SHARE EXCHANGE AGREEMENT
SHARE EXCHANGE AGREEMENT, dated as of February 14, 1996, by
and among TPG Partners, L.P., a Delaware limited partnership
("TPG Partners"), TPG Parallel I, L.P., a Delaware limited
partnership ("TPG Parallel"), Air Partners II, L.P., a Texas
limited partnership ("Air Partners II" and, together with TPG
Partners and TPG Parallel, "TPG") and Continental Airlines, Inc.,
a Delaware corporation ("Continental" and, together with TPG, the
"Parties").
WHEREAS, the Parties are, concurrently with the execution of
this Agreement, entering into a Purchase Agreement (the "Purchase
Agreement") dated the date hereof among America West Airlines,
Inc. (the "Company"), the Parties, Mesa Air Group, Inc., Xxxxxx
Brothers Holdings Inc. and the several underwriters named in
Schedule A thereto (the "Underwriters");
WHEREAS, pursuant to the Purchase Agreement Continental has
agreed to sell to the Underwriters 1,100,000 shares of Class B
Common Stock, par value $.01 per share ("Class B Common Stock"),
of the Company, and to grant the Underwriters an option to
purchase up to 258,030 additional shares of Class B Common Stock
solely to cover over-allotments, if any;
WHEREAS, under (i) Section 4.1 of the Stockholders'
Agreement for America West Airlines, Inc. entered into as of
August 25, 1994 by and among AmWest Partners, L.P., GPA Group
plc, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxx and
the Company, (ii) Section 5(d) of the Termination Agreement dated
as of August 25, 1994 by and among AmWest Genpar, Inc., Apcal,
L.P. and Mesa Airlines, Inc. and (iii) certain Assignment and
Assumption Agreements dated August 24, 1994 (collectively, the
"Agreements"), Continental may not sell or otherwise transfer any
Class B Common Stock or Class A Common Stock, $.01 par value per
share ("Class A Common Stock" and, together with Class B Common
Stock, the "Common Stock"), of the Company owned by Continental
(other than to an affiliate of Continental) if, after giving
effect thereto and to any related transaction, the total number
of shares of Class B Common Stock beneficially owned by
Continental would be less than twice the total number of shares
of Class A Common Stock beneficially owned by Continental;
WHEREAS, Continental desires to exchange shares of Class A
Common Stock held by it for shares of Class B Common Stock held
by TPG, and subsequently to sell such shares of Class B Common
Stock, together with other shares of Class B Common Stock
currently held by Continental, to the Underwriters pursuant to
the Purchase Agreement;
WHEREAS, the Parties are parties to that certain Priority
Distribution Agreement (the "Priority Distribution Agreement"),
dated as of August 25, 1994, pursuant to which TPG has granted
Continental the right of first refusal to purchase all (but not
less than all) of certain securities of America West Airlines,
Inc. owned by TPG that TPG has notified Continental it desires to
sell;
WHEREAS, TPG desires to notify Continental of the proposed
sale of shares of Class B Common Stock held by it to the
Underwriters, and Continental desires to waive its right of first
refusal to purchase such shares under the Priority Distribution
Agreement;
NOW, THEREFORE, in consideration of the premises, the
Parties agree as follows:
1. Continental hereby agrees to exchange 80,926 shares of
Class A Common Stock for an equal number of shares of Class B
Common Stock held by TPG. TPG Partners, TPG Parallel and Air
Partners II hereby agree to exchange 67,090, 6,760 and 7,076
shares of Class B Common Stock, respectively, for an equal number
of shares of Class A Common Stock held by Continental. The share
exchange set forth in this section 1 shall be conditioned on the
closing of the purchase of Initial Securities (as defined in the
Purchase Agreement) by the Underwriters at the Closing Time (as
defined in the Purchase Agreement) under the Purchase Agreement,
and shall be effective as of the Closing Time. In the event the
Purchase Agreement is terminated prior to the Closing Time, this
agreement shall terminate and the share exchange set forth in
this section 1 shall not occur.
2. Continental hereby agrees to exchange up to 86,010
shares of Class A Common Stock for an equal number of shares of
Class B Common Stock held by TPG. Each of TPG Partners, TPG
Parallel and Air Partners II hereby agrees to exchange up to
71,305, 7,185 and 7,520 shares of Class B Common Stock,
respectively, for an equal number of shares of Class A Common
Stock held by Continental. The total number of shares of Common
Stock to be exchanged pursuant to this Section 2 shall be equal
to the total number of shares of Class B Common Stock, if any, to
be purchased by the Underwriters from Continental pursuant to the
over-allotment option granted to the Underwriters by Continental
in Section 2(b) of the Purchase Agreement. The share exchange
set forth in this section 2 shall be conditioned on the closing
of the purchase of the Option Securities (as defined in the
Purchase Agreement) by the Underwriters at the Date of Delivery
(as defined in the Purchase Agreement) under the Purchase
Agreement, and shall be effective as of the Date of Delivery. In
the event the Purchase Agreement is terminated prior to the Date
of Delivery, this agreement shall terminate and the share
exchange set forth in this section 2 shall not occur.
3. TPG hereby notifies Continental of its intention to
sell, pursuant to the Purchase Agreement, 2,500,000 shares of
Class B Common Stock (the "TPG Offered Shares") to the
Underwriters at the price per share of Class B Common Stock under
the Purchase Agreement. Such shares of Class B Common Stock
consist of 2,072,567 shares to be sold by TPG Partners, 208,843
shares to be sold by TPG Parallel and 218,590 shares to be sold
by Air Partners II. Continental represents and agrees that the
notice given hereby shall for all purposes be deemed to be
sufficient notice under Section 3 of the Priority Distribution
Agreement. Continental hereby irrevocably waives its right of
first refusal to purchase the TPG Offered Shares; provided,
however, that in the event all or a portion of the TPG Offered
Shares are not sold to the Underwriters pursuant to the Purchase
Agreement, future sales of the TPG Offered Shares by TPG shall be
and remain subject to the provisions of Section 3 of the Priority
Distribution Agreement.
4. This Share Exchange Agreement shall become effective
when executed by each of the parties hereto. This Share Exchange
Agreement may be executed in any number of separate counterparts,
each of which shall, collectively and separately, constitute one
agreement.
5. This Share Exchange Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State
of New York, without regard to the principles thereof regarding
conflicts of law.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this
Share Exchange Agreement to be executed by their respective
officers or partners thereunto duly authorized, as of the date
first above written.
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
TPG PARALLEL I, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
AIR PARTNERS II, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
CONTINENTAL AIRLINES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
