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EXHIBIT 1.1
6,100,000 Shares
AMERICA WEST AIRLINES, INC.
(a Delaware corporation)
Class B Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
February [ ], 1996
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxx Brothers Inc.
as Representatives of the several Underwriters
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
America West Airlines, Inc., a Delaware corporation (the "Company"),
and the selling stockholders named in Schedule B hereto (each a "Selling
Stockholder" and collectively, the "Selling Stockholders") confirm their
agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation ("DLJ"), Xxxxxx Brothers Inc. ("Xxxxxx Brothers") and each of the
other Underwriters named in Schedule A hereto (collectively, the "Underwriters,"
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Xxxxxxx Xxxxx, DLJ and Xxxxxx Brothers
are acting as representatives (in such capacity, Xxxxxxx Xxxxx, DLJ and Xxxxxx
Brothers shall hereinafter be referred to as the "Representatives"), with
respect to the sale by the Selling Stockholders, acting severally and not
jointly, and the purchase by the Underwriters, acting severally and not jointly,
of the respective numbers of shares of Class B Common Stock, par value $.01
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per share, of the Company ("Common Stock") set forth in said Schedule A (except
as may otherwise be provided in the Pricing Agreement, as hereinafter defined)
and with respect to the grant by two Selling Stockholders, acting severally and
not jointly, as set forth in Schedule B hereto, to the Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 610,000 additional shares of Common Stock solely to
cover over-allotments, if any, in each case except as may otherwise be provided
in the Pricing Agreement. The aforesaid 6,100,000 shares of Common Stock (the
"Initial Securities") to be purchased by the Underwriters and all or any part of
the 610,000 shares of Common Stock subject to the option described in Section
2(b) hereof (the "Option Securities") are collectively hereinafter called the
"Securities."
Prior to the purchase and public offering of the Securities by the
several Underwriters, the Company, the Selling Stockholders, acting severally
and not jointly, and the Representatives, acting on behalf of the several
Underwriters, shall enter into an agreement substantially in the form of Exhibit
A hereto (the "Pricing Agreement"). The Pricing Agreement may take the form of
an exchange of any standard form of written telecommunication among the Company,
the Selling Stockholders and the Representatives and shall specify such
applicable information as is indicated in Exhibit A hereto. The offering of the
Securities will be governed by this Agreement, as supplemented by the Pricing
Agreement. From and after the date of the execution and delivery of the Pricing
Agreement, this Agreement shall be deemed to incorporate the Pricing Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 33-54243), for the
registration of 26,447,326 shares of Common Stock, 1,200,000 shares of the
Company's Class A Common Stock, par value $.01 (the "Class A Common Stock") and
5,872,108 warrants, each entitling the holder thereof to purchase one share of
Common Stock (the "Warrants"), under the Securities Act of 1933 (the "1933
Act"), on June 23, 1994; and pre-effective amendments thereto on July 27, 1994,
August 2, 1994, August 15, 1994 and August 23, 1994; and prospectus supplements
thereto on August 29, 1994, June 21, 1995, October 5, 1995, November 13, 1995,
and January 29, 1996; and Post-Effective Amendments thereto on November 15,
1994, April 19, 1995 and January 30, 1996 and will file such additional
amendments thereto and such amended or supplemental prospectuses as may
hereafter be required. Such registration statement (as amended, if applicable)
and the prospectus constituting a part thereof (including in each case the
information, if any, deemed to be part thereof pursuant to Rule 434 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations")), as from time to time amended or supplemented pursuant to the
1933 Act, are hereinafter referred to as the "Registration Statement" and the
"Prospectus," respectively, except that if any revised prospectus shall be
provided to the Underwriters by the Company for use in connection with the
offering of the Securities which differs from the Prospectus on file at the
Commission (whether or not such revised prospectus is required to be filed by
the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided
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to the Underwriters for such use. Additionally, if the Company has elected to
rely upon Rule 434 of the 1933 Act Regulations, the Company will prepare and
file a term sheet (a "term sheet"), in accordance with the provisions of Rules
434 and 424(b) of such Regulations, promptly after execution of the Pricing
Agreement.
The Company and the Selling Stockholders understand that the
Underwriters propose to make a public offering of the Securities as soon as the
Representatives deem advisable after the Pricing Agreement has been executed and
delivered.
Section 1. Representations and Warranties. (a) The Company represents
and warrants to each Underwriter as of the date hereof and as of the date of the
Pricing Agreement (such latter date being hereinafter referred to as the
"Representation Date") as follows:
(i) At the time the Registration Statement became effective
and at the Representation Date (unless the term "Prospectus" refers to
prospectuses which have been provided to the Underwriters by the
Company for use in connection with the offering of Securities which
differs from the Prospectus on file at the Commission, in which case at
the time the Prospectus is first provided to the Underwriters for their
use), the Registration Statement complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not contain and 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 not
misleading. The Prospectus, at the Representation Date, at the time it
is first provided to the Underwriters for their use and at the Closing
Time referred to in Section 2 hereof, will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and if Rule
434 is used, the Prospectus shall not be "materially different" as such
term is used in Rule 434 of the 1933 Act Regulations, from the
prospectus first provided to the Underwriters for their use; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
through the Representatives expressly for use in the Registration
Statement or Prospectus.
(ii) The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iii) The financial statements included in the Registration
Statement and the Prospectus present fairly the financial position of
the Company as at
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the dates indicated and the results of its operations for the periods
specified; except as otherwise stated in the Registration Statement,
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis;
and the supporting schedules included in the Registration Statement
present fairly the information required to be stated therein.
(iv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Company, other than those in the ordinary course of
business, which are required to be disclosed therein under the 1933 Act
and the 1933 Act Regulations and are not so disclosed, and (C) there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock, except for any
distribution of securities upon the resolution of bankruptcy-related
claims.
(v) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state
of Delaware with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement and the Pricing Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company.
(vi) The Company has no subsidiaries.
(vii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under "Capitalization"
(except for subsequent issuances, if any, pursuant to reservations,
agreements, employee benefit plans or the exercise of convertible
securities and the warrants referred to in the Prospectus); the shares
of issued and outstanding Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable.
(viii) The Company is not in violation of its charter or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement,
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note, lease or other instrument to which the Company is a party or by
which it may be bound, or to which any of the property or assets of the
Company is subject, excluding in each case, violations or defaults
which, individually or in the aggregate would not have a material
adverse effect on the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company; and
the execution, delivery and performance of this Agreement and the
Pricing Agreement and the consummation of the transactions contemplated
herein and therein and compliance by the Company with its obligations
hereunder and thereunder have been duly authorized by all necessary
corporate action and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company is a party or by which
it may be bound, or to which any of the property or assets of the
Company is subject, excluding in each case, conflicts, breaches,
defaults or liens which, individually or in the aggregate, would not
have a material adverse effect on the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company, nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or any applicable
law, rule, administrative regulation, judgment, order, consent or
decree of any government instrumentality or court, having jurisdiction
over the Company or any of its properties.
(ix) The Company is not in violation of any Federal, state or
local law relating to discrimination in the hiring, promotion or pay of
employees nor any applicable wage or hour laws that, singly or in the
aggregate, could have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company. There is (A) no significant unfair labor
practice complaint pending against the Company or, to the best
knowledge of the Company, threatened against the Company, before the
National Labor Relations Board or any state or local labor relations
board, and no significant grievance or significant arbitration
proceeding arising out of or under any collective bargaining agreement
is so pending against the Company or, to the best knowledge of the
Company, threatened against the Company, and (B) no labor dispute in
which the Company is involved nor, to the best knowledge of the
Company, is any labor dispute imminent, other than routine disciplinary
and grievance matters, except as disclosed in the Prospectus. The
Company is in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and the regulations and published
interpretations thereunder, including but not limited to Sections 4975
and 4980B of the Internal Revenue Code of 1986, as amended (the
"Code"). There are no "pension plans" established or maintained by the
Company or "multi-employer
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pension plans" to which the Company is a contributor that are intended
to be qualified under Section 401(a) of the Code.
(x) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or affecting
the Company which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which is reasonably
expected to result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company or is reasonably expected to
materially and adversely affect the properties or assets thereof or
which might materially and adversely affect the consummation of this
Agreement; there are no contracts or documents of the Company which is
required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations which have not been so filed.
(xi) The Company (i) has been subject to the requirements of
Section 12 of the 1934 Act for a period of at least 12 calendar months,
(ii) has filed in a timely manner all reports required to be filed
during the 12 calendar months preceding the Representation Date, and
(iii) the aggregate market value of the voting stock held by non-
affiliates of the Company is $75 million or more.
(xii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering of and the sale of the Securities hereunder, except such as
may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xiii) The Company possesses such certificates, authorities or
permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by it
[except as would not materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company], and the Company has not received any notice
of proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company.
(xiv) The Company has sufficient title for the use made and
proposed to be made of all of its properties, whether real or personal,
free and clear of all liens, encumbrances and defects, except as stated
in the Prospectus or such as would not have a material adverse effect
on the condition, financial or
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otherwise, or in the earnings, business affairs or business prospects
of the Company.
(xv) There are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or to participate in the offering of the Securities
contemplated by this Agreement, except such as have been waived in
writing or complied with by the inclusion of such securities in the
Registration Statement or the inclusion of such persons as Selling
Stockholders in Schedule B hereto, as the case may be.
(xvi) This Agreement has been, and, at the Representation Date
the Pricing Agreement will have been, duly executed and delivered by
the Company.
(xvii) The Company has not and is not presently doing business
with the government of Cuba or with any person or any affiliate located
in Cuba.
(xviii) The Company is an "air carrier" and after consummation of
the transactions contemplated herein will be a "citizen of the United
States," in each case within the meaning of the Federal Aviation Act of
1958, as amended.
(xix) There is no pending or threatened action, suit or
proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or its property and
involving (A) licenses, certificates, permits or other governmental
authorizations issued by or from the Department of Transportation, the
Federal Aviation Administration, the Federal Communications Commission
or any other federal or any state transportation or aviation regulatory
authority or (B) the Federal Aviation Act of 1958, as amended ((A) and
(B) together, "Aviation Laws") that is of a character required to be
disclosed in the Prospectus.
(xx) The descriptions in the Registration Statement of laws,
regulations and rules, of legal and governmental proceedings and of
contracts, agreements, leases and other documents including, without
limitation, under the headings "Risk Factors -- Government Regulation,"
"Business -- Aircraft and -- Government Regulation" are accurate in all
material respects, and comply as to form in all material respects with
the applicable requirements of the 1933 Act and the 1933 Act
Regulations.
(xxi) The Company is not in violation of any Federal, state or
local laws and regulations relating to pollution or protection of human
health or the environment (including, without limitation, ambient air,
surface water, ground
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water, land surface or subsurface strata), including, without
limitation, laws and regulations relating to emissions, discharges,
releases or threatened releases of toxic or hazardous substances,
materials or wastes, or petroleum and petroleum products ("Materials of
Environmental Concern"), or otherwise relating to the protection of
human health and safety, or the storage, disposal, transport or
handling of Materials of Environmental Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations,
excluding any violations which individually or in the aggregate would
not have a material adverse effect on the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company; the Company has not received any communication (written
or oral), whether from a governmental authority or otherwise, alleging
any such violation or noncompliance, and there are no circumstances,
either past, present or that are reasonably foreseeable, that may lead
to such violation in the future; there is no pending or threatened
claim, action, investigation or notice (written or oral) by any person
or entity alleging potential liability for investigatory, cleanup, or
governmental responses costs, or natural resources or property damages,
or personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Material of
Environmental Concern at any location owned or operated by the Company,
now or in the past, or (y) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law
(collectively, "Environmental Claims"); and there are no past or
present actions, activities, circumstances, conditions, events or
incidents, that could form the basis of any Environmental Claim against
the Company or against any person or entity whose liability for any
Environmental Claim the Company has retained or assumed either
contractually or by operation of law. In the ordinary course of its
business, the Company conducts a periodic review of the effect of
Environmental Laws on the business, operations and properties of the
Company, in the course of which it identifies and evaluates associated
costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties); on the basis of such review, the Company
has reasonably concluded that such associated costs and liabilities
could not singly or in the aggregate, have a material adverse effect on
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company.
(xxii) The Common Stock is listed on the New York Stock
Exchange and has been registered under Section 12(b) of the Securities
Exchange Act of 1934 Act, as amended (the "1934 Act").
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(xxiii) All tax returns required to be filed by the Company have
been timely filed and such returns are true, complete and correct in
all material respects. All taxes due or claimed to be due from the
Company that are due and payable have been paid, other than those (i)
being contested in good faith and for which an adequate reserve or
accrual has been established in accordance with GAAP or (ii) those
currently payable without penalty or interest for which an adequate
reserve or accrual has been established or extensions duly paid. Except
as described in the Prospectus, the Company does not know of (A) any
actual or proposed material additional tax assessments or (B) any
probable basis for the imposition of any material additional tax
assessments for any fiscal period against the Company.
(b) Each of the Selling Stockholders severally and not jointly
represents and warrants to, and agrees with, each Underwriter as follows:
(i) Such Selling Stockholder has reviewed and is familiar
with the Registration Statement and the Pro- spectus contained therein
or filed as supplements thereto and, such Selling Stockholder has no
reason to believe that the Prospectus (and any amendment, supplement or
term sheet thereto) does not (and, as of the Closing Time, as defined
in Section 2 below, will not) include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and such Selling Stockholder is not prompted
to sell the Securities to be sold by such Selling Stockholder by any
information concerning the Company that is not set forth in the
Prospectus or the term sheet.
(ii) On the date the Pricing Agreement is executed and at the
Closing Time, as defined in Section 2 below (and if any Option
Securities are purchased, at the Date of Delivery, as defined in
Section 2 below), and, unless the Company has notified you as provided
in Section 3(e) below, at all times between the first delivery of the
Prospectus and the term sheet, if any, to the Underwriters for their
use and the Closing Time, as defined in Section 2 below, (and, if any
Option Securities are purchased, the Date of Delivery, as defined in
Section 2 below), such parts of the Registration Statement and any
amendments and supplements thereto as specifically refer to such
Selling Stockholder 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 not misleading and such parts
of the Prospectus or term sheet, if any, as specifically refer to such
Selling Stockholder will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
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(iii) Certificates for all of the Securities to be sold by such
Selling Stockholder pursuant to this Agreement, in suitable form for
transfer by delivery or accompanied by duly executed instruments of
transfer or assignment in blank with signatures guaranteed have been
deposited with First Interstate Bank of California, as custodian (the
"Custodian") pursuant to a Custody Agreement dated as of January 31,
1996 (the "Custody Agreement") for the purpose of effecting delivery
pursuant to this Agreement.
(iv) This Agreement and the Custody Agreement have been duly
authorized, executed and delivered by such Selling Stockholder. The
execution and delivery of this Agreement and the Custody Agreement, by
such Selling Stockholder and the sale and delivery of the Securities to
be sold by such Selling Stockholder do not and will not conflict with,
or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of such
Selling Stockholder under any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which such
Selling Stockholder is a party or by which it may be bound or to which
any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
such Selling Stockholder and its subsidiaries considered as one
enterprise and would not materially and adversely affect the
consummation of the transactions contemplated by this Agreement) or any
existing applicable law, rule, regulation, judgment, order or decree of
any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over such Selling Stockholder or any of
its respective properties.
(v) Such Selling Stockholder will, at the Closing Time, as
defined in Section 2 below, (and, if any Option Securities are
purchased, on the Date of Delivery, as defined in Section 2 below),
have good and valid title to the Securities to be sold by such Selling
Stockholder pursuant to this Agreement, free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of any
kind, other than pursuant to this Agreement; such Selling Stockholder
has full right, power and authority to sell, transfer and deliver such
Securities pursuant to this Agreement; and, upon delivery of such
Securities and payment of the purchase price therefor as contemplated
in this Agreement, assuming each such Underwriter has no notice of any
adverse claim, each of the Underwriters will receive good and valid
title to the offered Securities purchased by it from such Selling
Stockholder, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind, other than any such
pledge, lien, security interest, charge, claim, equity
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or encumbrance created by such Underwriter or resulting from any
actions taken by such Underwriter.
(vi) For a period of 90 days from the date hereof, such
Selling Stockholder will not, without Xxxxxxx Xxxxx'x prior written
consent, directly or indirectly, sell, offer to sell, grant any option
for the sale of, or otherwise dispose of (whether directly or
synthetically) or enter into any agreement to sell or otherwise dispose
of (whether directly or synthetically) any Common Stock, Class A Common
Stock or Warrants or any security convertible into or exchangeable or
exercisable for Common Stock, Class A Common Stock or Warrants,except
pursuant to a transaction in which all holders of Common Stock may
participate on a pro rata basis at the same price per share and on the
same economic terms, including without limitation, a tender offer or
exchange offer and except for transfers to an affiliate (as such term
is defined in Rule 405 of the 1933 Act Regulations.
(vii) Such Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of the Common Stock .
(viii) Neither the offer and sale of the Securities being sold
by such Selling Stockholder, nor the consummation of any other of the
transactions herein contemplated by such Selling Stockholder, will
conflict with, or result in a breach or violation of, any Aviation Law.
(ix) There are no transfer taxes or other similar fees or
charges required under any Aviation Law to be paid in connection with
the execution, delivery and performance of this Agreement or the sale
by such Selling Stockholder of the Securities to be sold by such
Selling Stockholder.
(x) Such Selling Stockholder will furnish each of
the Underwriters with any such certification or completed forms that
may be required under applicable Federal or state tax laws.
(c) Any certificate signed by any officer of the Company and delivered
to the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
(d) Any certificate signed by any officer or partner, as the case may
be, of a Selling Stockholder and delivered to the Representatives or to counsel
for the Underwriters shall be deemed a representation and warranty by such
Selling Stockholder to each Underwriter as to the matters covered thereby.
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Section 2. Sale and Delivery to Underwriters; Closing. (a) On
the basis of the representations and warranties herein contained and subject to
the terms and conditions herein set forth, the Selling Stockholders severally
and not jointly agree to sell the number of Initial Securities set forth in
Schedule B opposite the name of each Selling Stockholder to each Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Selling Stockholders, at the price per share set
forth in the Pricing Agreement, the number of Initial Securities set forth in
Schedule A opposite the name of such Underwriter (except as otherwise provided
in the Pricing Agreement), plus any additional number of Initial Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
two Selling Stockholders identified on Schedule B hereby severally and not
jointly grant an option to the Underwriters to purchase up to all of the Option
Securities set forth in Schedule B opposite the name of each such Selling
Stockholder at the purchase price per share set forth in the Pricing Agreement.
The option granted will expire 30 days after the Representation Date and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Representatives to the
Company and the Selling Stockholders setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time and date of payment and delivery for such Option Securities. Any
such time and date of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined, unless otherwise agreed by the Representatives, the Company
and the Selling Stockholders. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally and
not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Securities set forth
in Schedule A opposite the name of such Underwriter bears to the total number of
Initial Securities (except as otherwise provided in the Pricing Agreement),
subject in each case to such adjustments as Xxxxxxx Xxxxx in its discretion
shall make to eliminate any purchases of fractional interests, plus any
additional number of Option Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof. If the
option is exercised as to all or any portion of the Option Security, each
Selling Stockholder, granting such option acting severally and not jointly, will
sell that proportion of the total number of Option Securities then being
purchased which is the ratio of the number of Option Securities set forth
opposite the name of such Selling Stockholder on Schedule B bears to the total
number of Option Securities.
(c) Payment of the purchase price for the Securities shall be made at
the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx, or at such other place as shall be agreed upon by the
Representatives, the Selling Stockhold-
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ers and the Company, at 7:00 A.M. California time on the third business day
(unless postponed in accordance with the provisions of Section 10) after
execution of the Pricing Agreement, or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives,
the Selling Stockholders and the Company (such time and date of payment and
delivery being herein called the "Closing Time"). Payment shall be made to the
respective Selling Stockholders by certified or official bank check or checks
drawn in New York Clearing House funds or similar next day funds payable to the
order of the respective Selling Stockholders, against delivery to the
Representatives at Xxxxxxx Xxxxx'x World Headquarters, Xxxxx Xxxxx, Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them.
Certificates, if any, for the Securities shall be in such denominations and
registered in such names as the Representatives may request in writing, of the
Custodian on behalf of the Selling Stockholders, at least two business days
before the Closing Time. It is understood that each Underwriter has authorized
the Representatives, for their account, to accept delivery of, receipt for, and
make payment of the purchase price for, the Securities which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Underwriter whose check has not
been received by the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder. The certificates, if any, for the
Securities will be made available, by the Custodian on behalf of the Selling
Stockholders, for examination and packaging by the Representatives not later
than 10:00 A.M. on the last business day prior to the Closing Time at Xxxxxxx
Xxxxx'x World Headquarters, Xxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
(d) In addition, in the event that any or all of the Option Securities
are purchased by the Underwriters, payment of the purchase price for such Option
Securities shall be made at the above-mentioned offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx, or at such other place as shall be agreed upon by the
Representatives, the Selling Stockholders granting the option for the Option
Securities and the Company, on each Date of Delivery as specified in the notice
from the Representatives to the Company and the Selling Stockholders granting
the option for the Option Securities. Payment shall be made to the respective
Selling Stockholders by certified or official bank check or checks drawn in New
York Clearing House funds or similar next day funds payable to the order of such
Selling Stockholders, against delivery to the Representatives at the above
mentioned offices of Xxxxxxx Xxxxx for such accounts of the Underwriters of
certificates for the Option Securities to be purchased by them. Certificates for
the Option Securities, if any, shall be in such denominations and registered in
such names as the Representatives may request in writing of the Custodian at
least two business days before the Closing Time or the relevant Date of
Delivery, as the case may be. It is understood that each Underwriter has
authorized the Representatives, for their accounts, to accept delivery of,
receipt for, and make payment of the purchase price for the Option Securities,
if any, which it has agreed to purchase. Xxxxxxx Xxxxx, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the
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purchase price for the Option Securities, if any, to be purchased by any
Underwriter whose check has not been received by the relevant Date of Delivery,
as the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder. The certificates, for the Option Securities, if any, will
be made available, by the Custodian on behalf of the Selling Stockholders
granting the option for the Option Securities, for examination and packaging by
the Representatives not later than 10:00 A.M. on the last business day prior to
the relevant Date of Delivery. For purposes of this agreement "business day"
means a day on which the New York Stock Exchange is open for business.
Section 3. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) The Company will, for so long as the Underwriters are
required to deliver a prospectus in connection with the offer and sale
of the Securities, notify the Representatives immediately (i) of the
effectiveness of any post-effective amendment to the Registration
Statement filed in connection with the offering of the Securities, (ii)
of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance of
any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) The Company will, for so long as the Underwriters are
required to deliver a prospectus in connection with the offer and sale
of the Securities, give the Representatives notice of its intention to
file or prepare any post-effective amendment to the Registration
Statement or any amendment or supplement to the Prospectus (including
any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Securities or any
term sheet (whether or not such revised prospectus or term sheet is
required to be filed pursuant to Rules 424(b) or 434 of the 1933 Act
Regulations), whether pursuant to the 1933 Act, the 1934 Act or
otherwise), will furnish the Representatives with copies of any such
amendment or supplement or term sheet a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file
any such amendment or supplement or term sheet or use any such
prospectus to which the Representatives or counsel for the Underwriters
shall object.
(c) The Company will deliver to each Representative a signed
copy of any post-effective amendment to the Registration Statement made
in connection with the offering of the Securities (including exhibits
filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) and
will also deliver to the Representatives a conformed copy of the Regis-
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tration Statement as originally filed and of each amendment,
post-effective amendment or supplement or term sheet thereto (without
exhibits) for each of the Underwriters.
(d) The Company will furnish to each Underwriter, from time to
time during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) and the term sheet, if any, as
such Underwriter may reasonably request for the purposes contemplated
by the 1933 Act or the 1934 Act or the respective applicable rules and
regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel
for the Company, to amend or supplement the Prospectus in order to make
the Prospectus not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, the Company will
forthwith amend or supplement the Prospectus (in form and substance
satisfactory to counsel for the Underwriters) so that, as so amended or
supplemented, the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances existing
at the time it is delivered to a purchaser, not misleading, and the
Company will furnish to the Underwriters [and the Selling Stockholders]
a reasonable number of copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as the Representatives may designate; provided,
however, that the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
date of the Pricing Agreement. The Company will inform the Florida
Department of Banking and Finance if prior to the completion of the
distribution of the Securities by the Underwriters the Company
commences engaging in business with the government of Cuba or with any
person or affiliate located in Cuba. Such information will be provided
within 90 days of the commencement thereof or after a change to any
such previously reported information.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve-month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
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(h) Immediately following the execution of the Pricing
Agreement, the Company will prepare, and file or transmit for filing
with the Commission in accordance with Rules 434 and 424(b) of the 1933
Act Regulations, copies of an amended Prospectus supplement and term
sheet, if any, to the Registration Statement, containing all omitted
information.
(i) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file
all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the 1934 Act within the time periods required
by the 1934 Act and the rules and regulations of the Commission under
the 1934 Act.
(j) During a period of 90 days from the Representation Date,
the Company will not, without Xxxxxxx Xxxxx'x prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of (whether directly or synthetically) or
enter into any agreement to sell or otherwise dispose of (whether
directly or synthetically) any Common Stock, Class A Common Stock or
Warrants or any security convertible into or exchangeable into or
exercisable for Common Stock (except for Common Stock issued pursuant
to reservations, agreements, employee benefit plans, the exercise of
Warrants or the exercise of convertible securities referred to in
Section 1(a)(vii) hereof), Class A Common Stock or Warrants.
(k) If the Company uses Rule 434 of the 1933 Act Regulations,
it will comply with the requirements of Rule 434 of such regulations
and the Prospectus will not be "materially different," as such term is
used in Rule 434 of the 1933 Act Regulations, from the Prospectus first
given to the Underwriters for their use.
(l) The Company will use its best efforts to cause the
continued listing of the Common Stock on the New York Stock Exchange.
Section 4. Payment of Expenses. The Company or the Selling
Stockholders, as such parties may agree, will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the printing
and filing of any post-effective amendment to the Registration Statement
required in connection with the sale of the Securities, (ii) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters, (iii) the fees and disbursements of the Company's counsel and
accountants, (iv) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and any
Legal Investment Survey, (v) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus supplement, and of the Prospectus and
any amendments or supplements thereto, (vii) the printing and
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17
delivery to the Underwriters of copies of the Blue Sky Survey and any Legal
Investment Survey, (viii) the fees and expenses of continuing the listing of the
Common Stock on the New York Stock Exchange and (ix) the fee of the National
Association of Securities Dealers, Inc.
If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
Section 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Stockholders
herein contained, to the performance by the Company and the Selling Stockholders
of their obligations hereunder, and to the following further conditions:
(a) The Registration Statement, as amended, shall have become
effective on or prior to the date of this Agreement. At the Closing
Time, no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission. The price of the
Securities and any price-related information previously omitted from
the effective Registration Statement and any term sheet used pursuant
to Rule 434 of the 1933 Act Regulations shall have been transmitted to
the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the prescribed time period and prior to the Closing
Time the Company shall have provided evidence satisfactory to the
Representatives of such timely filing, or a post-effective amendment
providing such information shall have been promptly filed and declared
effective.
(b) At the Closing Time, the Representatives shall have
received:
(i) The favorable opinion, dated as of the Closing
Time, of Xxxxxxx & Xxxxx, L.L.P., counsel for the Company, in
form and substance satisfactory to counsel for the
Underwriters, to the effect that:
a. The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the state of Delaware.
b. The Company has corporate power and
authority to own, lease and operate its properties
and to conduct its business as described in the
Registration Statement and to enter into and perform
its obligations under this Agreement and the Pricing
Agreement.
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18
c. The Shares of Common Stock to be sold by
the Selling Stockholders have been duly authorized
and validly issued and are fully paid and
nonassessable.
d. The issuance of the Securities was not
subject, at the date of issue, to statutory
preemptive or, other similar rights arising by
operation of law, under the charter or bylaws of the
Company or, to the best of their knowledge and
information, after due inquiry,. under any agreement
to which the Company is a party.
e. This Agreement and the Pricing Agreement
have each been duly authorized, executed and
delivered by the Company.
f. The Registration Statement and all post
effective amendments thereto were declared effective
under the 1933 Act and, to the best of their
knowledge and information, no stop order suspending
the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
g. The Registration Statement at its
effective time and at the Representation Date (other
than the financial statements, financial and
statistical information and supporting schedules
included therein, as to which no opinion need be
rendered) complied as to form in all material
respects with the requirements of the 1933 Act and
the 1933 Act Regulations.
h. The Common Stock and the Class A Common
Stock conform to the description thereof contained in
the Prospectus under the caption "Description of
Capital Stock" and the Warrants conform to the
description thereof contained in the Prospectus under
the caption "Description of Warrants" and the form of
certificate used to evidence the Common Stock
complies with the requirements of the Delaware
General Corporation Law.
i. To the best of their knowledge and
information, the Company is not in violation of its
charter or bylaws which violation could have a
material adverse effect on the condition, financial
or otherwise, or on the earnings, business affairs or
business prospects of the Company.
j. To the best of their knowledge and
information, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or
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19
other instruments required to be described or
referred to in the Registration Statement or to be
filed as exhibits thereto other than those described
or referred to therein or filed as exhibits thereto,
and the descriptions thereof or references thereto
are fair and accurate summaries of such agreements or
instruments.
k. No authorization, approval, consent or
order of any court or governmental authority or
agency is required in connection with the offering or
sale of the Securities to the Underwriters, except
such as may be required under the 1933 Act or the
1933 Act Regulations or state securities law.
l. To the best of their knowledge and
information, the execution, delivery and performance
of this Agreement and the Pricing Agreement and the
consummation of the transactions contemplated herein
and therein and compliance by the Company with its
obligations hereunder and thereunder will not
conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or
assets of the Company pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company is a party or
by which it is or it may be bound, or to which any of
the property or assets of the Company is subject, nor
will such action result in any violation of the
provisions of the charter or bylaws of the Company,
or any applicable law (applicable law for this
purposes shall be limited to those United States
statutes, laws or regulations currently in effect
which, in such counsel's experience, are normally
applicable to transactions of the type contemplated
by this Agreement).
m. To such counsel's knowledge, there are no
persons with registration or other similar rights to
have any securities registered pursuant to the
Registration Statement or to participate in the
offering of the Securities contemplated by this
Agreement, except such as have been waived in writing
or complied with by the inclusion of such
Stockholders in the Registration Statement or the
inclusion of such persons as Selling Stockholders in
Schedule B hereto, as the case may be.
In addition such counsel shall state that
they have participated in conferences with directors,
officers and other representatives of the Company,
the Representatives, the Company's independent
accountants, counsel for the Selling Stockholders and
counsel for the Underwriters, at which conferences
the contents of the Registration Statement
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20
and the Prospectus and related matters were discussed
and, although they are not passing upon, and do not
assume any responsibility for, the accuracy,
completeness or fairness of the statements contained
in the Registration Statement or Prospectus, and they
have not made any independent check or verification
thereof, on the basis of the foregoing, nothing has
come to their attention that would lead them to
believe that the Registration Statement, as amended,
(except for financial statements and other financial
and statistical data included therein), at the time
it became effective, contained any untrue statement
of a material fact or omitted to state a material
fact required to be stated therein or necessary to
make the statements therein not misleading or that
the Prospectus (except for the financial statements
and other financial and statistical data contained
therein), at the Representation Date (unless the term
"Prospectus" refers to a prospectus which has been
provided to the Underwriters by the Company for use
in connection with the offering of the Securities
which differs from the Prospectus on file at the
Commission at the Representation Date, in which case
at the time it is first provided to the Underwriters
for such use) or at the Closing Time, included any
untrue statement of a material fact or omitted to
state a material fact required to be stated therein
or necessary to make the statements therein, in light
of the circumstance in which they are made, not
misleading.
(ii) The favorable opinion or opinions of counsel to
each of the Selling Stockholders (such counsel may be counsel
employed by such Selling Stockholder), dated as of the Closing
Time, such counsel and the form and substance of such opinion
being satisfactory to counsel for the Underwriters, to the
effect that:
a. Assuming that (i) each of the
Underwriters acquired its interest in the Securities
to be sold by the Selling Stockholders pursuant to
this Agreement in good faith and without any notice
of any adverse claim or restriction on transfer of
any of the Securities imposed by the Company, except
as disclosed in the Prospectus, and (ii) the
certificates representing the Securities and
registered in the names of the Underwriters do not
contain a lien in favor of the Company or a
restriction on transfer imposed by the Company,
except as disclosed in the Prospectus, upon delivery
to the Representatives as agent for the Underwriters
in the State of New York of such Securities
registered in such Underwriters' names, the
Underwriters will acquire all of the Selling
Stockholders rights in the Securities free and clear
of any adverse claim (within the meaning of Section
8-302 of the New York Uniform Commercial Code) of any
person, any lien in favor of the Company and any
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21
restriction on transfer imposed by the Company,
except as disclosed in the Prospectus. The owner of
such Securities, if other than such Selling
Stockholder, is precluded from asserting against the
Underwriters the ineffectiveness of any unauthorized
endorsements.
b. This Agreement and the Custody Agreement
have been duly authorized, executed and delivered by
such Selling Stockholder. The execution and delivery
of this Agreement by such Selling Stockholder and the
sale and delivery of the Securities to be sold by
such Selling Stockholder do not and will not conflict
with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or
result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of
such Selling Stockholder under any contract,
indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which such Selling
Stockholder is a party or by which it may be bound or
to which any of its properties may be subject or any
existing applicable law, rule, regulation, judgment,
order or decree of any government, governmental
instrumentality or court, domestic or foreign, having
jurisdiction over such Selling Stockholder or any of
its respective properties (except for such conflicts,
breaches or defaults or liens, charges or
encumbrances that would not [have a material adverse
effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects
of such Selling Stockholder and its subsidiaries
considered as one enterprise and would not]
materially and adversely affect the consummation of
the transactions contemplated by this Agreement).
(iii) The favorable opinion, dated as of the Closing
Time, of Winthrop, Stimson, Xxxxxx and Xxxxxxx, special
aviation regulatory counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the
effect that:
a. The Company is an "air carrier" and after
consummation of the transactions contemplated herein
will be a "citizen of the United States," within the
meaning of the Federal Aviation Act of 1958, as
amended;
b. The Company has such licenses,
certificates, permits and other governmental
authorizations from the Department of Transportation,
as successor to the Civil Aeronautics Board, the
Federal Aviation Administration, the Federal
Communications Commission and any other federal,
state or local transportation or aviation regulatory
authority as are necessary to own its properties and
to conduct its business in
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the manner described in the Prospectus, and no such
license, certificate, permit or other governmental
authorization is the subject of any "show cause" or
other order of, or any proceeding before, or any
investigation by, any such authority (other than
proceedings for the renewal of temporary rights),
which in the opinion of such counsel might reasonably
result in a final order impairing the validity of
such licenses, certificates, permits and other
governmental authorizations;
c. To the best knowledge of such counsel,
there is no pending or threatened action, suit or
proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving
the Company or their property and involving (A)
licenses, certificates, permits or other governmental
authorizations issued by or from the Department of
Transportation, the Federal Aviation Administration,
the Federal Communications Commission or any other
federal or any state transportation or aviation
regulatory authority or (B) the Federal Aviation Act
of 1958, as amended ((A) and (B) together, "Aviation
Laws") that is of a character required to be
disclosed in the Prospectus; and the statements in
the Prospectus under the heading "Business --
Government Regulation" fairly summarize in all
material respects the matters therein described as
they relate to Aviation Laws;
d. No consent, approval, authorization,
filing with or order of any court or governmental
agency or body involving Aviation Laws is required
for consummation of the transactions contemplated
herein, other than as has been obtained or performed;
e. Neither the sale of the Securities being
sold by the Selling Stockholders nor the consummation
of any other of the transactions herein contemplated
by the Company and the Selling Stockholders will
conflict with, or result in a breach or violation of,
any Aviation Law;
f. There are no transfer taxes or other
similar fees or charges required under any Aviation
Law to be paid in connection with the execution,
delivery and performance of this Agreement or the
sale by the Selling Stockholders of the Securities;
and
g. The descriptions in the Registration
Statement of laws, regulations and rules, of legal
and governmental proceedings and of contracts,
agreements, leases and other documents, in so far as
they relate to Aviation Laws, including, without
limitation, under the headings "Risk Factors --
Government Regulation," "Risk Factors -- Limitation
on Voting by Foreign Owners," "Business -- Aircraft
and --
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Government Regulation" have been reviewed by such
counsel and are accurate in all material respects,
and comply as to form in all material respects with
the applicable requirements of the 1933 Act and the
1933 Act Regulations.
In addition, solely in its capacity as
special regulatory counsel for the Company such
counsel shall state that they have no reason to
believe that at the Closing Time the Registration
Statement contained any untrue statement of a
material fact or omitted to state any material fact
required to be stated therein or necessary to make
the statements therein not misleading or that the
Prospectus, as of its date or the Closing Time,
included or includes any untrue statement of a
material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the
light of the circumstances under which they were
made, not misleading. In rendering such opinion, such
counsel may rely as to matters of fact, to the extent
they deem proper, on certificates of responsible
officers of the Company and public officials.
(iv) The favorable opinion, dated as of the Closing
Time, of Xxxxxxx X. Xxxxxxx, Senior Vice President - Legal
Affairs, in form and substance satisfactory to counsel for the
Underwriters, addressed to the Representatives and each
Selling Stockholder to the effect that:
a. To the best of his knowledge and information, the
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
such qualification is required.
b. To the best of his knowledge and information,
there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Registration Statement, other than those disclosed therein,
and all pending legal or governmental proceedings to which the
Company is a party or to which any of their property is
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material.
c. The information in the Prospectus under "Risk
Factors -- Labor Negotiations," "Business -- Labor Relations,
-- Facilities and -- Government Regulation," to the extent
that it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has
been reviewed by him and is correct in all material respects,
except as to Aviation Laws as to which he need not express any
opinion.
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d. To the best of his knowledge and information,
there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to
be filed as exhibits thereto other than those described or
referred to therein or filed as exhibits thereto, the
descriptions thereof or references thereto are correct, and no
default (except for defaults which, individually or in the
aggregate would not materially and adversely affect the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company) exists in the
due performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument so
described, referred to, or filed.
He and lawyers under his supervision have
participated in conferences with directors, officers and other
representatives of the Company, the Representatives, the
Company's independent accountants, counsel for the Selling
Stockholders and counsel for the Underwriters, at which
conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although he
is not passing upon, and does not assume any responsibility
for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus, and he
has not made any independent check or verification thereof, on
the basis of the foregoing, nothing has come to his attention
that would lead him to believe that the Registration
Statement, as amended (except for financial statements and
other financial data included therein), at the time it became
effective, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus (except for the financial
statements and other financial information contained therein),
at the Representation Date (unless the term "Prospectus"
refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the
offering of the Securities which differs from the Prospectus
on file at the Commission at the Representation Date, in which
case at the time it is first provided to the Underwriters for
such use) or at the Closing Time, included any untrue
statement of a material fact or omitted 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.
(v) The favorable opinion, dated as of the Closing
Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, counsel for the
Underwriters, with respect to the matters set forth in (a),
(d), (e) (solely as to preemptive rights arising by operation
of law or under the charter or bylaws of the Company), (h),
(i) and (j), of subsection (b)(i) of this Section, except
that, with respect to the matters
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referred to in (d), no opinion need be expressed as to whether
any of the Company's outstanding shares of Common Stock, other
than the Securities, have been duly authorized or validly
issued or are fully paid or nonassessable.
In giving their opinions required by subsection
(b)(v) of this Section 5, Skadden, Arps, Slate, Xxxxxxx & Xxxx
shall additionally state that nothing has come to their
attention that would lead them to believe that the
Registration Statement (except for financial statements and
schedules and other financial or statistical data included
therein, as to which counsel need make no statement), at the
Representation Date, contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that the Prospectus (except for financial
statements and schedules and other financial or statistical
data included therein, as to which counsel need make no
statement), at the time it is first provided to the
Underwriters for such use or at the Closing Time, included or
includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) At the Closing Time there shall not have been, since the
date hereof or since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company,
whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the chairman of
the board and chief executive officer of the Company and of the chief
financial officer of the Company, dated as of the Closing Time, to the
effect that (i) there has been no such material adverse change, (ii)
the representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and
as of the Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or
threatened by the Commission.
(d) At the time of the execution of this Agreement, the
Representatives shall have received from KPMG Peat Marwick, L.L.P. a
letter dated such date, in form and substance satisfactory to the
Representatives, to the effect that (i) they are independent public
accountants with respect to the Company within the meaning of the 1933
Act and the 1933 Act Regulations; (ii) it is their opinion that the
financial statements and supporting schedules included in the
Registration Statement and covered by their opinions therein comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations;
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(iii) based upon limited procedures set forth in detail in such letter,
nothing has come to their attention which causes them to believe that
(A) the unaudited financial statements and supporting schedules of the
Company included in the Registration Statement do not comply as to form
in all material respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations or are not presented in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited financial
statements included in the Registration Statement, (B) the unaudited
amounts of revenues, net income and net income per share set forth
under "Selected Financial Data" in the Prospectus were not determined
on a basis substantially consistent with that used in determining the
corresponding amounts in the audited financial statements included in
the Registration Statement, or (C) at a specified date not more than
five days prior to the date of this Agreement, there has been any
change in the capital stock of the Company or any increase in the long
term debt of the Company or any decrease in net current assets or net
assets as compared with the amounts shown in the balance sheet included
in the Registration Statement or, during the period from September 30,
1995 to a specified date not more than five days prior to the date of
this Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in revenues, net income or
net income per share of the Company, except in all instances for
changes, increases or decreases which the Registration Statement and
the Prospectus disclose have occurred or may occur; and (iv) in
addition to the audit referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out
certain specified procedures, not constituting an audit, with respect
to certain amounts, percentages and financial information which are
included in the Registration Statement and Prospectus and which are
specified by the Representatives, and have found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company
identified in such letter.
(e) At the Closing Time the Representatives shall have
received from KPMG Peat Marwick, L.L.P. a letter, dated as of the
Closing Time, to the effect that they reaffirm the statements made in
the letter furnished pursuant to subsection (d) of this Section, except
that the specified date referred to shall be a date not more than five
days prior to the Closing Time and, to the further effect that they
have carried out procedures as specified in clause (iv) of subsection
(d) of this Section with respect to certain amounts, percentages and
financial information specified by the Representatives and have found
such amounts, percentages and financial information to be in agreement
with the records specified in such clause (iv).
(f) At the Closing Time and at each Date of Delivery, the
Securities shall continue to be listed on the New York Stock Exchange.
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(g) At the Closing Time and at each Date of Delivery, if any,
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require and have
specifically requested prior to such time for the purpose of enabling
them to pass upon the offer and sale of the Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company and the Selling Stockholders in
connection with the offer and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(h) In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by
the Company hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives
shall have received:
(i) A certificate, dated such Date of Delivery, of the
chairman and chief executive officer of the Company and of the
chief financial officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section
5(c) hereof remains true and correct as of such Date of
Delivery.
(ii) The favorable opinion of Xxxxxxx & Xxxxx, L.L.P., counsel
for the Company, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to
the Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by
Section 5(b)(i) hereof.
(iii) The favorable opinion or opinions of counsel for each of
the Selling Stockholders (such counsel may be counsel employed
by such Selling Stockholder), in form and substance
satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(b)(ii) hereof.
(iv) The favorable opinion of Winthrop, Stimson, Xxxxxx &
Xxxxxxx, special aviation regulatory counsel to the Company,
in form and substance satisfactory to counsel to Underwriters
confirming their opinion delivered at the Closing Time,
pursuant to Section 5(b)(iii) hereof, remains their opinion on
such Date of Delivery.
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(v) The favorable opinion of Xxxxxxx X. Xxxxxxx, Senior Vice
President Legal Affairs, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date
of Delivery and otherwise to the same effect as the statement
required by Section 5(b)(iv) hereof.
(vi) The favorable opinion of Skadden, Arps, Slate, Xxxxxxx &
Xxxx, counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(b)(v) hereof.
(vii) A letter from KPMG Peat Marwick, L.L.P., in form and
substance satisfactory to the Representatives and dated such
Date of Delivery, substantially the same in form and substance
as the letter furnished to the Representatives and the Selling
Stockholders pursuant to Section 5(e) hereof, except that the
"specified date" in the letter furnished pursuant to this
Section 5(h)(vii) shall be a date not more than five days
prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company and each Selling Stockholder at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof.
Section 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act as
follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus, the Prospectus
(or any amendment, supplement or term sheet thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental
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agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the fees
and disbursements of counsel chosen by Xxxxxxx Xxxxx),
reasonably incurred 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 statement or
omission, to the extent that any such expense is not paid
under (a)(i) or (a)(ii) above;
provided, however, that this indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to the
extent 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 any Underwriter through the Representatives
expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment, supplement or term sheet
thereto).
(b) Each Selling Stockholder jointly, and not severally,
agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact made or omitted in reliance upon and in conformity with
public documents, oral information furnished to the Company or
written information furnished to the Company pertaining to
such Selling Stockholder and included in or omitted from the
Registration Statement (or any amendment thereto), and the
omission or alleged omission therefrom of a material fact
referring to such Selling Stockholder required to be stated
therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any
preliminary prospectus, the Prospectus (or any amendment,
supplement or term sheet thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settle-
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ment of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission,
if such settlement is effected with the written consent of
such Selling Stockholder; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the fees
and disbursements of counsel chosen by Xxxxxxx Xxxxx),
reasonably incurred 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 statement or
omission, to the extent that any such expense is not paid
under (b)(i) or (b)(ii) above;
provided, however, that each Selling Stockholder's maximum
aggregate liability to indemnify or otherwise make payments to
the Underwriters and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act
pursuant to the indemnity agreement under this Section 6(b)
and for any breach of the representations and warranties of
such Selling Stockholder set forth in Section 1(b)(ii) of this
Agreement shall be limited to the aggregate amount of the
gross proceeds (after deducting the Underwriters' discount but
before deducting expenses) received by such Selling
Stockholder from the sale of such Selling Stockholder's
Securities pursuant to this Agreement.
provided, further, that each Selling Stockholder agrees to
indemnify and hold harmless each Underwriter and each person,
if any, who controls andy Underwriter within the meaning of
Section 15 of the 1933 Act against any all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out
of a breach of such Selling Stockholder's representation and
warranty set forth in Section 1(b)(i) and 1(b)(iii) through
1(b)(x).
(c) The indemnity agreement contained in this Section 6, with
respect to any preliminary prospectus, shall not inure to the benefit
of any Underwriter, or any person who controls an Underwriter within
the meaning of Section 15 of the 1933 Act to the extent that any loss,
liability, claim, damage or expense results from the fact that a copy
of the Prospectus was not sent or given, at or prior to the written
confirmation of the sale of Common Stock, by or on behalf of such
Underwriter to the person asserting such loss, claim, damage or
liability to the extent that delivery of the Prospectus would have
cured the defect giving rise to such loss, claim, damages, liability or
expense if such Underwriter shall have been provided with copies of the
Prospectus and it is determined that such delivery was required under
the 1933 Act and was not so made.
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(d) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act and each
Selling Stockholder and each person who controls such Selling
Stockholder within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense 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, supplement or term sheet thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment, supplement or term
sheet thereto). In addition, each Underwriter severally agrees to
indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the
1933 Act and each Selling Stockholder and each person who controls such
Selling Stockholder within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to any loss, liability claim, damage
and expense to the extent that any loss, liability, claim, damage or
expense results from the fact that a copy of the Prospectus was not
sent or given by or on behalf of such Underwriter to the person
asserting such loss, claim, damage or liability to the extent that
delivery of the Prospectus would have cured the defect giving rise to
such loss, claim, damage, liability or judgment if such Underwriter
shall have been provided with copies of the Prospectus and it is
determined that such delivery was required under the 1933 Act and was
not so made.
(e) 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 which it may have
otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of any such
action. In no event shall the indemnifying parties be liable for fees
and expenses of more than one+ counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(f) The provisions of this Section 6 and Section 7 hereof
shall not affect any separate agreement among the Company and the
Selling Stockholders with respect to indemnification and contribution.
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Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company, the
Selling Stockholders and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and the Selling Stockholders
and one or more of the Underwriters as incurred, in such proportions that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount appearing on the cover page of the Prospectus or term
sheet, if applicable, bears to the initial public offering price appearing
thereon and the Company and the Selling Stockholders are responsible for the
balance, provided that the aggregate liability of each Selling Stockholder under
this Section 7 and for any breach of any representation and warranty set forth
in Section 1(b) of this Agreement (to the extent such breach does not also
constitute a breach of any other representation and warranty of such Selling
Stockholder) shall be limited to an amount equal to the net proceeds (after
deducting the aggregate Underwriters' discount or commission, but before
deducting expenses) received by such Selling Stockholder from the sale of its
Securities pursuant to this Agreement; provided, however, that no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation, and provided that the contribution provisions
of this Section 7 shall not inure to the benefit of any Underwriter to the
extent that the aggregate losses, liabilities, claims, damages and expenses
result from the circumstances described in Section 6(c). For purposes of this
Section, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company and each person, if any, who controls a
Selling Stockholder within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as such Selling Stockholder.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers of
the Company or the Selling Stockholders submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the
Company or the Selling Stockholders, and shall survive delivery of the
Securities to the Underwriters.
Section 9. Termination of Agreement. (a) The Representatives may
terminate this Agreement, by notice to the Company and each Selling Stockholder,
at any time at or prior to the Closing Time (i) if there has been, since the
date of this Agreement or since the respective dates as of which information is
given in the Registration Statement, any
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material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other calamity
or crisis the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in the Common Stock or the
Warrants has been suspended by the Commission, or if trading generally on either
the American Stock Exchange or the New York Stock Exchange has been suspended,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said Exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal, New York or Arizona authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
Section 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement and
the Pricing Agreement (the "Defaulted Securities"), the Representatives shall
have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the Securities, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Securities, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, any of the Representatives, the Selling
Stockholders (acting unanimously) or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
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Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives c/o Merrill Xxxxx & Co. at
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, attention of
Xxxxxx Xxxxxxx, Director; notices to the Company shall be directed to the
Company at 0000 Xxxx Xxx Xxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000, attention of
Xxxxxxx X. Xxxxxxx, Esquire, Senior Vice President; notices to TPG, TPG Parallel
and Air Partners II shall be directed to Xxxx Shifter, Texas Pacific Group
Partners, L.P., 0000 Xxxxxxxxxxx Xxxxxx X.X., Xxxxx 000, Xxxxxxxxxx, XX 00000;
notices to Continental Airlines, Inc. shall be directed to Continental Airlines,
Xxx.xx 0000 Xxxxx Xxxxxxx, Xxxxxxx, Xxxxx, 00000 attention of Xxxx Xxxxxx,
Esquire, General Counsel; notices to Xxxxxx Brothers Holdings Inc. shall be
directed to Xxxxxx Brothers Inc. at 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention of Xxxxx Xxxxxx, Esquire, Vice President and notices to Mesa
Airlines Group, Inc. shall be directed to Mesa Airlines, at 0000 00xx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx, 00000, attention of Xxxxx Xxxxxx, Chairman and Chief
Executive Officer.
Section 12. Parties. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriters, the Selling
Stockholders and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement or the Pricing Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters,
the Selling Stockholders and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or the Pricing Agreement or any
provision herein or therein contained. This Agreement and the Pricing Agreement
and all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of the Underwriters, the Selling Stockholders and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
Section 13. Governing Law and Time. THIS AGREEMENT AND THE PRICING
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID
STATE. Except as otherwise set forth herein, specified times of day refer to New
York City time.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Selling Stockholders and the Company in accordance
with its terms.
Very truly yours,
AMERICA WEST AIRLINES, INC.
By:________________________
Name:
Title:
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By:_________________________
Name:
Title:
TPG PARALLEL II, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By:_________________________
Name:
Title:
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AIR PARTNERS II, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By:_________________________
Name:
Title:
CONTINENTAL AIRLINES, INC.
By:_________________________
Name:
Title:
MESA AIR GROUP, INC.
By:_________________________
Name:
Title:
XXXXXX BROTHERS HOLDINGS INC.
By:_________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX XXXXXX XXXXXX & XXXXX INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
XXXXXX BROTHERS INC.
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By__________________________________
Authorized Signatory
For each of themselves and as Representatives of the other
Underwriters named in Schedule A hereto.
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SCHEDULE A
Number
Name of Underwriter of Securities
------------------- -------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated . . . . . . . .
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation . . . . . . . .
Xxxxxx Brothers Inc . . . . . . . . . . . . . . . . . . . . . .
-------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
-------------
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SCHEDULE B
Number of
Name of Selling Stockholder Option Securities Number of Option
--------------------------- ----------------- ----------------
TPG Partners, L.P. . . . . . . . . 2,072,567 0
TPG Parallel I, L.P. . . . . . . . 208,843 0
Air Partners II, L.P. . . . . . . . 218,590 0
Contingental Airlines, Inc. . . . . 1,100,000 258,030
Mesa Air Group, Inc. . . . . . . . 1,500,000 351,970
Xxxxxx Brothers Holding Inc . . . . 1,000,000 0
--------- -------
Total . . . . . . . . . . . . . . . 6,100,000 610,000
========= =======
Sch B - 1
39
Exhibit A
6,100,000 Shares
AMERICA WEST AIRLINES, INC.
(a Delaware corporation)
Class B Common Stock
(Par Value $.01 Per Share)
PRICING AGREEMENT
February [ ], 1996
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxx Brothers Inc.
as Representatives of the several
Underwriters named in the within-
mentioned Purchase Agreement
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the Purchase Agreement dated February [ ], 1996
(the "Purchase Agreement") relating to the purchase by the several Underwriters
named in Schedule A thereto, for whom Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation and Xxxxxx Brothers Inc. are acting as representatives (the
"Representatives"), of the above shares of Class B Common Stock (the
"Securities"), of America West Airlines, Inc., a Delaware corporation (the
"Company"), to be sold by certain stockholders named in Schedule B thereto (the
"Selling Stockholders").
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Pursuant to Section 2 of the Purchase Agreement, the Selling
Stockholders severally and not jointly agree with each Underwriter as follows:
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $ .
2. The purchase price per share for the Securities to be paid by
the several Underwriters shall be $ , being an amount equal to the initial
public offering price set forth above less $ per share; provided that the
purchase price per share for any Option Securities (as defined in the Purchase
Agreement) purchased upon exercise of the over-allotment option described in
Section 2(b) of the Purchase Agreement shall be reduced by an amount per share
equal to any dividends declared by the Company and payable on the Initial
Securities (as defined in the Purchase Agreement) but not payable on the Option
Securities.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Selling Stockholders and the Company in accordance
with its terms.
Very truly yours,
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: _________________________
Name:
Title:
TPG PARALLEL I, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: _________________________
Name:
Title:
AIR PARTNERS II, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
3
42
By: _________________________
Name:
Title:
CONTINENTAL AIRLINES, INC.
By: _________________________
Name:
Title:
MESA AIR GROUP, INC.
By: _________________________
Name:
Title:
XXXXXX BROTHERS HOLDINGS INC.
By: _________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX XXXXXX XXXXXX & XXXXX INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
XXXXXX BROTHERS INC.
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By__________________________________
Authorized Signatory
For each of themselves and as Representatives of the other
Underwriters named in Schedule A of the Purchase Agreement
4
43
ACKNOWLEDGED
as of the date first above written
AMERICA WEST AIRLINES, INC.
By: ________________________
Name:
Title:
5
