EXHIBIT 4.1
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AMENDMENT NO. 5
TO
RIGHTS AGREEMENT
dated as of December 23, 1994
by and between
HAWAIIAN AIRLINES, INC.
and
MELLON INVESTOR SERVICES LLC
as Rights Agent
AMENDMENT NO. 5, dated as of August 29, 2002 (this "AMENDMENT"), to the
Rights Agreement, dated as of December 23, 1994, as amended from time to time
(the "AGREEMENT"), between Hawaiian Airlines, Inc., a Hawaii corporation (the
"COMPANY"), and Mellon Investor Services LLC, a New Jersey limited liability
company (as successor to Chemical Trust Company of California), as rights agent
(the "RIGHTS AGENT"). Unless the context indicates to the contrary, capitalized
terms used and not defined herein shall have the meanings ascribed to them in
the Agreement.
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of May
2, 2002 (the "AIP MERGER AGREEMENT"), by and among Hawaiian Holdings, Inc., a
Delaware corporation and a wholly owned subsidiary of the Company ("HOLDINGS"),
AIP Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Holdings ("AIP MERGER SUB"), AIP General Partner, Inc., a Delaware corporation
("AIP GP") (which is the sole general partner of Airline Investors Partnership,
L.P., a Delaware limited partnership and the majority shareholder of the Company
("AIP")), and AIP, Inc., a Delaware corporation ("AIP INC.") (which is the sole
limited partner of AIP), INTER ALIA, (a) at the First Effective Time (as defined
therein), AIP GP will merge with and into AIP Inc., with AIP Inc. as the
surviving corporation, as a result of which 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 Common Shares (together
with the Rights associated with such Common Shares) held by AIP immediately
prior thereto, and (b) at the Second Effective Time (as defined therein), (i)
AIP Merger Sub will merge with and into AIP Inc., with AIP Inc. as the surviving
corporation and (ii) AIP, LLC, a Delaware limited liability company formed by
the shareholders of AIP GP and AIP Inc., will have its shares of AIP Inc.
converted into the right to receive a number of shares of common stock, par
value $.01 per share, of Holdings ("HOLDINGS COMMON STOCK") equal to the number
of Common Shares held by AIP immediately prior thereto;
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of May
2, 2002 (the "HAWAIIAN MERGER AGREEMENT"), by and among the Company, Holdings
and HA Sub Inc., a Hawaii corporation and a wholly owned subsidiary of Holdings
("HA MERGER SUB"), INTER ALIA, at the Effective Time (as defined therein), (a)
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HA Merger Sub will merge with and into the Company, with the Company as the
surviving corporation (the "MERGER"), and (b) each Common Share, together with
the Rights associated with such Common Shares (other than such Common Shares
held by AIP Inc. (together with the Rights associated with such Common Shares),
which Common Shares shall continue to be outstanding and held by AIP Inc. as a
wholly owned subsidiary of Holdings) will be converted into the right to receive
one share of Holdings Common Stock;
WHEREAS, in connection with the consideration and approval of the AIP
Merger Agreement and the Hawaiian Merger Agreement, the Board of Directors of
the Company, by resolutions adopted at the April 26, 2002 meeting of such Board
of Directors, has deemed the Merger to be an "Approved Section 13(a)
Transaction" and deemed AIP Inc. not to be an "Acquiring Person," in each case,
under the Agreement;
WHEREAS, pursuant to Section 27 of the Agreement, the Board of
Directors of the Company may, from time to time, supplement or amend any
provision of the Agreement in accordance with the provisions of such Section;
WHEREAS, the Board of Directors of the Company, by resolutions adopted
at the August 23, 2002 meeting of such Board of Directors, has approved this
Amendment;
NOW THEREFORE, in consideration of the premises and mutual agreements
herein set forth, the parties hereby agree as follows:
1. AMENDMENT TO SECTION 1(N). Section 1(n) is hereby amended and
restated in its entirety to read as follows:
"(n) "EXPIRATION DATE" shall mean August 30, 2002."
2. AMENDMENT TO SECTION 2. The first sentence of Section 2 is
hereby amended to delete the words "and the holders of Rights".
3. AMENDMENT TO SECTION 3(A). Section 3(a) is hereby amended and
restated in its entirety as follows:
"(a) "DISTRIBUTION DATE" shall mean the date, after
December 23, 1994 and prior to the earlier of the Redemption Date or
the Expiration Date, that is the earliest of (i) the tenth Business Day
(or such later day as shall be designated by the Board of Directors of
the Company) following the date of the commencement of, or the first
public announcement of the intent of any Person, other than an Exempt
Person, to commence a tender offer or exchange offer, the consummation
of which would cause any Person to become an Acquiring Person, (ii) the
tenth Business Day (or such later day as shall be designated by the
Board of Directors of the Company) following the Share Acquisition
Date, or (iii) the date of the first Section 13(a) Event."
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4. AMENDMENT TO SECTION 9(A). Section 9(a) is hereby amended and
restated in its entirety as follows:
"(a) Subject to Section 7(e) hereof, the Company
shall cause to be reserved and kept available out of its authorized and
unissued equity securities (or out of its authorized and issued equity
securities held in its treasury), the number of such equity securities
that will from time to time be sufficient to permit the exercise in
full prior to the earlier of the Redemption Date or the Expiration Date
of all outstanding Rights."
5. AMENDMENT TO SECTION 13(A). The first paragraph of Section
13(a) is hereby amended and restated in its entirety to read as follows:
"(a) In the event that at any time on or after the
Share Acquisition Date and prior to the earlier of the Redemption Date
or the Expiration Date (a "SECTION 13(A) EVENT") directly or indirectly
(except pursuant to a consolidation, merger or sale or transfer of
assets or earnings power which is approved by the Board of Directors of
the Company (with a specific resolution that this Section 13(a) is not
to be applicable) and which does not involve an Acquiring Person or an
Affiliate or Associate of an Acquiring Person or any other Person in
which such Acquiring Person, Affiliate or Associate has any interest or
any other Person acting directly or indirectly on behalf of or in
association with any such Acquiring Person, Affiliate or Associate
(such an approved transaction being referred to as an "APPROVED SECTION
13(A) TRANSACTION")), (1) the Company shall consolidate with or merge
with and into any other Person and the Company shall not be the
continuing or surviving corporation in such consolidation or merger,
(2) any Person shall consolidate with or merge with and into the
Company and the Company shall be the continuing or surviving
corporation in such merger and, in connection with such merger, all or
part of the Common Shares shall be changed into or exchanged for stock
or other securities of any Person or cash or any other property, or (3)
the Company and/or any one or more of its Subsidiaries shall sell or
otherwise transfer, in one or more transactions (other than
transactions in the ordinary course of business), assets or earning
power aggregating more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any Person or
Persons other than the Company or one or more of its wholly owned
Subsidiaries (such Person, together with the Persons described in
clauses (1) and (2) above shall be collectively referred to in this
Section 13 as the "SURVIVING PERSON"), then, and in each such case,
proper provisions shall be made so that:"
6. AMENDMENT TO SECTION 18(B). Section 18(b) is hereby amended by
restating in its entirety the last sentence of such section as follows:
"Anything in this Agreement to the contrary
notwithstanding, in no event shall the Rights Agent be liable for
special, punitive, indirect, consequential or incidental loss or
damages of any kind whatsoever (including but not limited to
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lost profits), even if the Rights Agent has been advised of the
likelihood of such loss or damages and regardless of the form of the
action."
7. AMENDMENT TO SECTION 27(A). Section 27(a) is hereby amended
and restated in its entirety as follows:
"(a) The Board of Directors of the Company may, from
time to time, before and after the Distribution Date, without the
approval of any holders of Rights, supplement or amend any provision of
this Agreement in any manner, whether or not such supplement or
amendment is adverse to any holder of Rights, and the Rights Agent
shall, if the Company so directs, supplement or amend such provision;
PROVIDED, HOWEVER, that from and after the earlier of the date of the
first Section 11(a)(ii) Event or the date of the first Section 13(a)
Event, and prior to the earlier of the Redemption Date or the
Expiration Date, this Agreement shall not be supplemented or amended in
any manner that would materially and adversely affect any holder of
outstanding Rights other than an Acquiring Person or a Surviving
Person; and PROVIDED FURTHER, HOWEVER, that from and after the first
date upon which there shall exist an Acquiring Person, this Agreement
shall not be supplemented or amended in any manner without the approval
of a majority of those directors of the Company who were directors
prior to such date. Upon the delivery of a certificate from an officer
of the Company that states that any supplement or amendment to this
Agreement is in compliance with the terms of this Section 27, and
provided such supplement or amendment does not change or increase the
Rights Agent's rights, duties, liabilities or obligations hereunder,
the Rights Agent shall execute such supplement or amendment."
8. EFFECTIVENESS. This Amendment shall become effective
immediately after the Effective Time (as defined in the Hawaiian Merger
Agreement), and the Company hereby agrees to notify the Rights Agent of the
occurrence of the Effective Time.
9. GOVERNING LAW. This Amendment shall be deemed to be a contract
made under the laws of the State of Hawaii and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts made and performed entirely within such State; provided, however,
that all provisions regarding the rights, duties and obligations of the Rights
Agent shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed entirely
within such State.
10. BINDING EFFECT. Except as specifically amended by this
Agreement, all other terms and conditions of the Agreement shall remain in full
force and effect and are hereby ratified and confirmed.
11. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and each such counterparts shall for all purposes be deemed an
original, and all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date above first written.
HAWAIIAN AIRLINES, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
By: /s/ Xxx Xxxxxxxx Anzai
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Name: Xxx Xxxxxxxx Anzai
Title: Vice President, General Counsel
and Corporate Secretary
MELLON INVESTOR SERVICES LLC
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
