-----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, iu1AQdogMuWH5Y6SPqtVSSuKyJmq7PsloifucWmLQcOhXzu5pKziL0yDEpmv3QFh 5GrpoFNjgFLWlUoogMWDfQ== 0000950153-94-000173.txt : 19940908 0000950153-94-000173.hdr.sgml : 19940908 ACCESSION NUMBER: 0000950153-94-000173 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19940907 DATE AS OF CHANGE: 19940907 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: 94548156 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: OBERGFELL DAVID T CENTRAL INDEX KEY: 0000929614 STANDARD INDUSTRIAL CLASSIFICATION: FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: POST OFFICE BOX 2320 CITY: DALLAS STATE: TX ZIP: 75221-2320 BUSINESS PHONE: 2147123406 SC 13D 1 SCHEDULE 13D FOR DAVID T. OBERGFELL 1 UNITED STATES 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, par value $.01 per share Class B Common Stock, par value $.01 per share Warrants to purchase Class B Common Stock - -------------------------------------------------------------------------------- (Title of Class of Securities) 023650-30-2 023650-20-3 023650-11-2 - -------------------------------------------------------------------------------- (CUSIP Number) Copy to: Sander L. Esserman 2323 Bryan Street, Suite 2200 Dallas, TX 75201 - -------------------------------------------------------------------------------- (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/ /x/. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1984 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 SCHEDULE 13D CUSIP NO. 023650-11-2 PAGE 2 OF 4 PAGES - ---------------------------------------------------------------------------------------------- (1) Name of Reporting Person S.S. or I.R.S. Identification No. of Above Person David T. Obergfell - ---------------------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group* (a) [ ] (b) [x] - ---------------------------------------------------------------------------------------------- (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 U.S.A. - ---------------------------------------------------------------------------------------------- Number of (7) Sole Voting Power 0 Shares Bene- --------------------------------------------------------------------- ficially (8) Shared Voting Power 4,897,538 (See Item 5) Owned by --------------------------------------------------------------------- Each Report- (9) Sole Dispositive Power 0 ing Person --------------------------------------------------------------------- With (10) Shared Dispositive Power 0 - ---------------------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 0 - ---------------------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares* [ ] - ---------------------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 0 - ---------------------------------------------------------------------------------------------- (14) Type of Reporting Person IN - ----------------------------------------------------------------------------------------------
3 SCHEDULE 13D CUSIP NO. 023650-20-3 PAGE 3 OF 4 PAGES - ---------------------------------------------------------------------------------------------- (1) Name of Reporting Person S.S. or I.R.S. Identification No. of Above Person David T. Obergfell - ---------------------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group* (a) [ ] (b) [x] - ---------------------------------------------------------------------------------------------- (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 U.S.A. - ---------------------------------------------------------------------------------------------- Number of (7) Sole Voting Power 0 Shares Bene- --------------------------------------------------------------------- ficially (8) Shared Voting Power (See Item 5) Owned by --------------------------------------------------------------------- Each Report- (9) Sole Dispositive Power 0 ing Person --------------------------------------------------------------------- With (10) Shared Dispositive Power 0 - ---------------------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 0 - ---------------------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares* [ ] - ---------------------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 0 - ---------------------------------------------------------------------------------------------- (14) Type of Reporting Person IN - ----------------------------------------------------------------------------------------------
4 SCHEDULE 13D CUSIP NO. PAGE 4 OF 4 PAGES - ---------------------------------------------------------------------------------------------- (1) Name of Reporting Person S.S. or I.R.S. Identification No. of Above Person David T. Obergfell - ---------------------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group* (a) [ ] (b) [ ] [x] - ---------------------------------------------------------------------------------------------- (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) [ ] [x] - ---------------------------------------------------------------------------------------------- (6) Citizenship or Place of Organization U.S.A. - ---------------------------------------------------------------------------------------------- Number of (7) Sole Voting Power 0 Shares Bene- --------------------------------------------------------------------- ficially (8) Shared Voting Power 1,200,000 (See Item 5) Owned by --------------------------------------------------------------------- Each Report- (9) Sole Dispositive Power 0 ing Person --------------------------------------------------------------------- With (10) Shared Dispositive Power 0 - ---------------------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 0 - ---------------------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares* [ ] - ---------------------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 0 - ---------------------------------------------------------------------------------------------- (14) Type of Reporting Person IN - ----------------------------------------------------------------------------------------------
5 ORIGINAL REPORT ON SCHEDULE 13D ITEM 1. SECURITY AND ISSUER The securities to which this statement relates are the Class A Common Stock, $0.01 par value per share (the "Class A Common"), the Class B Common Stock, $0.01 par value per share (the "Class B Common"), and the Warrants to Purchase Class B Common (the "Warrants") of America West Airlines, Inc., a Delaware corporation (the "Company"). The principal offices of the Company are located at 4000 East Sky Harbor Boulevard, Phoenix, Arizona 85034. Pursuant to a Plan of Reorganization (the "Plan") which was confirmed by the United States Bankruptcy Court for the District of Arizona (the "Bankruptcy Court") on August 10, 1994 and which became effective on August 25, 1994 (the "Effective Date"), the Company has emerged from bankruptcy and is no longer operating as a debtor-in-possession under Chapter 11 of the United States Bankruptcy Code. ITEM 2. IDENTITY AND BACKGROUND This statement is filed solely as a precautionary measure by David T. Obergfell, in his capacity as Stockholders' Representative pursuant to a Stockholders' Agreement (described in Item 6 below). Mr. Obergfell's principal business address is 1201 Elm Street, Suite 3000, Dallas, TX 75270. Mr. Obergfell is a vice president of Texas Commerce Bank, N.A. ("TCB"). The principal business of TCB is banking services. Its principal address is 1201 Elm Street, Suite 3000, Dallas, TX 75270l. During the last five years, Mr. Obergfell has not been convicted in a criminal proceeding nor has he 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 state securities laws or finding any violation with respect to such law. Mr. Obergfell is a citizen of the United States of America. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATIONS This statement relates to shares held by the parties to a Stockholders' Agreement as described in Item 6 below. Mr. Obergfell is a party to the agreement in his capacity as a Stockholder Representative. Mr. Obergfell did not purchase any of the shares which are subject to the Stockholders' Agreement. ITEM 4. PURPOSE OF TRANSACTION Mr. Obergfell entered into the Stockholders' Agreement in his capacity as a Stockholder Representative. He was appointed as a Stockholder Representative by the Official Committee of Unsecured Creditors of the Company. Pursuant to the Stockholders' Agreement, Mr. Obergfell, as Stockholders' Representative, has agreed, in certain instances which generally relate to the election and removal of members of the Board of Directors of the Company, to recommend to the Independent Directors (as defined therein) that they support certain actions of the Board. Certain parties of the Stockholders' Agreement own securities which are subject to the terms of the Stockholders' Agreement and other agreements. These parties comprise a group within the meaning of Section 13(d)(3) of the Exchange Act and may be deemed to beneficially own the securities of the Company owned by the other. Mr. Obergfell does not hold any securities subject to the Stockholders' Agreement and disclaims his membership in the group and beneficial ownership of these securities. This filing is being effected solely as a precautionary measure. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) As of the date hereof, Mr. Obergfell does not have the sole power to vote and dispose of any securities of the Company. 6 (b) As set forth in Item 6, Mr. Obergfell, in his capacity as Stockholder Representative, has certain understandings and agreements regarding the selection of certain Independent Directors and the recommendation of voting by the Independent Directors on certain matters related to the election and removal of directors with 1) TPG Partners, L.P. a Delaware limited partnership ("TPG"), Continental Airlines, Inc., a Delaware corporation ("Continental"), Mesa Airlines, Inc., a New Mexico corporation ("Mesa"), (TPG, Continental and Mesa are the successors to AmWest Partners, L.P., a Texas limited partnership, ("AmWest")), 2) GPA Group plc, an Irish public limited company ("GPA"), and certain other stockholders' representatives, (collectively with Mr. Obergfell, the "Stockholder Representatives"). As a result of these agreements and understandings, each of TPG, GPA, Continental and Mesa may be deemed to comprise a group within the meaning of Section 13(d)(3) of the Exchange Act, and each may be deemed to beneficially own the securities of the Company owned by the other. Information concerning the ownership of Class A Common, Class B Common and Warrants by each of TPG, GPA, Continental, Mesa and other Stockholder Representatives is contained in separate Schedules 13D being filed by each of TPG, GPA, Continental, Mesa and certain other Stockholder Representatives. Were they deemed to be such a group, such parties would be deemed to beneficially own 1,200,000 shares of the Class A Common, 9,604,429 shares of the Class B Common, and 4,897,538 Warrants. The aggregate amount of Class A Common held by such parties represents 100% of the 1,200,000 shares of Class A Common reported to be outstanding as of August 25, 1994, as reported in the Registration Statement on Form S-1, as amended (No. 33-54243) (the "Form S-1"). The aggregate amount of Class B Common held by such parties represents approximately 21.9% of the 43,925,000 shares of Class B Common currently known to be outstanding as of August 31, 1994. The aggregate amount of Warrants held by such parties represent approximately 47.2% of the 10,384,615 Warrants reported to be outstanding as of August 25, 1994, as reported in the Form S-1. Assuming exercise of the Warrants, the Class B Common and Warrants held by such parties represent approximately 29.7% of the 48,822,538 shares of Class B Common which would be assumed to be outstanding upon such exercise. (c) Not applicable. (d) Not applicable. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER On August 25, 1994, AmWest, GPA, the Stockholder Representatives and the Company entered into a Stockholders' Agreement (the "Stockholders' Agreement"). This agreement was entered into pursuant to and in connection with the Company's Plan of Reorganization pursuant to Chapter 11 of the U.S. Bankruptcy Code, which plan became effective on August 23, 1994. 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 three years commencing on August 25, 1994 and ending on 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 designated as follows: nine members to be designated by AmWest or its designated assignees; three members 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 previous Board of Directors of the Company, provided that such member be reasonably acceptable to AmWest or its designated assignees; and one member designated by GPA for so long as GPA shall own 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 nominated and elected in accordance with these provisions of the Stockholders' Agreement. The parties to the Stockholders' 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 their capacities set forth in the Stockholders' Agreement in a manner such that the provisions of the Stockholders' 7 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 a result of which AmWest or any affiliate of AmWest will, as result of the issuance of voting securities of the Company (or securities convertible or exchangeable for such voting securities) acquire an increased percentage of the Company's voting securities, subject to certain exceptions and (iv) any related series or combination of transactions having the same direct or indirect effect as any of the foregoing. In addition, the Stockholders' Agreement obligates AmWest, its partners and affiliates 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 buy, sell or transfer 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). ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit 1 -- Stockholder's Agreement 8 SIGNATURE After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: /s/ DAVID T. OBERGFELL _______________________________ David T. Obergfell EX-1 2 STOCKHOLDERS AGREEMENT FOR AMERICA WEST AIRLINE 1 EXHIBIT 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, G A Group plc, a corporation organized under the laws of Ireland ("GPA"), Robert A. Ewert, David T. Obergfell and William . Franke (collectively, the "Stockholder Representatives"), and America West Airlines, Inc., a Delaware corporation (the "Company"). RECITALS: WHEREAS, on Jun 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 2 WHEREAS, pursuant to Section 6(b) of the Investment Agreement, the Official Committee of Unsecured Creditors of America West Airlines, Inc., appointed in the Company's Chapter 11 case (the " Creditors' Committee") has appointed David T. Obergfell 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 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 has 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 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. Not withstanding 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 T G Parallel I, L.P., shall be deemed to be an Affiliate of AmWest. - 2 - 3 "Alliance Agreements" shall have the meaning set forth in the Investment Agreement. "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. " West 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 301, Title 49, United States Code, as now in effect or as it may hereafter from time to time be amended. "Continental" shall mean Continental Airlines, Inc. or any successor. "Creditors' Committee Director" shall mean a director of the Company designated by the Creditors' Committee or otherwise pursuant to Section 2.1(b). "Effective Date" shall mean the date upon which the Restated Certificate of Incorporation becomes effective in accordance with the Plan and the General Corporation Law. "Equity Committee Director" shall mean a director of the Company designated by the Equity Committee or otherwise pursuant to Section 2.1(b) "Fidelity Fund" shall mean a fund or account managed or advised by Fidelity Management Trust Company or any of its Affiliates or successor(s). "GPA Director" shall mean a director of the Company designated by GPA pursuant to Section 2.1(c). "Independent Company Director" shall mean a director of the Company designated pursuant to Section 2.1(b). - 3 - 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 up in 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 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 i 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 CPA Director, all designated in accordance with the following procedure: (a) The West 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 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 - 4 - 5 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 consensus 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 s all nominate for reelection, and AmWest and CPA shall vote the Common Stock held and controlled by them in favor of, each Independent Director designated on Exhibit for so long as he or she continues to serve on he Board. No less than five (5) days in advance of any meeting of the Board prior to the Third Annual Meeting a 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 e (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 a 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 or designate the Creditors' Committee Directors and the Equity Committee Director, respectively, or the 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 D#rectors 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 hall be reasonably acceptable to AmWest at the time of his or her initial designation. (c) The PA 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 b duly elected and qualified or until his or her death , disability, removal, or resignation. No less than thirty (30) days in advance of each - 5 - 6 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 if 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 the voting rights have been suspended, whether voluntarily or involuntarily. (f) In the event that AmWest, the 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 and to be filled by such group or entity as her in 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 - 6 - 7 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. 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 - 7 - 8 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 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 partners or Affiliates of AmWest or - 8 - 9 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 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 - 9 - 10 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: 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: - 10 - 11 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 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 - 11 - 12 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. 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 - 12 - 13 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 10-Q's to GPA constitutes adequate delivery to GPA within the meaning of this Section 6.2. 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 C. Ganske Tax Number: (216) 586-7864 If to GPA: CPA Group plc CPA 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 Tax Number: (212) 319-4090
- 13 - 14 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 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. 7.3 This Agreement may only be amended, waived, - 14 - 15 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. - 15 - 16 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 GPA GROUP PLC By:_________________________ Name:_______________________ Title:______________________ Robert A. Ewert, Stockholder Representative David T. Obergfell, Stockholder Representative William A. Franke, Stockholder Representative AMERICA WEST AIRLINES, INC. AmWEST PARTNERS, L.P. By: AmWest Genpar, Inc., its General Partner By:________________________ Name:______________________ Title:_____________________ GPA GROUP PLC By:________________________ Name:______________________ Title:_____________________ - 16 - 17 Robert A. Ewert, Stockholder Representative David T. Obergfell Stockholder Representative William A. Franke, Stockholder Representative AMERICA WEST AIRLINES, INC. By:_______________________ Name:_____________________ Title:____________________ AMWEST PARTNERS, L.P. By:_______________________ AmWest Genpar, Inc. its General Partner By:_______________________ Name:_____________________ Title:____________________ GPA GROUP PLC By:_______________________ Name:_____________________ Title:____________________ Robert A. Ewert, Stockholder Representative David T. Oborgfell, Stockholder Representative William A. Franke, Stockholder Representative AMERICA WEST AIRLINES, INC. - 17 - 18 By:______________________ Name:____________________ Title:___________________ 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 Companv Director William A. Franke Creditors' Committee Directors Harrison J. Goldin Stephen F. Bollenbach Raymond 5. Troubh Equity Committee Director John R. Power - 18 - -----END PRIVACY-ENHANCED MESSAGE-----