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.
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"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 subscrip-tion 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.
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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 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
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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
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).
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(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
(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
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(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.
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
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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 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
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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: /S/ Xxxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxxx Xxxxxx
Title: International President
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INTERNATIONAL ASSOCIATION OF MACHINISTS
By: /S/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: President
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: Chairman of the Board, President
and CEO
(Solely with respect to Sections 2 and 4 hereof)
