG's, as the case may be,
designees to the AWA board of directors. Mesa agrees that the Mesa Director
shall be a "Citizen of the United States," as such term is defined in accordance
with Section 40102, Title 49, United States Code, as now in effect or as it may
hereafter from time to time be amended. For so long as Mesa owns, directly or
indirectly, securities representing at least 2% of the aggregate voting power of
the outstanding
7
voting equity securities of AWA and provided that TPG complies with its
obligation to cause one person identified by Mesa to be included among the
Partnership's or TPG's designees to the AWA board of directors, Mesa hereby
agrees to vote its Securities in favor of the Partnership's or TPG's designees,
as the case may be, to the board of directors of AWA. Each of TPG and Mesa, to
the extent that it shall be entitled hereunder to identify a person to be
designated to the AWA board of directors, agrees to nominate or cause the
nomination of such directors in accordance with the Bylaws of AWA.
(b) For so long as the Stockholders' Agreement is in effect, each of the
Partners (and, in the case of Apcal, its constituent partners) agrees to vote
the Securities held and controlled by such Partner (or, in the case of Apcal,
its constituent partners) and to cause any directors of AWA designated by such
Partner (or, in the case of Apcal, its constituent partners) to vote or provide
written consents in favor of each Independent Director (as such term is defined
in the Stockholders' Agreement, hereinafter, an "Independent Director") and to
take any other action necessary to elect such Independent Directors.
(c) For so long as the Stockholders' Agreement or the GPA Voting
Agreement dated as of August 25, 1994 by and between GPA Group plc and the
Partnership is in effect, subject to the conditions set forth in Section 2.1(c)
of the Stockholders' Agreement, each of the Partners agrees (and, in the case of
Apcal, its constituent partners) to vote the Securities held and controlled by
such Partner (or, in the case of Apcal, its constituent partners) and to cause
any directors of AWA designated by such Partner (or, in the case of Apcal, its
constituent partners) to vote or provide written consents in favor of the GPA
Director (as such term is defined in the Stockholders' Agreement, hereinafter,
the "GPA Director") and to take any other action necessary to elect such GPA
Director; provided, however, that the obligation of Mesa to so vote its
Securities in such fashion shall exist only for so long as the Stockholders'
Agreement is in effect. To the extent that GPA is obligated to vote its
Securities in favor of the Partnership's or TPG's, as the case may be, designees
to the AWA board of directors, TPG shall enforce its rights against GPA equally
on behalf of each TPG designee to the AWA board of directors including, without
limitation, the Mesa Director.
(d) For so long as the Stockholders' Agreement is in effect, none of the
Partners nor any of their constituent partners or Affiliates shall sell or
otherwise transfer any common stock of AWA owned by them (other than to an
Affiliate of the transferror) if, after giving effect thereto and to any related
transaction by such person, the total number of shares of Class B Common Stock
of AWA beneficially owned by the transferor will be less than twice the total
number of Class A Common Stock of AWA beneficially owned by the transferor;
provided, however, that nothing contained in this Section 5(d) shall
8
prohibit any owner of common stock of AWA from selling or otherwise
transferring, in a single transaction or related series of transactions, all
shares of common stock of AWA owned by it, subject to the remaining provisions
of the Stockholders' Agreement.
(e) For so long as the Stockholders' Agreement is in effect, each of the
Partners (and, in the case of Apcal, its constituent partners) agrees to be
bound by Section 4.2 of the Stockholders' Agreement. Each of the Partners (and,
in the case of Apcal, its constituent partners) agrees to be bound by Section
4.3 of the Stockholders' Agreement and to cause any Affiliates that may own
Securities to agree to be bound by said Section 4.3. TPG further agrees that it
shall not transfer or assign all or substantially all of the shares of AWA held
by it in a single transaction or related series of transactions unless the
transferee (including any Affiliate of TPG) agrees in writing to be bound by the
terms of Section 5(a) hereof.
(f) For so long as the Stockholders' Agreement is in effect, each of the
Partners (and, in the case of Apcal, its constituent partners) agrees to vote
the Securities held and controlled by such Partner (or, in the case of Apcal,
its constituent partners) in compliance with Section 2.1(h) of the Stockholders'
Agreement.
SECTION 6. Registration Rights Agreement. Pursuant to Section 11 of the
Investment Agreement, the Partnership and AWA shall enter into a registration
rights agreement (the "Rights Agreement") on the Effective Date pursuant to
which the Partnership, its Affiliates (including the Partners) and transferees
and assignees shall have the right to cause AWA to register the Securities
issued or issuable to the Partnership under the Investment Agreement and such
other Persons under the Securities Laws. The Partnership hereby assigns the
rights of the Partnership under the Rights Agreement to the Partners as follows:
(a) Pursuant to Section 11 of the Rights Agreement, the Partnership
hereby assigns to TPG the right and authority to exercise any notice and consent
rights on the part of the Partnership under the Rights Agreement including,
without limitation, the issuance of any Notice of Demand (as such term is
defined in the Rights Agreement, hereinafter, a "Notice of Demand"); provided,
however, that during the Shelf Period (as such term is defined in the Rights
Agreement, hereinafter, the "Shelf Period"), TPG shall provide prior written
notice to each other Partner (or Affiliate of each other Partner known to it) of
any intention of TPG to provide AWA with a Notice of Demand and thereafter shall
not provide AWA with such Notice of Demand unless Mesa shall consent to such
action, which consent shall not be unreasonably withheld;
9
and provided further, that after the Shelf Period, TPG shall provide prior
written notice to each other Partner (or Affiliate of each other Partner known
to it) of any intention of TPG to provide AWA with a Notice of Demand and
thereafter, for so long as Mesa shall be an "affiliate" of AWA within the
meaning of Rule 144 under the U.S. Securities Act of 1933, as amended, shall not
provide AWA with such Notice of Demand unless Mesa shall consent to such action,
which consent shall not be unreasonably withheld.
(b) With regard to any notice, demand, request, action or consent
effected by TPG under the Rights Agreement (other than a Notice of Demand) that
TPG effects as the designated transferee Affiliate of the Partnership pursuant
to Section 11 of the Rights Agreement, TPG agrees, if and to the extent that the
consent of or notice to Fidelity or Lehman (as such terms are defined in the
Rights Agreement) is required by the Rights Agreement with regard to such
notice, demand, request, action or consent, then TPG, acting on behalf of the
Partnership, shall provide notice to and consult with Mesa prior to effecting
any such notice, demand, request, action or consent, and shall not effect such
notice, demand, request, action or consent without the consent of Mesa. Subject
to the limitation contained in the preceding two sentences, if, and to the
extent that, any Partner is entitled to receive notice pursuant to the
provisions of any Securities Agreement, including, without limitation, the GPA
Registration Rights Agreement (as such term is defined in the Rights Agreement),
and an equivalent notice is not required to be provided to each of the other
Partners by virtue of such Securities Agreement, each Partner who receives such
notice shall use its best efforts to provide such notice pursuant to Section
7(a) of this Agreement to each other Partner who holds Securities and does not
receive such equivalent notice .
(c) As soon as reasonably practicable following the Effective Date, but
in no event later than ten days following the Effective Date, each of the
Partners shall use its reasonable efforts to prepare jointly and file, as
necessary, a Schedule 13D with the Securities and Exchange Commission, and to
amend such filing as required by Regulation 13D-G under the Securities Act of
1934, as amended. Each of the Partners (or, in the case of Apcal, its
constituent partners) agrees to provide promptly all necessary information
pertaining to such Partner (or, in the case of Apcal, its constituent partners)
necessary to make such amendments. Each of the Partners (and, in the case of
Apcal, its constituent partners) of any changes in facts or circumstances that
would require the filing of any such amendments.
10
SECTION 7. Miscellaneous.
(a) Notice. All notices, demands, or requests provided for or permitted
to be given pursuant to this Agreement must be in writing. All notices,
demands, and requests to be sent to a Partner or any assignee of a Partner
pursuant to this Agreement shall be deemed to have been properly given or served
if: (i) personally delivered; (ii) deposited prepaid for next day delivery by a
nationally recognized overnight courier service, addressed to such Partner;
(iii) deposited in the United States mail, addressed to such Partner, prepaid
and registered or certified with return receipt requested; or (iv) transmitted
via telecopier or other similar device to the attention of such Partner. All
notices, demands, and requests so given shall be deemed received: (i) when
personally delivered; (ii) twenty-four (24) hours after being deposited for next
day delivery with an overnight courier; (iii) forty-eight (48) hours after being
deposited in the United States mail; or (iv) twelve (12) hours after being
telecopied or otherwise transmitted and receipt has been confirmed. The
Partners and their respective assignees shall have the right from time to time,
and at any time during the term of this Agreement, to change their respective
addresses and each shall have the right to specify as his or its address any
other address within the United States of America by giving to the other parties
at least thirty (30) days' written notice thereof; provided, however, that to be
effective, any such notice must be actually received (as evidenced by a return
receipt).
(b) Amendments. Amendments and supplements to this Agreement shall
require the written consent of each Partner.
(c) Governing Law. Except to the extent that any agreement of the
Partners to vote Securities owned by them may be governed by Delaware law, this
Agreement is made under, and the rights and obligations of the Partners
hereunder shall be interpreted, construed, and enforced in accordance with, the
laws of the State of Texas, without reference to its conflicts of laws
provisions.
(d) Rules of Construction. The general rule of construction for
interpreting a contract, which provides that the provisions of a contract should
be construed against the party preparing the contract, is waived by the parties.
Each party acknowledges that it was represented by separate legal counsel in
this matter who participated in the preparation of this Agreement or it had the
opportunity to retain counsel to participate in the preparation of this
Agreement but chose not to do so.
11
(e) Gender, Etc. Unless the context clearly indicates otherwise, the
singular shall include the plural and vice versa. Whenever the masculine,
feminine, or neuter gender is used inappropriately in this Agreement, this
Agreement shall be read as if the appropriate gender was used.
(f) Captions. Captions are included solely for convenience of reference
and if there is any conflict between captions and the text of this Agreement,
the text shall control. Unless otherwise specifically stated, references to
Sections refer to the Sections of this Agreement.
(g) Entire Agreement. This Agreement contains the entire agreement
among the parties relative to the matters contained in this Agreement.
(h) Waiver. No consent or waiver, express or implied, by any Partner to
or for any breach or default by any other Partner in the performance by such
other Partner of its obligations under this Agreement shall be deemed or
construed to be a consent or waiver to or of any other breach or default in the
performance by such other Partner of the same or any other obligations of such
other Partner under this Agreement. Failure on the part of any Partner to
complain of any act or failure to act of any of the other Partners or to declare
any of the other Partners in default, regardless of how long such failure
continues, shall not constitute a waiver by such Partner of its rights
hereunder.
(i) Severability. If any provision of this Agreement or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such provisions
to other persons or circumstances shall not be affected thereby, and the intent
of this Agreement shall be enforced to the greatest extent permitted by law.
(j) Binding Agreement. Subject to the restrictions on transfers and
encumbrances set forth in this Agreement, this Agreement shall inure to the
benefit of and be binding upon the undersigned Partners and their respective
legal representatives, successors, and assigns. This Agreement shall be binding
upon, and enforceable by the other parties hereto (including, without
limitation, by Mesa) against, TPG or Continental only to the extent that (i) as
of the date of this Agreement, TPG or Continental have any obligations to the
Partnership including, without limitation, pursuant to Subscription Agreements
entered into by the Partnership with TPG and Continental, or (ii) TPG or
Continental has specifically assumed obligations to the Partnership or to Mesa
pursuant to this Agreement.
12
(k) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original for all purposes and all
of which when taken together shall constitute a single counterpart instrument.
Executed signature pages to any counterpart instrument may be detached and
affixed to a single counterpart, which single counterpart with multiple executed
signature pages affixed thereto constitutes the original counterpart instrument.
All of these counterpart pages shall be read as though one and they shall have
the same force and effect as if all of the parties had executed a single
signature page.
13
Each of the undersigned has executed and delivered or caused this
Agreement to be executed and delivered as of the date set forth above.
AMWEST GENPAR, INC., individually and in its capacity
as General Partner of the Partnership
By: /s/ Richard Ekleberry
-------------------------
Name: Richared Ekleberry
Title: Vice President
Address: 201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James J. O'Brien
Telecopier: (817) 871-4010
APCAL, L.P.
By: AMWEST GENPAR, INC.,
a Texas corporation
By: /s/ Richard Ekleberry
---------------------------
Name: Richard Ekleberry
Title: Vice President
Address: 201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James J. O'Brien
Telecopier: (817) 871-4010
MESA AIRLINES, INC.
By: /s/ Gary E. Risley
----------------------
Name: Gary E. Risley
Title: Vice President
14
Address: 2325 30th Street
Farmington, New Mexico 87401
Attention: Gary E. Risley, Esq.
Telecopier: (505) 326-4485
ACKNOWLEDGED AND AGREED
AS TO SECTIONS 3, 4, 5, 6 and 7(j):
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard Ekleberry
-----------------------
Name: Richard Ekleberry
Title: Vice President
Address: 201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James J. O'Brien
Telecopier: (817) 871-4010
CONTINENTAL AIRLINES, INC.
By: /s/ Cynthia R. Creager-Jones
---------------------------------
Name: Cynthia R. Creager-Jones
Title: Vice President
Address: 2929 Allen Parkway, Suite 1466
Houston, Texas 77019
Attention: Charles Goolsbee
Telecopier: (713) 834-5161
15
8/24/94
EXPENSES SUBMITTED TO DATE RELATED TO AMERICAN WEST SECURITIES ACQUISITION
Name of Thru February
Professional 28, 1994 March, 1994 April, 1994 May, 1994 June, 1994 Total
- -------------------- ----------- ----------- ----------- ----------- ----------- -------------
TPG PARTNERS, L.P. $ 58,773.66 $ 35,738.72 $ 27,147.35 $ 14,888.04 pending $ 136,547.77
ARNOLD & PORTER $339,228.06 $269,054.18 $280,562.14 $256,462.21 $232,143.08 $1,377,449.67
MERRILL LYNCH $116,834.00 $ 58,152.36 $ 63,272.12 $ 65,677.29 $ 54,191.23 $ 358,127.00
JONES, DAY $ 64,002.72 $ 75,889.72 $ 61,388.53 $113,715.61 $ 39,001.46 $ 353,998.04
CLEARY, GOTTLIEB -- $ 53,495.00 $ 80,982.86 $ 92,722.05 $ 27,575.91 $ 254,775.82
CONTINENTAL $ 11,451.53 pending pending pending pending $ 11,451.53
AIRLINES, INC.
BEAR STEARNS & CO. -- $ 165.31 $ 95.44 $ 33,338.82 pending $ 3,599.57
GOODWIN, PROCTOR -- $ 42,985.25 $ 89,231.07 $112,854.52 $ 50,013.26 $ 295,084.10
KELLY, HART -- -- -- $ 2,375.98 pending $ 2,375.98
TOTAL $590,289.97 $535,480.54 $602,679.51 $662,034.52 $402,924.94 $2,793,409.48
Reimbursed 550,000.00 300,000.00 300,000.00 300,000.00 300,000.00 1,750,000.00
Balance 40,289.97 235,480.54 302,679.51 362,034.52 102,924.94 1,043,409.48
16
August 24, 1994
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to Section 23 of the Third Revised Investment
Agreement dated April 21, 1994 by and between America West Airlines, Inc. and
AmWest Partners, L.P. (the "Investment Agreement"). Capitalized terms used
herein and not otherwise defined herein are used herein as defined in the
Investment Agreement.
Pursuant to Section 23 of the Investment Agreement, the Investor
hereby notifies the Company of its assignment of its rights and obligations to
purchase certain Securities under Section 4(a) of the Investment Agreement.
Under Section 4(a) of the Investment Agreement, the Investor is
obligated to purchase 1,200,000 shares of Class A Common plus certain additional
shares of Class B Common as contemplated by Section 4(a)(2)(i) and (ii) of the
Investment Agreement minus certain shares of Class B Common which may be
subscribed for under Section 4(a)(iii) by the Equity Holders. You have informed
us that the number of shares of Class B Common to be purchased by the Investor
pursuant to Section 4(a)(2)(ii) is 721,815, and we understand that the Equity
Holders will purchase 1,615,179 shares of Class B Common under said Section
4(a)(2)(iii). Accordingly, the Investor is obligated to purchase 12,981,636
shares of Class B Common. In addition, the Investor is entitled to receive
Warrants to purchase 2,769,231 shares of Class B Common.
The Investor hereby notifies the Company of the following assignments
of the Investor's right to purchase Securities under the Investment Agreement:
1. Mesa Airlines, Inc. The Investor has assigned to Mesa Airlines,
Inc. ("Mesa") the following of the Investor's rights and obligations under the
Investment Agreement:
America West Airlines, Inc.
August 24, 1994
Page 2
(i) The Investor has assigned to Mesa the right to purchase 100,000
shares of Class A Common;
(ii) The Investor has assigned to Mesa the right to purchase
2,183,343 shares of Class B Common; and
(iii) The Investor has assigned to Mesa the right to be issued
Warrants to purchase 799,767 shares of Class B Common.
The address of Mesa is Mesa Airlines, Inc., 2325 30th Street,
Farmington, New Mexico 87401, Attention: Gary E. Risley.
Please issue the above-described shares of Class A Common, Class B
Common and Warrants in the name of Mesa.
2. Continental Airlines, Inc. The Investor has assigned to
Continental Airlines, Inc. ("Continental") the following of the Investor's
rights and obligations under the Investment Agreement:
(i) The Investor has assigned to Continental the right to purchase
325,505 shares of Class A Common;
(ii) The Investor has assigned to Continental the right to purchase
1,508,234 shares of Class B Common; and
(iii) The Investor has assigned to Continental the right to be issued
Warrants to purchase 802,860 shares of Class B Common.
The address of Continental is Continental Airlines, Inc., 2929 Allen
Parkway, Suite 1466, Houston, Texas 77019., Attention: Charles Goolsbee, Esq.
Please issue the above-described shares of Class A Common, Class B
Common and Warrants in the name of Continental.
3. TPG Partners, L.P. The Investor has assigned to TPG Partners,
L.P. ("TPG") the following of the Investor's rights and obligations under the
Investment Agreement:
America West Airlines, Inc.
August 24, 1994
Page 3
(i) The Investor has assigned to TPG the right to purchase 642,078
shares of Class A Common;
(ii) The Investor has assigned to TPG the right to purchase
3,829,101 shares of Class B Common; and
(iii) The Investor has assigned to TPG the right to be issued
Warrants to purchase 706,508 shares of Class B Common.
The address of TPG is TPG Partners, L.P., 201 Main Street, Suite 2420,
Forth Worth, Texas 76102, Attention: James J. O'Brien.
Please issue the above-described shares of Class A Common, Class B
Common and Warrants in the name of TPG.
4. TPG Parallel I, L.P. The Investor has assigned to TPG Parallel I,
L.P. ("Parallel") the following of the Investor's rights and obligations under
the Investment Agreement:
(i) The Investor has assigned to Parallel the right to purchase
64,699 shares of Class A Common;
(ii) The Investor has assigned to Parallel the right to purchase
418,758 shares of Class B Common; and
(iii) The Investor has assigned to Parallel the right to be issued
Warrants to purchase 159,580 shares of Class B Common.
The address of Parallel is TPG Parallel I, L.P., 201 Main Street,
Suite 2420, Forth Worth, Texas 76102, Attention: James J. O'Brien.
Please issue the above-described shares of Class A Common, Class B
Common and Warrants in the name of Parallel.
5. Air Partners II, L.P. The Investor has assigned to Air Partners
II, L.P. ("APII") the following of the Investor's rights and obligations under
the Investment Agreement:
America West Airlines, Inc.
August 24, 1994
Page 4
(i) The Investor has assigned to APII the right to purchase 67,718
shares of Class A Common;
(ii) The Investor has assigned to APII the right to purchase
438,302 shares of Class B Common; and
(iii) The Investor has assigned to APII the right to be issued
Warrants to purchase 167,028 shares of Class B Common.
The address of APII is Air Partners II, L.P., 201 Main Street, Suite
2420, Forth Worth, Texas 76102, Attention: James J. O'Brien.
Please issue the above-described shares of Class A Common, Class B
Common and Warrants in the name of APII.
6. Belmont Fund, L.P. The Investor has assigned to Belmont Fund,
L.P. ("Belmont") the following of the Investor's rights and obligations under
the Investment Agreement:
(i) The Investor has assigned to Belmont the right to purchase
637,124 shares of Class B Common;
(ii) The Investor has assigned to Belmont the right to be issued
Warrants to purchase 33,372 shares of Class B Common;
(iii) The Investor has assigned to Belmont the right to acquire
$25,000,000 principal amount in Notes; and
(iv) The Investor has assigned to Belmont the right to purchase
180,454 shares of Class B Common pursuant to Section 4(a)(2)(ii) of the
Investment Agreement.
The address of Belmont is Belmont Fund, L.P., c/o Fidelity Management
Trust Company, 82 Devonshire Street, MS C7A, Boston, Massachusetts 02109,
Attention: Daniel J. Harmetz, with a copy to Wendy Schnipper Clayton, Esq.,
Fidelity Management Trust Company, 82 Devonshire Street, MS F7D, Boston,
Massachusetts 02109.
Please issue the above-described shares of Class B Common and Warrants
in the following name and address: Dol & Co., Brown Brothers Harriman & Co.,
Securities
America West Airlines, Inc.
August 24, 1994
Page 5
Department, 3 Hanover Street, Ground Floor, New York, New York, 10005, Account
No. 8118572, for the account of Belmont Fund, L.P., Attention: Dan Zibinskas.
7. Fidelity Copernicus Fund, L.P. The Investor has assigned to
Fidelity Copernicus Fund, L.P. ("Copernicus") the following of the Investor's
rights and obligations under the Investment Agreement:
(i) The Investor has assigned to Copernicus the right to purchase
1,911,372 shares of Class B Common;
(ii) The Investor has assigned to Copernicus the right to be issued
Warrants to purchase 100,116 shares of Class B Common;
(iii) The Investor has assigned to Copernicus the right to acquire
$75,000,000 principal amount in Notes; and
(iv) The Investor has assigned to Copernicus the right to purchase
541,361 shares of Class B Common pursuant to Section 4(a)(2)(ii) of the
Investment Agreement.
The address of Copernicus is Fidelity Copernicus Fund, L.P., c/o
Fidelity Management Trust Company, 82 Devonshire Street, MS C7A, Boston,
Massachusetts 02109, Attention: Daniel J. Harmetz, with a copy to Wendy
Schnipper Clayton, Esq., Fidelity Management Trust Company, 82 Devonshire
Street, MS F7D, Boston, Massachusetts 02109.
Please issue the above-described shares of Class B Common and Warrants
in the following name and address: Dol & Co., Brown Brothers Harriman & Co.,
Securities Department, 3 Hanover Street, Ground Floor, New York, New York,
10005, Account No. 8136715, for the account of Fidelity Copernicus Fund, L.P.,
Attention: Dan Zibinskas.
8. Lehman Brothers, Inc. The Investor has assigned to Lehman
Brothers, Inc. ("Lehman") the following of the Investor's rights and obligations
under the Investment Agreement:
(i) The Investor has assigned to Lehman the right to purchase
1,333,587 shares of Class B Common.
The address of Lehman is Lehman Brothers Inc., 3 World Financial
Center, New York, New York 10285, Attention: John Sweeney.
America West Airlines, Inc.
August 24, 1994
Page 6
Please issue the above-described shares of Class B Common in the name
of Smith Barney Inc., 388 Greenwich Street, New York, New York, Attention: Bob
Fannon, Reorganization Department, 17th Floor.
With regards.
Sincerely,
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.
By: /s/ Richard P. Schifter
------------------------
Name: Richard P. Schifter
Title: Vice President
cc: LeBoeuf, Lamb, Greene & MacRae
Andrews & Kurth L.L.P.
Murphy, Weir & Butler
Lord, Bissell and Brook
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders' Agreement dated as
of August 25, 1994, by and among AmWest Partners, L.P., GPA Group plc,
America West Airlines, Inc., and the other parties thereto (the
"Agreement"). Capitalized terms not otherwise defined herein shall have
the respective meanings ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which assignment has
been notified to the Company by AmWest, the undersigned has purchased
certain shares of Common Stock, which shares are subject to the Agreement.
As a condition to such assignment, the undersigned is obligated under
Section 4.2 of the Agreement to provide a written acknowledgment to the
other parties to the Agreement that it accepts and is bound by and subject
to the terms of the Agreement.
The undersigned hereby assumes and agrees to be bound by the terms
of the Agreement and subject to the terms of the Agreement. This agreement
shall be binding on the undersigned, and the undersigned
America West Airlines, Inc.
August 25, 1994
Page 2
acknowledges and agrees that this covenant and agreement is made for the
benefit of, and may be enforced by, the other parties to the Agreement.
Sincerely,
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard P. Schifter
------------------------
Name: Richard P. Schifter
Title: Vice President
America West Airlines, Inc.
August 25, 1994
Page 1
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders' Agreement dated as
of August 25, 1994, by and among AmWest Partners, L.P., GPA Group plc,
America West Airlines, Inc., and the other parties thereto (the
"Agreement"). Capitalized terms not otherwise defined herein shall have
the respective meanings ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which assignment has
been notified to the Company by AmWest, the undersigned has purchased
certain shares of Common Stock, which shares are subject to the Agreement.
As a condition to such assignment, the undersigned is obligated under
Section 4.2 of the Agreement to provide a written acknowledgment to the
other parties to the Agreement that it accepts and is bound by and subject
to the terms of the Agreement.
America West Airlines, Inc.
August 25, 1994
Page 2
The undersigned hereby assumes and agrees to be bound by the terms
of the Agreement and subject to the terms of the Agreement. This agreement
shall be binding on the undersigned, and the undersigned acknowledges and
agrees that this covenant and agreement is made for the benefit of, and may
be enforced by, the other parties to the Agreement.
Sincerely,
TPG PARALLEL I, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard P. Schifter
------------------------
Name: Richard P. Schifter
Title: Vice President
America West Airlines, Inc.
August 25, 1994
Page 1
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders' Agreement dated as
of August 25, 1994, by and among AmWest Partners, L.P., GPA Group plc,
America West Airlines, Inc., and the other parties thereto (the
"Agreement"). Capitalized terms not otherwise defined herein shall have
the respective meanings ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which assignment has
been notified to the Company by AmWest, the undersigned has purchased
certain shares of Common Stock, which shares are subject to the Agreement.
As a condition to such assignment, the undersigned is obligated under
Section 4.2 of the Agreement to provide a written acknowledgment to the
other parties to the Agreement that it accepts and is bound by and subject
to the terms of the Agreement.
America West Airlines, Inc.
August 25, 1994
Page 2
The undersigned hereby assumes and agrees to be bound by the terms
of the Agreement and subject to the terms of the Agreement. This agreement
shall be binding on the undersigned, and the undersigned acknowledges and
agrees that this covenant and agreement is made for the benefit of, and may
be enforced by, the other parties to the Agreement.
Sincerely,
AIR PARTNERS II, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard P. Schifter
-----------------------
Name: Richard P. Schifter
Title: Vice President
America West Airlines, Inc.
August 25, 1994
Page 1
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders' Agreement dated as
of August 25, 1994, by and among AmWest Partners, L.P., GPA Group plc,
America West Airlines, Inc., and the other parties thereto (the
"Agreement"). Capitalized terms not otherwise defined herein shall have
the respective meanings ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which assignment has
been notified to the Company by AmWest, the undersigned has purchased
certain shares of Common Stock, which shares are subject to the Agreement.
As a condition to such assignment, the undersigned is obligated under
Section 4.2 of the Agreement to provide a written acknowledgment to the
other parties to the Agreement that it accepts and is bound by and subject
to the terms of the Agreement.
The undersigned hereby assumes and agrees to be bound by the terms
of the Agreement and subject to the terms of the Agreement. This
America West Airlines, Inc.
August 25, 1994
Page 2
agreement shall be binding on the undersigned, and the undersigned
acknowledges and agrees that this covenant and agreement is made for the
benefit of, and may be enforced by, the other parties to
the Agreement.
Sincerely,
CONTINENTAL AIRLINES, INC.
By: /s/ Cynthia R. Creager-Jones
-----------------------------
Name: Cynthia R. Creager-Jones
Title: Vice President
America West Airlines, Inc.
August 25, 1994
Page 1
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders' Agreement dated as
of August 25, 1994, by and among AmWest Partners, L.P., GPA Group plc,
America West Airlines, Inc., and the other parties thereto (the
"Agreement"). Capitalized terms not otherwise defined herein shall have
the respective meanings ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which assignment has
been notified to the Company by AmWest, the undersigned has purchased
certain shares of Common Stock, which shares are subject to the Agreement.
As a condition to such assignment, the undersigned is obligated under
Section 4.2 of the Agreement to provide a written acknowledgment to the
other parties to the Agreement that it accepts and is bound by and subject
to the terms of the Agreement.
America West Airlines, Inc.
August 25, 1994
Page 2
The undersigned hereby assumes and agrees to be bound by the terms
of the Agreement and subject to the terms of the Agreement. This agreement
shall be binding on the undersigned, and the undersigned acknowledges and
agrees that this covenant and agreement is made for the benefit of, and may
be enforced by, the other parties to the Agreement.
Sincerely,
MESA AIRLINES, INC.
By: /s/ Gary Risley
------------------
Name: Gary Risley
Title: V.P. Legal Affairs
America West Airlines, Inc.
August 25, 1994
Page 3
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights Agreement
("Agreement") dated as of August 25, 1994, among America West Airlines,
Inc. (the "Company"), AmWest Partners, L.P. ("AmWest") and the other
Holders named therein. Capitalized terms used but not defined in this
instrument shall have the meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this "Instrument")
and as permitted by Section 11 of the Agreement, AmWest hereby assigns and
transfers to the Person whose name and address are shown in the space below
provided for such purpose (the "Assignee") those of its rights under the
Agreement which relate to the Registrable Securities of the Company
described below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 642,078 Shares
Class B Common 3,829,101 Shares
Warrants 706,508 Shares
The Assignee hereby assumes and agrees to fully and promptly
perform, discharge and satisfy all covenants and obligations on the part of
AmWest under the Agreement to the extent that such convenants and
obligations relate to the Registrable Securities of the Company acquired by
Assignee from AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space provided below, the
Company hereby acknowledges the assignment and assumption of rights and
obligations effected hereby.
America West Airlines, Inc.
August 25, 1994
Page 4
This Instrument is binding upon Assignor, Assignee and the Company,
and their respective Successors and assigns, and shall inure to the benefit
of, and may be enforced by each such party and its respective Successors
and assigns.
America West Airlines, Inc.
August 25, 1994
Page 5
This Instrument may be executed in any number of counterparts, each
of which shall be an original and all of which shall together constitute
one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS, L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
---------------------------
Name: Richard P. Schifter
Title: Vice President
TPG PARTNERS, L.P.
Assignee
By: TPG GenPar, L.P.
By: TPG Advisors, Inc.
its General Partner
By: /s/ Richard P. Schifter
---------------------------
Name: Richard P. Schifter
Title: Vice President
Address of Assignee:
201 Main Street
America West Airlines, Inc.
August 25, 1994
Page 6
Suite 2420
Fort Worth, Texas 76102
Telecopy No: (817) 871-4010
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
------------------------------------
By: /s/ Martin J. Whalen
---------------------------------
Name: Martin J. Whalen
Title: Senior Vice President
America West Airlines, Inc.
August 25, 1994
Page 7
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights Agreement
("Agreement") dated as of August 25, 1994, among America West Airlines,
Inc. (the "Company"), AmWest Partners, L.P. ("AmWest") and the other
Holders named therein. Capitalized terms used but not defined in this
instrument shall have the meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this "Instrument")
and as permitted by Section 11 of the Agreement, AmWest hereby assigns and
transfers to the Person whose name and address are shown in the space below
provided for such purpose (the "Assignee") those of its rights under the
Agreement which relate to the Registrable Securities of the Company
described below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 64,699 Shares
Class B Common 418,758 Shares
Warrants 159,580 Shares
The Assignee hereby assumes and agrees to fully and promptly
perform, discharge and satisfy all covenants and obligations on the part of
AmWest under the Agreement to the extent that such convenants and
obligations relate to the Registrable Securities of the Company acquired by
Assignee from AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space provided below, the
Company hereby acknowledges the assignment and assumption of rights and
obligations effected hereby.
This Instrument is binding upon Assignor, Assignee and the Company,
and their respective Successors and assigns, and shall inure to the benefit
of, and may be enforced by each such party and its respective Successors
and assigns.
America West Airlines, Inc.
August 25, 1994
Page 8
This Instrument may be executed in any number of counterparts, each
of which shall be an original and all of which shall together constitute
one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS, L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
-------------------------
Name: Richard P. Schifter
Title: Vice President
TPG PARALLEL I, L.P.
Assignee
By: TPG GenPar, L.P.
By: TPG Advisors, Inc.
its General Partner
By: /s/ Richard P. Schifter
-------------------------
Name: Richard P. Schifter
Title: Vice President
Address of Assignee:
201 Main Street
Suite 2420
Fort Worth, Texas 76102
Telecopy No: (817) 871-4010
America West Airlines, Inc.
August 25, 1994
Page 9
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
------------------------------------
By: /s/ Martin J. Whalen
---------------------------------
Name: Martin J. Whalen
Title: Senior Vice President
America West Airlines, Inc.
August 25, 1994
Page 10
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights Agreement
("Agreement") dated as of August 25, 1994, among America West Airlines,
Inc. (the "Company"), AmWest Partners, L.P. ("AmWest") and the other
Holders named therein. Capitalized terms used but not defined in this
instrument shall have the meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this "Instrument")
and as permitted by Section 11 of the Agreement, AmWest hereby assigns and
transfers to the Person whose name and address are shown in the space below
provided for such purpose (the "Assignee") those of its rights under the
Agreement which relate to the Registrable Securities of the Company
described below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 67,718 Shares
Class B Common 438,302 Shares
Warrants 167,028 Shares
The Assignee hereby assumes and agrees to fully and promptly
perform, discharge and satisfy all covenants and obligations on the part of
AmWest under the Agreement to the extent that such convenants and
obligations relate to the Registrable Securities of the Company acquired by
Assignee from AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space provided below, the
Company hereby acknowledges the assignment and assumption of rights and
obligations effected hereby.
This Instrument is binding upon Assignor, Assignee and the Company,
and their respective Successors and assigns, and shall inure to the benefit
of, and may be enforced by each such party and its respective Successors
and assigns.
America West Airlines, Inc.
August 25, 1994
Page 11
This Instrument may be executed in any number of counterparts, each
of which shall be an original and all of which shall together constitute
one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS, L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
--------------------------
Name: Richard P. Schifter
Title: Vice President
AIR PARTNERS II, L.P.
Assignee
By: TPG GenPar, L.P.
By: TPG Advisors, Inc.
its General Partner
By: /s/ Richard P. Schifter
---------------------------
Name: Richard P. Schifter
Title: Vice President
Address of Assignee:
201 Main Street
Suite 2420
Fort Worth, Texas 76102
Telecopy No: (817) 871-4010
America West Airlines, Inc.
August 25, 1994
Page 12
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
------------------------------------
By: /s/ Martin J. Whalen
---------------------------------
Name: Martin J. Whalen
Title: Senior Vice President
America West Airlines, Inc.
August 25, 1994
Page 13
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights Agreement
("Agreement") dated as of August 25, 1994, among America West Airlines,
Inc. (the "Company"), AmWest Partners, L.P. ("AmWest") and the other
Holders named therein. Capitalized terms used but not defined in this
instrument shall have the meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this "Instrument")
and as permitted by Section 11 of the Agreement, AmWest hereby assigns and
transfers to the Person whose name and address are shown in the space below
provided for such purpose (the "Assignee") those of its rights under the
Agreement which relate to the Registrable Securities of the Company
described below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 100,000 Shares
Class B Common 2,183,343 Shares
Warrants 799,967 Shares
The Assignee hereby assumes and agrees to fully and promptly
perform, discharge and satisfy all covenants and obligations on the part of
AmWest under the Agreement to the extent that such convenants and
obligations relate to the Registrable Securities of the Company acquired by
Assignee from AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space provided below, the
Company hereby acknowledges the assignment and assumption of rights and
obligations effected hereby.
This Instrument is binding upon Assignor, Assignee and the Company,
and their respective Successors and assigns, and shall inure to the benefit
of, and may be enforced by each such party and its respective Successors
and assigns.
America West Airlines, Inc.
August 25, 1994
Page 14
This Instrument may be executed in any number of counterparts, each
of which shall be an original and all of which shall together constitute
one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS, L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
----------------------------
Name: Richard P. Schifter
Title: Vice President
MESA AIRLINES, INC.
Assignee
By: /s/ Gary Risley
------------------------
Name: Gary Risley
Title: V.P. Legal Affairs
Address of Assignee:
2325 30th Street
Farmington, New Mexico 87401
Telecopy No.: (505) 326-4402
America West Airlines, Inc.
August 25, 1994
Page 15
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
------------------------------------
By: /s/ Martin J. Whalen
---------------------------------
Name: Martin J. Whalen
Title: Senior Vice President
America West Airlines, Inc.
August 25, 1994
Page 16
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights Agreement
("Agreement") dated as of August 25, 1994, among America West Airlines,
Inc. (the "Company"), AmWest Partners, L.P. ("AmWest") and the other
Holders named therein. Capitalized terms used but not defined in this
instrument shall have the meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this "Instrument")
and as permitted by Section 11 of the Agreement, AmWest hereby assigns and
transfers to the Person whose name and address are shown in the space below
provided for such purpose (the "Assignee") those of its rights under the
Agreement which relate to the Registrable Securities of the Company
described below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 325,505 Shares
Class B Common 1,508,234 Shares
Warrants 802,860 Shares
The Assignee hereby assumes and agrees to fully and promptly
perform, discharge and satisfy all covenants and obligations on the part of
AmWest under the Agreement to the extent that such convenants and
obligations relate to the Registrable Securities of the Company acquired by
Assignee from AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space provided below, the
Company hereby acknowledges the assignment and assumption of rights and
obligations effected hereby.
This Instrument is binding upon Assignor, Assignee and the Company,
and their respective Successors and assigns, and shall inure to the benefit
of, and may be enforced by each such party and its respective Successors
and assigns.
America West Airlines, Inc.
August 25, 1994
Page 17
This Instrument may be executed in any number of counterparts, each
of which shall be an original and all of which shall together constitute
one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS,L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
---------------------------
Name: Richard P. Schifter
Title: Vice President
CONTINENTAL AIRLINES, INC.
Assignee
By: /s/ Cynthia R. Creager-Jones
-----------------------------
Name: Cynthia R. Creager-Jones
Title: Vice President
Address of Assignee:
2929 Allen Parkway
Suite 1466
Houston, Texas 77019
Telecopy No.: (713) 834-2448
America West Airlines, Inc.
August 25, 1994
Page 18
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
------------------------------------
By: /s/ Martin J. Whalen
---------------------------------
Name: Martin J. Whalen
Title: Senior Vice President
- --------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
among
AMERICA WEST AIRLINES, INC.,
AMWEST PARTNERS, L.P.
and
THE OTHER HOLDERS NAMED HEREIN
Dated as of August 25, 1994
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
-----------------
Page
----
1. Definitions..................................... 2
2. Registration under the Securities Act........... 8
2.1 Shelf Registration Statements.............. 8
2.2 Demand Registration........................ 10
2.3 Piggyback Registration..................... 12
2.4 Trust Indenture Act Qualification; Rating.. 15
2.5 Registration Terms and Procedures.......... 15
2.6 Underwritten Offerings..................... 22
2.7 Preparation; Reasonable Investigation...... 23
2.8 Indemnification............................ 24
2.9 Liquidated Damages......................... 28
3. Rule 144 and Rule 144A.......................... 31
4. Term............................................ 31
5. Amendments and Waivers.......................... 31
6. Entire Agreement................................ 32
7. No Third-Party Beneficiary...................... 32
8. Invalid Provisions.............................. 32
9. Nominees for Beneficial Owners.................. 32
10. Notices......................................... 33
11. Assignment...................................... 35
12. Descriptive Headings............................ 35
13. Specific Performance............................ 36
14. Governing Law................................... 36
15. Registration Rights to Others................... 36
16. Attorneys' Fees................................. 36
17. Limitation of Liability......................... 37
18. Termination of Certain Rights................... 37
19. No Inconsistent Agreements...................... 37
20. Requisite Holders............................... 37
i
21. Counterparts.................................... 37
22. Repurchase Arrangement.......................... 38
SCHEDULES
Schedule 1 - GPA Registration Rights Agreement
ii
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 25, 1994 among
AMERICA WEST AIRLINES, INC., a Delaware corporation (including its successor, as
reorganized pursuant to Chapter 11, Title 11 of the United States Bankruptcy
Code (the "Bankruptcy Code"), the "Company"), AMWEST PARTNERS, L.P., a Texas
limited partnership ("Investor"), LEHMAN BROTHERS INC., a Delaware corporation
("Lehman"), and the funds or accounts managed or advised by Fidelity Management
Trust Company or its affiliates listed on the signature pages hereto (each, a
"Fidelity Fund" and collectively, "Fidelity").
W I T N E S S E T H :
WHEREAS, the Company is a Debtor and Debtor-in-Possession in the case
(the "Chapter 11 Case") filed in the United States Bankruptcy Court for the
District of Arizona (the "Bankruptcy Court"), entitled "In re America West
Airlines, Inc., Debtor," Chapter 11 Case No. 91-07505-PHX-RGM, under the
Bankruptcy Code;
WHEREAS, the Company and Investor have entered into that certain Third
Revised Investment Agreement dated as of April 21, 1994 (as it may be further
amended, modified or supplemented from time to time, the "Investment Agreement")
and the Company and Fidelity have entered into a Note Purchase Agreement dated
as of August 25, 1994 (as amended, modified or supplemented from time to time,
the "Note Purchase Agreement"), which agreements among other things provide for
the purchase of the Securities (as defined in the Investment Agreement) in
connection with and as part of the transactions to be consummated pursuant to
the confirmation of a Plan of Reorganization (as amended, modified or
supplemented from time to time) of the Company in the Chapter 11 Case (the
"Plan");
WHEREAS, the Company has filed with the SEC (as hereinafter defined) a
shelf registration statement with respect to the Securities issued or issuable
to Investor, Lehman, Fidelity and their respective Affiliates, among others, and
the SEC has declared such shelf registration statement effective;
WHEREAS, by Order dated August 10, 1994, the Bankruptcy Court
confirmed the Plan and
WHEREAS, the Investment Agreement, the Note Purchase Agreement and the
Plan contemplate that the Company, Investor, Lehman and Fidelity will enter into
certain agreements, including, without limitation, this Registration Rights
Agreement;
NOW THEREFORE, the parties hereby agree as follows:
1. Definitions. Capitalized terms used herein that are not otherwise
defined herein shall have the meanings ascribed to them in the Investment
Agreement. In addition, the following terms, as used herein, have the following
meanings (all terms defined herein in the singular to have the correlative
meanings when used in the plural and vice versa):
"Affiliate" means (i) when used with reference to any partnership, any
Person that, directly or indirectly, owns or controls 10% or more of either the
capital or profit interests of such partnership or is a partner of such
partnership or is a Person in which such partnership has a 10% or greater direct
or indirect equity interest and (ii) when used with reference to any
corporation, any Person that, directly or indirectly owns or controls 10% or
more of the outstanding voting securities of such corporation or is a Person in
which such corporation has a 10% or greater direct or indirect equity interest.
In addition, the term "Affiliate," when used with reference to any Person, shall
also mean any other Person that, direct or indirectly, controls or is controlled
by or is under common control with such Person. As used in the preceding
sentence, (A) the term "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
the entity referred to, whether through ownership of voting securities, by
contract or otherwise and (B) the terms "controlling" and "controls" shall have
meanings correlative to the foregoing. Notwithstanding the foregoing, the
Company will be deemed not to be an Affiliate of AmWest or any of its partners
and each of AmWest GenPar, Inc., Continental Airlines, Inc., Mesa Airlines, Inc.
("Mesa"), TPG Partners, L.P., TPG Parallel I, L.P. and Air Partners II, L.P.
shall be deemed to be an Affiliate of AmWest.
"Agreement" means this Registration Rights Agreement, as the same
shall be amended, modified or supplemented from time to time.
"Business Day" means any day, other than a Saturday or Sunday, that is
not a day on which banking institutions are authorized or required by law or
regulation to be closed in (a) New York, New York or (b) Phoenix, Arizona.
"Chapter 11 Case" has the meaning ascribed to it in the preamble.
"Class A Common" means the Class A Common Stock of the Company, par
value $.01 per share, of the Company.
"Class B Common" means the Class B Common Stock of the Company, par
value $.01 per share, of the Company.
"Commercially Reasonable Efforts", when used with respect to any
obligation to be performed or term or provision to
2
be observed hereunder, means such efforts as a prudent Person seeking the
benefits of such performance or action would make, use, apply or exercise to
preserve, protect or advance its rights or interests, provided, that such
efforts do not require such Person to incur a material financial cost or a
substantial risk of material liability unless such cost or liability (i) would
customarily be incurred in the course of performance or observance of the
relevant obligation, term or provision, (ii) is caused by or results from the
wrongful act or negligence of the Person whose performance or observance is
required hereunder or (iii) is not excessive or unreasonable in view of the
rights or interests to be preserved, protected or advanced. Such efforts may
include, without limitation, the expenditure of such funds and retention by such
Person of such accountants, attorneys or other experts or advisors as may be
necessary or appropriate to effect the relevant action; the undertaking of any
special audit or internal investigation that may be necessary or appropriate to
effect the relevant action; and the commencement, termination or settlement of
any action, suit or proceeding involving such Person to the extent necessary or
appropriate to effect the relevant action.
"Demand Registration" means any registration of Registrable Securities
under the Securities Act effected in accordance with Section 2.2.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute, and the rules and regulations
promulgated thereunder.
"Fidelity" has the meaning ascribed to it in the preamble. With
respect to any action, demand or election as to which "Fidelity" has the right
or obligation to take action pursuant to this Agreement, such action shall be
valid if taken by the Holders of a majority in interest of the Registrable
Equity Securities and/or a majority in principal amount of the Registrable Debt
Securities, as the case may be, held by the Fidelity Funds as of the date of
such action.
"Fidelity Fund" has the meaning ascribed to it in the preamble.
"GPA" means GPA Group plc and any legal successor thereto, and
includes GPA's permitted assigns pursuant to the GPA Registration Rights
Agreement.
"GPA Demand" has the meaning ascribed to it in Section 2.2(c).
"GPA Registration Rights Agreement" means the Registration Rights
Agreement of even date herewith between the Company and GPA attached hereto as
Schedule 1, as amended from
3
time to time in accordance with the provisions thereof and hereof.
"Holders" means, subject to Section 9 hereof, the holders of record of
Registrable Securities, or, in the case of references to holders of securities
of the Company other than Registrable Securities, the record holders of such
securities.
"Indemnified Party" has the meaning ascribed to it in Section 2.8(a).
"Indenture" means that certain Indenture between the Company and
American Bank National Association, as Trustee, dated as of August 25, 1994 and
relating to up to $130 million principal amount of the Notes.
"Initial Effective Date" means the date upon which the Restated
Certificate of Incorporation becomes effective in accordance with the Plan and
the General Corporation Law of the State of Delaware.
"Initial Registrable Debt Securities" means the $100 million principal
amount of the Notes issued on the date of this Agreement and held by any
Fidelity Fund or any of their respective assignees or Affiliates or any
transferee (direct or indirect) of such Persons.
"Initial Shelf Registration Statement" has the meaning ascribed to it
in Section 2.1(a).
"Loss" has the meaning ascribed to it in Section 2.8(a).
"Material Adverse Change" means (i) any general suspension of trading
in, or limitation on prices for, securities on any national securities exchange
or in the over-the-counter market in the United States of America, (ii) the
declaration of a banking moratorium or any suspension of payments in respect of
banks in the United States of America, (iii) the commencement of a war, armed
hostilities or other international or national calamity involving the United
States of America, (iv) any limitation (whether or not mandatory) by any
governmental authority on, or any other event which materially affects the
extension of credit by banks or other financial institutions, (v) any material
adverse change in the Company's business, condition (financial or otherwise) or
prospects or (vi) a 15% or more decline in the Dow Jones Industrial average or
the Standard and Poor's Index of 400 Industrial Companies, in each case from the
date a Notice of Demand is made.
"Notes" has the meaning ascribed to it in the Note Purchase Agreement.
4
"Notice of Demand" means a request by Investor or Fidelity, as the
case may be, pursuant to Section 2.2 that the Company effect the registration
under the Securities Act of all or part of the Registrable Securities held by it
and its Affiliates and, at its option, any direct or indirect transferee of
Registrable Securities held by it, and any other Holder that requests to have
its Registrable Securities included in such registration pursuant to Section
2.2(d). A Notice of Demand shall specify (i) the type and amount of Registrable
Securities proposed to be registered, (ii) the intended method or methods and
plan of disposition thereof and (iii) whether or not such requested registration
is to be an underwritten offering.
"Participating Holders" means, with respect to any registration of
Registrable Securities by the Company pursuant to this Agreement, the Requesting
Holder and any other Holders that are entitled to participate in, and are
participating in or seeking to participate in, such registration.
"Person" means a natural person, a corporation, a partnership, a
trust, a joint venture, any regulatory authority or any other entity or
organization.
"Piggyback Registration" means any registration of Registrable Equity
Securities under the Securities Act effected in accordance with Section 2.3.
"Piggyback Registration Notice" has the meaning ascribed to it in
Section 2.3(a).
"Plan" has the meaning ascribed to it in the preamble.
"Registrable Debt Securities" means, collectively, the Initial
Registrable Debt Securities and the Secondary Registrable Debt Securities. As
to any particular Registrable Debt Securities, once issued such securities shall
cease to be Registrable Debt Securities when (a) such securities shall have been
distributed pursuant to the Plan without registration or qualification under the
Securities Act or any similar state law then in force pursuant to Section 1145
of the Bankruptcy Code, (b) a registration statement with respect to the sale of
such securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with the plan of
distribution set forth in such registration statement, (c) such securities shall
have been distributed in accordance with Rule 144 or (d) such securities shall
have been otherwise transferred, new certificates therefor not bearing a legend
restricting further transfer shall have been delivered in exchange therefor by
the Company and subsequent disposition of such securities shall not require
registration or qualification under the Securities Act or any similar state law
then in force.
5
"Registrable Equity Securities" means the equity securities acquired
by Investor, Lehman, any Fidelity Fund or any of their respective assignees or
Affiliates pursuant to the Plan or held by any transferee (direct or indirect)
of such Persons, including, without limitation, (a) any shares of Class A Common
or Class B Common issued or issuable on the Effective Date, (b) any Warrant, (c)
any shares of Class B Common issued or issuable upon the exercise of a Warrant
and (d) any securities issued or issuable with respect to any such Class A
Common, Class B Common or Warrants by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise. As to any particular Registrable Equity
Securities, once issued such securities shall cease to be Registrable Equity
Securities when (i) such securities shall have been distributed pursuant to the
Plan without registration or qualification under the Securities Act or any
similar state law then in force pursuant to Section 1145 of the Bankruptcy Code,
(ii) a registration statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall have
been disposed of in accordance with the plan of distribution set forth in such
registration statement, (iii) such securities shall have been distributed in
accordance with Rule 144 or (iv) such securities shall have been otherwise
transferred, new certificates therefor not bearing a legend restricting further
transfer shall have been delivered in exchange therefor by the Company and
subsequent disposition of such shares shall not require registration or
qualification under the Securities Act or any similar state law then in force.
"Registrable Securities" means the Registrable Debt Securities and the
Registrable Equity Securities.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
(a) all registration, filing, securities exchange listing, rating agency and
National Association of Securities Dealers fees, (b) all registration, filing,
qualification and other fees and expenses of complying with securities or blue
sky laws of all jurisdictions in which the securities are to be registered and
any legal fees and expenses incurred in connection with the blue sky
qualifications of the Registrable Securities and the determination of their
eligibility for investment under the laws of all such jurisdictions, (c) all
word processing, duplicating, printing, messenger and delivery expenses, (d) the
fees and disbursements of counsel for the Company and of its independent public
accountants, including, without limitation, the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, (e) the reasonable fees and disbursements incurred by the Holders of
the Registrable Securities being registered (including, without limitation, the
6
reasonable fees and disbursements for one counsel or firm of counsel selected by
the Requisite Holders of Registrable Debt Securities and Registrable Equity
Securities acting together), (f) premiums and other costs of policies of
insurance against liabilities arising out of the public offering of the
Registrable Securities being registered to the extent the Company elects to
obtain such insurance, (g) any fees and disbursements of underwriters
customarily paid by issuers or sellers of securities (but excluding underwriting
discounts and commissions and transfer taxes, if any, relating to the
Registrable Securities being registered) and (h) fees and expenses of other
Persons retained or employed by the Company.
"Requesting Holder" means the party providing a Notice of Demand to
the Company pursuant to Section 2.2(a).
"Requisite Holders" means (a) with respect to any Registrable Equity
Securities, any Holder or Holders of a majority in interest of the Registrable
Equity Securities included or to be included in a registration or other relevant
action, as the case may be, and (b) with respect to any Registrable Debt
Securities, any Holder or Holders of a majority of the aggregate principal
amount of the Registrable Debt Securities included or to be included in a
registration or other relevant action, as the case may be.
"Restated Certificate of Incorporation" means the restated Certificate
of Incorporation adopted by the Company pursuant to the Plan in accordance with
Section 303 of the General Corporation Law of the State of Delaware.
"Rule 144" means Rule 144 promulgated by the SEC under the Securities
Act, and any successor provision thereto.
"Rule 144A" means Rule 144A promulgated by the SEC under the
Securities Act, and any successor provision thereto.
"SEC" means the United States Securities and Exchange Commission, or
any successor governmental agency or authority thereto.
"Secondary Effective Date" means the date upon which the Secondary
Registrable Debt Securities are issued by the Company.
"Secondary Registrable Debt Securities" means the Notes, if any,
issued subsequent to the date of this Agreement and held by any Fidelity Fund,
Lehman or any of their respective assignees or Affiliates or any transferee
(direct or indirect) of such Persons.
7
"Secondary Shelf Registration Statement" has the meaning ascribed to
it in Section 2.1(b).
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor statute, and the rules and regulations
promulgated thereunder.
"Shelf Period" has the meaning ascribed to it in Section 2.1(c).
"Shelf Registration Statements" shall mean, collectively, the Initial
Shelf Registration Statement and the Secondary Shelf Registration Statement, and
in singular form shall mean either the Initial Shelf Registration Statement or
the Secondary Shelf Registration Statement.
"Successor" means, with respect to any Person, a successor to such
Person by merger, consolidation, liquidation or other similar transaction.
"Suspension Notice" has the meaning ascribed to it in Section 2.5(h).
"Suspension Period" has the meaning ascribed to it in Section 2.5(h).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor statute, and the rules and
regulations promulgated thereunder.
"Warrant" means a Warrant to Purchase Class B Common Stock of America
West Airlines, Inc. issued pursuant to the Warrant Agreement dated as of even
date herewith between the Company and First Interstate Bank of California, as
Warrant Agent, and any warrant issued in substitution or exchange therefor.
2. Registration under the Securities Act.
2.1 Shelf Registration Statements.
(a) Filing of Initial Shelf Registration Statement. If, as of the
Initial Effective Date, (i) the effectiveness of the shelf registration
statement covering all of the Registrable Equity Securities and the Initial
Registrable Debt Securities (the "Initial Shelf Registration Statement") has
been suspended or the Initial Shelf Registration Statement is otherwise not
effective or (ii) the securities covered under the Initial Shelf Registration
Statement shall not qualify under all blue sky or other securities laws, the
Company shall use Commercially Reasonable Efforts to cause such Initial Shelf
Registration Statement to be effective as soon as practicable and to qualify
8
such securities under all blue sky and other securities laws as soon as
practicable.
(b) Filing of Secondary Shelf Registration Statement. If, as of the
Secondary Effective Date, (i) the effectiveness of the shelf registration
statement covering all of the Secondary Registrable Debt Securities (the
"Secondary Shelf Registration Statement") has been suspended or the Secondary
Shelf Registration Statement is otherwise not effective or (ii) the securities
covered under the Secondary Shelf Registration Statement shall not qualify under
all blue sky or other securities laws, the Company shall use Commercially
Reasonable Efforts to cause such Secondary Shelf Registration Statement to be
effective as soon as practicable and to qualify such securities under all blue
sky and other securities laws as soon as practicable.
(c) Continuous Effectiveness of Shelf Registration Statements. Once
a Shelf Registration Statement is effective pursuant to Section 2.1(a) or
2.1(b), the Company shall use Commercially Reasonable Efforts to cause such
Shelf Registration Statement to remain continuously effective until the earlier
of (i) the third (3rd) anniversary of (A) in the case of the Initial Shelf
Registration Statement, the Initial Effective Date or (B) in the case of the
Secondary Shelf Registration Statement, the Secondary Effective Date and (ii) in
either case, the date on which all of the Registrable Securities covered by such
Shelf Registration Statement have been sold, but in no event prior to the
expiration of the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder (such period with respect to the Initial
Shelf Registration Statement or the Secondary Shelf Registration being defined
as the "Shelf Period" with respect to such Shelf Registration Statement);
provided, however, that with respect to each such Shelf Registration Statement
(x) the Company may (no more than twice during any twelve (12) month period and
for a period not to exceed forty-five (45) days on any one occasion, and not in
any event to exceed sixty (60) days in the aggregate) suspend use of such Shelf
Registration Statement at any time if the continued effectiveness thereof would
require the Company to disclose a material financing, acquisition or other
corporate transaction, which disclosure the Board of Directors of the Company
shall have determined in good faith is not in the best interests of the Company
and its stockholders and (y) the Company may suspend use of each such Shelf
Registration Statement during any period (not to exceed forty-five (45) days in
the aggregate) if each of the Company and the Requisite Holders of each of the
Registrable Equity Securities, if any, and the Registrable Debt Securities
covered by such Shelf Registration Statement consents in writing to such
suspension for such period, provided, further, that Investor and any of its
Affiliates (other than Mesa) shall not participate in any such consent and that
any Registrable Equity
9
Securities or Registrable Debt Securities held by such parties shall not be
taken into account for the purpose of such consent.
(d) Underwritten Offering. If the Requisite Holders of each of the
Registrable Equity Securities and the Registrable Debt Securities covered by the
Initial Shelf Registration Statement and the Secondary Shelf Registration
Statement, if any, acting together, so elect, the offering of Registrable
Securities pursuant to such Shelf Registration Statements shall be in the form
of an underwritten offering, with such book-running managing underwriter or
underwriters as they shall jointly select with the approval of the Company, such
approval not to be unreasonably withheld.
2.2 Demand Registration.
(a) Registration on Request. Except as provided in subsection (b)
below,
(i) at any time after the Shelf Period applicable to the Initial
Shelf Registration Statement, Investor may provide the Company with a
Notice of Demand (with a copy to GPA); and
(ii) if at any time during the Shelf Period the Initial Shelf
Registration Statement is not effective during a continuous period of
ten (10) days for any reason (other than under the circumstances and
during the periods permitted by the first proviso in Section 2.1(c)),
each of Investor and Fidelity may, at any time prior to the renewed
effectiveness of such Initial Shelf Registration Statement or any
replacement Shelf Registration Statement for such Initial Shelf
Registration Statement, provide the Company with a Notice of Demand
(with a copy to GPA) (which, in the case of Investor, shall be in
addition to its right to provide the Company with a Notice of Demand
pursuant to clause (i) above).
Upon receipt of a Notice of Demand, the Company shall use Commercially
Reasonable Efforts to effect at the earliest practicable date the registration
under the Securities Act of the Registrable Securities that the Company has been
so requested to register (whether pursuant to the Notice of Demand or pursuant
to notice provided under Section 2.2(d)), for disposition in accordance with the
intended method or methods of disposition specified in the Notice of Demand or
such other notice.
(b) Limitations on Demand Registration. The Company shall not be
obligated to take any action to effect any registration pursuant to this Section
2.2: (i) after the Company has, in accordance with the provisions of Section
2.5(c),
10
effected (A) one (1) registration of Registrable Securities with respect to a
registration requested pursuant to Section 2.2(a)(i) and (B) two (2)
registrations of Registrable Securities with respect to a registration requested
pursuant to Section 2.2(a)(ii); and (ii) in any period during which the Company
has suspended registration pursuant to the first proviso in Section 2.1(c).
(c) GPA Demand Registration. If GPA exercises its right to a demand
registration (the "GPA Demand") pursuant to Section 2.2 of the GPA Registration
Rights Agreement, then the Company shall provide Investor and each of its
Affiliates which have been designated by Investor by notice to the Company to be
given notice of the GPA Demand (pursuant to the proviso to Section 11 or
otherwise), with a copy of such demand within five (5) Business Days of its
receipt thereof, and Investor may (but shall not be obligated to) provide the
Company with a Notice of Demand pursuant to Section 2.2(a) within twenty-one
(21) days of Investor's receipt of a copy of the GPA Demand and thereby void the
GPA Demand and obligate the Company to effect a registration of Registrable
Securities pursuant to Section 2.2(a)
(d) Notice to certain non-Requesting Holders. Upon receipt of any
Notice of Demand from a Requesting Holder or any GPA Demand, the Company will
give prompt (but in any event within fifteen (15) days after such receipt)
notice to all Holders of Registrable Securities of such Notice of Demand or GPA
Demand and of such Holders' rights under this Section 2.2. Upon the request of
any such Holder made within fifteen (15) days after the receipt by such Holder
of any such notice (which request shall specify the Registrable Securities
intended to be disposed of by such Holder and the intended method or methods of
disposition thereof), the Company will use Commercially Reasonable Efforts to
effect the registration of all Registrable Securities which the Company has been
so requested to register pursuant to the Notice of Demand or GPA Demand. The
participation of Investor, any Fidelity Fund, Lehman or any of their respective
Affiliates or transferees, direct or indirect, in a GPA Demand pursuant to this
Section 2.2(d) shall (i) be subject to the provisions of Section 2.3(a) and
2.3(c) hereof and (ii) with respect to Investor, or Fidelity shall not be
considered a Notice of Demand pursuant to Section 2.2(a) and shall have no
effect on such parties' right to provide the Company with a Notice of Demand
pursuant thereto.
(e) Priority in Demand Registrations. If (i) a registration pursuant
to this Section 2.2 involves an underwritten offering of the securities being
registered to be distributed (on a firm commitment basis) by or through one or
more underwriters of recognized standing under underwriting terms appropriate
for such a transaction and (ii) the managing underwriter of such underwritten
offering shall inform the Company and the Requesting Holder by letter of its
belief that
11
the amount of securities requested to be included in such registration exceeds
the amount which can be sold in (or during the time of) such offering within a
price range acceptable to the Requesting Holder, then the Company will include
in such registration such amount of securities which the Company is so advised
can be sold in (or during the time of) such offering as follows: first, such
Registrable Securities requested to be included in such registration by each of
Investor, any Fidelity Fund, Lehman or their respective Affiliates pro rata on
the basis of the amount of such securities so proposed to be sold and so
requested to be included by such parties; second, such Registrable Securities
requested to be included in such registration by the direct or indirect
transferees of Registrable Securities held by Investor, any Fidelity Fund,
Lehman, or their respective Affiliates pro rata on the basis of the amount of
such securities so proposed to be sold and so requested to be included by such
parties; third, such securities requested to be included in such registration by
GPA or any of its Affiliates, pursuant to the GPA Registration Rights Agreement,
pro rata on the basis of the amount of such securities so proposed to be sold
and so included by such parties; fourth, such securities requested to be
included in such registration by the direct or indirect transferees of
securities held by GPA or any of its Affiliates, pursuant to the GPA
Registration Rights Agreement, pro rata on the basis of the amount of such
securities so proposed to be sold and so included by such parties, and fifth,
such Registrable Securities requested to be included in such registration by all
other Holders pro rata on the basis of the amount of such securities so proposed
to be sold and so requested to be included by such parties.
2.3 Piggyback Registration.
(a) Right to Include Registrable Securities. If the Company at any
time proposes to register any of its equity securities under the Securities Act
(other than by a registration on Form S-4 or Form S-8 or any successor or
similar form then in effect and other than pursuant to Section 2.1 or 2.2, with
the exception of a registration pursuant to a GPA Demand) in a form and in a
manner that would permit registration of the Registrable Equity Securities,
whether or not for sale for its own account, it will give prompt (but in no
event less than thirty (30) days prior to the proposed date of filing the
registration statement relating to such registration) notice to all Holders of
Registrable Equity Securities of the Company's intention to do so and of such
Holders' rights under this Section 2.3. Upon the request of any such Holder
made within twenty (20) days after the receipt by such Holder of any such notice
(which request shall specify the Registrable Equity Securities intended to be
disposed of by such Holder and the intended method or methods of disposition
thereof) (the "Piggyback Registration Notice"), the Company will use
Commercially Reasonable Efforts to effect the
12
registration under the Securities Act of all Registrable Equity Securities which
the Company has been so requested to register by the Holders thereof, to the
extent required to permit the disposition (in accordance with the intended
method or methods thereof as aforesaid) of the Registrable Equity Securities so
to be registered, provided that if, at any time after giving notice of its
intention to register any equity securities and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay registration
of such equity securities, the Company may, at its election, give notice of such
determination to each such Holder and, thereupon, (i) in the case of a
determination not to register, shall be relieved of its obligation to register
any Registrable Equity Securities in connection with such registration (but not
from its obligation to pay all Registration Expenses in connection therewith as
provided in Section 2.5(b)), without prejudice, however, to the right of
Investor to request that such registration be effected as a registration under
Section 2.2, and (ii) in the case of a determination to delay registering, shall
be permitted to delay registering any Registrable Equity Securities for the same
period as the delay in registering such other equity securities. No
registration effected under this Section 2.3 shall be deemed to have been
effected pursuant to Section 2.1 or 2.2 (except for any right to demand
registration which may be exercised pursuant to the last clause of subsection
(i) of the preceding sentence) or shall relieve the Company of its obligation to
effect any registration under such Sections.
(b) Priority in Piggyback Registrations. If (i) a registration
pursuant to this Section 2.3 (other than a registration made pursuant to a GPA
Demand) involves an underwritten offering of the securities being registered,
whether or not for sale for the account of the Company, to be distributed (on a
firm commitment basis) by or through one or more underwriters of recognized
standing under underwriting terms appropriate for such a transaction and (ii)
the managing underwriter of such underwritten offering shall inform the Company
and the Holders requesting such registration by letter of its belief that the
amount of securities requested to be included in such registration exceeds the
amount which can be sold in (or during the time of) such offering within a price
range acceptable to the Company, then the Company will include in such
registration such amount of securities which the Company is so advised can be
sold in (or during the time of) such offering as follows: first, all securities
proposed by the Company to be sold for its own account; second, such Registrable
Equity Securities requested to be included in such registration by Investor,
Lehman, any Fidelity Fund or any of their respective Affiliates pro rata on the
basis of the amount of such securities so proposed to be sold and so requested
to be included by such parties; third, such Registrable Equity Securities
requested to
13
be included in such registration by the direct or indirect transferees of
Registrable Equity Securities held by Investor, Lehman, any Fidelity Fund or any
of their respective Affiliates pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included by such
parties; fourth, such securities requested to be included in such registration
by GPA or any of its Affiliates pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included by such
parties; fifth, such securities requested to be included in such registration by
the direct and indirect transferees of such securities held by GPA or any of its
Affiliates pro rata on the basis of the amount of such securities so proposed to
be sold and so requested to be included by such parties; and sixth, all other
securities of the Company requested to be included in such registration pro rata
on the basis of the amount of such securities so proposed to be sold and so
requested to be included.
(c) Priority in Piggyback Registrations Pursuant to a GPA Demand. If
(i) a registration pursuant to this Section 2.3 is made pursuant to a GPA Demand
and involves an underwritten offering of the securities being registered to be
distributed (on a firm commitment basis) by or through one or more underwriters
of recognized standing under underwriting terms appropriate for such a
transaction and (ii) the managing underwriter of such underwritten offering
shall inform the Company and the Holders requesting such registration by letter
of its belief that the amount of securities requested to be included in such
registration exceeds the amount which can be sold in (or during the time of)
such offering within a price range acceptable to the Company, then the Company
will include in such registration such amount of securities which the Company is
so advised can be sold in (or during the time of) such offering as follows:
first, such securities requested to be included in such registration by GPA or
any of its Affiliates pro rata on the basis of the amount of such securities so
proposed to be sold and so requested to be included by such parties; second,
such securities requested to be included in such registration by the direct and
indirect transferees of such securities held by GPA or any of its Affiliates pro
rata on the basis of the amount of such securities so proposed to be sold and so
requested to be included by such parties; third, such Registrable Equity
Securities requested to be included in such registration by Investor, Lehman,
any Fidelity Fund or any of their respective Affiliates pro rata on the basis of
the amount of such securities so proposed to be sold and so requested to be
included by such parties; fourth, such Registrable Equity Securities requested
to be included in such registration by the direct or indirect transferees of
Registrable Equity Securities held by Investor, Lehman, any Fidelity Fund or any
of their respective Affiliates pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included by such
parties; and fifth, all other securities
14
of the Company requested to be included in such registration pro rata on the
basis of the amount of such securities so proposed to be sold and so requested
to be included.
2.4 Trust Indenture Act Qualification; Rating. At or prior to the
date the SEC declares the Initial Shelf Registration Statement to be effective,
the Company shall qualify the Indenture under the Trust Indenture Act, and shall
use Commercially Reasonable Efforts to effect such registration to permit the
sale of the Notes thereunder in accordance with the intended method or methods
of disposition thereof. If notified by a nationally recognized rating agency
that the Notes are being rated, the Company shall cooperate in providing
information and making a presentation to such agency in connection therewith.
2.5 Registration Terms and Procedures.
(a) Registration Statement Form. Registrations under Section 2.2
shall be on such appropriate registration forms of the SEC (i) as shall be
acceptable to the Requesting Holder (such acceptance not to be unreasonably
withheld) and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods of disposition.
The Company agrees to include in any such registration statement all information
that any Participating Holder shall reasonably request (to the extent such
information relates to such Participating Holder).
(b) Registration Expenses. Subject to Section 2.5(f), the Company
will pay all Registration Expenses incurred in connection with a registration to
be effected (whether or not effected or deemed effected pursuant to subsection
(c) below) pursuant to Sections 2.1, 2.2 or 2.3.
(c) Effectiveness of Demand Registration. A registration will not be
deemed to have been effected under Section 2.2 unless the registration statement
with respect thereto has been declared effective by the SEC and, subject to the
first proviso in Section 2.1(c) hereof and to Section 2.5(g)(vii) hereof,
remains effective for the earlier of six (6) months (subject to extension as
contemplated by the last sentence of Section 2.5(h)(ii)) or the distribution of
the securities covered by such registration statement; provided, however, that
if (i) after such registration statement has been declared effective, the
marketing of Registrable Securities offered pursuant to such registration
statement is materially disrupted or adversely affected as a result of any stop
order, injunction or other order or requirement of the SEC or any other
governmental agency or court (for reasons other than a misrepresentation or
omission by the Requesting Holder or any Participating Holder) or (ii) the
conditions to closing specified in the purchase agreement or underwriting
agreement entered into
15
in connection with such registration have not been satisfied (for reasons other
than a wrongful or bad faith act, omission or misrepresentation by the
Requesting Holder or any Participating Holder), such registration statement will
be deemed not to have become effective. If a registration pursuant to Section
2.2 is deemed not to have been effected hereunder, then the Company shall
continue to be obligated to effect a registration pursuant to such Section.
(d) Selection of Underwriter. If, in connection with a registration
effected pursuant to Section 2.2, the Requesting Holder so elects, the offering
of Registrable Securities pursuant to such Section shall be in the form of an
underwritten offering. If the Requesting Holder so elects, it shall select one
or more nationally recognized firms of investment bankers to act as the book-
running managing underwriter or underwriters in connection with such offering,
provided that such selection shall be subject to the consent of the Company,
which consent shall not be unreasonably withheld.
(e) Registration of Securities. Participating Holders may seek to
register different types of Registrable Securities and/or different classes of
the same type of Registrable Securities simultaneously and the Company shall use
its, and in the case of an underwritten offering, shall cause the managing
underwriter or underwriters to use Commercially Reasonable Efforts to effect
such registration and sale in accordance with the intended method or methods of
disposition specified by such Holders.
(f) Withdrawal. Any Holder participating in a registration pursuant
to this Agreement shall be permitted to withdraw all or part of its Registrable
Securities from such registration at any time prior to the effective date of the
registration statement covering such securities; provided that, in the event of
a withdrawal from a registration effected pursuant to Section 2.2, such
registration shall be deemed to have been effected for purposes of Section
2.5(c) unless (i) the Requesting Holder and any Participating Holders shall have
paid or reimbursed the Company for fifty percent (50)% of the reasonable out-of-
pocket fees and expenses paid by the Company hereunder or (ii) the Requesting
Holder elects to terminate such registration due to the occurrence of a Material
Adverse Change; provided, however, that during the term of this Agreement only
one such withdrawal shall be permitted pursuant to the preceding proviso.
(g) Registration Procedures. In connection with the Company's
obligations to register Registrable Securities pursuant to this Agreement, the
Company will use Commercially Reasonable Efforts to effect such registration so
as to permit the sale of any Registrable Securities included in such
registration in
16
accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company will as expeditiously as possible:
(i) prepare and (as soon thereafter as practicable) file with the
SEC the requisite registration statement containing all information
required thereby to effect such registration and thereafter use
Commercially Reasonable Efforts to cause such registration statement to
become and remain effective in accordance with the terms of this Agreement,
provided that as far in advance as practicable before filing such
registration statement or any amendment, supplement or exhibit thereto
(but, with respect to the filing of such registration statement, in no
event later than seven (7) days prior to such filing), the Company will
furnish to the Participating Holders or their counsel copies of reasonably
complete drafts of all such documents proposed to be filed (excluding
exhibits, which shall be made available upon request by any Participating
Holder), and any such Holder shall have the opportunity to object to any
information contained therein and the Company will make the corrections
reasonably requested by such Holder with respect to information relating to
such Holder or the plan of distribution of the Registrable Securities prior
to filing any such registration statement, amendment, supplement or
exhibit;
(ii) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith (A) as reasonably requested by any Participating Holder to which
such registration statement relates (but only to the extent such request
relates to information with respect to such Holder) and (B) as may be
necessary to keep such registration statement effective for the applicable
Shelf Period in the case of a Shelf Registration Statement or six (6)
months in the case of a registration effected pursuant to Section 2.2 or
2.3 (or such shorter period as shall be necessary to complete the
distribution of the securities covered thereby, but not before the
expiration of the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder), and comply with the provisions of
the Securities Act with respect to the sale or other disposition of all
securities covered by such registration statement during such period in
accordance with the intended method or methods of disposition by the seller
or sellers thereof set forth in such registration statement;
(iii) furnish to each Holder covered by, and each underwriter or
agent participating in the disposition of securities under, such
registration statement such number of conformed copies of such registration
statement and of each
17
such amendment and supplement thereto (in each case excluding all exhibits
and documents incorporated by reference, which exhibits and documents shall
be furnished to any such Person upon request), such number of copies of the
prospectus (which in the case of Shelf Registration Statements, shall be
substantially the same prospectus for both such Shelf Registration
Statements) contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act relating to such Holder's
Registrable Securities, in conformity with the requirements of the
Securities Act, and such other documents as such Holder, underwriter or
agent may reasonably request to facilitate the disposition of such
Registrable Securities;
(iv) use Commercially Reasonable Efforts to register or qualify
all Registrable Securities and other securities covered by such
registration statement under (A) with respect to the Shelf Registration
Statements, all blue sky and other securities laws and (B) with respect to
a registration effected pursuant to Section 2.2, all applicable blue sky
and other securities laws, and to keep such registration or qualification
in effect for so long as such registration statement remains in effect, and
take any other action which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition of the securities owned by
such Holder, except that the Company shall not for any such purpose be
required to (a) qualify generally to do business as a foreign corporation
in any jurisdiction wherein it would not but for the requirements of this
clause (iv) be obligated to be so qualified, (b) subject itself to taxation
in any such jurisdiction or (c) consent to general service of process in
any jurisdiction;
(v) use Commercially Reasonable Efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities applicable to
the Company as may be reasonably necessary to enable the seller or sellers
thereof (or underwriter or agent, if any) to consummate the disposition of
such Registrable Securities in accordance with the plan of distribution set
forth in such registration statement;
(vi) furnish to each Holder of Registrable Equity Securities or
Registrable Debt Securities covered by such registration statement a signed
counterpart, addressed to such Holder (and underwriter or agent, if any)
of:
(A) an opinion of counsel to the Company, dated the effective
date of such registration statement (and, if such registration
includes an underwritten public
18
offering, dated the date of the closing under the underwriting
agreement), and
(B) unless otherwise precluded under applicable accounting
rules, a "comfort" letter, dated the effective date of such
registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement), signed by the independent public accountants
who have certified the Company's financial statements included in such
registration statement,
in each case, reasonably satisfactory in form and substance to such Holder
(and underwriter or agent and their respective counsel) and covering
substantially the same matters with respect to such registration statement
(and the prospectus included therein) and, in the case of the accountants'
letter, with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's counsel and
in accountants' letters delivered to the underwriter or agent in
underwritten public offerings of securities;
(vii) promptly notify each Holder and any underwriter or agent
participating in the disposition of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery that, or
upon the happening of any event known to the Company as a result of which,
the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which
they were made, and promptly prepare and furnish to such Holder (or
underwriter or agent, if any) a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which
they were made;
(viii) otherwise use Commercially Reasonable Efforts to comply
with all applicable rules and regulations of the SEC, and make available to
its security holders, as soon as reasonably practicable (but not more than
fifteen (15) months) after the effective date of the registration
statement, an earnings statement satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158
19
promulgated thereunder, and furnish to each Holder covered by such
registration statement or any participating underwriter or agent at least
five (5) business days prior to the filing a copy of any amendment or
supplement to such registration statement or prospectus;
(ix) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement;
(x) use Commercially Reasonable Efforts to (A) list, on or prior
to the effective date of such registration statement, all Registrable
Equity Securities covered by such registration statement on any securities
exchange on which any of the Registrable Equity Securities is then listed,
if any or (B) have authorized for quotation and/or listing, as applicable,
on the National Association of Securities Dealers, Inc. Automated Quotation
("NASDAQ") of the National Market System of NASDAQ if the Registrable
Equity Securities so qualify; in each case subject to the applicable
listing requirements of the respective securities exchange or NASDAQ;
(xi) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the National Association of Securities Dealers;
(xii) use Commercially Reasonable Efforts to prevent the issuance
by the SEC or any other governmental agency or court of a stop order,
injunction or other order suspending the effectiveness of such registration
statement and, if such an order is issued, use Commercially Reasonable
Efforts to cause such order to be lifted as promptly as practicable;
(xiii) take such other actions as the Requisite Holders of such
Registrable Securities shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(xiv) promptly notify each seller and the underwriter or agent, if
any:
(A) when such registration statement or any prospectus used in
connection therewith, or any amendment or supplement thereto, has been
filed and, with respect to such registration statement or any
20
post-effective amendment thereto, when the same has become effective;
(B) of any written comments from the SEC with respect to any
filing referred to in clause (A) and of any written request by the SEC
for amendments or supplements to such registration statement or
prospectus;
(C) of the notification to the Company by the SEC of its
initiation of any proceeding with respect to, or of the issuance by
the SEC of, any stop order suspending the effectiveness of such
registration statement; and
(D) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the applicable securities or blue sky laws
of any jurisdiction;
(xv) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the distribution of such Registrable
Securities to facilitate the timely preparation and delivery of
certificates (which shall not bear any restrictive legends, other than as
required by applicable law, the Investment Agreement or the Note Purchase
Agreement or the agreement pursuant to which the Secondary Registrable Debt
Securities are acquired on an initial issue by any Fidelity Fund or Lehman)
representing securities sold under a registration statement hereunder, and
enable such securities to be in such denominations and registered in such
names as such seller, underwriter or agent may request and keep available
and make available to the Company's transfer agent, prior to the
effectiveness of such registration statement, an adequate supply of such
certificates;
(xvi) not later than the effective date of such registration
statement, provide a CUSIP number for all Registrable Securities covered by
a registration statement hereunder;
(xvii) incorporate in the registration statement or any amendment,
supplement or post-effective amendment thereto such information as each
Holder, the underwriter or agent (if any) or their respective counsel may
reasonably request to be included therein with respect to any Registrable
Securities being sold by such Holder to such underwriter or agent, the
purchase price being paid therefor by such underwriter or agent and any
other terms of the offering of such Registrable Securities;
21
(xviii) during any period when a prospectus is required to be
delivered under the Securities Act, make periodic filings with the SEC
pursuant to and containing the information required by the Exchange Act
(whether or not the Company is required to make such filings pursuant to
such Act); and
(xix) in connection with an underwritten offering, participate, to
the extent reasonably requested by the Requisite Holders of the securities
included in the offering or the managing underwriter for the offering, in
customary efforts to sell the securities under the offering.
(h) Agreements of Certain Holders. (i) Each Holder of Registrable
Securities as to which any registration is being effected shall furnish to the
Company such information regarding such Holder, the Registrable Securities held
by such Holder and the intended plan of distribution of such securities as the
Company may from time to time reasonably request in writing in connection with
such registration. If any registration statement refers to Investor, Lehman,
any Fidelity Fund or any of their respective Affiliates by name or otherwise as
the holder of any securities of the Company, then such Holder shall have the
right to require that such reference be in a form reasonably satisfactory to
such Holder or in the event that such reference to such Holder by name or
otherwise is not required by the Securities Act or any similar federal or state
blue sky statute and the rules and regulations thereunder then in force, the
deletion of the reference to such Holder.
(ii) Each Holder of Registrable Securities as to which any
registration is being effected agrees, by acquisition of such Registrable
Securities, that upon receipt of any notice (a "Suspension Notice") from the
Company of the happening of any event of the kind described in clause (vii) of
Section 2.5(g), such Holder will forthwith discontinue such Holder's disposition
of Registrable Securities pursuant to the registration statement relating to
such Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by clause (vii) of Section
2.5(g) (the period from the date on which such Holder receives a Suspension
Notice to the date on which such Holder receives copies of the supplemental or
amended prospectus being herein called the "Suspension Period"). The Company
shall take such actions as are necessary to end the Suspension Period as
promptly as practicable. In the event the Company shall give any such notice,
the periods referred to in Section 2.5(c) and clause (ii) of Section 2.5(g)
shall be extended by a number of days equal to the number of days of the
Suspension Period.
22
2.6 Underwritten Offerings.
(a) Underwritten Offerings in Connection with a Shelf or a Demand
Registration. If requested by the underwriters for any underwritten offering in
connection with a registration pursuant to Section 2.1 or 2.2, the Company will
enter into an underwriting agreement with such underwriters for such offering,
such agreement (i) to be satisfactory in substance and form to (A) the Company
and (B) to the Requisite Holders of each of the Registrable Equity Securities
and the Registrable Debt Securities included in such offering, acting together,
(provided that the Company shall not be required to have in effect more than one
underwriting agreement at any one time in connection with the Shelf Registration
Statements) and (ii) to contain such representations and warranties by the
Company and such Holders and such other terms as are generally prevailing in
agreements of such type, including, without limitation, indemnities to the
effect and to the extent provided in Section 2.8. Each of Investor, Lehman and
each Fidelity Fund (so long as it or any of its Affiliates holds Registrable
Securities to be included in such registration) shall be a party to such
underwriting agreement and may, at its option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for its benefit and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to its obligations thereunder.
(b) Underwritten Offerings in Connection with Piggyback
Registrations. If the Company at any time proposes to register any of its
equity securities under the Securities Act as contemplated by Section 2.3 and
such securities are to be distributed by or through one or more underwriters,
the Company will, if requested by any Participating Holder and subject to
Sections 2.3(b) and 2.3(c), arrange for such underwriters to include all of the
Registrable Equity Securities to be offered and sold by such Holder or Holders
among the securities to be distributed by such underwriters. The Holders of
Registrable Equity Securities to be distributed by such underwriters shall be
parties to the underwriting agreement between the Company and such underwriters,
provided that such agreement is reasonably satisfactory in substance and form to
the Company and the Requisite Holders of each of the Registrable Equity
Securities included in such offering, and may, at their option, require that any
or all of the representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall also be
made to and for the benefit of such Holders and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
Holders thereunder.
23
2.7 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the Holders of Registrable
Securities to be registered under such registration statement, their
underwriters or agents, if any, and their respective counsel and accountants
reasonable access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of such Holders' and such underwriters' or agents' respective counsel,
to conduct a reasonable investigation within the meaning of the Securities Act.
2.8 Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless, to the full extent permitted by law, each Holder
participating in an offering of securities provided for as described herein
(including, without limitation, under a Shelf Registration Statement or any
replacement Shelf Registration Statement), its directors, officers,
shareholders, employees, investment advisers, agents and Affiliates, either
direct or indirect (and each such Affiliate's directors, officers, shareholders,
employees, investment advisers and agents), and each other Person, if any, who
controls such Persons within the meaning of the Securities Act (each such
Person, an "Indemnified Party"), from and against any losses, claims, damages,
liabilities or expenses, joint or several (each a "Loss" and collectively,
"Losses"), to which such Indemnified Party may become subject under the
Securities Act or otherwise, to the extent that such Losses (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act (including all documents
incorporated therein by reference), any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or supplement thereto,
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and the Company will reimburse such Indemnified Party for any legal or any other
expenses reasonably incurred by it in connection with investigating or defending
against any such Loss, action or proceeding; provided that in any such case the
Company shall not be liable to any particular Indemnified Party to the extent
that such Loss (or action or proceeding in respect thereof) arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
24
reliance upon and in conformity with written information furnished to the
Company by such Indemnified Party specifically for inclusion therein; and
provided, further, that the Company shall not be liable in any such case to the
extent it is finally determined by a court of competent jurisdiction that any
such Loss (or action or proceeding in respect thereof) arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made
(i) in any such preliminary prospectus, if (A) it was the
responsibility of such Indemnified Party to provide the Person asserting
such Loss with a current copy of the prospectus and such Indemnified Party
failed to deliver or cause to be delivered a copy of the prospectus to such
Person after the Company had furnished such Indemnified Party with a
sufficient number of copies of the same prior to the sale of Registrable
Securities to the Person asserting such Loss and (B) the prospectus
corrected such untrue statement or omission; or
(ii) in such prospectus, if such untrue statement or omission is
corrected in an amendment or supplement to such prospectus and such
amendment or supplement has been delivered to the Indemnified Party prior
to the sale of Registrable Securities to the Person asserting such Loss and
the Indemnified Party thereafter fails to deliver the prospectus as so
amended or supplemented prior to or concurrently with such sale after the
Company had furnished such Indemnified Party (in accordance with the notice
provisions contained in Section 10 for Persons who are parties to this
Agreement) with a sufficient number of copies of the same for delivery to
purchasers of securities.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall survive
the transfer of such securities by such Indemnified Party. The Company shall
also indemnify each other Person who participates (including as an underwriter)
in the offering or sale of Registrable Securities hereunder, their officers and
directors and each other Person, if any, who controls any such participating
Person within the meaning of the Securities Act to the same extent as provided
above with respect to Indemnified Parties.
(b) Indemnification by the Sellers. Each Holder participating in a
Shelf Registration Statement filed pursuant to Section 2.1 agrees to (and the
Company may require, as a condition to including any Registrable Securities in
any registration statement filed pursuant to Sections 2.2 or 2.3 and as a
condition to indemnifying such sellers pursuant to this Section 2.8, that the
Company shall have received an undertaking reasonably satisfactory to it from
each prospective seller of
25
securities included in any such offering regarding its agreement to) indemnify
and hold harmless and reimburse (in the same manner and to the same extent as
set forth in paragraph (a) of this Section 2.8) the Company, each director,
officer, employee and agent of the Company, and each other Person, if any, who
controls the Company within the meaning of the Securities Act, from and against
any Losses (or actions or proceedings, whether commenced or threatened, in
respect thereof) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any such Shelf Registration
Statement or other registration statement pursuant to which securities of such
Holder are registered under the Securities Act (including all documents
incorporated therein by reference), any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or supplement thereto,
or any omission or alleged omission from such registration statement,
preliminary prospectus, final prospectus or summary prospectus, or any amendment
or supplement thereto required to be stated therein or necessary to make the
statements therein not misleading, if (but only if) such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
prospective seller specifically for inclusion therein; provided, however, that
such prospective seller shall not be obligated to provide such indemnity to the
extent that such Losses result, directly or indirectly, from the failure of the
Company to promptly amend or take action to correct or supplement any such
registration statement, prospectus, amendment or supplement based on corrected
or supplemental information provided in writing by such prospective seller to
the Company expressly for such purpose; and provided further, that the
obligation to provide indemnification pursuant to this Section 2.8(b) shall be
several, and not joint and several, among such indemnifying parties.
Notwithstanding anything in this Section 2.8(b) to the contrary, in no event
shall the liability of any prospective seller under such indemnity be greater in
amount than the amount of the proceeds received by such seller upon the sale of
its Registrable Securities in the offering to which the Losses relate. Such
indemnity shall remain in full force and effect, regardless of any investigation
made by or on behalf of the Company or any such director, officer, employee,
agent or participating or controlling Person and shall survive the transfer of
such securities by such prospective seller.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in paragraph (a) or (b) of this Section 2.8, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give prompt written notice to the latter of the commencement of such
action, provided that the failure of any indemnified party to give notice as
provided herein shall not relieve the
26
indemnifying party of its obligations under this Section 2.8, except to the
extent that the indemnifying party is actually and materially prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party, the indemnifying party shall be entitled to participate in
and to assume the defense thereof (such assumption to constitute its
acknowledgement of its agreement to indemnify the indemnified party with respect
to such matters), jointly with any other indemnifying party similarly notified
to the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
fees or other expenses subsequently incurred by the latter in connection with
the defense thereof other than reasonable costs of investigation; provided,
however, that if, in such indemnified party's reasonable judgment, a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such claim, such indemnified party shall be entitled to separate counsel at
the expense of the indemnifying party; and provided, further, that, unless there
exists a conflict of interest among indemnified parties, all indemnified parties
in respect of such claim shall be entitled to only one counsel or firm of
counsel for all such indemnified parties. In the event an indemnifying party
shall not be entitled, or elects not, to assume the defense of a claim, such
indemnifying party shall not be obligated to pay the fees and expenses of more
than one counsel or firm of counsel for all parties indemnified by such
indemnifying party in respect of such claim, unless in the reasonable judgment
of any such indemnified party a conflict of interest exists between such
indemnified party and any other of such indemnified parties in respect of such
claim, in which event the indemnifying party shall be obligated to pay the fees
and expenses of one additional counsel or firm of counsel for such indemnified
parties. No indemnifying party shall, without the consent of the indemnified
party, consent to entry of any judgment or enter into any settlement that (i)
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all Losses in respect of
such claim or litigation or (ii) would impose injunctive relief on such
indemnified party. No indemnifying party shall be subject to any Losses for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
(d) Other Indemnification. The provisions of this Section 2.8 shall
be in addition to any other rights to indemnification or contribution which an
indemnified party may have pursuant to law, equity, contract or otherwise.
(e) Indemnification Payments. The indemnification required by this
Section 2.8 shall be made by periodic payments
27
of the amount thereof during the course of the investigation or defense,
promptly as and when bills are received or Losses are incurred.
(f) Contribution. If for any reason the foregoing indemnity and
reimbursement is unavailable or is insufficient to hold harmless an indemnified
party under paragraph (a) or (b) of this Section 2.8, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of any Loss (or actions or proceedings, whether commenced or
threatened, in respect thereof), including, without limitation, any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such Loss, action or proceeding, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the indemnified party on the other. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. Notwithstanding anything in this Section 2.8(f) to the contrary, no
indemnifying party (other than the Company) shall be required pursuant to this
Section 2.8(f) to contribute any amount in excess of the amount by which the net
proceeds received by such indemnifying party from the sale of Registrable
Securities in the offering to which the Losses of the indemnified parties relate
exceeds the amount of any damages which such indemnifying party has otherwise
been required to pay by reason of such untrue statement or omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
2.9 Liquidated Damages.
(a) If, (i) as of the Initial Effective Date, the Initial Shelf
Registration Statement has been suspended or is not otherwise effective or (ii)
as of the Secondary Effective Date, the Secondary Shelf Registration Statement
has been suspended or is not otherwise effective, the Company shall pay
liquidated damages to each Holder covered or to be covered by each such
suspended or ineffective Shelf Registration Statement in an amount equal to (A)
in the case of Registrable Debt Securities, $.10 per $1,000 outstanding
principal amount of such Registrable Debt Securities and (B) in the case of
Registrable Equity Securities, $.40 per 1,000 shares (or, in the case of any
Warrant, $.40 per 1,000 shares based on the number of shares issuable upon
exercise of such Warrant), for each week specified in subsection (g) below.
28
(b) If the suspension or ineffectiveness referred to in clause (a)
above shall not have been cured within ninety (90) days after the Initial
Effective Date or the Secondary Effective Date, as the case may be, the daily
liquidated damages set forth in clause (a) above shall increase to an amount
equal to (i) in the case of Registrable Debt Securities, $.15 per $1,000
outstanding principal amount of such Registrable Debt Securities and (ii) in the
case of Registrable Equity Securities, $.65 per 1,000 shares (or in the case of
any Warrant, $.65 per 1,000 shares based on the number of shares issuable upon
exercise of the Warrant), for each week specified in subsection (g) below.
(c) If the suspension or ineffectiveness referred to in clause (a)
above shall not have been cured within one hundred and eighty (180) days after
the Initial Effective Date or the Secondary Effective Date, as the case may be,
the daily liquidated damages set forth in clause (a) above shall increase to an
amount equal to (i) in the case of Registrable Debt Securities, $.20 per $1,000
outstanding principal amount of such Registrable Debt Securities and (ii) in the
case of Registrable Equity Securities, $.90 per 1,000 shares (or in the case of
any Warrant, $.90 per 1,000 shares based on the number of shares issuable upon
exercise of the Warrant), for each week specified in subsection (g) below.
(d) If a stop order is imposed or if for any other reason the
effectiveness of a Shelf Registration Statement is suspended during the Shelf
Period applicable to such Shelf Registration Statement, the Company shall pay
liquidated damages to each Holder covered or to be covered by such Shelf
Registration Statement in an amount equal to (i) in the case of Registrable Debt
Securities, $.10 per $1,000 outstanding principal amount of such Registrable
Debt Securities and (ii) in the case of Registrable Equity Securities, $.40 per
1,000 shares (or in the case of any Warrant, $.40 per 1,000 shares based on the
number of shares issuable upon exercise of the Warrant), for each week specified
in subsection (g) below.
(e) If the stop order or other suspension of effectiveness of a Shelf
Registration Statement referred to in clause (d) above shall not have been cured
within ninety (90) days after such stop order was imposed or the effectiveness
of such Shelf Registration Statement was otherwise suspended, the daily
liquidated damages set forth in clause (d) above shall increase to an amount
equal to (i) in the case of Registrable Debt Securities, $.15 per $1,000
outstanding principal amount of such Registrable Debt Securities and (ii) in the
case of Registrable Equity Securities, $.65 per 1,000 shares (or in the case of
any Warrant, $.65 per 1,000 shares based on the number of shares issuable upon
exercise of the Warrant), for each week specified in subsection (g) below.
29
(f) If the stop order or other suspension of effectiveness of a Shelf
Registration Statement referred to in clause (d) above shall not have been cured
within one hundred and eighty (180) days after such stop order was imposed or
the effectiveness of such Shelf Registration Statement was otherwise suspended,
the daily liquidated damages set forth in clause (d) above shall increase to an
amount equal to (i) in the case of Registrable Debt Securities, $.20 per $1,000
outstanding principal amount of such Registrable Debt Securities and (ii) in the
case of Registrable Equity Securities, $.90 per 1,000 shares (or in the case of
any Warrant, $.90 per 1,000 shares based on the number of shares issuable upon
exercise of the Warrant), for each week specified in subsection (g) below.
(g) The liquidated damages payable to any Holder set forth in this
Section 2.9 shall begin accruing on the date on which the event triggering such
liquidated damages occurs and shall cease to accrue on the earlier of the date
after the SEC reinstates the effectiveness of the relevant Shelf Registration
Statement or otherwise declares such Shelf Registration Statement to be
effective and the date after the SEC declares effective a registration statement
effected pursuant to Section 2.2 covering such Holder's Registrable Securities.
The Company will pay the liquidated damages due with respect to any Registrable
Securities at the end of each month during which such damages accrue.
Liquidated damages shall be paid in immediately available funds by wire transfer
to each Holder of at least ten percent (10%) of Registrable Equity Securities
(but not less than an aggregate of 2,000,000 shares of Class A Common, Class B
Common and shares issuable upon exercise of Warrants) or at least ten percent
(10%) of the aggregate principal amount of Registrable Debt Securities (but not
less than $10 Million of aggregate principal amount of Registrable Debt
Securities) entitled to receive such liquidated damages to the accounts
designated by such Holders, and all other Holders entitled to receive such
funds, shall be paid by check mailed to such other Holders at the address shown
in the records of the Company for such Holders; provided that for purposes of
this Section 2.9(g), all Fidelity Funds shall be considered a single Holder.
(h) Notwithstanding any of the provisions of this Section 2.9, no
liquidated damages shall be payable (i) during any period of time that (A) a
Shelf Registration Statement or any replacement Shelf Registration Statement is
suspended by the Company pursuant to the first proviso in Section 2.1(c), or (B)
the Company is precluded from using or qualifying a Shelf Registration Statement
as a result of a change to the rules or regulations of the SEC applicable
thereto with which the Company is unable to comply after exercising Commercially
Reasonable Efforts to so comply; and (ii) to any party, if, as a result of such
party's acts or omissions, the Company is precluded from using or qualifying a
Shelf Registration Statement.
30
(i) The parties hereto agree that (i) the liquidated damages provided
for in this Section 2.9 constitute a reasonable estimate of the damages that
will be suffered by each Holder covered or to be covered by a Shelf Registration
Statement by reason of the failure of such Shelf Registration Statement to be
declared effective and to remain effective in accordance with this Agreement and
(ii) such liquidated damages shall be the sole remedy of each such Holder with
respect to the matters set forth in this Section 2.9.
3. Rule 144 and Rule 144A. (a) The Company will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder and will take such further
action as Investor, Lehman and/or any Fidelity Fund may reasonably request, all
to the extent required from time to time to enable Investor, Lehman and/or such
Fidelity Fund to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144,
(ii) Rule 144A or (iii) any similar rule or regulation hereafter adopted by the
SEC. Upon the request of Investor, Lehman and/or any Fidelity Fund, the Company
will deliver to Investor, Lehman and/or such Fidelity Fund a written statement
as to whether it has complied with such requirements and will, at its expense,
forthwith upon the request of Investor, Lehman and/or such Fidelity Fund,
deliver to Investor, Lehman and/or such Fidelity Fund a certificate, signed by
the Company's principal financial officer, stating (A) the Company's name,
address and telephone number (including area code), (B) the Company's Internal
Revenue Service identification number, (C) the Company's SEC file number, (D)
the amount of shares of each class of capital stock outstanding as shown by the
most recent report or statement published by the Company, and (E) whether the
Company has filed the reports required to be filed under the Exchange Act for a
period of at least ninety (90) days prior to the date of such certificate and in
addition has filed the most recent annual report required to be filed
thereunder.
(b) If at any time the Company is not required to file reports in
compliance with either Section 13 or Section 15(d) of the Exchange Act, the
Company at its expense will, forthwith upon the request of Investor, Lehman
and/or any Fidelity Fund, (i) make available adequate current public information
with respect to the Company within the meaning of paragraph (c)(2) of Rule 144
and (ii) deliver the information required by Section (d) of Rule 144A (such
information to be "reasonably current" within the meaning of Section (d)(4)(ii)
of Rule 144A).
4. Term. This Agreement shall enter into force on the date hereof
and shall continue in full force and effect, subject to Section 18 hereof, until
the eighth (8th) anniversary of the date hereof.
31
5. Amendments and Waivers. This Agreement may be amended,
supplemented or modified at any time; provided that each of (i) the Requisite
Holders of each of the Registrable Equity Securities and the Registrable Debt
Securities then outstanding and (ii) the Company has provided its written
consent to such amendment, supplement or modification; provided, however, that
no such amendment, supplement or modification which would prejudice the rights
expressly granted to Fidelity or any Fidelity Fund as a named party hereto shall
be effective without the written consent of Fidelity or such Fidelity Fund, as
the case may be; and provided further, that no such amendment, supplement or
modification which would prejudice the rights expressly granted to Lehman as a
named party hereto shall be effective without the written consent of Lehman.
Any term or condition of this Agreement may be waived at any time by the party
that is entitled to the benefit thereof, but no such waiver shall be effective
unless set forth in a written instrument duly executed by or on behalf of the
party waiving such term or condition. No waiver by any party of any term or
condition of this Agreement, in any one or more instances, shall be deemed to be
or construed as a waiver of the same term or condition of this Agreement on any
future occasion.
6. Entire Agreement. This Agreement supersedes all prior discussions
and agreements between the parties with respect to the subject matter hereof
(including, without limitation, Section 11 of the Investment Agreement) and
contains the sole and entire agreement between the parties hereto with respect
to the subject matter hereof.
7. No Third-Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party, their respective
Successors or permitted assigns and it is not the intention of the parties to
confer third-party beneficiary rights upon any other Person other than (i) any
Affiliate of Investor, Lehman, any Fidelity Fund, (ii) any transferee, direct or
indirect, of any of the Registrable Securities held by Investor, Lehman, any
Fidelity Fund or any of their respective Affiliates, or (iii) any other Person
entitled to notice of the registration of Registrable Securities under Sections
2.2(d) or 2.3(a), to indemnity under Section 2.8 or to liquidated damages under
Section 2.9.
8. Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under any present or future law, (i) such
provision will be fully severable, (ii) this Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (iii) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom and (iv) in lieu of such
illegal, invalid
32
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
9. Nominees for Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election, be treated as the holder of such
Registrable Securities for purposes of request or other action by any Holder or
Holders pursuant to this Agreement or any determination of any amount of shares
of Registrable Securities held by any Holder or Holders of Registrable
Securities contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Securities. For purposes of this Agreement, "beneficial ownership" and
"beneficial owner" refer to beneficial ownership as defined in Rule 13d-3
(without regard to the 60-day provision in paragraph (d)(1)(i) thereof) under
the Exchange Act.
10. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
(i) delivered personally, (ii) by facsimile transmission, (iii) by Federal
Express or other nationally recognized courier service or (iv) mailed (first
class postage prepaid) to the parties at the following addresses or facsimile
numbers:
If to the Company, to:
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J.
Whalen, Esq.
Fax No.: (602) 693-5904
with a copy to:
Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Attention: David G. Elkins, Esq.
33
If to Investor, to:
AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax No.: (817) 871-4010
and to:
Mesa Airlines, Inc.
2325 30th Street
Farmington, New Mexico 87401
Attention: Gary E. Risley, Esq.
with a copy to:
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske, Esq.
Fax No: (216) 586-7864
If to Lehman, to:
Lehman Brothers Inc.
Three World Financial Center
New York, NY 10285
Attention: John K. Sweeney
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10023
Attention: John R. Cannell, Esq.
Fax No: (212) 455-2502
If to Fidelity, to:
Fidelity Management Trust Company
82 Devonshire Street, MS F7E
Boston, Massachusetts 02109
Attention: Daniel S. Harmetz
Fax No.: (617) 227-2536
34
and to:
Fidelity Management Trust Company
82 Devonshire Street, MS F7D
Boston, Massachusetts 02109
Attention: Wendy Schnipper-Clayton, Esq.
Fax No.: (617) 570-7688
with a copy to:
Goodwin, Procter & Hoar
Exchange Place
Boston, Massachusetts 02109-2881
Attention: Laura C. Hodges Taylor, P.C.
Fax No.: (617) 523-1231
With respect to any other holder of Registrable Securities entitled to
receive notice, requests or other communications hereunder, such notices,
requests and other communications shall be sent to the addresses and telecopy
numbers provided to the Company and the other parties hereto by notice as herein
provided and referencing this Agreement. All such notices, requests and other
communications will (i) if delivered personally to the address as provided in
this Section 10, be deemed given upon delivery, (ii) if delivered by facsimile
transmission to the facsimile number as provided in this Section 10, be deemed
given upon receipt, and (iii) if delivered by courier service or by mail in the
manner described above to the address as provided in this Section 10, be deemed
given upon receipt (in each case regardless of whether such notice, request or
other communication is received by any other Person to whom a copy of such
notice is to be delivered pursuant to this Section 10). Any Person from time to
time may change its address, facsimile number or other information for the
purpose of notices to that Person by giving notice in accordance with this
Section 10 specifying such change to each of the other parties executing this
Agreement.
11. Assignment. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties and their respective Successors
(including, in the case of the Company, the Company as reorganized pursuant to
the Plan) and permitted assigns. In addition, each of Investor, Lehman, any
Fidelity Fund, and each of their respective Affiliates may assign any of its
rights hereunder (in whole or in part) to one or more Affiliates or to one or
more direct or indirect transferees of its Registrable Securities, provided,
however, that any such assignment by Investor to one or more of its Affiliates
which results in the liquidation of its entire interest in the Registrable
Securities, either upon dissolution or otherwise, shall include a designation of
the transferee Affiliate or Affiliates who shall thereafter have the right and
authority to
35
exercise any notice or consent rights on the part of Investor set forth in this
Agreement, and each other holder of Registrable Securities by means of an
assignment by Investor shall be bound by the actions taken by such designated
Affiliate(s), and provided further that any assignee which accepts the benefits
of this Agreement shall be deemed to have accepted and be bound by all
obligations on the part of the assignor hereunder. No such assignment shall be
binding upon or obligate the Company to any such assignee unless and until (A)
the Company shall have received notice of such assignment as herein provided,
which notice shall (i) reference this Agreement and (ii) set forth the name and
address of any assignee for the purpose of any notices hereunder or (B) such
assignee can establish its beneficial or record ownership of any Registrable
Securities and shall have provided the Company with the information called for
by clause (A)(ii) of this Section 11.
12. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for convenience of
reference only and do not define or limit the provisions hereof or otherwise
affect the meaning hereof.
13. Specific Performance. Except with respect to the matters set
forth in Section 2.9, the parties agree that, to the extent permitted by law,
(i) the obligations imposed on them in this Agreement are special, unique and of
an extraordinary character, and that in the event of a breach by any such party
damages would not be an adequate remedy; and (ii) each of the other parties
shall be entitled to specific performance and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled at law or in
equity.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF.
15. Registration Rights to Others. Except for registration rights
granted by the Company to GPA under that certain Registration Rights Agreement
of even date herewith (the "GPA Registration Rights Agreement"), the Company
shall not provide to any other holder of its securities rights with respect to
the registration of such securities under the Securities Act without the prior
written consent of the Requisite Holders of each of the Registrable Equity
Securities and the Registrable Debt Securities then outstanding, which consent
shall not be unreasonably withheld; provided, however, that the foregoing
restriction shall not be applicable (i) to the grant by the Company of
"piggyback" registration rights which are subordinate in priority to the rights
of Holders of Registrable Securities pursuant to Sections 2.2(d) and 2.3(b), and
(ii) to any grant of
36
any demand registration rights by the Company after exercise or termination of
all demand registration rights set forth in Section 2.2, provided, however, that
in regard to any such grant of demand registration rights each of Investor, each
Fidelity Fund, Lehman and each of their respective Affiliates shall have the
right during the term of this Agreement to subscribe to or otherwise participate
in such rights on equal terms, and on a pro rata basis, with the parties granted
such rights. The Company represents and warrants that, other than as provided
herein, it has not granted to any other Person rights with respect to the
registration of any Registrable Securities or any other securities issued or to
be issued by it.
16. Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall, to the extent permitted by
applicable law, be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
17. Limitation of Liability. Each party to this Agreement
acknowledges and agrees that (i) this Agreement is not executed on behalf of or
binding upon any of the trustees, officers, directors, partners or shareholders
of any Fidelity Fund individually, but is binding only upon the assets and
property of each Fidelity Fund and (ii) the obligations of each Fidelity Fund
hereunder are several and not joint. With respect to the obligations of any
Fidelity Fund arising out of this Agreement, each party to this Agreement shall
look for payment or satisfaction of any claim solely to the assets and property
of such Fidelity Fund.
18. Termination of Certain Rights. The rights and obligations
hereunder of each of Investor, Lehman and each Fidelity Fund shall terminate
with respect to such party at such time when neither it nor any of its
respective Affiliates holds Registrable Securities, provided that the provisions
of Section 2.8 hereof, the rights of any party hereto with respect to the breach
of any provision hereof, and any obligation accrued as of the date of
termination (including any obligation accrued under Section 2.9 hereof) shall
survive termination of this Agreement.
19. No Inconsistent Agreements. The Company will not hereafter enter
into, modify, amend or waive any agreement with respect to its securities if
such agreement, modification, amendment or waiver would conflict with the rights
granted pursuant to this Agreement to the Holders of Registrable Securities.
Without limiting the generality of the foregoing and subject to Section 18
hereof, the Company will not amend, modify or waive, or permit the amendment,
modification or waiver of Sections 2.1, 2.2 or 2.3 of the GPA Registration
Rights Agreement without the prior written consent of the Requisite Holders of
37
each of the Registrable Equity Securities and the Registrable Debt Securities
then outstanding, provided, however, that Investor and any of its Affiliates
(other than Mesa) shall not participate in any such consent and that any
Registrable Equity Securities or Registrable Debt Securities held by such
parties shall not be taken into account for the purpose of such consent.
20. Requisite Holders. Each of the parties hereto agrees that the
Company may, in connection with the taking of any action permitted to be taken
hereunder with the consent or approval of the Requisite Holders of the
Registrable Equity Securities or Registrable Debt Securities, rely in good faith
on a certificate from any such holder or holders stating that it holds or is
acting on behalf of a majority in interest of the Registrable Equity Securities
or a majority in principal amount of the Registrable Debt Securities, as the
case may be.
21. Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
of which shall together constitute one and the same instrument.
22. Repurchase Arrangement. Notwithstanding anything contained in
this Agreement to the contrary, the parties hereto agree and acknowledge that
all rights of Fidelity Copernicus Fund, L.P. ("Copernicus") under this Agreement
in respect of Registrable Debt Securities held by Copernicus shall inure to the
benefit of and be enforceable by Copernicus, Lehman Government Securities Inc.
or any other transferee (including any counterparty) of such Registrable Debt
Securities, in each case as contemplated by the repurchase arrangement described
under "Plan of Distribution" as set forth in the Company's S-1 Registration
Statement filed with the SEC on June 26, 1994, as amended, provided that the
Company shall have no obligations under this Agreement with respect to any such
Person other than Copernicus unless and until it shall have been provided the
notice of assignment or information regarding ownership as set forth in Section
11 of this Agreement.
38
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
AMERICA WEST
AIRLINES, INC.
By: /s/ Martin J. Whelan
----------------------------
Name: Martin J. Whelan
Title: Senior Vice President
AMWEST PARTNERS, L.P.
By AmWest GenPar Inc.,
its General Partner
By: /s/ Richard P. Schifter
--------------------------
Name: Richard P. Schifter
Title: Vice President
LEHMAN BROTHERS INC.
By: /s/ John K. Sweeney
-------------------------
Name: John K. Sweeney
Title: Managing Director
BELMONT CAPITAL PARTNERS II, L.P.
By:Fidelity Capital Partners
II Corp., its general
partner
By: /s/ Daniel G. Harmetz
-------------------------
Name: Daniel G. Harmetz
Title: Sr. Vice President
BELMONT FUND, L.P.
By: Fidelity Managment Trust
Company, pursuant to a
Power of Attorney for
Fidelity International
Services Limited, its
managing general partner
By: /s/ Daniel G. Harmetz
-------------------------
Name: Daniel G. Harmetz
Title: Sr. Vice President
FIDELITY COPERNICUS FUND, L.P.
By: Fidelity Copernicus
Corp., its general
partner
By: /s/ Daniel G. Harmetz
-------------------------
Name: Daniel G. Harmetz
Title: Sr. Vice President
SCHEDULE 1
================================================================================
REGISTRATION RIGHTS AGREEMENT
BETWEEN
AMERICA WEST AIRLINES, INC.,
AND
GPA GROUP PLC
DATED AS OF AUGUST 25, 1994
================================================================================
TABLE OF CONTENTS
1. Definitions.................................. 1
2. Registration under the Securities Act........ 5
2.1. Shelf Registration Statement........... 5
2.3. Piggyback Registration................. 8
2.4. Registration Terms and Procedures...... 10
2.5. Underwritten Offerings................. 16
2.6. Preparation; Reasonable Investigation.. 16
2.7. Indemnification........................ 17
3. Rule 144 and Rule 144A....................... 20
4. Term......................................... 21
5. Amendments and Waivers....................... 21
6. Entire Agreement............................. 21
7. No Third-Party Beneficiary................... 21
8. Invalid Provisions........................... 21
9. Notices...................................... 21
10. Assignment................................... 23
11. Descriptive Headings......................... 23
12. GOVERNING LAW................................ 23
13. Registration Rights to Others................ 23
14. Attorneys' Fees.............................. 23
15. Termination of Certain Rights and Obligations 23
16. No Inconsistent Agreements................... 24
17. Specific Performance......................... 24
18. Requisite Holders............................ 24
19. Counterparts................................. 24
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 25, 1994 between
AMERICA WEST AIRLINES, INC., a Delaware corporation (including its successor, as
reorganized pursuant to Chapter 11, Title 11 of the United States Bankruptcy
Code (the "Bankruptcy Code") (the "Company"), and GPA Group plc, an Irish public
limited company ("GPA").
W I T N E S S E T H :
WHEREAS, the Company is a Debtor and Debtor-in-Possession in the case
(the "Chapter 11 Case") filed in the United States Bankruptcy Court for the
District of Arizona (the "Bankruptcy Court"), entitled "In re America West
Airlines, Inc., Debtor," Chapter 11 Case No. 91-07505-PHX-RGM, under the
Bankruptcy Code;
WHEREAS, in connection with and as part of the transactions to be
consummated pursuant to the confirmation of a Plan of Reorganization (as
amended, modified or supplemented from time to time) of the Company in the
Chapter 11 Case (the "Plan of Reorganization"), the Company will issue to GPA
and its respective Affiliates (as defined herein) (i) 900,000 shares of Class B
Common Stock of the Company and (ii) 1,384,615 Warrants to purchase Class B
Common Stock of the Company (collectively, the "GPA Securities");
WHEREAS, as a condition to GPA's participation in the transactions
contemplated by the Plan of Reorganization, the Company has filed with the SEC
(as hereinafter defined) a shelf registration statement that includes the GPA
Securities and is undertaking to have such shelf registration statement declared
effective;
WHEREAS, by Order dated August 10, 1994, the Bankruptcy Court
confirmed the Plan of Reorganization; and
WHEREAS, the Plan of Reorganization contemplates that the Company and
GPA will enter into certain agreements, including, without limitation, this
Registration Rights Agreement;
NOW THEREFORE, the parties hereby agree as follows:
1. Definitions. The following terms, as used herein, have the
following meanings (all terms defined herein in the singular to have the
correlative meanings when used in the plural and vice versa):
"Affiliate" means (i) when used with reference to any partnership, any
Person that, directly or indirectly, owns or controls 10% or more of either the
capital or profit interests of such partnership or is a partner of such
partnership or is a Person in which such partnership has a 10% or greater direct
or indirect equity interest and (ii) when used with reference to any
corporation, any Person that, directly or indirectly, owns or controls 10% or
more of the outstanding voting securities of such corporation or is a Person in
which such corporation has a 10% or greater direct or indirect equity interest.
In addition, the term "Affiliate," when used with reference to any Person, shall
also mean any other Person that, directly or indirectly, controls or is
controlled by or is under common control with such Person. As used in the
preceding sentence, (A) the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of the entity referred to, whether through ownership of voting
securities, by contract or otherwise and (B) the terms
"controlling" and "controls" shall have meanings correlative to the foregoing.
Notwithstanding the foregoing, the Company will be deemed not to be an Affiliate
of GPA or any of its Affiliates and each of AmWest GenPar, Inc., Continental
Airlines, Inc., Mesa Airlines, Inc., TPG Partners, L.P., TPG Parallel I, L.P.
and Air Partners II, L.P. shall be deemed to be an Affiliate of AmWest.
"Agreement" means this Registration Rights Agreement, as the same
shall be amended, modified or supplemented from time to time.
"AmWest" means AmWest Partners, L.P., a Texas limited partnership or,
if applicable, any partner, Affiliate, direct or indirect subsidiary or any
Successor thereof.
"AmWest Registration Rights Agreement" means the Registration Rights
Agreement of even date herewith among the Company, AmWest and the other holders
named therein, as amended from time to time in accordance with the provisions
thereof and hereof.
"Chapter 11 Case" has the meaning ascribed to it in the preamble.
"Class B Common" means the class B Common Stock, par value $.01 per
share, of the Company.
"Commercially Reasonable Efforts", when used with respect to any
obligation to be performed or term or provision to be observed hereunder, means
such efforts as a prudent Person seeking the benefits of such performance or
action would make, use, apply or exercise to preserve, protect or advance its
rights or interests, provided, that such efforts do not require such Person to
incur a material financial cost or a substantial risk of material liability
unless such cost or liability (i) would customarily be incurred in the course of
performance or observance of the relevant obligation, term or provision, (ii) is
caused by or results from the wrongful act or negligence of the Person whose
performance or observance is required hereunder or (iii) is not excessive or
unreasonable in view of the rights or interests to be preserved, protected or
advanced. Such efforts may include, without limitation, the expenditure of such
funds and retention by such Person of such accountants, attorneys or other
experts or advisors as may be necessary or appropriate to effect the relevant
action; the undertaking of any special audit or internal investigation that may
be necessary or appropriate to effect the relevant action; and the commencement,
termination or settlement of any action, suit or proceeding involving such
Person to the extent necessary or appropriate to effect the relevant action.
"Demand Registration" means any registration of Registrable Securities
under the Securities Act effected in accordance with Section 2.2.
"Effective Date" means the date upon which the Restated Certificate of
Incorporation becomes effective in accordance with the Plan of Reorganization
and the General Corporation Law of the State of Delaware.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute, and the rules and regulations
promulgated thereunder.
"Fidelity" and "Fidelity Fund" shall have the meanings given such
terms in the AmWest Registration Rights Agreement.
"Holders" means the holders of record of Registrable Securities, or,
in the case of references to holders of securities of the Company other than
Registrable Securities, the record holders of such securities.
"Indemnified Party" has the meaning ascribed to it in Section 2.7(a).
"Loss" has the meaning ascribed to it in Section 2.7(a).
"Material Adverse Change" means (i) any general suspension of trading
in, or limitation on prices for, securities on any national securities exchange
or in the over-the-counter market in the United States of America, (ii) the
declaration of a banking moratorium or any suspension of payments in respect of
banks in the United States of America, (iii) the commencement of a war, armed
hostilities or other international or national calamity involving the United
States of America, (iv) any limitation (whether or not mandatory) by any
governmental authority on, or any other event which materially affects the
extension of credit by banks or other financial institutions, (v) any material
adverse change in the Company's business, condition (financial or otherwise) or
prospects or (vi) a 15% or more decline in the Dow Jones Industrial average or
the Standard and Poor's Index of 400 Industrial Companies, in each case from the
date a Notice of Demand is made.
"Notice of Demand" means a request by GPA pursuant to Section 2.2 that
the Company effect the registration under the Securities Act of all or part of
the Registrable Securities held by it and its Affiliates and at its option, any
direct or indirect transferee of Registrable Securities held by it, and any
other Holder that requests to have its securities included in such registration
pursuant to Section 2.2(d). A Notice of Demand shall specify (i) the type and
amount of Registrable Securities proposed to be registered, (ii) the intended
method or methods and plan of disposition thereof and (iii) whether or not such
requested registration is to be an underwritten offering.
"Participating Holders" means, with respect to any registration of
securities by the Company pursuant to this Agreement, GPA and any other Holders
that are entitled to participate in, and are participating in or seeking to
participate in, such registration.
"Person" means a natural person, a corporation, a partnership, a
trust, a joint venture, any regulatory authority or any other entity or
organization.
"Piggyback Registration" means any registration of Registrable
Securities under the Securities Act effected in accordance with Section 2.3.
"Piggyback Registration Notice" has the meaning ascribed to it in
Section 2.3(a).
"Registrable Equity Securities" shall have the meaning given such term
in the AmWest Registration Rights Agreement.
"Registrable Securities" means the equity securities acquired by GPA
or any of its Affiliates pursuant to the Plan of Reorganization or subsequently
acquired by any transferee (direct or indirect) of such Person, including,
without limitation, (a) any shares of Class B Common issued or issuable on the
Effective Date, (b) any Warrant, (c) any shares of Class B Common issued or
issuable upon the exercise of a Warrant and (d) any securities issued or
issuable with respect to any such Class B Common or Warrants by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
As to any particular Registrable Securities, once issued such securities shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with the plan of distribution set forth in such registration statement, (ii)
such securities shall have been distributed in accordance with Rule 144, (iii)
the Company has caused to be delivered an opinion of counsel in accordance with
Section
2.2(b) that such securities are distributable (without volume limitation) in
accordance with Rule 144 or (iv) such securities shall have been otherwise
transferred, new certificates therefor not bearing a legend restricting further
transfer shall have been delivered in exchange therefor by the Company and
subsequent disposition of such securities shall not require registration or
qualification under the Securities Act or any similar state law then in force.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
(a) all registration, filing, securities exchange listing, rating agency and
National Association of Securities Dealers fees, (b) all registration, filing,
qualification and other fees and expenses of complying with securities or blue
sky laws of all jurisdictions in which the securities are to be registered and
any legal fees and expenses incurred in connection with the blue sky
qualifications of the Registrable Securities and the determination of their
eligibility for investment under the laws of all such jurisdictions, (c) all
word processing, duplicating, printing, messenger and delivery expenses, (d) the
fees and disbursements of counsel for the Company and of its independent public
accountants, including, without limitation, the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, (e) the reasonable fees and disbursements incurred by the Holders of
the Registrable Securities being registered (including, without limitation, the
reasonable fees and disbursements for one counsel or firm of counsel selected by
the Requisite Holders of Registrable Securities), (f) premiums and other costs
of policies of insurance against liabilities arising out of the public offering
of the Registrable Securities being registered to the extent the Company elects
to obtain such insurance, (g) any fees and disbursements of underwriters
customarily paid by issuers or sellers of securities (but excluding underwriting
discounts and commissions and transfer taxes, if any, relating to the
Registrable Securities being registered) and (h) fees and expenses of other
Persons retained or employed by the Company.
"Requisite Holders" means any Holder or Holders of a majority in
interest of the securities to be included in the relevant registration or, in
the case of a registration pursuant to Section 2.2(a) hereof, a majority in
interest of Registrable Securities.
"Restated Certificate of Incorporation" means the restated Certificate
of Incorporation adopted by the Company pursuant to the Plan of Reorganization
in accordance with Section 303 of the General Corporation Law of the State of
Delaware.
"Rule 144" means Rule 144 promulgated by the SEC under the Securities
Act, and any successor provision thereto.
"Rule 144A" means Rule 144A promulgated by the SEC under the
Securities Act, and any successor provision thereto.
"SEC" means the United States Securities and Exchange Commission, or
any successor governmental agency or authority thereto.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor statute, and the rules and regulations
promulgated thereunder.
"Shelf Period" has the meaning ascribed to it in Section 2.1(b).
"Shelf Registration Statement" has the meaning ascribed to it in
Section 2.1(a).
"Successor" means, with respect to any Person, a successor to such
Person by merger, consolidation, liquidation or other similar transaction.
"Suspension Notice" has the meaning ascribed to it in Section 2.4(h).
"Suspension Period" has the meaning ascribed to it in Section 2.4(h).
"Warrant" means a Warrant to Purchase Class B Common Stock of America
West Airlines, Inc. issued pursuant to the Warrant Agreement dated as of even
date herewith between the Company and First Interstate Bank of California, as
Warrant Agent, and any warrant issued in substitution or exchange therefor.
2. Registration under the Securities Act.
2.1. Shelf Registration Statement.
(a) Filing of Shelf Registration Statement. If, as of the Effective
Date, (i) the effectiveness of the shelf registration statement covering all of
the Registrable Securities (the "Shelf Registration Statement") has been
suspended or the Shelf Registration Statement is otherwise not effective or (ii)
the securities covered under the Shelf Registration Statement shall not qualify
under all blue sky or other securities laws, the Company shall use Commercially
Reasonable Efforts to cause such Shelf Registration Statement to be effective as
soon as practicable and to qualify such securities under all blue sky and other
securities laws as soon as practicable.
(b) Continuous Effectiveness of Shelf Registration Statement. Once
the Shelf Registration Statement is effective pursuant to Section 2.1(a), the
Company shall use Commercially Reasonable Efforts to cause the Shelf
Registration Statement to remain continuously effective until the earlier of (i)
the third (3rd) anniversary of the Effective Date and (ii) the date on which all
of the securities covered by such Shelf Registration Statement have been sold,
but in no event prior to the expiration of the applicable period referred to in
Section 4(3) of the Securities Act and Rule 174 thereunder (the "Shelf Period");
provided, however, that (x) the Company may (no more than twice during any
twelve (12) month period and for a period not to exceed forty-five (45) days on
any one occasion, and not in any event to exceed sixty (60) days in the
aggregate) suspend use of the Shelf Registration Statement at any time if the
continued effectiveness thereof would require the Company to disclose a material
financing, acquisition or other corporate transaction, which disclosure the
Board of Directors of the Company shall have determined in good faith is not in
the best interests of the Company and its stockholders and (y) the Company may
suspend use of the Shelf Registration Statement during any period in accordance
with the provisions of Section 2.1(b)(y) of the AmWest Registration Rights
Agreement.
(c) Underwritten Offering. If GPA so elects, the offering of
Registrable Securities pursuant to the Shelf Registration Statement shall be in
the form of an underwritten offering, with such book-running managing
underwriter or underwriters as it shall select with the approval of the Company,
such approval not to be unreasonably withheld.
2.2. Demand Registration.
(a) Registration on Request. Except as provided in subsections (b)
and (c) below,
(i) at any time after the Shelf Period, GPA may (so long as it or
any of its Affiliates holds Registrable Securities to be included in
the registration) provide the Company with a Notice of Demand (with a
copy to AmWest); and
(ii) if at any time during the Shelf Period the Shelf
Registration Statement is not effective during a continuous period of
10 days for any reason (other than under the circumstances and during
the periods permitted by the proviso to Section 2.1(b)), GPA may, at
any time prior to renewed effectiveness of such Shelf Registration
Statement, provide the Company with a Notice of Demand (which shall be
in addition to its right to provide the Company with a Notice of
Demand (with a copy to AmWest) pursuant to clause (i) above).
Upon receipt of a Notice of Demand, the Company shall, subject to the provisions
of Sections 2.2(b) and 2.2(c), use Commercially Reasonable Efforts to effect at
the earliest practicable date the registration under the Securities Act of the
Registrable Securities that the Company has been so requested to register
pursuant to the Notice of Demand, for disposition in accordance with the
intended method or methods of disposition specified in the Notice of Demand.
(b) Limitations on Demand Registration. The Company shall not be
obligated to take any action to effect any registration pursuant to this Section
2.2: (i) after the Company has, in accordance with the provisions of Section
2.4(c), effected (A) one (1) registration of Registrable Securities with respect
to a registration requested pursuant to Section 2.2(a)(i) or (B) one (1)
registration of Registrable Securities with respect to a registration requested
pursuant to Section 2.2(a)(ii); (ii) during any period in which the Company
would be permitted to suspend registration pursuant to the proviso in Section
2.1(b); (iii) during any period if the Company and GPA agree in writing to
suspend such registration for such period; or (iv) if (A) within fourteen (14)
days after the giving of a Notice of Demand, the Company causes to be delivered
to GPA and each transfer agent for the Registrable Securities an opinion of
counsel in form and substance reasonably acceptable to GPA, and acceptable to
each such transfer agent for the purpose of permitting the transfer by GPA of
securities proposed to be sold without registration under the Securities Act or
the legending of such securities, to the effect that the proposed disposition of
such securities by GPA will not require registration or qualification under the
Securities Act; provided, however that GPA will promptly furnish to the Company
and such counsel all information such counsel may reasonably request in order to
enable such counsel to determine whether it would be able to render such an
opinion and (B) promptly (and in any event within a further fourteen (14) days
thereafter) the Company causes to be delivered to GPA, in exchange for all of
GPA's Registrable Securities, new certificates therefor duly issued and not
bearing any legend restricting further transfer.
(c) AmWest Demand Registration Rights. If the Company is unable to
furnish the opinion of counsel pursuant to Section 2.1(b)(iv) and if within
twenty-one (21) days after AmWest's receipt of a Notice of Demand by GPA, AmWest
(or any successor or other holder of such right) exercises its right to a demand
registration pursuant to Section 2.2(a) of the AmWest Registration Rights
Agreement, then GPA's Notice of Demand shall be deemed revoked; provided,
however that GPA shall have the right to request that the Company include
Registrable Securities held by GPA in the demand registration requested by
AmWest in accordance with and subject to Section 2.3 hereof and Section 2.2 of
the AmWest Registration Rights Agreement. If a Notice of Demand made by GPA is
deemed revoked pursuant to this Section 2.2(c), the Company shall continue to be
obligated to effect a registration requested by GPA pursuant to Section 2.2(a).
(d) Notice to certain non-Requesting Holders. Upon receipt of any
Notice of Demand from GPA, the Company will give prompt (but in any event within
fifteen (15) days after such receipt) notice to all Holders of Registrable
Securities and all other Holders of securities entitled to participate in such
registration including holders of Registrable Equity Securities under the AmWest
Registration Rights Agreement, of such Notice of Demand and of such Holders'
rights to have securities included in such registration (subject to priorities
in registration rights set forth in this Agreement and the AmWest Registration
Rights Agreement). Upon the request of any such Holder made within fifteen (15)
days after the receipt by such Holder of any such notice (which request shall
specify the securities intended to be disposed of by such Holder and the
intended method or methods of disposition thereof), the Company will (subject to
any priorities in registration rights among the various Holders) use
Commercially Reasonable Efforts to effect the registration of all securities
which the Company has been so requested to register pursuant to the Notice of
Demand.
(e) Priority in Demand Registrations. If (i) a registration pursuant
to this Section 2.2 involves an underwritten offering of the securities being
registered to be distributed (on a firm commitment basis) by or through one or
more underwriters of recognized standing under underwriting terms appropriate
for such a transaction and (ii) the managing underwriter of such underwritten
offering shall inform the Company and GPA by letter of its belief that the
amount of securities requested to be included in such registration exceeds the
amount which can be sold in (or during the time of) such offering within a price
range acceptable to GPA, then the Company will include in such registration such
amount of securities which the Company is so advised can be sold in (or during
the time of) such offering as follows: first, such Registrable Securities
requested to be included in such registration by GPA and its Affiliates; pro
rata on the basis of the amount of such securities so proposed to be sold and so
requested to be included by such parties; second, such Registrable Securities
requested to be included in such registration by all other Holders of
Registrable Securities pro rata on the basis of the amounts of such securities
to be sold and so proposed to be sold and so requested to be included by such
Holders; third such Registrable Equity Securities requested to be included in
such registration by AmWest, Fidelity, Lehman Brothers Inc. ("Lehman") or any of
their respective Affiliates under the AmWest Registration Rights Agreement pro
rata on the basis of the amount of such securities so proposed to be sold and so
requested to be included by such parties; and fourth, such Registrable Equity
Securities requested to be included in such registration by other Holders of
Registrable Equity Securities under the AmWest Registration Rights Agreement pro
rata on the basis of the amounts of such securities so proposed to be sold and
so requested to be included by such parties, and fifth, such other securities of
the Company whose holders have registration rights which would permit inclusion
in such offering and which are requested to be included in such registration by
all other holders pro rata on the basis of the amount of such securities so
proposed to be sold and so requested to be included by such holders.
2.3. Piggyback Registration.
(a) Right to Include Registrable Securities. If the Company at any
time proposes to register any of its equity securities under the Securities Act
(other than by a registration on Form S-4 or Form S-8 or any successor or
similar form then in effect and other than pursuant to Section 2.1 or 2.2) in a
form and in a manner that would permit registration of the Registrable
Securities, whether or not for sale for its own account, it will give prompt
(but in no event less than thirty (30) days prior to the proposed date of filing
the registration statement relating to such registration) notice to all Holders
of Registrable Securities of the Company's intention to do so and of such
Holders' rights under this Section 2.3. Upon the request of any such Holder
made within twenty (20) days after the receipt by such Holder of any such notice
(which request shall specify the Registrable Securities intended to be disposed
of by such Holder and the intended method or methods of disposition thereof)
(the "Piggyback Registration Notice"), the Company will use Commercially
Reasonable Efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by the Holders thereof, to the extent required to permit
the disposition (in accordance with the intended method or methods thereof as
aforesaid) of the Registrable Securities so to be registered, provided that if,
at any time after giving notice of its intention to register any equity
securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company shall determine for any reason
not to register or to delay registration of such equity securities, the Company
may, at its election, give notice of such determination to each such Holder and,
thereupon, (i) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay all Registration Expenses in
connection therewith as provided in Section 2.5(b)), without prejudice, however,
to the right of GPA to request that such registration be effected as a
registration under Section 2.2, and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any Registrable Securities
for the same period as the delay in registering such other equity securities.
No registration effected under this Section 2.3 shall be deemed to have been
effected pursuant to Section 2.1 or 2.2 (except for any right to demand
registration which may be exercised pursuant to the last clause of subsection
(i) of the preceding sentence) or shall relieve the Company of its obligation to
effect any registration under such Sections.
(b) Priority in Primary Piggyback Registrations. If (i) a
registration pursuant to this Section 2.3 involves an underwritten offering of
the securities being registered for sale for the account of the Company to be
distributed (on a firm commitment basis) by or through one or more underwriters
of recognized standing under underwriting terms appropriate for such a
transaction and (ii) the managing underwriter of such underwritten offering
shall inform the Company and the Holders requesting such registration by letter
of its belief that the amount of securities requested to be included in such
registration exceeds the amount which can be sold in (or during the time of)
such offering within a price range acceptable to the Company, then the Company
will include in such registration such amount of securities which the Company is
so advised can be sold in (or during the time of) such offering as follows:
first, all securities proposed by the Company to be sold for its own account;
second, such Registrable Equity Securities requested to be included in such
registration by AmWest, Lehman, or any Fidelity Fund or any of their respective
Affiliates under the AmWest Registration Rights Agreement pro rata on the basis
of the amount of such securities so proposed to be sold and so requested to be
included by such parties; third, such Registrable Equity Securities requested to
be included in such registration by other holders of such securities under the
AmWest Registration Rights Agreement pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included by such
parties; fourth, such Registrable Securities requested to be included in such
registration by GPA or any of its Affiliates pro rata on the basis of the amount
of such securities so proposed to be sold and so requested to be included by
such parties; fifth such Registrable Securities requested to be included in such
registration by all other Holders pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included by such
holders; and sixth, all other securities of the Company requested to be included
in such registration pro rata on the basis of the amount of such securities so
proposed to be sold and so requested to be included.
(c) Priority in Secondary Piggyback Registrations. If (i) a
registration pursuant to this Section 2.3 involves an underwritten secondary
offering of the securities being registered for sale for the account of AmWest,
Fidelity or any of their respective Affiliates or transferees pursuant to the
AmWest Registration Rights Agreement, to be distributed (on a firm commitment
basis) by or through one or more underwriters of recognized standing under
underwriting terms appropriate for such a transaction and (ii) the managing
underwriter of such underwritten offering shall inform the Company and Persons
requesting such registration by letter of its belief that the amount of
securities requested to be included in such registration exceeds the amount
which can be sold in (or during the time of) such offering within a price range
acceptable to such Persons, then the Company will include in such
registration such amount of securities which the Company is so advised can be
sold in (or during the time of) such offering as follows: first, such
securities proposed to be sold for the account of AmWest, Lehman, any Fidelity
Fund or any of their respective Affiliates under the AmWest Registration Rights
Agreement pro rata on the basis of the amount of such securities so proposed to
be sold and so requested to be included by such parties; second, such
Registrable Equity Securities requested to be included in such registration by
other holders of such securities under the AmWest Registration Rights Agreement
pro rata on the basis of the amount of such securities so proposed to be sold
and so requested to be included by such parties; third, such Registrable
Securities requested to be included in such registration by GPA or any of its
Affiliates pro rata on the basis of the amount of such securities so proposed to
be sold and so requested to be included by such parties; fourth, such
Registrable Securities requested to be included in such registration by all
other Holders pro rata on the basis of the amount of such securities so proposed
to be sold and so requested to be included by such Holders, and fifth, all other
securities of the Company requested to be included in such registration pro rata
on the basis of the amount of such securities so proposed to be sold and so
requested to be included.
2.4. Registration Terms and Procedures.
(a) Registration Statement Form. Registrations under Section 2.2
shall be on such appropriate registration forms of the SEC (i) as shall be
acceptable to GPA (such acceptance not to be unreasonably withheld) and (ii) as
shall permit the disposition of such Registrable Securities in accordance with
the intended method or methods of disposition. The Company agrees to include in
any such registration statement all information that any Participating Holder
shall reasonably request (to the extent such information relates to such
Participating Holder).
(b) Registration Expenses. Subject to Section 2.4(f), the Company
will pay all Registration Expenses incurred in connection with a registration to
be effected (whether or not effected or deemed effected pursuant to subsection
(c) below) pursuant to Sections 2.1, 2.2 or 2.3.
(c) Effectiveness of Demand Registration. A registration will not be
deemed to have been effected under Section 2.2 unless the registration statement
with respect thereto has been declared effective by the SEC and, subject to the
proviso in Section 2.1(b) and to Section 2.5(g)(vii) hereof, remains effective
for the earlier of six (6) months or the distribution of the securities covered
by such registration statement; provided, however, that if (i) after such
registration statement has been declared effective, the marketing of Registrable
Securities offered pursuant to such registration statement is materially
disrupted or adversely affected as a result of any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or court
(for reasons other than a misrepresentation or omission by GPA or any
Participating Holder) or (ii) the conditions to closing specified in the
purchase agreement or underwriting agreement entered into in connection with
such registration have not been satisfied (for reasons other than a wrongful or
bad faith act, omission or misrepresentation by GPA or any Participating
Holder), such registration statement will be deemed not to have become
effective. If a registration pursuant to Section 2.2 is deemed not to have been
effected hereunder, then the Company shall continue to be obligated to effect a
registration pursuant to such Section.
(d) Selection of Underwriter. If, in connection with a registration
effected pursuant to Section 2.2, GPA so elects, the offering of Registrable
Securities pursuant to such Section shall be in the form of an underwritten
offering. If GPA so elects, it shall select one or more nationally recognized
firms of investment bankers to act as the book-running managing underwriter or
underwriters in connection with such offering, provided that such selection
shall be subject to the consent of the Company, which consent shall not be
unreasonably withheld.
(e) Registration of Securities. Participating Holders may seek to
register different types of Registrable Securities and/or different classes of
the same type of Registrable Securities simultaneously and the Company shall use
its, and in the case of an underwritten offering, shall cause the managing
underwriter or underwriters to use Commercially Reasonable Efforts to effect
such registration and sale in accordance with the intended method or methods of
disposition specified by such Holders.
(f) Withdrawal. Any Holder participating in a registration pursuant
to this Agreement shall be permitted to withdraw all or part of its Registrable
Securities from such registration at any time prior to the effective date of the
registration statement covering such securities; provided that, in the event of
a withdrawal from a registration effected pursuant to Section 2.2, such
registration shall be deemed to have been effected for purposes of Section
2.4(c) unless (i) GPA and any Participating Holders shall have paid or
reimbursed the Company for fifty percent (50)% of the reasonable out-of-pocket
fees and expenses paid by the Company hereunder or (ii) GPA elects to terminate
such registration due to the occurrence of a Material Adverse Change; provided,
however, that during the term of this Agreement only one such withdrawal shall
be permitted pursuant to the preceding proviso.
(g) Registration Procedures. In connection with the Company's
obligations to register Registrable Securities pursuant to this Agreement, the
Company will use Commercially Reasonable Efforts to effect such registration so
as to permit the sale of any Registrable Securities included in such
registration in accordance with the intended method or methods of distribution
thereof, and pursuant thereto the Company will as expeditiously as possible:
(i) prepare and (as soon thereafter as practicable) file with the SEC
the requisite registration statement containing all information required
thereby to effect such registration and thereafter use Commercially
Reasonable Efforts to cause such registration statement to become and
remain effective in accordance with the terms of this Agreement, provided
that as far in advance as practicable before filing such registration
statement or any amendment, supplement or exhibit thereto (but, with
respect to the filing of such registration statement, in no event later
than seven (7) days prior to such filing), the Company will furnish to the
Participating Holders or their counsel copies of reasonably complete drafts
of all such documents proposed to be filed (excluding exhibits, which shall
be made available upon request by any Participating Holder), and any such
Holder shall have the opportunity to object to any information contained
therein and the Company will make the corrections reasonably requested by
such Holder with respect to information relating to such Holder or the plan
of distribution of the Registrable Securities prior to filing any such
registration statement, amendment, supplement or exhibit;
(ii) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
(A) as reasonably requested by any Participating Holder to which such
registration statement relates (but only to the extent such request relates
to information with respect to such Holder) and (B) as may be necessary to
keep such registration statement effective for the period referred to in
Section 2.1(b) in the case of a Shelf Registration Statement or six (6)
months in the case of a registration effected pursuant to Section 2.2 or
2.3 (or such shorter period as shall be necessary to complete the
distribution of the securities covered thereby, but not before the
expiration of the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder), and comply with the provisions of
the Securities Act with respect to the sale or other disposition of all
securities covered by such registration statement during such period in
accordance with the intended method or methods of disposition by the seller
or sellers thereof set forth in such registration statement;
(iii) furnish to each Holder covered by, and each underwriter or
agent participating in the disposition of securities under, such
registration statement such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
excluding all exhibits and documents incorporated by reference, which
exhibits and documents shall be furnished to any such Person upon request),
such number of copies of the prospectus contained in such registration
statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the
Securities Act relating to such Holder's Registrable Securities, in
conformity with the requirements of the Securities Act, and such other
documents as such Holder, underwriter or agent may reasonably request to
facilitate the disposition of such Registrable Securities;
(iv) use Commercially Reasonable Efforts to register or qualify all
Registrable Securities and other securities covered by such registration
statement under (A) with respect to the Shelf Registration Statement, all
blue sky and other securities laws and (B) with respect to a registration
effected pursuant to Section 2.2, all applicable blue sky and other
securities laws, and to keep such registration or qualification in effect
for so long as such registration statement remains in effect, and take any
other action which may be reasonably necessary or advisable to enable such
Holder to consummate the disposition of the securities owned by such
Holder, except that the Company shall not for any such purpose be required
to (a) qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this clause
(iv) be obligated to be so qualified, (b) subject itself to taxation in any
such jurisdiction or (c) consent to general service of process in any
jurisdiction;
(v) use Commercially Reasonable Efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities applicable to
the Company as may be reasonably necessary to enable the seller or sellers
thereof (or underwriter or agent, if any) to consummate the disposition of
such Registrable Securities in accordance with the plan of distribution set
forth in such registration statement;
(vi) furnish to each Holder of Registrable Securities covered by such
registration statement a signed counterpart, addressed to such Holder (and
underwriter or agent, if any) of:
(A) an opinion of counsel to the Company, dated the effective
date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), and
(B) unless otherwise precluded under applicable accounting
rules, a "comfort" letter, dated the effective date of such
registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement), signed by the independent public accountants
who have certified the Company's financial statements included in such
registration statement,
in each case, reasonably satisfactory in form and substance to such Holder
(and underwriter or agent and their respective counsel) and covering
substantially the same matters with respect to such registration statement
(and the prospectus included therein) and, in the case of the accountants'
letter, with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's counsel and
in accountants' letters delivered to the underwriter or agent in
underwritten public offerings of securities;
(vii) promptly notify each Holder and any underwriter or agent
participating in the disposition of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery that, or
upon the happening of any event known to the Company as a result of which,
the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which
they were made, and promptly prepare and furnish to such Holder (or
underwriter or agent, if any) a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which
they were made;
(viii) otherwise use Commercially Reasonable Efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than
fifteen (15) months) after the effective date of the registration
statement, an earnings statement satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 promulgated thereunder, and furnish to
each Holder covered by such registration statement or any participating
underwriter or agent at least five (5) business days prior to the filing a
copy of any amendment or supplement to such registration statement or
prospectus;
(ix) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such registration statement from
and after a date not later than the effective date of such registration
statement;
(x) use Commercially Reasonable Efforts to (A) list, on or prior to
the effective date of such registration statement, all Registrable
Securities covered by such registration statement on any securities
exchange on which any of the Registrable Securities is then listed, if any
or (B) have authorized for quotation and/or listing, as applicable, on the
National Association of Securities Dealers, Inc. Automated Quotation
("NASDAQ") of the National Market System of NASDAQ if the Registrable
Securities so qualify;
(xi) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the National Association of Securities Dealers;
(xii) use Commercially Reasonable Efforts to prevent the issuance by
the SEC or any other governmental agency or court of a stop order,
injunction or other order suspending the effectiveness of such registration
statement and, if such an order is issued, use Commercially Reasonable
Efforts to cause such order to be lifted as promptly as practicable;
(xiii) take such other actions as the Requisite Holders of such
Registrable Securities shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(xiv) promptly notify each seller and the underwriter or agent, if
any:
(A) when such registration statement or any prospectus used in
connection therewith, or any amendment or supplement thereto, has been
filed and, with respect to such registration statement or any post-
effective amendment thereto, when the same has become effective;
(B) of any written comments from the SEC with respect to any
filing referred to in clause (A) and of any written request by the SEC
for amendments or supplements to such registration statement or
prospectus;
(C) of the notification to the Company by the SEC of its
initiation of any proceeding with respect to, or of the issuance by
the SEC of, any stop order suspending the effectiveness of such
registration statement; and
(D) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the applicable securities or blue sky laws
of any jurisdiction;
(xv) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the distribution of such Registrable
Securities to facilitate the timely preparation and delivery of
certificates (which shall not bear any restrictive legends, other than as
required by applicable law) representing securities sold under a
registration statement hereunder, and enable such securities to be in such
denominations and registered in such names as such seller, underwriter or
agent may request and keep available and make available to the Company's
transfer agent, prior to the effectiveness of such registration statement,
an adequate supply of such certificates;
(xvi) not later than the effective date of such registration
statement, provide a CUSIP number for all Registrable Securities covered by
a registration statement hereunder;
(xvii) incorporate in the registration statement or any amendment,
supplement or post-effective amendment thereto such information as each
Holder, the underwriter or agent (if any) or their respective counsel may
reasonably request to be included therein with respect to any Registrable
Securities being sold by such Holder to such underwriter or agent, the
purchase price being paid therefor by such underwriter or agent and any
other terms of the offering of such Registrable Securities;
(xviii) during any period when a prospectus is required to be
delivered under the Securities Act, make periodic filings with the SEC
pursuant to and containing the information required by the Exchange Act
(whether or not the Company is required to make such filings pursuant to
such Act); and
(xix) in connection with an underwritten offering, participate, to
the extent reasonably requested by the Requisite Holders or the managing
underwriter for the offering, in customary efforts to sell the securities
under the offering.
(h) Agreements of Certain Holders. (i) Each Holder of Registrable
Securities as to which any registration is being effected shall furnish to the
Company such information regarding such Holder, the Registrable Securities held
by such Holder and the intended plan of distribution of such securities as the
Company may from time to time reasonably request in writing in connection with
such registration. If any registration statement refers to GPA or any of its
Affiliates by name or otherwise as
the holder of any securities of the Company, then such Holder shall have the
right to require that such reference be in a form reasonably satisfactory to
such Holder or in the event that such reference to such Holder by name or
otherwise is not required by the Securities Act or any similar federal or state
blue sky statute and the rules and regulations thereunder then in force, the
deletion of the reference to such Holder.
(ii) Each Holder of Registrable Securities as to which any
registration is being effected agrees, by acquisition of such Registrable
Securities, that upon receipt of any notice (a "Suspension Notice") from the
Company of the happening of any event of the kind described in clause (vii) of
Section 2.5(g), such Holder will forthwith discontinue such Holder's disposition
of Registrable Securities pursuant to the registration statement relating to
such Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by clause (vii) of Section
2.5(g) (the period from the date on which such Holder receives a Suspension
Notice to the date on which such Holder receives copies of the supplemented or
amended prospectus being herein called the "Suspension Period"). The Company
shall take such actions as are necessary to end the Suspension Period as
promptly as practicable. In the event the Company shall give any such notice,
the periods referred to in Section 2.5(c) and clause (ii) of Section 2.5(g)
shall be extended by a number of days equal to the number of days of the
Suspension Period.
2.5. Underwritten Offerings.
(a) Underwritten Offerings in Connection with a Shelf or a Demand
Registration. If requested by the underwriters for any underwritten offering in
connection with a registration pursuant to Section 2.1 or 2.2, the Company will
enter into an underwriting agreement with such underwriters for such offering,
such agreement (i) to be satisfactory in substance and form to the Company and
to GPA (so long as it or any of its Affiliates holds Registrable Securities to
be included in such registration) and (ii) to contain such representations and
warranties by the Company and such Holders and such other terms as are generally
prevailing in agreements of such type, including, without limitation,
indemnities to the effect and to the extent provided in Section 2.7. GPA (so
long as it or any of its Affiliates holds Registrable Securities to be included
in such registration) shall be a party to such underwriting agreement and may,
at its option, require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit of
such underwriters shall also be made to and for its benefit and that any or all
of the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to its obligations thereunder.
(b) Underwritten Offerings in Connection with Piggyback Registrations.
If the Company at any time proposes to register any of its equity securities
under the Securities Act as contemplated by Section 2.3 and such securities are
to be distributed by or through one or more underwriters, the Company will, if
requested by any Participating Holder and subject to Sections 2.3(b) and (c),
arrange for such underwriters to include all of the Registrable Securities to be
offered and sold by such Holder or Holders among the securities to be
distributed by such underwriters. The Holders of Registrable Securities to be
distributed by such underwriters shall be parties to the underwriting agreement
between the Company and such underwriters, provided that such agreement is
reasonably satisfactory in substance and form to the Company and the Requisite
Holders, and the Requisite Holders may, at their option, require that any or all
of the representations and warranties by, and the other agreements on the part
of, the Company to and for the benefit of such underwriters shall also be made
to and for the benefit of such Holders and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such Holders thereunder.
2.6. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the Holders of Registrable
Securities to be registered under such registration statement, their
underwriters or agents, if any, and their respective counsel and accountants
reasonable access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of such Holders' and such underwriter s' or agents' respective counsel,
to conduct a reasonable investigation within the meaning of the Securities Act.
2.7. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless, to the full extent permitted by law, each Holder
participating in an offering provided for as described herein (including,
without limitation, under the Shelf Registration Statement or any replacement
Shelf Registration Statement), its directors, officers, shareholders, employees,
investment advisers, agents and Affiliates, either direct or indirect (and each
such Affiliate's directors, officers, shareholders, employees, investment
advisers and agents), and each other Person, if any, who controls such Persons
within the meaning of the Securities Act (each such Person, an "Indemnified
Party"), from and against any losses, claims, damages, liabilities or expenses,
joint or several (each a "Loss" and collectively, "Losses"), to which such
Indemnified Party may become subject under the Securities Act or otherwise, to
the extent that such Losses (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act (including all documents incorporated therein by reference), any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse such Indemnified Party for any legal or any other expenses reasonably
incurred by it in connection with investigating or defending against any such
Loss, action or proceeding; provided that in any such case the Company shall not
be liable to any particular Indemnified Party to the extent that such Loss (or
action or proceeding in respect thereof) arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Indemnified
Party specifically for inclusion therein; and provided, further, that the
Company shall not be liable in any such case to the extent it is finally
determined by a court of competent jurisdiction that any such Loss (or action or
proceeding in respect thereof) arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
(i) in any such preliminary prospectus, if (A) it was the
responsibility of such Indemnified Party to provide the Person asserting
such Loss with a current copy of the prospectus and such Indemnified Party
failed to deliver or cause to be delivered a copy of the prospectus to such
Person after the Company had furnished such Indemnified Party with a
sufficient number of copies of the same prior to the sale of Registrable
Securities to the Person asserting such Loss and (B) the prospectus
corrected such untrue statement or omission; or
(ii) in such prospectus, if such untrue statement or omission is
corrected in an amendment or supplement to such prospectus and such
amendment or supplement has been delivered to the Indemnified Party prior
to the sale of Registrable Securities to the Person asserting such Loss and
the Indemnified Party thereafter fails to deliver the prospectus as so
amended or supplemented prior to or concurrently with such sale after the
Company had furnished such Indemnified Party (in accordance with the notice
provisions contained in Section 10 for Persons who are parties to this
Agreement) with a sufficient number of copies of the same for delivery to
purchasers of securities.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall survive
the transfer of such securities by such Indemnified Party. The Company shall
also indemnify each other Person who participates (including as an underwriter)
in the offering or sale of Registrable Securities hereunder, their officers and
directors and each other Person, if any, who controls any such participating
Person within the meaning of the Securities Act to the same extent as provided
above with respect to Indemnified Parties.
(b) Indemnification by the Sellers. (i) The Company may require, as
a condition to including any Registrable Securities in any registration
statement filed pursuant to Sections 2.1, 2.2 or 2.3 and as a condition to
indemnifying such sellers pursuant to this Section 2.7, that the Company shall
have received an undertaking reasonably satisfactory to it from each prospective
seller of such securities, and (ii) each Holder participating in the Shelf
Registration Statement or any replacement Shelf Registration Statement agrees,
to indemnify and hold harmless and reimburse (in the same manner and to the same
extent as set forth in paragraph (a) of this Section 2.7) the Company, each
director, officer, employee and agent of the Company, and each other Person, if
any, who controls the Company within the meaning of the Securities Act, from and
against any Losses (or actions or proceedings, whether commenced or threatened,
in respect thereof) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any registration statement
under which such securities were registered under the Securities Act (including
all documents incorporated therein by reference), any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission from such registration
statement, preliminary prospectus, final prospectus or summary prospectus, or
any amendment or supplement thereto required to be stated therein or necessary
to make the statements therein not misleading, if (but only if) such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such prospective seller specifically for inclusion therein; provided,
however, that such prospective seller shall not be obligated to provide such
indemnity to the extent that such Losses result, directly or indirectly, from
the failure of the Company to promptly amend or take action to correct or
supplement any such registration statement, prospectus, amendment or supplement
based on corrected or supplemental information provided in writing by such
prospective seller to the Company expressly for such purpose; and provided
further, that the obligation to provide indemnification pursuant to this Section
2.7(b) shall be several, and not joint and several, among such indemnifying
parties. Notwithstanding anything in this Section 2.7(b) to the contrary, in no
event shall the liability of any prospective seller under such indemnity be
greater in amount than the amount of the proceeds received by such seller upon
the sale of its Registrable Securities in the offering to which the Losses
relate. Such indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or any such director, officer,
employee, agent or participating or controlling Person and shall survive the
transfer of such securities by such prospective seller.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in paragraph (a) or (b) of this Section 2.7, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give prompt written notice to the latter of the commencement of such
action, provided that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under this Section 2.7, except to the extent that the indemnifying
party is actually and materially prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, the indemnifying
party shall be entitled to participate in and to assume the defense thereof
(such assumption to constitute its acknowledgement of its agreement to indemnify
the indemnified party with respect to such matters), jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal fees or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that if, in such indemnified party's
reasonable judgment, a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, such indemnified party
shall be entitled to separate counsel at the expense of the indemnifying party;
and provided, further, that, unless there exists a conflict of interest among
indemnified parties, all indemnified parties in respect of such claim shall be
entitled to only one counsel or firm of counsel for all such indemnified
parties. In the event an indemnifying party shall not be entitled, or elects
not, to assume the defense of a claim, such indemnifying party shall not be
obligated to pay the fees and expenses of more than one counsel or firm of
counsel for all parties indemnified by such indemnifying party in respect of
such claim, unless in the reasonable judgment of any such indemnified party a
conflict of interest exists between such indemnified party and any other of such
indemnified parties in respect of such claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of one additional counsel
or firm of counsel for such indemnified parties. No indemnifying party shall,
without the consent of the indemnified party, consent to entry of any judgment
or enter into any settlement that (i) does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all Losses in respect of such claim or litigation or (ii) would
impose injunctive relief on such indemnified party. No indemnifying party shall
be subject to any Losses for any settlement made without its consent, which
consent shall not be unreasonably withheld.
(d) Other Indemnification. The provisions of this Section 2.7 shall
be in addition to any other rights to indemnification or contribution which an
indemnified party may have pursuant to law, equity, contract or otherwise.
(e) Indemnification Payments. The indemnification required by this
Section 2.7 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, promptly as and when bills are received
or Losses are incurred.
(f) Contribution. If for any reason the foregoing indemnity and
reimbursement is unavailable or is insufficient to hold harmless an indemnified
party under paragraph (a) or (b) of this Section 2.7, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of any Loss (or actions or proceedings, whether commenced or
threatened, in respect thereof), including, without limitation, any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such Loss, action or proceeding, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the indemnified party on the other. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. Notwithstanding anything in this Section 2.7(f) to the contrary, no
indemnifying party (other than the Company) shall be required pursuant to this
Section 2.7(f) to contribute any amount in excess of the amount by which the net
proceeds received by such indemnifying party from the sale of Registrable
Securities in the offering to which the Losses of the
indemnified parties relate exceeds the amount of any damages which such
indemnifying party has otherwise been required to pay by reason of such untrue
statement or omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
3. Rule 144 and Rule 144A. (a) The Company will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder and will take such further
action as GPA may reasonably request, all to the extent required from time to
time to enable GPA to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144,
(ii) Rule 144A or (iii) any similar rule or regulation hereafter adopted by the
SEC. Upon the request of GPA, the Company will deliver to GPA a written
statement as to whether it has complied with such requirements and will, at its
expense, forthwith upon the request of GPA, deliver to GPA a certificate, signed
by the Company's principal financial officer, stating (A) the Company's name,
address and telephone number (including area code), (B) the Company's Internal
Revenue Service identification number, (C) the Company's SEC file number, (D)
the amount of shares of each class of capital stock outstanding as shown by the
most recent report or statement published by the Company, and (E) whether the
Company has filed the reports required to be filed under the Exchange Act for a
period of at least ninety (90) days prior to the date of such certificate and in
addition has filed the most recent annual report required to be filed
thereunder.
(b) If at any time the Company is not required to file reports in
compliance with either Section 13 or Section 15(d) of the Exchange Act, the
Company at its expense will, forthwith upon the request of GPA, (i) make
available adequate current public information with respect to the Company within
the meaning of paragraph (c)(2) of Rule 144 and (ii) deliver the information
required by Section (d) of Rule 144A (such information to be "reasonably
current" within the meaning of Section (d)(4)(ii) of Rule 144A).
4. Term. This Agreement shall be effective on the date hereof and,
subject to Section 15 hereof, shall continue in full force and effect until the
eighth (8th) anniversary of the date hereof.
5. Amendments and Waivers. This Agreement may be amended,
supplemented or modified at any time; provided that each of (i) GPA (so long as
GPA or its Affiliates hold Registrable Securities), (ii) the Holders (which may
include GPA) of at least fifty-one percent (51%) in interest of Registrable
Securities, and (iii) the Company has provided its written consent to such
amendment, supplement or modification. Any term or condition of this Agreement
may be waived at any time by the party that is entitled to the benefit thereof,
but no such waiver shall be effective unless set forth in a written instrument
duly executed by or on behalf of the party waiving such term or condition. No
waiver by any party of any term or condition of this Agreement, in any one or
more instances, shall be deemed to be or construed as a waiver of the same term
or condition of this Agreement on any future occasion.
6. Entire Agreement. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof and contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof.
7. No Third-Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party and their respective
Successors and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person other than (i) any Affiliate of
GPA, (ii) any Holder of Registrable Securities entitled to notice of the
registration of securities under this Agreement and (iii) any Participating
Holder entitled to indemnity under Section 2.7.
8. Invalid Provisions. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future law, (i)
such provision will be fully severable, (ii) this Agreement will be construed
and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (iii) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom and (iv) in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible.
9. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only (i)
if delivered personally (ii) by facsimile transmission, (iii) by Federal Express
or other nationally recognized courier service or (iv) mailed (first class
postage prepaid) to the parties at the following addresses or facsimile numbers:
If to the Company, to:
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
Fax No.: (602) 693-5904
With a copy to:
Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
600 Travis
Houston, Texas 77002
Attention: David G. Elkins
If to AmWest, to:
AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax No.: (817) 871-4010
If to GPA, to:
GPA Group plc
GPA House
Shannon, County Clare
Ireland
Telecopier: 011-353-61-360503
Attention: Patrick H. Blaney and
Corporate Secretary
With a copy to:
Paul, Hastings, Janofsky & Walker
399 Park Avenue
New York, New York 10022
Telecopier: (212) 319-4090
Attention: Marguerite R. Kahn
With respect to any other Holder of Registrable Securities or other
holder of securities entitled to receive notice, requests or other
communications hereunder, such notices, requests and other communications shall
be sent to the addresses and facsimile numbers provided to the Company and the
other parties hereto by notice as herein provided and referencing this
Agreement. All such notices, requests and other communications will (i) if
delivered personally to the address as provided in this Section 10, be deemed
given upon delivery, (ii) if delivered by facsimile transmission to the
facsimile number as provided in this Section 9, be deemed given upon receipt,
and (iii) if delivered by courier service or mail in the manner described above
to the address as provided in this Section 9, be deemed given upon receipt (in
each case regardless of whether such notice, request or other communication is
received by any other Person to whom a copy of such notice is to be delivered
pursuant to this Section 9). Any Person from time to time may change its
address, facsimile number or other information for the purpose of notices to
that Person by giving notice in accordance with this Section 9 specifying such
change to each of the other parties executing this Agreement.
10. Assignment. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties, the Holders of Registrable
Securities and their respective Successors (including, in the case of the
Company, the Company as reorganized pursuant to the Plan of Reorganization) and
permitted assigns. GPA may assign (by written instruments in form reasonably
acceptable to the parties) any of its rights hereunder (in whole or in part) to
one or more Affiliates, but otherwise may not assign any of its rights hereunder
to any Person, provided, however, that each transferee of Registrable Securities
shall be entitled (subject to priorities in registration rights) to participate
in an underwritten offering of securities being registered pursuant to Sections
2.2(d) and 2.3 hereof and, with respect to any such participation, to have all
of the rights of a Holder of Registrable Securities provided in this Agreement.
11. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for convenience of
reference only and do not define or limit the provisions hereof or otherwise
affect the meaning hereof.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF.
13. Registration Rights to Others. As of the date hereof, the
Company has not granted to any other holder of its securities rights with
respect to the registration of securities of the Company under the Securities
Act other than rights granted pursuant to the AmWest Registration Rights
Agreement.
14. Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall, to the extent permitted by
applicable law, be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
15. Termination of Certain Rights and Obligations. The rights and
obligations hereunder of GPA shall terminate with respect to GPA at such time as
neither GPA nor any of its Affiliates holds Registrable Securities, provided
that the provisions of Section 2.7, the rights of any party hereto with respect
to the breach of any provision hereof and any obligation accrued as of the date
of termination shall survive termination of this Agreement.
16. No Inconsistent Agreements. The Company will not hereafter enter
into, modify, amend or waive any agreement with respect to its securities if
such agreement, modification or waiver would conflict with the rights granted
pursuant to this Agreement to the Holders of Registrable Securities.
Specifically, and subject to Section 15 hereof, the Company (i) will not amend,
or modify or permit the amendment or modification of provisions contained in
Sections 2.2 or 2.3 of the AmWest Registration Rights Agreement and dealing with
priority of participation in registrations without the prior written consent of
GPA, and (ii) the Company will give prompt notice to GPA of any demand
registration rights hereafter granted by the Company to any Person during the
term of this Agreement.
17. Specific Performance. The parties agree that, to the extent
permitted by law, (i) the obligations imposed on them in this Agreement are
special, unique and of an extraordinary character, and that in the event of a
breach by any such party damages would not be an adequate remedy and (ii) each
of the other parties shall be entitled to specific performance and injunctive
and other equitable relief in addition to any other remedy to which it may be
entitled at law or in equity.
18. Requisite Holders. Each of the parties hereto agrees that the
Company may, in connection with the taking of any action permitted to be taken
hereunder with the consent or approval of the Requisite Holders of the
securities to be included in the relevant registration, rely in good faith on a
certificate from such holder or holders stating that it holds or is acting on
behalf of a majority in interest of such securities.
19. Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
of which shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whalen
---------------------
Name: Martin J. Whalen
------------------
Title: Senior Vice President
---------------------
GPA GROUP plc
By: /s/ Michael Walsh
------------------
Name: Michael Walsh
--------------
Title: Vice President-Legal
---------------------
STOCKHOLDERS' AGREEMENT FOR
AMERICA WEST AIRLINES, INC.
THIS STOCKHOLDERS' AGREEMENT FOR AMERICA WEST AIRLINES, INC. (this
"Agreement") is entered into as of this 25th day of August, 1994 by and among
AmWest Partners, L.P., a Texas limited partnership, GPA Group plc, a corporation
organized under the laws of Ireland ("GPA"), Robert A. Ewert, David T. Obergfell
and William A. Franke (collectively, the "Stockholder Representatives"), and
America West Airlines, Inc., a Delaware corporation (the "Company").
RECITALS:
WHEREAS, on June 27, 1991, the Company filed a case seeking relief
under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court
for the District of Arizona (the "Bankruptcy Court"); and
WHEREAS, on December 8, 1993, the Bankruptcy Court entered an Order on
Motion to Establish Procedures for Submission of Investment Proposals (the
"Procedures Order"); and
WHEREAS, pursuant to the Procedures Order, AmWest and the Company have
entered into that certain Third Revised Investment Agreement dated April 21,
1994 (the "Investment Agreement"), contemplating an investment by AmWest in the
Company (the "Investment") and providing for the consummation of the Company's
Plan of Reorganization (the "Plan"); and
WHEREAS, on August 10, 1994, the Bankruptcy Court entered an order
confirming the Plan; and
WHEREAS, in consideration of the Investment, the Company has issued
common stock of the Company ("Common Stock") consisting of Class A Common Stock
("Class A Common") and Class B Common Stock ("Class B Common") and warrants to
purchase Class B Common to AmWest and others; and
WHEREAS, in exchange for the release and modification of certain
agreements and claims, the Company has issued shares of Class B Common and
warrants to purchase Class B Common to GPA; and
WHEREAS, pursuant to Section 6(b) of the Investment Agreement, the
Official Committee of Equity Holders of America West Airlines, Inc., appointed
in the Company's Chapter 11 case (the "Equity Committee") has appointed Robert
A. Ewert as a Stockholder Representative; and
WHEREAS, pursuant to Section 6(b) of the Investment Agreement, the
Official Committee of Unsecured Creditors of America West Airlines, Inc.,
appointed in the Company's Chapter
11 case (the "Creditors' Committee") has appointed David T. Obergfell as a
Stockholder Representative; and
WHEREAS, pursuant to Section 6(b) of the Investment Agreement, the
Board of Directors of the Company, as constituted prior to consummation of the
Plan, has appointed William A. Franke as a Stockholder Representative; and
WHEREAS, the parties hereto have agreed to enter into this Agreement
pursuant to Section 218(c) of Title 8 of the Delaware Code (the "General
Corporation Law").
NOW, THEREFORE, in consideration of the premises herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.0 DEFINITIONS.
"Affiliate" shall mean (i) when used with reference to any partnership,
any person or entity that, directly or indirectly, owns or controls ten percent
(10%) or more of either the capital or profit interests of such partnership or
is a partner of such partnership or is a person or entity in which such
partnership has a ten percent (10%) or greater direct or indirect equity
interest and (ii) when used with reference to any corporation, any person or
entity that, directly or indirectly, owns or controls ten percent (10%) or more
of the outstanding voting securities of such corporation or is a person or
entity in which such corporation has a ten percent (10%) or greater direct or
indirect equity interest. In addition, the term "Affiliate," when used with
reference to any person or entity, shall also mean any other person or entity
that, directly or indirectly, controls or is controlled by or is under common
control with such person or entity. As used in the preceding sentence, (A) the
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of the entity
referred to, whether through ownership of voting securities, by contract or
otherwise and (B) the terms "controlling" and "controls" shall have meanings
correlative to the foregoing. Notwithstanding the foregoing, neither the Company
nor any Fidelity Fund will be deemed to be an Affiliate of AmWest or any of its
partners and each of AmWest GenPar, Inc., Air Partners II, L.P., Continental,
Mesa, TPG Partners, L.P., and TPG Parallel I, L.P., shall be deemed to be an
Affiliate of AmWest.
"Alliance Agreements" shall have the meaning set forth in the
Investment Agreement.
2
"AmWest" shall mean AmWest Partners, L.P., and in the event AmWest
Partners, L.P., by dissolution or otherwise, designates any or all of its
general and limited partners to receive Common Stock attributable to AmWest
Partners, L.P., "AmWest" shall collectively include all such general and limited
partners. "AmWest Partners, L.P." refers only to such partnership prior to
dissolution.
"AmWest Director" shall mean a director of the Company designated by
AmWest pursuant to Section 2.1(a).
"Annual Meeting" shall mean an annual meeting of the shareholders of
the Company.
"Board" shall mean the Company's Board of Directors.
"Bylaws" shall mean the Restated Bylaws adopted by the Company in
accordance with Section 303 of the General Corporation Law pursuant to the Plan.
"Citizens of the United States" shall have the meaning set forth in
Section 1301, Title 49, United States Code, as now in effect or as it may
hereafter from time to time be amended.
"Continental" shall mean Continental Airlines, Inc. or any successor.
"Creditors' Committee Director" shall mean a director of the Company
designated by the Creditors' Committee or otherwise pursuant to Section 2.1(b).
"Effective Date" shall mean the date upon which the Restated
Certificate of Incorporation becomes effective in accordance with the Plan and
the General Corporation Law.
"Equity Committee Director" shall mean a director of the Company
designated by the Equity Committee or otherwise pursuant to Section 2.1(b)
"Fidelity Fund" shall mean a fund or account managed or advised by
Fidelity Management Trust Company or any of its Affiliates or successor(s).
"GPA Director" shall mean a director of the Company designated by GPA
pursuant to Section 2.1(c).
"Independent Company Director" shall mean a director of the Company
designated pursuant to Section 2.1(b).
3
"Independent Directors" shall mean, collectively, the Creditors'
Committee Directors, the Equity Committee Director, and the Independent Company
Director.
"Lehman" shall mean Lehman Brothers Inc. or any successor.
"Mesa" shall mean Mesa Airlines, Inc. or any successor.
"Public Offering" shall have the meaning set forth in Section 4.2.
"Restated Certificate of Incorporation" shall mean the Restated
Certificate of Incorporation adopted by the Company in accordance with Section
303 of the General Corporation Law pursuant to the Plan.
"Stockholder Representatives" shall mean the persons identified as such
in the recitals set forth above; provided that in the case of the death,
resignation, removal or disability of a Stockholder Representative, his or her
successor shall be designated in the manner set forth in Section 2.1(b), and
upon providing a written acknowledgment to such effect to all other parties
hereto and agreeing to be bound and subject to the terms hereof, shall become a
Stockholder Representative.
"Third Annual Meeting" shall mean the first Annual Meeting after the
third anniversary of the Effective Date.
2.0 DESIGNATION AND VOTING FOR COMPANY DIRECTORS.
2.1 Until the Third Annual Meeting, subject to the exception set forth
in Section 4.7(a), the Board shall consist of up to fifteen (15) persons, of
whom nine (9) persons shall be AmWest Directors, five (5) persons shall be
Independent Directors and up to one (1) person shall be a GPA Director, all
designated in accordance with the following procedure:
(a) The AmWest Directors designated on Exhibit A hereto shall serve
until the first Annual Meeting following the Effective Date and until the
successor to each such director shall be duly elected and qualified, or until
their death, disability, removal or resignation. No less than thirty (30)
days in advance of each Annual Meeting prior to (but not including) the Third
Annual Meeting, and no less than five (5) days in advance of any other meeting
of the Board prior to (but not including) the Third Annual
4
Meeting at which a director will be elected to sit on the Board in a seat
vacated by an AmWest Director because of death, disability, removal,
resignation, or otherwise, AmWest shall give written notice to the other
parties hereto designating the individual or individuals to serve as AmWest
Directors. For so long as AmWest and/or its Affiliates holds at least five
percent (5%) of the voting equity securities of the Company (on a fully
diluted basis), GPA agrees to vote the Common Stock held and controlled by it
and to cause the GPA Director to vote or provide written consents in favor of
such designees and to take any other action necessary to elect such designees.
The Stockholder Representatives agree to recommend to the Independent
Directors to vote or provide written consents in favor of such designees and
to take any other action necessary to elect such designees. Upon dissolution,
AmWest Partners, L.P., may assign its rights under this Section 2.1(a) jointly
or severally to any of its general or limited partners.
(b) Three (3) Creditors' Committee Directors, one (1) Equity
Committee Director, and one (1) Independent Company Director, each as
designated on Exhibit A hereto, shall serve until the first Annual Meeting
following the Effective Date and until the successor to each such director
shall be duly elected and qualified, or until their death, disability, removal
or resignation. Until (but not including) the Third Annual Meeting, the
Company shall nominate for reelection, and AmWest and GPA shall vote the
Common Stock held and controlled by them in favor of, each Independent
Director designated on Exhibit A for so long as he or she continues to serve
on the Board. No less than five (5) days in advance of any meeting of the
Board prior to the Third Annual Meeting at which a director will be elected to
sit on the Board in a seat vacated by an Independent Director because of
death, disability, removal, resignation or otherwise (a "Successor Independent
Director"), and no less than thirty (30) days in advance of an Annual Meeting
prior to (but not including) the Third Annual Meeting at which the term of any
Successor Independent Director will expire, the Stockholder Representatives
shall give written notice to the other parties hereto designating the
individuals to serve as Independent Directors; except that if the Creditors'
Committee or the Equity Committee remain in effect, they shall have the right
to designate the Creditors' Committee Directors and the Equity Committee
Director, respectively, or the
5
individuals to fill vacancies thereof, by giving written notice to the other
parties hereto in accordance with the terms set forth above and provided that
the Stockholder Representatives shall select any Successor Independent
Director to replace the Independent Company Director from among the executive
officers of the Company. Each of AmWest and GPA agrees to vote the Common
Stock held and controlled by them and to cause the AmWest Directors and the
GPA Director, respectively, to vote or provide written consents in favor of
such designees and to take any other action necessary to elect such designees;
provided that each Independent Director shall be reasonably acceptable to
AmWest at the time of his or her initial designation.
(c) The GPA Director designated on Exhibit A hereto shall serve
until the first Annual Meeting following the Effective Date and until the
successor to such director shall be duly elected and qualified or until his or
her death, disability, removal, or resignation. No less than thirty (30) days
in advance of each Annual Meeting prior to (but not including) the Third
Annual Meeting, and no less than five (5) days in advance of any other meeting
of the Board prior to the Third Annual Meeting at which a director will be
elected to sit on the Board in a seat vacated by the GPA Director because of
death, disability, removal, resignation or otherwise, GPA shall give written
notice to the other parties hereto designating the individual to serve as GPA
Director. Unless the rights of GPA hereunder have been terminated pursuant to
Section 6.2, AmWest agrees to vote the Common Stock held and controlled by it,
and to cause the AmWest Directors, and the Stockholder Representatives agree
to recommend to the Independent Directors, to vote or provide written consents
in favor of such designee and to take any other action necessary to elect such
designee; provided that the GPA Director shall be reasonably acceptable to
AmWest at the time of his or her initial designation.
(d) Except as otherwise provided herein, each of AmWest, the
Stockholder Representatives, and GPA agrees to nominate or cause the
nomination of the AmWest Directors, the Independent Directors, and the GPA
Director, respectively, in accordance with the Bylaws.
(e) Notwithstanding the foregoing, no party hereto shall be
obligated to vote any shares for which
6
the voting rights have been suspended, whether voluntarily or involuntarily.
(f) In the event that AmWest, the Creditors' Committee or Equity
Committee (for so long as each is in existence and has the ability to
designate a director as herein provided), the Stockholder Representatives, or
GPA shall fail or refuse to designate a nominee to the Board for a position
allocated to and to be filled by such group or entity as herein provided, such
position shall not be filled and shall remain vacant unless and until such
designation shall be made as herein provided.
(g) In the event that the rights and obligations of GPA with
respect to this Agreement are terminated in accordance with Section 6.2, GPA
agrees to cause the resignation of, or provide notice to the other parties
hereto as provided in subsection (h)(i) below requesting removal of, the GPA
Director, at which time the Board shall be reduced to fourteen (14) persons.
(h) The parties hereto agree (i) to vote the Common Stock held and
controlled by them in favor of the removal from the Board, upon notice by the
group or entity having the right to designate such director under this Section
2.1 and requesting such removal, of any person or persons designated to the
Board by such group or entity, and (ii) to vote the Common Stock held and
controlled by them (other than stock held individually by any Stockholder
Representative) and to cause (or in the case of the Stockholder
Representatives, recommend to) the directors designated by them to vote or
take such action as may be required under the General Corporation Law or
otherwise to implement the provisions of this Agreement. The group or entity
who has nominated any director in accordance with this Agreement shall have
the exclusive right to remove or replace such director by written notice as
herein provided; except that nothing in this agreement shall be construed to
limit or prohibit the removal of any director for cause.
2.2 Until the Third Annual Meeting, at least eight of the AmWest
Directors, at least two of the Creditors' Committee Directors, the Equity
Committee Director, and the Independent Company Director shall each be
Citizens of the United States.
7
2.3 AmWest agrees that no AmWest Director shall be an officer or
employee of Continental.
3.0 VOTING ON CERTAIN MATTERS.
3.1 Any director who is selected by, or who is a director of,
Continental shall recuse himself or herself from voting on, or otherwise
receiving any confidential information regarding, matters in connection with
negotiations between Continental and the Company (including, without
limitation, negotiation between Continental and the Company of the Alliance
Agreements) and matters in connection with any action involving direct
competition between Continental and the Company. Any director who is selected
by, or who is a director, officer or employee of, Mesa shall recuse himself or
herself from voting on, or otherwise receiving any confidential information
regarding, matters in connection with negotiations between Mesa and the
Company (including, without limitation, negotiation between Mesa and the
Company of the Alliance Agreements) and matters in connection with any action
involving direct competition between Mesa and the Company.
3.2 Until the Third Annual Meeting, the affirmative vote of the
holders of a majority of the voting power of the outstanding shares of each
class of common stock of the Company entitled to vote (excluding any shares
owned by AmWest or any of its Affiliates, but not, however, excluding shares
owned, controlled or voted by Mesa or any of its transferees or Affiliates
that are not otherwise Affiliates of AmWest Partners, L.P.), voting as a
single class, shall be required to approve, adopt or authorize:
(a) Any merger or consolidation of the Company with or into AmWest
or any Affiliate of AmWest;
(b) Any sale, lease, exchange, transfer, or other disposition by
the Company of all or any substantial part of the assets of the Company to
AmWest or any Affiliate of AmWest;
(c) Any transaction with or involving the Company as a result of
which AmWest or any of AmWest's Affiliates will, as a result of issuances of
voting securities by the Company (or any other securities convertible into or
exchangeable for such voting securities), acquire an increased percentage
ownership of such voting securities, except for (i) the exercise of Warrants
issued under the Plan, (ii) the conversion of Class A Common held by it to
8
Class B Common, or (iii) otherwise pursuant to a transaction in which all
holders of Class B Common may participate on a pro rata basis at the same
price per share and on the same economic terms, including, without limitation,
(A) a tender or exchange offer for all shares of the Common Stock and (B) a
Public Offering; or
(d) Any related series or combination of transactions having or
which will have, directly or indirectly, the same effect as any of the
foregoing.
At the request of any party proposing such a transaction, subject to
the Board approving such request, the Company agrees to put to a vote of the
shareholders the approval of any transaction referred to in subparagraphs (a)
through (d) above (excluding the excepted transactions referred to in clauses
(i), (ii), and (iii) of subparagraph (c)) at the next regular or any duly
convened special meeting of the shareholders of the Company. Except to the
extent otherwise required by applicable law, the shareholder voting
requirements specified above shall not be applicable to a proposed action
which has been approved or recommended by at least three Independent
Directors.
4.0 FURTHER COVENANTS.
4.1 Neither AmWest nor any partner or Affiliate of AmWest or of any
partner of AmWest shall sell or otherwise transfer any Common Stock (other
than to an Affiliate of the transferor) if, after giving effect thereto and to
any related transaction by such party, the total number of shares of Class B
Common beneficially owned by the transferor is less than twice the total
number of shares of Class A Common beneficially owned by the transferor;
provided, however, that nothing contained in this Section 4.1 shall prohibit
any owner of Common Stock from selling or otherwise transferring, in a single
transaction or related series of transactions, all shares of Common Stock
owned by it, subject to the remaining provisions of this Agreement.
4.2 AmWest Partners, L.P., agrees that its constituent documents shall
at all times require that this Agreement be binding upon all general and
limited partners of AmWest Partners, L.P., and any Affiliate of AmWest
Partners, L.P., or such partners who hold or receive shares of the Company or
direct the voting of any shares held by AmWest, and upon any assignees or
transferees in a single transaction or a related series of transactions of all
or substantially all of the Common Stock owned by AmWest or any of its
9
partners or Affiliates of AmWest or any of their partners; except that this
Agreement shall not be binding (x) upon any Fidelity Fund or Lehman with
respect to Class B Common and warrants to purchase Class B Common acquired by
them contemporaneous with the consummation of the Plan pursuant to an
assignment or transfer from AmWest, or (y) upon any assignee or transferee who
acquires such Common Stock pursuant to (i) a tender or exchange offer open to
all shareholders of the Company on a pro rata basis at the same price per
share and on the same economic terms, (ii) a public distribution registered
under the Securities Act of 1933 (as amended, the "Securities Act"), or sale
on the open market through a "brokers' transaction," as that term is defined
in subsection (g) of Rule 144 (as hereinafter defined), (a "Public Offering"),
or (iii) a transfer made pursuant to Rule 144 (as amended, "Rule 144") under
the Securities Act. AmWest shall not sell or transfer (including upon
dissolution of AmWest Partners, L.P.) any Common Stock held by it to any of
its general or limited partners, to any Fidelity Fund, to Lehman, or to any
Affiliate of AmWest or such partners and AmWest shall not sell or transfer all
or substantially all of the Common Stock held by it in a single transaction or
a related series of transactions, except in accordance with clauses (i), (ii)
or (iii), above, unless and until it causes any assignee or transferee to
provide a written acknowledgment to the other parties hereto that it accepts
and is bound by and subject to the terms of this Agreement.
4.3 AmWest covenants and agrees that, without the prior written
consent of the Company given pursuant to a resolution duly adopted by the
affirmative vote of not less than 75% of all directors of the Company, it
shall not sell or transfer, in a single transaction or a related series of
transactions, shares of Common Stock representing fifty one percent (51%) or
more of the combined voting power of all shares of Common Stock then
outstanding, other than (i) pursuant to or in connection with a tender or
exchange offer for all shares of Common Stock and for the benefit of all
holders of Class B Common on a pro rata basis at the same price per share and
on the same economic terms, (ii) to any Affiliate of AmWest, (iii) to any
Affiliate of AmWest's partners, (iv) pursuant to a bankruptcy or insolvency
proceeding, (v) pursuant to a judicial order, legal process, execution or
attachment, (vi) in a Public Offering; or (vii) in any other transaction where
the purchase price per share of the Common Stock being sold or transferred
therein is equal to or less than the then-current market price per share
(i.e., the average of the daily mean between the high and low sales prices
regular way of the shares of Common Stock on the
10
exchange on which shares of Common Stock are listed for ten (10) consecutive
trading days preceding the effective date of such transaction). For purposes
of the foregoing, a transaction (the "Primary Transaction") involving any
Person will not be deemed to be related to any other transaction (the "Other
Transaction") if (i) the Other Transaction does not involve, directly or
indirectly, such Person or any Affiliate of such Person, it being understood
that, for purposes of this clause (i), TPG Partners, L.P., TPG Parallel I,
L.P., and Continental will be deemed not to be Affiliates of one another, and
(ii) the Primary Transaction and the Other Transaction do not involve,
directly or indirectly, Persons who are assignees, direct or indirect, of
AmWest and who are acting in concert with respect thereto, it being understood
that, for purposes of this clause (ii), Persons will be deemed to be acting in
concert when they act jointly or on a coordinated basis pursuant to any
express or tacit agreement, arrangement or understanding.
4.4 If required by applicable law, within ten (10) days of the
Effective Date, AmWest shall file with the Securities and Exchange Commission,
a Schedule 13D pursuant to Regulation 13D-G ("Regulation 13D-G") under the
Securities Exchange Act of 1934 (as amended, the "Exchange Act"), and shall
amend such filing as required by Regulation 13D-G. Each other party hereto
covered by such filing covenants and agrees to promptly provide to AmWest all
information pertaining to such party and necessary to make such amendments and
to notify AmWest of any changes in facts or circumstances pertaining to such
party that would require any amendments under Regulation 13D-G.
4.5 AmWest agrees that it shall not cause any amendment to the
provisions of the Restated Certificate of Incorporation or the Bylaws or
otherwise take any action that supersedes or materially adversely affects or
impairs the rights and obligations of the parties under this Agreement or is
contrary to the provisions of this Agreement.
4.6 (a) Each certificate evidencing shares of Common Stock issued to
AmWest or any of its partners, GPA and any of their respective Affiliates, and
any assignee or transferee bound by the terms hereof, including shares of
Common Stock issued in connection with the exercise of any warrant, so long as
such Common Stock is held by them and prior to the termination or expiration
of this Agreement, shall be conspicuously stamped or marked with a legend
including substantially as follows:
11
THE RIGHTS AND OBLIGATIONS OF THE HOLDER OF THIS CERTIFICATE SHALL BE
SUBJECT TO THE TERMS AND PROVISIONS OF THAT CERTAIN STOCKHOLDERS'
AGREEMENT DATED AUGUST 25, 1994, COPIES OF WHICH ARE ON FILE AT THE
PRINCIPAL OFFICE OF AMERICA WEST AIRLINES, INC.
and each such certificate, for so long as such certificate is held by AmWest
or any of its partners and any of their respective Affiliates and any assignee
or transferee bound by the terms hereof and prior to the termination or
expiration of this Agreement, shall include in such legend the following:
THIS CERTIFICATE AND ANY INTEREST HEREIN MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE AFORESAID
STOCKHOLDERS' AGREEMENT.
(b) All certificates evidencing shares of Common Stock and warrants
of the Company that have not been registered pursuant to the Securities Act of
1933, as amended, and that are not exempt from registration under Section 1145
of the Bankruptcy Code, shall at all times be conspicuously stamped or marked
with a legend including substantially as follows:
THE ISSUANCE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT") OR PURSUANT TO THE SECURITIES LAWS OF ANY STATE, AND SUCH
SECURITIES MAY NOT BE SOLD OR TRANSFERRED OTHER THAN IN ACCORDANCE WITH
THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND THE RULES AND
REGULATIONS THEREUNDER OR AN EXEMPTION THEREFROM AND FROM ANY
APPLICABLE STATE SECURITIES LAWS.
(c) Upon the termination of this Agreement, the Company shall,
without charge and upon surrender of certificates by the holders thereof and
written request cancel all certificates evidencing shares of Common Stock
bearing the legend described in subparagraph (a) above and issue to the
holders thereof replacement certificates that do not bear such a legend for an
equal number of shares held by such holders. Upon the transfer of any Common
Stock bearing the legend described in subparagraph (a) above to a party not
bound by and subject to this Agreement, the Company shall, without charge and
upon the surrender of certificates by the holders thereof and written request
cancel all certificates evidencing such shares of Common Stock and issue to
the
12
transferee thereof replacement certificates that do not bear such a legend.
4.7 During the term of this Agreement, AmWest shall not cause the
issuance of any preferred stock by the Company that would (a) increase the
number of directors in excess of the number provided in Section 2.1 (except
for increases caused by a provision allowing holders of preferred stock to
elect additional directors in the event of nonpayment of dividends) or (b)
eliminate or reduce the number of Creditors' Committee Directors, Equity
Committee Director, Independent Company Director, or GPA Director.
5.0 RIGHTS UPON BREACH.
5.1 Each party hereto recognizes and agrees that a violation of any
term, provision, or condition of this Agreement may cause irreparable damage
to the other parties which is difficult or impossible to quantify or ascertain
and that the award of any sum of damages may not be adequate relief to such
other parties. Each party hereto therefore agrees that in the event of any
breach of this Agreement, the other party or parties shall, in addition to any
remedies at law which may be available, have the right to obtain appropriate
equitable (including, but not limited to, injunctive) relief. All remedies
hereunder shall be cumulative and not exclusive.
5.2 In addition to any other remedies available at law or in equity,
each party hereto agrees that the Company shall have the right (a) to withhold
transfer, and to instruct any transfer agent for securities of the Company to
withhold transfer, of any certificates evidencing shares of Common Stock held
by AmWest or any partner or Affiliate of AmWest or transferee if the Company
reasonably believes that such transfer would not be in material compliance
with the terms and provisions of this Agreement, unless the transferee
provides to the Company an opinion of legal counsel reasonably acceptable to
the Company that such transfer will be in material compliance with the terms
and provisions hereof, and (b) to require any person requesting transfer of
securities subject to this Agreement to provide such information as may
reasonably be requested by the Company regarding ownership of securities,
affiliations, if any, between the party requesting transfer and the transferee
and such other matters pertaining to the transfer as may be appropriate to
enable the Company to determine the compliance of the proposed transfer of
securities with the terms and provisions of this Agreement.
13
6.0 TERMINATION.
6.1 This Agreement shall automatically terminate without any action by
any party on the day immediately preceding the Third Annual Meeting and shall
not be extended except in accordance with Section 7.3. Upon such termination,
the rights and obligations of each party hereunder shall terminate and the
provisions of this Agreement shall be of no force and effect; provided that no
such termination shall relieve any person or entity from liability for breach
or default of this Agreement prior to such termination.
6.2 GPA's rights and obligations under this Agreement (other than its
obligations under Section 2.1(g)) shall terminate immediately and without
notice upon the earlier of (a) termination of this Agreement under Section
6.1, (b) the sale or transfer by GPA of equity securities of the Company
resulting in the holding by GPA of less than two percent (2%) of the voting
equity securities of the Company (on a fully diluted basis), or (c) any
occurrence, other than as described in clause (b) above, resulting in the
holding by GPA of less than two percent (2%) of the voting equity securities
of the Company (on a fully diluted basis) if (i) the Company files a Form 10-Q
under the Exchange Act, or other written report or statement, that is
delivered to GPA and a copy to the party designated in Section 7.1, reflecting
information as to the Company's total issued and outstanding capital stock as
of a date therein specified (the "Determination Date") from which GPA can
determine whether it holds less than two percent (2%) of the voting equity
securities of the Company (on a fully diluted basis) and (ii) GPA fails to
acquire (by purchase or otherwise) sufficient voting equity securities of the
Company such that it holds at least two percent (2%) of the voting equity
securities of the Company (on a fully diluted basis) determined as of the
Determination Date within thirty-five (35) days after delivery of such Form
10-Q, or provision of such report or statement to GPA, and to give prompt
notice of such acquisition to the Company and a copy to the party designated
in Section 7.1, as herein provided, following the expiration of such 35-day
period. Notwithstanding anything to the contrary herein, GPA acknowledges
that the Company's continuing with its existing procedures for the
distribution of Form-10Qs to GPA constitutes adequate delivery to GPA within
the meaning of this Section 6.2.
14
7.0 MISCELLANEOUS.
7.1 All notices, requests and other communications hereunder must be
in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage
prepaid) or by prepaid express courier at the following addresses or facsimile
numbers:
If to AmWest: AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax Number: (817) 871-4010
with a copy to: Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Attention: Richard P. Schifter
Fax Number: (202) 872-6720
and a copy to: Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske
Fax Number: (216) 586-7864
If to GPA: GPA Group plc
GPA House
Shannon, Ireland
Attention: Patrick H. Blaney
Fax Number: 353 61 360220
with a copy to: Paul, Hastings, Janofsky & Walker
399 Park Avenue, 31st Floor
New York, New York 10022
Attention: Marguerite R. Kahn
Fax Number: (212) 319-4090
If to
Robert A. Ewert: Robert A. Ewert
3819 E. Nowata Drive
Phoenix, Arizona 85044
Fax Number: (602) 893-2239
If to
David T. Obergfell David T. Obergfell
15
Vice President
Texas Commerce Bank, N.A.
1201 Elm Street, 30th Floor
P.O. Box 2320
Dallas, Texas 75221-2320
Fax Number: (214) 712-3423
If to
William A. Franke: William A. Franke
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Fax Number: (602) 693-5517
If to the Company: America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: General Counsel
Fax Number: (602) 693-5904
with a copy to: Andrews & Kurth, L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Attention: David G. Elkins
Fax Number: (713) 220-4285
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 7.1, be deemed given
upon delivery, (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section 7.1, be deemed given upon receipt, and
(iii) if delivered by mail or by express courier in the manner described above
to the address as provided in this Section 7.1, be deemed given upon receipt
(in each case regardless of whether such notice is received by any other
person to whom a copy of such notice, request or other communication is to be
delivered pursuant to this Section 7.1). Any party from time to time may
change its address, facsimile number or other information for the purpose of
notices to that party by giving notice as provided in this Section 7.1
specifying such change to the other parties hereto. Nothing in this Section
7.1 shall be deemed or construed to alter any notice provisions contained in
the Bylaws.
7.2 This Agreement shall in all respects be governed by and construed
in accordance with the laws of the State of Delaware without reference to
principles of conflicts or choice of law under which the law of any other
jurisdiction would apply.
16
7.3 This Agreement may only be amended, waived, supplemented, modified
or extended by a written instrument signed by authorized representatives of
each party hereto.
7.4 This Agreement shall inure to the benefit of and be binding upon
each of the parties hereto and their respective successors and permitted
assigns.
7.5 This Agreement may be executed by the parties hereto in
counterparts and by telecopy, each of which shall be deemed to constitute an
original and all of which together shall constitute one and the same
instrument.
7.6 If any term or provision of this Agreement shall be found by a
court of competent jurisdiction to be illegal, invalid or unenforceable to any
extent, the remainder of this Agreement shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
7.7 The parties hereto intend that in the case of any conflict or
inconsistency between this Agreement and the Restated Certificate of
Incorporation or the Bylaws, that this Agreement shall control, and therefore
in the event that any term or provision of this Agreement is rendered invalid,
illegal or unenforceable by the Restated Certificate of Incorporation or the
Bylaws, the parties agree to amend the Restated Certificate of Incorporation
or the Bylaws (as the case may be) so as to render such term or provision
valid, legal and enforceable, if and to the extent legally permitted.
IN WITNESS WHEREOF, the parties hereto, by their respective officers
thereunto duly authorized, have executed this Agreement as of the date first
written above.
17
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc., its
General Partner
By: /s/ Richard P. Schifter
------------------------
Name: Richard P. Schifter
Title: Vice President
GPA GROUP PLC
By: /s/ Michael Walsh
------------------------
Name: Michael Walsh
Title: Vice President-Legal
/s/ Robert A. Ewert
--------------------------
Robert A. Ewert,
Stockholder Representative
/s/ David T. Obergfell
--------------------------
David T. Obergfell,
Stockholder Representative
/s/ William A. Franke
--------------------------
William A. Franke,
Stockholder Representative
18
AMERICA WEST AIRLINES, INC.
By: /s/ M.J. Whalen
----------------------
Name: M.J. Whalen
Title: Senior Vice President
19
EXHIBIT A
AmWest Directors
Julia Chang Bloch
Frederick W. Bradley, Jr.
James G. Coulter
John F. Fraser
John L. Goolsby
Richard C. Kraemer
A. Maurice Myers
Larry L. Risley
Richard P. Schifter
GPA Director
John F. Tierney
Independent Company Director
William A. Franke
Creditors' Committee Directors
Harrison J. Goldin
Stephen F. Bollenbach
Raymond S. Troubh
Equity Committee Director
John R. Power
____________________________________________________________
VOTING AGREEMENT
Dated as of August 25, 1994
Between
GPA Group plc
and
AmWest Partners, L.P.
____________________________________________________________
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into as of August 25,
1994 between AmWest Partners, L.P., a Texas limited partnership, and GPA Group
plc, an Irish public limited company ("GPA").
RECITALS
WHEREAS, on June 27, 1991, America West Airlines, Inc., a Delaware
corporation ("AWA"), filed a petition in the United States Bankruptcy Court for
the District of Arizona (the "Bankruptcy Court") entitled "In re America West
Airlines, Inc., Debtor" commencing Chapter 11 Case No. 9107505-PHX-RGM (the
"Case") under Chapter 11 of the United States Bankruptcy Code, as amended from
time to time;
WHEREAS, on August 10, 1994, the Bankruptcy Court confirmed that certain
Plan of Reorganization under Chapter 11 of the United States Bankruptcy Code
(the "Plan") with respect to the Case;
WHEREAS, the GPA Term Sheet attached as Exhibit C to the Plan describes,
among other things, the arrangement agreed upon between GPA and AmWest (as such
term is hereinafter defined) whereby (i) GPA shall vote for AmWest's nominees to
the Board of Directors of the reorganized AWA and (ii) AmWest shall vote for
GPA's nominee to the Board of Directors of the reorganized AWA, in each case,
for so long as (x) AmWest owns at least five percent (5%) of the voting equity
securities of AWA (on a fully diluted basis) and (y) GPA owns at least two
percent (2%) of the voting equity securities of AWA (on a fully diluted basis);
WHEREAS, each of GPA and AmWest desires to give effect to the voting
arrangement described immediately above on the terms and conditions set forth in
this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions.
"Affiliate" shall mean (i) with respect to any partnership, any person or
entity that, directly or indirectly, owns or controls ten percent (10%) or more
of either the capital or profit interests of such partnership or is a partner of
such partnership or is a person or entity in which such partnership has a ten
percent (10%) or greater direct or indirect equity interest and (ii) with
respect to any corporation, any person or entity that, directly or indirectly,
owns or controls ten percent (10%) or more of the outstanding voting securities
of such corporation or is a person or entity in which such corporation has a ten
percent (10%) or greater direct or indirect equity interest. In addition, the
term "Affiliate" when used with respect to any person or entity shall also mean
any other person or entity that, directly or indirectly, controls or is
controlled by or is under common control with such person or entity. As used in
the preceding sentence, (x) the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of the entity referred to, whether through ownership of voting
securities, by contract or otherwise and (y) the terms "controlling" and
"controls" shall have meanings correlative to the foregoing. Notwithstanding
the foregoing, (i) neither AWA nor any Fidelity Fund will be deemed to be an
Affiliate of AmWest or any of its partners and (ii) Mesa will not be deemed to
be an Affiliate of AmWest or any of the other partners of AmWest and (iii) each
of AmWest GenPar, Inc., Continental, TPG Partners, L.P., Airpartners II, L.P.
and TPG Parallel I, L.P., shall be deemed to be an Affiliate of AmWest.
"AmWest" shall mean AmWest Partners, L.P., a Texas limited partnership, and
in the event AmWest Partners, L.P., by dissolution or otherwise, designates any
or all of its general and limited partners to receive Voting Securities
attributable to AmWest Partners, L.P., the term "AmWest" shall collectively
include all such general and limited partners other than Mesa. The reference
herein to "AmWest Partners, L.P." shall refer only to AmWest Partners, L.P., a
Texas limited partnership, prior to the dissolution thereof.
"AmWest Director" shall have the meaning given such term in Section 2(a)(i)
of this Agreement.
"Annual Meeting" shall mean an annual meeting of the shareholders of AWA.
2
"Board" shall mean the Board of Directors of the reorganized AWA.
"Bylaws" shall mean the Restated Bylaws adopted by the reorganized AWA in
accordance with Section 303 of the General Corporation Law of the State of
Delaware pursuant to the Plan.
"Continental" shall mean Continental Airlines, Inc. or any successor
thereof.
"Effective Date" shall mean the date upon which the Restated Certificate of
Incorporation becomes effective in accordance with the Plan and the General
Corporation Law of the State of Delaware.
"Fidelity Fund" shall mean a fund or account managed or advised by Fidelity
Management Trust Company or any of its Affiliates or successor(s).
"GPA Director" shall mean a director of the Board designated by GPA
pursuant to Section 2(b)(i) of this Agreement.
"Lehman" shall mean Lehman Brothers Inc. or any successor thereof.
"Mesa" shall mean Mesa Airlines, Inc. or any successor thereof.
"Release Date" shall mean the date upon which the Stockholder Agreement is
terminated pursuant to Section 6.1 thereof.
"Restated Certificate of Incorporation" shall mean the Restated Certificate
of Incorporation adopted by the reorganized AWA in accordance with Section 303
of the General Corporation Law of the State of Delaware pursuant to the Plan.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stockholder Agreement" shall mean that certain Stockholders' Agreement for
America West Airlines, Inc., dated as of August 25 1994, among AmWest, GPA,
Robert A. Ewert, David T. Obergfell and William A. Franke, as stockholder
representatives, and AWA, as amended, supplemented or otherwise modified from
time to time.
3
"Voting Securities" shall mean any voting equity security issued by the
reorganized AWA.
The words "hereof", "herein" and "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement.
All defined terms may, unless the context otherwise requires, be used in
the singular or the plural.
Section 2. Voting for Directors.
Subject to the terms and conditions set forth in this Agreement, each of
GPA and AmWest agrees to designate nominees to the Board, and to vote in favor
of nominees to the Board designated by the other party, in accordance with the
following:
(a) AmWest Directors.
(i) AmWest shall give written notice to GPA not less than (A)
thirty (30) days before each Annual Meeting and (B) five (5) days before
any other meeting of the Board at which a director will be elected to
succeed an AmWest Director due to death, disability, removal, resignation,
or otherwise, specifying the individual or individuals nominated by AmWest
to serve as directors on the Board (the "AmWest Directors").
(ii) GPA agrees that prior to the termination of this Agreement
pursuant to Section 5 hereof, it shall vote the Voting Securities held and
controlled by it, and to cause each of its Affiliates to vote the Voting
Securities held and controlled by each such Affiliate, and to cause the GPA
Director to vote or provide written consents, in favor of such nominees and
to take such other actions as are necessary on the part of GPA and/or any
of its Affiliates to elect such nominees to the Board; provided, that prior
to the Release Date, GPA shall not be obligated to vote or take any action,
or cause any of its Affiliates to vote or take any action, or cause the GPA
Director to vote or provide written consents, in favor of any such nominee
if nine (9) AmWest Directors are then serving on the Board and such nominee
will not be replacing any such serving AmWest Director. Upon dissolution,
AmWest Partners, L.P. may assign its rights hereunder jointly
4
or severally to any of its general or limited partners other than Mesa.
(b) GPA Director.
(i) GPA shall give written notice to AmWest not less than (A)
thirty (30) days before each Annual Meeting and (B) five (5) days before
any other meeting of the Board at which a director will be elected to
succeed a GPA Director due to death, disability, removal, resignation or
otherwise, specifying the individual nominated by GPA to serve as director
on the Board (the "GPA Director").
(ii) AmWest agrees that prior to the termination of this
Agreement pursuant to Section 5 hereof, it shall vote the Voting Securities
held and controlled by it, and to cause each of its Affiliates to vote the
Voting Securities held and controlled by each such Affiliate, and to cause
each of the AmWest Directors to vote or provide written consents, in favor
of such nominee and to take, or cause to be taken, such other actions as
are necessary on the part of AmWest and/or any of its Affiliates to elect
such nominee to the Board; provided, that such nominee shall be reasonably
acceptable to AmWest at the time of his or her initial designation; and
provided further that AmWest shall not be obligated to vote or take any
action, or cause any of its Affiliates to vote or take any action, or cause
the AmWest Directors to vote or provide written consents, in favor of any
such nominee if one (1) GPA Director is then serving on the Board and such
nominee will not be replacing such GPA Director.
(c) Conformance with Bylaws. Except as otherwise provided herein,
each of AmWest and GPA agrees to nominate or cause the nomination of the
AmWest Directors and the GPA Director, respectively, in accordance with the
Bylaws.
(d) Suspended Shares. Notwithstanding any provision to the contrary
in this Agreement, neither GPA nor AmWest shall be obligated to vote any
Voting Securities for which the voting rights have been suspended, whether
voluntarily or involuntarily.
(e) Failure to Nominate. In the event that AmWest or GPA shall fail
or refuse to designate a
5
nominee to the Board for a position allocated to such party, each of AmWest
and GPA shall take such action, or cause such action to be taken, as is
necessary to cause such position to remain vacant unless and until such
designation shall be made in accordance with this Agreement.
(f) Removal. Each of GPA and AmWest agrees:
(i) to vote the Voting Securities held and controlled by it, and,
to its best efforts, cause each of its Affiliates to vote the Voting
Securities held and controlled by each such Affiliate, in favor of the
removal of any director from the Board upon written request by the
party which nominated such director; and
(ii) to vote the Voting Securities held and controlled by it,
and, to its best efforts, cause each of its Affiliates to vote the
Voting Securities held and controlled by each such Affiliate, and to
cause the directors designated by it to vote or take such action as
may be required under the General Corporation Law or otherwise to
implement the provisions of this Agreement.
The party who has nominated any director in accordance herewith shall have
the exclusive right to remove or replace such director by written notice as
provided herein; except that nothing in this Agreement shall be construed
to limit or prohibit the removal of any director for cause.
(g) Acceptability of GPA Nominee. AmWest hereby agrees that for
purposes of Section 2(b)(ii) of this Agreement and Section 2.1(c) of the
Stockholder Agreement, each of Patrick Blaney, John Tierney and Declan
Traecy is acceptable to AmWest in all respects as GPA Director.
Section 3. Covenants of AmWest.
(a) AmWest Partners, L.P. hereby covenants and agrees that its constituent
documents shall require that this Agreement be binding at all times upon all
general and limited partners (other than Mesa) of AmWest Partners, L.P. and any
Affiliate of AmWest Partners, L.P. or such partners (other than Mesa) who hold
or receive any Voting Securities
6
or direct the voting of any Voting Securities held by AmWest, and upon any
assignees or transferees (other than Mesa) in a single transaction or a related
series of transactions consummated prior to the Release Date of all or
substantially all of the Voting Securities owned by AmWest or any of its
partners or Affiliates of AmWest or any of their partners and AmWest agrees that
it shall cause each such assignee and transferee to provide to GPA written
acknowledgement that it accepts and is bound and subject to the terms and
conditions of this Agreement (including, without limitation, the provisions of
Section 6(f) hereof); provided, however, the requirements set forth in this
Section 3(a) shall not apply to:
(i) any Fidelity Fund or Lehman with respect to Class B Common
Stock of AWA and warrants to purchase Class B Common Stock of AWA acquired
by them contemporaneously with the consummation of the Plan pursuant to an
assignment or transfer from AmWest; and
(ii) any assignee or transferee who acquires such Voting
Securities pursuant to (A) a tender or exchange offer open to all
shareholders of AWA on a pro rata basis at the same price per share and on
the same economic terms, (B) a public distribution or sale on the open
market (1) through a "brokers' transaction", as such term is defined in
subsection (g) of Rule 144 under the Securities Act or (2) registered under
the Securities Act, including, without limitation, any shelf registration
contemplated under the Plan, or (C) a transfer made pursuant to Rule 144
under the Securities Act.
(b) AmWest agrees that prior to the Release Date it shall not sell or
transfer (including, without limitation, upon dissolution of AmWest Partners,
L.P.) any Voting Securities held by it to any of its general or limited partners
(other than Mesa), to any Fidelity Fund, or to any Affiliate of AmWest or such
partners and AmWest shall not sell or transfer all or substantially all of the
Voting Securities held by it in a single transaction or a related series of
transactions (except in accordance with clauses (i) or (ii) of Section 3(a)(2)
hereof) unless and until it causes each such assignee and transferee to provide
a written acknowledgement to GPA that it accepts and is bound and subject to the
terms and conditions of this Agreement (including, without limitation, the
provisions of Section 6(f) hereof).
7
(c) AmWest agrees that it shall not vote its stock in favor of, or permit
the AmWest Directors to vote for, the elimination of the position on the Board
reserved for the GPA Director.
(d) AmWest agrees that it shall not transfer or assign (including, without
limitation, upon dissolution of AmWest Partners, L.P.) any Voting Security to
Mesa if after giving effect to any such transfer or assignment, Mesa shall hold
7% or more of the combined voting power of all Voting Securities then
outstanding.
Section 4. Rights Upon Breach.
Each of AmWest and GPA recognizes and agrees that a violation of any term,
provision, or condition of this Agreement may cause irreparable damage to the
non-breaching party which is difficult or impossible to quantify or ascertain
and that the award of any sum of damages may not be adequate relief to such
party. Each of AmWest and GPA therefore agrees that in the event of any breach
of this Agreement, the non-breaching party shall, in addition to any remedies at
law which may be available, have the right to obtain appropriate equitable
(including, but not limited to, injunctive) relief.
Section 5. Termination.
(a) This Agreement shall automatically and immediately terminate without
any action by any party upon:
(i) (A) the sale or transfer by GPA and/or its Affiliates of Voting
Securities which results in the holding by GPA and/or its Affiliates of
less than two percent (2%) of all Voting Securities on a fully diluted
basis or (B) the occurrence of any other event which results in the holding
by GPA and/or its Affiliates of less than two percent (2%) of all Voting
Securities on a fully diluted basis if, and only if, (x) AWA files a Form
10-Q under the Securities Exchange Act of 1934, as amended, or other
written report or statement, that is delivered to GPA and copied to the
party specified herein, which contains information as to AWA's total issued
and outstanding Voting Securities as of a date therein specified (the
"Determination Date") from which GPA can determine whether it holds less
than two percent (2%) of all Voting Securities on a fully diluted basis and
(y) GPA and/or its Affiliates fails to acquire (by purchase or otherwise)
sufficient
8
Voting Securities such that GPA and/or its Affiliates hold at least two
percent (2%) of all Voting Securities on a fully diluted basis determined
as of the Determination Date within thirty-five (35) days after the
delivery of such Form 10-Q, or provision of such report or statement to GPA
(notwithstanding anything to the contrary in this Agreement, GPA
acknowledges that AWA continuing with its existing procedures for the
distribution of Form-10-Qs to GPA constitutes adequate delivery to GPA
within the meaning of this Section 5(a)(i)) and to give prompt notice of
such acquisition to AmWest following the expiration of such thirty-five
(35) day period;
(ii) the occurrence of any event which results in the holding by
AmWest and/or its Affiliates of less than five percent (5%) of all Voting
Securities on a fully diluted basis; or
(iii) the tenth anniversary of the Effective Date, provided that in
the event Section 218(c) of the General Corporation Law of the State of
Delaware shall have been amended or deleted, the latest date permitted
under such amended section or any successor provision thereto, and provided
further that in the event the laws of the State of Delaware shall cease to
impose a time limit on the effectiveness of voting agreements among
stockholders, this Section 5(a)(iii) shall cease to have any force or
effect.
Upon such termination, the rights and obligations of each party hereunder shall
terminate and the provisions of this Agreement shall be of no force and effect;
provided that any such termination shall not relieve any person or entity from
liability for breach or default of this Agreement prior to such termination; and
provided further that GPA agrees that in the event this Agreement is terminated
pursuant to Section 5(a)(i) hereof, GPA shall cause the resignation of, or
provide notice to AmWest requesting that it take such actions as are necessary
to cause the removal of, the GPA Director.
(b) In the event that the Stockholder Agreement is terminated or becomes
unenforceable or invalid, in whole or in part, for any reason, this Agreement
shall remain in full force and effect and the terms and conditions contained in
this Agreement shall not be affected in any manner by any such termination,
unenforceability or invalidity.
9
(c) Each of the parties bound by this Agreement hereby agrees that so long
as both the Stockholder Agreement and this Agreement are in effect, nothing
contained in this Agreement shall be construed to limit or otherwise affect the
obligations, rights or remedies of any party under the Stockholder Agreement.
Section 6. Miscellaneous.
(a) Notices. All notices or other communications hereunder shall be in
writing and delivered by registered airmail, return receipt requested, next-day
air courier delivery, personal service or telecopier at the respective addresses
and to the attention of the respective parties set forth below. All notices
hereunder shall be effective when received.
If to GPA: GPA Group plc
GPA House
Shannon, County Clare
Ireland
Telecopier: 011-353-61-360220
Attention: Patrick H. Blaney
With a copy to: GPA Group plc
GPA House
Shannon, County Clare
Ireland
Telecopier: 011-353-61-360503
Attention: Corporate Secretary
With a copy to: Paul, Hastings, Janofsky &
Walker
399 Park Avenue, 31st Floor
New York, New York 10022
Telecopier: (212) 319-4090
Attention: Marguerite R. Kahn
If to AmWest: AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Telecopier: (817) 871-4010
Attention: James G. Coulter
With a copy to: Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
10
Telecopier: (202) 872-6720
Attention: Richard Schifter
(b) Amendments and Waivers. This Agreement may be waived, amended,
supplemented or otherwise modified only in writing executed and delivered by
each of the parties hereto.
(c) No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of GPA or
AmWest, as the case may be, any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof.
No single or partial exercise of any right, remedy, power or privilege
under this Agreement shall preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and privileges provided by law
or in any other agreement between the parties hereto.
(d) Assignments; Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that with respect to AmWest, this Agreement shall
not be binding upon Mesa nor shall Mesa be entitled to any benefits under this
Agreement and AmWest hereby agrees that it shall not assign any interest under
this Agreement to Mesa (including, without limitation, upon the dissolution of
AmWest Partners, L.P.). No person or entity, other than the parties hereto and
their permitted successors and assigns, shall have any third-party beneficiary
rights hereunder or with respect hereto.
(E) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT
GIVING EFFECT TO ANY CONFLICT OF LAWS PRINCIPLES.
(F) WAIVER OF JURY TRIAL. EACH OF AMWEST AND GPA HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
11
(g) Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(h) Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
taken together shall be deemed to constitute one and the same instrument.
(i) Headings. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
(j) Further Assurances. Each of AmWest and GPA agrees to do such further
acts and things or cause to be performed such further acts and things,
including, without limitation, execute and deliver, or cause to be executed and
delivered, such agreements and other documents, as any other party hereto shall
reasonably require or deem advisable to effectuate the purposes of this
Agreement or to better assure or confirm its rights and remedies hereunder or
thereunder.
(k) Time of the Essence. Time is of the essence with respect to each
provision of this Agreement in which time is a factor.
12
IN WITNESS WHEREOF, the parties hereto, by their respective officers
thereunto duly authorized, have executed this Agreement as of the date first
written above.
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.,
its General Partner
By: /s/ Richard P. Schifter
-----------------------
Name: Richard P. Schifter
Title: Vice President
GPA GROUP PLC
By: /s/ Michael Walsh
-----------------
Name: Michael Walsh
Title: Vice President - Legal
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THIS PAGE MUST BE KEPT AS THE LAST PAGE OF THE DOCUMENT.
SoftSolution Network ID: NY-84309.4 Type: AGR
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