Approximate date of commencement of proposed sale to the
public: from time to time after the Registration Statement
becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, as amended (the
“Securities Act”) other than securities offered only
in connection with dividend or interest reinvestment plans,
check the following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration number of the
earlier effective registration statement for the same
offering. o
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following
box. o
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933, or until the Registration
Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
The information in this prospectus is
not complete and may be changed. We may not sell these
securities until the registration statement filed with the SEC
is effective. This prospectus is not an offer to sell these
securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is
prohibited.
Warrants to purchase 386,925 shares of Common
Stock
386,925 shares of Common Stock
America West Holdings Corporation, our wholly owned subsidiary,
issued warrants in January 2002 in connection with the closing
of a $429 million loan supported by a $380 million
government loan guarantee. In connection with the merger of
America West Holdings Corporation and Barbell Acquisition Corp.,
our wholly owned subsidiary, which became effective on
September 27, 2005, we issued new replacement warrants to
purchase 386,925 shares of US Airways Group common
stock to AFS Cayman Limited. These new warrants replace and
supersede the original warrants issued by America West Holdings
Corporation. This prospectus will be used by the selling
security holders to resell the warrants and the common stock
issuable upon exercise of the warrants.
The aggregate proceeds to the selling security holder from the
sale of the warrants or common stock underlying the warrants
will be the purchase price of the warrants or common stock less
any discounts, fees and commissions. We will not receive any of
the proceeds from the resale of these securities by the selling
security holder. We may, however, receive cash consideration in
connection with the exercise of the warrants for cash.
The selling security holder and its successors may sell the
warrants and the common stock underlying the warrants directly
to purchasers, through underwriters, broker-dealers or agents,
or through any other means described in this prospectus under
“Plan of Distribution” on page 17. Underwriters,
broker-dealers or agents may receive compensation in the form of
discounts, concessions or commissions from the selling security
holder or the purchasers. These discounts, concessions or
commissions may be in excess of those customary in the types of
transactions involved.
The warrants are exercisable for our common stock at any time
prior to January 18, 2012 at an initial exercise price of
$7.27 per share, subject to adjustments for anti-dilution
purposes.
Our common stock is currently listed on the New York Stock
Exchange, or NYSE, under the symbol “LCC.” On
February 8, 2006, the closing sale price of our common
stock was $29.99 per share.
Consider carefully the risk factors beginning on page 6
of this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of the
securities or passed upon the accuracy or adequacy of the
disclosures in the prospectus. Any representation to the
contrary is a criminal offense.
Important Notice About the Information Presented In This
Prospectus
You should rely only on the information provided in this
prospectus, including the information incorporated by reference.
We have not authorized anyone to provide you with different
information. You should not assume that the information in this
prospectus, or any supplement to this prospectus, is accurate at
any date other than the date indicated on the cover page of
these documents.
We have not taken any action to permit a public offering of the
shares of common stock outside the United States or to permit
the possession or distribution of this prospectus outside the
United States. Persons outside the United States who come into
possession of this prospectus must inform themselves about and
observe any restrictions relating to the offering of the shares
of common stock and the distribution of this prospectus outside
of the United States.
This summary highlights selected information from this
prospectus and does not contain all of the information that you
need to consider in making your investment decision. You should
carefully read the entire prospectus, including the risks of
investing discussed under “Risk Factors” beginning on
page 6, the information incorporated by reference,
including our financial statements, and the exhibits to the
registration statement of which this prospectus is a part.
Throughout this prospectus references to “US Airways
Group,” the “Company,”“we,”“us” and “our” refer to US Airways Group,
Inc. following effectiveness of the merger with America West
Holdings, and references to “America West Holdings”
refer to America West Holdings Corporation, unless otherwise
specified or the context otherwise requires.
US Airways Group, Inc., a Delaware corporation, is a holding
company formed in 1982 whose origins trace back to the formation
of All American Aviation in 1937. US Airways Group’s
primary business activity prior to the recent merger with
America West Holdings was the operation of a major network air
carrier through its ownership of the common stock of US Airways,
Inc., Piedmont Airlines, Inc., PSA Airlines, Inc., Material
Services Company, Inc. and Airways Assurance Limited. US
Airways, Inc., along with US Airways Group’s regional
airline subsidiaries and affiliated carriers flying as US
Airways Express, is a hub-and-spoke carrier with a substantial
presence in the Eastern United States and with service to
Canada, the Caribbean, Latin America and Europe.
US Airways, Inc. had approximately 42 million
passengers boarding its planes in 2004 and is the seventh
largest U.S. air carrier based on available seat miles, or
ASMs. As of December 31, 2005, US Airways, Inc. operated
231 jet aircraft and 18 regional jet aircraft and provided
regularly scheduled service at 100 airports in the continental
United States, Canada, the Caribbean, Latin America and Europe.
As of December 31, 2005, the US Airways Express network
served 130 airports in the United States, Canada and the
Bahamas, including approximately 46 airports also served by US
Airways, Inc. During 2004, US Airways Express air carriers had
approximately 15.2 million passengers boarding their planes.
On September 12, 2004, US Airways Group and its domestic
subsidiaries, US Airways, Inc., Piedmont Airlines, Inc., PSA
Airlines, Inc. and Material Services Company, Inc., which
accounted for substantially all of the operations of US Airways
Group, filed voluntary petitions for relief under
Chapter 11 of the United States Bankruptcy Code in the
United States bankruptcy court for the Eastern District of
Virginia, Alexandria Division. On May 19, 2005 US Airways
Group signed a merger agreement with America West Holdings
pursuant to which America West Holdings agreed to merge with a
wholly owned subsidiary of US Airways Group. The merger
agreement was amended by a letter agreement on July 7,2005. On September 27, 2005 the merger became effective and
US Airways Group emerged from bankruptcy.
America West Holdings, a Delaware corporation formed in 1996, is
a holding company that owns all of the stock of America West
Airlines, Inc., a Delaware corporation formed in 1981. America
West Airlines, Inc. accounted for most of America West
Holdings’ revenues and expenses in 2004. Based on 2004
operating revenues and ASMs, America West Airlines, Inc. is the
eighth largest passenger airline and the second largest low-cost
carrier in the United States. Prior to the merger America West
Airlines, Inc. was the largest low-cost carrier operating a
hub-and-spoke network, with large hubs in both Phoenix, Arizona
and Las Vegas, Nevada. As of December 31, 2005, America
West Airlines, Inc. operated a fleet of 142 aircraft with an
average age of 11.0 years and served 64 destinations in
North America, including eight in Mexico, two in Hawaii, four in
Canada and one in Costa Rica. Through regional alliance and code
share arrangements with other airlines, America West Airlines,
Inc. served an additional 49 destinations in North America. In
2004, America West Airlines, Inc. had approximately
21.1 million passengers boarding its planes and generated
revenues of approximately $2.3 billion.
Following the merger, US Airways Group operates under the single
brand name of US Airways through two principal operating
subsidiaries, US Airways, Inc. and America West Airlines, Inc.
We expect to integrate the two operating subsidiaries into one
operation over the first 24 months following the merger. As
a result of the merger, we expect to be the fifth largest
airline operating in the United States as measured by domestic
revenue passenger miles and by ASMs. We expect to have primary
hubs in Charlotte, Philadelphia and Phoenix and secondary
hubs/focus cities in Pittsburgh, Las Vegas, New York,
Washington, D.C. and Boston. US Airways Group is a low-cost
carrier offering scheduled passenger service on approximately
3,600 flights daily to 229 cities in the U.S., Canada, the
Caribbean, Latin America and Europe. The Company’s airline
subsidiaries will operate 360 mainline jets and will be
supported by our regional airline subsidiaries and affiliates
operating as US Airways Express, which will operate
approximately 241 regional jets, of which 80 will be aircraft
with 70 or more seats, and approximately 112 turboprops.
Our principal executive offices are located at 111 West Rio
Salado Parkway, Tempe, Arizona85281. Our telephone number is
(480) 693-0800.
The Restructuring and the Merger
On January 18, 2002, America West Airlines, Inc. closed a
$429 million loan supported by a $380 million
government loan guarantee. Management estimates this loan
triggered over $600 million in concessions and additional
financing (primarily aircraft rent reductions and future
financing commitments), resulting in a restructuring of America
West Airlines, Inc.’s indebtedness and lease commitments
valued at approximately $1 billion. As compensation for
various elements of the restructuring plan, America West
Holdings issued warrants to purchase certain of its then
outstanding shares of common stock to the Air Transportation
Stabilization Board, or ATSB, which was created by act of
Congress, and to AFS Cayman Limited, or AFS.
In connection with the merger of America West Holdings and our
wholly owned subsidiary, which became effective on
September 27, 2005, we issued new warrants to the ATSB and
AFS on September 27, 2005 to purchase up to 7,735,770 and
386,925 shares, respectively, of our common stock at an
exercise price of $7.27 per share that each expire on
January 18, 2012. The new warrants replace and supersede
the original warrants issued to the ATSB and AFS by America West
Holdings. On October 1, 2005, US Airways Group entered into
an agreement with the ATSB to purchase all of its outstanding
warrants for an aggregate purchase price of approximately
$115.8 million. The ATSB warrants purchase closed on
October 3, 2005.
The Offering
In connection with the warrants, AFS has certain registration
rights. This prospectus and the registration statement, of which
this prospectus is a part, are being filed with the SEC to
satisfy our obligations to AFS under the warrants. The
prospectus and the registration statement cover:
•
The resale by AFS and its transferees, donees or successors of
its warrants;
•
The resale by AFS and its transferees, donees or successors of
shares of common stock issuable upon its exercise of its
warrants; and
•
The issuance by us of shares of common stock upon exercise of
the warrants by holders other than AFS.
Investing in our securities involves risks. You should carefully
consider the information under “Risk Factors”
beginning on page 6 and the other information included in
this prospectus before investing in our securities.
The Warrants
The AFS warrants give the holder the option to purchase up to
386,925 shares of our common stock at an exercise price of
$7.27 per share. Both the number of shares for which the
warrants are exercisable and the exercise price are subject to
specified anti-dilution adjustments. The warrants have a term
expiring on January 18, 2012.
We have agreed to use best efforts to list the warrants for
trading on a national securities exchange. However, we can give
no assurance that we will be able to do so. In addition, we can
give no assurance as to the liquidity or development of any
market for the warrants, the ability of a holder to sell the
warrants or any
portion thereof or the price at which a holder would be able to
sell the warrants or any portion thereof. The trading price of
the warrants will depend on the price of our common stock, the
market for similar securities and other factors, including
economic conditions and our financial condition, performance and
prospects.
We will not receive any of the proceeds from the sale of the
warrants. We may, however, receive cash consideration in
connection with the exercise of the warrants for cash. If the
AFS warrants are fully exercised for cash, we would realize
proceeds, before expenses, in the amount of $2,812,945, subject
to any adjustment to the exercise price and number of shares due
to the anti-dilution provisions of the warrants. We are required
to use a portion of the proceeds we receive from the exercise of
the warrants to repay indebtedness under America West Airlines,
Inc.’s loan. However, we cannot be sure that the warrants
will be exercised, in whole or in part.
The Common Stock
This prospectus covers, and the registration statement of which
it is a part registers, 386,925 shares of our common stock
that are issuable upon exercise of the warrants and are being
registered either for resale by AFS or for issuance upon
exercise of the warrants by a holder other than AFS.
The shares issued upon the exercise of the warrants are subject
to specified anti-dilution provisions set forth in the warrants.
As of February 8, 2006, we had approximately
82,085,219 shares of common stock outstanding. Holders of
common stock are entitled to one vote per share on all matters
submitted to a vote of stockholders.
Our common stock is listed on the NYSE under the symbol
“LCC.”
Certain of the statements contained herein or incorporated by
reference herein should be considered “forward-looking
statements” within the meaning of the Private Securities
Litigation Reform Act of 1995. These forward-looking statements
may be identified by words such as “may,”“will,”“expect,”“intend,”“anticipate,”“believe,”“estimate,”“plan,”“project,”“could,”“should,” and “continue”
and similar terms used in connection with statements regarding
the Company’s outlook, expected fuel costs, the revenue
environment, and the Company’s expected 2005 financial
performance. These statements include, but are not limited to,
statements about the benefits of the business combination
transaction involving America West Holdings and US Airways
Group, including future financial and operating results, the
Company’s plans, objectives, expectations and intentions
and other statements that are not historical facts. These
statements are based upon the current beliefs and expectations
of management and are subject to significant risks and
uncertainties that could cause the Company’s actual results
and financial position to differ materially from these
statements. These risks and uncertainties include, but are not
limited to, those described above under the caption “Risk
Factors” and the following:
•
the ability of the Company to achieve the synergies anticipated
as a result of the merger and to achieve such synergies in a
timely manner;
•
the ability of the Company to obtain and maintain any necessary
financing for operations and other purposes;
•
the ability of the Company to maintain adequate liquidity;
•
the impact of historically high fuel prices;
•
the ability to integrate the management and operations of the
Company and America West Holdings;
•
the impact of global instability including the continuing impact
of the continued military presence in Iraq and Afghanistan and
the terrorist attacks of September 11, 2001 and the
potential impact of future hostilities, terrorist attacks,
infectious disease outbreaks or other global events;
•
changes in prevailing interest rates;
•
the ability to attract and retain qualified personnel;
•
the ability of the Company to attract and retain customers;
•
the cyclical nature of the airline industry;
•
competitive practices in the industry, including significant
fare restructuring activities, capacity reductions and in court
or out of court restructuring by major airlines;
•
economic conditions;
•
reliance on automated systems and the impact of any failure of
these systems;
•
labor costs;
•
security-related and insurance costs;
•
weather conditions;
•
government legislation and regulation;
•
relations with unionized employees generally and the impact and
outcome of the labor negotiations;
•
the ability of the Company to obtain and maintain normal terms
with vendors and service providers;
•
the Company’s ability to maintain contracts that are
critical to its operations;
the ability of the Company to operate pursuant to the terms of
its financing facilities (particularly the financial covenants);
and
•
other risks and uncertainties listed from time to time in the
Company’s and America West Holdings’ reports to the
SEC.
All of the forward-looking statements are qualified in their
entirety by reference to the factors discussed under the caption
“Risk Factors.”
There may be other factors not identified above of which the
Company is not currently aware that may affect matters discussed
in the forward-looking statements, and may also cause actual
results to differ materially from those discussed. The Company
assumes no obligation to publicly update any forward-looking
statement to reflect actual results, changes in assumptions or
changes in other factors affecting these estimates other than as
required by law.
You should carefully read this prospectus and the documents
incorporated by reference in their entirety. They contain
information that you should consider when making your investment
decision.
Risk Factors Relating to US Airways Group and Industry
Related Risks
We caution the reader that these risk factors may not be
exhaustive. We operate in a continually changing business
environment and new risk factors emerge from time to time.
Management cannot predict such new risk factors, nor can it
assess the impact, if any, of such new risk factors on our
business or the extent to which any factor or combination of
factors may impact our business.
Our business is dependent on the price and availability of
aircraft fuel. Continued periods of historically high fuel
costs, significant disruptions in the supply of aircraft fuel or
significant further increases in fuel costs could have a
significant negative impact on our operating results.
Our operating results are significantly impacted by changes in
the availability or price of aircraft fuel. Fuel prices
increased substantially in 2004 compared with 2003 and have
continued to increase in 2005. Due to the competitive nature of
the airline industry, we generally have not been able to
increase our fares when fuel prices have risen in the past and
we may not be able to do so in the future. Although we are
currently able to obtain adequate supplies of aircraft fuel, it
is impossible to predict the future availability or price of
aircraft fuel. In addition, from time to time we enter into
hedging arrangements to protect against rising fuel costs. Our
ability to hedge in the future, however, may be limited.
Our high level of fixed obligations limits our ability to
fund general corporate requirements and obtain additional
financing, limits our flexibility in responding to competitive
developments and increases our vulnerability to adverse economic
and industry conditions.
We have a significant amount of fixed obligations, including
debt, aircraft leases and financings, aircraft purchase
commitments, leases of airport and other facilities and other
cash obligations. We also have guaranteed costs associated with
our regional alliance with Mesa Airlines, Inc. and commitments
to purchase aircraft from Airbus. As a result of the substantial
fixed costs associated with these obligations:
•
A decrease in revenues results in a disproportionately greater
percentage decrease in earnings.
•
We may not have sufficient liquidity to fund all of these fixed
costs if our revenues decline or costs increase.
•
We may have to use our working capital to fund these fixed costs
instead of funding general corporate requirements, including
capital expenditures.
•
We may not have sufficient liquidity to respond to competitive
developments and adverse economic conditions.
Our obligations also impair our ability to obtain additional
financing, if needed, and our flexibility in the conduct of our
business. Our existing indebtedness is secured by substantially
all of our assets, leaving us with limited collateral for
additional financing. Moreover, the terms of our secured loans
previously guaranteed by the Air Transportation Stabilization
Board restrict our ability to incur additional indebtedness or
issue equity unless we use the proceeds of those transactions to
repay the loan, require prepayment if our employee compensation
costs exceed a certain threshold, require us to maintain a
minimum cash balance of $100 million, and restrict our
ability to take certain other actions, including mergers and
acquisitions, investments and asset sales.
Our ability to pay the fixed costs associated with our
contractual obligations depends on our operating performance and
cash flow, which in turn depend on general economic and
political conditions. A failure to pay our fixed costs or breach
of the contractual obligations could result in a variety of
adverse consequences, including the acceleration of our
indebtedness, the withholding of credit card proceeds by the
credit card servicers and the exercise of remedies by our
creditors and lessors. In such a situation, it is unlikely that
we would be able to fulfill our obligations under or repay the
accelerated indebtedness, make required lease payments or
otherwise cover our fixed costs.
We may not perform as well financially as we expect following
the merger.
In deciding to enter into the merger agreement, US Airways Group
and America West Holdings considered the benefits of operating
as a combined company, including, among others: an enhanced
ability to compete in the airline industry and the fact that the
proprietary brands of the combined company would permit
US Airways Group to further differentiate itself from other
airline companies. The success of the merger will depend, in
part, on our ability to realize the anticipated revenue
opportunities and cost savings from combining the businesses of
US Airways Group and America West Holdings. We have estimated
that the combined companies expect to realize approximately
$600 million in incremental operating cost and revenue
synergies. We cannot assure you, however, that these synergies
will be realized. To realize the anticipated benefits from the
merger, we must successfully combine the businesses of US
Airways Group and America West Holdings in a manner that permits
those costs savings and other synergies to be realized in a
timely fashion. In addition, we must achieve these savings
without adversely affecting revenues or suffering a business
interruption. If we are not able to successfully achieve these
objectives, the anticipated benefits of the merger may not be
realized fully or at all or may take longer to realize than
expected.
The integration of US Airways Group and America West Holdings
following the merger will present significant challenges.
US Airways Group and America West Holdings will face significant
challenges in consolidating functions, integrating their
organizations, procedures and operations in a timely and
efficient manner and retaining key US Airways Group and America
West Holdings personnel. The integration of US Airways Group and
America West Holdings will be costly, complex and time
consuming, and the managements of US Airways Group and America
West Holdings will have to devote substantial effort to such
integration that could otherwise be spent on operational matters
or other strategic opportunities. We expect that the merger will
result in certain synergies, business opportunities and growth
prospects. We, however, may never realize these expected
synergies, business opportunities and growth prospects. US
Airways Group may experience increased competition that limits
its ability to expand its business. We may not be able to
capitalize on expected business opportunities, including
retaining current customers. In addition, assumptions underlying
estimates of expected cost savings and expected revenue
synergies may be inaccurate, or general industry and business
conditions may deteriorate. Furthermore, integrating operations
will require significant efforts and expenses. Our management
may have its attention diverted from ongoing operations while
trying to integrate.
US Airways Group continues to experience significant
operating losses.
Despite significant labor cost reductions and other cost savings
achieved in the prior bankruptcy, US Airways Group has continued
to experience significant operating losses through 2005. Since
early 2001, the U.S. airline industry’s revenue
performance has fallen short of what would have been expected
based on historical growth trends. This shortfall has been
caused by a number of factors, including rising fuel costs, as
discussed above, and the factors discussed below.
The rapid growth of low-cost carriers has had a profound impact
on industry revenues. Using the advantage of low unit costs,
these carriers offer lower fares, particularly those targeted at
business passengers, in order to shift demand from larger,
more-established airlines. As a result of growth, these low-cost
carriers now transport nearly 30% of all domestic
U.S. passengers compared to less than 10% a decade ago.
They now compete for, and thus influence industry pricing on,
approximately 81% of all domestic U.S. passenger ticket
sales compared to less than 20% a decade ago. As a result of
their better financial performance they have access to capital
to fund fleet growth. Low-cost carriers are expected to continue
to increase their market share through pricing and growth.
The advent of Internet travel websites has lowered the cost to
airlines of selling tickets. However, it has also had a large
negative impact on airline revenues because travel consumers now
have access to nearly perfect pricing information and, as a
result, have become more efficient at finding lower fare
alternatives.
Union disputes, employee strikes and other labor-related
disruptions may adversely affect our operations.
Our business plan includes assumptions about labor costs going
forward. Currently, the labor costs of both America West
Holdings and US Airways Group are very competitive and very
similar; however, we cannot assure you that labor costs going
forward will remain competitive, either because our agreements
may become amendable or because competitors may significantly
reduce their labor costs. Approximately 78% of the employees
within US Airways Group are represented for collective
bargaining purposes by labor unions. In the United States, these
employees are organized into nine labor groups represented by
five different unions at US Airways, Inc., seven labor groups
represented by four different unions at America West Airlines,
Inc., four labor groups represented by four different unions at
Piedmont Airlines, and four labor groups represented by four
different unions at PSA Airlines. There are additional unionized
groups of US Airways, Inc. employees abroad.
Relations between air carriers and labor unions in the United
States are governed by the Railway Labor Act, or the RLA. Under
the RLA, collective bargaining agreements generally contain
“amendable dates” rather than expiration dates, and
the RLA requires that a carrier maintain the existing terms and
conditions of employment following the amendable date through a
multi-stage and usually lengthy series of bargaining processes
overseen by the National Mediation Board. This process continues
until either the parties have reached agreement on a new
collective bargaining agreement, or the parties have been
released to “self-help” by the National Mediation
Board. Although in most circumstances the RLA prohibits strikes,
after release by the National Mediation Board carriers and
unions are free to engage in self-help measures such as strikes
and lock-outs. None of the US Airways, Inc. labor agreements
becomes amendable until December 31, 2009. Of the America
West Airlines, Inc. labor agreements, three are currently
amendable, a fourth becomes amendable in 2006 and negotiations
are proceeding with a fifth group for an initial collective
bargaining agreement.
There is the potential for litigation to arise in the context of
the labor integration process. Unions may bring court actions or
grievance arbitrations, and may seek to compel airlines to
engage in the bargaining processes where the airline believes it
has no such obligation. There is a risk that one or more unions
may pursue such judicial or arbitral avenues in the context of
the merger, and, if successful, could create additional costs
that we did not anticipate. There is also a risk that
disgruntled employees, either with or without union involvement,
could engage in illegal slow-downs, work stoppages, partial work
stoppages, sick-outs or other action short of a full strike that
could individually or collectively harm the operation of the
airline and impair its financial performance.
Fluctuations in interest rates could adversely affect our
liquidity, operating expenses and results.
A substantial portion of our indebtedness bears interest at
fluctuating interest rates. These are primarily based on the
London interbank offered rate for deposits of U.S. dollars,
or LIBOR. LIBOR tends to fluctuate based on general economic
conditions, general interest rates, federal reserve rates and
the supply of and demand for credit in the London interbank
market. We have not hedged our interest rate exposure and,
accordingly, our interest expense for any particular period may
fluctuate based on LIBOR and other variable interest rates. To
the extent these interest rates increase, our interest expense
will increase, in which event, we may have difficulties making
interest payments and funding our other fixed costs and our
available cash flow for general corporate requirements may be
adversely affected.
We rely heavily on automated systems to operate our business
and any failure of these systems, or the failure to integrate
them successfully following the merger, could harm our
business.
We depend on automated systems to operate our business,
including our computerized airline reservation systems, our
flight operations systems, our telecommunication systems and our
websites. Our website and reservation systems must be able to
accommodate a high volume of traffic and deliver important
flight information. Substantial or repeated website,
reservations systems or telecommunication systems failures could
reduce the attractiveness of our services and could cause our
customers to purchase tickets from
another airline. Furthermore, we must integrate the automated
systems of America West Holdings and US Airways Group. Any
disruption in these systems could result in the loss of
important data, increase our expenses and generally harm our
business.
If we incur problems with any of our third party service
providers, our operations could be adversely affected by a
resulting decline in revenue or negative public perception about
our services.
Our reliance upon others to provide essential services on behalf
of our operations may result in the relative inability to
control the efficiency and timeliness of contract services. We
have entered into agreements with contractors to provide various
facilities and services required for our operations, including
aircraft maintenance, ground facilities and baggage handling. It
is likely that similar agreements will be entered into in any
new markets we decide to serve. All of these agreements are
subject to termination after notice. Any material problems with
the efficiency and timeliness of contract services could have a
material adverse effect on our business, financial condition and
results of operations.
The travel industry, materially adversely affected by the
September 11, 2001 terrorist attacks, continues to face
on-going security concerns and cost burdens associated with
security.
The attacks of September 11, 2001 materially impacted and
continue to impact air travel. In November 2001, the President
signed into law the Aviation and Transportation Security Act, or
the Aviation Security Act. This law federalized substantially
all aspects of civil aviation security, creating a new
Transportation Security Administration, or TSA. Under the
Aviation Security Act, substantially all security screeners at
airports are now federal employees and significant other
elements of airline and airport security are now overseen and
performed by federal employees, including federal security
managers, federal law enforcement officers, federal air marshals
and federal security screeners. Among other matters, the law
mandates improved flight deck security, deployment of federal
air marshals onboard flights, improved airport perimeter access
security, airline crew security training, enhanced security
screening of passengers, baggage, cargo, mail, employees and
vendors, enhanced training and qualifications of security
screening personnel, additional provision of passenger data to
U.S. Customs and enhanced background checks. These
increased security procedures introduced at airports since the
attacks have increased costs to airlines. We would also be
materially impacted in the event of further terrorist attacks or
perceived terrorist threats.
Increases in insurance costs or reductions in insurance
coverage may adversely impact our operations and financial
results.
The terrorist attacks of September 11, 2001 led to a
significant increase in insurance premiums and a decrease in the
insurance coverage available to commercial airline carriers.
Accordingly, our insurance costs increased significantly and our
ability to continue to obtain insurance even at current prices
remains uncertain. In addition, we have obtained third party war
risk (terrorism) insurance through a special program
administered by the U.S. Federal Aviation Administration,
or FAA, resulting in lower premiums than if we had obtained this
insurance in the commercial insurance market. The program has
been extended, with the same conditions and premiums until
August 31, 2006. If the federal insurance program terminates, we
would likely face a material increase in the cost of war risk
insurance. Because of competitive pressures in our industry, our
ability to pass additional insurance costs to passengers is
limited. As a result, further increases in insurance costs or
reductions in available insurance coverage could harm our
earnings.
Changes in government regulation could increase our operating
costs and limit our ability to conduct our business.
Airlines are subject to extensive regulatory requirements. In
the last several years, Congress has passed laws and the FAA has
issued a number of maintenance directives and other regulations.
These requirements impose substantial costs on airlines.
Additional laws, regulations, taxes and airport rates and
charges have been proposed from time to time that could
significantly increase the cost of airline operations or reduce
revenues. The ability of U.S. carriers to operate
international routes is subject to change because the applicable
arrangements between the U.S. and foreign governments may be
amended from time to time, or because
appropriate slots or facilities may not be available. We cannot
assure you that laws or regulations enacted in the future will
not adversely affect our operating costs.
The use of America West Holdings’ and US Airways
Group’s respective pre-merger NOLs and certain other tax
attributes is limited following the merger.
Although US Airways Group today is the same legal entity as US
Airways Group prior to the merger and continues as the publicly
traded parent entity, each of America West Holdings and US
Airways Group underwent an “ownership change,” as
defined in Internal Revenue Code Section 382, in connection
with the merger. When such an ownership change occurs,
Section 382 limits the companies’ future ability to
utilize any net operating losses, or NOLs, generated before the
ownership change and certain subsequently recognized
“built-in” losses and deductions, if any, existing as
of the date of the ownership change. The companies’ ability
to utilize new NOLs arising after the ownership change would not
be affected. An ownership change generally occurs if certain
persons or groups increase their aggregate ownership percentage
in a corporation’s stock by more than 50 percentage
points in the shorter of any three-year period or the period
since the last ownership change.
The airline industry is intensely competitive.
Our competitors include other major domestic airlines as well as
foreign, regional and new entrant airlines, some of which have
more financial resources or lower cost structures than ours, and
other forms of transportation, including rail and private
automobiles. In most of our markets we compete with at least one
other low-cost air carrier. Our revenues are sensitive to
numerous factors, and the actions of other carriers in the areas
of pricing, scheduling and promotions can have a substantial
adverse impact on overall industry revenues. These factors may
become even more significant in periods when the industry
experiences large losses, as airlines under financial stress, or
in bankruptcy, may institute pricing structures intended to
achieve near-term survival rather than long-term viability.
Certain US Airways Group liabilities were not fully
extinguished as a result of confirmation of the plan of
reorganization.
While a significant amount of US Airways Group’s
prepetition liabilities were discharged as a result of the
bankruptcy proceedings, a large number of US Airways Group
obligations remain in effect following the merger. Various
agreements and liabilities remain in place, including secured
financings, aircraft agreements, certain environmental
liabilities, certain grievances with our labor unions, leases
and other contracts, as well as allowed administrative claims,
that will still subject us to substantial obligations and
liabilities.
Interruptions or disruptions in service at one of our hub
airports could have a material adverse impact on our
operations.
We expect that we will operate primarily through primary hubs in
Charlotte, Philadelphia and Phoenix and secondary hubs/focus
cities in Pittsburgh, Las Vegas, New York, Washington, D.C.
and Boston. A majority of our flights either originate or fly
into one of these hubs. A significant interruption or disruption
in service at one of our hubs could result in the cancellation
or delay of a significant portion of our flights and, as a
result, could have a severe impact on our business, operations
and financial performance.
We are at risk of losses and adverse publicity stemming from
any accident involving any of our aircraft.
If one of our aircraft were to be involved in an accident, we
could be exposed to significant tort liability. The insurance we
carry to cover damages arising from any future accidents may be
inadequate. In the event that US Airways Group’s insurance
is not adequate, we may be forced to bear substantial losses
from an accident. In addition, any accident involving an
aircraft that US Airways Group operates could create a public
perception that our aircraft are not safe or reliable, which
could harm our reputation, result in air travelers being
reluctant to fly on US Airways Group’s aircraft and
adversely impact our financial condition and operations.
Our business is subject to weather factors and seasonal
variations in airline travel, which cause our results to
fluctuate.
Our operations are vulnerable to severe weather conditions in
parts of our network that could disrupt service, create air
traffic control problems, decrease revenue, and increase costs,
such as during hurricane season in the Caribbean and Southeast
United States, and snow and severe winters in the Northeast
United States. In addition, the air travel business historically
fluctuates on a seasonal basis. Due to the greater demand for
air and leisure travel during the summer months, revenues in the
airline industry in the second and third quarters of the year
tend to be greater than revenues in the first and fourth
quarters of the year. The results of operations of the combined
company will likely reflect weather factors and seasonality, and
therefore quarterly results are not necessarily indicative of
those for an entire year and the prior results of America West
Holdings and US Airways Group are not necessarily indicative of
the combined company’s future results.
Employee benefit plans represent significant continuing costs
to the sponsoring employers.
US Airways Group and its subsidiaries sponsor employee benefit
plans and arrangements that provide retirement, medical,
disability, and other benefits to our employees and
participating retirees. Many of the benefits provided under
these plans are mandated under various collective bargaining
agreements, while others are provided on a voluntary basis as a
means to recruit and retain valuable employees. While US Airways
Group recently terminated certain defined benefit pension plan
and related retiree benefits, the benefit obligations associated
with the remaining employee benefit plans and related costs
represent a substantial continuing cost to the sponsors. In
addition, many of these employee benefit plans are subject to
federal laws such as the Employee Retirement Income Security Act
of 1974 and the Internal Revenue Code, and must be maintained
accordingly. Continued compliance with these employee benefit
plans’ rules is necessary, as even unintentional failures
to comply can result in significant fines and penalties.
Employee benefit plans in general also are increasingly the
subject of protracted litigation, especially following
significant plan design changes. Certain of the plans sponsored
by the subsidiaries of US Airways Group have undergone several
changes in connection with the Chapter 11 cases.
Risks Related to Our Common Stock
Our common stock has limited trading history and its market
price may be volatile.
Because our common stock began trading on the NYSE on
September 27, 2005, there is only a limited trading history
for our common stock. The market price of our common stock may
fluctuate substantially due to a variety of factors, many of
which are beyond our control, including:
•
our operating results failing to meet the expectations of
securities analysts or investors;
•
changes in financial estimates or recommendations by securities
analysts;
•
material announcements by us or our competitors;
•
movements in fuel prices;
•
new regulatory pronouncements and changes in regulatory
guidelines;
•
general and industry-specific economic conditions;
•
public sales of a substantial number of shares of our common
stock following this offering; and
•
general market conditions.
Substantial sales of our common stock after the merger could
cause our stock price to fall.
Upon completion of all of the merger related equity
transactions, we had outstanding approximately 77.1 million
shares of common stock. Each of the new equity investors entered
into a stockholders agreement that prohibits the equity
investors’ sale of our common stock for a period of six
months following
September 27, 2005. The stockholders agreement generally
provides that the equity investors will not offer, sell,
contract to sell or grant any option to purchase or otherwise
dispose of our common stock or any securities exercisable for or
convertible into our common stock owned by them, subject to
limited exceptions. Approximately 44.0 million shares, or
57% of the outstanding shares of our common stock, owned by the
equity investors will be eligible for resale after the
expiration of the
lock-up period. In
addition, under the terms of a Pension Benefit Guarantee
Corporation, or PBGC, settlement under US Airways Group’s
plan of reorganization, the approximately 4.9 million
shares of common stock issued to the PBGC may not be sold,
assigned, transferred or pledged prior to the end of five months
after September 27, 2005. Sales of these shares into the
market after the expiration of the respective
lock-up periods could
cause the market price of our common stock to drop
significantly, even if our business is doing well.
Conversion of our convertible notes will dilute the ownership
interest of existing shareholders and could adversely affect the
market price of our common stock.
The conversion of some or all of the notes, including US Airways
Group’s 7% Senior Convertible Notes due 2020, America West
Holdings Corporation’s 7.5% Convertible Senior Notes
due 2009 or America West Airlines, Inc.’s 7.25% Senior
Exchangeable Notes due 2023 will dilute the ownership interests
of existing shareholders. Beginning January 18, 2005, the
7.5% notes became convertible into shares of our common
stock, at the option of the holder. Any sales in the public
market of the common stock issuable upon such conversion could
adversely affect prevailing market prices of our common stock.
In addition, the existence of the notes may encourage short
selling by market participants because the conversion of the
notes could depress the price of our common stock.
A small number of shareholders beneficially own a substantial
amount of our common stock.
A significant portion of US Airways Group’s common stock is
beneficially owned by a relatively small number of equity
investors. As a result, until these stockholders sell a
substantial portion of their shares, they will have a greater
percentage vote in matters that may be presented for a vote to
stockholders than most other stockholders. This may make it more
difficult for other stockholders to influence votes on matters
that may come before stockholders of US Airways Group.
Certain provisions of the amended and restated certificate of
incorporation and amended and restated bylaws of US Airways
Group will make it difficult for stockholders to change the
composition of our board of directors and may discourage
takeover attempts that some of our stockholders may consider
beneficial.
Certain provisions of the amended and restated certificate of
incorporation and amended and restated bylaws of US Airways
Group may have the effect of delaying or preventing changes in
control if our board of directors determines that such changes
in control are not in the best interests of US Airways Group and
its stockholders. These provisions include, among other things,
the following:
•
a classified board of directors with three-year staggered terms;
•
advance notice procedures for stockholder proposals to be
considered at stockholders’ meetings;
•
the ability of US Airways Group’s board of directors to
fill vacancies on the board;
•
a prohibition against stockholders taking action by written
consent;
•
a prohibition against stockholders calling special meetings of
stockholders;
•
requiring the approval of holders of at least 80% of the voting
power of the shares entitled to vote in the election of
directors for the stockholders to amend the second amended and
restated bylaws; and
•
super majority voting requirements to modify or amend specified
provisions of US Airways Group’s amended and restated
certificate of incorporation.
These provisions are not intended to prevent a takeover, but are
intended to protect and maximize the value of US Airways
Group’s stockholders’ interests. While these
provisions have the effect of encouraging persons seeking to
acquire control of our company to negotiate with our board of
directors, they could enable our board of directors to prevent a
transaction that some, or a majority, of our stockholders might
believe to be in their best interests and, in that case, may
prevent or discourage attempts to remove and replace incumbent
directors. In addition, US Airways Group is subject to the
provisions of Section 203 of the Delaware General
Corporation Law, which prohibits business combinations with
interested stockholders. Interested stockholders do not include
stockholders whose acquisition of US Airways Group’s
securities is pre-approved by the board of directors under
Section 203.
Our charter documents include provisions limiting voting and
ownership by foreign owners.
Our amended and restated certificate of incorporation provides
that shares of capital stock may not be voted by or at the
direction of persons who are not citizens of the United States
if the number of such shares would exceed 24.9% of the voting
stock of our company. In addition, any attempt to transfer
equity securities to a
non-U.S. person in
excess of 49.9% of our outstanding equity securities will be
void and of no effect.
Risks Related to the Warrants
There may be no active trading market for the warrants.
Before the offering, there has been no established trading
market for the warrants. Although we have agreed to use best
efforts to list the warrants on a national securities exchange,
we cannot assure you that we will be able to list the warrants
on a national securities exchange. Moreover, we cannot assure
you as to the development or liquidity of any market for the
warrants, the ability of the holders of the warrants to sell the
warrants or any portion thereof or the price at which holders
would be able to sell the warrants or any portion thereof. The
trading price of the warrants will depend on the price of our
common stock, the market for similar securities and other
factors, including economic conditions and our financial
condition, performance and prospects.
Exercise of the warrants will dilute the ownership interests
of existing stockholders.
The exercise of the warrants will dilute the ownership interests
of existing stockholders and any sales in the public market of
the common stock issuable upon such exercise could adversely
affect prevailing market prices of our common stock. In
addition, the existence of the warrants may encourage short
selling by market participants because exercise of the warrants
could depress the price of our common stock.
You should consider the United States federal income tax
consequences of owning the warrants and our common stock.
You are urged to consult your tax advisors with respect to the
United States federal income tax consequences resulting from an
exercise of the warrants, as well as the possibility of taxable
income resulting from certain changes in the conversion rate or
failure to make a change in the conversion rate. A discussion of
certain United States federal income tax consequences of
ownership of the warrants and common stock received upon an
exercise of a warrant is contained under the heading
“Material United States Federal Income Tax
Considerations.”
We will not receive any of the proceeds from the sale of the
warrants. We may, however, receive cash consideration in
connection with the exercise of the warrants for cash. If the
AFS warrants are fully exercised for cash, we would realize
proceeds, before expenses, in the amount of $2,812,945, subject
to any adjustment to the exercise price and number of shares due
to the anti-dilution provisions of the warrants. We are required
to use a portion of the proceeds we receive from the exercise of
the warrants to repay indebtedness under America West Airlines,
Inc.’s loan. However, we cannot be sure that the warrants
will be exercised, in whole or in part.
DETERMINATION OF EXERCISE PRICE
The exercise price of the original warrants issued to AFS by
America West Holdings in January 2002 was $3.00, based on an
established trading market for the common stock of America West
Holdings. In the merger between America West Holdings and our
wholly owned subsidiary, America West Holdings class B
common stock was converted to US Airways Group common stock at
an exchange ratio of 0.4125. In accordance with the terms of the
original warrants, the exercise price of $7.27 for the warrants
we issued to AFS on September 27, 2005 was determined using
the same exchange ratio of 0.4125.
On January 18, 2002, America West Airlines, Inc. closed a
$429 million loan supported by a $380 million
government loan guarantee. This loan triggered over
$600 million in concessions and additional financing
(primarily aircraft rent reductions and future financing
commitments), resulting in a restructuring of America West
Airlines, Inc.’s indebtedness and lease commitments. As
compensation for various elements of the restructuring plan,
America West Holdings issued warrants to purchase certain of its
then outstanding shares of common stock to AFS. In connection
with the merger of America West Holdings and our wholly owned
subsidiary, which became effective on September 27, 2005,
we issued new replacement warrants to AFS on September 27,2005 to purchase up to 386,925 shares of our common stock
at an exercise price of $7.27 per share and which expires
on January 18, 2012. The new warrants replace and supersede
the original warrants issued to AFS by America West Holdings.
When we refer to “selling security holder” in this
prospectus, we mean AFS as well as AFS’s transferees,
pledgees, donees, assignees, partnership distributees or
successors.
In connection with the issuance of the warrants, we agreed to
register for resale by the selling security holder:
•
the warrants; and
•
shares of common stock issuable upon the exercise of the
warrants.
The selling security holder may, from time to time, offer and
sell the warrants or the common stock underlying the warrants
pursuant to this prospectus. Our registration of the warrants,
or the common stock underlying the warrants, does not
necessarily mean that the selling security holders will sell all
or any of these securities.
The following table sets forth certain information as of
February 8, 2006 concerning the following securities that
may from time to time be offered for resale by the selling
security holders:
•
the warrants; and
•
the number of shares of common stock issuable upon exercise of
the warrants.
The number of exercise shares shown in the table below assumes
that the warrants held by the selling security holders are fully
exercised at the stated exercise price of $7.27 per share.
The exercise price and the number of shares issuable pursuant to
the terms of the warrants are subject to adjustment pursuant to
specified anti-dilution provisions set forth in the warrants.
Shares of
Shares of Common
Common Stock
Stock Beneficially
Beneficially
Owned Upon
Warrants
Owned Before
Completion of the
Beneficially Owned
Exercise Shares
Completion of
Offering
Name (1)
and Offered (2)
Offered (2)(3)
the Offering (4)
(number/percentage)
AFS Cayman Limited (5)
386,925
386,925
0
0
(1)
Information concerning any change to the selling security
holders will be set forth in prospectus supplements or
post-effective amendments to the registration statement from
time to time, if required.
(2)
Our registration of these securities does not necessarily mean
that the selling security holders will sell any or all of the
securities.
(3)
Figures in this column assume that the selling security holder
will fully exercise the warrants held by it.
(4)
Figures in this column do not include the shares of common stock
issuable upon exercise of the warrants listed in column 3 to the
left.
(5)
AFS Cayman Limited is affiliated with Airbus S.A.S., or Airbus.
See “— Relationship of AFS with Us.”
Relationship of AFS with Us
AFS is affiliated with Airbus S.A.S., or Airbus. US Airways
Group, US Airways, Inc. and America West Airlines, Inc. entered
into a Memorandum of Understanding with AVSA S.A.R.L., an
affiliate of Airbus, in connection with the merger of America
West Holdings and our wholly owned subsidiary, which we refer to
as the Airbus MOU. As of December 31, 2004, US Airways
Group had 19 A320-family aircraft on firm order with Airbus
scheduled for delivery in the years 2008 through 2010. US
Airways Group also had ten
A330-200 aircraft on firm order with Airbus scheduled for
delivery in the years 2008 and 2009. In addition, America West
Airlines had 20 Airbus A320 family aircraft (twelve
A320s and eight A319s) on firm order for delivery in 2005
through 2007. In accordance with the Airbus MOU, on
September 27, 2005:
•
we entered into an Airbus A350 Purchase Agreement with AVSA,
S.A.R.L. This agreement provides for the delivery of 20 A350
aircraft during the period 2011 through 2014. The agreement
contains terms and conditions with respect to aircraft price,
escalation, payment terms and pre-delivery payments, inspection
and certification, technical acceptance, excusable and
inexcusable delays, warranties and service life policy, patent
and copyright indemnity, technical data and training aids,
training, supplier product support, indemnities and insurance,
assignments and transfers, and termination events. AVSA,
S.A.R.L. also agreed to provide backstop financing with respect
to a substantial number of these A350 aircraft.
•
we entered into an amendment to the A319/ A320/ A321 Purchase
Agreement dated as of October 31, 1997 among US Airways
Group and AVSA, S.A.R.L. The amendment provides for the
rescheduling of 19 firm order A320 family aircraft for delivery
during the period 2009 and 2010. The amendment also modifies
other provisions of the Purchase Agreement relating to the
deletion of certain aircraft cancellation rights and the
rescheduling of aircraft.
•
we entered into an amendment to the A330/ A340 Purchase
Agreement dated as of November 24, 1998 among US Airways
Group and AVSA, S.A.R.L. The amendment provides for the
rescheduling of ten firm order A330-200 aircraft for delivery
during the period 2009 and 2010 and allows for cancellation in
the event that US Airways takes certain deliveries under the
A350 Purchase Agreement described above. Other provisions of the
A330/ A340 Purchase Agreement which have been modified by the
amendment relate to the application of existing pre-delivery
payments, adjustments to various cancellation rights and the
cancellation of the right for additional A330 aircraft.
•
America West Airlines, Inc. entered into an amendment to the
Airbus A320/ A319 Purchase Agreement dated as of
September 12, 1997 between America West Airlines, Inc. and
AVSA, S.A.R.L., providing for the rescheduling of 11 firm order
A320 family aircraft for delivery during 2009 and setting forth
provisions for restructuring fees and adjustments to escalation
provisions and added purchase rights for aircraft.
On September 27, 2005, US Airways, Inc. and America West
Airlines, Inc. entered in to two loan agreements, which together
provide a $250 million line of credit, with Airbus
Financial Services, as Initial Lender and Loan Agent, Wells
Fargo Bank Northwest, National Association, as Collateral Agent,
and US Airways Group, as guarantor, with commitments in
initial aggregate amounts of up to $161 million and up to
$89 million (the “Airbus Loans”), and on such
date $175 million of the Airbus Loans was drawn. Airbus
Financial Services is affiliated with Airbus and AFS. The
remaining portion of the Airbus Loans is expected to be
available by the end of 2006. Amounts drawn upon the Airbus
Loans are drawn first upon the $161 million Airbus Loan
until it has been drawn in its full amount, in which event the
remaining portion of the $250 million total commitment is
drawn under the $89 million Airbus Loan. The outstanding
principal amount of the $89 million Airbus Loan will be
forgiven in writing December 31, 2010, or an earlier date,
if on that date the outstanding principal amount of, accrued
interest on, and all other amounts due under the
$161 million Airbus Loan have been paid in full.
The Airbus Loans are secured by: a lien on spare parts and
certain engines of America West Airlines, Inc., which lien
has second priority upon such spare parts and engines behind
America West Airlines, Inc.’s existing spare parts and
engine loan agreements with General Electric Capital
Corporation; a lien on five Airbus A321 aircraft previously
financed by an affiliate of Airbus Financial Services; and
predelivery payments and other deposits held in respect of
certain purchase agreements with America West Airlines, Inc., US
Airways, Inc. or US Airways Group. The Airbus Loans are joint
and several obligations of US Airways, Inc. and America West
Airlines, Inc., guaranteed by US Airways Group.
Under the terms of the Airbus Loans, a majority of the lenders
thereunder generally have the right to direct the loan agent to
accelerate the loans and exercise remedies in the event of a
default under such
agreements, including a breach of any of the covenants.
Similarly, the consent of a majority of the lenders is required
for any waiver of the failure by US Airways, Inc. and America
West Airlines, Inc. to comply with the covenants under, and for
any amendments to, the Airbus Loan agreements. Airbus Financial
Services is the sole initial lender under the Airbus Loans. In
addition, under the terms of the Airbus Loans, US Airways, Inc.
and America West Airlines, Inc. are required to provide Airbus
Financial Services with financial and operating information and
reports, notice of certain events, and access to their books and
records.
PLAN OF DISTRIBUTION
The selling security holder and its successors, which includes
their pledgees, donees, partnership distributees, other
transferees receiving the warrants or common stock from the
selling security holder in non-sale transfers, may sell the
warrants and the common stock underlying the warrants directly
to purchasers or through underwriters, broker-dealers or agents.
Underwriters, broker-dealers or agents may receive compensation
in the form of discounts, concessions or commissions from the
selling security holder or the purchasers. These discounts,
concessions or commissions may be in excess of those customary
in the types of transactions involved.
The warrants and the common stock underlying the warrants may be
sold in one or more transactions:
•
at fixed prices;
•
at prevailing market prices at the time of sale;
•
at varying prices determined at the time of sale; or
•
at negotiated prices.
These sales may be effected in transactions, which may involve
block transactions, in the following manner:
•
on any national securities exchange or quotation service on
which the warrants or the common stock may be listed or quoted
at the time of sale;
•
in the
over-the-counter-market;
•
in transactions other than on these exchanges or services or in
the over-the-counter
market; or
•
through the writing and exercise of options, whether these
options are listed on an options exchange or otherwise.
The selling security holder may enter into hedging transactions
with broker-dealers or other financial institutions, which may
in turn engage in short sales of the warrants or the common
stock underlying the warrants and deliver these securities to
close out short positions, short and deliver the warrants and
common stock underlying the warrants to close out short
positions, or loan or pledge the warrants or the common stock
underlying the warrants to broker-dealers that in turn may sell
these securities.
The aggregate proceeds to the selling security holder from the
sale of the warrants or common stock underlying the warrants
will be the purchase price of the warrants or common stock less
any discounts and commissions. The selling security holder
reserves the right to accept and, together with its agents, to
reject any proposed purchase of the warrants or common stock to
be made directly or through agents. We will not receive any of
the proceeds from the resale of these securities by the selling
security holder. We may, however, receive cash consideration in
connection with the exercise of the warrants for cash. See
“Use of Proceeds.”
In order to comply with the securities laws of some
jurisdictions, if applicable, the holders of the warrants and
the common stock underlying the warrants may sell in some
jurisdictions through registered or licensed broker dealers. In
addition, under certain circumstances in some jurisdictions, the
warrants may need to be registered or qualified for sale or
comply with an available exemption from the registration and
qualification requirements of such jurisdictions.
Our outstanding common stock is listed for trading on the NYSE.
Although we have agreed to use best efforts to list the warrants
for trading on a national securities exchange, we cannot give
any assurance that we will be able to do so.
The selling security holder and any underwriters, broker-dealers
or agents that participate in the sale of the warrants and
common stock underlying the warrants may be
“underwriters” within the meaning of
Section 2(11) of the Securities Act of 1933, as amended
(the “Securities Act”). Any discounts, commissions,
concessions or profit they earn on any resale of the warrants or
the shares of the common stock underlying the warrants may be
underwriting discounts and commissions under the Securities Act.
Selling security holders who are “underwriters” within
the meaning of Section 2(11) of the Securities Act will be
subject to the prospectus delivery requirements of the
Securities Act. The selling security holder has acknowledged
that they understand their obligations to comply with the
provisions of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and the rules thereunder relating
to stock manipulation, particularly Regulation M, and have
agreed that they will not engage in any transaction in violation
of such provisions. The selling security holder has also agreed
to comply with the prospectus delivery requirements of the
Securities Act, if any.
In addition, Regulation M under the Securities Act may
restrict the ability of any person engaged in the distribution
of the warrants and the underlying common stock to engage in
market-making activities with respect to the particular warrants
and the underlying common stock being distributed for a period
of up to five business days before the commencement of such
distribution. This may affect the marketability of the warrants
and the underlying common stock and the ability of any person or
entity to engage in market-making activities with respect to the
warrants and the underlying common stock.
In addition, any securities covered by this prospectus that
qualify for sale pursuant to Rule 144 or Rule 144A
under the Securities Act may be sold under Rule 144 or
Rule 144A rather than pursuant to this prospectus. The
selling security holder has represented that it will not sell
the warrants or any common stock pursuant to this prospectus
except as described in this prospectus.
If required, the warrants or the common stock to be sold, the
names of the selling security holder, the purchase price and
public offering price, the names of any agent, dealer or
underwriter, and any applicable commissions or discounts with
respect to a particular offer will be set forth in an
accompanying prospectus supplement or, if appropriate, a
post-effective amendment to the registration statement of which
this prospectus is a part.
America West Holdings entered into a registration rights
agreement for the benefit of the holders of the original
warrants in 2002, which agreement remains effective with respect
to the replacement warrants. Pursuant to this registration
rights agreement, as amended, America West Holdings agreed to
register the warrants and the common stock underlying the
warrants with the SEC under specific circumstances and specific
times. In addition, the selling security holder and America West
Holdings have agreed to indemnify each other and their
respective directors, officers and controlling persons against,
and in certain circumstances to provide contribution with
respect to, specific liabilities in connection with the offer
and sale of the warrants and the common stock, including
liabilities under the Securities Act. We, on behalf of America
West Holdings, will pay substantially all of the expenses
incident to the registration of the warrants and the common
stock underlying the warrants, except that the selling security
holder will pay all brokers’ commissions and, in connection
with an underwritten offering, underwriting discounts and
commissions.
DESCRIPTION OF THE WARRANTS
On September 27, 2005, in connection with the merger of
America West Holdings and our wholly owned subsidiary and
pursuant to the terms of the original warrants issued to AFS by
America West Holdings, we issued to AFS warrants to purchase up
to 386,925 shares of our common stock. The following
summary description of the warrants sets forth some general
terms and provisions of the warrants, but the summary does not
purport to be complete and is qualified in all respects by
reference to the actual text of the warrants, copies of which
have been filed as exhibits to the registration statement, of
which this prospectus is
a part. In the event of any conflict between this description
and the text of the warrants, the text of the warrants shall
govern. We urge you to read the text of the warrants because the
warrants, and not this description, define your rights as a
holder of the warrants.
Exercise Period
Each warrant is exercisable at any time on or prior to
January 18, 2012.
Exercise Price And Other Terms
Each warrant will entitle its holder to purchase the shares of
common stock specified on the face of the warrant at a price of
$7.27 per share, subject to adjustment in accordance with
the anti-dilution and other adjustment provisions described
below. The holder of each warrant will be able to exercise the
warrant, in whole or part, by delivering to us the certificate
representing the warrant, the exercise notice properly completed
and executed and payment of the aggregate exercise price for the
number of shares of common stock as to which the warrant is
being exercised. The exercise price will be payable at the
option of each warrant holder:
•
in cash or by check payable to the order of US Airways
Group; or
•
by cashless exercise, pursuant to which the warrant holder will
receive the number of shares of common stock as is equal to the
product of (1) the number of shares of common stock being
exercised under the warrant multiplied by (2) a fraction,
the numerator of which is the market price per share of common
stock at such time minus the exercise price per share of common
stock at such time, and the denominator of which is the market
price per share of common stock at such time.
Each warrant may be exercised at any time in whole or in part at
the applicable exercise price until its applicable expiration
date, as described above. No fractional shares of our common
stock will be issued upon the exercise of the warrants. We will
pay a cash adjustment instead of fractional shares equal to the
product resulting from multiplying the fractional amount by the
fair market value of one share of common stock. The fair market
value shall be the average daily market price for the 20 trading
days ending on the last trading day before the date of
determination of the fair market value.
Upon exercise of each warrant, we will deliver a stock
certificate representing the number of shares that were
exercised under the warrant, such certificate to be issued and
delivered as soon as practicable after the warrant is exercised.
If the warrant is not fully exercised, we will execute a new
warrant exercisable for the remaining shares and deliver the new
warrant at the same time as the stock certificate for the
exercised shares.
Adjustments
The exercise price of each warrant and the number of shares of
common stock purchasable upon the exercise of each warrant may,
with certain exceptions, be subject to adjustment in certain
situations. Within five business days following the effective
date of any such adjustment, we will compute such adjustment and
provide the respective warrant holder with a certificate setting
forth the adjustment and the facts on which it is based. The
situations requiring adjustment are as follows:
•
Upon any dividend or distribution of common stock to the holders
of any class of common stock, split or other subdivision of the
outstanding shares of common stock or the combination of the
outstanding shares of common stock into a smaller number of
shares, the exercise price and number of shares of common stock
issuable upon exercise of the warrant shall be increased or
decreased proportionately as appropriate.
•
Upon the issuance of any rights, options or warrants to holders
of any class of common stock to subscribe for or purchase shares
of any class of common stock or securities convertible into any
class of common stock at a price per share less than the greater
of (1) the then current
market price or (2) the then effective exercise price of
the warrant (initially $7.27), the exercise price and number of
shares of common stock issuable upon exercise of the warrant
shall be increased or decreased proportionately as appropriate;
provided however, that any adjustment so made shall be
recalculated at the expiration of the exercise period of such
rights, options or warrants to take into consideration only
those rights, options or warrants actually exercised. There are
generally no adjustments for issuances of stock or options under
our stock plans.
•
Upon the issuance or distribution to holders of any class of
common stock, evidences of our indebtedness, cash or other
assets, shares of any class of capital stock or any other
security (other than common stock) or rights to subscribe
therefor (other than as described above), the exercise price and
number of shares of common stock issuable upon exercise of the
warrant shall be increased or decreased proportionately as
appropriate; provided however, that any adjustment made as a
result of the grant of subscription rights shall be recalculated
at the expiration of the exercise period of such subscription
rights to take into consideration only those subscription rights
actually exercised.
•
Upon a tender or exchange offer by us (other than an odd lot
offer) for any class of common stock at a price in excess of the
market price of such common stock at the expiration of the
tender of exchange offer, the exercise price of the warrant and
number of shares of common stock issuable by us shall be
adjusted as appropriate.
•
Upon a dividend or other distribution of rights or warrants to
holders of any class of common stock that, prior to a
“triggering event” are (1) transferable with such
shares of common stock, (2) not exercisable and
(3) issued in respect of future issuances of common stock,
the exercise price of the warrant and number of shares of common
stock issuable by us shall be adjusted as appropriate upon the
occurrence of a triggering event.
•
Upon any (1) consolidation or merger with or into another
corporation (other than a consolidation or merger in which we
are the surviving corporation and the common stock is not
exchanged for securities, property or assets issued or delivered
or paid by another person or entity) or (2) lease, sale or
conveyance of all or substantially all of our property or
assets, an adjustment will be made to enable the warrant holder
to receive, in lieu of the shares of common stock that might
otherwise have been purchased upon exercise of the warrant, the
kind and number of shares and/or other securities and/or
property and assets and/or cash receivable in such event that
the holder would otherwise have been entitled to receive had the
holder exercised the warrant immediately prior to such
consolidation, merger, lease, sale or conveyance.
•
Upon any reclassification or change of, or recapitalization
involving, common stock, including any such reclassification,
change or recapitalization effected in connection with a
consolidation or merger in which we are the surviving
corporation and the common stock is exchanged for shares and/or
other securities and/or property or assets and/or cash issued,
delivered or paid by us, an adjustment will be made to enable
the warrant holder to receive, in lieu of the shares of common
stock that might otherwise have been purchased upon exercise of
the warrant, the kind and number of shares and/or other
securities and/or property and assets and/or cash receivable in
such event that the holder would otherwise have been entitled to
receive had the holder exercised the warrant immediately prior
to such reclassification, change, consolidation or merger.
•
If we issue shares of any class of common stock, warrants or
other convertible securities (subject to certain exclusions set
forth in the warrant) at a price, conversion price or exercise
price (including any adjustments thereof) per share less than
the greater of (1) the fair market value of the class of
common stock then being issued at the time of such issuance (or
if being issued in an underwritten offering, the market price on
the day that such offering is being priced) or (2) the then
effective exercise price of the warrant (initially $7.27), then
the exercise price of the warrant shall be adjusted on a
“weighted average” formula basis.
The warrants do not entitle the holders to any voting or other
rights as are accorded to our stockholders nor are the holders
subject to any liability for the exercise price or as a
stockholder whether asserted by us or our creditors.
Transfer, Exchange And Exercise
Each warrant may be presented for transfer, exchange or exercise
at any time on or prior to its expiration date, at which time
the warrant will become wholly void and of no value. If a market
for the warrant develops, the holder may sell the warrant
instead of exercising it. We have agreed to use best efforts to
list the warrants for trading on a national securities exchange.
However, we can give no assurance that we will be able to do so.
In addition, we can give no assurance as to the liquidity or
development of any market for the warrants, the ability of a
holder to sell the warrants or any portion thereof or the price
at which a holder would be able to sell the warrants or any
portion thereof. The trading price of the warrants will depend
on the price of our common stock, the market for similar
securities and other factors, including economic conditions and
our financial condition, performance and prospects.
We will not impose a charge for any exercise, exchange or
transfer of the warrants, but we may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection with the transfer.
Any issuance by US Airways Group of the shares of common stock
upon exercise of the warrants must be made by US Airways Group
pursuant to an effective registration statement or pursuant to
an exemption from the registration requirements of the
Securities Act. In addition any issuance and any disposition may
require registration or qualification under applicable state
securities laws.
Registration Rights
We agreed to file a registration statement with respect to the
warrants and the shares of common stock issuable upon exercise
of the warrants. In addition, we agreed that AFS would have the
registration rights with respect to the common stock set forth
in a registration rights agreement between America West Holdings
and the ATSB, with certain limitations. The following summary of
the registration rights provided in such registration rights
agreement, a copy of which has been filed as an exhibit to the
registration statement of which this prospectus is a part, is
not complete. Unless otherwise indicated, the provisions set
forth below summarize the provisions contained in the
registration rights agreement. This summary is not complete and
you should refer to the registration rights agreement for a full
description of the registration rights that apply to the
warrants and the underlying shares of common stock. This summary
is qualified in its entirety by the registration rights
agreement. In the event of any conflict between this description
and the registration rights agreement, the terms of the
registration rights agreement will govern.
The holders of the warrants and the common stock issuable upon
exercise of the warrants are entitled to the benefits of a
registration rights agreement. This prospectus is part of a
shelf registration statement that we filed to meet our
obligations to register after the issuance of the warrants:
•
resale of the warrants by the selling security holder;
•
resales of the shares of common stock issuable upon exercise of
the warrants by the selling security holder; and
•
the issuance by US Airways Group of shares of common stock upon
exercise of the warrant to holders other than AFS.
We will use our best efforts to have this shelf registration
statement declared effective as soon as reasonably practicable
following the filing thereof, and to keep it effective until the
earlier of:
(1) the date on which
such securities cease to be outstanding;
(2) the date on which
such securities have been distributed to the public pursuant to
Rule 144; or
(3) the sale pursuant
to the registration statement of the warrants and all of the
underlying common stock being registered thereunder.
We will be permitted to suspend the use of this prospectus for a
period not to exceed 60 consecutive days or an aggregate of
90 days during any twelve month period under certain
circumstances relating to disclosure of a material financing,
acquisition, other transaction or other material non-public
information, which disclosure our board of directors shall have
determined in good faith is not in our and our
stockholder’s best interests. A holder of registrable
securities that sells registrable securities pursuant to the
shelf registration statement generally will be required to
provide information about itself and the specifics of the sale,
be named as a selling security holder in the related prospectus,
deliver a prospectus to purchasers, be subject to relevant civil
liability provisions under the Securities Act in connection with
such sales and be bound by the provisions of the registration
rights agreements which are applicable to such holder.
We will give notice of the effectiveness of the shelf
registration statement to all holders who have provided us with
the selling security holder notice and questionnaire. Each
holder must complete the notice and questionnaire in order to be
named as a selling security holder in the prospectus and prior
to any intended distribution of registrable securities pursuant
to the shelf registration statement. If we receive completed
questionnaires from holders after the effectiveness of the shelf
registration statement, we will, as promptly as practicable,
file amendments or supplements to the registration statement
naming those holders as selling security holders, thereby
allowing them to sell their securities under the registration
statement. Any use of the registration statement by selling
security holders is, however, subject to our right to suspend
use of the prospectus under certain circumstances and provided
that we may take reasonable steps to aggregate the addition of
registrable securities of more than one holder and we will not
be required to file more than one amendment or supplement during
any thirty-day period.
We will pay all registration expenses of the shelf registration,
provide each holder that is selling registrable securities
pursuant to the shelf registration statement copies of the
related prospectus and take other actions as are required to
permit, subject to the foregoing, unrestricted resales of the
registrable securities. Selling security holders remain
responsible for all selling expenses, such as commissions and
discounts.
The following summary of certain provisions of our common stock
is not intended to be complete and is qualified by reference to
the provisions of applicable law and to the form of our amended
and restated certificate of incorporation and the form of our
amended and restated bylaws.
Authorized Capital Stock
Our authorized capital stock consists of 200 million shares
of common stock, par value $0.01 per share.
Voting Rights
The holders of US Airways Group common stock are entitled to one
vote per share on all matters submitted to a vote of common
stockholders, except that voting rights of
non-U.S. citizens
are limited to the extent that the shares of common stock held
by such
non-U.S. persons
would otherwise be entitled to more than 24.9% of the aggregate
votes of all outstanding equity securities of US Airways Group.
Holders of common stock have no right to cumulate their votes.
The common stock is listed on the NYSE. Holders of common stock
participate equally as to any dividends or distributions on the
common stock.
Stock Certificates
Our bylaws provide that our board of directors may provide by
resolution or resolutions that some or all of any or all classes
or series of its stock will be uncertificated shares.
Number of Directors
Our certificate of incorporation provides that our board of
directors will consist of not less than one nor more than
15 directors, the exact number of which will be fixed from
time to time by resolution adopted by a majority of our board of
directors.
Classification of Board of Directors
Our certificate of incorporation classifies the board of
directors into three separate classes, consisting as nearly
equal in number as may be possible of one-third of the total
number of directors constituting the entire board of directors,
with staggered three-year terms. If the number of directors is
changed, any increase or decrease will be apportioned across
classes in order for the classes to remain as nearly equal as
possible.
Removal of Directors
Our certificate of incorporation provides that any director may
be removed only “for cause,” and by the affirmative
vote of the holders of at least 80% of the voting power of the
then issued and outstanding capital stock entitled to vote for
the election of directors.
Vacancies on the Board of Directors
Our certificate of incorporation provides that, except as may be
otherwise provided pursuant to the stockholders agreements or
other contracted obligations of US Airways Group, any vacancy on
the board of directors that results from an increase in the
number of directors may be filled by a majority of the board of
directors then in office, provided that a quorum is present, and
any other vacancy occurring on the board of directors may be
filled by a majority of the board then in office, even if less
than a quorum, or by a sole remaining director. Any director of
any class elected to fill a vacancy resulting from an increase
in the number of directors of that class will hold office for a
term that coincides with the remaining term of that class. Any
director elected to fill a vacancy not resulting from an
increase in the number of directors will have the same remaining
term as his or her predecessor.
Our certificate of incorporation and bylaws provide limits on
the voting and ownership of our equity securities owned or
controlled by persons who are not citizens of the United States
in order to comply with U.S. law and related rules and
regulations of the U.S. Department of Transportation. Any
equity securities owned by
non-U.S. persons
having in excess of 24.9% of the voting power of our outstanding
equity securities will have their voting rights automatically
suspended in reverse chronological order based upon the date of
registration in our foreign stock record. In addition, any
attempt to transfer equity securities to a
non-U.S. person in
excess of 49.9% of our outstanding equity securities will be
void and of no effect and will not be recorded in our books and
records.
Stockholder Action by Written Consent
Our certificate of incorporation provides that no stockholder
action may be taken except at an annual or special meeting of
stockholders and that stockholders may not take any action by
written consent.
Our certificate of incorporation provides that we reserve the
right to amend, alter, change or repeal any provision contained
in our certificate of incorporation in a manner in keeping with
the certificate of incorporation or the Delaware General
Corporation Law, or DGCL, and that all rights conferred upon
stockholders are granted subject to that reservation.
Our certificate of incorporation requires the affirmative vote
of the holders of at least two-thirds of the voting power of the
shares entitled to vote for the election of directors to amend,
alter, change, repeal or adopt any provision as part of the
certificate of incorporation inconsistent with the purpose and
intent of Articles V (Board of Directors), VIII (No Written
Consent), X (Amendment of Bylaws) or XI (Amendment of the
Certificate of Incorporation) of the certificate of
incorporation.
Our certificate of incorporation provides that an affirmative
vote of at least a majority of the board of directors or the
affirmative vote of at least 80% of the voting power of the
shares entitled to vote for the election of directors will be
required to adopt, amend, alter or repeal our bylaws.
the secretary, at the written request or by a resolution adopted
by the affirmative vote of a majority of the board of directors.
Quorum
Our certificate of incorporation and bylaws provide that the
holders of a majority of the capital stock issued, outstanding
and entitled to vote at a meeting of stockholders, present in
person or represented by proxy, will constitute a quorum at any
meeting of the stockholders held for the purpose of electing
directors.
Notice of Stockholder Meeting
Our bylaws provide that written notice of meetings of
stockholders, stating the place, if any, date and hour of the
meeting, the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in
person and vote at that meeting, and, in the case of a special
meeting, the purpose(s) for which the meeting is called, must be
given to each stockholder of record entitled to vote whenever
stockholders are required or permitted to take any action at any
meeting. The secretary must provide such notice not less than 10
nor more than 60 days before the date of the meeting.
Delivery & Notice Requirements of Stockholder
Nominations and Proposals
Our bylaws provide that at any annual stockholders’ meeting
only such business may be transacted as has been:
•
specified in the notice of meeting or any supplement thereto;
•
given by or at the direction of the board or any duly authorized
committee thereof;
•
otherwise properly brought by or at the direction of the board
of directors or any duly authorized committee thereof; or
•
otherwise properly brought by any stockholder of US Airways
Group (A) who is a stockholder of record on the date of the
giving of the notice provided for in the bylaws and on the
record date for the determination of stockholders entitled to
notice of and to vote at such annual meeting, and (B) who
complies with the notice procedures set forth in the bylaws.
For a proposal, other than nominations of persons for election
to the board of directors, to be properly brought before an
annual meeting by a stockholder, the stockholder must have given
timely written notice thereof to the secretary of US Airways
Group and such business must be a proper matter for stockholder
action.
To be timely, a stockholder’s notice must be delivered to
or mailed to, and received by, the secretary at our principal
executive offices:
•
not less than 90 calendar days nor more than 120 calendar days
prior to the anniversary date of the immediately preceding
annual meeting of stockholders; or
•
in the event that the annual meeting is called for a date that
is not within 30 days before or after such anniversary
date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the
10th day following the day on which such notice of the date
of the annual meeting was mailed or such public disclosure of
the date of the annual meeting was made, whichever first occurs.
Our bylaws also provide that, for business to be properly
brought before a special meeting of stockholders, other than
nominations of persons for election to the board of directors, a
stockholder must give timely written notice thereof to the
secretary of US Airways Group.
To be timely, a stockholder’s written notice must be
received by the secretary at our principal executive offices at
least 10 days prior to the first public notice of the
special meeting.
A stockholder’s written notice to the secretary for either
an annual meeting or a special meeting must set forth:
•
a brief description of the business desired to be brought before
the meeting and the reasons for conducting the business at the
meeting;
•
the name and address of record of the stockholder proposing that
business;
•
the class and number of our shares which are beneficially owned
by the stockholder;
•
the dates upon which the stockholder acquired those shares;
•
documentary support for any claim of beneficial ownership;
•
a description of all arrangements or understandings between the
stockholder and any other person or persons (including their
names) in connection with the proposal and any material interest
of the stockholder in the business;
•
a representation that the stockholder intends to appear in
person or by proxy at the meeting to bring the business before
the meeting;
for proposals sought to be included in the proxy statement, any
other information required by
Rule 14a-8 under
the Exchange Act.
Our bylaws also provide that no business may be conducted at any
stockholders’ meeting except business brought before the
meeting in accordance with the procedures set forth in the
bylaws. If the chairman of the meeting determines that business
was not properly brought before the meeting, the chairman will
declare that the business was not properly brought and such
business will not be considered or transacted.
Our certificate of incorporation provides that stockholders are
entitled to receive such dividends and other distributions in
cash, stock or property of US Airways Group when, as and if
declared thereon by the board of directors from time to time out
of assets or funds legally available therefor.
Our bylaws provide that dividends, if any, may be declared by
the board of directors at any regular or special meeting of the
board (or any action by written consent in lieu thereof) and may
be paid in cash, property or shares of US Airways Group’s
capital stock. Before payment of any dividend, the directors may
set aside a portion of the funds available for dividends such as
the board of directors, in its absolute discretion, deems proper
as a reserve fund. Also, the board of directors may modify or
abolish any such reserve.
Limitation of Personal Liability of Directors
Our certificate of incorporation provides that no director will
be personally liable to US Airways Group or any of its
stockholders for monetary damages for breach of fiduciary duty
as a director, except to the extent such exemption from
liability or limitation thereof is not permitted under the DGCL.
Our certificate of incorporation further provides that if the
DGCL is amended to authorize the further elimination or
limitation of the liability of directors, then the liability of
a director of the corporation will be eliminated or limited to
the fullest extent authorized by the DGCL, as so amended.
will indemnify its directors and officers to the fullest extent
authorized or permitted by law. This right to indemnification
continues even after a person has ceased to be a director or
officer and inures to the benefit of his or her heirs, executors
and personal and legal representatives. Subject to applicable
law, the right to indemnification includes the right to be paid
the expenses incurred in defending or otherwise participating in
any proceeding in advance of its final disposition; and
•
may, to the extent authorized by the board of directors, provide
rights to indemnification and to the advancement of expenses to
employees and agents similar to those conferred on directors and
officers.
Except for proceedings to enforce rights to indemnification, US
Airways Group is not obligated to indemnify any director or
officer or his or her heirs, executors or personal or legal
representatives in connection with a proceeding or part thereof
initiated by that person unless the proceeding or part thereof
was authorized or consented to by the board of directors.
Our certificate of incorporation also provides that the rights
to indemnification and to the advance of expenses are not
exclusive of any other right which any person may have or
acquire under the certificate of incorporation, the bylaws, any
statute, agreement, vote of stockholders or disinterested
directors or otherwise.
Insofar as indemnification for liabilities under the Securities
Act may be permitted to our directors, officers and controlling
persons under the foregoing provisions, or otherwise, we have
been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and
is therefore unenforceable.
No Stockholder Rights Plan
We do not have a stockholder rights plan.
Business Combinations
Certain provisions of our amended and restated certificate of
incorporation and amended and restated bylaws may have the
effect of delaying or preventing changes in control if our board
of directors determines that those changes in control are not in
the best interests of US Airways Group and its stockholders.
These provisions include, among other things, the following:
•
a classified board of directors with three-year staggered terms;
•
advance notice procedures for stockholder proposals to be
considered at stockholders’ meetings;
•
the ability of US Airways Group’s board of directors to
fill vacancies on the board;
•
a prohibition against stockholders taking action by written
consent;
•
a prohibition against stockholders calling special meetings of
stockholders;
•
requiring the approval of holders of at least 80% of the voting
power of the shares entitled to vote in the election of
directors for the stockholders to amend the amended and restated
bylaws; and
•
super majority voting requirements to modify or amend specified
provisions of US Airways Group’s amended and restated
certificate of incorporation.
These provisions are not intended to prevent a takeover, but are
intended to protect and maximize the value of our
stockholders’ interests. While these provisions have the
effect of encouraging persons seeking to acquire control of our
company to negotiate with our board of directors, they could
enable our board of directors to prevent a transaction that
some, or a majority, of our stockholders might believe to be in
their best interests and, in that case, may prevent or
discourage attempts to remove and replace incumbent directors.
In addition, Section 203 of the DGCL protects
publicly-traded Delaware corporations, such as US Airways Group,
from hostile takeovers, and from actions following the takeover,
by prohibiting some transactions once an acquirer has gained a
significant holding in the corporation.
A corporation may elect not to be governed by Section 203
of the DGCL. Neither our certificate of incorporation nor our
bylaws contain this election. Therefore, we are governed by
Section 203 of the DGCL.
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the anticipated material United
States federal income tax consequences of the acquisition,
ownership and disposition of warrants and common stock acquired
upon exercise of a warrant and is for general information
purposes only. This discussion is based upon the Internal
Revenue Code of 1986, as amended (the “Code”),
Treasury Regulations, judicial authorities, published positions
of the Internal Revenue Service (the “IRS”) and other
applicable authorities, all as currently in effect and all of
which are subject to change or differing interpretations
(possibly with retroactive effect). This discussion is limited
to persons that purchase their warrants for cash and hold their
warrants and common stock as capital assets for United States
federal income tax purposes (generally, assets held for
investment). This discussion does not address all of the tax
consequences that may be relevant to a particular holder,
including a holder that is subject to special treatment under
United States federal income tax laws (including, among others,
the ATSB, AFS, tax-exempt organizations, cooperatives, regulated
investment companies or real estate investment trusts, dealers
in securities or foreign currencies, banks, insurance companies,
financial institutions or persons that hold their warrants or
common stock as part of a hedge, straddle, constructive sale or
conversion transaction, persons whose functional currency is not
the United States dollar, persons subject to the alternative
minimum tax and persons that are, or hold their warrants or
common stock through, partnerships or other pass-through
entities). In addition, this discussion does not address any
aspects of state, local or non-United States taxation or United
States federal taxation other than income taxation. No ruling
has been requested from the IRS regarding the United States
federal income tax consequences of acquiring, owning or
disposing of the warrants or common stock. No assurance can be
given that the IRS would not assert, or that a court would not
sustain, a position contrary to any of the tax consequences set
forth below.
This discussion assumes that the warrants are treated as such,
and not as common stock, for United States federal income
tax purposes. No assurances can be made in this regard. The tax
considerations discussed below may be different if the warrants
were treated as common stock.
For purposes of this summary, a “U.S. holder”
means any holder of a warrant or our common stock that is a
citizen or individual resident of the United States, a
corporation created or organized in the United States or
under the laws of the United States or any political subdivision
thereof, an estate the income of which is subject to United
States federal income taxation regardless of its source, or a
trust if (i) a court within the United States is able to
exercise primary supervision over the administration of the
trust and one or more United States fiduciaries have the
authority to control all substantial decisions of the trust or
(ii) the trust was in existence on August 20, 1996 and
properly elected to be treated as a United States person. A
“non-U.S. holder”
means any holder of a warrant or our common stock acquired
through the exercise of a warrant (other than an entity treated
as a partnership or other flow-through entity and its beneficial
owners) that is not a “U.S. holder.”
The United States federal income tax treatment of a partner or
other beneficial owner in a partnership or other flow-through
entity generally will depend on the status of the partner and
the activities of such partnership. Partners and partnerships
(including beneficial owners of pass-through entities and such
entities themselves) should consult their own tax advisors as to
the particular United States federal income tax consequences
applicable to them.
PROSPECTIVE PURCHASERS OF WARRANTS ARE URGED TO CONSULT THEIR
TAX ADVISORS AS TO THE UNITED STATES FEDERAL TAX CONSEQUENCES OF
ACQUIRING, OWNING AND DISPOSING OF THE WARRANTS AND OUR COMMON
STOCK, AS WELL AS THE EFFECTS OF STATE, LOCAL AND NON-UNITED
STATES TAX LAWS.
U.S. Holders
Exercise of Warrants
Cash Exercise
A U.S. holder generally will not recognize income, gain or
loss when paying cash to exercise a warrant, except with respect
to the receipt of cash in lieu of fractional shares, as
described below. A U.S. holder’s tax basis in common
stock received upon the exercise of a warrant will be equal to
the sum of (i) the U.S. holder’s adjusted tax
basis in the warrant at the time of exercise and (ii) the
exercise price of the warrant (reduced by any tax basis
allocable to a fractional share, as described below). A
U.S. holder’s holding period for such common stock
will begin on the date the warrant is exercised.
The tax treatment of a cashless exercise of a warrant (i.e.,
where a portion of the holder’s warrants are surrendered as
the exercise price for other warrants) is uncertain. A cashless
exercise may, for example, be treated as a tax-free
“recapitalization,” in which case a holder’s tax
basis in the common stock received would equal the tax basis in
the surrendered warrants (reduced by any tax basis allocable to
a fractional share, as described below). Alternatively, a
cashless exercise may be treated similarly to a cash exercise.
It is also possible that a cashless exercise could be treated as
a taxable exchange in which gain or loss should be recognized.
The holding period for common stock acquired in a cashless
exercise will depend on the United States federal income tax
treatment of a cashless exercise. Accordingly, the holding
period for a share of common stock acquired in a cashless
exercise generally may include the holder’s holding period
for the exercised warrant if the cashless exercise is treated as
a recapitalization, or the holding period generally may begin on
the date the warrant is exercised if the cashless exercise is
treated similarly to a cash exercise, or the holding period
generally may begin on the day following the date of exercise if
the cashless exercise is treated as a taxable exchange. Due to
the absence of authority on the United States federal income tax
treatment of a cashless exercise, there can be no assurance
which, if any, of the alternative tax consequences and holding
periods described above would be adopted by the IRS or a court
of law. Accordingly, holders are urged to consult their tax
advisors as to the tax consequences of a cashless exercise.
Cash Received In Lieu of Fractional Shares
Cash received in lieu of a fractional share of common stock upon
exercise of a warrant will be treated as a payment in exchange
for such fractional share deemed to be received by the holder on
conversion, and generally should result in capital gain or loss
measured by the difference between the cash received for such
fractional share and the holder’s adjusted tax basis
allocable to the fractional share. The utilization of capital
losses is subject to certain limitations.
Lapse of Warrants
Upon a lapse or expiration of an unexercised warrant, a
U.S. holder will recognize a capital loss equal to the
warrant holder’s tax basis in the warrant. This capital
loss will be a long-term capital loss if the holding period with
respect to such warrant is more than one year. The utilization
of capital losses is subject to certain limitations.
Sale or Disposition of Warrants
Upon a sale or other taxable disposition of a warrant other than
by exercise as described above, a U.S. holder generally
will recognize capital gain or loss in an amount equal to the
difference between the amount realized on the disposition and
the U.S. holder’s tax basis in such warrant. A
U.S. holder’s tax basis in a warrant generally will be
equal to the cost of the warrant to such U.S. holder. Any
such capital gain or loss will be long-term capital gain or loss
if the holder’s holding period for the warrant is more than
one year at the time of disposition. The utilization of capital
losses is subject to certain limitations.
Distributions on Our Common Stock
Distributions on our common stock will constitute dividends,
taxable to U.S. holders as ordinary income, to the extent
of our current and accumulated earnings and profits as
determined under United States federal income tax principles. To
the extent that a U.S. holder receives distributions on
shares of our common stock that would otherwise constitute
dividends for United States federal income tax purposes but that
exceed our current and accumulated earnings and profits, such
distributions will be treated first as a non-taxable return of
capital, reducing the U.S. holder’s tax basis in the
shares of our common stock. Any such non-dividend distributions
in excess of the U.S. holder’s tax basis in the shares
of our common stock will generally be treated as capital gain.
Subject to applicable limitations, dividends paid to
U.S. holders that are corporations may qualify for the
dividends-received deduction. For individuals, dividends paid
through 2008 will be taxable
at a maximum United States federal income tax rate of 15% if
such dividends constitute “qualified dividend income,”
provided that the holder satisfies the applicable holding period
requirements. U.S. holders are urged to consult their own
tax advisors regarding the applicability of the dividends
received deduction or “qualified dividend income”
rules to them.
Adjustment of the Conversion Rate
Certain adjustments to, or failure to adjust, the conversion
rate of the warrants may cause holders of warrants or shares of
common stock to be treated as having received a distribution on
the warrants or common stock, to the extent any such adjustment
or failure to adjust results in an increase in the proportionate
interest of such holders in our company. Such a distribution
would be taxable to holders as a dividend, return of capital or
capital gain in accordance with rules discussed above under
“Distributions on Our Common Stock.”
Disposition of Common Stock
Upon a taxable disposition of shares issued upon exercise of
warrants, a holder generally will recognize capital gain or loss
equal to the difference, if any, between (i) the amount of
cash and the fair market value of other property received, and
(ii) the warrant holder’s adjusted tax basis in the
shares. Such gain or loss generally will be long-term capital
gain or loss if the holding period with respect to such shares
is more than one year. The utilization of capital losses is
subject to certain limitations.
Non-U.S. Holders
Distributions and Adjustments to Conversion Rate
Distributions paid to a
non-U.S. holder on
our common stock generally will be subject to
U.S. withholding tax at a rate of 30%, subject to reduction
by an applicable tax treaty. Certain adjustments to, or failure
to adjust, the conversion rate of the warrants may cause holders
of warrants or shares of common stock to be treated as having
received a distribution on the warrants or common stock, to the
extent any such adjustment or failure to adjust results in an
increase in the proportionate interest of such holders in our
company. Such distributions generally will be subject to United
States withholding tax at a rate of 30%, subject reduction by an
applicable tax treaty. A
non-U.S. holder
must demonstrate its entitlement to treaty benefits by
certifying its nonresident status (generally, on IRS
Form W-8 ECI).
Exercise or Sale of Warrants or Common Stock
A non-U.S. holder
generally will not be subject to United States federal income
tax on the exercise of a warrant or the sale or disposition of a
warrant or a share of our common stock.
Special Rules for Certain
Non-U.S. Holders
In general, different rules from those described above apply in
the case of
non-U.S. holders
subject to special treatment under United States federal income
tax law, including a
non-U.S. holder:
•
that has an office or fixed place of business in the United
States or is otherwise carrying on a United States trade or
business;
•
that is an individual present in the United States for 183 or
more days or has a “tax home” in the United States for
United States federal income tax purposes; or
•
that is a former citizen or resident of the United States.
Non-U.S. holders
are urged to consult their United States tax advisors regarding
the tax consequences of acquiring, owning and disposing of (or
exercising) warrants and our common stock.
Payments of dividends on our common stock, certain adjustments
to the conversion rate of the warrants (or failures to adjust
the conversion rate) and the proceeds of the disposition of
warrants or common stock may be subject to information
reporting. United States federal backup withholding tax
(currently imposed at a rate of 28%) may also apply if the
holder fails to supply to us or our paying agent a taxpayer
identification number, certified under penalties of perjury, as
well as certain other information (generally on IRS
Form W-9 or our
substitute IRS
Form W-9, if any)
or otherwise establishes an exemption from backup withholding.
Non-U.S. holders
generally may establish such an exemption by furnishing an IRS
Form W-8. Any amounts withheld under the backup withholding
rules may be allowed as a refund or a credit against the
holder’s United States federal income tax liability,
provided the required information is furnished to the IRS.
THE PRECEDING DISCUSSION OF CERTAIN U.S. FEDERAL INCOME TAX
CONSIDERATIONS IS FOR GENERAL INFORMATION ONLY. IT IS NOT TAX
ADVICE. EACH PROSPECTIVE INVESTOR SHOULD CONSULT ITS TAX ADVISOR
REGARDING THE PARTICULAR U.S. FEDERAL, STATE, LOCAL, AND
FOREIGN TAX CONSEQUENCES OF PURCHASING, HOLDING AND DISPOSING OF
THE WARRANTS OR OUR COMMON STOCK, INCLUDING THE CONSEQUENCES OF
ANY PROPOSED CHANGE IN APPLICABLE LAWS.
AVAILABLE INFORMATION
This prospectus is a part of a registration statement on
Form S-3 that we
are filing with the SEC, but the registration statement includes
additional information and also attaches exhibits that are
referenced in this prospectus. You can review a copy of the
registration statement through the SEC’s “EDGAR’
System (Electronic Data Gathering, Analysis and Retrieval)
available on the SEC’s web site (http://www.sec.gov).
We are required to publicly file certain information under the
Exchange Act. All of our public filings are also available on
EDGAR, including reports, proxy statements, information
statements and other information regarding us. You may also read
and copy all of our public filings in the SEC’s Public
Reference Room at Room 1580, 100 F Street NE,
Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for
further information on the public reference rooms.
This prospectus incorporates by reference some of the reports,
proxy and information statements and other information that US
Airways Group or America West Holdings have filed with the SEC
under the Exchange Act. This means that we are disclosing
important business and financial information to you by referring
you to those documents. The information that we file later with
the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed
below and any future filings made with the SEC under sections
13(a), 13(c), 14 or 15(d) of the Exchange Act until all of the
securities offered by this prospectus are sold.
current report of US Airways Group on
Form 8-K dated
September 27, 2005, filed with the SEC on October 3,2005 (filed under Items 1.01, 2.03 and 9.01 of
Form 8-K);
•
current report of US Airways Group on
Form 8-K dated
September 27, 2005, filed with the SEC on October 3,2005 (filed under Items 1.01, 2.03 and 9.01 of
Form 8-K);
•
current report of US Airways Group on
Form 8-K dated
September 27, 2005, filed with the SEC on October 3,2005 (filed under Items 1.01, 2.03, 3.02 and 9.01 of
Form 8-K);
•
current report of US Airways Group on
Form 8-K dated
September 27, 2005, filed with the SEC on October 3,2005 (filed under Items 1.01, 2.01, 3.02, 5.01, 5.03 and
9.01 of Form 8-K);
•
current report of US Airways Group on
Form 8-K dated
September 27, 2005, filed with the SEC on October 3,2005 (filed under Items 1.01, 5.02 and 9.01 of
Form 8-K);
the description of the common stock of US Airways Group
contained in its registration statement on
Form 8-A, filed
with the SEC on September 22, 2005 and any amendment or
report filed with the SEC for the purpose of updating the
description;
amendment no. 1 to quarterly report of US Airways Group on
Form 10-Q for the
quarterly period ended June 30, 2005, filed with the SEC on
August 11, 2005;
•
amendment no. 1 to quarterly report of US Airways Group on
Form 10-Q for the
quarterly period ended March 31, 2005, filed with the SEC
on August 11, 2005;
•
amendment no. 1 to annual report of US Airways Group on
Form 10-K for the
fiscal year ended December 31, 2004, filed with the SEC on
August 11, 2005;
quarterly report of US Airways Group on
Form 10-Q for the
quarterly period ended June 30, 2005, filed with the SEC on
August 2, 2005;
•
current report of US Airways Group on
Form 8-K dated
July 25, 2005, filed with the SEC on July 25, 2005;
•
current report of US Airways Group on
Form 8-K dated
July 21, 2005, filed with the SEC on July 25, 2005;
•
current report of US Airways Group on
Form 8-K dated
July 7, 2005, filed with the SEC on July 13, 2005;
•
current report of US Airways Group on
Form 8-K dated
July 5, 2005, filed with the SEC on July 6, 2005;
•
current report of US Airways Group on
Form 8-K dated
June 23, 2005, filed with the SEC on June 29, 2005;
•
current report of US Airways Group on
Form 8-K dated
June 23, 2005, filed with the SEC on June 24, 2005;
•
current report of US Airways Group on
Form 8-K dated
June 6, 2005, filed with the SEC on June 6, 2005;
•
current report of US Airways Group on
Form 8-K dated
June 2, 2005, filed with the SEC on June 3, 2005;
•
current report of US Airways Group on
Form 8-K dated
May 25, 2005, filed with the SEC on May 25, 2005;
•
current report of US Airways Group on
Form 8-K dated
May 19, 2005, filed with the SEC on May 20, 2005;
•
current report of US Airways Group on
Form 8-K dated
May 4, 2005, filed with the SEC on May 5, 2005;
•
current report of US Airways Group on
Form 8-K dated
May 3, 2005, filed with the SEC on May 4, 2005;
•
quarterly report of US Airways Group on
Form 10-Q for the
quarterly period ended March 31, 2005, filed with the SEC
on May 4, 2005;
•
amendment no. 1 to quarterly report of US Airways Group on
Form 10-Q for the
quarterly period ended September 30, 2004, filed with the
SEC on April 26, 2005;
current report of US Airways Group on
Form 8-K dated
February 3, 2005, filed with the SEC on February 4,2005 (filed under Items 8.01 and 9.01 of
Form 8-K);
current report of America West Holdings on
Form 8-K dated
July 22, filed with the SEC on July 25, 2005;
•
quarterly report of America West Holdings on
Form 10-Q for the
quarterly period ended June 30, 2005, filed with the SEC on
July 21, 2005;
•
current report of America West Holdings on
Form 8-K dated
July 13, filed with the SEC on July 13, 2005;
•
current report of America West Holdings on
Form 8-K dated
June 29, filed with the SEC on June 30, 2005;
•
annual report of America West Holdings on
Form 11-K for the
fiscal year ended December 31, 2004, filed with the SEC on
June 28, 2005;
•
current report of America West Holdings on
Form 8-K dated
June 2, filed with the SEC on June 2, 2005 (filed
under Items 1.01 and 9.01 of
Form 8-K);
•
current report of America West Holdings on
Form 8-K dated
May 25, 2005, filed with the SEC on May 25, 2005 (only
with respect to information filed under Item 1.01 of
Form 8-K);
amendment no. 1 to quarterly report of America West Holdings on
Form 10-Q for the
quarterly period ended September 30, 2004, filed with the
SEC on April 27, 2005;
•
amendment no. 1 to quarterly report of America West Holdings on
Form 10-Q for the
quarterly period ended June 30, 2004, filed with the SEC on
April 27, 2005;
•
amendment no. 1 to quarterly report of America West Holdings on
Form 10-Q for the
quarterly period ended March 31, 2004, filed with the SEC
on April 26, 2005;
•
quarterly report of America West Holdings on
Form 10-Q for the
quarterly period ended March 31, 2005, filed with the SEC
on April 26, 2005;
•
proxy statement on Schedule 14A dated April 15, 2005,
filed with the SEC on April 15, 2005; (current report of
America West Holdings on
Form 8-K dated
March 8, 2005, filed with the SEC on March 9, 2005
(only with respect to information filed under Item 4.02 of
Form 8-K);
annual report of America West Holdings on
Form 10-K for the
fiscal year ended December 31, 2004, filed with the SEC on
March 15, 2005.
As a recipient of this prospectus, you may request a copy of any
document we incorporate by reference, except exhibits to the
documents (unless the exhibits are specifically incorporated by
reference), at no cost, by writing or calling us at:
The validity of the warrants and common stock is being passed
upon for us by Skadden, Arps, Slate, Meagher & Flom
LLP, our special counsel.
EXPERTS
US Airways Group. The consolidated financial statements
of US Airways Group and its subsidiaries as of December 31,2004 and 2003, and for the year ended December 31, 2004 and
the nine months ended December 31, 2003 for the successor
company and the three months ended March 31, 2003 and the
year ended December 31, 2002 for the predecessor company,
and management’s assessment of the effectiveness of
internal control over financial reporting as of
December 31, 2004, have been incorporated by reference
herein and in the registration statement of which this
prospectus forms a part in reliance upon the reports of
KPMG LLP, an independent registered public accounting firm,
incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
The audit report of KPMG LLP, dated February 25, 2005, on
the December 31, 2004 consolidated financial statements
contains an explanatory paragraph that states that US Airways
Group’s significant recurring losses from operations,
accumulated deficit and ongoing reorganization under
Chapter 11 of the federal bankruptcy laws raise substantial
doubt about the entity’s ability to continue as a going
concern. The consolidated financial statements do not include
any adjustments that might result from the outcome of that
uncertainty.
The audit report of KPMG LLP, dated February 25, 2005, on
the December 31, 2004 consolidated financial statements
refers to the adoption of fresh-start reporting pursuant to
Statement of
Position 90-7,
“Financial Reporting by Entities in Reorganization Under
the Bankruptcy Code” as of March 31, 2003. As a
result, the consolidated financial statements of the successor
company are presented on a different basis than those of the
predecessor company and, therefore, are not comparable in all
respects. The audit report covering the December 31, 2004
financial statements also refers to a change in accounting for
stock-based compensation as described by SFAS No. 148,
“Accounting for Stock-Based Compensation —
Transition and Disclosure” as of April 1, 2003 and a
change in accounting for engine maintenance effective
January 1, 2002 at PSA Airlines, Inc., a wholly owned
subsidiary of US Airways Group.
America West Holdings. The consolidated financial
statements of America West Holdings and America West Airlines,
Inc. (a wholly owned subsidiary of America West Holdings) as of
December 31, 2004 and 2003, and for the years then ended
and America West Holdings management’s assessment of the
effectiveness of internal control over financial reporting as of
December 31, 2004 have been incorporated by reference
herein and in the registration statement of which this
prospectus forms a part in reliance upon the reports of KPMG
LLP, an independent registered public accounting firm,
incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
The report of KPMG LLP, dated March 11, 2005, on America
West Holdings management’s assessment of the effectiveness
of internal control over financial reporting and the
effectiveness of internal control over financial reporting as of
December 31, 2004, expresses KPMG’s opinion that
America West Holdings did not maintain effective internal
control over financial reporting as of December 31, 2004
because of the effect of a material weakness on the achievement
of the control criteria and contains an explanatory paragraph
that states that America West Holdings did not maintain
effective internal control over financial reporting due to a
material weakness associated with its accounting for America
West Airlines, Inc.’s fuel hedging transactions. Management
concluded that America West Airlines Inc.’s fuel hedging
transactions did not qualify for hedge accounting under
U.S. generally accepted accounting principles and that
America West Holdings’ and America West Airlines,
Inc.’s financial statements for prior periods required
restatement to reflect the fair value of fuel hedging contracts
in the balance sheets and statements of stockholders’
equity and comprehensive income of America West Holdings and
America West Airlines, Inc. These accounting errors were the
result of deficiencies in its internal control over financial
reporting from the lack of effective reviews of hedge
transaction documentation and of quarterly
mark-to-market
accounting entries on open fuel hedging contracts by personnel
at an appropriate level.
The consolidated statements of operations, of cash flows and of
stockholders’ equity and comprehensive income and the
related financial statement schedule of America West Holdings
and its subsidiaries for the year ended December 31, 2002
have been so incorporated in reliance on the reports of
PricewaterhouseCoopers LLP, an independent registered public
accounting firm, given on the authority of said firm as experts
in auditing and accounting.
The consolidated statements of operations, of cash flows and of
stockholder’s equity and comprehensive income and the
related financial statement schedule of America West Airlines,
Inc. (a wholly owned subsidiary of America West Holdings) for
the year ended December 31, 2002 have been so incorporated
in reliance on the reports of PricewaterhouseCoopers LLP, an
independent registered public accounting firm, given on the
authority of said firm as experts in auditing and accounting.
The following table sets forth the costs and expenses, all of
which will be paid by the registrant, in connection with the
distribution of the securities being registered. All amounts are
estimated, except the SEC Registration Fee:
SEC Registration fee
$
1,457.54
Printing expenses
$
15,000
Legal fees and expenses
$
45,000
Accounting fees and expenses
$
25,000
Miscellaneous
$
3,542.46
Total
$
90,000
Item 15.
Indemnification Of Directors And Officers.
Under Section 145 of the Delaware General Corporation Law
(the “DGCL”), a corporation may indemnify any person
in connection with any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative (other than a derivative action by or in the right
of such corporation) who is or was a director, officer, employee
or agent of such corporation, or serving at the request of such
corporation in such capacity for another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in
connection with such action, suit or proceeding, if such person
acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of such
corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
The DGCL also permits indemnification by a corporation under
similar circumstances for expenses (including attorneys’
fees) actually and reasonably incurred by such persons in
connection with the defense or settlement of a derivative
action, except that no indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have
been adjudged to be liable to such corporation unless the
Delaware Court of Chancery or the court in which such action or
suit was brought shall determine upon application that such
person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
The DGCL provides that the indemnification described above shall
not be deemed exclusive of other indemnification that may be
granted by a corporation under its bylaws, disinterested
directors’ vote, stockholders’ vote, agreement or
otherwise.
The DGCL also provides corporations with the power to purchase
and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation in a similar
capacity for another corporation, partnership, joint venture,
trust or other enterprise, against any liability asserted
against him or her in any such capacity, or arising out of his
or her status as such, whether or not the corporation would have
the power to indemnify him or her against such liability as
described above.
US Airways Group’s certificate of incorporation provides
that US Airways Group shall indemnify its officers and directors
to the full extent authorized or permitted by applicable law. US
Airways Group’s certificate of incorporation and bylaws
provide that US Airways Group shall also indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of US Airways Group), by
reason of the fact that such person is or was a director or
officer of US Airways
Group, or is or was a director or officer of US Airways Group
serving at the request of US Airways Group as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best
interests of US Airways Group, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe such
person’s conduct was unlawful.
US Airways Group also maintains insurance for officers and
directors against certain liabilities, including liabilities
under the Securities Act. The effect of this insurance is to
indemnify any officer or director of US Airways Group
against expenses, including without limitation, attorneys’
fees, judgments, fines and amounts paid in settlement, incurred
by an officer or director upon a determination that such person
acted in good faith. The premiums for such insurance are paid by
US Airways Group.
Under separate indemnification agreements with US Airways Group,
each officer and director of US Airways Group is
indemnified against all liabilities relating to his or her
position as an officer or director of US Airways Group, to the
fullest extent permitted under applicable law.
The foregoing statements are subject to the detailed provisions
of Section 145 of the DGCL.
Item 16.
Exhibits and Financial Statement Schedules.
Exhibit No.
Description
2
.1
Agreement and Plan of Merger, dated May 19, 2005, by and
among US Airways Group, Inc. and America West Holdings
Corporation (incorporated by reference to Exhibit 2.1 to US
Airways Group’s Registration Statement on Form S-4
filed on June 28, 2005) (Pursuant to item 601(b)(2) of
Regulation S-K promulgated by the SEC, the exhibits and
schedules to the Agreement and Plan of Merger have been omitted.
Such exhibits and schedules are described in the Agreement and
Plan of Merger. US Airways Group, Inc. hereby agrees to furnish
to the SEC, upon request, any or all of such omitted exhibits or
schedules.)
2
.2
Letter Agreement, dated July 7, 2005 by and among US
Airways Group, Inc., America West Holdings Corporation, Barbell
Acquisition Corp., ACE Aviation Holdings, Inc., Eastshore
Aviation, LLC, Par Investment Partners, L.P., Peninsula
Investment Partners, L.P. and Wellington Management Company, LLP
(incorporated by reference to Exhibit 2.2 to Amendment
No. 1 to US Airways Group’s Registration
Statement on Form S-4 filed on August 8, 2005)
Registration Rights Agreement, dated as of September 30,2005, between the US Airways Group, Inc., America West Airlines,
Inc. and US Airways, Inc., as guarantors, and the initial
purchaser named therein (incorporated by reference to
Exhibit 4.2 to US Airways Group’s Current Report on
Form 8-K dated September 27, 2005).
4
.5
Indenture, dated as of July 30, 2003, between America West
Airlines, Inc. and U.S. Bank National Association, as
trustee and not in its individual capacity, for America West
Airlines, Inc. Senior Exchangeable Notes due 2023 (incorporated
by reference to Exhibit 4.1 to America West Holdings’
and America West Airlines, Inc.’s Quarterly Report on
Form 10-Q for the quarter ended September 30, 2003)
Form of America West Airlines, Inc. Senior Exchangeable Note due
2023 (incorporated by reference to Exhibit 4.2 to America
West Holdings’ and America West Airlines, Inc.’s
Quarterly Report on Form 10-Q for the quarter ended
September 30, 2003)
4
.7
Registration Rights Agreement, dated as of July 30, 2003,
with respect to shares of Class B Common Stock underlying
the America West Airlines, Inc. Senior Exchangeable Notes due
2023 (incorporated by reference to Exhibit 4.3 to America
West Holdings’ and America West Airlines, Inc.’s
Quarterly Report on Form 10-Q for the quarter ended
September 30, 2003)
4
.8
Guarantee and Exchange Agreement, dated as of July 30,2003, between America West Holdings Corporation and
U.S. Bank, National Association, as exchange agent and
trustee and not in its individual capacity, for America West
Airlines Inc. Senior Exchangeable Notes due 2023 (incorporated
by reference to Exhibit 4.4 to America West Holdings’
and America West Airlines, Inc.’s Quarterly Report on
Form 10-Q for the quarter ended September 30, 2003)
4
.9
Stock Option Agreement, dated as of December 31, 1996,
between America West Holdings and America West Airlines
(incorporated by reference to Exhibit 4.5 to America West
Holdings’ Registration Statement on Form 8-B dated
January 13, 1997)
Assumption of Certain Obligations Under Registration Rights
Agreement executed by America West Holdings for the benefit of
TPG Partners, L.P., TPG Parallel I, L.P., Air
Partners II, L.P., Continental Airlines, Inc., Mesa
Airlines, Inc., Lehman Brothers, Inc., Belmont Capital
Partners II, L.P. and Belmont Fund, L.P. (incorporated
by reference to Exhibit 4.7 to America West Holdings’
Registration Statement on Form 8-B dated January 13,1997)
4
.12
Form of Pass Through Trust Agreement, dated as of
November 26, 1996, between America West Airlines and Fleet
National Bank, as Trustee (incorporated by reference to
Exhibit 4.1 to America West Airlines, Inc.’s Current
Report on Form 8-K dated November 26, 1996)
4
.13
Form of Pass Through Trust Agreement, dated as of June 17,1997, between America West Airlines and Fleet National Bank, as
Trustee (incorporated by reference to Exhibit 4.5 to
America West Airlines, Inc.’s Registration Statement on
Form S-3 dated June 4, 1997)
4
.14
Forms of Pass Through Trust Agreements, dated as of
October 6, 1998, between America West Airlines and
Wilmington Trust Company, as Trustee (incorporated by reference
to Exhibits 4.4, 4.5, 4.6, 4.7, 4.8 and 4.9 to America West
Airlines, Inc.’s Registration Statement on Form S-4
dated March 25, 1999)
4
.15
Pass Through Trust Agreements, dated as of September 21,1999, between America West Airlines and Wilmington Trust
Company, as Trustee, made with respect to the formation of
America West Airlines Pass Through Trusts, Series 1999-1G-S,
1999-1G-O, 1999-1C-S and 1999-1C-O and the issuance of 7.93%
Initial Pass Through Certificates Series 1999-1G-S and
1999-1G-O, the issuance of 8.54% Initial Pass Through
Certificates, Series 1999-1C-S and 1999-1C-O, the issuance of
7.93% Exchange Pass Through Certificates, Series 1999-1G-S and
1999-1G-O, and the issuance of 8.54% Exchange Pass Through
Certificates, Series 1999-1C-S and 1999-1C-O (incorporated by
reference to America West Airlines, Inc.’s Quarterly Report
on Form 10-Q for the period ended September 30, 1999).
4
.16
Insurance and Indemnity Agreement, dated as of
September 21, 1999, among America West Airlines, Ambac
Assurance Corporation as Policy Provider and Wilmington Trust
Company as Subordination Agent and Trustee under the Pass
Through Trust 1999-1G-O (incorporated by reference to
Exhibits 4.15 to America West Airlines, Inc.’s
Registration Statement on Form S-4 dated March 16,2000).
Pass Through Trust Agreement, dated as of July 7, 2000,
between America West Airlines, and Wilmington Trust Company, as
Trustee, made with respect to the formation of America West
Airlines Pass Through Trust, Series 2000-1G-0, 2000-1G-S,
2000-1C-O and 2000-1C-S, the issuance of 8.057% Initial Pass
Through Certificates, Series 2000-1G-O and 2000-1G-S, the
issuance of 9.244% Initial Pass Through Certificates, Series
2000-1C-O and 2000-1C-S, the issuance of 8.057% Exchange Pass
Through Certificates, Series 2000-1G-O and 2000-1G-S and the
issuance of 9.244% Exchange Pass Through Certificates, Series
2000-1C-O and 2000-1C-S (incorporated by reference to
Exhibits 4.3, 4.4, 4.5 and 4.6 to America West Airlines,
Inc.’s Registration Statement on Form S-4 dated
September 12, 2002).
4
.18
Insurance and Indemnity Agreement, dated as of July 7,2000, among America West Airlines, Ambac Assurance Corporation
as Policy Provider and Wilmington Trust company as Subordination
Agent and Trustee under the Pass Through Trust 2000-1G
(incorporated by reference to Exhibits 4.15 to America West
Airlines, Inc.’s Registration Statement on Form S-4
dated September 12, 2002).
4
.19
Insurance and Indemnity Agreement (Series G), dated as of
May 17, 2001, among America West Airlines, Ambac Assurance
Corporation as Policy Provider and Wilmington Trust company as
Subordination Agent (incorporated by reference to
Exhibit 4.20 to America West Airlines, Inc.’s
Registration Statement on Form S-4 dated February 14,2002).
4
.20
Indenture, dated as of January 18, 2002, between America
West Holdings Corporation and Wilmington Trust Company, as
Trustee and not in its individual capacity, for America West
Holdings Corporation 7.5% Convertible Senior Notes due 2009
(incorporated by reference to Exhibit 4.15 to America West
Holdings’ and America West Airlines, Inc.’s Current
Report on Form 8-K dated January 31, 2002).
4
.21
Form of America West Holdings Corporation 7.5% Convertible
Senior Notes due 2009 (incorporated by reference to
Exhibit 4.16 to America West Holdings’ and America
West Airlines, Inc.’s Current Report on Form 8-K
dated January 31, 2002).
4
.22
Registration Rights Agreement, dated January 18, 2002, with
respect to shares of Class B Common Stock underlying the
America West Holdings Corporation 7.5% Convertible Senior
Notes due 2009 (incorporated by reference to Exhibit 4.17
to America West Holdings’ and America West Airlines,
Inc.’s Current Report on Form 8-K dated
January 31, 2002).
4
.23
Guaranty, dated as of January 18, 2002, by America West
Airlines, Inc., in favor of the Holders and the Trustee under
the Indenture dated January 18, 2002 (incorporated by
reference to Exhibit 4.18 to America West Holdings’
and America West Airlines, Inc.’s Current Report on
Form 8-K dated January 31, 2002).
4
.24
Registration Rights Agreement, dated January 18, 2002,
between America West Holdings Corporation and the Air
Transportation Stabilization Board with respect to shares of
Class B Common Stock underlying the Warrant to Purchase
Class B Common Stock (incorporated by reference to
Exhibit 4.20 to America West Holdings’ and America
West Airlines, Inc.’s Current Report on Form 8-K dated
January 31, 2002).
4
.25
Warrant Registration Rights Agreement between America West
Holdings Corporation and certain warrant recipients
(incorporated by reference to Exhibit 4.21 to America West
Holdings’ and America West Airlines, Inc.’s Current
Report on Form 8-K dated January 31, 2002).
Guarantee and Exchange Agreement Supplement No. 1, dated as
of September 27, 2005, among America West Holdings
Corporation, US Airways Group, Inc. and U.S. Bank National
Association (incorporated by reference to Exhibit 10.2 to
US Airways Group’s Current Report on Form 8-K dated
September 27, 2005).
5
.1**
Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
23
.1**
Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1).
23
.2*
Consent of KPMG LLP.
23
.3*
Consent of PricewaterhouseCoopers LLP.
23
.4*
Consent of KPMG LLP.
24
.1**
Powers of Attorney signed by the directors of US Airways Group,
authorizing their signatures on this registration statement (see
signature page in Part II of registration statement).
(1) To file, during any period in
which offers or sales are being made, a post-effective amendment
to this registration statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus
any facts or events arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the
effective registration statement;
(iii) To include any material
information with respect to the plan of distribution not
previously disclosed in the registration statement or any
material change to such information the registration statement;
provided, however, that paragraphs (A)(1)(i) and
(A)(1)(ii) do not apply if the registration statement is on
Form S-3,
Form S-8 or
Form F-3, and the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of
determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by
means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(B) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant’s annual report
pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to the initial bona fide
offering thereof.
(C) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by any
such director, officer or controlling person in connection with
the securities being registered, the registrants will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question of whether or not such indemnification
by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of
such issue.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THE REGISTRANT HAS DULY CAUSED THIS REGISTRATION
STATEMENT ON
FORM S-3 TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF TEMPE, STATE OF ARIZONA, ON THE 9th
DAY OF FEBRUARY, 2006.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE
TITLE
DATE
* W. Douglas Parker
Chairman, President and Chief Executive Officer (Principal
Executive Officer)
Agreement and Plan of Merger, dated May 19, 2005, by and
among US Airways Group, Inc. and America West Holdings
Corporation (incorporated by reference to Exhibit 2.1 to US
Airways Group’s Registration Statement on Form S-4
filed on June 28, 2005) (Pursuant to item 601(b)(2) of
Regulation S-K promulgated by the SEC, the exhibits and
schedules to the Agreement and Plan of Merger have been omitted.
Such exhibits and schedules are described in the Agreement and
Plan of Merger. US Airways Group, Inc. hereby agrees to furnish
to the SEC, upon request, any or all of such omitted exhibits or
schedules.)
2
.2
Letter Agreement, dated July 7, 2005 by and among US
Airways Group, Inc., America West Holdings Corporation, Barbell
Acquisition Corp., ACE Aviation Holdings, Inc., Eastshore
Aviation, LLC, Par Investment Partners, L.P., Peninsula
Investment Partners, L.P. and Wellington Management Company, LLP
(incorporated by reference to Exhibit 2.2 to Amendment
No. 1 to US Airways Group’s Registration Statement on
Form S-4 filed on August 8, 2005)
Registration Rights Agreement, dated as of September 30,2005, between the US Airways Group, Inc., America West Airlines,
Inc. and US Airways, Inc., as guarantors, and the initial
purchaser named therein (incorporated by reference to
Exhibit 4.2 to US Airways Group’s Current Report on
Form 8-K dated September 27, 2005).
4
.5
Indenture, dated as of July 30, 2003, between America West
Airlines, Inc. and U.S. Bank National Association, as
trustee and not in its individual capacity, for America West
Airlines, Inc. Senior Exchangeable Notes due 2023 (incorporated
by reference to Exhibit 4.1 to America West Holdings’
and America West Airlines, Inc.’s Quarterly Report on
Form 10-Q for the quarter ended September 30, 2003).
4
.6
Form of America West Airlines, Inc. Senior Exchangeable Note due
2023 (incorporated by reference to Exhibit 4.2 to America
West Holdings’ and America West Airlines, Inc.’s
Quarterly Report on Form 10-Q for the quarter ended
September 30, 2003).
4
.7
Registration Rights Agreement, dated as of July 30, 2003,
with respect to shares of Class B Common Stock underlying
the America West Airlines, Inc. Senior Exchangeable Notes due
2023 (incorporated by reference to Exhibit 4.3 to America
West Holdings’ and America West Airlines, Inc.’s
Quarterly Report on Form 10-Q for the quarter ended
September 30, 2003).
4
.8
Guarantee and Exchange Agreement, dated as of July 30,2003, between America West Holdings Corporation and
U.S. Bank, National Association, as exchange agent and
trustee and not in its individual capacity, for America West
Airlines Inc. Senior Exchangeable Notes due 2023 (incorporated
by reference to Exhibit 4.4 to America West Holdings’
and America West Airlines, Inc.’s Quarterly Report on
Form 10-Q for the quarter ended September 30, 2003).
4
.9
Stock Option Agreement, dated as of December 31, 1996,
between America West Holdings and America West Airlines
(incorporated by reference to Exhibit 4.5 to America West
Holdings’ Registration Statement on Form 8-B dated
January 13, 1997).
Assumption of Certain Obligations Under Registration Rights
Agreement executed by America West Holdings for the benefit of
TPG Partners, L.P., TPG Parallel I, L.P., Air
Partners II, L.P., Continental Airlines, Inc., Mesa
Airlines, Inc., Lehman Brothers, Inc., Belmont Capital
Partners II, L.P. and Belmont Fund, L.P. (incorporated by
reference to Exhibit 4.7 to America West Holdings’
Registration Statement on Form 8-B dated January 13,1997).
4
.12
Form of Pass Through Trust Agreement, dated as of
November 26, 1996, between America West Airlines and Fleet
National Bank, as Trustee (incorporated by reference to
Exhibit 4.1 to America West Airlines, Inc.’s Current
Report on Form 8-K dated November 26, 1996).
4
.13
Form of Pass Through Trust Agreement, dated as of June 17,1997, between America West Airlines and Fleet National Bank, as
Trustee (incorporated by reference to Exhibit 4.5 to
America West Airlines, Inc.’s Registration Statement on
Form S-3 dated June 4, 1997).
4
.14
Forms of Pass Through Trust Agreements, dated as of
October 6, 1998, between America West Airlines and
Wilmington Trust Company, as Trustee (incorporated by reference
to Exhibits 4.4, 4.5, 4.6, 4.7, 4.8 and 4.9 to America West
Airlines, Inc.’s Registration Statement on Form S-4
dated March 25, 1999).
4
.15
Pass Through Trust Agreements, dated as of September 21,1999, between America West Airlines and Wilmington Trust
Company, as Trustee, made with respect to the formation of
America West Airlines Pass Through Trusts, Series 1999-1G-S,
1999-1G-O, 1999-1C-S and 1999-1C-O and the issuance of 7.93%
Initial Pass Through Certificates Series 1999-1G-S and
1999-1G-O, the issuance of 8.54% Initial Pass Through
Certificates, Series 1999-1C-S and 1999-1C-O, the issuance of
7.93% Exchange Pass Through Certificates, Series 1999-1G-S and
1999-1G-O, and the issuance of 8.54% Exchange Pass Through
Certificates, Series 1999-1C-S and 1999-1C-O (incorporated by
reference to America West Airlines, Inc.’s Quarterly Report
on Form 10-Q for the period ended September 30, 1999).
4
.16
Insurance and Indemnity Agreement, dated as of
September 21, 1999, among America West Airlines, Ambac
Assurance Corporation as Policy Provider and Wilmington Trust
Company as Subordination Agent and Trustee under the Pass
Through Trust 1999-1G-O (incorporated by reference to
Exhibits 4.15 to America West Airlines, Inc.’s
Registration Statement on Form S-4 dated March 16,2000).
4
.17
Pass Through Trust Agreement, dated as of July 7, 2000,
between America West Airlines, and Wilmington Trust Company, as
Trustee, made with respect to the formation of America West
Airlines Pass Through Trust, Series 2000-1G-0, 2000-1G-S,
2000-1C-O and 2000-1C-S, the issuance of 8.057% Initial Pass
Through Certificates, Series 2000-1G-O and 2000-1G-S, the
issuance of 9.244% Initial Pass Through Certificates, Series
2000-1C-O and 2000-1C-S, the issuance of 8.057% Exchange Pass
Through Certificates, Series 2000-1G-O and 2000-1G-S and the
issuance of 9.244% Exchange Pass Through Certificates, Series
2000-1C-O and 2000-1C-S (incorporated by reference to
Exhibits 4.3, 4.4, 4.5 and 4.6 to America West Airlines,
Inc.’s Registration Statement on Form S-4 dated
September 12, 2002).
4
.18
Insurance and Indemnity Agreement, dated as of July 7,2000, among America West Airlines, Ambac Assurance Corporation
as Policy Provider and Wilmington Trust company as Subordination
Agent and Trustee under the Pass Through Trust 2000-1G
(incorporated by reference to Exhibits 4.15 to America West
Airlines, Inc.’s Registration Statement on Form S-4
dated September 12, 2002).
4
.19
Insurance and Indemnity Agreement (Series G), dated as of
May 17, 2001, among America West Airlines, Ambac Assurance
Corporation as Policy Provider and Wilmington Trust company as
Subordination Agent (incorporated by reference to
Exhibit 4.20 to America West Airlines, Inc.’s
Registration Statement on Form S-4 dated February 14,2002).
4
.20
Indenture, dated as of January 18, 2002, between America
West Holdings Corporation and Wilmington Trust Company, as
Trustee and not in its individual capacity, for America West
Holdings Corporation 7.5% Convertible Senior Notes due 2009
(incorporated by reference to Exhibit 4.15 to America West
Holdings’ and America West Airlines, Inc.’s Current
Report on Form 8-K dated January 31, 2002).
4
.21
Form of America West Holdings Corporation 7.5% Convertible
Senior Notes due 2009 (incorporated by reference to
Exhibit 4.16 to America West Holdings’ and America
West Airlines, Inc.’s Current Report on Form 8-K dated
January 31, 2002).
Registration Rights Agreement, dated January 18, 2002, with
respect to shares of Class B Common Stock underlying the
America West Holdings Corporation 7.5% Convertible Senior
Notes due 2009 (incorporated by reference to Exhibit 4.17
to America West Holdings’ and America West Airlines,
Inc.’s Current Report on Form 8-K dated
January 31, 2002).
4
.23
Guaranty, dated as of January 18, 2002, by America West
Airlines, Inc., in favor of the Holders and the Trustee under
the Indenture dated January 18, 2002 (incorporated by
reference to Exhibit 4.18 to America West Holdings’
and America West Airlines, Inc.’s Current Report on
Form 8-K dated January 31, 2002).
4
.24
Registration Rights Agreement, dated January 18, 2002,
between America West Holdings Corporation and the Air
Transportation Stabilization Board with respect to shares of
Class B Common Stock underlying the Warrant to Purchase
Class B Common Stock (incorporated by reference to
Exhibit 4.20 to America West Holdings’ and America
West Airlines, Inc.’s Current Report on Form 8-K dated
January 31, 2002).
4
.25
Warrant Registration Rights Agreement between America West
Holdings Corporation and certain warrant recipients
(incorporated by reference to Exhibit 4.21 to America West
Holdings’ and America West Airlines, Inc.’s Current
Report on Form 8-K dated January 31, 2002).
Guarantee and Exchange Agreement Supplement No. 1, dated at
of September 27, 2005, among America West Holdings
Corporation, US Airways Group, Inc. and U.S. Bank National
Association (incorporated by reference to Exhibit 10.2 to
US Airways Group’s Current Report on Form 8-K dated
September 27, 2005).
5
.1**
Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
23
.1**
Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1).
23
.2*
Consent of KPMG LLP.
23
.3*
Consent of PricewaterhouseCoopers LLP.
23
.4*
Consent of KPMG LLP.
24
.1**
Powers of Attorney signed by the directors of US Airways Group,
authorizing their signatures on this registration statement (see
signature page in Part II of registration statement).
