-----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, cMnkJ6Fa2O8TVTuKoHe6LXkczpF3ETBNyiiaz0GMKHRPH9vXtkmc0UGrxdKz9GVu Fm3n5cNikCkWQMBZqGH8ug== 0000950153-95-000162.txt : 19950627 0000950153-95-000162.hdr.sgml : 19950627 ACCESSION NUMBER: 0000950153-95-000162 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19950626 EFFECTIVENESS DATE: 19950715 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICA WEST AIRLINES INC CENTRAL INDEX KEY: 0000706270 STANDARD INDUSTRIAL CLASSIFICATION: AIR TRANSPORTATION, SCHEDULED [4512] IRS NUMBER: 860418245 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-60555 FILM NUMBER: 95548991 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 S-8 1 FORM S-8 FOR AMERICA WEST AIRLINES, INC. 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 23, 1995 REGISTRATION NO. _____________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ___________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 AMERICA WEST AIRLINES, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 86-0418245 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) 4000 EAST SKY HARBOR BOULEVARD PHOENIX, ARIZONA 85304 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) AMERICA WEST AIRLINES, INC. 1994 INCENTIVE EQUITY PLAN (FULL TITLE OF THE PLAN) STEPHEN L. JOHNSON AMERICA WEST AIRLINES, INC. 4000 EAST SKY HARBOR BOULEVARD PHOENIX, ARIZONA 85304 (602) 693-0800 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ____________________________________________
CALCULATION OF REGISTRATION FEE ====================================================================================================================== PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF AMOUNT TO BE PRICE PER AGGREGATE REGISTRATION TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE OFFERING PRICE FEE --------------------------------------------------------------------------------------------------------------------- CLASS B COMMON STOCK, PAR VALUE $0.01 PER SHARE 3,500,000 SHARES $12.50 (1) $43,750,000(1) $15,087(1) ======================================================================================================================
(1) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE, BASED UPON THE AVERAGE OF THE HIGH AND LOW PRICES OF A SHARE OF THE COMPANY'S COMMON STOCK ON THE NEW YORK STOCK EXCHANGE ON JUNE 21, 1995 PURSUANT TO RULE 457(C). ================================================================================ 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents are incorporated by reference in the Registration Statement: (a) Annual Report on Form 10-K for the fiscal year ended December 31, 1994 of America West Airlines, Inc. (the Company or America West). (b) The Company's Quarterly Report on Form 10-Q for the period ended March 31, 1995. (c) The description of the Company's Class B Common Stock, par value $0.01 per share, as described in the Company's Registration Statement on Form 8-A. (d) All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date hereof. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law ("DGCL") and Section 8.02 of America West's By-Laws, a copy of which is filed as Exhibit 3.2 to this Registration Statement, contain provisions authorizing indemnification of directors, officers, employees or agents against certain liabilities and expenses which they might incur as directors, officers, employees or agents of America West or of certain other entities. Section 145 also provides that any indemnification shall be made only as authorized in each specific case upon a determination by the (i) stockholders, (ii) board of directors by a majority vote of a quorum of disinterested directors so directs, that indemnification of the indemnitee is proper because he has met the applicable standard of conduct. Section 174 of the DGCL and Article 12.0 of America West's Restated Certificate of Incorporation provides that directors of the Company will not be personally liable for monetary damages for breach of a director's fiduciary duty as a director, except for liability (i) for any breach of the director s duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends II-1 3 or unlawful stock repurchase or redemptions as provided in Section 174 of the DGCL or (iv) for any transaction from which the director derived any improper personal benefit. The Company intends to enter into indemnification agreements with certain of its directors providing for indemnification to the fullest extent permitted by the law of the State of Delaware. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS.
Exhibit Number Description ------ ----------- 4.1 Restated Certificate of Incorporation of America West Airlines, Inc. (incorporated by reference to the Company's Report on Form 8-K dated September 8, 1994). 4.2 Restated By Laws of America West Airlines, Inc.(incorporated by reference to the Company's Report on Form 10-K dated December 31, 1994). 5.1* Opinion of Andrews & Kurth L.L.P. 23.1* Consent of Andrews & Kurth L.L.P. (included in the Opinion filed as Exhibit 5.1). 23.2* Consent of KPMG Peat Marwick. 24.1* Power of Attorney (set forth on the signature page contained in Part II of this Registration Statement).
- ---------- * Filed with this Registration Statement. ITEM 9. UNDERTAKINGS. The registrant hereby undertakes: (1) To file during any period in which offers or sales are being made, post effective amendment(s) to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; II-2 4 (2) That, for the purpose of determining any liability under the Securities Act, each such post effective amendment shall be deemed to be a new registration statement relating to the securities offered therein and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That for purposes of determining any liability under the Securities Act, each filing of the Company s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof. (5) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy is expressed in the Securities Act, and will be governed by the final adjudication of such issue. II-3 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on June 23, 1995. AMERICA WEST AIRLINES, INC. By: /s/ WILLIAM A. FRANKE ------------------------------------- William A. Franke, Chairman of the Board and Chief Executive Officer Each of the undersigned directors and officers of America West Airlines, Inc. does hereby constitute and appoint William A. Franke, A. Maurice Myers and Raymond T. Nakano, and each of them severally, the undersigned's true and lawful attorneys in fact and agents, with full power of substitution and resubstitution in each of them, to do any and all acts and things in the undersigned's name and on the undersigned's behalf in the capacities indicated below that any of them may deem necessary or advisable to enable America West Airlines, Inc. to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with this Registration Statement, including specifically, but not limited to, the power and authority to sign for the undersigned in the capacity indicated below any and all amendments (including post effective amendments) hereto and file the same, with all exhibits thereto and other documents therewith, with the Securities and Exchange Commission; and the undersigned does hereby ratify and confirm all that said attorneys in fact, or any of them, shall do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on June 23, 1995.
SIGNATURE TITLE --------- ----- /s/ WILLIAM A. FRANKE Chairman of the Board and - ------------------------------------- Chief Executive Officer William A. Franke (Principal Executive Officer) /s/ A. MAURICE MYERS President, Chief Operating - ------------------------------------- Officer and Director A. Maurice Myers /s/ RAYMOND T. NAKANO Vice President and Controller - ------------------------------------- (Principal Financial and Raymond T. Nakano Accounting Officer)
II-4 6 /s/ JULIA CHANG BLOCH Director - ------------------------------------- Julia Chang Bloch /s/ STEPHEN BOLLENBACH Director - ------------------------------------- Stephen Bollenbach /s/ FREDERICK W. BRADLEY Director - ------------------------------------- Frederick W. Bradley Director - ------------------------------------- James G. Coulter /s/ JOHN F. FRASER Director - ------------------------------------- John F. Fraser /s/ JOHN L. GOOLSBY Director - ------------------------------------- John L. Goolsby /s/ RICHARD C. KRAEMER Director - ------------------------------------- Richard C. Kraemer /s/ JOHN R. POWER, JR. Director - ------------------------------------- John R. Power, Jr. Director - ------------------------------------- Larry L. Risley /s/ FRANK B. RYAN Director - ------------------------------------- Frank B. Ryan /s/ RICHARD P. SCHIFTER Director - ------------------------------------- Richard P. Schifter /s/ JOHN F. TIERNEY Director - ------------------------------------- John F. Tierney /s/ RAYMOND S. TROUBH Director - ------------------------------------- Raymond S. Troubh
II-5 EX-5.1 2 OPINION & CONSENT OF ANDREWS & KURTH 1 EXHIBIT 5.1 June 23, 1995 Board of Directors America West Airlines, Inc. 4000 East Sky Harbor Boulevard Phoenix, Arizona 85034 Gentlemen: We have acted as counsel for America West Airlines, Inc., a Delaware corporation (the "Company"), in connection with the Company's Registration Statement on Form S-8, dated June 23, 1995 (the "Registration Statement"), relating to the registration under the Securities Act of 1933, as amended, of the issuance of up to 3,500,000 shares of Common Stock, par value $0.01 per share ("Common Stock"), of the Company (the "Shares") issuable pursuant to the America West Airlines, Inc., 1994 Incentive Equity Plan (the "Plan"). As the basis for the opinion hereinafter expressed, we have examined such corporate records and documents, certificates of corporate and public officials and such other instruments as we have deemed necessary for the purposes of the opinion contained herein. As to all matters of fact material to such opinion, we have relied upon the representations of officers of the Company. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity with the original documents of all documents submitted to us as copies. Based upon the foregoing and having due regard for such legal considerations as we deem relevant, we are of the opinion that the Shares to be offered under the Plan have been duly authorized, and that the Shares, when properly issued under the Plan, will be validly issued, fully paid and nonassessable. We hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement. ANDREWS & KURTH L.L.P. EX-23.2 3 CONSENT OF KPMG PEAT MARWICK LLP 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS The Board of Directors and Stockholders America West Airlines, Inc.: We consent to the use of our reports dated February 24, 1995, incorporated herein by reference. Our reports dated February 24, 1995 contain an explanatory paragraph that states that as discussed in Notes 1 and 2 to the financial statements, on August 25, 1994, America West Airlines, Inc. emerged from bankruptcy. The financial statements of the Reorganized Company reflect the impact of adjustments to reflect the fair value of assets and liabilities under fresh start reporting. As a result, the financial statements of the Reorganized Company are presented on a different basis than those of the Predecessor Company and, therefore, are not comparable in all respects. KPMG Peat Marwick LLP Phoenix, Arizona June 22, 1995 -----END PRIVACY-ENHANCED MESSAGE-----