Exhibit 4.21
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REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
AMERICA WEST HOLDINGS CORPORATION
AS THE ISSUER, AND THE
WARRANT HOLDERS REFERRED TO HEREIN
WARRANTS TO PURCHASE CLASS B COMMON STOCK
DATED AS OF JANUARY 18, 2002
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of January 18, 2002 by and between AMERICA WEST HOLDINGS
CORPORATION, a Delaware corporation (the "COMPANY"), and the Warrant Holders (as
hereinafter defined).
WHEREAS, the Company and the Warrant Holders have entered into certain
agreements; and
WHEREAS, in order to induce the Warrant Holders to enter into such
agreements with the Company, the Company agreed to issue to the Warrant Holders
the Warrants (as hereinafter defined) and to provide the registration rights set
forth in this Agreement to the Warrant Holders and their respective direct and
indirect transferees.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
AFFILIATE: An affiliate of any specified person shall mean 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.
AGREEMENT: This Registration Rights Agreement, as the same may be
amended, supplemented or modified from time to time in accordance with the terms
hereof.
BUSINESS DAY: 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.
CLOSING DATE: January 18, 2002.
COMMON STOCK: The class B common stock, par value $0.01 per share, of
the Company or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and which are
not subject to redemption by the Company; provided that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
COMPANY: America West Holdings Corporation, a Delaware corporation, and
any successor entity thereto.
1.
EFFECTIVENESS TARGET DATE: The 240th day after the date of this
Agreement.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the SEC thereunder.
FILING DATE: The 120th day after the date of this Agreement.
HOLDER: Each owner of any Registrable Securities.
NOTICE AND QUESTIONNAIRE: The form of Notice and Questionnaire attached
hereto as EXHIBIT A, as reasonably amended, supplemented, or otherwise modified
from time to time by the Company upon reasonable notice to the Holders.
PROSPECTUS: The prospectus included in the Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed in reliance upon Rule 430A), as
amended or supplemented by any prospectus supplement, with respect to the resale
of any of the Registrable Securities covered by such Registration Statement, and
all other amendments and supplements to any such prospectus, including
post-effective amendments, and all materials incorporated by reference or deemed
to be incorporated by reference, if any, in such prospectus.
REGISTRABLE SECURITIES: The shares of Common Stock issued or issuable
upon exercise of the Warrants (including any shares of Common Stock issued or
issuable thereon upon any stock split, stock combination, stock dividend or the
like or as a result of any anti-dilution adjustments under the Warrants), upon
original issuance thereof and at all times subsequent thereto, and associated
related rights, if any, until the earliest of (i) the date on which the resale
thereof has been effectively registered under the Securities Act and such
securities have been disposed of in accordance with the Registration Statement
relating thereto, (ii) the date on which such securities have been distributed
to the public pursuant to Rule 144 or are saleable pursuant to paragraph (k) of
Rule 144 or (iii) the date on which such securities cease to be outstanding.
REGISTRATION STATEMENT: Any registration statement of the Company filed
with the SEC pursuant to the Securities Act that covers the resale of the
Registrable Securities pursuant to the provisions of this Agreement, including
the Prospectus, amendments and supplements to such registration statement or
Prospectus (including pre- and post-effective amendments), all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference, if any, in such registration statement.
REQUIRED HOLDERS: Holders of more than 50% of the Registrable
Securities. For purposes of the preceding sentence, Registrable Securities
owned, directly or indirectly, by the Company or its Affiliates (other than
persons who are Affiliates solely by virtue of being holders of the Registrable
Securities) shall not be deemed outstanding.
REQUISITE INFORMATION: As defined in Section 2(d) hereof.
RULE 144: Rule 144 promulgated by the SEC pursuant to the Securities
Act, as such rule may be amended from time to time, or any successor rule or
regulation.
2.
RULE 144A: Rule 144A promulgated by the SEC pursuant to the Securities
Act, as such rule may be amended from time to time, or any successor rule or
regulation.
RULE 415: Rule 415 promulgated by the SEC pursuant to the Securities
Act, as such rule may be amended from time to time, or any successor rule or
regulation.
RULE 424: Rule 424 promulgated by the SEC pursuant to the Securities
Act, as such rule may be amended from time to time, or any successor rule or
regulation.
RULE 430A: Rule 430A promulgated by the SEC pursuant to the Securities
Act, as such rule may be amended from time to time, or any successor rule or
regulation.
SEC: The Securities and Exchange Commission, or any successor
governmental agency or authority thereto.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
TRANSFER AGENT: The registrar and transfer agent for the Company's
Common Stock.
WARRANTS: The warrants issued to
to purchase shares of Common Stock; the warrants issued to
to purchase shares of Common Stock;
and the warrants issued to
to purchase shares of Common Stock.
WARRANT HOLDERS: The initial holders of the Warrants set forth on
Schedule I hereto.
SECTION 2. REGISTRATION STATEMENT.
(a) REGISTRATION UNDER THE SECURITIES ACT. The Company,
at its own expense, agrees to file with the SEC as soon as reasonably
practicable, but in no event later than the Filing Date, a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Common Stock constituting Registrable Securities. The
Registration Statement shall be on Form S-3 under the Securities Act or another
appropriate form selected by the Company permitting registration of such
Registrable Securities for resale by the Holders in the manner or manners
reasonably designated by such Holders. The Company shall use best efforts to
cause the Registration Statement to be declared effective pursuant to the
Securities Act as soon as reasonably practicable following the filing thereof,
but in no event later than the Effectiveness Target Date, and to keep such
Registration Statement continuously effective under the Securities Act until all
of the securities covered by such Registration Statement cease to be Registrable
Securities.
(b) PIGGYBACK REGISTRATION RIGHTS. The Company shall
afford each Holder of Registrable Securities the opportunity to include such
Registrable Securities in any registration statement filed for purposes of a
public offering of securities of the Company made on a continuous basis pursuant
to Rule 415 (other than registration statements for which the Company has
contractually agreed not to grant such rights), including any registration
statement
3.
filed by the Company to register for resale its outstanding 7.5% Convertible
Senior Notes due 2009. Each Holder desiring to include the Registrable
Securities held by it in any such registration statement shall notify the
Company in writing within 15 days after receipt of notice from the Company of
its intent to file such a registration statement. If a Holder decides not to
include all of the Registrable Securities held by it in any registration
statement thereafter filed by the Company, such Holder shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent registration statement or registration statements (other than
registration statements for which the Company has contractually agreed not to
grant such rights) as may be filed by the Company with respect to offerings of
its securities made on a continuous basis pursuant to Rule 415, all upon the
terms and conditions set forth herein.
(c) SUPPLEMENTS AND AMENDMENTS. The Company shall use
best efforts to keep any Registration Statement continuously effective by
supplementing and amending such Registration Statement if so required by the
rules, regulations or instructions applicable to the registration form used for
such Registration Statement, if required by the Securities Act or if reasonably
requested by the Required Holders or by any underwriter of such Registrable
Securities. If the Registration Statement under Section 2(a) ceases to be
available for use by the Holders because the Company no longer qualifies to use
such form of registration statement, the Company shall be required to file, as
promptly as reasonably practicable, a new Registration Statement on an
appropriate form and its obligations hereunder shall continue to apply in all
respects.
(d) SELLING SECURITYHOLDER INFORMATION. Each Holder
wishing to sell Registrable Securities pursuant to a Registration Statement and
related Prospectus agrees to deliver a Notice and Questionnaire, in a timely
manner, that confirms such Holder's agreement to be bound by the terms of this
Agreement and includes such information regarding it and the distribution of its
Registrable Securities as is required by law to be disclosed by the Holder in
the Registration Statement (the "Requisite Information") to the Company prior to
any intended distribution of Registrable Securities under the Registration
Statement. The Company shall not be required to include in the Registration
Statement and related Prospectus the Registrable Securities of any Holder that
does not provide the Company with a Notice and Questionnaire in accordance with
this Section 2(d). If such completed Notice and Questionnaire is received by the
Company before 10 days prior to the effective date of a Registration Statement,
such Holder shall be entitled to have its Registrable Securities included in
such Registration Statement at the effective date thereof. If such completed
Notice and Questionnaire is received thereafter, the Company will use best
efforts to include such Holder's Registrable Securities as promptly as
reasonably practicable thereafter, subject to the last two sentences of the next
paragraph.
Subject to the last two sentences of this paragraph, the Company shall use best
efforts to file, as soon as practicable after the receipt of a Notice and
Questionnaire from any Holder that includes the Requisite Information or any
changes in the Requisite Information with respect to such Holder (including,
without limitation, any changes in the plan of distribution), a Prospectus
supplement pursuant to Rule 424 or otherwise amend or supplement such
Registration Statement to include in the Prospectus the Requisite Information as
to such Holder (and the Registrable Securities held by such Holder), and the
Company shall provide such Holder a copy of such Prospectus as so amended or
supplemented containing the Requisite Information in order to permit such Holder
to comply with the Prospectus delivery requirements of the Securities Act in
4.
a timely manner with respect to any proposed disposition of such Holder's
Registrable Securities and to file the same with the SEC. Each Holder requesting
registration hereunder shall promptly notify the Company of any material changes
to the Requisite Information contained in the Notice and Questionnaire provided
to the Company by such Holder. Notwithstanding the foregoing, following the
effective date of any Registration Statement, the Company shall not be required
to file more than one such supplement or post-effective amendment to reflect
changes in the amount of Common Stock constituting Registrable Securities held
by any particular Holder at the request of such Holder in any 30-day period. The
Company may take reasonable steps to aggregate the addition of Registrable
Securities of more than one Holder for purposes of filing amendments to any
Registration Statement or supplements to the Prospectus so as to reduce the need
for multiple amendments or supplements; provided that the Company shall not use
this sentence to delay the filing of any amendment or supplement beyond any such
30-day period.
(e) MATERIAL EVENTS; SUSPENSION OF SALES. Notwithstanding
the provisions contained in this Section 2, with respect to any Registration
Statement, the Company may (for a period not to exceed 60 consecutive days, and
not in any event to exceed 90 days in the aggregate during any 12 month period)
suspend use of such Registration Statement at any time if (and for so long as)
the continued effectiveness thereof would require the Company to disclose a
material financing, acquisition, other transaction or other material non-public
information, which disclosure the Board of Directors of the Company shall have
determined in good faith is not in the best interests of the Company and the
Company's stockholders. The Company shall notify each registered Holder, the
Transfer Agent and the managing underwriters, if any, that the use of the
Prospectus is to be suspended until the Company shall deliver a written notice
that the use of the Prospectus may be resumed. During such suspension, the use
of the Prospectus shall be suspended, and the Company shall not be required to
maintain the effectiveness of, or amend or update the Registration Statement, or
amend or supplement the Prospectus.
(f) ADDITIONAL AGREEMENTS OF HOLDERS. Each Holder agrees
not to dispose of Registrable Securities pursuant to any Registration Statement
without complying with the prospectus delivery requirements under the Securities
Act and the provisions of paragraph (e) above regarding use of the Prospectus.
Each Holder further agrees that it will comply fully with applicable federal and
state securities laws in connection with the distribution of any Registrable
Securities pursuant to the Registration Statement. Each Holder further
acknowledges having been advised by the Company that applicable federal
securities laws prohibit Holders from trading in securities of the Company at
any time while in possession of material non-public information about the
Company.
SECTION 3. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations hereunder, the Company shall effect such registrations
on the appropriate form selected by the Company to permit the resale of
Registrable Securities in accordance with the Holder's intended method or
methods of disposition thereof, and pursuant thereto the Company shall as
expeditiously as reasonably possible:
(a) Furnish to the Holders and the managing underwriters,
if any, copies of all such documents proposed to be filed (excluding, unless
requested, those documents incorporated or deemed to be incorporated by
reference and then only to the Holder who so requested) and use its commercially
reasonable efforts to reflect in each such document, when so filed with the
5.
SEC, such comments as the Holders may reasonably propose. The Company shall not
file any such Registration Statement or related Prospectus or any amendments or
supplements thereto (excluding any document that would be incorporated or deemed
incorporated by reference) to which the Holder or the managing underwriters, if
any, shall reasonably object in writing (by hand-delivery, courier guaranteeing
overnight delivery or telecopy) within five Business Days after the receipt of
such documents. Notwithstanding the foregoing, the Company shall not be required
to furnish to the Holders or the managing underwriters, if any, any amendments
or supplements to the Registration Statement or Prospectus filed solely to
reflect changes to the amount of Common Stock constituting Registrable
Securities held by any particular Holder or immaterial revisions to the
information contained therein.
(b) Prepare and file with the SEC such amendments,
including post-effective amendments, to the Registration Statement as may be
necessary to keep such Registration Statement continuously effective for the
applicable time period set forth in Section 2(a) hereof; cause the related
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement and Prospectus during such period in accordance with the
intended method or methods of disposition by the Holder set forth in such
Registration Statement as so amended or in such Prospectus as so supplemented
including, without limitation, the filing of any Prospectus supplement pursuant
to Rule 424 in order to add or change any selling security holder information
(including any such supplements or amendments pursuant to Section 2(d) hereof,
provided such Holder to which such change applies complies with the Requisite
Information requirements of Section 2(d) hereof in a timely manner).
(c) Notify the Holders and the managing underwriters, if
any, promptly and, if requested by any such person, confirm such notice in
writing:
(i) (A) when a Prospectus or any Prospectus
supplement or post-effective amendment is proposed to be filed and (B) with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective;
(ii) of any written comments from the SEC with
respect to any filing and of any request by the SEC or any other Federal or
state governmental authority for amendments or supplements to such Registration
Statement or related Prospectus or for additional information related thereto;
(iii) of the issuance by the SEC, any state
securities commission, any other governmental agency or any court of any stop
order, order or injunction suspending or enjoining the use or effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company of any
notification with respect to the suspension of qualification or exemption from
qualification of any of the Registrable Securities for sale in any jurisdiction,
or the initiation or threatening of any proceeding for such purpose;
6.
(v) of the existence of any fact or the
happening of any event that makes any statement of material fact made in such
Registration Statement or related Prospectus untrue in any material respect, or
that requires the making of any changes in such Registration Statement or
Prospectus so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and that, in the case of the Prospectus, such Prospectus will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading; and
(vi) of the determination by the Company that a
post effective amendment to the Registration Statement will be filed with the
SEC.
(d) Use commercially reasonable efforts to obtain the
withdrawal of any stop order or order enjoining or suspending the use or
effectiveness of a Registration Statement or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If reasonably requested by the Required Holders, or
managing underwriters, if any, to:
(i) promptly include in a Prospectus supplement
or post-effective amendment such information as the Required Holders or managing
underwriters, if any, may reasonably request to be included therein; and
(ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as reasonably practicable
after the Company has received notification of the matters to be included in
such Prospectus supplement or post-effective amendment.
(f) Furnish to each Holder who so requests, and each
managing underwriter, if any, without charge, at least one copy of the
Registration Statement and each amendment thereto (but excluding schedules, all
documents incorporated or deemed to be incorporated therein by reference and all
exhibits, unless requested in writing by such Holder or any managing underwriter
and then only to the person who so requested).
(g) Deliver to each Holder and the underwriters, if any,
without charge, as many copies of the Prospectus or Prospectuses (including each
form of Prospectus) and each amendment or supplement thereto as such persons may
reasonably request; and, unless the Company shall have given notice to such
Holder or underwriter pursuant to Section 2(e), the Company hereby consents to
the use of such Prospectus, and each amendment or supplement thereto, by each of
the selling Holders of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable
Securities, use all reasonable efforts to register or qualify, or cooperate with
the Holders of Registrable Securities to be sold or tendered or the
underwriters, if any, and their respective counsel in connection with the
7.
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any Holder or underwriter reasonably requests in writing, keep each such
registration or qualification (or exemption therefrom) effective during the
period the Registration Statement is required to be kept effective and do any
and all other acts or things legally necessary to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement; provided, however, that the Company shall not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified,
take any action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or subject the Company to any tax
in any such jurisdiction where it is not then so subject.
(i) In connection with any sale or transfer of
Registrable Securities that will result in such securities no longer being
Registrable Securities, cooperate with the Holders and the managing
underwriters, if any, to (i) facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends, unless required by applicable securities
laws and (ii) enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or Holders may
reasonably request at least two Business Days prior to any sale of Registrable
Securities.
(j) Use best efforts to cause the offering of the
Registrable Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities within the
United States as may be necessary to enable the Holder or managing underwriter,
if any, to consummate the disposition of such Registrable Securities; provided,
however, that the Company shall not be required to register the Registrable
Securities in any jurisdiction that would require the Company to qualify to do
business in any jurisdiction where it is not then so qualified, subject it to
general service of process in any such jurisdiction where it is not then so
subject or subject the Company to any tax in any such jurisdiction where it is
not then so subject.
(k) Upon the occurrence of any event contemplated by
Section 3(c)(v) hereof, as promptly as reasonably practicable (subject to any
suspension of sales pursuant to Section 2(e) hereof), prepare a supplement or
amendment, including, if appropriate, a post-effective amendment, to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file any
other required document so that, as thereafter delivered, such Prospectus will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading
(except, upon occurrence of an event contemplated by paragraph (v) of Section
3(c) above, to the extent that the Company determines in good faith that the
disclosure of such event at such time would not be in the best interests of the
Company and the Company's stockholders provided that any such delay in
disclosure pursuant to this Section 3(k) shall be considered a suspension of the
Registration Statement subject to the limitation in Section 2(e)).
(l) Subject to the provisions of Section 7, enter into
such agreements (including any underwriting agreements in form, scope and
substance as may be reasonably
8.
requested and as are customary in underwritten offerings) and take all such
other appropriate actions in connection therewith (including those reasonably
requested by the managing underwriters, if any, or the Holders of a majority in
interest of the Registrable Securities being sold) in order to expedite or
facilitate the sale of such Registrable Securities. In connection with any
underwritten offering, the Company will:
(i) make such representations and warranties to
the Holders of such Registrable Securities and the underwriters, if any, with
respect to the business of the Company and its subsidiaries (including with
respect to businesses or assets acquired or to be acquired by any of them), and
the Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when requested;
(ii) obtain, as may reasonably be required,
opinions of counsel to the Company (which may include in-house counsel) and
updates thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the managing underwriters, if any, addressed to
each selling Holder of Registrable Securities and each of the underwriters, if
any, covering the matters customarily covered in opinions requested in
underwritten offerings (including any such matters as may be reasonably
requested by such underwriters));
(iii) obtain, as may reasonably be required,
customary "cold comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed (where reasonably possible) to each selling Holder of
Registrable Securities and each of the underwriters, if any, such letters to be
in customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings; and
(iv) deliver such documents and certificates as
may be reasonably requested by the Holders of majority in interest of the
Registrable Securities being sold or the managing underwriters, if any, to
evidence the continued validity of the representations and warranties made
pursuant to clause (i) of this Section 3(l) and to evidence compliance with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company;
(m) Make available for inspection by a representative of
the Holders of Registrable Securities being sold, any underwriter participating
in any such disposition of Registrable Securities, if any, and any attorney,
consultant or accountant retained by such selling Holders or underwriter, at the
offices where normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries (other than records and documents that the Company and its
subsidiaries agreed contractually not to disclose and the disclosure of which
would violate such contractual arrangement) as they may reasonably request, and
cause the officers, directors, agents and employees of the Company and its
subsidiaries to supply all information (other than information
9.
that the Company and its subsidiaries agreed contractually not to disclose and
the disclosure of which would violate such contractual arrangement) in each case
reasonably requested by any such representative, underwriter, attorney,
consultant or accountant in connection with such Registration Statement and as
shall be reasonably necessary to enable such persons to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information gathering shall be
coordinated on behalf of the Holders and the other parties thereto by one
counsel designated by and on behalf of such Holders and other parties and
provided further, that such persons shall first agree in writing with the
Company that any information that is reasonably and in good faith designated by
the Company as confidential at the time of delivery or inspection (as the case
may be) of such information shall be kept confidential by such persons, unless
(i) disclosure of such information is required by court or administrative order
or is necessary to respond to inquiries of regulatory authorities; (ii)
disclosure of such information is required by law (including any disclosure
requirements pursuant to Federal securities laws in connection with the filing
of any Registration Statement or the use of any Prospectus); (iii) such
information becomes generally available to the public other than as a result of
a disclosure or failure to safeguard by any such person; or (iv) such
information becomes available to any such person from a source other than the
Company and such source is not known to be bound by a confidentiality agreement.
(n) (i) list all shares of Common Stock covered by any
Registration Statements on any securities exchange on which the Common Stock is
then listed; or (ii) authorize for quotation on the National Market of the
National Association of Securities Dealers Automated Quotation System ("Nasdaq")
all Common Stock covered by all such Registration Statements if the Common Stock
is then so authorized for quotation.
(o) Make all reasonable efforts to provide such
information as is required for any filings required to be made with the National
Association of Securities Dealers, Inc. ("NASD").
SECTION 4. REGISTRATION EXPENSES. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by it whether or not any Registration Statement is filed or becomes effective.
The fees and expenses referred to in the foregoing sentence shall include:
(a) all registration, filing, securities exchange
listing, rating agency and New York Stock Exchange fees and expenses;
(b) printing expenses (including, without limitation,
printing Prospectuses if the printing of Prospectuses is required by the
managing underwriters, if any, or by the Holders of a majority in interest of
the Registrable Securities);
(c) messenger, copying, telephone and delivery expenses;
(d) reasonable fees and disbursements of counsel for the
Company;
(e) fees and disbursements of all independent certified
public accountants referred to in Section 3(l)(iii) including, without
limitation, the expenses of any special audits or "cold comfort" letters
required by Section 3(l)(iii);
10.
(f) fees and expenses of all other persons retained by
the Company;
(g) all registration, filing, qualification and other
fees and expenses of complying with securities or blue sky laws of all
jurisdictions in which the Registrable Securities are to be registered and any
legal fees and expenses incurred in connection with the blue sky qualifications
of the Registrable Securities and the determination of their eligibility for
investment under the laws of all such jurisdictions; and
(h) the reasonable fees and disbursements incurred by the
Holders of the Registrable Securities being registered (including, without
limitation, the reasonable fees and disbursements for one counsel or firm of
counsel selected by the Holders of a majority in interest of the Registrable
Securities being registered).
Notwithstanding anything in this Agreement to the contrary, the Holders shall be
responsible for all expenses customarily borne by selling securityholders
(including underwriting discounts, commissions and fees and expenses of counsel
to the selling Holders to the extent not required to be paid pursuant to clause
(h) above).
SECTION 5. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless
each Holder of Registrable Securities, such Holder's affiliates, and their
respective officers, directors, employees, representatives and agents, and each
person, if any, who controls any Holder of Registrable Securities within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, or is under common control with, or is controlled by, any Holder, against
any and all loss, liability, claim or damage arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission to state therein any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this indemnity agreement shall not apply to any loss, liability, claim or
damage arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Holder of
Registrable Securities (which also acknowledges the indemnity provisions herein)
or any person, if any, who controls any such Holder of Registrable Securities
expressly for use in the Registration Statement (or any amendment thereto), or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); provided, further, that this indemnity agreement shall not apply to
any loss, liability, claim or damage (i) arising from an offer or sale of
Registrable Securities occurring during any suspension of sales pursuant to
Section 2(e) (provided that the Company has given to the Holder notice of such
suspension prior to such offer or sale), or (ii) if the Holder fails to deliver
at or prior to the written confirmation of sale, the most recent Prospectus, as
amended or supplemented, and such Prospectus, as amended or supplemented, would
have corrected such untrue statement or omission or alleged untrue statement or
omission of a material fact (provided that the Company has delivered to such
Holder, or otherwise given notice to such Holder of the existence of, such most
recent Prospectus, as supplemented or amended). Any amounts advanced by the
Company to an indemnified party pursuant to this Agreement shall be returned to
the Company if it shall be
11.
finally determined in a judgment by a court of competent jurisdiction not
subject to appeal, that such indemnified party was not entitled to
indemnification.
(b) In connection with the preparation of the
Registration Statement in which a Holder of Registrable Securities is
participating in furnishing information relating to such Holder of Registrable
Securities to the Company for use in such Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto,
each such Holder agrees, severally and not jointly, to indemnify and hold
harmless any other Holders of Registrable Securities, the Company, its
affiliates and their respective officers, directors, employees, representatives
and agents, and each person, if any, who controls such other Holders or the
Company within the meaning of either such Section, against any and all loss,
liability, claim or damage described in the indemnity contained in subsection
(a) of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder of Registrable Securities (which also acknowledges the indemnity
provisions herein) or any person, if any, who controls any such Holder of
Registrable Securities expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. The indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one separate firm (in
addition to any local counsel), for the Holders of Registrable Securities, and
all persons, if any, who control the Holders of Registrable Securities within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, collectively (unless representation of all Holders and such
parties by the same counsel would be inappropriate due to actual or potential
differing interests between or among them), and (b) the fees and expenses of
more than one separate firm (in addition to any local counsel), for the Company
and each person, if any, who controls the Company within the meaning of either
such Section, and that all fees and expenses payable under (a) and (b) above
shall be reimbursed as they are incurred. In the
12.
case of any such separate firm for the Holders of Registrable Securities, and
control persons of the Holders of Registrable Securities, such firm shall be
designated by the Holders of a majority in interest of the Registrable
Securities and shall be reasonably acceptable to the Company. In the case of any
such separate firm for the Company and control persons of the Company, such firm
shall be reasonably acceptable to the Holders of a majority in interest of the
Registrable Securities. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent (which consent
shall not be unreasonably withheld or delayed), but if settled with such consent
or if there be a final non-appealable judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld or delayed), settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 5 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party. No indemnified party shall, without the prior written consent
of the indemnifying party, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 5 (whether or not the indemnified parties are actual or
potential parties thereto).
(d) If the indemnification to which an indemnified party
is entitled under this Section 5 is for any reason unavailable to or
insufficient although applicable in accordance with its terms to hold harmless
an indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative fault of the Company on the one hand and the Holders of
the Registrable Securities on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Holder of the Registrable
Securities and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 5(d). The
aggregate amount of losses, liabilities, claims, damages, and expenses incurred
by an indemnified party and referred to above in this Section 5(d) shall be
deemed to include any out-
13.
of-pocket legal or other expenses reasonably incurred by such indemnified party
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 5, no Holder shall be
required to indemnify or contribute any amount in excess of the amount by which
the total price at which Registrable Securities were sold by such Holder exceeds
the amount of any damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission to alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The remedies provided in this Section 5 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
For purposes of this Section 5(d), each person, if any, who controls
any Holder of Registrable Securities within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Holder, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Company. No party
shall be liable for contribution with respect to any action, suit, proceeding or
claim settled, compromised, or with respect to which the party requesting
contribution consented to the entry of a judgment, without such party's written
consent, which consent shall not be unreasonably withheld or delayed.
(e) The Company may require as a condition to including
the Registrable Securities in the Registration Statement, and to entering into
any underwriting agreement with respect thereto, that the Company shall have
received an undertaking from the Holder and such underwriter to comply with the
provisions of this Section 5.
(f) The agreements contained in this Section 5 shall
survive the transfer or sale of the Registrable Securities and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
SECTION 6. INFORMATION REQUIREMENTS.
(a) The Company agrees that, if at any time until the
Registrable Securities cease to be Registrable Securities the Company is not
subject to the reporting requirements of the Exchange Act, it will cooperate
with any Holder of Registrable Securities and use reasonable efforts to take
such further reasonable action as any Holder of Registrable Securities may
reasonably request in writing to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 and Rule 144A under the Securities Act
(or any similar rule or regulation hereafter adopted by the SEC) and customarily
taken in connection with sales pursuant to such exemptions,
14.
including, without limitation, making available adequate current public
information within the meaning of paragraph (c)(2) of Rule 144 and delivering
the information required by paragraph (d) of Rule 144A. Notwithstanding the
foregoing, nothing in this Section 6 shall be deemed to require the Company to
register any of its securities under any section of the Exchange Act.
(b) The Company shall file reports required to be filed
by it under the Exchange Act and the New York Stock Exchange or any other
securities exchanges on which the Common Stock is listed.
SECTION 7. UNDERWRITTEN REGISTRATION. The Required Holders may elect to
sell any Registrable Securities in an underwritten offering; provided that (a)
the investment banker or investment bankers and manager or managers that will
administer the offering will be investment bankers of recognized national
standing selected by the Required Holders, subject to the consent of the Company
(which will not be unreasonably withheld or delayed); and (b) the Company shall
not be required to agree to more than one (1) underwritten offering per year and
five (5) underwritten offerings in the aggregate (it being understood that any
underwritten offering commenced but not completed due to a suspension of sales
by the Company pursuant to Section 2(e) hereof shall not be counted towards such
limits on underwritten offerings). No person may participate in any underwritten
registration hereunder unless such person (i) agrees to sell such person's
Registrable Securities on the basis reasonably provided in any underwriting
arrangements approved by the Required Holders; and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up agreements and other documents reasonably required under the terms of
such underwriting arrangements. Notwithstanding any other provision of this
Agreement, if the underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten, the number of
shares that may be included in the underwriting shall be allocated on a pro rata
basis.
SECTION 8. MISCELLANEOUS.
(a) OTHER REGISTRATION RIGHTS. The Company may in the
future grant registration rights that would permit any person that is a third
party the right to piggy-back on the Registration Statement; provided, however,
that if the managing underwriter, if any, of such offering notifies the Holders
that the total amount of Registrable Securities which they and the holders of
such piggy-back rights intend to include in the Registration Statement is so
large as to materially adversely affect the success of such offering (including
the price at which such securities can be sold), then only the amount, the
number or kind of securities offered for the account of holders of such
piggy-back rights will be reduced to the extent necessary to reduce the total
amount of securities to be included in such offering to the amount, number or
kind recommended by the managing underwriter and the amount of Registrable
Securities to be included shall not be reduced.
(b) NO INCONSISTENT AGREEMENTS. The Company has not
entered and shall not enter into any agreement that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities under any such agreements.
15.
(c) NO ADVERSE ACTION AFFECTING THE REGISTRABLE
SECURITIES. The Company will not take any action with respect to the Registrable
Securities which would adversely affect the ability of any of the Holders to
include such Registrable Securities in a registration undertaken pursuant to
this Agreement.
(d) AMENDMENTS AND WAIVERS. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof, may not be given, without the written consent of the Company
and the Required Holders; provided, further, that any amendment, modification,
supplement, waiver or consent that would disproportionately affect the rights of
any Holder (as compared to the other Holders) shall not be effective against
such Holder without such Holder's written consent. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders whose Registrable
Securities are being sold pursuant to the Registration Statement and that does
not directly or indirectly affect the rights of other Holders may be given by
Holders of a majority in interest of the Registrable Securities being sold by
such Holders pursuant to such Registration Statement, provided, however, that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding sentence.
Each Holder of Registrable Securities outstanding at the time of any such
amendment, modification, supplement, waiver or consent or thereafter shall be
bound by any such amendment, modification, supplement, waiver or consent
effected pursuant to this Section 8(d), whether or not any notice, writing or
marking indicating such amendment, modification, supplement, waiver or consent
appears on the Registrable Securities or is delivered to such Holder.
(e) NOTICES. All notices and other communications
provided for herein or permitted hereunder shall be made in writing by
hand-delivery, courier guaranteeing overnight delivery, certified first-class
mail, return receipt requested, or telecopy and shall be deemed given (i) when
made, if made by hand delivery, (ii) upon confirmation, if made by telecopier,
(iii) one Business Day after being deposited with such courier, if made by
overnight courier or (iv) on the date indicated on the notice of receipt, if
made by first-class mail, to the parties as follows:
(i) if to a Holder, to the address of such
Holder as it appears in the Notice and Questionnaire, or, if not so specified,
in the Common Stock or Warrants register of the Company, as applicable. Failure
to mail a notice or communication to a Holder or any defect in such notice or
communication shall not affect its sufficiency with respect to other Holders.
(ii) if to the Company to:
AMERICA WEST HOLDINGS CORPORATION
111 West Rio Salado Parkway
Tempe, AZ 85281
Telephone No. (480) 693-0800
Facsimile No. (480) 693-5932
Attention: Executive Vice President -
Corporate With a copy to:
16.
COOLEY GODWARD LLP
One Maritime Plaza, 20th Floor
San Francisco, CA 94111
Telephone No. (415) 693-2000
Facsimile No. (415) 951-3699
Attention: Samuel M. Livermore
(iii) If to a Warrant Holder, to the address of
such Warrant Holder set forth on Schedule I.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns of each
of the parties and shall inure to the benefit of each existing and future
Holder. The Company may not assign its rights or obligations hereunder without
the prior written consent of the Holders of a majority in interest of the
Registrable Securities, other than by operation of law pursuant to a merger or
consolidation to which the Company is a party.
(g) COUNTERPARTS. This Agreement may be executed in any
number of counterparts by the parties hereto, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(i) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction, it being intended that all of the
rights and privileges of the parties shall be enforceable to the fullest extent
permitted by law.
(j) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. All references made in this Agreement to "Section" and
"paragraph" refer to such Section or paragraph of this Agreement, unless
expressly stated otherwise.
(k) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Registrable
Securities. There are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein, with respect to the
registration rights granted by the Company with
17.
respect to the Registrable Securities. This Agreement supersedes all prior
agreements and undertakings among the parties solely with respect to such
registration rights.
(l) TERMINATION. This Agreement and the obligations of
the parties hereunder shall terminate when all of the securities issued or
issuable upon exercise of the Warrants cease to be Registrable Securities,
except for any liabilities or obligations under Sections 4 or 5 hereof.
(m) SPECIFIC PERFORMANCE. The parties agree that, to the
extent permitted by law, (i) the obligations imposed on them in this Agreement
are special, unique and of an extraordinary character, and that in the event of
a breach by any such party damages would not be an adequate remedy; and (ii)
each of the other parties shall be entitled to specific performance and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled at law or in equity.
18.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
AMERICA WEST HOLDINGS CORPORATION
By:
_________________________________
Name:
Title: Executive Vice President -
Corporate
19.
WARRANT HOLDERS:
By:
_________________________________
Name:
Title:
20.
SCHEDULE I
Schedule of Warrant Holders
EXHIBIT A
AMERICA WEST HOLDINGS CORPORATION
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of a warrant (the "Warrant") to
purchase Class B Common Stock of America West Holdings Corporation ("Holdings")
or shares of Class B Common Stock, par value $0.01, of Holdings issuable upon
exercise of the Warrant (the "Registrable Securities"), understands that
Holdings has filed or intends to file with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Registrable
Securities in accordance with the terms of the Registration Rights Agreement
(the "Registration Rights Agreement") among Holdings and certain holders of
warrants to purchase Class B Common Stock of Holdings named therein.
A copy of the Registration Rights Agreement is available from Holdings
upon request at the address set forth below. All capitalized terms not otherwise
defined herein shall have the meaning ascribed thereto in the Registration
Rights Agreement. Each beneficial owner of Registrable Securities is entitled to
the benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Registrable Securities generally will be
required to be named as a selling securityholder in the related prospectus,
deliver a prospectus to purchasers of Registrable Securities and be bound by
those provisions of the Registration Rights Agreement applicable to such
beneficial owner (including certain indemnification provisions, as described
below).
Beneficial owners are encouraged to complete and deliver this Notice
and Questionnaire prior to the effectiveness of the Shelf Registration Statement
so that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness. Upon receipt of a completed
Notice and Questionnaire from a beneficial owner following the effectiveness of
the Shelf Registration Statement, Holdings will, as promptly as practicable,
file such amendments to the Shelf Registration Statement or supplements to the
related prospectus as are necessary to permit such holder to deliver such
prospectus to purchasers of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related prospectus.
1.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to Holdings of its intention to sell
or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands that it will be bound by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
The undersigned hereby provides the following information to Holdings
and represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
______________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as (a)
above) through which Registrable Securities listed in (3)
below are held:
______________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) through which Registrable Securities
listed in (3) below are held:
______________________________________________________________
2. Address for Notices to Selling Securityholder:
________________________________________________________________________________
________________________________________________________________________________
Telephone:______________________________________________________________________
Fax:____________________________________________________________________________
Contact Person:_________________________________________________________________
3. Beneficial Ownership of Registrable Securities:
(a) Type and Principal Amount of Registrable Securities
beneficially owned:
______________________________________________________________
2.
(b) CUSIP No(s). of such Registrable Securities beneficially
owned:
______________________________________________________________
4. Beneficial Ownership of Holdings' securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of Holdings other than the
Registrable Securities listed above in Item (3).
(a) Type and Amount of Other Securities beneficially owned by the
Selling Securityholder:
______________________________________________________________
(b) CUSIP No(s). of such Other Securities beneficially owned:
______________________________________________________________
5. Relationship with Holdings:
Except as set forth below, neither the undersigned nor any of its affiliates,
directors or principal equity holders (5% or more) has held any position or
office or has had any other material relationship with Holdings (or their
predecessors or affiliates) during the past three years.
State any exceptions here:
________________________________________________________________________________
________________________________________________________________________________
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or pledgees)
intends to distribute the Registrable Securities listed above in Item (3)
pursuant to the Shelf Registration Statement only as follows (if at all): Such
Registrable Securities may be sold from time to time directly by the undersigned
or alternatively, through underwriters, broker-dealers or agents. If the
Registrable Securities are sold through underwriters or broker-dealers, the
Selling Securityholder will be responsible for underwriting discounts or
commissions or agent's commissions. Such Registrable Securities may be sold in
one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve block
transactions) (i) on any national securities exchange or quotation service on
which the Registrable Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable Securities
or otherwise, the undersigned may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Registrable
Securities, short and deliver
3.
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
________________________________________________________________________________
________________________________________________________________________________
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Securities Exchange Act of 1934, as amended
and the rules thereunder relating to stock manipulation, particularly Regulation
M thereunder (or any successor rules or regulations), in connection with any
offering of Registrable Securities pursuant to the Shelf Registration Statement.
The undersigned agrees that neither it nor any person acting on its behalf will
engage in any transaction in violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain persons
as set forth therein.
Pursuant to the Registration Rights Agreement, Holdings has agreed
under certain circumstances to indemnify and hold harmless the Selling
Securityholders as set forth therein.
The undersigned hereby agrees that, in connection with any sale of
Registrable Securities pursuant to the Shelf Registration Statement, it will
comply with the prospectus delivery requirements, if any, of the Securities Act
of 1933, as amended (the "Securities Act"), and, at the time of any such sale,
represents, warrants and agrees that the information regarding the undersigned
included in this Notice and Questionnaire, as it may be supplemented shall be
accurate and complete in all material respects.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement regarding the undersigned, the
undersigned agrees to promptly notify Holdings of any inaccuracies or changes in
the information provided herein that may occur subsequent to the date hereof at
any time while the Shelf Registration Statement remains effective. All notices
hereunder and pursuant to the Registration Rights Agreement shall be made in
writing at the address set forth below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus. The undersigned understands that such information will be
relied upon by Holdings in connection with the preparation or amendment of the
Shelf Registration Statement and the related prospectus.
By signing below, the undersigned agrees that the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
Holdings' respective successors and assigns. This Agreement shall be governed in
all respects by the laws of the State of New York.
4.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
Beneficial Owner
By:____________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO HOLDINGS AS
SET FORTH BELOW:
America West Holdings Corporation
111 West Rio Salado Parkway
Tempe, AZ 85281
Attn: ______________
Tel: (480) 693-0800
Fax: (480) 693-5932
with a copy to:
Cooley Godward LLP
One Maritime Plaza
San Francisco, CA 94111
Attn: Samuel M. Livermore
Tel: (415) 693-2113
Fax: (415) 951-3699
5.