EXECUTION COPY
================================================================================
AGREEMENT AND PLAN OF MERGER
AMONG
HAWAIIAN HOLDINGS, INC.,
AIP GENERAL PARTNER, INC.,
AIP, INC.
AND
AIP MERGER SUB, INC.
DATED AS OF MAY 2, 2002
================================================================================
TABLE OF CONTENTS
-----------------
PAGE
ARTICLE I MERGER.........................................................3
Section 1.1 Merger.....................................................3
Section 1.2 Effective Time.............................................3
Section 1.3 Organizational Documents...................................4
Section 1.4 Directors and 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
ARTICLE III CONDITIONS TO MERGER...........................................5
Section 3.1 Conditions Precedent.......................................5
ARTICLE IV TERMINATION AND AMENDMENT......................................6
Section 4.1 Termination................................................6
Section 4.2 Amendment..................................................6
ARTICLE V GENERAL PROVISIONS.............................................7
Section 5.1 Governing Law..............................................7
Section 5.2 Notices....................................................7
Section 5.3 Entire Agreement...........................................7
Section 5.4 Headings...................................................8
Section 5.5 Counterparts...............................................8
Section 5.6 Assignment.................................................8
Section 5.7 Severability...............................................8
Exhibit A Form of Registration Rights Agreement...........................A-1
Exhibit B Form of Joinder to Stockholders Agreement.......................B-1
Exhibit C Form of AIP LLC Certificate.....................................C-1
GLOSSARY OF DEFINED TERMS
DEFINED TERMS LOCATION
------------- --------
Agreement................................................ Preamble
AIP...................................................... Recitals
AIP GP................................................... Preamble
AIP GP Common Stock...................................... Section 2.1(a)
AIP Inc.................................................. Preamble
AIP Inc. Class A Common Stock............................ Section 2.1(b)(i)
AIP Inc. Class B Common Stock............................ Section 2.1(b)(i)
AIP LLC.................................................. Recitals
Ancillary Agreements..................................... Recitals
Certificates............................................. Section 2.2
Certificates of Merger................................... Section 1.2(a)
Code..................................................... Recitals
Converted Shares......................................... Section 2.2
DGCL..................................................... Recitals
First Merger............................................. Recitals
First Effective Time..................................... Section 1.2(a)
Hawaiian................................................. Recitals
Hawaiian Common Stock.................................... Recitals
Hawaiian Merger.......................................... Recitals
Hawaiian Merger Agreement................................ Recitals
Hawaiian Merger Sub...................................... Recitals
Hawaiian Series B Special Preferred Stock................ Recitals
Hawaiian Shareholder Approval............................ Recitals
HBCA..................................................... Recitals
Hawaiian Holdings........................................ Preamble
Hawaiian Holdings Common Stock........................... Section 2.1(b)(i)
Joinder to the Stockholders Agreement.................... Recitals
Merger Sub............................................... Preamble
Mergers.................................................. Recitals
Registration Rights Agreement............................ Recitals
Reorganization........................................... Recitals
Rights Agreement......................................... Recitals
Second Effective Time.................................... Section 1.2(a)
Second Merger............................................ Recitals
Share.................................................... Section 2.2
Surviving Corporation.................................... Section 1.1(b)
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of May 2,
2002, by and among AIP General Partner, Inc., a Delaware corporation ("AIP GP"),
AIP, Inc., a Delaware corporation ("AIP INC."), Hawaiian Holdings, Inc., a
Delaware corporation and a wholly owned subsidiary of Hawaiian ("HAWAIIAN
HOLDINGS"), and AIP Merger Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of Hawaiian Holdings ("MERGER Sub").
WITNESSETH:
WHEREAS, the respective Boards of Directors of Hawaiian Holdings, AIP
GP, AIP Inc. 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, 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 Airlines, Inc., a Hawaii
corporation ("HAWAIIAN"), by resolutions adopted at the April 26, 2002 meeting
of such Board of Directors, has deemed the Hawaiian Merger (as defined below) to
be an "Approved Section 13(a) Transaction" and deemed AIP Inc. 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, and the shareholders who hold all of the voting stock of each of AIP
GP and AIP Inc. have each adopted this Agreement;
WHEREAS, AIP GP is the sole general partner, and AIP Inc. is the sole
limited partner, of Airline Investors Partnership, L.P., a Delaware limited
partnership and the majority shareholder of Hawaiian ("AIP");
WHEREAS, (a) prior to the Effective Time (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 Series B Special Preferred Stock, par value $.01 per
share, of Hawaiian (the "HAWAIIAN SERIES B SPECIAL PREFERRED STOCK"), AIP will
transfer the four shares of Hawaiian Series B Special Preferred Stock that it
holds to AIP's affiliate, Xxxx X. Xxxxx; and (b) pursuant to the transactions
contemplated by this Agreement and on the terms and subject to the conditions
set forth herein, INTER ALIA, (i) at the First Effective Time (as defined
below), AIP GP, in accordance with the Delaware General Corporation Law (as
amended from
time to time, the "DGCL"), will merge with and into AIP Inc., with AIP Inc. as
the surviving corporation (the "FIRST MERGER"), (ii) by reason of the First
Merger, 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 Common Stock, par value $.01 per share, of Hawaiian (the
"HAWAIIAN COMMON STOCK") held by AIP immediately prior to the Mergers; (iii)
immediately after the First Merger, at the Second Effective Time (as defined
below), AIP Merger Sub, in accordance with the DGCL, will merge with and into
AIP Inc., with AIP Inc. as the surviving corporation (the "SECOND MERGER" and,
together with the First Merger, the "MERGERS"), and (iv) pursuant to the Second
Merger, AIP LLC will have its shares of AIP Inc. Common Stock (as defined below)
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 Mergers;
WHEREAS, immediately after the Effective Time, Hawaiian Holdings and
AIP LLC will enter into a Registration Rights Agreement (the "REGISTRATION
RIGHTS AGREEMENT"), substantially in the form attached hereto as EXHIBIT A, and
a Joinder to the Stockholders Agreement (the "JOINDER TO THE STOCKHOLDERS
AGREEMENT"), substantially in the form attached hereto as Exhibit B
(collectively, with the Hawaiian Merger Agreement (as defined below), the
"ANCILLARY AGREEMENTS");
WHEREAS, Hawaiian Holdings, Hawaiian and HA Sub Inc., a Hawaii
corporation and a wholly owned subsidiary of Hawaiian Holdings ("HAWAIIAN MERGER
SUB"), have entered into an Agreement and Plan of Merger (the "HAWAIIAN MERGER
AGREEMENT"), dated as of the date hereof, pursuant to which, INTER ALIA, (i)
Hawaiian 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 "HAWAIIAN MERGER" and, together with
the Second Merger, the "REORGANIZATION"), and (ii) each share of the capital
stock of Hawaiian (other than shares of Hawaiian capital stock held by AIP,
Inc.) will be converted into the right to receive one share of Hawaiian Holdings
Common Stock;
WHEREAS, the consummation of the Hawaiian Merger requires, among other
things, the approval of the Hawaiian Merger 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:
2
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 DGCL:
(a) AIP GP shall be merged with and into AIP Inc. at the First
Effective Time. Following the First Effective Time, the separate corporate
existence of AIP GP shall cease, and AIP Inc. shall continue as the surviving
corporation. The effects and consequences of the First Merger shall be as set
forth in this Agreement and the DGCL.
(b) Merger Sub shall be merged with and into AIP Inc. at the Second
Effective Time. Following the Second Effective Time, the separate corporate
existence of Merger Sub shall cease, and AIP Inc. shall continue as the
surviving corporation (the "SURVIVING CORPORATION"), becoming a wholly owned
subsidiary of Hawaiian Holdings. The effects and consequences of the Second
Merger shall be as set forth in this Agreement and the DGCL.
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 certificates of merger (the "CERTIFICATES OF MERGER") complying with
Section 251(c) of the DGCL with the Secretary of State of the State of Delaware
with respect to the Mergers. The First Merger shall become effective upon the
filing of the Certificate of Merger relating to the First Merger (or at such
later time reflected in such Certificate of Merger as shall be agreed to by AIP
GP and AIP Inc.). The date and time when the First Merger shall become effective
is hereinafter referred to as the "FIRST EFFECTIVE TIME." The Second Merger
shall become effective upon the filing of the Certificate of Merger relating to
the Second Merger (or at such later time reflected in such Certificate of Merger
as shall be agreed to by AIP Inc. and Hawaiian Holdings). The date and time when
the Second Merger shall become effective is hereinafter referred to as the
"SECOND EFFECTIVE TIME."
(b) The Mergers shall have the effects set forth in the DGCL, including
without limitation, Section 259 of the DGCL. Without limiting the generality of
the foregoing, and subject thereto, from the Second Effective Time, (i) all the
properties, rights, privileges, immunities, powers and franchises of AIP Inc.,
AIP GP and Merger Sub shall vest in the Surviving Corporation, and all debts,
liabilities, obligations and duties of AIP Inc., AIP GP and Merger Sub shall
become the debts, liabilities, obligations and duties of the Surviving
Corporation.
(c) A Certificate of Cancellation shall be filed with the Secretary of
State of the State of Delaware immediately after the First Effective Time to
evidence the dissolution of AIP in the public record.
3
Section 1.3 ORGANIZATIONAL DOCUMENTS. The Certificate of Incorporation
and the Bylaws of Merger Sub in effect at the Second Effective Time shall become
the Certificate of Incorporation and Bylaws of the Surviving Corporation until
thereafter amended as provided therein or by the DGCL; PROVIDED, HOWEVER, that
Article I of such Certificate of Incorporation shall provide that the name of
the Surviving Corporation shall be "AIP, Inc."
Section 1.4 DIRECTORS AND OFFICERS. The directors and officers of
Merger Sub immediately prior to the Second Effective Time shall be the directors
of the Surviving Corporation from and after the Second 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 the
Surviving Corporation, or as otherwise provided by the DGCL.
ARTICLE II
CONVERSION OF SECURITIES; ISSUANCE OF NEW SECURITIES;
STOCK CERTIFICATES
Section 2.1 CONVERSION OF SECURITIES. (a) At the First Effective Time,
by virtue of the First Merger and without any action on the part of the holders
of shares of Common Stock, par value $.01 per share, of AIP GP ("AIP GP COMMON
STOCK"), each share of AIP GP Common Stock issued and outstanding immediately
prior to the First Effective Time shall be canceled and extinguished without any
conversion thereof and no payment shall be made with respect thereto.
(b) At the Second Effective Time, by virtue of the Second Merger and
without any action on the part of the holders of shares of AIP Inc. Common
Stock:
(i) each share of Class A Common Stock, par value $.01 per share,
of AIP Inc. (the "AIP INC. CLASS A COMMON STOCK") and each share of Class B
Common Stock, par value $.01 per share, of AIP Inc. (the "AIP INC. CLASS B
COMMON STOCK" and, collectively with the AIP Inc. Class A Common Stock, the "AIP
INC. COMMON STOCK"), issued and outstanding immediately prior to the Second
Effective Time, shall be converted into the right to receive a number of validly
issued, fully paid and nonassessable shares of Common Stock, par value $.01 per
share, of Hawaiian Holdings (the "HAWAIIAN HOLDINGS COMMON STOCK") equal to the
number obtained by dividing (A) the number of shares of Hawaiian Common Stock
issued and outstanding immediately prior to the First Effective Time and held by
AIP by (B) 1000; and
(ii) each share of common stock of Merger Sub issued and
outstanding immediately prior to the Effective Time shall convert into one
validly issued, fully paid and nonassessable share of common stock, par value
$.01 per share, of the Surviving Corporation.
4
Section 2.2 STOCK CERTIFICATES. As soon as practicable after the Second
Effective Time, AIP Inc. shall cause AIP LLC to surrender to Hawaiian Holdings
or its transfer agent, in accordance with a letter of transmittal to be
delivered to AIP LLC, the certificate or certificates (the "CERTIFICATES") that
immediately prior to the Second Effective Time evidenced outstanding shares of
capital stock of AIP Inc. (each, a "SHARE"), including, without limitation, AIP
Inc. Class A Common Stock and AIP Inc. Class B Common Stock, that were converted
(the "CONVERTED SHARES") into the right to receive shares of Hawaiian Holdings
Common Stock pursuant to Section 2.1(b). Upon surrender of a Certificate to
Hawaiian Holdings or such transfer agent for cancellation, together with a duly
executed letter of transmittal and such other documents as Hawaiian Holdings or
such transfer agent shall require, the holder of such Certificate shall be
entitled to receive in exchange therefor one or more shares of Hawaiian Holdings
Common Stock representing, in the aggregate, the whole number of shares that
such holder has the right to receive pursuant to Section 2.1(b) after taking
into account all shares of AIP Inc. Common Stock then held by such holder. Each
Certificate surrendered pursuant to the previous sentence shall forthwith be
canceled. Until so surrendered and exchanged, each such Certificate shall, after
the Second Effective Time, be deemed to represent only the right to receive
shares of Hawaiian Holdings Common Stock, and until such surrender or exchange,
no such shares of Hawaiian Holdings Common Stock shall be delivered to the
holder of such outstanding Certificate in respect thereof.
ARTICLE III
CONDITIONS TO MERGER
Section 3.1 CONDITIONS PRECEDENT. The respective obligation of each
party to effect the Mergers is subject to the satisfaction or waiver of each of
the following conditions:
(a) The Hawaiian Merger Agreement shall have received the Hawaiian
Shareholder Approval.
(b) Each party to the Hawaiian Merger Agreement shall have satisfied or
waived each condition to the consummation of the Hawaiian Merger set forth in
Article III of the Hawaiian Merger Agreement.
(c) Each of the parties to the Registration Rights Agreement shall have
executed and delivered such agreement substantially in the form attached hereto
as EXHIBIT A.
(d) Each of Hawaiian Holdings and AIP LLC shall have executed and
delivered the Joinder to the Stockholders Agreement substantially in the form
attached hereto as EXHIBIT B or such other instrument amending the applicable
stockholders agreement that has, INTER ALIA, the same effect as the Joinder to
the Stockholders Agreement.
5
(e) AIP LLC shall have executed and delivered the certificate
substantially in the form attached hereto as EXHIBIT C.
(f) AIP Inc. shall have received a written opinion from Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx to the effect that (i) holders of AIP Inc. Common
Stock will not recognize any gain or loss on the exchange of such AIP Inc.
Common Stock for Hawaiian Holdings Common Stock and (ii) the Reorganization will
constitute a tax-free transaction under Section 351 of Code.
(g) 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 AIP 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.
(h) 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.
(i) The shares of Hawaiian Holdings Common Stock issuable in the
Mergers pursuant to Article II and such other shares to be reserved for issuance
in connection with the Mergers 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 by the affirmative vote of two-thirds of the boards
of directors of each of Hawaiian Holdings, AIP GP and AIP Inc. (with the consent
of two-thirds of the board of directors of 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 AIP GP, AIP Inc., Merger Sub
or Hawaiian Holdings to each other or to Hawaiian by reason of this Agreement.
Section 4.2 AMENDMENT. This Agreement may be amended, modified or
supplemented at any time; PROVIDED, HOWEVER, that after any such approval, there
shall be made no amendment that (a) alters or changes the amount or kind of
shares to be received by shareholders in the Mergers; (b) alters or changes any
term of the Certificate of Incorporation or Bylaws of the Surviving Corporation,
except for alterations or changes that could otherwise be adopted by the
directors of the Surviving Corporation, 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 AIP
Inc. Common Stock. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties.
6
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.
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 any notice of change of
address or telecopier number shall be effective only upon receipt):
If to AIP GP and AIP Inc., to:
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
If to Hawaiian Holdings or Merger Sub, to:
Hawaiian Holdings, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxxx, Xxxxxx 00000-0000
Telecopier No. (000) 000-0000
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:
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.
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
7
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.
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.
8
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/ XXXX X. XXXXX
-------------------------------
Name: Xxxx X. Xxxxx
Title: President
AIP GENERAL PARTNER, INC.
By: /S/ XXXX X. XXXXX
-------------------------------
Name: Xxxx X. Xxxxx
Title: President
AIP, INC.
By: /S/ XXXX X. XXXXX
-------------------------------
Name: Xxxx X. Xxxxx
Title: President
AIP MERGER SUB, INC.
By: /S/ XXXX X. XXXXX
-------------------------------
Name: Xxxx X. Xxxxx
Title: President
