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AGREEMENT AND PLAN OF MERGER
AMONG
HAWAIIAN HOLDINGS, INC.,
HAWAIIAN AIRLINES, INC.
AND
HA SUB INC.
DATED AS OF MAY 2, 2002
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TABLE OF CONTENTS
PAGE
ARTICLE I MERGER............................................................3
Section 1.1 Merger.....................................................3
Section 1.2 Effective Time.............................................3
Section 1.3 Organizational Documents...................................3
Section 1.4 Directors..................................................4
Section 1.5 Officers...................................................4
ARTICLE II CONVERSION OF SECURITIES; ISSUANCE OF NEW SECURITIES;
STOCK CERTIFICATES...............................................4
Section 2.1 Conversion of Securities...................................4
Section 2.2 Stock Certificates.........................................5
Section 2.3 Issuance of Special Preferred Stock........................5
Section 2.4 Stock Options; 401(k) Plans................................6
Section 2.5 Dissenting Shares..........................................6
ARTICLE III CONDITIONS TO MERGER............................................7
Section 3.1 Conditions Precedent.......................................7
ARTICLE IV TERMINATION AND AMENDMENT........................................8
Section 4.1 Termination................................................8
Section 4.2 Amendment..................................................8
ARTICLE V GENERAL PROVISIONS................................................8
Section 5.1 Governing Law..............................................8
Section 5.2 Notices....................................................8
Section 5.3 Entire Agreement...........................................9
Section 5.4 Headings...................................................9
Section 5.5 Counterparts..............................................10
Section 5.6 Assignment................................................10
Section 5.7 Severability..............................................10
Exhibit A Form of Amended and Restated Certificate of Incorporation
of Hawaiian Holdings, Inc.......................................A-1
Exhibit B Form of Amended Bylaws of Hawaiian Holdings, Inc................B-1
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GLOSSARY OF DEFINED TERMS
DEFINED TERMS LOCATION
- ------------- --------
Agreement................................................... Preamble
AIP GP...................................................... Recitals
AIP Inc..................................................... Recitals
AIP LLC..................................................... Recitals
AIP Merger Agreement........................................ Recitals
AIP Merger Sub.............................................. Recitals
AIP Mergers................................................. Recitals
Ancillary Agreements........................................ Recitals
Annual Meeting.............................................. Section 3.1(a)
Articles of Merger.......................................... Section 1.2(a)
Code........................................................ Recitals
DGCL........................................................ Section 1.3(a)
Dissenting Shares........................................... Section 2.5(a)
Effective Time.............................................. Section 1.2(a)
First AIP Merger............................................ Recitals
Hawaiian Holdings........................................... Preamble
Hawaiian Holdings Common Stock.............................. Section 2.1(a)
Hawaiian Holdings Series A Special Preferred Stock.......... Section 2.3(a)
Hawaiian Holdings Series B Special Preferred Stock.......... Section 2.3(b)
Hawaiian Holdings Series C Special Preferred Stock.......... Section 2.3(b)
Hawaiian Holdings Series D Special Preferred Stock.......... Section 2.3(b)
Hawaiian Holdings Special Preferred Stock................... Section 2.3(b)
Hawaiian.................................................... Preamble
Hawaiian Common Stock....................................... Section 2.1(a)
Hawaiian Option............................................. Section 2.4(a)
Hawaiian Option Plans....................................... Section 2.4(a)
Hawaiian Series B Special Preferred Stock................... Section 2.1(b)
Hawaiian Series C Special Preferred Stock .................. Section 2.1(b)
Hawaiian Series D Special Preferred Stock................... Section 2.1(b)
Hawaiian Series E Special Preferred Stock................... Section 2.1(b)
Hawaiian Shareholder Approval............................... Recitals
HBCA........................................................ Recitals
Joinder to the Stockholders Agreement....................... Recitals
Merger...................................................... Recitals
Merger Sub.................................................. Preamble
Pilot Allocation Agreement.................................. Section 2.4(b)
Registration Rights Agreement............................... Recitals
Reorganization.............................................. Recitals
Rights Agreement............................................ Recitals
Second AIP Merger........................................... Recitals
Securities Act.............................................. Section 2.4(a)
Surviving Corporation....................................... Section 1.1
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of May 2,
2002, by and among Hawaiian Airlines, Inc., a Hawaii corporation ("HAWAIIAN"),
Hawaiian Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of
Hawaiian ("HAWAIIAN HOLDINGS"), and HA Sub Inc., a Hawaii corporation and a
wholly owned subsidiary of Hawaiian Holdings ("MERGER SUB").
WITNESSETH:
WHEREAS, the respective Boards of Directors of Hawaiian Holdings,
Hawaiian and Merger Sub have each approved and adopted this Agreement and the
Ancillary Agreements (as defined below) to which it is a party and the
transactions contemplated by this Agreement and such Ancillary Agreements,
including, without limitation, the reorganization of Hawaiian into a Delaware
holding company structure, in each case after making a determination that this
Agreement and such Ancillary Agreements and such transactions are advisable and
fair to, and in the best interests of, such corporation and its shareholders;
WHEREAS, the Board of Directors of Hawaiian, by resolutions adopted at
the April 26, 2002 meeting of such Board of Directors, has deemed the Merger (as
defined below) to be an "Approved Section 13(a) Transaction" and deemed AIP Inc.
(as defined below) not to be an "Acquiring Person," in each case, under the
Rights Agreement, dated December 23, 1994, by and between Hawaiian and
ChaseMellon Shareholder Services, L.L.C. (as successor to Chemical Trust Company
of California) (as amended, supplemented or otherwise modified from time to
time, the "RIGHTS AGREEMENT");
WHEREAS, Hawaiian Holdings, in its capacity as the sole shareholder of
Merger Sub has adopted and approved this Agreement;
WHEREAS, Hawaiian Holdings, AIP Merger Sub, Inc., a Delaware
corporation and a wholly owned subsidiary of Hawaiian Holdings ("AIP MERGER
SUB"), AIP General Partner, Inc., a Delaware corporation ("AIP GP") (which is
the sole general partner of Airline Investors Partnership, L.P., a Delaware
limited partnership and the majority shareholder of Hawaiian ("AIP")), and AIP,
Inc., a Delaware corporation ("AIP INC.") (which is the sole limited partner of
AIP), have entered into an Agreement and Plan of Merger (the "AIP MERGER
AGREEMENT"), dated as of the date hereof, pursuant to which, INTER ALIA, (a)
prior to the effective time of the AIP Mergers (as defined below), (i) the
shareholders of each of AIP GP and AIP Inc. will contribute all of the
outstanding shares of capital stock of AIP GP and AIP Inc. to AIP, LLC, a
Delaware limited liability company ("AIP LLC") and become the sole holders of
membership interests of AIP LLC and (ii) as permitted by Section 4(a)(i)a) of
the Designation of the Hawaiian Series B Special Preferred Stock (as defined
below), AIP will transfer the four shares of Hawaiian Series B Special Preferred
Stock (as defined below) that it holds to AIP's affiliate, John W. Adams; and
(b) prior to the Effective Time (as defined below), (i) AIP GP will merge with
and into AIP Inc., with AIP Inc. as the surviving corporation (the "FIRST AIP
MERGER"), as a result of which AIP Inc. will hold all of the partnership
interests in AIP and AIP will therefore cease to exist, with AIP Inc. thereby
becoming the direct holder of all of the shares of Hawaiian Common Stock (as
defined below) held by AIP immediately prior thereto, (ii) immediately after the
First AIP Merger, AIP Merger Sub will merge with and into AIP Inc., with AIP
Inc. as the surviving corporation (the "SECOND AIP MERGER" and, together with
the First AIP Merger, the "AIP MERGERS"), and (iii) pursuant to the Second AIP
Merger, AIP LLC will have its shares of AIP Inc. converted into the right to
receive a number of shares of Hawaiian Holdings Common Stock (as defined below)
equal to the number of shares of Hawaiian Common Stock held by AIP immediately
prior to the AIP Mergers;
WHEREAS, at the Effective Time, pursuant to the transactions
contemplated by this Agreement and on the terms and subject to the conditions
set forth herein, INTER ALIA, (i) Merger Sub, in accordance with the Hawaii
Business Corporation Act (as amended from time to time, the "HBCA"), will merge
with and into Hawaiian, with Hawaiian as the surviving corporation (the "MERGER"
and, together with the Second AIP Merger, the "REORGANIZATION"), (ii) each share
of Hawaiian Common Stock (other than such shares held by AIP Inc., which shares
shall continue to be outstanding and held by AIP Inc. as a wholly owned
subsidiary of Hawaiian Holdings) will be converted into the right to receive one
share of Hawaiian Holdings Common Stock, (iii) each share of Hawaiian Special
Preferred Stock (as defined below) will be converted into the right to receive
one share of Hawaiian Holdings Common Stock, and (iv) each share of Hawaiian
Holdings Common Stock held by Hawaiian (being the 100 shares issued upon the
formation of Hawaiian Holdings) will be canceled;
WHEREAS, immediately after the Effective Time, Hawaiian Holdings and
AIP LLC will enter into a Registration Rights Agreement, substantially in the
form attached as EXHIBIT A to the AIP Merger Agreement, and a Joinder to the
Stockholders Agreement, substantially in the form attached as Exhibit B to the
AIP Merger Agreement (collectively, with the AIP Merger Agreement, the
"ANCILLARY AGREEMENTS");
WHEREAS, the consummation of the Merger requires, among other things,
the approval of this Agreement by the affirmative vote of (i) 75% of the
outstanding shares of Hawaiian Common Stock and Hawaiian Special Preferred
Stock, voting as a single voting group and (ii) a majority of the outstanding
shares of Hawaiian Special Preferred Stock represented at the Annual Meeting (as
defined below), voting as a single voting group (collectively, the "HAWAIIAN
SHAREHOLDER APPROVAL"); and
WHEREAS, it is the intention of the parties hereto that the
Reorganization shall be a tax-free transaction under Section 351 of the Internal
Revenue Code of 1986, as amended (the "CODE"), and the rules and regulations
promulgated thereunder.
NOW, THEREFORE, in furtherance of the foregoing, the parties agree as
follows:
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ARTICLE I
MERGER
Section 1.1 MERGER. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the HBCA, Merger Sub shall be
merged with and into Hawaiian at the Effective Time (as defined below) of the
Merger. Following the Effective Time of the Merger, the separate corporate
existence of Merger Sub shall cease, and Hawaiian shall continue as the
surviving corporation (the "SURVIVING CORPORATION"), becoming a wholly owned
subsidiary, directly and indirectly, of Hawaiian Holdings. The effects and the
consequences of the Merger shall be as set forth in this Agreement and the HBCA.
Section 1.2 EFFECTIVE TIME. (a) Subject to the provisions of this
Agreement, as soon as practicable following the satisfaction or waiver of the
conditions set forth in Section 3.1, the parties shall duly prepare, execute and
file articles of merger (the "ARTICLES OF MERGER") complying with Section
414-315 of the HBCA with the Director of the Department of Commerce and Consumer
Affairs of the State of Hawaii. The Merger shall become effective upon the
filing of the Articles of Merger (or at such later time reflected in such
Articles of Merger as shall be agreed to by Hawaiian Holdings and Hawaiian). The
date and time when the Merger shall become effective is hereinafter referred to
as the "EFFECTIVE TIME."
(b) The Merger shall have the effects set forth in the HBCA, including
without limitation, Section 414-316 of the HBCA. Without limiting the generality
of the foregoing, and subject thereto, at the Effective Time, (i) all the
properties, rights, privileges, immunities, powers and franchises of Hawaiian
and Merger Sub shall vest in the Surviving Corporation, and (ii) all debts,
liabilities, obligations and duties of Hawaiian and Merger Sub shall become the
debts, liabilities, obligations and duties of the Surviving Corporation.
Section 1.3 ORGANIZATIONAL DOCUMENTS. (a) The parties shall cause (i)
the Certificate of Incorporation of Hawaiian Holdings to be amended and restated
to be in the form set forth in EXHIBIT A hereto and (ii) the Bylaws of Hawaiian
Holdings to be amended and restated to be in the form set forth in EXHIBIT B
hereto, in each case as of immediately prior to the effective time of the AIP
Mergers. As so amended and restated, the Certificate of Incorporation and the
Bylaws of Hawaiian Holdings shall be the Certificate of Incorporation and Bylaws
of Hawaiian Holdings until thereafter changed or amended either (A) as provided
therein or by the Delaware General Corporation Law (as amended from time to
time, the "DGCL"), in the case of such Certificate of Incorporation, or (B) as
provided therein, by the Certificate of Incorporation or by the DGCL, in the
case of such Bylaws.
(b) The Articles of Incorporation and the Bylaws of Merger Sub in
effect at the Effective Time shall become the Articles of Incorporation and
Bylaws of the Surviving Corporation until thereafter amended as provided therein
or by the HBCA;
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PROVIDED, HOWEVER, that Article I of such Articles of Incorporation shall
provide that the name of the Surviving Corporation shall be "Hawaiian Airlines,
Inc."
Section 1.4 DIRECTORS. The directors of Hawaiian immediately prior to
the Effective Time shall be the directors of each of Hawaiian Holdings and the
Surviving Corporation from and after the Effective Time and shall hold office
until the earlier of their respective death, resignation or removal or their
respective successors are duly elected or appointed and qualified in the manner
provided for in the Certificate of Incorporation and Bylaws of Hawaiian
Holdings, or as otherwise provided by the DGCL (in the case of the directors of
Hawaiian Holdings), and in the Articles of Incorporation and Bylaws of the
Surviving Corporation, or as otherwise provided by the HBCA (in the case of the
directors of the Surviving Corporation).
Section 1.5 OFFICERS. The officers of Hawaiian immediately prior to the
Effective Time shall be the officers of each of Hawaiian Holdings and the
Surviving Corporation from and after the Effective Time and shall hold office
until the earlier of their respective death, resignation or removal or their
respective successors are duly elected or appointed and qualified in the manner
provided for in the Certificate of Incorporation and Bylaws of Hawaiian
Holdings, or as otherwise provided by the DGCL (in the case of the officers of
Hawaiian Holdings), and in the articles of incorporation and bylaws of the
Surviving Corporation, or as otherwise provided by the HBCA (in the case of the
officers of the Surviving Corporation).
ARTICLE II
CONVERSION OF SECURITIES; ISSUANCE OF NEW SECURITIES;
STOCK CERTIFICATES
Section 2.1 CONVERSION OF SECURITIES. At the Effective Time, by virtue
of the Merger and without any action on the part of the holders of shares of
Hawaiian Common Stock and Hawaiian Special Preferred Stock:
(a) each share of Hawaiian Common Stock, par value $.01 per share, of
Hawaiian, together with the rights associated with such shares pursuant to the
Rights Agreement ("HAWAIIAN COMMON STOCK"), issued and outstanding immediately
prior to the Effective Time (other than any shares of Hawaiian Common Stock held
by AIP Inc., which shares shall continue to be outstanding, and each Dissenting
Share (as defined below)) shall be converted into the right to receive one
validly issued, fully paid and nonassessable share of Common Stock, par value
$.01 per share, of Hawaiian Holdings ("HAWAIIAN HOLDINGS COMMON STOCK");
(b) each share of (i) Series B Special Preferred Stock, par value $.01
per share, of Hawaiian ("HAWAIIAN SERIES B SPECIAL PREFERRED STOCK"), (ii)
Series C Special Preferred Stock, par value $.01 per share, of Hawaiian
("HAWAIIAN SERIES C SPECIAL PREFERRED STOCK"), (iii) Series D Special Preferred
Stock, par value $.01 per share, of Hawaiian ("HAWAIIAN SERIES D SPECIAL
PREFERRED STOCK"), and (iv) Series E Special Preferred Stock, par value $.01 per
share, of Hawaiian ("HAWAIIAN SERIES E SPECIAL
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PREFERRED STOCK" and, collectively with the foregoing, "HAWAIIAN SPECIAL
PREFERRED STOCK") issued and outstanding immediately prior to the Effective Time
shall be converted into the right to receive one validly issued, fully paid and
nonassessable share of Hawaiian Holdings Common Stock;
(c) each share of capital stock of Hawaiian Holdings, including,
without limitation, Hawaiian Holdings Common Stock, that is issued, outstanding
and held by Hawaiian immediately prior to the Effective Time shall be canceled
and extinguished without any conversion thereof and no payment shall be made
with respect thereto; and
(d) each share of common stock of Merger Sub issued and outstanding
immediately prior to the Effective Time shall convert into a number of validly
issued, fully paid and nonassessable shares of common stock, par value $.01 per
share, of the Surviving Corporation equal to the number obtained by dividing (i)
the number of shares of Hawaiian Common Stock issued and outstanding immediately
prior to the Effective Time (other than shares of Hawaiian Common Stock held by
AIP Inc.) by (ii) 1000.
Section 2.2 STOCK CERTIFICATES. From and after the Effective Time,
subject to Section 2.1, all of the outstanding certificates which immediately
prior to the Effective Time represented shares of Hawaiian Common Stock and
shares of Hawaiian Special Preferred Stock shall be deemed for all purposes to
evidence ownership of, and to represent, shares of Hawaiian Holdings Common
Stock into which the shares of Hawaiian Common Stock and Hawaiian Special
Preferred Stock formerly represented by such certificates have been converted as
provided in this Agreement. The registered owner on the books and records of
Hawaiian Holdings or its transfer agent of any outstanding stock certificate
shall, until such certificate shall have been surrendered for transfer or
otherwise accounted for to Hawaiian Holdings or its transfer agent, have and be
entitled to exercise any voting and other rights with respect to, and to receive
any dividends and other distributions upon, the shares of Hawaiian Holdings
Common Stock evidenced by such outstanding certificates which prior to the
Merger represented shares of Hawaiian Common Stock and Special Preferred Stock
as provided above.
Section 2.3 ISSUANCE OF SPECIAL PREFERRED STOCK. (a) Immediately
following the Effective Time, Hawaiian Holdings shall issue to AIP LLC four
validly issued, fully paid and nonassessable shares of Series A Special
Preferred Stock, par value $.01 per share, of Hawaiian Holdings ("HAWAIIAN
HOLDINGS SERIES A SPECIAL PREFERRED STOCK").
(b) Immediately following the Effective Time, pursuant to the
applicable collective bargaining agreement which shall continue to be binding on
the Surviving Corporation by operation of law, Hawaiian Holdings shall issue (i)
to the Association of Flight Attendants one validly issued, fully paid and
nonassessable share of Series B Special Preferred Stock, par value $.01 per
share, of Hawaiian Holdings ("HAWAIIAN HOLDINGS SERIES B SPECIAL PREFERRED
STOCK"), (ii) to the International Association of Machinists and Aerospace
Workers one validly issued, fully paid and nonassessable share of Series C
Special Preferred Stock, par value $.01 per share, of
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Hawaiian Holdings ("HAWAIIAN HOLDINGS SERIES C SPECIAL PREFERRED STOCK") and
(iii) to the Hawaiian Master Executive Council c/o the Air Line Pilots
Association, International one validly issued, fully paid and nonassessable
share of Series D Special Preferred Stock, par value $.01 per share, of Hawaiian
Holdings ("HAWAIIAN HOLDINGS SERIES D SPECIAL PREFERRED STOCK" and, collectively
with the foregoing and the Hawaiian Holdings Series A Special Preferred Stock,
the "HAWAIIAN HOLDINGS SPECIAL PREFERRED STOCK").
(c) The rights, preferences and privileges of the shares of Hawaiian
Holdings Special Preferred Stock issued pursuant to this Section 2.3 shall be as
set forth in the Certificate of Incorporation attached hereto as EXHIBIT A.
Section 2.4 STOCK OPTIONS; 401(K) PLANS. (a) Hawaiian Holdings shall
assume sponsorship of each of Hawaiian's 1994 Stock Option Plan, as amended,
Hawaiian's 1996 Stock Incentive Plan, as amended, Hawaiian's 1996 Nonemployee
Director Stock Option Plan, as amended (collectively, the "HAWAIIAN OPTION
PLANS"). In addition, each option to purchase Hawaiian Common Stock (each a
"HAWAIIAN OPTION") issued under a Hawaiian Option Plan or granted by Hawaiian
outside of the Hawaiian Option Plans that is outstanding and unexercised
immediately prior to the Effective Time shall, as of such time, be assumed by
Hawaiian Holdings in such a manner that it is converted into an option to
acquire, on substantially similar terms and conditions as were applicable under
the respective Hawaiian Option Plans and the underlying option agreements (as
modified by this Section 2.4), that number of shares of Hawaiian Holdings Common
Stock equal to the number of shares of Hawaiian Common Stock subject to such
Hawaiian Option at an exercise price per share equal to the exercise price per
share for such Hawaiian Option immediately prior to the Effective Time. As soon
as reasonably practicable, Hawaiian Holdings shall file a registration statement
under the Securities Act of 1933, as amended (the "SECURITIES Act") on Form S-8
with respect to the shares of Hawaiian Holdings Common Stock subject to such
assumed options or otherwise available under the Hawaiian Option Plans.
(b) From and after the Effective Time, each pilot participant eligible
to receive a share of Hawaiian Common Stock under Hawaiian's Pilots' 401(k) Plan
and that certain Stock Allocation Agreement, dated May, 2001 (collectively
referred to herein as the "PILOT ALLOCATION AGREEMENT") from the Stock Pool (as
defined under such Pilot Allocation Agreement), shall be eligible to receive one
share of Hawaiian Holdings Common Stock, and otherwise on the same terms and
conditions as were applicable, under the Pilot Allocation Agreement.
Section 2.5 DISSENTING SHARES. (a) Notwithstanding any provision of
this Agreement to the contrary, any Hawaiian Share held by a holder who has
exercised dissenters' rights for such shares in accordance with the HBCA and
who, as of the Effective Time, has not effectively withdrawn or lost such
dissenters' rights ("DISSENTING SHARES"), shall not be converted into or
represent a right to receive shares of Hawaiian Holdings Common Stock in the
Merger, but the holder thereof shall only be entitled to such rights as are
granted by the HBCA.
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(b) Notwithstanding the provisions of Section 2.5(a), if any holder of
Dissenting Shares shall effectively withdraw or lose (through failure to perfect
or otherwise) his dissenters' rights, then, as of the later of the Effective
Time and the occurrence of such event, such holder's shares shall automatically
be converted into and represent only the right to receive shares of Hawaiian
Holdings Common Stock, without interest thereon, upon surrender of the
certificate or certificates representing such Dissenting Shares.
ARTICLE III
CONDITIONS TO MERGER
Section 3.1 CONDITIONS PRECEDENT. The respective obligation of each
party to effect the Merger is subject to the satisfaction or waiver of each of
the following conditions:
(a) The Hawaiian Shareholder Approval shall have been obtained at the
2002 Annual Meeting of the shareholders of Hawaiian (the "ANNUAL MEETING").
(b) The AIP Mergers shall have been consummated in accordance with the
AIP Merger Agreement.
(c) The registration statement on Form S-4 filed with the Securities
and Exchange Commission by Hawaiian Holdings in connection with the issuance of
shares of Hawaiian Holdings Common Stock in the Merger shall have become
effective under the Securities Act, and shall not be the subject of any stop
order or proceedings seeking a stop order.
(d) Hawaiian shall have received a written opinion from Paul, Weiss,
Rifkind, Wharton & Garrison to the effect that (i) holders of Hawaiian Common
Stock and Hawaiian Special Preferred Stock will not recognize any gain or loss
on the exchange of such Hawaiian Common Stock and Hawaiian Special Preferred
Stock for Hawaiian Holdings Common Stock and (ii) the Reorganization will
constitute a tax-free transaction under Section 351 of Code.
(e) No court or governmental entity of competent jurisdiction shall
have enacted, issued, promulgated, enforced or entered any law or order (whether
temporary, preliminary or permanent) that is in effect and has a material
adverse effect on Hawaiian or enjoins or otherwise prohibits consummation of the
transactions contemplated by this Agreement and no judicial or administrative
proceeding that seeks any such result shall continue to be pending.
(f) All required approvals, licenses and certifications from, and
notifications and filings to, governmental entities and non-governmental third
parties shall have been obtained or made, as applicable.
(g) The shares of Hawaiian Holdings Common Stock issuable in the Merger
pursuant to Article II and such other shares to be reserved for issuance in
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connection with the Merger shall have been authorized for listing on the
American Stock Exchange and the Pacific Exchange, subject only to official
notice of issuance.
ARTICLE IV
TERMINATION AND AMENDMENT
Section 4.1 TERMINATION. This Agreement may be terminated at any time
prior to the Effective Time, whether before or after the Hawaiian Shareholder
Approval, by the affirmative vote of two-thirds of the boards of directors of
each of Hawaiian Holdings and Hawaiian. In the event of such termination, this
Agreement shall become null and void and have no effect, without any liability
or obligation on the part of Hawaiian, Merger Sub or Hawaiian Holdings by reason
of this Agreement.
Section 4.2 AMENDMENT. This Agreement may be amended, modified or
supplemented at any time before or after the Hawaiian Shareholder Approval;
PROVIDED, HOWEVER, that after any such approval and prior to the Effective Time,
there shall be made no amendment that (a) alters or changes the amount or kind
of shares to be received by shareholders in the Merger or by AIP LLC or its
affiliates in the AIP Mergers; (b) alters or changes any term of the Certificate
of Incorporation or Bylaws of Hawaiian Holdings or the articles of incorporation
or bylaws of the Surviving Corporation, except for alterations or changes that
could otherwise be adopted by the directors of Hawaiian Holdings or the
Surviving Corporation, as applicable; or (c) alters or changes any other terms
and conditions of this Agreement if any of the alterations or changes, alone or
in the aggregate, would materially adversely affect the holders of shares of
Hawaiian Common Stock. This Agreement may not be amended except after approval
by a majority of the board of directors of Hawaiian and evidenced by an
instrument in writing signed on behalf of each of the parties.
ARTICLE V
GENERAL PROVISIONS
Section 5.1 GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware applicable to
contracts to be made and performed entirely therein without giving effect to the
principles of conflicts of law thereof or of any other jurisdiction, except to
the extent that provisions of the HBCA are mandatorily applicable.
Section 5.2 NOTICES. All notices, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly given (a)
when delivered by hand or by Federal Express or a similar overnight courier or
(b) when successfully transmitted by telecopier (with a confirming copy of such
communication to be sent as provided in clauses (a) or (b) above) to the party
for whom intended, at the address or telecopier number for such party set forth
below (or at such other address or telecopier number for a party as shall be
specified by like notice, provided, however, that
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any notice of change of address or telecopier number shall be effective only
upon receipt):
If to Merger Sub, to:
HA Sub Inc.
3375 Koapaka Street, Suite G-350
Honolulu, Hawaii 96819-1869
Telecopier No. (808) 835-3690
Attention: Secretary
If to Hawaiian, to:
Hawaiian Airlines, Inc.
3375 Koapaka Street, Suite G-350
Honolulu, Hawaii 96819-1869
Telecopier No. (808) 835-3690
Attention: General Counsel
If to Hawaiian Holdings, to:
Hawaiian Holdings, Inc.
3375 Koapaka Street, Suite G-350
Honolulu, Hawaii 96819-1869
Telecopier No. (808) 835-3690
Attention: Secretary
Copies of all notices, requests, permissions, waivers, referrals and
all other communications hereunder given prior to the Effective Time shall be
given to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Telecopier No. (212) 757-3990
Attention: Judith R. Thoyer, Esq.
Section 5.3 ENTIRE AGREEMENT. This Agreement (including the documents
and the instruments referred to herein), together with all exhibits, schedules,
appendices, certificates, instruments and agreements delivered pursuant hereto
and thereto (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof, and (b) except as provided herein, is not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder.
Section 5.4 HEADINGS. Headings of the articles and sections of this
Agreement, the table of contents are for convenience of the parties only, and
shall be given no substantive or interpretative effect whatsoever.
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Section 5.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when executed and delivered shall be deemed to be an
original and all of which shall together be considered one and the same
agreement.
Section 5.6 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective permitted successors and assigns.
Section 5.7 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
HAWAIIAN HOLDINGS, INC.
By: /S/ JOHN W. ADAMS
-----------------------------------
Name: John W. Adams
Title: President
HAWAIIAN AIRLINES, INC.
By: /S/ PAUL J. CASEY
-----------------------------------
Name: Paul J. Casey
Title: Vice Chairman, Chief Executive
Officer and President
By: /S/ CHRISTINE R. DEISTER
------------------------------------
Name: Christine R. Deister
Title: Executive Vice President and
Chief Financial Officer
HA SUB INC.
By: /S/ CHRISTINE R. DEISTER
-------------------------------------
Name: Christine R. Deister
Title: Vice President, Treasurer
By: /S/ LYN F. ANZAI
-------------------------------------
Name: Lyn F. Anzai
Title: ice President, Secretary