Exhibit 4.19
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER THE SECURITIES ACT UNLESS AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE
AMERICA WEST HOLDINGS CORPORATION
WARRANT TO PURCHASE CLASS B COMMON STOCK
NO. PW- January 18, 2002
VOID AFTER January 18, 2012
THIS CERTIFIES THAT, for value received,
, with its principal office at
, and/or its transferees and assigns (individually or collectively, the
"HOLDER"), is entitled to purchase at the Exercise Price (defined below) from
America West Holdings Corporation, a Delaware corporation, with its principal
office at 111 West Rio Salado Parkway, Tempe, Arizona 85281 (the "COMPANY"),
shares of Class B common stock, par value $0.01 per share, of the
Company (the "CLASS B COMMON"), as provided herein.
1. DEFINITIONS. As used herein, the following terms shall have the
following respective meanings:
"AFFILIATE" shall mean, as to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control," when used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing.
"APPLICABLE PRICE" shall mean:
(i) for purposes of any issuance of Additional Shares of Common Stock (as
defined below) under Section 5.4, the greater of (A) the Fair Market Value of a
share of the class of Common Stock being issued (or, if being issued in an
underwritten offering, the Market Price on the day that such offering is being
priced), and (B) the then effective Exercise Price; and
(ii) for purposes of any issuance under Section 5.1(b), the greater of (A)
the Market Price on the date of such issuance, and (B) the then effective
Exercise Price.
"BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
"COMMON STOCK" shall mean the Class B Common, the Class A common stock,
par value $0.01 per share, of the Company, and all other stock of any class or
classes (however designated) of the Company from time to time outstanding, the
holders of which have the right,
1.
without limitation as to amount, either to all or to a share of the balance of
current dividends or liquidating distributions after the payment of dividends
and distributions on any shares entitled to preference.
"EXERCISE PERIOD" shall mean the time period commencing with the date
hereof and ending at 5:00 p.m. New York time on the tenth anniversary of the
date hereof.
"EXERCISE PRICE" shall mean three dollars ($3.00) per share, subject to
adjustment pursuant to Section 5 below.
"EXERCISE SHARES" shall mean the shares of the Class B Common issuable
upon exercise of this Warrant, subject to adjustment pursuant to the terms
herein, including but not limited to adjustment pursuant to Section 5 below and
shall also mean any other shares, securities, assets or property otherwise
issuable upon exercise of this Warrant.
"EXCLUDED ISSUANCE" shall mean:
(a) shares of Class B Common issued upon exercise of this Warrant or the
warrants issued concurrently to , , and
(this Warrant and such other warrants, collectively, the "Loan Warrants") or
upon conversion of the Company's outstanding 7.5% Convertible Senior Notes due
2009;
(b) shares of Class B Common and/or options, warrants or other Class B
Common purchase rights issued and the Class B Common issued pursuant to such
options, warrants or other rights after the date hereof to employees, officers
or directors of, or consultants or advisors to the Company or any subsidiary
pursuant to stock purchase or stock option plans or other arrangements that are
approved by the Board (the "PLANS"); provided that such shares, options,
warrants or other Class B Common purchase rights and the Class B Common issued
pursuant to such options, warrants or other rights shall not be Excluded
Issuances in any case where the grantee acquires the shares, or options,
warrants or other rights to purchase Class B Common at a price per share less
than the Market Price on the date of grant;
(c) shares of Class B Common issued pursuant to the exercise of rights,
options, warrants or convertible securities outstanding as of the date hereof;
and
(d) shares of Class B Common issued to any charitable organization
described in Section 170(c) of the Internal Revenue Code of 1986, as amended,
provided that no more than 50,000 shares are issued in any fiscal year pursuant
to this clause (d).
"FAIR MARKET VALUE" shall mean,
(i) with respect to a share of Common Stock, or any other security of the
Company or any other issuer:
(a) the average daily Market Price during the period of the most
recent twenty (20) Trading Days, ending on the last Trading Day before the date
of determination of Fair Market Value, if such class of Common Stock or other
security is (i) traded on a national securities exchange or admitted to unlisted
trading privileges on such an exchange, or (ii) is
2.
quoted on the National Market System of the Nasdaq Stock Market (the "NATIONAL
MARKET System") or the Nasdaq Small Cap Market (the "SMALL CAP MARKET"); or
(b) if such class of Common Stock or other security is not then so
listed, admitted to trading or quoted, the Fair Market Value shall be the Market
Price on the last Business Day before the date of determination of Fair Market
Value; or
(ii) with respect to any assets or property other than cash or Common
Stock or other securities, the fair market value as determined in accordance
with the Valuation Procedure.
"MARKET PRICE" shall be, as of any specified date with respect to any
share of any class of Common Stock or any other security of the Company or any
other issuer, if such class of Common Stock or other security is traded on a
national securities exchange or admitted to unlisted trading privileges on such
an exchange, or is quoted on the National Market System or the Small Cap Market,
the last reported share or unit sale price of such class of Common Stock or
other security on such exchange or on the National Market System or the Small
Cap Market on such date or if no such sale is made on such day, the mean of the
closing bid and asked prices for such day on such exchange or on the National
Market System or the Small Cap Market; provided that if such class of Common
Stock or other security is not so listed or admitted to unlisted trading
privileges or quoted, the Market Price as of a specified date shall be the mean
of the last bid and asked prices reported on such date (x) by the Nasdaq or (y)
if reports are unavailable under clause (x) above by the National Quotation
Bureau Incorporated; provided further that if such class of Common Stock or
other security is not so listed or admitted to unlisted trading privileges or
quoted and bid and ask prices are not reported, the Market Price shall be
determined in accordance with the Valuation Procedure.
"PARTICIPATING SECURITIES" shall mean, (i) any equity security (other than
Common Stock) that entitles the holders thereof to participate in liquidations
or other distributions with the holders of Common Stock or otherwise participate
in the capital of the Company other than through a fixed or floating rate of
return on capital loaned or invested, and (ii) any stock appreciation rights,
phantom stock rights, or any other profit participation rights with respect to
any of the Company's capital stock or other equity ownership interest, or any
rights or options to acquire any such rights; provided that any stock
appreciation rights, phantom stock rights or any other profit participation
rights, or any rights or options to acquire such rights, issued pursuant to any
of the Plans shall not be deemed a Participating Security if their grant or
issuance would constitute an Excluded Issuance.
"PERSON" shall mean any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
estate, unincorporated organization or government or any agency or political
subdivision thereof, or any entity whatsoever.
"RECORD DATE" shall mean, with respect to any dividend, other distribution
or issuance, the record date for the determination of stockholders entitled to
receive such dividend, distribution or issuance, or if no such record date
exists, the date of such dividend, distribution or issuance.
"TRADING DAY" shall mean, with respect to any class of Common Stock or any
other security of the Company or any other issuer a day (i) on which the
securities exchange or other trading platform applicable for purposes of
determining the Market Price of a share or unit of
3.
such class of Common Stock or other security shall be open for business or (ii)
for which quotations from such securities exchange or other trading platform of
the character specified for purposes of determining such Market Price shall be
reported.
"VALUATION PROCEDURE" shall mean a determination made in good faith by the
Board of Directors of the Company (the "BOARD") that is set forth in resolutions
of the Board that are certified by the Secretary of the Company, which certified
resolutions (i) set forth the basis of the Board's determination, which, in the
case of a valuation in excess of $10.0 million, shall include the Board's
reliance on the valuation of a nationally recognized investment banking or
appraisal firm, and (ii) are delivered to the Holder within ten (10) Business
Days following such determination. A Valuation Procedure with respect to the
value of any capital stock shall be based on the price that would be paid for
all of the capital stock of the issuer in an arm's-length transaction between a
willing buyer and a willing seller (neither acting under compulsion).
2. EXERCISE OF WARRANT.
2.1 EXERCISE. This Warrant may be exercised in whole or in part at
any time during the Exercise Period, by delivery of the following to the Company
at its address set forth above (or at such other address as it may designate by
notice in writing to the Holder):
(a) an executed Notice of Exercise in the form attached
hereto;
(b) payment of the Exercise Price (i) in cash or by
check, (ii) by cancellation of indebtedness or (iii) pursuant to Section 2.2
hereof; and
(c) this Warrant.
Upon the exercise of this Warrant, a certificate or certificates for the
Exercise Shares so purchased, registered in the name of the Holder or such other
Person as may be designated by the Holder (to the extent such transfer is not
validly restricted and upon payment of any transfer taxes that are required to
be paid by the Holder in connection with any such transfer), shall be issued and
delivered to the Holder or such other Person as soon as practicable (and in any
event within five Business Days) after this Warrant shall have been exercised.
If this Warrant shall not have been exercised in full, a new Warrant exercisable
for the number of Exercise Shares remaining shall be executed by the Company and
delivered at the same time as the certificate for the Exercise Shares that are
being issued.
The Person in whose name any certificate or certificates for the Exercise
Shares are to be issued upon exercise of this Warrant shall be deemed to have
become the holder of record of such shares on the date on which this Warrant was
surrendered and payment of the Exercise Price was made, irrespective of the date
of delivery of such certificate or certificates, except that, if the date of
such surrender and payment is a date when the stock transfer books of the
Company are closed, such Person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open (whether before or after the end of the Exercise
Period).
2.2 NET EXERCISE. Notwithstanding any provision herein to the
contrary, if the Market Price of one share of the Class B Common is greater than
the Exercise Price (at the date of calculation as set forth below), in lieu of
exercising this Warrant by payment of cash, check or cancellation of
indebtedness, the Holder may elect (the "CONVERSION RIGHT") to receive shares
4.
equal to the value (as determined below) of this Warrant (or the portion thereof
being canceled) by surrender of this Warrant at the principal office of the
Company together with the properly endorsed Notice of Exercise in which event
the Company shall issue to the Holder a number of shares of Class B Common
computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Class B Common to be issued
Y = the number of shares of Class B Common purchasable under this Warrant
or, if only a portion of this Warrant is being exercised, the portion of this
Warrant being exercised (at the date of such calculation)
A = the Market Price of one share of the Class B Common (at the date
of such calculation)
B = Exercise Price (as adjusted pursuant to Section 5 hereof to the date
of such calculation)
The Company shall pay all reasonable administrative costs incurred by the
Holder in connection with the exercise of the Conversion Right by the Holder
pursuant to this Section 2.2.
3. COVENANTS AND REPRESENTATIONS OF THE COMPANY; SECURITIES MATTERS.
3.1. COVENANTS AS TO EXERCISE SHARES.
(a) The Company covenants and agrees that all Exercise Shares
that may be issued upon the exercise of this Warrant will, upon issuance, be
validly authorized, issued and outstanding, fully paid and nonassessable, free
of preemptive rights and free from all taxes, liens and charges with respect to
the issuance thereof. If the Class B Common or the class of securities of any
other Exercise Shares is then listed or quoted on a national securities
exchange, the National Market System or the Small Cap Market, all such Exercise
Shares upon issuance shall also be so listed or quoted. The Company further
covenants and agrees that the Company will at all times during the Exercise
Period, have authorized and reserved solely for purposes of the exercise of this
Warrant, free from preemptive rights, a sufficient number of shares of its Class
B Common or the class of securities of any other Exercise Shares to provide for
the exercise in full of this Warrant (without taking into account any possible
exercise pursuant to Section 2.2 hereof). If at any time during the Exercise
Period the number of authorized but unissued shares of Class B Common or the
class of securities of any other Exercise Shares shall not be sufficient to
permit exercise in full of this Warrant (without taking into account any
possible exercise pursuant to Section 2.2 hereof), the Company will take such
corporate action as shall be necessary to increase its authorized but unissued
shares of Class B Common or the class of securities of any other Exercise Shares
to such number of shares as shall be sufficient for such purposes.
(b) In the event that at any time, including as a result of
any provision of Section 5, the Exercise Shares shall include any shares or
other securities other than shares of Class B Common, or any other property or
assets, the terms of this Warrant shall be modified or supplemented (in the
absence of express written documentation thereof, shall be deemed to be so
modified or supplemented), and the Company shall take all actions as may be
necessary to preserve, in a manner and on terms as nearly equivalent as
practicable to the provisions of this
5.
Warrant as they apply to the Class B Common, the rights of the Holder hereunder
(including, without limitation, the provisions of Section 5 hereof), including
any equitable replacements of the term "Class B Common" with the term "Exercise
Shares" and adjustments of any formula included herein.
(c) The Company's filings under the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), will comply in all material respects as
to form with the Exchange Act and the rules and regulations thereunder. The
Company shall timely file a Form D in respect of the issuance of this Warrant,
and if required pursuant to Regulation D or any successor regulation thereto,
timely file a Form D or any other form required by such regulation in respect of
the issuance of the Exercise Shares.
(d) Without prior written consent of the holders of Loan
Warrants exercisable for a majority of the securities issuable upon exercise of
the outstanding Loan Warrants, the Company shall not permit America West
Airlines, Inc. or any other Significant Subsidiary (as defined by Rule 1-02(w)
of Regulation S-X under the Securities Act or any successor rule) to (i) issue
or grant any capital stock or equity ownership interest, including any
Participating Security; (ii) any rights, options, warrants or convertible
security that is exercisable for or convertible into any capital stock or other
equity ownership interest, including any Participating Security; or (iii) any
stock appreciation rights, phantom stock rights, or any other profit
participation rights, or any rights or options to acquire any such rights, in
each case of clauses (i), (ii) and (iii) above, to any Person other than the
Company or its wholly-owned subsidiaries.
(e) Without prior written consent of the holders of Loan
Warrants exercisable for a majority of the securities issuable upon exercise of
the outstanding Loan Warrants, the Company shall not make grants of shares of
restricted Common Stock or options, warrants or other rights to purchase Common
Stock or other stock-based awards to employees, officers or directors of, or
consultants or advisors to, the Company pursuant to the Plans during, or with
respect to, the fiscal year ending December 31, 2002 covering shares in excess
of the sum equal to (A) the number of shares, as of the date hereof, unissued
but authorized for issuance under the Plans, plus (B) 2,000,000.
3.2. NO IMPAIRMENT. Except and to the extent as waived or consented to in
writing by the Holder, the Company will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Warrant and in
the taking of all such action as may be necessary or appropriate in order to
protect the exercise rights of the Holder against impairment consistent with the
intent and principles expressed in Section 5.9 below.
3.3. NOTICES OF RECORD DATE. In the event (i) the Company takes a record
of the holders of any class of securities for the purpose of determining the
holders thereof who are entitled to receive any dividend or other distribution,
(ii) the Company authorizes the granting to the holders of Class B Common (or
holders of the class of securities of any other Exercise
6.
Shares) of rights to subscribe to or purchase any shares of capital stock of any
class or securities convertible into any shares of capital stock or of any other
right, (iii) the Company authorizes any reclassification of, or any
recapitalization involving, any class of Common Stock or any consolidation or
merger to which the Company is a party and for which approval of the
stockholders of the Company is required, or of the sale or transfer of all or
substantially all of the assets of the Company, (iv) the Company authorizes or
consents to or otherwise commences the voluntary or involuntary dissolution,
liquidation or winding up of the Company or (v) the Company authorizes or takes
any other action that would trigger an adjustment in the Exercise Price or the
number or amount of shares of Class B Common or other Exercise Shares subject to
this Warrant (other than a stock split or combination), the Company shall mail
to the Holder, at least ten (10) days prior to the earlier of the record date
for any such action or stockholder vote and the date of such action, a notice
specifying (a) which action is to be taken and the date on which any such record
is to be taken for the purpose of any such action, (b) the date that any such
action is to take place and (c) the amount and character of any stock, other
securities or property and amounts, or rights or options with respect thereto,
proposed to be issued, granted or delivered to each holder of Class B Common (or
holders of the class of securities of any other Exercise Shares).
3.4. REPRESENTATIONS AND WARRANTIES. The Company hereby represents and
warrants to the Holder, as of the date hereof, that:
(a) The Company: (i) is a corporation duly organized, validly
existing and in good standing under the laws of the state of its formation; (ii)
is duly qualified to do business and is in good standing in every jurisdiction
where the nature of its business requires it to be so qualified (except where
the failure to so qualify could not reasonably be expected to have a material
adverse effect, individually or in the aggregate, on its business, financial
condition or operations of the Company and its subsidiaries taken as a whole or
on its ability to pay or perform its obligations under this Warrant and the
Registration Rights Agreement (as defined below) (collectively, the "WARRANT
DOCUMENTS")); (iii) has received all permits necessary to conduct the businesses
now operated by it and has not received notice of proceedings relating to the
revocation or modification of any permit that, if adversely determined, would
reasonably be expected to have, individually or in the aggregate, a material
adverse effect on its business, financial condition or operations of the Company
and its subsidiaries taken as a whole, or on its ability to pay or perform its
obligations under the Warrant Documents; (iv) has all requisite power and
authority to own its properties and to carry on its business as now conducted
and as proposed to be conducted, and to execute and deliver the Warrant
Documents to which it is a party and to perform its obligations thereunder; and
(v) is in compliance in all material respects with all applicable law, rules,
regulations and orders;
(b) The execution, delivery and performance by the Company of
the Warrant Documents and the consummation of the transactions contemplated
therein: (i) are within its powers and have been duly authorized by all
necessary corporate and stockholder action; (ii) do not contravene its charter
documents or any law, rule, regulation or administrative or court order binding
on or affecting the Company or its property; and (iii) do not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to any material contract, indenture, mortgage, loan agreement,
note or other instrument to which it is a party, by which it may be bound or to
which its assets may be subject;
7.
(c) Each of the Warrant Documents has been duly authorized,
executed, delivered and constitutes a valid and binding obligation of the
Company, enforceable against it in accordance with its terms, except as the
enforceability thereof may be subject to or limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws relating to or
affecting the rights of creditors generally and general equitable principles
(whether applied in an action at law or a suit in equity);
(d) There is no action, suit or proceeding affecting the
Company pending or, to its knowledge, threatened before any court, arbitrator,
or governmental authority, domestic or foreign, which would reasonably be
expected to have, individually or in the aggregate, a material adverse effect on
its ability to pay or perform its obligations under the Warrant Documents or on
the business, financial condition or operations of the Company and its
subsidiaries taken as a whole;
(e) The authorized capital stock of the Company consists of
1,200,000 shares of Class A Common Stock, par value $0.01 per share ("CLASS A
COMMON"), 100,000,000 shares of Class B Common, and 48,800,000 shares of
Preferred Stock, par value $0.01 per share (the "PREFERRED STOCK"), of which (i)
941,431 shares of Class A Common are outstanding, (ii) 32,786,410 shares of
Class B Common are outstanding, and (iii) no shares of Preferred Stock are
outstanding. All of the outstanding shares of Common Stock have been duly
authorized and validly issued, fully paid and nonassessable and are free of any
preemptive rights and the shares of Class B Common deliverable upon exercise of
this Warrant have been, and at all times will be, duly authorized and reserved
for issuance upon such exercise, and, when delivered upon such exercise, will be
validly issued, fully paid and nonassessable and free of any preemptive rights;
(f) Except as set forth on SCHEDULE 3.4(F), there are not
outstanding nor are there any commitments or obligations to issue or grant (i)
any securities, rights, options, warrants or subscriptions giving any Person the
right to acquire from the Company, or requiring that the Company or any of its
subsidiaries issue any capital stock or other equity interest in the Company or
any of its subsidiaries; (ii) any stock appreciation rights, phantom stock
rights, or any other profit participation rights with respect to any capital
stock or other equity ownership interest in the Company or any of its
subsidiaries, or any rights or options to acquire any such rights; or (iii) any
contracts, agreements, arrangements or understandings to which the Company or
any of its subsidiaries is party or by which any of them is bound, giving any
Person any rights of exchange, preemptive rights (statutory or contractual),
anti-dilution rights, rights of first refusal, rights of first offer or
registration rights with respect to any capital stock of the Company or any of
its subsidiaries;
(g) The offer and issuance by the Company of this Warrant are,
and the issuance of the Common Stock upon exercise of this Warrant will be,
exempt from the registration requirements under the Securities Act;
(h) No authorization, approval, consent or order of any court
or governmental authority or agency or any other Person is required in
connection with the issuance by the Company of this Warrant, or the consummation
by the Company of any of the transactions contemplated by the Warrant Documents,
and the Company has obtained from the New York Stock Exchange, Inc. a waiver
under paragraph 312.05 of the Listed Company
8.
Manual waiving any requirement to obtain stockholder approval of the
transactions contemplated by the Warrant Documents or any requirement to deliver
notice to the stockholders under said paragraph 312.05;
(i) The Company's filings under the Exchange Act do not
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading and complied, or will comply in all
material respects as to form with the Exchange Act and the rules and regulations
thereunder; and
(j) Neither the Company nor any Affiliate of the Company has
directly, or though any agent, (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of any security (as defined in the
Securities Act) which is or will be integrated with the issuance of this
Warrant, or the Exercise Shares issuable upon exercise of this Warrant, in a
manner that would require the registration under the Securities Act of this
Warrant or the Exercise Shares, or (ii) engaged in any form of general
solicitation or general advertising in connection with the offering of this
Warrant or the Exercise Shares (as those terms are used in Regulation D under
the Securities Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act.
(k) (i) To the extent the initial Holder is not an "accredited
investor" as defined in Rule 501(a) under the Securities Act, the Company has
heretofore delivered to the initial Holder, at a reasonable time prior to the
issuance hereof, the information required to be delivered to such Holder
pursuant to Rule 502(b)(ii) under the Securities Act; and (ii) the Company has
heretofore delivered to the initial Holder, the following financial statements
and information: (A) the audited consolidated balance sheets of the Company as
at December 31, 2000, and the related consolidated statements of income,
stockholders' equity and cash flows for the fiscal year then ended, and (B) the
unaudited consolidated balance sheet of the Company as at September 30, 2001 and
the related unaudited statements of income, stockholders' equity and cash flows
for the nine months then ended. All such consolidated statements were prepared
in conformity with United States generally accepted accounting principles and
fairly present the consolidated financial position of the Company as at the
respective dates thereof and the consolidated results of operations and cash
flows of the Company for each of the periods then ended subject, in the case of
the unaudited consolidated statements, to year-end audit and adjustments. Except
as disclosed in writing to the initial Holder prior to the date of this Warrant,
the Company has no material contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment that is not reflected
in the foregoing consolidated financial statements or the notes thereto and
which in any such case is material in relation to the business, operations,
properties, assets or condition (financial or otherwise) of the Company.
(l) The representations and warranties made by America West
Airlines, Inc. ("AWA") in that certain $429,000,000 Loan Agreement, dated as of
January 18, 2002, among AWA, Citibank, N.A., as agent and initial lender, KPMG
Consulting, Inc., as loan administrator, and the Air Transportation
Stabilization Board are true and correct as of the date hereof.
9.
(m) The authorized capital stock of AWA consists of 1,000
shares of Common Stock, par value $0.01 per share, all of which is issued and
outstanding and is owned beneficially and of record by the Company.
4. REPRESENTATIONS OF HOLDER.
4.1. ACCREDITED INVESTOR; ACQUISITION OF WARRANT FOR PERSONAL
ACCOUNT. The Holder is an "accredited investor" as defined in Rule 501(a) of the
Securities Act, or alternatively, the Holder has received the information
specified in Section 3(k)(i) above. The Holder represents and warrants that it
is acquiring this Warrant and, to the extent this Warrant is exercised, the
Exercise Shares solely for its account for investment and not with a view to or
for sale or distribution of said Warrant or Exercise Shares or any part thereof,
other than potential transfers between Affiliates (including affiliated funds)
or transfers pursuant to an effective registration statement under, or an
exemption from the registration requirements of, the Securities Act.
4.2. SECURITIES ARE NOT REGISTERED.
(a) The Holder understands that this Warrant and the Exercise
Shares have not been registered under the Securities Act, on the basis that no
distribution or public offering is being effected. The Holder realizes that the
basis for the exemption may not be present if, notwithstanding its
representations, the Holder has a present intention of acquiring the securities
for a fixed or determinable period in the future, selling (in connection with a
distribution or otherwise), granting any participation in, or otherwise
distributing the securities. The Holder has no such present intention, other
than potential transfers between Affiliates (including affiliated funds).
(b) The Holder recognizes that this Warrant and the Exercise
Shares may not be sold unless they are subsequently registered under the
Securities Act or an exemption from such registration is available.
4.3 DISPOSITION OF WARRANT AND EXERCISE SHARES.
(a) The Holder further agrees not to make any disposition of
all or any part of this Warrant or Exercise Shares in any event unless:
(i) The Company shall have received a letter
secured by the Holder from the Securities and Exchange Commission stating that
no action will be recommended to the Commission with respect to the proposed
disposition;
(ii) There is then in effect a registration
statement under the Act covering such proposed disposition and such disposition
is made in accordance with said registration statement;
(iii) Pursuant to Rule 144; or
(iv) The Holder shall have notified the Company of
the proposed disposition and shall have furnished the Company with a statement
of the circumstances surrounding the proposed disposition and if reasonably
requested by the
10.
Company, the Holder shall have furnished the Company with an opinion of counsel
for the Holder, reasonably satisfactory to the Company, to the effect that such
disposition will not require registration of such Warrant or Exercise Shares
under the Securities Act or any applicable state securities laws.
(b) The Holder is aware that neither this Warrant nor the
Exercise Shares may be sold pursuant to Rule 144 adopted under the Securities
Act unless the applicable conditions thereof are met, including, among other
things, the required holding period under Rule 144 and the number of shares
being sold during any three month period not exceeding specified limitations.
(c) The Holder understands and agrees that all certificates
evidencing the Exercise Shares may bear the following legend (unless such shares
have been disposed of in accordance with clause (a)(ii) or (iii) or such legend
is no longer required to comply with applicable securities laws):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO SUCH SECURITIES UNDER THE SECURITIES ACT UNLESS AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE."
5. ADJUSTMENT OF EXERCISE PRICE, SHARES OF CLASS B COMMON PURCHASABLE AND
NUMBER OF WARRANTS
5.1. ADJUSTMENT OF EXERCISE PRICE. The Exercise Price as defined in
Section 1 shall be subject to adjustment from time to time as follows:
(a) If the Company after the date hereof shall (i) pay a
dividend or make a distribution to holders of any class of Common Stock in
shares of Class B Common, (ii) split or otherwise subdivide the outstanding
shares of Class B Common, or (iii) combine the outstanding shares of Class B
Common into a smaller number of shares, then in any such case the Exercise Price
in effect immediately prior thereto shall be adjusted to a price obtained by
multiplying such Exercise Price by a fraction of which the numerator shall be
the number of shares of Class B Common outstanding prior to such action and the
denominator shall be the number of shares of Class B Common outstanding after
giving effect to such action. An adjustment made pursuant to clause (i) of this
subsection (a) shall become effective retroactively immediately after the Record
Date for such dividend or distribution, and an adjustment made pursuant to
clause (ii) or (iii) of this subsection (a) shall become effective immediately
after the effective date of such subdivision or combination.
(b) If the Company after the date hereof shall issue rights,
options or warrants to holders of any class of Common Stock to subscribe for or
purchase shares of Common Stock or securities convertible into Common Stock at a
price per share less than the Applicable Price per share on the issuance date
thereof, the Exercise Price in effect immediately prior thereto shall be
adjusted to a price obtained by multiplying such Exercise Price by a fraction of
which (i) the numerator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights, options or warrants plus the
number of shares of the class
11.
of Common Stock subject to such rights, options or warrants which the aggregate
consideration for the total number of shares so to be offered would purchase at
the Applicable Price of a share of the class of Common Stock subject to such
rights, options or warrants, and (ii) the denominator shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights,
options or warrants plus the number of additional shares of Common Stock to be
offered for subscription or purchase; provided, however, that no adjustment
shall be made if the Company issues or distributes to the Holder the rights,
options or warrants which the Holder would have been entitled to receive had
this Warrant been exercised prior to the Record Date (and, if applicable, had
this Warrant been exercisable for the class of Common Stock receiving such
issuance or distribution). Any such adjustments shall be made whenever such
rights, options or warrants are issued and shall become effective retroactively
immediately after the Record Date for the determination of stockholders entitled
to receive such rights, options or warrants unless such rights, options or
warrants are not immediately exercisable, in which case, any such adjustments
shall be made at such time such rights, options or warrants become exercisable.
Upon expiration of the period during which any such rights, options or warrants
may be exercised, any adjustment previously made pursuant to the foregoing
provisions shall be recalculated to take into consideration only those rights,
options or warrants actually exercised during the applicable period for exercise
and notice of any such further adjustment to the Exercise Price shall be given
to Holder as herein provided.
(c) If the Company after the date hereof shall issue or
distribute to holders of any class of Common Stock evidences of its
indebtedness, cash or other assets, shares of capital stock of any class or any
other securities (other than the Class B Common) or rights to subscribe therefor
(excluding those referred to in subsection (b) above), in each such case the
Exercise Price in effect immediately prior thereto shall be adjusted to a price
obtained by multiplying such Exercise Price by a fraction of which (i) the
numerator shall be the sum of the amount, for each class of Common Stock then
outstanding, of the Fair Market Value per share of such class of Common Stock,
multiplied by the number of outstanding shares of such class of Common Stock, in
each case on the Record Date, less the Fair Market Value of the assets, cash or
evidences of indebtedness so distributed, or shares of capital stock or other
securities or rights to subscribe therefor so issued, and (ii) the denominator
shall be the sum of the amount, for each class of Common Stock then outstanding,
of the Fair Market Value per share of such class of Common Stock, multiplied by
the number of outstanding shares of such class of Common Stock, in each case on
the Record Date; provided, however, that no adjustment shall be made if the
Company issues or distributes to the Holder the evidence of indebtedness, cash,
other assets, capital stock or other securities or subscription rights referred
to above in this subsection (c) that the Holder would have been entitled to
receive had this Warrant been exercised in full prior to the Record Date (and,
if applicable, had this Warrant been exercisable for the class of Common Stock
receiving such issuance or distribution). The Company shall provide the Holder,
upon receipt of a written request therefor, with any indenture or other
instrument defining the rights of the holders of any indebtedness, assets,
capital stock or other securities or subscription rights referred to in this
subsection 5.1(c). Any such adjustment shall be made whenever any such
distribution is made, and shall become effective retroactively immediately after
the Record Date. Upon expiration of the period during which any subscription
rights granted pursuant to this subsection (c) may be exercised, any adjustment
previously made pursuant to the foregoing provisions shall be recalculated to
take into consideration only those subscription rights actually
12.
exercised during the applicable period for exercise and notice of any such
further adjustment to the Exercise Price shall be given to the Holder as herein
provided.
(d) For purposes of Sections 5.1(a), 5.1(b) and 5.1(c), any
dividend or distribution to which Section 5.1(c) is applicable that also
includes shares of Common Stock, a subdivision of Common Stock or a combination
of Common Stock to which Section 5.1(a) applies, or rights or warrants to
subscribe for or purchase shares of Common Stock to which Section 5.1(b) applies
(or any combination thereof), shall be deemed instead to be:
(i) a dividend or distribution of the evidences of
indebtedness, cash, other assets, shares of capital stock, other securities or
subscription rights, other than such shares of Common Stock, such subdivision or
combination or such rights, options or warrants to which Sections 5.1(a) and
5.1(b) apply, respectively (and any Exercise Price reduction required by Section
5.1(c) with respect to such dividend or distribution shall then be made),
immediately followed by
(ii) a dividend or distribution of such shares of
Common Stock, such subdivision or combination or such rights, options or
warrants to which Sections 5.1(a) and 5.1(b) apply (and any further Exercise
Price reduction required by Sections 5.1(a) and (b) with respect to such
dividend or distribution shall then be made).
(e) In case a tender or exchange offer (other than an odd lot
offer) by the Company for any Common Stock is consummated at a price in excess
of the Market Price of the Common Stock subject to such tender or exchange offer
at the expiration of such tender or exchange offer, the Exercise Price in effect
immediately prior thereto shall be adjusted to a price obtained by multiplying
such Exercise Price by a fraction of which (i) the numerator shall be such
Market Price, less the amount of the excess of the value of the tender or
exchange offer price over the Market Price, and (ii) the denominator shall be
the Market Price, such adjustment to become effective immediately prior to the
opening of business on the day following such date of expiration.
(f) In the case the Company shall, by dividend or otherwise,
declare a distribution to holders of any class of Common Stock, of rights or
warrants issued by the Company and having the characteristics described in
Section 11.4(d)(iii) of the Indenture, dated as of January 18, 2002, between the
Company and Wilmington Trust Company, as Trustee (the "Indenture") then upon the
occurrence of a Trigger Event (as defined in Section 11.4(d)(iii) of the
Indenture), the Company shall make such adjustments to the Exercise Price as as
necessary to preserve, without dilution, the purchase rights represented by this
Warrant, such adjustments to be substantially consistent with the adjustments
that would have been made to the Conversion Price (as defined in the Indenture)
upon such Trigger Event pursuant to Section 11.4(d) of the Indenture.
5.2. ADJUSTMENT OF SHARES OF EXERCISE SHARES PURCHASABLE UPON
EXERCISE OF WARRANTS. Upon each adjustment of the Exercise Price pursuant to
Section 5.1 or 5.4 hereof the number of Exercise Shares purchasable upon
exercise of this Warrant shall be adjusted to the number of Exercise Shares,
calculated to the nearest one-hundredth of a share, obtained by (i) multiplying
the number of Exercise Shares purchasable immediately prior to such adjustment
by
13.
the Exercise Price in effect prior to such adjustment, and (ii) dividing the
product so obtained by the Exercise Price in effect after such adjustment of the
Exercise Price.
5.3. RIGHTS UPON CONSOLIDATION, MERGER, SALE, TRANSFER,
RECLASSIFICATION OR RECAPITALIZATION.
(a) In case of any consolidation or merger of the Company with
another Person (other than a merger or consolidation in which the Company is the
continuing Person and the Class B Common is not exchanged for securities,
property or assets issued, delivered or paid by another Person), or in case of
any lease, sale or conveyance to another Person of all or substantially all of
the property or assets of the Company, this Warrant shall thereafter (until the
end of the Exercise Period) evidence the right to receive, upon its exercise, in
lieu of the shares of Class B Common deliverable upon such exercise immediately
prior to such consolidation, merger, lease, sale or conveyance the kind and
amount of shares and/or other securities and/or property and assets and/or cash
that the Holder would have been entitled to receive upon such consolidation,
merger, lease, sale or conveyance had the Holder exercised this Warrant
immediately prior to such consolidation, merger, lease, sale or conveyance.
(b) In case of any reclassification or change of, or
recapitalization involving, the Class B Common issuable upon exercise of this
Warrant (other than a change in par value, or from par value to no par value, or
as a result of a subdivision or combination), including any such
reclassification, change or recapitalization effected in connection with a
consolidation or merger of the Company with another Person in which the Company
is the continuing Person and the holders of Class B Common receive shares and/or
other securities and/or property or assets and/or cash issued, delivered or paid
by the Company in exchange for such shares of Class B Common (including for this
purpose shares reflecting a change in par value or from par value to no par
value or as a result of a subdivision or combination of the shares of Class B
Common), this Warrant shall thereafter (until the end of the Exercise Period)
evidence the right to receive, upon its exercise, in lieu of the shares of Class
B Common deliverable upon such exercise immediately prior to such
reclassification, change or recapitalization, the kind and amount of shares
and/or other securities and/or property and assets and/or cash that the Holder
would have been entitled to receive upon such reclassification, change,
consolidation or merger had the Holder exercised this Warrant immediately prior
to such reclassification, change, consolidation or merger.
(c) The Company shall not consummate any transaction that
effects or permits any such event or occurrence unless each Person whose shares
of stock, securities or assets will be issued, delivered or paid to the holders
of the Class B Common (including the Company with respect to clause (ii) below),
prior to or simultaneously with the consummation of the transaction, (i) is a
corporation organized and existing under the laws of the United States of
America or any State or the District of Columbia, and (ii) expressly assumes, or
in the case of the Company, acknowledges, by a Warrant Supplement or other
document in a form substantially similar hereto, executed and delivered to the
Holder hereof, the obligation to deliver to such Holder such shares of stock,
securities or assets as, in accordance with the foregoing provisions of this
Section 5.3, such Holder is entitled to purchase, and all other obligations and
liabilities under this Warrant, including obligations and liabilities in respect
of subsequent adjustments that are required under this Warrant.
14.
(d) The above provisions of this Section 5.3 shall similarly
apply to successive reclassifications and changes of Exercise Shares and to
successive consolidations, mergers, leases, sales or conveyances, mutatis
mutandis.
5.4. SALE OF SHARES BELOW APPLICABLE PRICE.
(a) If at any time or from time to time after the date hereof, the Company
issues or sells, or is deemed by the express provisions of this Section 5.4 to
have issued or sold, Additional Shares of Common Stock (as defined below), other
than as provided in Section 5.1, 5.2 or 5.3 above, for an Effective Price (as
defined below) less than the Applicable Price (such issue, a "QUALIFYING
DILUTIVE ISSUANCE"), then and in each such case, the then effective Exercise
Price shall be reduced, effective as of the opening of business on the date of
such issue or sale (or if earlier, the date on which a binding agreement
providing for such issue or sale was entered into), to a price determined by
multiplying the Exercise Price in effect immediately prior to such issuance or
sale by a fraction:
(i) the numerator of which shall be (A) the number
of shares of Common Stock outstanding immediately prior to such issue or sale,
plus (B) the number of shares of the class of Common Stock being issued or sold
or deemed to be issued or sold which the aggregate consideration received by the
Company for the total number of Additional Shares of Common Stock so issued or
deemed to be so issued would purchase at the Applicable Price, and
(ii) the denominator of which shall be the number of
shares of Common Stock outstanding immediately prior to such issue or sale plus
the total number of Additional Shares of Common Stock so issued or deemed to be
so issued.
(b) For the purpose of the adjustment required under this
Section 5.4, if the Company issues or sells (x) stock or other securities
convertible into, shares of Common Stock (such convertible stock or securities
being herein referred to as "CONVERTIBLE SECURITIES") or (y) rights, options or
warrants for the purchase of shares of Common Stock or Convertible Securities
and if the Effective Price of such shares of Common Stock is less than the
Applicable Price, in each case the Company shall be deemed to have issued at the
time of the issuance of such rights, options or warrants or Convertible
Securities the maximum number of Additional Shares of Common Stock issuable upon
exercise or conversion thereof and to have received as consideration for the
issuance of such shares an amount equal to the total amount of the
consideration, if any, received by the Company for the issuance or sale of such
rights, options or warrants or Convertible Securities plus the minimum amounts
of consideration, if any, payable to the Company upon the exercise or conversion
of such rights, options or warrants or Convertible Securities (other than by
cancellation of liabilities or obligations evidenced by such Convertible
Securities); provided that
(i) subject to paragraph (d) below, if the
minimum amounts of such consideration cannot be ascertained, but are a function
of antidilution or similar protective clauses, the Company shall be deemed to
have received the minimum amounts of consideration without reference to such
clauses; and
15.
(ii) if the minimum amount of consideration
payable to the Company upon the exercise or conversion of such rights, options,
warrants or Convertible Securities is reduced over time or on the occurrence or
non-occurrence of specified events other than by reason of antidilution
adjustments, the Effective Price shall be recalculated using the figure to which
such minimum amount of consideration is reduced; provided further, that if the
minimum amount of consideration payable to the Company upon the exercise or
conversion of such rights, options, warrants or Convertible Securities is
subsequently increased, the Effective Price shall be again recalculated using
the increased minimum amount of consideration payable to the Company upon the
exercise or conversion of such rights, options, warrants or Convertible
Securities.
No further adjustment of the Exercise Price, as adjusted upon the issuance
of such rights, options, warrants or Convertible Securities, shall be made as a
result of the actual issuance of Additional Shares of Common Stock upon the
exercise of any such rights, options or warrants or the conversion of any such
Convertible Securities. If any such rights, options or warrants or the
conversion privilege represented by any such Convertible Securities shall expire
without having been exercised, the Exercise Price as adjusted upon the issuance
of such rights, options, or warrants or Convertible Securities shall be
readjusted to the Exercise Price which would have been in effect had an
adjustment been made on the basis of only the Additional Shares of Common Stock,
if any, actually issued or sold on the exercise or conversion of such rights,
options, warrants or Convertible Securities, and on the basis that such
Additional Shares of Common Stock, if any, were issued or sold for the
consideration actually received by the Company upon such exercise or conversion
(other than by cancellation of liabilities or obligations evidenced by such
Convertible Securities), plus the consideration, if any, actually received by
the Company for the issue or sale of all such rights, options, warrants and
Convertible Securities, whether or not exercised, provided that such
readjustment shall not apply to prior exercises of this Warrant.
(c) For the purpose of making any adjustment to the Exercise
Price of the Exercise Shares required under this Section 5.4, "ADDITIONAL SHARES
OF COMMON STOCK" shall mean all shares of Common Stock issued by the Company or
deemed to be issued pursuant to this Section 5.4 (including shares of Common
Stock subsequently reacquired or retired by the Company), other than any
Excluded Issuance.
References to Common Stock in the preceding sentence shall mean all shares
of Common Stock issued by the Company or deemed to be issued pursuant to this
Section 5.4. The "EFFECTIVE PRICE" of Additional Shares of Common Stock shall
mean the quotient determined by dividing the total number of Additional Shares
of Common Stock issued or sold, or deemed to have been issued or sold by the
Company under this Section 5.4, into the aggregate consideration received, or
deemed to have been received by the Company for such issue under this Section
5.4, for such Additional Shares of Common Stock.
(d) In the event that the Company issues or sells, or is
deemed to have issued or sold, Additional Shares of Common Stock in a Qualifying
Dilutive Issuance (the "FIRST DILUTIVE ISSUANCE"), then in the event that the
Company issues or sells, or is deemed to have issued or sold, Additional Shares
of Common Stock in a Qualifying Dilutive Issuance other than the First Dilutive
Issuance (a "SUBSEQUENT DILUTIVE ISSUANCE") pursuant to the same instruments
16.
as the First Dilutive Issuance, then and in each such case upon a Subsequent
Dilutive Issuance the Exercise Price shall be reduced to the Exercise Price that
would have been in effect had the First Dilutive Issuance and each Subsequent
Dilutive Issuance all occurred on the closing date of the First Dilutive
Issuance.
5.5. ADDITIONAL ADJUSTMENTS TO EXERCISE PRICE. Notwithstanding
anything to the contrary contained in this Section 5, but subject to Section
5.7, the Company shall be entitled, but not required, to make such reductions in
the Exercise Price, in addition to those required by Section 5.1, 5.3 or 5.4, as
it, in its sole discretion, shall determine to be advisable, including, without
limitation, in order that any dividend in or distribution of shares of Class B
Common or shares of capital stock of any class other than Class B Common,
subdivision, reclassification or combination of shares of Class B Common,
issuance of rights, options, or warrants, or any other transaction having a
similar effect, shall not be treated as a distribution of property by the
Company to its stockholders under Section 305 of the Internal Revenue Code of
1986, as amended, or any successor provision and shall not be taxable to them.
5.6. DE MINIMUS ADJUSTMENTS. No adjustment pursuant to Section 5.1,
5.3 or 5.4 hereof shall be required unless such adjustment would require an
increase or decrease of at least $0.03 in the Exercise Price then subject to
adjustment; provided, however, that any adjustments that are not made by reason
of this Section 5.6 shall be carried forward and taken into account in any
subsequent adjustment. In case the Company shall at any time issue Class B
Common by way of dividend on any stock of the Company or split or otherwise
subdivide or combine the outstanding shares of Class B Common, said amount of
$0.03 specified in the preceding sentence (as theretofore increased or
decreased, if said amount shall have been adjusted in accordance with the
provisions of this Section 5.6) shall forthwith be proportionately increased in
the case of such a combination or decreased in the case of such a subdivision or
stock dividend so as appropriately to reflect the same. All calculations under
this Section 5 shall be made to the nearest hundredth of a cent.
5.7. CONDITION PRECEDENT TO REDUCTION OF EXERCISE PRICE BELOW PAR
VALUE OF SHARES OF CLASS B COMMON OR INCREASE IN PAR VALUE TO ABOVE EXERCISE
PRICE.
(a) Before taking any action that would cause an adjustment
reducing the Exercise Price to below the then par value of any of the shares of
Class B Common issuable upon exercise of this Warrant, the Company will take any
corporate action that may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and non-assessable
shares of such Class B Common at such adjusted Exercise Price.
(b) Before taking any action that would increase the par value
of the Class B Common issuable upon exercise of this Warrant to an amount that
is greater than the then effective Exercise Price, the Company will take such
corporate action that is necessary in order that the Company may validly and
legally issue fully paid and non-assessable shares of such Class B Common at
such then effective Exercise Price.
5.8. CERTIFICATE OF ADJUSTMENT. In each case of an adjustment or
readjustment of the Exercise Price, the Company, at its sole expense, shall
compute such adjustment or readjustment in accordance with the provisions hereof
and prepare a certificate showing such adjustment or readjustment, and shall
mail such certificate, by first class mail, postage prepaid, to
17.
the Holder at the Holder's address as shown in the Company's books no later than
five (5) Business Days following the effective date of such adjustment or
readjustment. The certificate shall set forth such adjustment or readjustment,
showing in detail the facts upon which such adjustment or readjustment is based,
including a statement of (i) the number of Additional Shares of Class B Common
issued or sold or deemed to have been issued or sold; (ii) the consideration
received or deemed to be received by the Company for any Additional Shares of
Class B Common issued or sold or deemed to have been issued or sold, (iii) the
Exercise Price at the time in effect, and (iv) the type and amount, if any, of
other property which would be received upon exercise of this Warrant.
5.9. OTHER DILUTIVE EVENTS. If any event or occurrence shall occur
as to which the provisions of this Section 5 are not strictly applicable but as
to which the failure to make any adjustment to the Exercise Price and/or the
number of shares or other assets or property subject to this Warrant would
adversely affect the purchase rights or value represented by this Warrant in
accordance with the essential intent and principles of this Section 5, including
any issuance of Participating Securities, then, in each such case, the Company
shall determine the adjustment, if any, on a basis consistent with the essential
intent and principles established in this Section 5, necessary to preserve,
without dilution, the purchase rights represented by this Warrant. If such
determination involves or is based on a determination of the Fair Market Value
of any securities or other assets or property, such determination shall be made
in accordance with the Valuation Procedure.
5.10. GENERAL ADJUSTMENT PROVISIONS.
(a) Notwithstanding anything to the contrary contained in this
Warrant, no adjustments to the Exercise Price or the number of shares of Class B
Common purchasable upon exercise of this Warrant shall be made solely as a
result of any Excluded Issuance.
(b) In any case in which this Section 5 shall require that an
adjustment be made retroactively immediately following a Record Date, the
Company may elect to defer (but only until five Business Days following the
mailing by the Company to the Holder of the certificate as required by Section
5.8) issuing to the Holder, in the event of any exercise of this Warrant after
such Record Date, the shares of the Class B Common issuable upon such exercise
in excess of the shares of Class B Common issuable upon such exercise prior to
such adjustment, if any.
(c) The provisions and adjustments provided for in this
Section 5 shall apply to successive events or occurrences of the types described
in this Section 5.
(d) For the purpose of making any adjustment required under
this Section 5 that requires a determination of the aggregate consideration
received by the Company for any sale, issue or distribution of securities, the
aggregate consideration received by the Company shall equal the sum of: (i) to
the extent it consists of cash, the net amount of cash received by the Company
after deduction of any underwriting or similar commissions, compensation or
concessions paid or allowed by the Company in connection with such issue or sale
but without deduction of any expenses payable by the Company, and (ii) to the
extent it consists of property or assets other than cash, the Fair Market Value
of the property or assets.
18.
6. FRACTIONAL SHARES. No fractional shares shall be issued upon the
exercise of this Warrant as a consequence of any adjustment pursuant hereto. All
Exercise Shares (including fractions) issuable upon exercise of this Warrant may
be aggregated for purposes of determining whether the exercise would result in
the issuance of any fractional share. If, after aggregation, the exercise would
result in the issuance of a fractional share, the Company shall, in lieu of
issuance of any fractional share, pay the Holder otherwise entitled to such
fraction a sum in cash equal to the product resulting from multiplying such
fractional amount by the Fair Market Value of one share of Class B Common.
7. REGISTRATION RIGHTS. The Holder shall have the registration
rights with respect to the Class B Common as set forth in that certain
Registration Rights Agreement, dated as of January 18, 2002 (the "REGISTRATION
RIGHTS AGREEMENT") between the Company and . To
the extent that this Warrant becomes exercisable for Exercise Shares other
than the Class B Common, the Company agrees to grant the Holder hereof the
same registration rights with respect to such Exercise Shares as are currently
granted to Holder in respect of the Class B Common pursuant to the Registration
Rights Agreement. If permissible under the Securities Act, the Company shall
provide the Holder with the same registration rights with respect to the resale
of the Warrant and the issuance of the Exercise Shares upon exercise of the
Warrant by Holders other than the initial Holder, as are currently granted to
Holder pursuant to the Registration Rights Agreement. In addition, the Company
shall use its best efforts, upon the reasonable request of the Holder, to cause
the Warrant to be listed or quoted on a national securities exchange, the
National Market System or the SmallCap Market.
8. NO STOCKHOLDER RIGHTS OR LIABILITIES. This Warrant in and of
itself shall not entitle the Holder to any voting rights or other rights as a
stockholder of the Company (subject to the provisions of Section 5 above). No
provision of this Warrant, in the absence of affirmative action by the Holder to
exercise this Warrant in exchange for shares of Class B Common, and no mere
enumeration herein of the rights or privileges of the Holder, shall give rise to
any liability of the Holder for the Exercise Price or as a stockholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
9. TRANSFER OF WARRANT. Subject to the restriction on transfers set
forth in the legend on the first page of this Warrant and in Section 4.3 and
applicable laws, this Warrant and all rights hereunder, in whole or in part, are
transferable, by the Holder in person or by duly authorized attorney, upon
delivery of this Warrant and the form of assignment attached hereto to any
transferee designated by Holder.
10. PAYMENT OF TAXES ON STOCK CERTIFICATE ISSUES UPON EXERCISE. The
initial issuance of certificates of Class B Common upon any exercise of this
Warrant shall be made without charge to the exercising Holder for any transfer,
stamp or similar tax or for any other governmental charges that may be imposed
in respect of the issuance of such stock certificates, and such stock
certificates shall be issued in the respective names of, or in such names as may
be directed by, the Holder; provided, however, that the Company shall not be
required to pay any tax or such other charges that may be payable in respect of
any transfer involved in the issuance and delivery of any such stock
certificate, any new Warrants or other securities in a name other than that of
the Holder upon exercise of this Warrant (other than to an
19.
Affiliate), and the Company shall not be required to issue or deliver such
certificates or other securities unless and until the Person or Persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
11. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is
lost, stolen, mutilated or destroyed, the Company may, on such terms as to
indemnity or otherwise as it may reasonably impose (which shall, in the case of
a mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination and tenor as this Warrant so lost, stolen, mutilated or destroyed.
Any such new Warrant shall constitute an original contractual obligation of the
Company, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant shall be at any time enforceable by anyone.
12. EXCHANGE OF WARRANT; DIVISIBILITY OF WARRANT. Subject to
compliance with Section 4.3 hereof, this Warrant is exchangeable, without charge
to any Holder, upon the surrender hereof by the Holder at the office or agency
of the Company, for one or more new Warrants of the tenor representing in the
aggregate the right to subscribe for and purchase the number of shares of Class
B Common which may be subscribed for and purchased hereunder, each of such new
Warrants to represent the right to subscribe for and purchase such number of
shares as shall be designated by said Holder at the time of such surrender.
13. CLOSING OF BOOKS. The Company will at no time close its transfer
books against the transfer of any Warrant or of any shares of Class B Common
issued or issuable upon the exercise or conversion of any Warrant in any manner
which interferes with the timely exercise or conversion of this Warrant.
14. NOTICES, ETC. All notices required or permitted hereunder shall
be in writing and shall be deemed effectively given: (a) upon personal delivery
to the party to be notified, (b) when sent by confirmed telex or facsimile if
sent during normal business hours of the recipient or if not, then on the next
Business Day, (c) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (d) one (1)
Business Day after deposit with a nationally recognized overnight courier,
specifying next Business Day delivery, with written verification of receipt. All
notices and other communications shall be sent to the Company at the address
listed on the signature page and to Holder at the address set forth below or at
such other address as the Company or Holder may designate by ten (10) days
advance written notice to the other parties hereto:
with a copy to:
20.
15. ACCEPTANCE. Receipt of this Warrant by the Holder shall
constitute acceptance of and agreement to all of the terms and conditions
contained herein.
16. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon
any Person succeeding the Company by merger, consolidation or acquisition of all
or substantially all of the Company's assets (to the extent provided in Section
5), and all of the obligations of the Company relating to the Class B Common
issuable upon the exercise or conversion of this Warrant shall survive the
exercise, conversion and termination of this Warrant and all of the covenants
and agreements of the Company shall inure to the benefit of the successors and
assigns of the Holder.
17. GOVERNING LAW. This Warrant and all rights, obligations
and liabilities hereunder shall be governed and construed in accordance with
Federal law, if and to the extent such Federal law is applicable, and
otherwise in accordance with the law of the State of New York.
21.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer as of January 18, 2002.
AMERICA WEST HOLDINGS CORPORATION
By:
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Name:
--------------------------------------
Title:
-------------------------------------
Address: 111 West Rio Salado Parkway,
Tempe, Arizona 85281
NOTICE OF EXERCISE
TO: AMERICA WEST HOLDINGS CORPORATION
(1) [ ] The undersigned hereby elects to purchase ________ shares of the
Class B Common of America West Holdings Corporation (the "COMPANY") pursuant to
the terms of the attached Warrant, and tenders herewith or is delivering by wire
transfer to account number __________ at _____________________ (bank) payment of
the exercise price in full.
[ ] The undersigned hereby elects to purchase ________ shares of the
Class B Common of America West Holdings Corporation (the "COMPANY") pursuant to
the terms of the net exercise provisions set forth in Section 2.2 of the
attached Warrant.
(2) Please issue a certificate or certificates representing said shares
of Class B Common in the name of the undersigned or in such other name as is
specified below:
_________________________
(Name)
_________________________
_________________________
(Address)
________________________ ___________________________________
(Date) (Signature)
___________________________________
(Print name)
1.
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and
supply required information. Do not use this form to
purchase shares.)
FOR VALUE RECEIVED, the right to purchase _______ shares of Class B Common
pursuant to the foregoing Warrant and all other rights evidenced thereby are
hereby assigned to
Name:
-----------------------------------------------------------------------
(Please Print)
Address:
---------------------------------------------------------------------
(Please Print)
Dated:
-----------------
Holder's
Signature:
-------------------------------------
Holder's
Address:
---------------------------------------
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of this Warrant, without alteration or enlargement or any
change whatever. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.