RIGHTSHOLDERS AGREEMENT
RIGHTSHOLDERS AGREEMENT, dated as of January 31, 1996 (this
"AGREEMENT"), by and among HAWAIIAN AIRLINES, INC., a Hawaii corporation
(the "COMPANY"), AIRLINE INVESTORS PARTNERSHIP, L.P., a Delaware limited
partnership ("AIP"), AMR Corporation, a Delaware Corporation ("AMR"),
XXXXXX XXXXXXXX ("XXXXXXXX") and XXXXXX XXXXXXX ("XXXXXXX" and, together
with AIP, AMR and Xxxxxxxx, the "RIGHTSHOLDERS").
WHEREAS, the Company issued to Xxxxxxxx Warrant Nos. 01 through 05,
each dated as of September 12, 1994 (the "XXXXXXXX WARRANTS"), pursuant
to which Xxxxxxxx is entitled to acquire, on the terms and subject to the
conditions set forth therein, an aggregate of 494,505 shares (subject to
adjustment as set forth therein) of the Company's Class A Common Stock,
par value $0.01 per share (the "COMMON STOCK");
WHEREAS, the Company issued to Xxxxxxx Warrant Nos. 06 through 10,
each dated as of September 12, 1994 (the "XXXXXXX WARRANTS"), pursuant to
which Xxxxxxx is entitled to acquire, on the terms and subject to the
conditions set forth therein, an aggregate of 494,505 shares (subject to
adjustment as set forth therein) of Common Stock;
WHEREAS, the Company issued to AMR Warrant Nos. 11 and 12, each
dated as of January 31, 1996 (the "AMR WARRANTS" and, together with the
Xxxxxxxx Warrants and the Xxxxxxx Warrants, the "Warrants"), pursuant to
which AMR is entitled to acquire, on the terms and subject to the
conditions set forth therein, an aggregate of 1,897,946 shares (subject
to adjustment as set forth therein) of Common Stock;
WHEREAS, each of the Xxxxxxxx Warrants, the Xxxxxxx Warrants and the
AMR Warrants contains provisions pursuant to which the holder thereof has
the right (such rights, "REGISTRATION RIGHTS"), subject to the terms and
conditions set forth in the Warrants, to cause the Company to use its
best efforts to cause the shares of Common Stock issuable upon the
exercise of such Warrants to be registered under the Securities Act of
1933, as amended (the "SECURITIES ACT");
WHEREAS, the Company and AIP are parties to that certain
Registration Rights Agreement, dated as of January 31, 1996 (the
"REGISTRATION RIGHTS AGREEMENT"), pursuant to which the Company has
granted to AIP Registration Rights, subject to the terms and conditions
set forth in the Registration Rights Agreement, with respect to certain
shares of Common Stock owned by AIP;
Page 2
WHEREAS, the Registration Rights of the holders of the Xxxxxxxx
Warrants, the Xxxxxxx Warrants and the AMR Warrants as set forth in such
Warrants, and the Registration Rights of AIP as set forth in the
Registration Rights Agreement are inconsistent;
WHEREAS, the parties hereto desire to correct the inconsistencies in
the several agreements, the Company desires to extend the time in which
Xxxxxxxx and Xxxxxxx may request a registration of the shares of Common
Stock issuable under the Xxxxxxxx Warrants and the Xxxxxxx Warrants;
WHEREAS, AIP and the Company entered into the Stock Purchase
Agreement, dated as of December 8, 1995 (the "STOCK PURCHASE AGREEMENT"),
pursuant to which AIP has agreed to purchase from the Company, and the
Company has agreed to issue and sell to AIP at the Closing (as defined in
the Stock Purchase Agreement), an aggregate of 18,181,818 shares of
Common Stock;
WHEREAS, it is a condition to AIP's purchase of the Common Stock
that Xxxxxxxx and Xxxxxxx agree to waive the application of the
antidilution provisions of the Xxxxxxxx Warrants and the Xxxxxxx
Warrants, respectively, with respect to certain specified transactions;
and
WHEREAS, Xxxxxxxx and Xxxxxxx are willing to waive such provisions
as herein provided.
NOW, THEREFORE, for good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree
as follows:
1. REGISTRATION RIGHTS. Notwithstanding anything to the
contrary in the Warrants or the Registration Rights Agreement:
1.1 INCIDENTAL REGISTRATION RIGHTS. (a) If the
Company at any time proposes to register any of its Common Stock under
the Securities Act by registration on any form other than Forms S-4 or S-
8 (or successor forms) and other than in connection with an exchange
offer or an offering of securities to the Company's existing security
holders, whether or not for sale for its own account, it will each such
time give prompt written notice to all Rightsholders of its intention to
do so and of such holders' rights, if any, under the Warrants or the
Registration Rights Agreement, as applicable.
(b) In the event that pursuant to the Warrants or the
Registration Rights Agreement, as the case
Page 3
may be, a Rightsholder has incidental registration rights at the time the
notice referred to in clause (a) above is delivered, then such Rightsholder
shall have the right, in accordance with the terms and conditions and subject
to the procedures of the Warrant or the Registration Rights Agreement, as the
case may be, to cause the Company to use its best efforts to effect the
registration under the Securities Act of all securities which the Company
has been so requested to register by such Rightsholder.
1.2 PRIORITY IN INCIDENTAL AND DEMAND REGISTRATIONS.
If the managing underwriter of any underwritten offering shall inform the
Company by letter of its opinion that the number or type of securities
requested to be included in such registration would materially adversely
affect such offering, and the Company has so advised the Rightsholders
that have requested pursuant to rights granted in such Rightsholder's
Warrant or the Registration Rights Agreement, as the case may be, to have
securities registered in such offering, in writing, then the Company will
include in such registration, to the extent of the number and type which
the Company is so advised can be sold in (or during the time of) such
offering, FIRST, all securities proposed by the Company to be sold for
its own account, SECOND, all securities proposed to be sold for the
account of the Rightsholder (the "INITIATING RIGHTSHOLDER"), if any,
that, pursuant to rights granted in the Warrants or the Registration
Rights Agreement, as the case may be, initially requested the Company to
register such securities, and THIRD, such securities requested by
Rightsholders (other than the Initiating Rightsholder, if any) to be
included in such registration pursuant to rights granted in the Warrants
and/or the Registration Rights Agreement, as the case may be, PRO RATA
(based on the number of securities requested to be included therein by
each Rightsholder (other than the Initiating Rightsholder)) among such
Rightsholders.
2. WAIVER OF ANTI-DILUTION PROVISIONS. Each of Xxxxxxxx and
Xxxxxxx hereby agrees that notwihtstanding Sections 3 and 4 of the
Xxxxxxxx Warrants and the Xxxxxxx Warrants, supplementing Section 4(b) of
such Warrants, neither the Current Warrant Price (as defined in such
Warrants) nor the number of shares of Common Stock issuable upon exercise
of such Warrants shall be adjusted as a result of (i) the issuance of the
AMR Warrants, (ii) the issuance and sale of shares of Common Stock from
time to time upon the exercise, in whole or in part, of the AMR Warrants,
or (iii) the issuance and sale of shares of Common Equity (as defined in
such Warrants) in connection with an offering of rights to purchase
Common Stock in 1996.
Page 4
3. EXTENSION OF DEMAND REGISTRATION. The Company hereby agrees
that Section 8 of each of the Xxxxxxxx Warrants and the Xxxxxxx Warrants
shall be amended to delete the date "December 31, 1997" in the fifth line
thereof and substitute in lieu thereof the date "December 31, 1998."
4. NO INCONSISTENT AGREEMENTS. The Company hereby agrees
that it will not hereafter enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the
Rightsholders hereunder, under the Warrants or under the Registration
Rights Agreement. Without limiting the generality of the foregoing, the
Company will not hereafter enter into any agreement with respect to its
securities which grants, or modify any existing agreement with respect to
its securities to grant, to the holder of its securities in connection
with a registration of such securities equal or higher priority to the
rights granted to the Rightsholders under this Agreement.
5. RESTRICTION ON TRANSFER OF WARRANTS. (a) Xxxxxxxx, Xxxxxxx
and AMR hereby agree that they shall not sell, give, assign or otherwise
dispose of (whether by operation of law or otherwise) (each a "TRANSFER")
any Warrants or any right, title or interest therein or thereto to any
Person unless such Person agrees in writing to be bound by this
Agreement. Any attempt to transfer any Warrants or any such rights in
violation of the preceding sentence shall be null and void AB INITIO.
6. WARRANT CERTIFICATE LEGEND. A copy of this Agreement
shall be filed with the Corporate Secretary of the Company and kept with
the records of the Company. Each Warrant now held or hereafter acquired
by Xxxxxxxx, Xxxxxxx and AMR shall for as long as this Agreement is
effective bear a legend substantially in the following form:
THE SALE, ASSIGNMENT OR OTHER DISPOSITION (EACH A "TRANSFER")
OF THIS WARRANT IS RESTRICTED BY THE TERMS OF THE RIGHTSHOLDERS
AGREEMENT, DATED AS OF JANUARY 31, 1996, BY AND AMONG THE
COMPANY, AIRLINE INVESTORS PARTNERSHIP, L.P. AND THE HOLDERS OF
WARRANTS OF THE COMPANY, A COPY OF WHICH MAY BE INSPECTED AT
THE COMPANY'S PRINCIPAL OFFICE. THE COMPANY WILL NOT REGISTER
ON THE BOOKS OF THE COMPANY OR OTHERWISE EFFECT THE TRANSFER OF
THIS WARRANT IF THE TRANSFER HAS NOT BEEN MADE IN COMPLIANCE
WITH THE RIGHTSHOLDERS AGREEMENT.
Xxxxxxxx and Xxxxxxx hereby agree that as soon as practicable
after the date hereof they shall present each
Page 5
existing Warrant to the Corporate Secretary of the Company at the Company's
principal office for the purpose of having the legend set forth in this
Section 6 affixed thereto.
7. REPRESENTATIONS OF XXXXXXXX AND XXXXXXX.
7.1 Xxxxxxxx hereby represents and warrants to the
other Rightsholders and the Company that he has neither Transferred nor
agreed to Transfer the Xxxxxxxx Warrants or any of them, in whole or in
part, to any other person.
7.2 Xxxxxxx hereby represents and warrants to the
other Rightsholders and the Company that he has neither Transferred nor
agreed to Transfer the Xxxxxxx Warrants or any of them, in whole or in
part, to any other person.
8. MISCELLANEOUS.
8.1 NOTICES. All notices or other communications
given or made hereunder shall be validly given or made if made in
accordance with the notice provisions of the relevant Warrant or the
Registration Rights Agreement, as the case may be.
8.2 AMENDMENT AND WAIVER.
(a) No failure or delay on the part of any party
hereto in exercising any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such
right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. The remedies provided
for herein are cumulative and are not exclusive of any remedies that may
be available to the parties hereto at law, in equity or otherwise.
(b) This Agreement may be amended, supplemented or
modified only with the written consent of all parties hereto.
8.3 ENTIRE AGREEMENT; NO EXPANSION OF RIGHTS. This
Agreement is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the
subject matter contained herein. Section 1 of this Agreement is not
intended to, and shall not, confer upon any Rightsholder any Registration
Rights that are not expressly contained in such Rightsholder's Warrants
or in the Registration Rights Agreement, as the case may be.
Page 6
8.4 CONTINUING EFFECT OF AGREEMENTS. This Agreement
shall not constitute a waiver, amendment or modification of any other
provisions of the Warrants or the Registration Rights Agreement not
expressly referred to herein and shall not be construed as a waiver or
consent to any further or future action on the part of the Company or the
Rightsholders that would require a waiver or consent. Except as
expressly amended or modified herein, the provisions of the Warrants and
the provisions of the Registration Rights Agreement are and shall remain
in full force and effect.
8.5 TERM OF AGREEMENT. Section 1 of this Agreement shall
terminate and be of no further force or effect with respect to each
Rightsholder at the first date on which such Rightsholder shall no longer
have any Registration Rights. The remainder of this Agreement shall
terminate and be of no further force and effect at such time as no
Rightsholder owns any Warrants or shares of Common Stock.
8.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
8.7 SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the
parties hereto and with respect to the Company, its successors and
permitted assigns and, with respect to the Rightsholders, any transferee
of the Warrants as permitted hereunder and the holder of any securities
registrable pursuant to the AMR Warrants or the Registration Rights
Agreement. This Agreement may not be assigned by the Company without the
prior written consent of the other parties hereto.
8.8 COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, and all
of which taken together shall constitute one and the same instrument.
[The remainder of this page intentionally left blank.]
Page 7
IN WITNESS WHEREOF, the undersigned have executed, or have
cause to be executed, this Agreement on the date first written above.
/S/ Xxxxxx Xxxxxxxx
--------------------------
Xxxxxx Xxxxxxxx
/S/ Xxxxxx Xxxxxxx
--------------------------
Xxxxxx Xxxxxxx
AMR CORPORATION
By: /S/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
Finance and Planning, CFO
AIRLINE INVESTORS PARTNERSHIP, L.P.
By: AIP GENERAL PARTNER, INC.,
Its General Partner
By: /S/ Xxxx X. Xxxxx
---------------------------
Name: Xxxx X. Xxxxx
Title: President
HAWAIIAN AIRLINES, INC.
By: /S/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: President
By: /S/ Xxx X. Xxxxx
----------------------------
Name: Xxx X. Xxxxx
Title: Vice President
