FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT FOR
AMERICA WEST AIRLINES, INC.
THIS FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT FOR
AMERICA WEST AIRLINES, INC. (this "Amendment) is entered
into as of this 6th day of September, 1994 by and among Air
Partners II, L.P., a Texas limited partnership, TPG
Partners, L.P., a Texas limited partnership, TPG Parallel I,
L.P., a Texas limited partnership, Continental Airlines,
Inc., a Delaware corporation, Mesa Airlines, Inc., a New
Mexico corporation, GPA Group plc, a corporation organized
under the laws of Ireland ("GPA"), Xxxxxx X. Xxxxx, Xxxxx X.
Xxxxxxxxx and Xxxxxxx X. Xxxxxx (collectively, the
"Stockholder Representatives"), and America West Airlines,
Inc., a Delaware corporation (the "Company").
RECITALS:
WHEREAS, the Amwest Partners, L.P. a Texas limited
partnership ("Amwest"), GPA, the Stockholder Representatives
and the Company entered into that certain Stockholders'
Agreement for America West Airlines, Inc., dated as of the
25th day of August, 1994 (the "Agreement");
WHEREAS, the Agreement set forth certain rights and
obligations of the parties as stockholders and "Stockholder
Representatives" (as defined therein) of the Company;
WHEREAS, AmWest was dissolved by operation of that
certain Termination Agreement dated as of August 25, 1994,
by and among its general and limited partners (the
"Termination Agreement");
WHEREAS, prior to AmWest's dissolution, by separate
letter agreements, each dated August 23, 1994 (the
"Assumption Agreements"), Amwest assigned to its limited
partners and certain of their Affiliates AmWest's rights and
obligations under the Investment Agreement and certain
related agreements, and such assignees assumed such rights
and obligations pursuant to the Assumption Agreements and
certain letter agreements dated August 25, 1994, addressed
to the Company and the other parties to the Agreement (the
"Letter Agreements");
WHEREAS, AmWest's obligations under the Agreement have
been collectively assumed by TPG Partners, L.P., TPG
Parallel I, L.P., Air Partners II, L.P., Continental
Airlines, Inc., and Mesa Airlines, Inc., and their
respective Affiliates in accordance with the Termination
Agreement, the Assumption Agreements, and the Letter
Agreements;
WHEREAS, it is the intent of the parties that the
Stockholder Representatives not be deemed, by virtue of the
Agreement, to be acting, in their individual capacities, as
a syndicate or group for the purpose of acquiring, holding,
or disposing of securities under Section 13(d) of the
Securities Exchange Act of 1934, as amended; and
WHEREAS, the parties desire to define the term "(on a
fully diluted basis)" as used in the Agreement and correct
an incomplete reference in the Agreement to certain of the
parties thereto.
NOW THEREFORE, in consideration of the premises herein
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. The Agreement is hereby amended in the following
manner:
(a) The following is hereby added to Section 1.0 of
the Agreement:
"(on a fully diluted basis)" shall mean that the
determination of percentage of voting equity securities
modified by such phrase shall be made (i) as if the
10,384,615 warrants to purchase Class B Common issued
upon consummation of the Plan shall have been exercised
for 10,384,615 shares of Class B Common as of the date
that such determination is made, and (ii) excluding
from such determination the potential dilutive effect
of any warrants, options or rights relating to Class B
Common or nonvoting equity securities convertible
directly or indirectly into Class B Common issued
subsequent and unrelated to the consummation of the
Plan (herein, collectively "Post Plan Convertible
Securities"). Neither the use of the phrase "(on a
fully diluted basis)" nor any determination of
percentage of voting equity securities modified by such
phrase shall be deemed to limit the Company's ability
to issue securities, and subject to clause (ii) of the
immediately preceding sentence, any securities so
issued (including, without limitation upon exercise of
or in exchange for any Post Plan Convertible Security)
shall be included for purposes of any calculation of
ownership interests provided for in this Agreement.
(b) Clause (I) of Section 2.1(h) is hereby amended and
restated to read as follows:
(i) to vote the Common Stock held and controlled by
them (other than stock held individually by any
Stockholder Representative) in favor of the removal
from the Board, upon notice by the group or entity
having the right to designate such director under this
Section 2.1 and requesting such removal, of any person
or persons designated to the Board by such group or
entity, and
2. The parties hereto agree that for purposes of
clause (i) of the last sentence of Section 4.3 of the
Agreement, TPG Partners, L.P., TPG Parallel I, L.P., Air
Partners II, L.P., and Continental will be deemed not to be
Affiliates of one another.
3. All capitalized terms used herein that are not
defined herein shall be given the meaning given to them in
the Agreement.
4. Except as specifically modified by this Amendment,
(a) the terms, conditions, and covenants set forth in the
Agreement are hereby ratified and confirmed by the parties
hereto and are in full force and effect and (b) nothing
herein shall in any way alter, impair, or modify the
Agreement.
5. This Amendment may be executed by the parties
hereto in counterparts and by telecopy, each of which shall
be deemed to constitute an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, by their
respective officers thereunto duly authorized, have executed this
Agreement as of the date first written above.
AIR PARTNERS II, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
TPG PARALLEL I, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
CONTINENTAL AIRLINES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: EVP Corporate Affairs
MESA AIRLINES, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Chairman,President, CEO
GPA GROUP plc
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President - Legal
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx,
Stockholder Representative
/s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx,
Stockholder Representative
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx,
Stockholder Representative
AMERICA WEST AIRLINES, INC.
/s/ Xxxxxxx X. Xxxxxx
Name:
Title:
