Exhibit 2
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of December 19, 2001 (this
"AGREEMENT"), among Airline Investors Partnership, L.P., a Delaware limited
partnership ("C"), Aloha Airgroup, Inc., a Hawaii corporation ("A"), and
TurnWorks Acquisition III, Inc., a Delaware corporation to be renamed Aloha
Holdings, Inc. upon consummation of the merger transactions described below (the
"COMPANY").
RECITALS
WHEREAS, concurrently with the execution and delivery of this
Agreement, A, Hawaiian Airlines, Inc., a Hawaii corporation ("B"), the Company
and TurnWorks, Inc., a Texas corporation ("TW"), are entering into an Agreement
and Plan of Merger, dated as of the date hereof (the "MERGER AGREEMENT"), which
provides, among other things, for (i) the merger of A with and into Newco A Sub
(as defined in the Merger Agreement), with Newco A Sub as the surviving
corporation, and (ii) the merger of B with and into Newco B LLC (as defined in
the Merger Agreement) (or, if any Drop-Down Condition (as defined in the Merger
Agreement) is satisfied, the Company), with Newco B LLC (or, if any Drop-Down
Condition is satisfied, the Company) as the surviving corporation (such mergers,
collectively, the "MERGER");
WHEREAS, certain principal stockholders of A (the "A PRINCIPAL
HOLDERS"), who collectively beneficially own shares of capital stock of A
representing in excess of 80% of the votes entitled to be cast at the A
Stockholders' Meeting (as defined below) have entered into a Voting Agreement
for the benefit of B and the Company (the "A PRINCIPAL HOLDERS VOTING
AGREEMENT"), pursuant to which the A Principal Holders have committed, INTER
ALIA, on the terms set forth in the A Principal Holders Voting Agreement, to
vote their shares of capital stock of A at the A Stockholders' Meeting in favor
of the adoption of the Merger Agreement and the ancillary agreements and the
transactions contemplated thereby;
WHEREAS, it is a condition to the execution of the Merger
Agreement that the parties hereto enter into this Agreement; and
WHEREAS, as of the date hereof, C is the Beneficial Owner (as
defined below) of 18,181,818 shares of Common Stock, par value $.01 per share,
of B and four shares of Series B Special Preferred Stock, par value $.01 per
share, of B (collectively, the "SHARES" and together with such additional
Shares, as they become Beneficially Owned by C after the date hereof, C's "OWNED
SHARES").
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements set forth herein, the parties hereto agree
as follows:
SECTION 1. CERTAIN DEFINITIONS. Capitalized terms used but not
defined in this Agreement shall have the meanings given to such terms in the
Merger Agreement. In addition, for purposes of this Agreement:
"A" shall have the meaning set forth in the opening paragraph.
"AFFILIATE" shall have the meaning set forth in Section
10.03(a) of the Merger Agreement, except that, for purposes of this Agreement,
with respect to C, "Affiliate" shall not include B or any of the persons that
are directly or indirectly controlled or employed by B, unless, in the case of
employees of B, such persons also directly or indirectly control C; PROVIDED,
HOWEVER, Xxxx X. Xxxxx, acting in his capacity as Chairman of the Board of
Directors of B, shall not be deemed an Affiliate of B.
"AGREEMENT" shall have the meaning set forth in the opening
paragraph.
"ANCILLARY AGREEMENTS" has the meaning set forth in the Merger
Agreement.
"B" shall have the meaning set forth in the recitals.
"BENEFICIALLY OWNED" or "BENEFICIAL OWNERSHIP" shall have the
meaning given to such term in Rule 13d-3 under the Exchange Act. Securities
Beneficially Owned by a person shall include all securities Beneficially Owned
by Affiliates of such person and all other persons with whom such person would
constitute a "group" within the meaning of Section 13(d) of the Exchange Act and
the rules promulgated thereunder.
"BENEFICIAL OWNER" shall mean, with respect to any securities,
a person who has Beneficial Ownership of such securities.
"C" shall have the meaning set forth in the opening paragraph.
"CHARTER DOCUMENTS" means the Articles of Incorporation and
the By-laws of B, as in effect as of the date hereof.
"COMPANY" shall have the meaning set forth in the opening
paragraph.
"MERGER" shall have the meaning set forth in the recitals.
"MERGER AGREEMENT" shall have the meaning set forth in the
recitals.
"OWNED SHARES" shall have the meaning set forth in the
recitals.
"SHARES" shall have the meaning set forth in the recitals.
"TRANSFER" shall mean, with respect to a security, the sale,
transfer, pledge, hypothecation, encumbrance, assignment or disposition of such
security or the Beneficial Ownership thereof, the offer to make such a sale,
transfer or disposition, and each option, agreement, arrangement or
understanding, whether or not in writing, to effect any of the foregoing. As a
verb, "TRANSFER" shall have a correlative meaning.
"TW" shall have the meaning set forth in the recitals.
SECTION 2. NO DISPOSITION OR SOLICITATION. (a) C undertakes
that, except as contemplated by this Agreement or the Merger Agreement, C and
its Affiliates shall not (i)
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Transfer or agree to Transfer any Owned Shares or (ii) grant or agree to grant
any proxy or power-of-attorney with respect to any Owned Shares.
(b) C undertakes that, except as contemplated by Section 9, C
and its Affiliates shall not directly or indirectly solicit, initiate, or
knowingly encourage any inquiries or proposals from, discuss or negotiate with,
or provide any non-public information to, any person relating to, or otherwise
facilitate, any Takeover Proposal.
(c) C undertakes that, except as contemplated by Section 9, or
as required by applicable Law or stock exchange rule, neither C nor any of its
Affiliates shall make any press release, public announcement or other
communication to any party (other than B, the parties hereto and their
respective Affiliates) with respect to the business or affairs of any of the
parties to the Merger Agreement or the ancillary agreements or their respective
Affiliates, including this Agreement, the Merger Agreement and the other
ancillary agreements and the transactions contemplated hereby and thereby,
without the prior written consent of A and the Company.
SECTION 3. STOCKHOLDER VOTE. Without limiting the generality
of the other obligations of C hereunder, C undertakes that (a) at such time as B
conducts a meeting of, or otherwise seeks a vote or consent of, its stockholders
for the purpose of approving and adopting the Merger Agreement and the Merger or
any of the ancillary agreements or the transactions contemplated thereby, C and
its Affiliates shall vote, or provide a consent with respect to, all
then-outstanding Shares Beneficially Owned by C in favor of the Merger Agreement
and the Merger and the ancillary agreements and the transactions contemplated
thereby and (b) C and its Affiliates shall (at each meeting of stockholders and
in connection with each consent solicitation) vote all then-outstanding Shares
Beneficially Owned by C against, and not provide consents to, (i) any and all
Takeover Proposals, (ii) any and all actions that would delay, prevent or
frustrate the transactions contemplated by the Merger Agreement, the ancillary
agreements or this Agreement or the satisfaction of any of the conditions set
forth in Article VIII of the Merger Agreement and (iii) any and all actions that
would or result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of B under the Merger Agreement.
Without limiting the foregoing, it is understood that the obligations under this
Section 3 shall not be affected by any recommendation or position of B's Board
of Directors.
SECTION 4. REASONABLE EFFORTS TO COOPERATE. (a) Except as
contemplated by Section 9, C will, without further consideration, (i) use all
reasonable efforts to cooperate with the parties to the Merger Agreement and the
ancillary agreements in connection with the transactions contemplated by the
Merger Agreement and the ancillary agreements, (ii) promptly execute and deliver
such additional documents and take such reasonable actions as are necessary or
appropriate to consummate such transactions and (iii) promptly provide any
information reasonably requested by the parties to the Merger Agreement and the
ancillary agreements for any regulatory application or filing made or approval
sought in connection with such transactions (including filings with the SEC or
any other Governmental Authority).
(b) C hereby consents to the publication and disclosure in the
Registration Statement and the Joint Proxy Statement/Prospectus (and, as and to
the extent otherwise required by the Securities Act, the Exchange Act, the rules
and regulations of AMEX and the PSE or Governmental Authorities, any other
documents or communications provided by A, B or the
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Company to any Governmental Authority or to securityholders of B or A) C's
identity and Beneficial Ownership of the Owned Shares and the nature of C's
commitments, arrangements and understandings under and relating to this
Agreement.
(c) C agrees that it will cause (i) C LLC before the Effective
Time (A) to be formed as contemplated by the C Merger Agreement and (B) to
execute and deliver the Stockholders Agreement and the Registration Rights
Agreement and (ii) its general partner and its sole limited partner, each of
which is a party to the C Merger Agreement, to comply with their obligations
under the C Merger Agreement.
(d) C agrees that it will comply in a timely manner with
Section 1.04 of the Merger Agreement.
(e) C agrees that, effective as of the Effective Time, it will
release B from its obligations, and waive its rights and remedies, under each of
the agreements listed in Schedule A hereto and under its existing registration
rights agreement with B.
SECTION 5. WAIVER OF APPRAISAL AND DISSENT RIGHTS. Without
limiting the generality of the other obligations of C hereunder, C hereby waives
and agrees not to assert, and agrees to cause its Affiliates to waive and not to
assert, any rights of appraisal or rights of dissent in connection with the
Merger that C or its Affiliates may have.
SECTION 6. IRREVOCABLE PROXY. (a) In furtherance of the
agreements contained in Section 3 of this Agreement, C hereby irrevocably grants
to, and appoints, the Chief Executive Officer of the Company, and any individual
who shall hereafter succeed to any such office of the Company, as C's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of C, to vote all Shares Beneficially Owned by C that are outstanding
from time to time, to grant or withhold a consent or approval in respect of such
Shares and to execute and deliver a proxy to vote such Shares, in each case in
the manner specified in Section 3.
(b) C represents and warrants to the Company and A that all
proxies heretofore given in respect of its Owned Shares are not irrevocable and
that all such proxies have been properly revoked or are no longer in effect as
of the date hereof.
(c) C hereby affirms that the irrevocable proxy set forth in
this Section 6 is given by C in connection with, and in consideration of, the
execution of the Merger Agreement by the Company and A, and that such
irrevocable proxy is given to secure the performance of the duties of C under
this Agreement. C hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. C hereby ratifies
and confirms all that such irrevocable proxy may lawfully do or cause to be done
by virtue hereof.
(d) Notwithstanding anything to the contrary set forth in this
Section 6, the proxy granted in this Section 6 shall remain valid only until
this Agreement terminates pursuant to Section 8 hereof.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF C. C represents
and warrants to each of A and the Company as follows:
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(a) The execution, delivery and performance of this Agreement
by C and the consummation by C of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of C and no further
proceedings or actions on the part of C are necessary to authorize the
execution, delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and
delivered by C and constitutes the valid and binding agreement of C, enforceable
against C in accordance with its terms.
(c) C, together with its Affiliates, is the sole Beneficial
Owner of its Owned Shares. C has good title to and legal and beneficial
ownership of (which may include holding in nominee or "street" name) all of its
outstanding Owned Shares, free and clear of all liens, claims, options, proxies,
voting agreements and security interests (other than as created by this
Agreement, the Charter Documents, the agreements listed in SCHEDULE A and the
restrictions on Transfer under applicable Laws). The agreements listed in
SCHEDULE A have been effectively amended by the parties thereto to the extent
necessary to remove all impediments, if any, with respect to, and conflicts
with, C's performance of this Agreement and the ancillary agreements to which it
is a party and the consummation by it of the transactions contemplated hereby
and thereby. The Owned Shares constitute all of the capital stock of B
Beneficially Owned by C.
(d) The execution and delivery of this Agreement by C does not
and the performance of this Agreement by C will not (i) conflict with, result in
any violation of, require any consent under or constitute a default (whether
with notice or lapse of time or both) under C's or any of its Affiliates'
constituent documents, any mortgage, bond, indenture, agreement, instrument or
obligation to which C or any of its Affiliates is a party or by which C, any of
its Affiliates or any of their respective properties (including the Owned
Shares) is bound, or (ii) violate any Law of or Order of any Governmental
Authority that is binding on C, any of its Affiliates or any of their respective
properties.
(e) C understands and acknowledges that A and the Company are
entering into the Merger Agreement in reliance upon C's execution, delivery and
performance of this Agreement.
(f) The Owned Shares covered by the proxy granted in Section 6
consist of 18,181,818 shares of B Common Stock and four (4) shares of B Series B
Special Preferred, and all such Owned Shares will be entitled to vote at the B
Stockholders' Meeting.
SECTION 8. TERMINATION. This Agreement shall terminate, with
respect to C, upon the earliest of (a) the date on which all Shares Beneficially
Owned by C have been acquired by the Company, (b) the Effective Time and (c) the
30th day following the day on which the Merger Agreement is terminated. Any such
termination shall be without prejudice to liabilities arising hereunder before
such termination.
SECTION 9. SHAREHOLDER CAPACITY. Notwithstanding anything
herein to the contrary: (a) if any Affiliate of C is or becomes, during the term
hereof, a director or officer of B, no representation, warranty, undertaking or
agreement herein shall apply to such Affiliate in
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his or her capacity as such a director or officer and (b) C has entered into
this Agreement solely in C's capacity as the Beneficial Owner of Shares and
nothing herein shall limit or affect any actions taken or omitted to be taken at
any time by any of its Affiliates in his or her capacity as an officer or
director of B.
SECTION 10. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; ASSIGNMENT. This Agreement constitutes
the entire agreement among the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof. The rights
and obligations under this Agreement shall not be transferred by any party
without the prior written consent of the other parties.
(b) EXPENSES. Subject to the terms of the Expense Payment
Agreement, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such
expenses.
(c) PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and TW and their respective
successors, executors, administrators, heirs and permitted assigns. Nothing in
this Agreement, express or implied, is intended to or shall confer upon any
other person any rights, benefits or remedies of any nature whatsoever under or
by reason of this Agreement.
(d) AMENDMENT. This Agreement may not be amended, changed,
supplemented, or otherwise modified or terminated, except upon the execution and
delivery of a written agreement executed by the parties hereto; provided that A
and the Company may waive compliance by C with any representation, agreement or
condition otherwise required to be complied with by C under this Agreement or
release C from its obligations under this Agreement, but any such waiver or
release shall be effective only if in writing and executed by A and the Company.
(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be given (and shall be deemed to have been duly
received if given) by hand delivery in writing or by facsimile transmission with
confirmation of receipt, as follows:
if to C:
Airline Investors Partnership, L.P.
c/o Smith Management LLC
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000)000-0000
Attention: Xxxx X. Xxxxx
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with copies to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
if to A:
Aloha Airgroup, Inc.
Two Xxxxxxxxxx Xxxxx, Xxxxx 000
500 Ala Moana
Xxxxxxxx, XX 000000
Telecopier No.: (000) 000-0000
Attention: President and Chief Executive Officer
with copies to:
Shearman & Sterling
Commerce Court West
000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
and to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxx, Esq. and Xxxxx Xxxxxxxxxx, Esq.
if to the Company:
TurnWorks Acquisition III, Inc.
0000 Xxxx Xxxxxxx Xx.
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: President
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with copies to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxx, Esq. and Xxxxx Xxxxxxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) VALIDITY. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable Law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable Law or rule in any jurisdiction such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) REMEDIES. C acknowledges and agrees that in the event of
any breach of this Agreement, A and the Company would be irreparably and
immediately harmed and could not be made whole by monetary damages. It is
accordingly agreed that (a) C will waive, in any action for specific
performance, the defense of adequacy of a remedy at Law and (b) A and the
Company shall each be entitled, in addition to any other remedy to which it may
be entitled at Law or in equity, to compel specific performance of this
Agreement. All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at Law or in equity shall be cumulative
and not alternative, and the exercise of any thereof by any party shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at Law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(h) GOVERNING LAW; JURISDICTION; WAIVER OF TRIAL BY JURY. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware applicable to contracts executed in and to be performed in
that State. Each of the parties hereto (i) consents to submit itself to the
personal jurisdiction of any Delaware state court located in the city of
Wilmington if any dispute arises under this Agreement, the Merger Agreement, the
ancillary agreements or any transaction contemplated hereby or thereby, (ii)
agrees that it will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court, (iii) agrees that it will
not bring any action, suit or proceeding relating to this Agreement, the Merger
Agreement, the ancillary agreements or any transaction contemplated hereby or
thereby in any court other than any such court, (iv) waives any right to trial
by jury with respect to any action; suit or proceeding related to or arising out
of this Agreement, the Merger Agreement, the ancillary agreements or any
transaction contemplated hereby or thereby, (v)
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waives any objection to the laying of venue of any action, suit or proceeding
arising out this Agreement, the Merger Agreement, the ancillary agreements or
any transaction contemplated hereby or thereby in any such court, (vi) waives
and agrees not to plead or claim that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum and (vii)
agrees that a final judgment in any such action, suit or proceeding in any such
court shall be conclusive and may be enforced in any other jurisdiction by suit
on the judgment or in any other manner provided by applicable law.
(i) DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(j) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be duly executed as of the day and year first above written.
AIRLINE INVESTORS PARTNERSHIP, L.P.
By: AIP GENERAL PARTNER, INC.,
its sole General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: President
ALOHA AIRGROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President and CEO
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
Finance and CFO
TURNWORKS ACQUISITION III, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
