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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
December 19, 1996, is by and among AMERICA WEST AIRLINES, INC., a Delaware
corporation ("AWA"), AWA MERGER, INC., a Delaware corporation ("Merger Sub"),
and AMERICA WEST HOLDINGS CORPORATION, a Delaware corporation ("Holdings").
PRELIMINARY STATEMENTS
1. AWA has an authorized capitalization consisting of (i) 1,200,000
shares of Class A Common Stock, par value $0.01 per share ("AWA
Class A Common"), of which 1,200,000 shares are issued and
outstanding, (ii) 100,000,000 shares of Class B Common Stock,
par value $0.01 per share ("AWA Class B Common"), of which
43,182,056 shares were issued and outstanding as of September
30, 1996, and (iii) 48,800,000 shares of Preferred Stock, par
value $0.01 per share, of which no shares are issued and
outstanding.
2. Holdings has an authorized capitalization consisting of (i)
1,200,000 shares of Class A Common Stock, par value $0.01 per
share ("Holdings Class A Common"), of which no shares are issued
and outstanding, (ii) 100,000,000 shares of Class B Common
Stock, par value $0.01 per share ("Holdings Class B Common"), of
which one share is issued and outstanding and is owned by AWA,
and (iii) 48,800,000 shares of Preferred Stock, par value $0.01
per share, of which no shares are issued and outstanding.
3. Merger Sub has an authorized capitalization consisting of 1,000
shares of Common Stock, par value $0.01 per share ("Merger Sub
Common"), all of which are issued and outstanding and are owned
by Holdings.
4. AWA currently has issued and outstanding warrants to purchase
8,180,086 shares of AWA Class B Common, the terms of which are
governed by that certain Warrant Agreement dated as of August
25, 1994 between AWA and First Interstate Bank of California, as
Warrant Agent.
5. The Board of Directors of each of AWA, Holdings and Merger Sub
has heretofore approved the Merger (the "Merger") of Merger Sub
with and into AWA in accordance with the General Corporation Law
of the State of Delaware (the "DGCL") and upon the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, AWA, Holdings and Merger Sub hereby agree as follows:
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ARTICLE I
THE MERGER
Section 1.01. The Merger. Upon the terms and subject to the
conditions set forth in this Agreement and in accordance with the DGCL, Merger
Sub shall be merged with and into AWA at the Effective Time (as hereinafter
defined). Following the Effective Time, the separate corporate existence of
Merger Sub shall cease and AWA shall continue as the surviving corporation (in
such capacity, the "Surviving Corporation") and shall succeed to and assume all
the rights and obligations of Merger Sub in accordance with the DGCL.
Section 1.02. Effective Time. Subject to the provisions of this
Agreement, as soon as practicable on or after the date hereof, AWA shall file a
copy of this Agreement with the Secretary of State of the State of Delaware
and the Merger shall become effective at the later to occur of (i) the time of
such filing and (ii) midnight on December 31, 1996 (the "Effective Time").
Section 1.03. Effects of the Merger. The Merger shall have the
effects set forth in Section 259 of the DGCL.
Section 1.04. Certificate of Incorporation and Bylaws. (a) At the
Effective Time, the Restated Certificate of Incorporation of AWA, as in effect
on the date thereof, shall be amended to read in its entirety as set forth in
Exhibit A and, as so amended, shall be the certificate of incorporation of the
Surviving Corporation after the Effective Time until thereafter changed or
amended as provided therein or by the DGCL.
(b) At the Effective Time, the Restated Bylaws of AWA, as in effect on
the date thereof, shall be amended to add thereto a Section 4.18, to read in
its entirety as set forth in Exhibit B, and, as so amended, shall be the bylaws
of the Surviving Corporation after the Effective Time until thereafter changed
or amended as provided therein or by the DGCL.
Section 1.05. Directors. The directors of AWA immediately prior to
the Effective Time shall be the directors of the Surviving Corporation and
shall serve until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified, as the case may be.
Section 1.06. Officers. The officers of AWA immediately prior to the
Effective Time shall be the officers of the Surviving Corporation and shall
serve until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified, as the case may be.
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ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
Section 2.01. Effect on Capital Stock. (a) As of the Effective Time,
by virtue of the Merger and without any action on the part of AWA, Merger Sub
or Holdings or any holder of capital stock of AWA, Merger Sub or Holdings, the
following events shall occur:
(i) each issued and outstanding share of AWA Class A Common shall be
converted into the right to receive one share of Holdings Class A Common;
(ii) each issued and outstanding share of AWA Class B Common shall be
converted into the right to receive one share of Holdings Class B Common;
(iii) each issued and outstanding share of Merger Sub Common shall be
converted into the right to receive one share of the common stock, par
value $0.01 per share, of the Surviving Corporation; and
(iv) each issued and outstanding share of Holdings Class B Common
shall be canceled without any consideration being paid therefor.
(b) As of the Effective Time, all shares of AWA Class A Common and
AWA Class B Common issued and outstanding immediately prior to the Effective
Time shall no longer be outstanding and shall be automatically canceled and
retired and shall cease to exist, and each holder of a certificate formerly
representing shares of AWA Class A Common or AWA Class B Common, as the case
may be (in either case, an "AWA Certificate"), shall, to the extent such AWA
Certificate represents such shares, cease to have any rights with respect
thereto, except the right to receive shares of Holdings Class A Common or
Holdings Class B Common, as applicable.
Section 2.02. Exchange Procedures. (a) As soon as practicable after
the Effective Time, each holder of an outstanding AWA Certificate shall, upon
surrender of such AWA Certificate to Xxxxxx Trust Company of California, as
exchange agent (the "Exchange Agent"), be entitled to receive a certificate or
certificates representing the number of shares of Holdings Class A Common or
Holdings Class B Common, as applicable (in either case, a "Holdings
Certificate"), into which the shares of AWA Class A Common or AWA Class B
Common previously represented by such AWA Certificate have been converted
pursuant to this Agreement. The Exchange Agent shall accept such AWA
Certificates upon compliance with such reasonable terms and conditions as the
Exchange Agent may impose to effect an orderly exchange thereof in accordance
with normal exchange practices.
(b) If any Holdings Certificate is to be issued to a person or entity
other than the person or entity in whose name a surrendered AWA Certificate is
registered, it shall be a condition of such
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issuance that the AWA Certificate so surrendered shall be properly endorsed,
with signature guaranteed or otherwise in proper form for transfer and that the
person or entity requesting such delivery shall have paid to Holdings or its
transfer agent any transfer or other taxes required by reason of such delivery
to a person or entity other than the registered holder of the AWA Certificate
surrendered or shall have established to the satisfaction of Holdings or its
transfer agent that such taxes either have been paid or are not payable.
(c) Until surrendered and exchanged in accordance with this Section
2.02, each AWA Certificate shall be deemed at any time after the Effective Time
to represent only the right to receive upon such surrender and exchange the
shares of Holdings Class A Common or Holdings Class B Common as provided for in
this Agreement, without any interest thereon.
Section 2.03. Distributions with Respect to Unexchanged Shares. No
dividends or other distributions, (i) with a record date prior to the Effective
Time shall be paid with respect to any shares of AWA Class A Common or AWA
Class B Common or (ii) with a record date after the Effective Time shall be
paid with respect to any shares of Holdings Class A Common or Holdings Class B
Common, to the holder of any unsurrendered AWA Certificate until the surrender
of such AWA Certificate in accordance with this Article II. Subject to the
effect of applicable laws, upon surrender of any such AWA Certificate, there
shall be paid to the holder of such AWA Certificate, without interest, (A) at
the time of such surrender, the proportionate amount of dividends or other
distributions with a record date prior to the Effective Time theretofore paid
with respect to the shares of AWA Class A Common or AWA Class B Common, as
applicable, previously represented by such AWA Certificate, (B) at the time of
such surrender, the proportionate amount of dividends or other distributions
with a record and payment date after the Effective Time but prior to such
surrender with respect to the shares of Holdings Class A Common or Holdings
Class B Common, as applicable, into which such shares of AWA Class A Common or
AWA Class B Common, as the case may be, have been converted, and (C) at the
appropriate payment date, the proportionate amount of dividends or other
distributions with a record date after the Effective Time but prior to such
surrender and a payment date subsequent to such surrender with respect to such
shares of Holdings Class A Common or Holdings Class B Common, as applicable.
Section 2.04. Closing of AWA's Transfer Books. After the date on which
the Effective Time occurs, there shall be no further transfer on the books of
AWA or its transfer agent of any AWA Certificate and if any such AWA
Certificate is presented to the Surviving Corporation or its transfer agent for
transfer, such AWA Certificate shall be canceled and exchanged for a Holdings
Certificate in accordance with this Agreement.
ARTICLE III
AMENDMENT AND TERMINATION
Section 3.01. Amendments and Waiver. No amendment, modification,
restatement or supplement of this Agreement shall be valid unless the same is
in writing and signed by the parties
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hereto. No waiver of any provision of this Agreement shall be valid unless in
writing and signed by the party against whom that waiver is sought to be
enforced. No failure or delay on the part of any party hereto in exercising any
right, power or privilege hereunder and no course of dealing between or among
any of the parties shall operate as a waiver of any right, power or privilege
hereunder. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder. No notice to or demand on any
party hereto in any case shall entitle such party to any other or further
notice or demand in similar or other circumstances or constitute a waiver of
the rights of any party hereto to any other or further action in any
circumstances without notice or demand.
Section 3.02. Termination. At any time prior to Effective Time, this
Agreement may be terminated and abandoned by the parties. In the event of any
termination of this Agreement, this Agreement shall forthwith become void and
there shall be no liability on the part of any of the parties hereto or their
respective officers or directors.
ARTICLE IV
MISCELLANEOUS
Section 4.01. Tax Free Reorganization. The Merger is intended to
constitute a tax-free reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended, and this Agreement is intended
to constitute a plan of reorganization.
Section 4.02. Benefit and Burden. This Agreement shall inure to the
benefit of, and shall be binding upon, the parties hereto and their respective
successors and permitted assigns.
Section 4.03. No Third Party Rights. Nothing in this Agreement shall be
deemed to create any right in any creditor or other person or entity, and this
Agreement shall not be construed in any respect to be a contract in whole or in
part for the benefit of any third party.
Section 4.04. Assignments. Neither this Agreement nor any right,
interest or obligation hereunder may be assigned by any of the parties hereto
and any attempt to do so shall be null and void.
Section 4.05. Counterparts. This Agreement may be executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed an original and all of which taken
together shall constitute one and the same agreement. It shall not be necessary
in making proof of this Agreement to produce or account for more than one
counterpart signed by the party to be charged thereby.
Section 4.06. Severability. Should any clause, sentence, paragraph,
subsection, Section or Article of this Agreement be judicially declared to be
invalid, unenforceable or void, such decision will not have the effect of
invalidating or voiding the remainder of this Agreement, and the
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part or parts of this Agreement so held to be invalid, unenforceable or void
will be deemed to have been stricken herefrom by the parties hereto, and the
remainder will have the same force and effectiveness as if such stricken part
or parts had never been included herein.
Section 4.07. Applicable Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
Section 4.08. Entire Agreement. This Agreement sets forth all of the
promises, agreements, conditions, understandings, warranties and
representations among the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings among the parties hereto, whether written, oral or otherwise.
There are no promises, agreements, conditions, understandings, warranties or
representations, oral or written, express or implied, among the parties hereto
concerning the subject matter hereof except as set forth herein.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first above written.
ATTEST: AMERICA WEST AIRLINES, INC.
/s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------- --------------------------
Secretary Xxxxxxx X. Xxxxxx
Chairman, Chief Executive Officer
and President
ATTEST; AMERICA WEST HOLDINGS CORPORATION
/s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------- --------------------------
Secretary Xxxxxxx X. Xxxxxx
Chairman, Chief Executive Officer
and President
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ATTEST: AWA MERGER, INC.
/s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------- ---------------------
Secretary Xxxxxxx X. Xxxxxx
Chairman, Chief Executive Officer
and President
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CERTIFICATE OF THE SECRETARY
OF
AMERICA WEST AIRLINES, INC.
I, Xxxxxxxx Xxxxxxx, the Secretary of America West Airlines, Inc.,
hereby certify that the Agreement and Plan of Merger to which this certificate
is attached was duly adopted pursuant to Section 251(g) of the DGCL and that
the conditions specified in the first sentence of Section 251(g) of the DGCL
have been satisfied.
WITNESS, my hand and the seal of America West Airlines, Inc. this 19 day
of December, 1996.
[SEAL] /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxxx Xxxxxxx, Secretary
CERTIFICATE OF THE SECRETARY
OF
AMERICA WEST HOLDINGS CORPORATION
I, Xxxxxxxx Xxxxxxx, the Secretary of America West Holdings
Corporation, hereby certify that the Agreement and Plan of Merger to which
this certificate is attached was duly adopted pursuant to Section 251(g) of
the DGCL and that the conditions specified in the first sentence of Section
251(g) of the DGCL have been satisfied.
WITNESS, my hand and the seal of America West Holdings Corporation this
19 day of December, 1996.
[SEAL] /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxxx Xxxxxxx, Secretary
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CERTIFICATE OF THE SECRETARY
OF
AWA MERGER, INC.
I, Xxxxxxxx Xxxxxxx, the Secretary of AWA Merger, Inc., hereby certify
that the Agreement and Plan of Merger to which this certificate is attached was
duly adopted pursuant to Section 251(g) of the DGCL and that the conditions
specified in the first sentence of Section 251(g) of the DGCL have been
satisfied.
WITNESS, my hand and the seal of AWA Merger, Inc. this 19 day of
December, 1996.
(SEAL)
/s/ Xxxxxxxx X. Xxxxxxx
------------------------
Xxxxxxxx Xxxxxxx, Secretary
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EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
AMERICA WEST AIRLINES, INC.
AMERICA WEST AIRLINES, INC. (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of
the State of Delaware (the "DGCL"), DOES HEREBY CERTIFY:
FIRST
NAME
The name of the Corporation is AMERICA WEST AIRLINES, INC.
SECOND
REGISTERED OFFICE AND REGISTERED AGENT
The location of the registered office of the Corporation in the State
of Delaware is at 1209 Orange Street, Wilmington, New Castle County, Delaware,
and the name of the registered agent is the Corporation Trust Company.
THIRD
PURPOSE
The nature of the business or purposes to be conducted or promoted are
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware (the "DGCL").
FOURTH
AUTHORIZED CAPITAL
The total number of shares of all classes of stock which this
Corporation shall have authority to issue is 1000 shares of Common Stock
("Common Stock") with the par value of $0.01 per share.
4.1 Common Stock. Preemptive rights as provided for by Section
102(b)(3) of the DGCL shall not be granted and are hereby expressly denied.
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4.1.1 Voting Rights.
4.1.1.1 Except as provided in Article Thirteenth, each
registered holder of Common Stock shall be entitled to one vote for each share
of such stock held by such holder. The right to cumulate votes for election of
directors as provided in Section 214 of the DGCL shall not be granted and is
hereby expressly denied.
4.1.1.2 In addition to any other vote required by law, except
where prohibited by applicable corporate law, any amendments to the Restated
Bylaws of the Corporation (the "Bylaws") shall be made in compliance therewith.
4.1.1.3 In addition to the automatic suspension of voting
rights provided under Article Thirteenth, any holder of Common Stock may
suspend the voting rights relating to any shares of Common Stock held by it by
providing prior written notice to the Corporation, which notice shall describe
such shares in reasonable detail and state whether or not the voting suspension
is permanent or temporary and, if temporary, the period thereof.
Notwithstanding whether the suspension is permanent or temporary, any
stockholder that suspends its voting rights under this Section 4.1.1.3 may
rescind such suspension upon written notice to the Corporation; provided that
any notice reinstating voting rights under this Section 4.1.1.3 shall not be
effective with respect to any matter unless such notice is sent prior to the
record date for voting on such matter. The suspension of voting rights
hereunder shall not affect any other rights held by the holders of such
suspended Common Stock by virtue of their stock ownership.
4.1.1.4 Any act or transaction by or involving the Corporation
that requires for its adoption under the DGCL or this Restated Certificate of
Incorporation the approval of the stockholders of the Corporation shall, in
accordance with Section 251(g) of the DGCL, require, in addition, the approval
of the stockholders of America West Holdings Corporation ("Holdings") (or any
successor by merger), by the same vote as is required by the DGCL and/or by
this Restated Certificate of Incorporation.
4.1.2 Dividends. The holders of Common Stock shall be entitled to
receive, when and if declared by the Board of Directors, out of the assets of
the Corporation which are by law available therefor, dividends payable either
in cash, in stock or otherwise.
4.1.3 Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, after payment or
provision for payment of the debts and other liabilities of the Corporation,
the holders of shares of all Common Stock shall be entitled to share ratably in
the remaining net assets of the Corporation. Neither the merger or
consolidation of the Corporation, nor the sale, lease or conveyance of all or
part of its assets, shall be deemed to be a liquidation, dissolution or winding
up of the Corporation, either voluntarily or involuntarily, within the meaning
of this Section 4.1.3.
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FIFTH
NUMBER AND TERM OF DIRECTORS
The Board of Directors of the Corporation shall consist of up to 15
members, which number may be increased or decreased from time to time by
resolution duly adopted by such Board; provided, however, that at no time shall
there be fewer than nine or more than 15 members. No decrease in the number of
Directors shall have the effect of shortening the term of any incumbent
Director. Except as otherwise provided in that certain Stockholders' Agreement
for America West Airlines, Inc., dated as of August 25, 1994 for so long as it
remains in force and effect (the "Stockholders' Agreement"), any Director may
be removed by the stockholders of the Corporation with or without cause
pursuant to the Bylaws and applicable law.
Each Director shall be elected (a) in accordance with the Bylaws and
shall serve for a term of one year or until the death, resignation or removal
of such Director, and until a successor shall have been properly elected and
shall qualify, and (b) as provided in the Stockholders' Agreement.
Beginning at the first annual meeting of the stockholders on or after
August 25, 1997 (the "Third Annual Meeting"), the number of Directors shall be
divided into three classes, as nearly equal in number as may be, to serve in the
first instance until the first, second and third annual meetings of the
stockholders to be held after the Third Annual Meeting, respectively, and until
their successors shall have been properly elected and shall qualify; and
thereafter for three-year terms. In the case of any increase in the number of
Directors of the Corporation, the additional Directors shall be so classified
that all classes of Directors shall be increased equally as nearly as may be,
and the additional Directors shall be elected as provided herein by the
Directors or by the stockholders at an annual meeting. In case of any decrease
in the number of Directors of the Corporation, all classes of Directors shall
be decreased equally, as nearly as may be. Election of Directors shall be
conducted as provided in this Restated Certificate of Incorporation, in the
Bylaws, or by applicable law.
SIXTH
MANAGEMENT
The Corporation shall be managed by the Board of Directors, which shall
exercise all powers conferred under the laws of the State of Delaware. Pursuant
to a plan of reorganization confirmed by the United States Bankruptcy Court for
the District of Arizona, the Bylaws were adopted on August 10, 1994, but,
thereafter, the power to make, alter or repeal the Bylaws has been and shall be
vested in the Board of Directors, as may be limited by the Bylaws.
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SEVENTH
COMPROMISE OR ARRANGEMENT WITH CREDITORS
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware, may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under
the provisions of Section 291 of the DGCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of the DGCL order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the Court to which the application has
been made, be binding on all the creditors or class of creditors, and/or on all
the stockholders of the Corporation, as the case may be and also on the
Corporation.
EIGHTH
VACANCIES ON THE BOARD OF DIRECTORS
Except as otherwise provided in the Stockholders' Agreement, in case
any vacancy shall occur on the Board of Directors because of death,
resignation, retirement, disqualification, removal, an increase in the
authorized number of Directors or any other cause, the Board of Directors
shall have the sole and exclusive authority to, in accordance with the Bylaws,
elect a Director to fill such vacancy.
NINTH
SPECIAL MEETINGS OF STOCKHOLDERS
Special meetings of the stockholders of the Corporation, for any
purpose or purposes, unless otherwise prescribed herein or by statute, may be
called by the Chairman of the Board and shall be called by the Secretary at the
written request, or by resolution adopted by the affirmative vote, of a
majority of the Board of Directors. Stockholders of the Corporation shall not
be entitled to request a special meeting of the stockholders.
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ACTIONS OF STOCKHOLDERS: MEETINGS AND WRITTEN CONSENT
All action by holders of the Corporation's outstanding voting
securities shall be taken at an annual or special meeting of the stockholders
following notice as provided by law or in the Bylaws (or by written consent as
provided below). Stockholders of the Corporation shall have the power to act by
means of written consent only in the removal of directors in accordance with
the Stockholders' Agreement or any other voting agreement of even date
therewith by and between GPA Group plc and AmWest Partners, L.P., for so long
as any such agreement remains in force and effect.
ELEVENTH
NOMINATIONS FOR ELECTION OF DIRECTORS
Except as may be otherwise provided in the Stockholders' Agreement, no
person shall be elected to the Board of Directors of the Corporation at an
annual meeting of the stockholders, or at a special meeting called for that
purpose, unless a written nomination of such person to the Board of Directors
(i) by a stockholder of the Corporation shall be received by the Corporation in
accordance with the Bylaws or (ii) is made by or at the direction of the Board
of Directors.
TWELFTH
LIMITATION OF DIRECTOR LIABILITY:
INDEMNIFICATION OF DIRECTORS AND OFFICERS
12.1 Limitation of Liability. A person who is or was a Director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the DGCL or (iv) for any transaction from which the
Director derived an improper personal benefit. If the DGCL is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of the Directors of the Corporation
shall be eliminated or limited to the fullest extent permitted by the DGCL, as
so amended. The elimination and limitation of liability provided herein shall
continue after a Director has ceased to occupy such position as to acts or
omissions occurring during such Director's term or terms of office, and no
amendment or repeal of this Section 12.1 shall apply to or have any effect on
the liability or alleged liability of any Director of the Corporation for or
with respect to any acts or omissions of such Director occurring prior to such
amendment or repeal.
12.2 Indemnification. The Corporation shall indemnify, to the fullest
extent permitted by applicable law and pursuant to the Bylaws, each person who
is or was a Director or officer of the
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Corporation, and may indemnify each employee and agent of the Corporation and
all other persons whom the Corporation is authorized to indemnify under the
provisions of the DGCL.
THIRTEENTH
FOREIGN OWNERSHIP OF VOTING STOCK
At no time shall more than 25% of the voting interest of the
Corporation be owned or controlled by persons who are not "Citizens of the
United States" (as such term is defined in Xxxxx 00, Xxxxxx Xxxxxx Code,
Section 40102), or as the same may be from time to time amended)
("Non-Citizens"). In the event that Non-Citizens shall own (beneficially or of
record) or have voting control over any shares of common stock of the
Corporation, the voting rights of such persons shall be subject to automatic
suspension to the extent required to ensure that the Corporation is in
compliance with applicable provisions of law and regulations relating to
ownership or control of a U.S. carrier. The Bylaws shall contain provisions to
implement this Article Thirteenth, including, without limitation, provisions
restricting or prohibiting transfer of shares of voting stock to Non-Citizens
and provisions restricting or removing voting rights as to shares of voting
stock owned or controlled by Non-Citizens. Any determination as to ownership,
control or citizenship made by the Board of Directors shall be conclusive and
binding as between the Corporation and any stockholder for purposes of this
Article Thirteenth.
FOURTEENTH
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
The Corporation elects not to be governed by Section 203 of the General
Corporation Law of the State of Delaware, as the same may be amended from time
to time. This election shall be effective as of the earliest date permitted by
law.
FIFTEENTH
ARIZONA CORPORATE TAKEOVERS ACT
The Corporation elects not to be subject to Article 2, Chapter 6, Title
10 of the Arizona Revised Statutes, as the same may be amended from time to
time. This election shall be effective as of the earliest date permitted by law.
The Corporation elects not to be subject to Article 3, Chapter 6, Title
10 of the Arizona Revised Statutes, as the same shall be amended from time to
time. This election shall be effective as of the earliest date permitted by law.
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EXHIBIT B
AMENDMENT OF RESTATED BYLAWS OF AWA
4.18 Joint Meetings. Notwithstanding any provision of these Bylaws to
the contrary, so long as all of the outstanding voting capital stock of the
Corporation is owned, directly or indirectly, by Parent (as defined below), and
so long as each member of the Board of Directors of the Corporation is also a
member of the Board of Directors of Parent, (i) each meeting of the Board of
Directors of Parent (a "Parent Board Meeting") shall constitute a Joint Meeting
(as defined below) unless otherwise specified in the notice given with respect
to such Parent Board Meeting in accordance with the bylaws of Parent and (ii)
no notice of any Joint Meeting shall be required to be given to any person in
his or her capacity as a director of the Corporation. As used in this Section
4.18, (A) "Parent" means America West Holdings Corporation, a Delaware
corporation, and any entity into which America West Holdings Corporation or any
successor may be merged or converted or with which it may be considered or any
entity resulting from any merger, conversion or consolidation to which America
West Holdings Corporation or any successor shall be a party and (B) a "Joint
Meeting" means a joint meeting of the respective Boards of Directors of Parent
and the Corporation.
B-i
