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