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EXHIBIT 4.4
FORM OF
STOCKHOLDERS' AGREEMENT FOR
AMERICA WEST HOLDINGS CORPORATION
THIS STOCKHOLDERS' AGREEMENT FOR AMERICA WEST HOLDINGS CORPORATION
(this "Agreement") is entered into as of this 19th day of December, 1996 by and
among TPG PARTNERS, L.P., a Texas limited partnership ("TPG Partners"), TPG
PARALLEL I, L.P., a Texas limited partnership ("TPG Parallel"), AIR PARTNERS II,
L.P., a Texas limited partnership ("Air Partners"), CONTINENTAL AIRLINES, INC.,
a Delaware corporation ("Continental"), MESA AIRLINES, INC., a Delaware
corporation ("Mesa"), ββββββ β�. βββββ�, βββββ� β�. βββββββββ�, βββββββ� β�. ββββββ and
AMERICA WEST HOLDINGS CORPORATION, a Delaware corporation (the "Company").
PRELIMINARY STATEMENTS
1. On June 27, 1991, America West Airlines, Inc., a Delaware corporation
("AWA"), 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").
2. On December 8, 1993, the Bankruptcy Court entered an order on Motion to
Establish Procedures for submission of Investment Proposals (the
"Procedures Order").
3. Pursuant to the Procedures Order, AmWest Partners, L.P., a Texas
limited partnership ("AmWest") and AWA entered into that certain Third
Revised Investment Agreement dated April 21, 1994 (the "Investment
Agreement"), contemplating an investment by AmWest in AWA (the
"Investment") and providing for the consummation of AWA's Plan of
Reorganization (the "Plan").
4. On August 10, 1994, the Bankruptcy Court entered an order confirming
the Plan.
5. In consideration of the Investment, AWA issued common stock of AWA
("AWA Common Stock") consisting of Class A Common Stock ("AWA Class A
Common") and Class B Common Stock ("AWA Class B Common") and warrants
to purchase Class B Common to AmWest and others.
6. Pursuant to Section 6(b) of the Investment Agreement, (i) the official
Committee of Equity Holders of America West Airlines, Inc., appointed
in AWA's Chapter 11 case (the "Equity Committee") appointed ββββββ β�.
βββββ� as a Stockholder Representative, (ii) the Official Committee of
Unsecured Creditors of America West Airlines, Inc., appointed in AWA's
Chapter 11 case (the "Creditors' Committee") appointed βββββ� β�.
βββββββββ� as a Stockholder Representative and (iii) the Board of
Directors of AWA, as
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constituted prior to consummation of the Plan, appointed βββββββ� β�.
ββββββ as a Stockholder Representative.
7. In connection with the closing of the transactions contemplated by the
Investment Agreement and the Plan, AWA, AmWest, GPA Group plc, a
corporation organized under the laws of Ireland ("GPA"), and the
Stockholder Representatives referred to above entered into that certain
Stockholders' Agreement for America West Airlines, Inc. (the "Existing
Stockholders' Agreement") pursuant to Section 218(c) of Title 8 of the
Delaware Code (the "General Corporation Law").
8. The rights of AmWest under the Existing Stockholders' Agreement have
heretofore been assigned to, and assumed by, TPG Partners, TPG
Parallel, Air Partners, Continental, and Mesa and the rights of GPA
under the Existing Stockholders' Agreement have terminated.
9. The Company and AWA are parties to that certain Agreement and Plan of
Merger (the "Merger Agreement") dated as of December 19, 1996,
providing, among other things, for the merger (the "Merger") of AWA
Merger, Inc., a Delaware corporation and a wholly-owned subsidiary of
the Company ("Merger Sub"), with and into AWA, with AWA being the
surviving corporation in the Merger (in such capacity, the "Surviving
Corporation").
10. Pursuant to the Merger Agreement, at the Effective Time (as defined in
the Merger Agreement), (i) each issued and outstanding share of AWA
Class A Common will be converted into the right to receive one share of
Class A Common Stock of the Company ("Class A Common"), (ii) each
issued and outstanding share of AWA Class B Common will be converted
into the right to receive one share of Class B Common Stock of the
Company ("Class B Common"), (iii) each issued and outstanding share of
common stock of Merger Sub will be converted into the right to receive
one share of the common stock of the Surviving Corporation and (iv)
each issued and outstanding share of common stock of the Company will
be canceled without any consideration being paid therefor.
11. AWA currently has issued and outstanding warrants to purchase 8,180,086
shares of AWA Class B Common (the "Warrants"), the terms of which are
governed by that certain Warrant Agreement dated as of August 25, 1994
between AWA and First Interstate Bank of California, as Agent (the
"Warrant Agreement").
12. Pursuant to the terms of the Warrant Agreement, as a result of the
Merger, each of the Warrants will from and after the Effective Time
represent the right to purchase a share of Class B Common from AWA.
13. The parties hereto have agreed to enter into this Agreement pursuant to
Section 218(c) of the General Corporation Law.
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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:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement and not otherwise defined
herein shall have the following respective meanings, except as otherwise
provided herein or as the context shall otherwise require:
"Affiliate" shall mean (i) when used with reference to any partnership,
any person or entity that, directly or indirectly, owns or controls ten
percent 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 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
or more of the outstanding voting securities of such corporation or is a
person or entity in which such corporation has a ten percent 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 TPG Partners, TPG
Parallel or Air Partners.
"Agreement" shall have the meaning set forth in the introductory
paragraph hereof.
"Air Partners" shall have the meaning set forth in the introductory
paragraph hereof.
"Alliance Agreements" shall have the meaning set forth in the
Investment Agreement.
"AmWest" shall have the meaning set forth in the Preliminary Statements
hereof.
"AmWest Affiliates" shall mean AmWest GenPar, Inc., a Delaware
corporation, TPG Partners, TPG Parallel, Air Partners, Continental, and Mesa.
"AmWest Director" shall mean a director of the Company designated by an
AmWest Affiliate pursuant to Section 2.01(a).
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"Annual Meeting" shall mean an annual meeting of the shareholders of
the Company.
"AWA" shall have the meaning set forth in the Preliminary Statements
hereof.
"AWA Class A Common" shall have the meaning set forth in the
Preliminary Statements hereof.
"AWA Class B Common" shall have the meaning set forth in the
Preliminary Statements hereof.
"AWA Common Stock" shall have the meaning set forth in the Preliminary
Statements hereof.
"Bankruptcy Court" shall have the meaning set forth in the Preliminary
Statements hereof.
"Board" shall mean the Company's Board of Directors.
"Bylaws" shall mean the Bylaws of the Company.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation of the Company.
"Citizens of the United States" shall have the meaning set forth in
Section ββββ, βββββ� ββ, ββββββ ββββββ Code, as now in effect or as it may
hereafter from time to time be amended.
"Class A Common" shall have the meaning set forth in the Preliminary
Statements hereof.
"Class B Common" shall have the meaning set forth in the Preliminary
Statements hereof.
"Company" shall have the meaning set forth in the introductory
paragraph hereof.
"Continental" shall have the meaning set forth in the introductory
paragraph hereof.
"Creditors' Committee" shall have the meaning set forth in the
Preliminary Statements hereof.
"Creditors' Committee Director" shall mean a director of the company
designated by the Creditors' Committee or otherwise pursuant to Section 2.01(b).
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"Equity Committee" shall have the meaning set forth in the Preliminary
Statements hereof.
"Equity Committee Director" shall mean a director of the Company
designated by the Equity Committee or otherwise pursuant to Section 2.01(b).
"Exchange Act" shall have the meaning set forth in Section 4.04.
"Existing Stockholders' Agreement" shall have the meaning set forth in
the Preliminary Statements hereof.
"Fidelity Fund" shall mean a fund or account managed or advised by
Fidelity Management Trust Company or any of its Affiliates or successors.
"General Corporation Law" shall have the meaning set forth in the
Preliminary Statements hereof.
"GPA" shall have the meaning set forth in the Preliminary Statements
hereof.
"Independent Company Director" shall mean a director of the Company
designated pursuant to Section 2.01(b).
"Independent Directors" shall mean, collectively, the Creditors'
Committee Directors, the Equity Committee Director, and the Independent Company
Director.
"Investment" shall have the meaning set forth in the Preliminary
Statements hereof.
"Investment Agreement" shall have the meaning set forth in the
Preliminary Statements hereof.
"ββββββ" shall mean ββββββ Brothers Inc. or any successor.
"Merger" shall have the meaning set forth in the Preliminary Statements
hereof.
"Merger Agreement" shall have the meaning set forth in the Preliminary
Statements hereof.
"Merger Sub" shall have the meaning set forth in the Preliminary
Statements hereof.
"Mesa" shall have the meaning set forth in the introductory paragraph
hereof.
"Other Transaction" shall have the meaning set forth in Section 4.03.
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"Plan" shall have the meaning set forth in the Preliminary Statements
hereof.
"Primary Transaction" shall have the meaning set forth in Section 4.03.
"Procedures Order" shall have the meaning set forth in the Preliminary
Statements hereof.
"Public Offering" shall have the meaning set forth in Section 4.02.
"Regulation 13D-G" shall have the meaning set forth in Section 4.04.
"Rule 144" shall have the meaning set forth in Section 4.02.
"Securities Act" shall have the meaning set forth in Section 4.02.
"Stockholder Representatives" shall mean the persons identified as such
in the Preliminary Statements set forth above; provided, however, 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 2.01(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.
"Successor Independent Director" shall the meaning set forth in Section
2.01(b).
"Surviving Corporation" shall have the meaning set forth in the
Preliminary Statements hereof.
"Terminating Annual Meeting" shall mean the Annual Meeting held on the
day immediately following the Termination Date.
"Termination Date" shall mean the day immediately preceding the date on
which the first Annual Meeting of the Company is held on or after August 25,
1997.
"TPG Parallel" shall have the meaning set forth in the introductory
paragraph hereof.
"TPG Partners" shall have the meaning set forth in the introductory
paragraph hereof.
ARTICLE II
DESIGNATION AND VOTING FOR COMPANY DIRECTORS
Section 2.01 Designation and Voting for Directors. Until the
Termination Date, subject to the exception set forth in Section 4.07(a), the
Board shall consist of up to 14 persons, of whom
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nine persons shall be AmWest Directors and five persons shall be Independent
Directors, 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 date hereof 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 30 days
in advance of each Annual Meeting prior to (but not including) the
Terminating Annual Meeting, and no less than five days in advance of any
other meeting of the Board prior to (but not including) the Terminating
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, the AmWest Affiliates shall give written notice
to the other parties hereto designating the individual or individuals to
serve as AmWest Directors. 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.
(b) Three Creditors' Committee Directors, one Equity Committee
Director, and one Independent Company Director, each as designated on
Exhibit A hereto, shall serve until the first Annual Meeting following the
date hereof 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 Terminating Annual Meeting, the
Company shall nominate for reelection, and each of the AmWest Affiliates
shall vote the Common Stock held and controlled by it 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 days in advance of any
meeting of the Board prior to (but not including) the Terminating 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 30 days in advance of each Annual Meeting prior to (but not including)
the Terminating 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; provided, however, that (i) 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 individuals to fill
vacancies thereof, by giving written notice to the other parties hereto in
accordance with the terms set forth above, and (ii) 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 the AmWest Affiliates agrees to vote the Common Stock held
and controlled by it and to cause the AmWest Directors to vote or provide
written consents in favor of such designees and to take any other action
necessary to elect such designees; provided, however, that each Independent
Director shall be reasonably acceptable to the AmWest Affiliates at the
time of his or her initial designation.
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(c) Except as otherwise provided herein, each of the AmWest Affiliates
and each of the Stockholder Representatives agrees to nominate or cause the
nomination of the AmWest Directors and the Independent Directors,
respectively, in accordance with the Bylaws.
(d) 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.
(e) In the event that the AmWest Affiliates, the Creditors' Committee
or the Equity Committee (for so long as each is in existence and has the
ability to designate a director as herein provided), or the Stockholder
Representatives 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.
(f) The parties hereto agree (i) to vote the Common Stock held and
controlled by them (other than stock held individually by any Stockholder
Representative) 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 2.01 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; provided, however, that
nothing in this agreement shall be construed to limit or prohibit the
removal of any director for cause.
Section 2.02 Citizenship of Directors. Until the Termination Date, 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.
Section 2.03 Restriction on Designation of AmWest Directors. Each of
the AmWest Affiliates agrees that no AmWest Director shall be an officer or
employee of Continental.
ARTICLE III
VOTING ON CERTAIN MATTERS
Section 3.01 Recusal of Certain Directors. 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 or
AWA (including, without limitation, negotiation between Continental and AWA
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of the Alliance Agreements) and matters in connection with any action involving
direct competition between Continental and the Company or AWA. 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 or AWA (including, without limitation, negotiation between Mesa and
AWA of the Alliance Agreements) and matters in connection with any action
involving direct competition between Mesa and the Company or AWA.
Section 3.02 Required Votes With Respect to Certain Matters. Until the
Termination Date, 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 any of the AmWest
Affiliates or any of their respective 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:
(a) any merger or consolidation of the Company or AWA with or into any
of the AmWest Affiliates or any Affiliate of any of the AmWest Affiliates;
(b) any sale, lease, exchange, transfer, or other disposition by the
Company or AWA of all or any substantial part of its assets to any of the
AmWest Affiliates or any Affiliate of any of the AmWest Affiliates;
(c) any transaction with or involving the Company as a result of which
the AmWest Affiliates or any of their respective 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 any of the Warrants, (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; provided, however, that, 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.
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ARTICLE IV
FURTHER COVENANTS
Section 4.01 Proportional Ownership of Class A Common and Class B
Common. None of the AmWest Affiliates or any of their respective Affiliates
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 4.01 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.
Section 4.02 Restrictions With Respect to Governing Documents and Sale
of Securities by AmWest Affiliates. Each of the AmWest Affiliates agrees that
its constituent documents shall at all times require that this Agreement be
binding upon all general and limited partners of such AmWest Affiliate, and any
of their respective Affiliates who hold or receive shares of the Company or
direct the voting of any shares held by such AmWest Affiliate, 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 such
AmWest Affiliate or any of its Affiliates or partners; provided, however, that
this Agreement shall not be binding upon any assignee or transferee who acquires
such Common stock pursuant to (a) 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, (b) 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 (a "Public Offering"), or (c) a transfer made pursuant to Rule
144, as amended ("Rule 144"), under the Securities Act. None of AmWest
Affiliates shall sell or transfer any Common Stock held by it to any of its
general or limited partners, to any Fidelity Fund, to ββββββ, or to any
Affiliate of any of the AmWest Affiliates or such partners and none of the
AmWest Affiliates shall 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 (a), (b) or (c), 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.
Section 4.03 Restriction With Respect to Sale of Control. Each of the
AmWest Affiliates 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, alone or together with the other AmWest Affiliates, in a single
transaction or a related series of transactions, shares of Common Stock
representing 51% or more of the combined voting power of all shares of Common
Stock then outstanding, other than (a) 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
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the same economic terms, (b) to any Affiliate of any of the AmWest Affiliates,
(c) pursuant to a bankruptcy or insolvency proceeding, (d) pursuant to a
judicial order, legal process, execution, or attachment, (e) in a Public
Offering, or (f) 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 consecutive trading
days preceding the effective date of such transaction). For purposes of the
foregoing, a transaction (the "Primary Transaction") involving any person or
entity 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 entity or any Affiliate of such person or entity, it
being understood that, for purposes of this clause (i), TPG Partners, TPG
Parallel, Air Partners, 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 or entities who are assignees, direct
or indirect, of any of the AmWest Affiliates and who are acting in concert with
respect thereto, it being understood that, for purposes of this clause (ii),
persons or entities 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.
Section 4.04 Certain Securities Law Filings. If required by applicable
law, within ten days of the date hereof, each of the AmWest Affiliates 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 each of the AmWest Affiliates all information
pertaining to such party and necessary to make such amendments and to notify
each of the AmWest Affiliates of any changes in facts or circumstances
pertaining to such party that would require any amendments under Regulation
13D-G.
Section 4.05 Amendments of Certificate of Incorporation and Bylaws.
Each of the AmWest Affiliates agrees that it shall not, alone or together with
the other AmWest Affiliates, cause any amendment to the provisions of the
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.
Section 4.06 Legending of Securities. (a) Each certificate evidencing
shares of Common Stock issued to any of the AmWest Affiliates or any of its
partners 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'
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AGREEMENT FOR AMERICA WEST HOLDINGS CORPORATION DATED DECEMBER
19, 1996, COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL OFFICE OF AMERICA
WEST HOLDINGS CORPORATION.
and each such certificate, for so long as such certificate is held by any of the
AmWest Affiliates or any of its partners, any of their respective Affiliates, or
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 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 any
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 any
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 any such legend.
Section 4.07 Issuance of Preferred Stock. During the term of this
Agreement, none of the AmWest Affiliates shall, alone or together with the other
AmWest Affiliates, 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 2.01 (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 or eliminate the Equity Committee Director or the Independent Company
Director.
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ARTICLE V
RIGHTS UPON BREACH
Section 5.01 Remedies. 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.
Section 5.02 Additional Rights of the Company. 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 any of the AmWest
Affiliates or any partner or Affiliate of any of the AmWest Affiliates 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 or entity
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.
ARTICLE VI
TERMINATION
This Agreement shall automatically terminate without any action by any
party on the Termination Date and shall not be extended except in accordance
with Section 7.03. 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, however, that no such termination shall relieve
any person or entity from liability for breach or default of this Agreement
prior to such termination.
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ARTICLE VII
MISCELLANEOUS
Section 7.01 Notices. All notices, requests, and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) or by prepaid express courier at the following addresses or facsimile
numbers:
If to TPG Partners, TPG Parallel or Air Partners, to:
TPG GenPar, L.P.
βββ� ββββ ββββββ, βββββ� ββββ
ββββ βββββ�, βββββ� βββββ�
Attention: βββββ� β�. βββββββ�
Fax Number: (βββ�) βββ�-ββββ
with copies to:
ββββββ & ββββββ
ββββ βββ� βββββββββ� βββ�., β�.β�.
ββββββββββ, β�.β�. βββββ�
Attention: βββββββ� β�. ββββββββ
Fax Number: (βββ�) βββ�-ββββ
and
βββββ�, Day, ββββββ & βββββ�
North Point
βββ� ββββββββ ββββββ
βββββββββ�, ββββ βββββ�
Attention: ββββ β�. ββββββ
Fax Number: (βββ�) βββ�-ββββ
If to Continental, to:
ββββ βββββ� βββββββ�, βββββ� ββββ
βββββββ�, βββββ� βββββ�
Attention: βββββββ� ββββββ
Fax Number: (βββ�) βββ�-ββββ
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with copies to:
ββββββ & ββββββ
ββββ βββ� βββββββββ� βββ�., β�.β�.
ββββββββββ, β�.β�. βββββ�
Attention: βββββββ� β�. ββββββββ
Fax Number: (βββ�) βββ�-ββββ
and
βββββ�, Day, ββββββ & βββββ�
North Point
βββ� ββββββββ ββββββ
βββββββββ�, ββββ βββββ�
Attention: ββββ β�. ββββββ
Fax Number: (βββ�) βββ�-ββββ
If to Mesa, to:
ββββ ββββ ββββ ββββββ
ββββββββββ, βββ� ββββββ βββββ�
Attention: βββββ� β�. ββββββ
Fax Number: (βββ�) βββ�-ββββ
with copies to:
βββββ�, Day, ββββββ & βββββ�
North Point
βββ� ββββββββ ββββββ
βββββββββ�, ββββ βββββ�
Attention: ββββ β�. ββββββ
Fax Number: (βββ�) βββ�-ββββ
and
ββββββ & ββββββ
ββββ βββ� βββββββββ� βββ�., β�.β�.
ββββββββββ, β�.β�. βββββ�
Attention: βββββββ� β�. ββββββββ
Fax Number: (βββ�) βββ�-ββββ
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If to ββββββ β�. βββββ�, to:
ββββββ β�. βββββ�
ββββ β�. ββββββ βββββ�
βββββββ�, βββββββ� βββββ�
Fax Number: (βββ�) βββ�-ββββ
If to βββββ� β�. βββββββββ�, to:
βββββ� β�. βββββββββ�
ββββ βββββββββ� βββββ�
ββββββ, βββββ� βββββ�
Fax Number: (βββ�) βββ�-ββββ
with a copy to:
ββββββββ & ββββββββ
ββββ βββββ� ββββββ, βββββ� ββββ
ββββββ, βββββ� βββββ�
Attention: βββββ� ββββββββ
Fax Number: (βββ�) βββ�-ββββ
If to βββββββ� β�. ββββββ, to:
βββββββ� β�. ββββββ
America West Airlines, Inc.
ββββ ββββ βββ� ββββββ βββββββββ�
βββββββ�, βββββββ� βββββ�
Fax Number: (βββ�) βββ�-ββββ
If to the Company, to:
America West Holdings Corporation
ββββ ββββ βββ� ββββββ βββββββββ�
βββββββ�, βββββββ� βββββ�
Attention: General Counsel
Fax Number: (βββ�) βββ�-ββββ
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with a copy to:
βββββββ� & βββββ�, L.L.P.
ββββ βββββ� ββββββββ βββββ�
βββββββ�, βββββ� βββββ�
Attention: βββββ� β�. ββββββ
Fax Number: (βββ�) βββ�-ββββ
All such notices, requests and other communications will (a) if delivered
personally to the address as provided in this Section 7.01, be deemed given upon
delivery, (b) if delivered by facsimile transmission to the facsimile number as
provided in this Section 7.01, be deemed given upon receipt, and (c) if
delivered by mail or by express courier in the manner described above to the
address as provided in this Section 7.01, be deemed given upon receipt (in each
case regardless of whether such notice is received by any other person or entity
to whom a copy of such notice, request or other communication is to be delivered
pursuant to this Section 7.01). 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 7.01 specifying such
change to the other parties hereto. Nothing in this Section 7.01 shall be deemed
or construed to alter any notice provisions contained in the Bylaws.
Section 7.02 Governing Law. 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.
Section 7.03 Amendments and Waiver. This Agreement may only be amended,
waived, supplemented, modified, or extended by a written instrument signed by
authorized representatives of each party hereto.
Section 7.04 Benefit and Burden. This Agreement shall inure to the
benefit of and be binding upon each of the parties hereto and their respective
successors and permitted assigns.
Section 7.05 Counterparts. This Agreement may be executed by the
parties hereto in counterparts and by telecopy, each of which shall be deemed to
constitute an original and all of which together shall constitute one and the
same instrument.
Section 7.06 Severability. 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.
Section 7.07 Inconsistent Provisions. The parties hereto intend that in
the case of any conflict or inconsistency between this Agreement and the
Certificate of Incorporation or the Bylaws, that this Agreement shall control,
and therefore, in the event that any term or provision of this
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Agreement is rendered invalid, illegal or unenforceable by the Certificate of
Incorporation or the Bylaws, the parties agree to amend the 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.
Section 7.08 Effectiveness and Termination of Existing Stockholders'
Agreement. This Agreement shall become effective upon the later to occur of (a)
the execution by each of the parties hereto of this Agreement and (b) the
effectiveness of the Merger. Upon this Agreement becoming effective, the
Existing Stockholders' Agreement shall terminate and be of no further force or
effect; provided, however, that such termination of the Existing Stockholders'
Agreement shall not relieve any of the parties thereto from liability for any
breach or default of the Existing Stockholders' Agreement prior to such
termination.
IN WITNESS WHEREOF, the parties hereto, by their respective officers
thereunto duly authorized, have executed this Agreement as of the date first
written above.
TPG PARTNERS, L.P.
By: TPG GenPar, L.P., its General Partner
By: TPG Advisors, Inc., its General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
TPG PARALLEL I, L.P.
By: TPG GenPar, L.P., its General Partner
By: TPG Advisors, Inc., its General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
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AIR PARTNERS II, L.P.
By: TPG GenPar, L.P., its General Partner
By: TPG Advisors, Inc., its General Partner
By:________________________________________
Name:______________________________________
Title:_____________________________________
CONTINENTAL AIRLINES, INC.
By:________________________________________________
Name:______________________________________________
Title:_____________________________________________
MESA AIRLINES, INC.
By:________________________________________________
Name:______________________________________________
Title:_____________________________________________
STOCKHOLDER REPRESENTATIVES
___________________________________________________
ββββββ β�. βββββ�,
Stockholder Representative
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____________________________________________________
βββββ� β�. βββββββββ�,
Stockholder Representative
____________________________________________________
βββββββ� β�. ββββββ,
Stockholder Representative
AMERICA WEST HOLDINGS CORPORATION
By:
_________________________________________________
βββββββ� β�. βββββββ�
Senior Vice President - Legal Affairs
America West Airlines, Inc., a Delaware corporation, hereby executes
this Agreement solely for the purposes of evidencing its consent to the
termination of the Existing Stockholders' Agreement provided in Section 7.08
hereof.
AMERICA WEST AIRLINES, INC.
By:
_________________________________________________
βββββββ� β�. βββββββ�
Senior Vice President - Legal Affairs
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EXHIBIT A
DIRECTOR DESIGNEES
AmWest Directors:
-----------------
βββββ� βββββ� βββββ�
βββββββββ� β�. βββββββ�, ββ.
βββββ� β�. βββββββ�
ββββ β�. ββββββ
ββββ β�. βββββββ�
βββββββ� β�. βββββββ�
βββββ� β�. ββββββ
βββββββ� β�. ββββββββ
βββββββ� β�. ββββββββββ
Creditors' Committee Directors:
-------------------------------
βββββββ� β�. ββββββββββ
βββββββ� β�. ββββββ
βββββ� β�. ββββ
Equity Committee Director:
--------------------------
ββββ β�. Power, Jr.
Independent Company Director:
-----------------------------
βββββββ� β�. ββββββ
A-i