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As filed with the Securities and Exchange Commission on February 21, 2001
Registration No. 333-94361
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT
NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICA WEST HOLDINGS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 86-0847214
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Rio Salado Parkway
Tempe, Arizona 85281
(Address of principal executive offices)
America West
1994 Incentive Equity Plan
(Full title of the plans)
Stephen L. Johnson
Senior Vice President
America West Holdings Corporation
111 West Rio Salado Parkway
Tempe, Arizona 85281
(602) 693-0800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Samuel M. Livermore, Esq.
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, CA 94111-3580
(415) 693-2000
Fax (415) 951-3699
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PROSPECTUS
AMERICA WEST HOLDINGS CORPORATION
4,518,904 SHARES OF CLASS B COMMON STOCK
This prospectus relates to 4,518,904 shares of Class B Common Stock
(the "Shares"), of America West Holdings Corporation, a Delaware corporation
("Holdings"). Shares of Class B Common Stock are issuable upon the exercise of
options granted pursuant to the America West 1994 Incentive Equity Plan (the
"Shares"). Holdings is the parent company for America West Airlines, Inc.
("AWA") and The Leisure Company ("TLC"). Unless otherwise indicated, the
"Company" and "America West" refer collectively to Holdings, AWA and TLC.
The Selling Stockholders may offer the Shares through public or private
transactions, on or off the New York Stock Exchange, at prevailing market prices
or at individually negotiated prices.
The Company's Class B Common Stock is traded on the New York Stock
Exchange under the symbol "AWA." The last reported sales price of the Company's
Class B Common Stock on the New York Stock Exchange on February 16, 2001 was
$12.15 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 5 FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED BY INVESTORS IN EVALUATING AN INVESTMENT IN
THE SECURITIES OFFERED HEREBY.
The Company will pay for expenses incurred to prepare and file the
Registration Statement of which this prospectus is a part as well as all
post-effective amendments. Estimated expenses payable by the Company in
connection with this offering are approximately $10,000.
The aggregate proceeds to the Selling Stockholders from the Shares will
be the price of the Shares sold. The Company will not receive any proceeds from
the sale by the Selling Stockholder of the Shares being offered hereby.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS FEBRUARY 21, 2001.
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NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION AND REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE
IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON
MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. THE DELIVERY OF THIS
PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN IS CORRECT AS
OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
TABLE OF CONTENTS
PAGE
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS PROSPECTUS................3
WHERE TO FIND MORE INFORMATION.................................................3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE................................3
FORWARD-LOOKING INFORMATION....................................................4
THE COMPANY....................................................................4
RISK FACTORS...................................................................5
USE OF PROCEEDS................................................................7
SELLING STOCKHOLDERS...........................................................8
PLAN OF DISTRIBUTION...........................................................9
EXPERTS........................................................................9
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IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS PROSPECTUS
You should rely only on the information provided in this prospectus
including the information incorporated by reference. We have not authorized
anyone to provide you with different information. The Selling Stockholders are
offering to sell and seeking offers to buy the Shares only in jurisdictions
where offers and sales are permitted. The information in this prospectus is
accurate only as of the date of this prospectus, regardless of the time of
delivery of this prospectus or of any sale of the Shares.
WHERE TO FIND MORE INFORMATION
We file reports, proxy statements and other information with the
Securities and Exchange Commission. You may read and copy, or request copies of
any document we file at the SEC's Public Reference Room at Judiciary Plaza, 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549. You may obtain
information on the operation of the SEC's Public Reference room by calling the
SEC at (800) SEC-0300. Our SEC filings are available to you on the SEC's
Internet site at http://www.sec.gov. Our Class B Common Stock is quoted on The
New York Stock Exchange. Reports, proxy statements and other information
concerning America West may also be inspected at the offices of the New York
Stock Exchange.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information we file
with the SEC, which means that we can disclose information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and information that we later file with the SEC
will automatically update the information in this prospectus.
We also incorporate by reference all annual, quarterly and current
reports filed by the Company during 1999 and 2000. These include the Annual
Report on Form 10-K for the year ended December 31, 1999, the Quarterly Reports
on Forms 10-Q filed for the quarters ended March 31, 2000, June 30, 2000,
September 30, 2000 and the Current Report on Form 8-K filed on December 6, 2000.
We also incorporate by reference the portions of the Proxy Statement for the
annual stockholder meeting held on May 25, 2000, that were incorporated by
reference in the Form 10-K. In addition, the description of the Company's Class
B Common Stock set forth in AWA's Registration Statement on Form 8-A filed on
August 10, 1994, including any amendments or reports filed for the purpose of
updating such description, is incorporated by reference. Any future annual,
quarterly or current reports and proxy materials filed pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act are also hereby incorporated by
reference.
As a recipient of this prospectus, you may request a copy of any
document we incorporate by reference, except exhibits to the documents (unless
the exhibits are specifically incorporated by reference), at no cost, by writing
or calling us at: Corporate Secretary, America West Holdings Corporation, 111
West Rio Salado Parkway, Tempe, Arizona 85281; (602) 693-0800.
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FORWARD-LOOKING INFORMATION
This prospectus contains various forward-looking statements and
information that are based on management's beliefs as well as assumptions made
by and information currently available to management. When used in this
document, the words "anticipate," "estimate," "project," "expect" and similar
expressions are intended to identify forward-looking statements. Such statements
are subject to certain risks, uncertainties and assumptions. Should one or more
of these risks or uncertainties materialize, or should underlying assumptions
prove incorrect, actual results may vary materially from those anticipated,
estimated, projected or expected. Among the key factors that may have a direct
bearing on the Company's results are competitive practices in the airline and
travel industries generally and particularly in the Company's principal markets,
the ability of the Company to meet existing financial obligations in the event
of adverse industry or economic conditions or to obtain additional capital to
fund future commitments and expansion, the Company's relationship with employees
and the Company's ability to negotiate the terms of future collective bargaining
agreements and the impact of current and future laws and governmental
regulations affecting the airline and travel industries and the Company's
operations. For additional discussion of such risks see "Risk Factors." Any
forward-looking statements speak only as of the date such statements are made.
THE COMPANY
Holdings is a Delaware corporation and the parent company for AWA and
TLC. AWA is the ninth largest commercial airline carrier in the United States,
operating through its principal hubs located in Phoenix, Arizona and Las Vegas,
Nevada, and a mini-hub located in Columbus, Ohio. AWA has the lowest cost
structure of all major full-service domestic airlines in the United States. TLC
arranges and sells leisure travel products that may include airfare, hotel
accommodations, ground transportation, and a variety of other travel options.
The Company's principal offices are located at 111 West Rio Salado
Parkway, Tempe, Arizona 85281, and its telephone number is (602) 693-0800.
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RISK FACTORS
The Shares offered involve a high degree of risk. You should carefully
consider the risks below before making an investment decision. The risks below
are not the only risks facing the Company. There may be additional risks and
uncertainties not presently known to us or that we have deemed immaterial which
could also negatively impact our business operations. If any of the following
risks actually occur, our business, financial condition and results of
operations would be materially adversely affected. In that event, the trading
price of our securities could decline, and you may lose all or part of your
investment. This prospectus may contain certain forward-looking statements that
involve risks and uncertainties, such as statements of our plans, objectives,
expectations and intentions. Our actual results could differ materially from
those anticipated in these forward-looking statements as a result of certain
factors, including the risks described below and elsewhere in this prospectus.
THE AIRLINE INDUSTRY AND THE MARKETS WE SERVE ARE HIGHLY COMPETITIVE
AND WE MAY BE UNABLE TO COMPETE EFFECTIVELY AGAINST CARRIERS WITH SUBSTANTIALLY
GREATER RESOURCES OR LOW-COST STRUCTURES.
The airline industry is highly competitive and industry earnings are
typically volatile. We compete with other airlines on the basis of pricing,
scheduling (frequency and flight times), on-time performance, frequent flyer
programs and other services. We compete against both larger carriers with
substantially greater resources than we have available as well as smaller
carriers with low-cost structures. Many of our larger competitors have
proprietary reservation systems and more expansive marketing and advertising
programs than we do and smaller carriers may be able to offer prices at
discounts lower than we are able to offer. We may be unable to compete
effectively against carriers with substantially greater resources or low-cost
structures.
Most of the markets we serve are highly competitive. The markets we
serve are frequently high volume vacation destinations, most of which are likely
to experience discounted fares because ticket prices are a leading consideration
among leisure travel consumers. At our Phoenix and Las Vegas hubs, our principal
competitor is Southwest Airlines. However, we also compete against new carriers
that enter the airline industry, many of which have low-cost structures and
initiate price discounting. Price discounting occurs when a carrier offers
discounts or promotional fares to passengers. The entry of additional new
carriers in many of our markets, as well as increased competition from or the
introduction of new services by existing carriers, could reduce the numbers of
tickets we sell and therefore affect our operating results.
If the rates of travel on the routes that we serve decrease or if
competition increases between carriers, we may not be able to compete
effectively and our operating results could decline both in absolute terms and
in relation to the operating results of our competitors.
TLC's business is also highly competitive. TLC competes with
wholesalers and tour operators, some of which have substantially greater
financial and other resources than TLC.
The Company's results of operations for interim periods are not
necessarily indicative of those for an entire year, because the travel business
is subject to seasonal fluctuations. Due to the greater demand for air and
leisure travel during the summer months, revenues in the airline and leisure
travel industries in the second and third quarters of the year tend to be
greater than revenues in the first and fourth quarters of the year.
OUR HIGH LEVEL OF DEBT MAY LIMIT OUR ABILITY TO FUND GENERAL CORPORATE
REQUIREMENTS, LIMIT OUR FLEXIBILITY IN RESPONDING TO COMPETITIVE DEVELOPMENTS
AND INCREASE OUR VULNERABILITY TO ADVERSE ECONOMIC AND INDUSTRY CONDITIONS. MOST
OF THIS LEVERAGE STEMS FROM OUR SIGNIFICANT OFF BALANCE SHEET OBLIGATIONS.
As of December 31, 2000, we owed approximately $145.6 million of
long-term debt (less current maturities). Much of this debt is secured by a
large portion of our assets, leaving us with a limited number of assets to use
to obtain additional financing which we may need if we encounter adverse
industry conditions or a prolonged economic recession in the future. Our high
level of debt and the financial and other covenants in our debt instruments may
also limit our ability to fund general corporate requirements, including working
capital and capital
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expenditures, limit our flexibility in responding to competitive developments
and increase our vulnerability to adverse economic and industry conditions.
AWA has outstanding orders to purchase aircraft as well as option
rights to purchase additional aircraft. AWA has arranged for financing for a
portion of the outstanding orders to purchase the aircraft, but AWA will have to
look to outside sources to finance the remaining aircraft. We cannot guarantee
that AWA will be able to obtain enough capital to finance the remainder of the
aircraft, and if AWA defaults on commitments to purchase aircraft, our ability
to execute our business strategy could be materially impaired.
EFFORTS BY LABOR UNIONS TO ORGANIZE AWA'S EMPLOYEES HAVE OCCURRED IN
THE PAST AND WE EXPECT WILL OCCUR IN THE FUTURE, WHICH COULD DIVERT MANAGEMENT
ATTENTION AND INCREASE OUR OPERATING EXPENSES.
In the recent past, labor unions have made several attempts to organize
AWA's employees, and we expect that these efforts will continue. Certain groups
of AWA's employees have chosen to be represented by unions and we are currently
negotiating collective bargaining agreements with some of these groups.
Furthermore, some of our existing collective bargaining agreements are now or
will soon be amendable, and we will be obligated to negotiate the amendments to
these agreements as well. We cannot predict which, if any, other groups of
employees may seek union representation or the outcome of collective bargaining
agreements that we may be forced to negotiate in the future. The negotiation of
these agreements could divert management attention and result in increased
operating expenses and lower net revenues. If we are unable to negotiate
acceptable collective bargaining agreements, we might have to wait through
"cooling off" periods, which are often followed by union-initiated work actions,
including strikes. Depending on the type and duration of work action we endure,
our operating expenses could increase significantly.
THE STOCKHOLDERS WHO EFFECTIVELY CONTROL THE VOTING POWER OF OUR
COMPANY COULD TAKE ACTIONS THAT WOULD FAVOR THEIR OWN PERSONAL INTERESTS TO THE
DETRIMENT OF OUR INTERESTS.
Currently, three stockholders collectively control approximately 50% of
the total voting power of Holdings. These stockholders, TPG Partners, L.P., TPG
Parallel I, L.P. and Air Partners II, L.P. are all controlled by the same
company, TPG Advisors, Inc. Since TPG Advisors, Inc. is an investment firm, its
strategic objectives may be different than both the short-term or long-term
objectives of our board of directors and/or management. We cannot guarantee that
the controlling stockholders identified above will not try to influence our
business in a way that would favor their own personal interests to the detriment
of our interests.
ANY FLUCTUATIONS IN FUEL COSTS COULD AFFECT OUR OPERATING EXPENSES AND
RESULTS.
The price and supply of jet fuel is unpredictable and fluctuates based
on events outside our control, including geopolitical developments, regional
production patterns and environmental concerns. Since fuel is the principal raw
material used in our business, accounting for approximately 16% of our total
operating expenses in 2000, price escalations or reductions in the supply of jet
fuel will increase our operating expenses and cause our operating results to
decline. For example, with the level of fuel consumption as of January 1, 2001,
a one cent per gallon increase in jet fuel prices will cause our annual
operating results to decline by $4.7 million. We have implemented a "fuel
hedging" program to manage the risk and effect of fluctuating jet fuel prices on
our business. Our hedging program tries to offset increases in jet fuel costs by
acquiring derivative instruments keyed to the future price of heating oil,
effectively resulting in a lower net cost of jet fuel. Despite this program, we
may not be adequately protected against jet fuel costs. As of January 31, 2001,
our hedging program covers only approximately 50% of projected fuel volumes in
the first quarter of 2001 and 11% of projected fuel volumes in the second and
third quarters of 2001. In addition, our program primarily addresses our
exposure to fuel requirements on the East Coast as opposed to the more volatile
West Coast jet fuel prices, even though we primarily serve the Western United
States and purchase a substantially larger portion of our jet fuel requirements
on the West Coast compared to our larger competitors. For these reasons, the
protective measures we have adopted to protect against increases in jet fuel
costs may be inadequate and our operating results are susceptible to decline.
OUR OPERATING COSTS COULD INCREASE AS A RESULT OF PAST, CURRENT OR NEW
REGULATIONS THAT IMPOSE ADDITIONAL REQUIREMENTS AND RESTRICTIONS ON AIRLINE
OPERATIONS.
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The airline industry is heavily regulated. Both federal and state
governments from time to time propose laws and regulations that impose
additional requirements and restrictions on airline operations. Implementing
these measures, such as recently enacted aviation ticket taxes and passenger
safety measures, has increased operating costs for America West and the airline
industry as a whole. Depending on the implementation of these and other laws,
our operating costs could increase significantly. We cannot predict which laws
and regulations will be adopted or the changes and increased expense that they
could cause. Accordingly, we cannot guarantee that future legislative and
regulatory acts will not have a material impact on our operating results.
BROAD STOCK MARKET FLUCTUATIONS, QUARTERLY VARIATIONS IN OPERATING
RESULTS AND OTHER EVENTS OR FACTORS MAY ADVERSELY AFFECT THE MARKET PRICE OF OUR
CLASS B COMMON STOCK.
The stock market has experienced significant price and volume
fluctuations that have affected the market prices or equity securities of
companies in the airline industry and that often have been unrelated to the
operating performance of such companies. These broad market fluctuations may
adversely affect the market price of the Class B Common Stock of Holdings (the
"Class B Common Stock"). In addition, the market price of the Class B Common
Stock is volatile and subject to fluctuations in response to quarterly
variations in operating results, announcements of new services by the Company or
its competitors, changes in financial estimates by securities analysts or other
events or factors, many of which are beyond the Company's control.
USE OF PROCEEDS
The proceeds from the sale of the Shares will go to the Selling
Stockholders who offer and sell them. Accordingly, the Company will not receive
any proceeds from sales of the Shares.
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SELLING STOCKHOLDERS
The following table sets forth certain information as of February 20,
2001 regarding (1) the number of shares of Class B Common Stock that the Selling
Stockholders would own if they exercised outstanding options that they hold to
purchase shares of Class B Common Stock issued under the America West 1994
Incentive Equity Plan (the "Plan"), (2) the number of shares of Class B Common
Stock that the Selling Stockholders hold pursuant to restricted stock grants
made under the Plan and (3) the number of shares which may be offered pursuant
to this prospectus. Our registration of the Shares does not necessarily mean
that the Selling Stockholders will sell all or any of the Shares.
CLASS B COMMON STOCK CLASS B COMMON STOCK CLASS B COMMON
ISSUABLE UPON EXERCISE HELD PURSUANT TO STOCK
OF OUTSTANDING OPTIONS RESTRICTED STOCK GRANTS SUBJECT TO OFFERING
William A. Franke 1,426,000 262,334 1,688,334
W. Douglas Parker 580,000 50,000 630,000
Stephen L. Johnson 285,000 15,000 300,000
C.A. Howlett 178,000 7,500 185,500
Bernard L. Han 207,000 15,000 222,000
J. Scott Kirby 163,000 10,000 173,000
Michael A. Smith 152,000 7,500 159,500
Michael R. Carreon 96,700 4,657 101,357
Evon L. Jones 115,000 6,986 121,986
Jeffrey McClelland 122,500 15,000 137,500
Jack E. Richards 111,000 5,000 116,000
Hal Heule 85,000 -- 85,000
Thomas T. Weir 39,200 -- 39,200
Anthony V. Mule 157,000 2,794 159,794
Tom MacGillivray 85,000 -- 85,000
Linda M. Mitchell 64,000 2,794 66,794
Lonnie Bane 105,000 -- 105,000
John L. Goolsby 21,000 3,282 24,282
Richard C. Kraemer 21,000 3,282 24,282
Richard P. Schifter 21,000 -- 21,000
John F. Tierney 21,000 3,282 24,282
Walter T. Klenz 12,000 2,196 14,196
Denise M. O'Leary 12,000 2,196 14,196
Marie L. Knowles 6,000 1,255 7,255
Jeffrey A. Shaw 6,000 -- 6,000
Robert J. Miller 6,000 1,446 7,446
TOTAL: 4,097,400 421,504 4,518,904
Because the Selling Stockholders may offer all or some of the Shares
that they hold pursuant to the offering contemplated by this prospectus, and
because there are currently no agreements, arrangements or understandings with
respect to the sale of any of the Shares by the Selling Stockholders, no
estimate can be given as to the number of Shares that will be held by the
Selling Stockholders after completion of this offering.
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PLAN OF DISTRIBUTION
The Selling Stockholders may offer the Shares at various times in one
or more of the following transactions:
- on the New York Stock Exchange
- in the over-the-counter market;
- in negotiated transactions other than on the New York Stock
Exchange or the over-the-counter market;
- by pledge to secure debts and other obligations;
- in connection with the writing of call options, in hedge
transactions and in settlement of other transactions in
standardized or over-the-counter options; or
- in a combination of any of the above transactions.
The Selling Stockholders may sell their shares at market prices at the
time of sale, at prices related to such prevailing market prices, at negotiated
or at fixed prices.
The Selling Stockholders may use broker-dealers to sell their shares.
If this happens, broker-dealers will either receive discounts or commissions
from the Selling Stockholders, or they will receive commissions from purchasers
for whom they acted as agents.
In order to comply with the securities laws of certain states, if
necessary, the Shares will only be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states, the
Shares may not be sold unless they have been registered or qualified for sale or
an exemption from registration or qualification requirements is available and is
complied with.
We will pay all of the expenses incident to the offering and sale to
the public of the Shares offered hereby excluding any commissions and discounts
of underwriters, dealers or agents. Such expenses (excluding such commissions
and discounts) are estimated at approximately $10,000.
EXPERTS
The consolidated financial statements and consolidated financial
statement schedule of the Company as of December 31, 1998 and 1999, and for each
of the years in the three-year period ended December 31, 1999, have been
incorporated by reference herein and in the Registration Statement in reliance
upon the report of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Please also see p. 3 of the prospectus filed herewith.
We incorporate by reference the contents of Registration Statement on
Form S-8 No. 033-60555 originally filed with the Securities and Exchange
Commission (the "SEC") on June 23, 1995, as amended by Post-Effective Amendment
No. 1 as filed with the SEC on January 2, 1997, the contents of Registration
Statement on Form S-8 No. 333-26935 originally filed with SEC on May 12, 1997,
as amended by Post-Effective Amendment No. 1 as filed with the SEC on January
11, 2000, and the contents of Registration Statement on Form S-8 No. 333-94361
originally filed with SEC on January 11, 2000.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Restated Certificate of Incorporation and Restated Bylaws
provide that the Company will indemnify each of its directors and officers to
the full extent permitted by the laws of the State of Delaware and may indemnify
certain other persons as authorized by the Delaware General Corporation Law (the
"GCL").
Section 145 of the GCL provides as follows:
"(a) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
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section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in subsections (a) and (b).
Such determination shall be made (1) by a majority vote of the board of
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative, or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of undertaking
by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including attorneys'
fees) incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent for such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this section.
(j) The indemnification and advancement of expenses provided by,
or granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
II-2.
13
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise. The Court of Chancery
may summarily determine a corporation's obligation to advance expenses
(including attorneys' fees)."
(l) The Restated Certificate of Incorporation and Restated Bylaws
also limit the personal liability of directors to the Company and its
stockholders for monetary damages resulting from certain breaches of the
directors' fiduciary duties. The Restated Certificate of Incorporation of the
Company provides as follows:
"A person who is or was a Director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director, except for liability (i) for any
breach of the Director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or
(iv) for any transaction from which the Director derived any improper personal
benefit. If the DGCL is amended to authorize corporate action further
eliminating or limiting the personal liability of Directors, then the liability
of Directors of the Corporation shall be eliminated or limited to the full
extent permitted by the DGCL, as so amended. The elimination and limitation of
liability provided herein shall continue after a Director has ceased to occupy
such position as to acts or omissions occurring during such Director's term or
terms of office, and no amendment or repeal of this Section 12 shall apply to or
have any effect on the liability or alleged liability of any Director of the
Corporation for or with respect to any acts or omissions of such Director
occurring prior to such amendment or repeal."
The Company has entered into indemnification agreements with each of
its directors providing for indemnification to the fullest extent permitted by
the DGCL. These agreements provide for specific procedures to better assure the
directors' rights to indemnification, including procedures for directors to
submit claims, for determination of directors entitled to indemnification
(including the allocation of the burden of proof and selection of a reviewing
party) and for enforcement of directors' indemnification rights.
The Company maintains directors' and officers' liability insurance.
ITEM 9. EXHIBITS
EXHIBIT
NUMBER
23.1 Consent of KPMG LLP.
24.1 Power of Attorney is contained on the signature pages.
II-3.
14
ITEM 10. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) (Section 230.424(b)
of this chapter) if, IN the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective registration
statement.
(iii) 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;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant'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 herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
3. The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to
and meeting the requirements of Rule 14a-3 or rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are
not set forth in the prospectus, to deliver, or cause to be delivered
to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
4. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant 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,
II-4.
15
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant 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 registrant 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 as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
5. The Registrant will submit or has submitted the America West 1994
Incentive Equity Plan (the "Plan") and any amendment thereto to the
Internal Revenue Service ("IRS") in a timely manner and has made or
will make all changes required by the IRS in order to qualify the Plan.
II-5.
16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant has caused this Post-Effective Amendment No. 1 to Registration
Statement No. 333-94361 on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Tempe, State of Arizona,
on February 20, 2001.
AMERICA WEST HOLDINGS CORPORATION
By:_________________________________________
William A. Franke
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-Effective Amendment No. 1 to Registration Statement No. 333-94361 on
Form S-8 has been signed by the following persons in the capacities and on the
dates indicated:
SIGNATURE TITLE DATE
- --------- ----- ----
Chairman of the Board of
Directors and Director, President
___________________________________ and Chief Executive Officer February 20, 2001
William A. Franke (Principal Executive Officer)
Executive Vice President and
Director
___________________________________ February 20, 2001
W. Douglas Parker
Senior Vice President and Chief
Financial Officer
February 20, 2001
___________________________________
Thomas K. MacGillivray
* Director February 20, 2001
___________________________________
John L. Goolsby
* Director February 20, 2001
___________________________________
Walter T. Klenz
II-6.
17
* Director February 20, 2001
___________________________________
Marie L. Knowles
* Director February 20, 2001
___________________________________
Richard C. Kraemer
* Director February 20, 2001
___________________________________
Robert J. Miller
* Director February 20, 2001
___________________________________
Denise M. O'Leary
* Director February 20, 2001
___________________________________
Richard P. Schifter
* Director February 20, 2001
___________________________________
Jeffrey A. Shaw
* Director February 20, 2001
___________________________________
John F. Tierney
*By:
___________________________________
William A. Franke
Chairman, Chief Executive Officer
and President, as Attorney-in-Fact
for the persons named above
II-7.
18
EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NUMBER
23.1 Consent of KPMG LLP.
24.1 Power of Attorney is contained on the signature pages.
II-8.