Exhibit 99(a)(1)(B)
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated 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"), the
AIR LINE PILOTS ASSOCIATION, HAWAIIAN MASTER EXECUTIVE COUNCIL ("HAWAIIAN MEC"),
the ASSOCIATION OF FLIGHT ATTENDANTS ("AFA") and the INTERNATIONAL ASSOCIATION
OF MACHINISTS ("IAM" and, together with the Hawaiian MEC and AFA, the "UNIONS").
WHEREAS, AIP and the Company entered into the Stock Purchase
Agreement, dated 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, par value $.01 per share, of
Class A Common Stock of the Company (the "CLASS A COMMON STOCK"), for an
aggregate price of $20,000,000.
WHEREAS, as set forth in the Stock Purchase Agreement, it is a
condition to AIP's purchase of the Class A Common Stock that the Unions enter
into amended collective bargaining agreements (the "AMENDED COLLECTIVE
BARGAINING AGREEMENTS") carrying out the term sheets set forth as Exhibit F to
the Stock Purchase Agreement (the "TERM SHEETS").
NOW, THEREFORE, to induce the Unions to enter into the Amended
Collective Bargaining Agreements, and as required by the Term Sheets set forth
as Exhibit F to the Stock Purchase Agreement, and in consideration of the same,
the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings set forth below:
An "AFFILIATE" of, or a person "affiliated" with, a specified
Person, means a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Person specified. The term "control" (including the terms "controlling,"
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, by
contract, or otherwise.
"AIP STOCKHOLDER" shall mean AIP or any "affiliate" of AIP as
defined in the Charter Documents.
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"CHARTER DOCUMENTS" means the Amended Articles of Incorporation and
the Amended Bylaws of the Company as in effect on the date hereof, copies of
which are attached hereto as EXHIBITS A AND B, respectively.
"COMMON STOCK" means the Class A Common Stock or any other capital
stock of the Company into which such stock is reclassified or reconstituted.
"COMMON STOCK EQUIVALENTS" means any security or obligation which is
by its terms convertible into shares of Common Stock and any option, warrant or
other subscription or purchase right with respect to Common Stock.
"PERSON" means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint stock company, trust,
unincorporated organization, governmental body or other entity.
"SERIES B SPECIAL PREFERRED STOCK," "SERIES C SPECIAL PREFERRED
STOCK," "SERIES D SPECIAL PREFERRED STOCK" and "SERIES E SPECIAL PREFERRED
STOCK" shall have the meanings assigned to such terms in the Charter Documents.
"SHARES" means, with respect to the AIP Stockholder, all shares,
whether now owned or hereafter acquired, of Common Stock; PROVIDED, for purposes
of Section 2, Shares shall be deemed to include Common Stock Equivalents.
"STOCKHOLDERS MEETING" shall mean any regular or special meeting of
the stockholders of the Company.
"WRITTEN CONSENT" shall mean any written consent executed in lieu of
a Stockholders Meeting.
2. RESTRICTION ON TRANSFER OF SHARES. The AIP Stockholder agrees
that it shall not sell, give, assign or otherwise dispose of (whether by
operation of law or otherwise) (each a "TRANSFER") any Shares or any right,
title or interest therein or thereto to any Person that is, or is an Affiliate
of, any Person that has been denied a Part 121 certificate by the Department of
Transportation. Any attempt to transfer any Shares or any such rights in
violation of the preceding sentence shall be null and void ab initio, and the
Company agrees not to register any such transfer.
3. CORPORATE GOVERNANCE.
3.1 ELECTION OF DIRECTORS. The AIP Stockholder shall vote its
Shares at any Stockholders Meeting called for the purpose of filling positions
on the Board of Directors, or in any Written Consent executed for such purpose,
in favor of the directors standing for election and nominated by the holders of
Series B Special Preferred Stock, Series C Special Preferred Stock, Series D
Special Preferred Stock, and Series E Special Preferred Stock, respectively.
3.2 AMENDMENT OF CHARTER DOCUMENTS. The AIP Stockholder shall
vote its Shares at any Stockholders Meeting called for the purpose of revising
the Charter Documents, or in any Written Consent executed for such purposes,
against any proposed amendment to any Charter Document that would be
inconsistent with, or alter the rights of the Unions or the obligations of the
Board of Directors under, the Designation of Special Preferred Stock included in
Exhibit A hereto or any of
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Sections 3.02, 3.09, 3.12 or 7.04 of the By-Laws included in Exhibit B hereto
(collectively referred to as the "GOVERNANCE PROVISIONS"). In the event the
Board of Directors purports to amend or revise the Charter Documents in any
respect that would be inconsistent with, or alter the rights of the Unions or
the obligations of the Board of Directors under, the Governance Provisions, then
the AIP Stockholder shall, at the request of any Union and to the extent
permitted by law, (i) seek a Stockholders Meeting or stockholder action by
Written Consent, as soon as practicable, for the purpose of restoring the
Governance Provisions, (2) propose a stockholder resolution at such Stockholders
Meeting or action by Written consent to restore the Governance Provisions, and
(3) vote its shares at any Stockholders Meeting, or in any Written Consent, in
favor of such resolution to restore the Governance Provisions.
3.3 BOARD COMMITTEE REPRESENTATION. The AIP Stockholder shall
make reasonable efforts to ensure that at least one Employee Director serves on
each significant committee of the Board other than the Audit Committee
(including, if any, the Executive Committee, the Strategic Planning Committee,
the Board Nominating Committee and other committees of comparable significance).
3.4 GENERAL OBLIGATIONS. The AIP Stockholder shall not take
any action inconsistent with the Governance Provisions. In the event of any
material change to the terms or structure of the rights or powers of the AIP
Stockholder, as a stockholder or as a holder of the Series B Special Preferred
Stock, under the Charter Documents or comparable corporate documentation
(including, without limitation, changes in the AIP Stockholder's right to
nominate, designate, remove or replace directors on the Board of Directors), the
AIP Stockholder shall, at the request of any Union and to the extent permitted
by law, take all action necessary to implement comparable changes to the terms
or structure of the rights or powers of such Union under the Charter Documents
or comparable corporate documentation.
3.5 STOCKHOLDER ACTIONS. In order to effectuate the provisions
of this Section 3, the AIP Stockholder hereby agrees that when any action or
vote is required to be taken pursuant to this Agreement, such Stockholder shall
attend the Stockholders Meeting, in person or by proxy, or execute or cause to
be executed a Written Consent to effectuate such stockholder action, as
appropriate.
4. STOCK CERTIFICATE LEGEND. A copy of this Agreement shall be filed
with the Secretary of the Company and kept with the records of the Company. Each
certificate representing Shares now held or hereafter acquired by the AIP
Stockholder 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") AND VOTING
OF ANY OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY
THE TERMS OF THE STOCKHOLDERS AGREEMENT, DATED JANUARY 31, 1996, BY AND
AMONG THE COMPANY, AIRLINE INVESTORS PARTNERSHIP, L.P. AND CERTAIN UNIONS,
A COPY
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OF WHICH MAY BE INSPECTED AT THE COMPANY'S PRINCIPAL OFFICE. THE COMPANY
WILL NOT REGISTER THE TRANSFER OF SUCH SECURITIES ON THE BOOKS OF THE
COMPANY IF THE TRANSFER HAS NOT BEEN MADE IN COMPLIANCE WITH THE
STOCKHOLDERS AGREEMENT.
5. MISCELLANEOUS.
5.1 NOTICES. All notices or other communications given or made
hereunder shall be validly given or made if in writing and delivered by
facsimile transmission or in Person at, mailed by registered or certified mail,
return receipt requested, postage prepaid, or sent by a reputable overnight
courier to, the following addresses (and shall be deemed effective at the time
of receipt thereof).
(a) if to the Hawaiian MEC:
Air Line Pilots Association,
Hawaiian Master Executive Council
000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Master Chairman, Hawaiian MEC
Telecopy: (000) 000-0000
with a copy to:
Xxxxx, Xxxxx and Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
(b) if to the AFA:
Association of Flight Attendants
0000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: President, Hawaiian MEC
and Xxxxx Xxxxx
Telecopy: (000) 000-0000
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(c) if to the IAM:
International Association of Machinists,
District 141
0000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxxxxxx and
Xxxxx Xxxxxxxx
Telecopy: (000) 000-0000
(d) if to the AIP Stockholder:
Airline Investors Partnership, L.P.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx and Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
(e) if to the Company:
Hawaiian Airlines, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
or to such other address as the party to whom notice is to be given may have
previously furnished notice in writing to the other in the manner set forth
above.
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5.2 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 the AIP Stockholder and the Unions.
5.3 NO INCONSISTENT AGREEMENT. The AIP Stockholder shall not
enter into any stockholder agreement, voting agreement or other agreement that
is inconsistent with the terms of this Agreement.
5.4 ENFORCEMENT. The parties to this Agreement agree that the
irreparable damage will occur in the event that any of the provisions of this
Agreement is not performed in accordance with its specific terms or is otherwise
breached and that monetary damages will not constitute adequate compensation for
any breach of this Agreement. Accordingly, in addition to any other remedy
available to any party at law or equity, the parties shall be entitled to an
injunction or injunctions in any court of competent jurisdiction to prevent
breaches of this Agreement to specifically enforce the terms and provisions of
this Agreement.
5.5 SEVERABILITY. If any provision of this Agreement is held
by a court of competent jurisdiction to be invalid, illegal, or unenforceable in
any respect for any reason, the validity, legality or enforceability of such
provision in every other respect and of each remaining provision of the
Agreement shall not be impaired thereby in any respect. The parties specifically
intend that all of the rights of the Unions under this Agreement shall be
enforceable to the fullest extent permitted by law.
5.6 ENTIRE AGREEMENT. This Agreement, together with the
exhibits hereto, is intended by the AIP Stockholder and the Unions as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of such parties hereto in respect
of the subject matter contained herein and therein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein or therein. This Agreement, together with the exhibits hereto, supersede
all prior agreements and understandings between the AIP Stockholder and the
Unions with respect to such subject matter.
5.7 TERM OF AGREEMENT. This Agreement shall
terminate at such time as the AIP Stockholder shall no longer have
any right to designate directors pursuant to the Charter Documents.
5.8 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
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TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF EXCEPT TO THE EXTENT INTERNAL CORPORATE LAWS OF THE
COMPANY'S STATE OF INCORPORATION SHALL APPLY.
5.9 TRANSFER TO AFFILIATES. An AIP Stockholder shall not
transfer any Shares to any Affiliate of AIP or an AIP Stockholder (an "AIP
AFFILIATE") unless the AIP Affiliate agrees in writing to be bound by the terms
and conditions of this Agreement in the same manner as AIP.
5.10 SUCCESSORS AND ASSIGNS. This agreement shall be binding
on any successor that acquires all or substantially all of AIP or any AIP
Affiliate that maintains beneficial or record ownership of any Shares (an "AIP
SUCCESSOR"), and the AIP Stockholder shall not adopt or permit any agreement or
arrangement that results in an AIP Successor unless the AIP Successor agrees in
writing to be bound by the terms and conditions of this Agreement in the same
manner as AIP. This Agreement is not assignable except in connection with a
transfer of Shares by AIP to an "affiliate," as defined in the Charter
Documents.
5.11 NOTICE OF TRANSFER. The AIP Stockholder shall provide the
Company and the Unions with reasonable notice prior to transferring record or
beneficial ownership of Shares to any Affiliate, Substantial Purchaser or AIP
Successor. For this purpose, a "Substantial Purchaser" shall mean a transferee
(or group of transferees acting in concert) which acquires 10% or more of the
Shares.
5.12 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.
IN WITNESS WHEREOF, the undersigned have executed, or have cause to
be executed, this Agreement on the date first written above.
AIR LINE PILOTS ASSOCIATION, HAWAIIAN
MASTER EXECUTIVE COUNCIL
By: /s/ Reno X. Xxxxxxx
--------------------------------------------------
Reno X. Xxxxxxx
Chairman, Hawaiian MEC
ASSOCIATION OF FLIGHT ATTENDANTS
By:
--------------------------------------------------
Name:
Title:
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INTERNATIONAL ASSOCIATION OF MACHINISTS
By: /s/ Reno X. Xxxxxxx
--------------------------------------------------
Name:
Title:
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: /s/ Xxxxx X. Xxxxxx
Title: Chairman of the Board, President and
Chief Executive Officer
(Solely with respect to Sections 2 and 4 hereof)
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