-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, j+MOr91r3uGlnTc/c9BdiRcbX+QvglQ0/CKoHk4J7OCD+ZVtX2K8T3MGlAtuih/7 FZvQs8TULgr0YM7yqyiMzA== 0000950123-94-001481.txt : 19940907 0000950123-94-001481.hdr.sgml : 19940907 ACCESSION NUMBER: 0000950123-94-001481 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19940906 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AMERICA WEST AIRLINES INC CENTRAL INDEX KEY: 0000706270 STANDARD INDUSTRIAL CLASSIFICATION: 4512 IRS NUMBER: 860418245 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-34444 FILM NUMBER: 94548074 BUSINESS ADDRESS: STREET 1: 100 WEST WASHINGTON STREET STREET 2: SUITE 2100 CITY: PHOENIX STATE: AZ ZIP: 85003 BUSINESS PHONE: 6026930800 MAIL ADDRESS: STREET 1: 400 EAST SKY HARBOR BOULEVARD CITY: PHOENIX STATE: AZ ZIP: 85034 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GPA GROUP PLC CENTRAL INDEX KEY: 0000815916 STANDARD INDUSTRIAL CLASSIFICATION: 7359 IRS NUMBER: 133636799 STATE OF INCORPORATION: NY FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: GPA HOUSE SHANNON STREET 2: C/O BANK OF NEW YORK CITY: COUNTY CLARE IRELAN STATE: L2 ZIP: 00000 BUSINESS PHONE: 2123186008 MAIL ADDRESS: STREET 1: PAUL HASTINGS STREET 2: 399 PARK AVE CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D 1 SCHEDULE 13D 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 AMERICA WEST AIRLINES, INC. ---------------------- (NAME OF ISSUER) CLASS A COMMON STOCK, $.01 PAR VALUE CLASS B COMMON STOCK, $.01 PAR VALUE WARRANTS TO PURCHASE CLASS B COMMON STOCK ------------------------------ (TITLE OF CLASS OF SECURITIES) 023650 302 023650 203 023650 112 ---------------- (CUSIP NUMBERS) MARGUERITE R. KAHN, ESQ. PAUL, HASTINGS, JANOFSKY & WALKER 399 PARK AVENUE NEW YORK, NEW YORK 10022 (212) 318-6070 --------------------------------------------- (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS) AUGUST 25, 1994 --------------- (DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT) IF THE FILING PERSON HAS PREVIOUSLY FILED A STATEMENT ON SCHEDULE 13G TO REPORT THE ACQUISITION WHICH IS THE SUBJECT OF THIS SCHEDULE 13D, AND IS FILING THIS SCHEDULE BECAUSE OF RULE 13D-1(B)(3) OR (4), CHECK THE FOLLOWING BOX / /. CHECK THE FOLLOWING BOX IF A FEE IS BEING PAID WITH THE STATEMENT /X/. 2 SCHEDULE 13D CUSIP No. 023650 302, 023650 203, 023650 112 - --------------------------------------------------------------- 1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GPA Group plc - --------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /x/ (b) / / - --------------------------------------------------------------- 3. SEC USE ONLY - --------------------------------------------------------------- 4. SOURCE OF FUNDS 00 - --------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / - --------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION IRELAND - --------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF CLASS A COMMON STOCK 0 SHARES CLASS B COMMON STOCK 900,000 BENEFICIALLY WARRANTS 1,384,615 OWNED BY EACH EACH REPORTING PERSON WITH - --------------------------------------------------------------- 8. SHARED VOTING POWER CLASS A COMMON STOCK 1,200,000 CLASS B COMMON STOCK 14,501,967 WARRANTS 4,897,538 - --------------------------------------------------------------- 9. SOLE DISPOSITIVE POWER CLASS A COMMON STOCK 0 CLASS B COMMON STOCK 900,000 WARRANTS 1,384,615 -2- 3 - --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER CLASS A COMMON STOCK 0 CLASS B COMMON STOCK 0 WARRANTS 0 - --------------------------------------------------------------- 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 - --------------------------------------------------------------- 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 100.0% CLASS B COMMON STOCK 29.7% ----- WARRANTS 47.2% - --------------------------------------------------------------- 14. TYPE OF REPORTING PERSON CO -3- 4 Item 1. Security and Issues. This Statement relates to the Class A Common Stock, $0.01 par value per share (the "Class A Common"), the Class B Common Stock, $0.01 par value per share (the "Class B Common") and the Warrants to purchase Class B Common (the "Warrants") of America West Airlines, Inc., a Delaware corporation (the "Company"), with its principal executive offices 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 Statement is filed by GPA Group plc, an Irish public limited company ("GPA"), with principal executive offices at GPA House, Shannon, County Clare, Ireland. The principal business of GPA is the leasing of aircraft to a wide range of airlines throughout the world. Pursuant to General Instruction "C" for Schedule 13D, set forth on Schedule A to this Statement is information concerning the name, residence or business address, principal occupation or employment and citizenship of each director and executive officer of GPA, which information is incorporated herein by reference. During the last five years, GPA and, to the best knowledge of GPA, none of the directors or executive officers of GPA (named on Schedule A to this Statement) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). During the last five years, GPA and, to the best knowledge of GPA, none of the directors or executive officers of GPA (named on Schedule A to this Statement) has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or -4- 5 state securities laws or finding any violations with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. Pursuant to the Plan and a Restructuring Agreement, dated as of August 25, 1994, between the Company and GPA, and in sole consideration of the termination and cancellation of certain contractual rights of GPA to require the Company to lease certain aircraft and certain contractual obligations of the Company (assumed by the Company pursuant to the United States Bankruptcy Code with the approval of the Bankruptcy Court) to take and lease such aircraft, the Company issued to GPA 900,000 shares of Class B Common and Warrants to purchase up to an additional 1,384,615 shares of Class B Common (and made a cash payment to GPA and provided to GPA the contractual right to require the Company to lease certain other aircraft). Other than as set forth in this Item 3 and in Item 6 below, neither GPA nor, to the best knowledge of GPA, any of the directors or executive officers of GPA (named on Schedule A to this Statement) has any arrangements for the borrowing or otherwise obtaining of funds for the purpose of acquiring, holding, trading or voting the Class A Common, the Class B Common or the Warrants. Item 4. Purpose of Transaction. GPA acquired its Class B Common and its Warrants for general investment purposes. GPA 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, GPA may determine to increase or decrease its equity interest in the Company by acquiring shares of Class A Common or additional shares of Class B Common or additional 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 restrictions on its ability to do so. Other than as set forth in this Item 4 and in Item 6 below, neither GPA nor, to the best knowledge of GPA, any -5- 6 of the directors or executive officers of GPA (named on Schedule A to this Statement) has any present plans or proposals which relate to or would 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 Company by any person; (h) Causing a class of securities of the Company to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) A class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934 (the "Exchange Act"); or (j) Any action similar to any of those enumerated above. -6- 7 Item 5. Interest in Securities of the Issuer. (a) - (b) At the date hereof, GPA has the sole power to vote and dispose of 900,000 shares of the Class B Common and 1,384,615 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 B Common held by GPA represents approximately 2.04% 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 GPA represent approximately 13.3% 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 GPA represent approximately 5.04% of the 45,309,615 shares of Class B Common which would be assumed to be outstanding upon such exercise. As set forth in Item 6, GPA has certain understandings and agreements regarding the voting of the securities of the Company held by it with TPG Partners, L.P. ("TPG"), TPG Parallel I, L.P. ("TPG Parallel"), Air Partners II, L.P. ("Air Partners II"), Continental Airlines, Inc., a Delaware corporation ("Continental") and Mesa Airlines, Inc., a New Mexico corporation ("Mesa"). (Collectively, TPG, TPG Parallel and Air Partners II are herein called the "TPG Parties".) As a result of these agreements and understandings, each of GPA, the TPG Parties, Continental and Mesa comprise a group within the meaning of Section 13(d)(3) of the Exchange Act, and such group is deemed to beneficially own the securities of the Company owned by each of such persons. Information concerning the ownership of Class A Common, Class B Common and Warrants by each of the TPG Parties, Continental and Mesa is contained in separate Schedules 13D being filed by each of the TPG Parties, Continental and Mesa. As a group, such parties are deemed to beneficially own 1,200,000 shares of Class A Common, 9,604,429 shares of Class B Common, and 4,897,538 Warrants. The aggregate amount of Class A Common deemed to be beneficially owned by such 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 deemed to be beneficially owned by such 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 deemed to be beneficially owned -7- 8 by such 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 deemed to be beneficially owned by such 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. Except as set forth above in this Item or in Item 6, neither GPA nor, to the best knowledge of GPA, any of the directors or executive officers of GPA (named on Schedule A to this Statement) has the sole or shared power to vote or the sole or shared power to dispose of any shares of Class A Common or Class B Common, or of any Warrants. (c) Except as stated herein, no transactions in shares of Class A Common or Class B Common, or in Warrants were effected during the past 60 days by GPA or, to the best of its knowledge, any of the directors or executive officers of GPA (named on Schedule A to this Statement). (d) Not applicable. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer On August 25, 1994, the Company and GPA 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 covering the shares of Class B Common and the Warrants issued to GPA pursuant to the Plan and the shares of Class B Common issuable pursuant to such Warrants 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, GPA (or an affiliate assignee) may provide the Company with a notice of demand to register under the Securities Act of 1933, for disposition in -8- 9 accordance with the terms of such notice of demand, such securities as are included in such notice of demand or otherwise includable pursuant to the Registration Rights Agreement. The Registration Rights Agreement also provides that GPA and its affiliates and assignees may include securities held by them in any registration of equity securities by the Company (whether or not on its own behalf), subject 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. On August 25, 1994, GPA, AmWest Partners, L.P. ("AmWest"), 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; 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 at least two percent 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' -9- 10 Agreement 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, but not, however, excluding shares owned, controlled or voted by Mesa or any of its transferees or affiliates that are not otherwise affiliates of AmWest) voting as a single class, shall be required to approve, adopt or authorize: (i) any merger or consolidation of the Company with or into AmWest or any affiliate of AmWest, (ii) any sale, lease, exchange, transfer or other disposition of all or 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 a result of the issuance of voting securities of the Company (or securities convertible or exchangeable for such voting securities) acquire an increased percentage of the Company's voting securities, subject to certain exceptions and (iv) any related series or combination of transactions having the same direct or indirect effect as any of the foregoing. In addition, the Stockholders' Agreement obligates AmWest, its partners and affiliates not to (a) sell or otherwise transfer any shares of 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). -10- 11 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 a exhibit hereto and incorporated herein by reference. The GPA Voting Agreement provides that GPA shall vote for the nominees of AmWest or its designated assignees to the Company's Board of Directors and that AmWest (and its affiliates or assignees 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 at least five percent of the voting equity securities of the Company and GPA owns at least two percent 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. To the best knowledge of GPA, on August 25, 1994, AmWest and each of TPG, TPG Parallel, Air Partners II, Mesa and Continental entered into certain individual Assignment and Assumption Agreements, pursuant to which AmWest assigned certain of its rights under the Stockholders' Agreement and the GPA Voting Agreement with respect to certain securities of the Company to each of TPG, TPG Parallel, Air Partners II, Mesa and Continental and such parties assumed the concomitant obligations of AmWest under such agreements with respect to such securities. There are no other contracts, understandings or agreements with respect to the securities of the Company between GPA or, to the best knowledge of GPA, any of the directors or executive officers of GPA (named on Schedule A to this Statement) and any other persons. -11- 12 Item 7. Material to be Filed as Exhibits. Exhibit 1 -- Registration Rights Agreement Exhibit 2 -- Stockholders' Agreement Exhibit 3 -- GPA Voting Agreement [SIGNATURE PAGE FOLLOWS.] -12- 13 SIGNATURE After reasonable inquiry and to the best of its knowledge and belief the undersigned certifies that the information set forth in this statement is true, complete and correct. GPA Group plc By: /s/ Patrick H. Blaney ------------------------ Patrick H. Blaney Chief Executive Officer Dated: September 6, 1994 -13- 14 SCHEDULE A INFORMATION REGARDING DIRECTORS AND OFFICERS OF GPA Group plc ("GPA") I. DIRECTORS OF GPA 1. Name Dennis Stevenson, C.B.E. Business Address SRU Limited 78-80 St. John Street London EC1M 4HR England Present Principal Occupation or Employment and Name, Principal Business and Address or Organization at Which Carried on (hereinafter "Present Occupation") Director of SRU Limited (consulting company) and various other companies. Citizenship British 2. Name Patrick H. Blaney Business Address GPA House Shannon, County Clare Ireland Present Occupation Chief Executive Officer of GPA -14- 15 Citizenship Ireland 3. Name John F. Tierney Business Address GPA House Shannon, County Clare Ireland Present Occupation Assistant Chief Executive Officer and Finance Director of GPA Citizenship Ireland 4. Name Michael Davies Residence Address Little Woolpit Ewhurst, Cranleigh Surrey GU6 7NP Ireland Present Occupation Deputy Chairman of GPA and Director of various other companies. Citizenship British 5. Name Maurice A. Foley -15- 16 Residence Address Castlelough, Portroe Nenagh Co., Tipperary Ireland Present Occupation Director of GPA Citizenship Ireland 6. Name William F. Houstoun Residence Address "Rhubeg" Strone, Holy Loch Argyl PA23 8RX Scotland Present Occupation Business Consultant Citizenship British 7. Name Gerald B. Scanlan Residence Address "Aclare" 8 Marborough Road Glenageary Co., Dublin Ireland -16- 17 Present Occupation Director of GPA Citizenship Ireland II. OFFICERS OF GPA 1. Name Brian F. McLoghlin Business Address GPA House Shannon, County Clare Ireland Present Occupation Chief Legal Officer and Secretary of GPA Citizenship Ireland 2. Name Edward Hansom Business Address GPA House Shannon, County Clare Ireland Present Occupation General Manager (Treasury) of GPA Citizenship British -17- 18 3. Name Richard Pierce Business Address GPA House Shannon, County Clare Ireland Present Occupation Chief Accountant of GPA Citizenship Ireland 4. Name Declan Treacy Business Address GPA House Shannon, County Clare Ireland Present Occupation General Manager (Corporate Finance) of GPA Citizenship Ireland -18- 19 EXHIBIT INDEX Exhibit 1 -- Registration Rights Agreement Exhibit 2 -- Stockholders' Agreement Exhibit 3 -- GPA Voting Agreement EX-99.1 2 REGISTRATION RIGHTS AGREEMENT 1 ================================================================================ REGISTRATION RIGHTS AGREEMENT BETWEEN AMERICA WEST AIRLINES, INC., AND GPA GROUP PLC DATED AS OF AUGUST 25, 1994 ================================================================================ 2 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
3 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, 4 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. 2 5 "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). 3 6 "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. 4 7 "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 5 8 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 6 9 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 7 10 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 8 11 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 9 12 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 10 13 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; 11 14 (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; 12 15 (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; 13 16 (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 14 17 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 15 18 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 16 19 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 17 20 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. 18 21 (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 19 22 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. 20 23 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 21 24 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 22 25 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 23 26 (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 Whalen -------------------------------- Name: Martin Whalen ------------------------ Title: Senior Vice President ---------------------- GPA GROUP plc By: /s/ Michael Walsh ------------------------------- Name: Michael Walsh ------------------------ Title: Vice President-Legal -----------------------
EX-99.2 3 STOCKHOLDERS' AGREEMENT 1 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 2 - 2 - 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. 3 - 3 - "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). 4 - 4 - "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 5 - 5 - 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 6 - 6 - 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 7 - 7 - 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. 8 - 8 - 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 9 - 9 - 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 10 - 10 - 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 11 - 11 - 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: 12 - 12 - 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 13 - 13 - 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. 14 - 14 - 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. 15 - 15 - 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 16 - 16 - 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. 17 - 17 - 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. 18 - 18 - 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 19 - 19 - AMERICA WEST AIRLINES, INC. By: /s/ M.J. Whalen ----------------------- Name: M.J. Whalen Title: Senior Vice President 20 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 EX-99.3 4 VOTING AGREEMENT 1 ------------------------------------------------------------ VOTING AGREEMENT Dated as of August 25, 1994 Between GPA Group plc and AmWest Partners, L.P. ------------------------------------------------------------ 2 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: 3 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- 4 "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- 5 "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- 6 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- 7 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- 8 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- 9 (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- 10 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- 11 (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- 12 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- 13 (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- 14 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 -13- -----END PRIVACY-ENHANCED MESSAGE-----