================================================================================
EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
HAWAIIAN HOLDINGS, INC.
AND
XXXXXX X. XXXXX
JULY 26, 2004
================================================================================
-i-
STOCK PURCHASE AGREEMENT
THIS AGREEMENT (including all exhibits and schedules) (the
"Agreement") is made as of July 26, 2004, by and between Xxxxxx X. Xxxxx
("Purchaser"), and Hawaiian Holdings, Inc., a Delaware corporation ("Company").
Unless otherwise provided, capitalized terms used herein are defined in Article
5 below.
WHEREAS, the Company owns directly and indirectly all of the issued
and outstanding capital stock of Hawaiian Airlines, Inc., a Hawaii corporation
("HAL").
WHEREAS, HAL is a debtor in a case (the "Bankruptcy Case") filed in
the United States Bankruptcy Court for the District of Hawaii (the "Bankruptcy
Court") (Case No. 03-00827) under Chapter 11 of Title 11 of the United States
Code, 11 U.S.C. Sections 101, et seq. (the "Bankruptcy Code") on March 21, 2003
(the "Chapter 11 Case").
WHEREAS, on May 30, 2003, the U. S. Trustee's office with the approval
of the Bankruptcy Court, selected an initial trustee to serve as the trustee in
the Chapter 11 Case, who has since resigned and been replaced by a replacement
trustee (the "Trustee").
WHEREAS, THE COMPANY has not filed, and has not had filed against it,
a petition for reorganization, or any other form of relief under the Bankruptcy
Code, and, therefore, continues to operate outside of the jurisdiction of the
Bankruptcy Court.
WHEREAS, subject to the terms and conditions set forth herein,
Purchaser desires to acquire from the Company, a number of shares of common
stock, par value $.01 per share of the Company (the "Common Stock"), equal to
$2,000,000 divided by the product of (x) the Market Price of the Common Stock
and (y) .90 (the 'Acquired Stock"), and the Company desires to sell to Purchaser
the Acquired Stock subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF STOCK
1.1 Purchase and Sale of Acquired Stock
At the Closing, upon the terms and subject to the conditions set forth
in this Agreement, the Company shall issue, sell, assign, transfer and convey to
Purchaser, and Purchaser shall purchase and acquire from the Company, the
Acquired Stock.
1.2 Purchase Price
The aggregate purchase price for the Acquired Stock (the "Purchase
Price") is Two Million Dollars ($2,000,000).
1.3 Manner of Payment of Purchase Price
At the Closing, Purchaser shall pay the Purchase Price by wire
transfer of immediately available funds to the Company, made to such bank
account or accounts as the Company shall specify by written notice to Purchaser
delivered in sufficient time to allow for the transfer to be so made in the
ordinary course.
1.4 Time and Place of Closing
The closing of the transactions contemplated by this Agreement (the
"Closing") shall take place at the offices of the Company at 10:00 A.M. on the
date this Agreement is executed and delivered by the parties hereto or on such
other date as is mutually agreeable to Purchaser and the Company. The date of
the Closing is herein referred to as the "Closing Date."
1.5 Manner of Delivery of Shares
At the Closing, the Company shall deliver to Purchaser an irrevocable
instruction letter to its transfer agent to issue to Purchaser a stock
certificate representing all of the Acquired Stock (the "Instruction Letter").
ARTICLE 2
CLOSING AND DELIVERIES
2.1 Deliveries at Closing
(a) Company Deliveries. At the Closing the Company shall deliver or
shall have previously delivered or otherwise made available to Purchaser each of
the following:
(i) An Officer's Certificate certifying as of the Closing Date
(A) the certificate of incorporation of the Company and all amendments
to date, and (B) the bylaws of the Company, as amended to date;
(ii) the Instruction Letter; and
(iii) a certificate of the Secretary of State of the State of
Delaware that the Company is in good standing.
Purchaser may waive any deliveries specified in this Section 2.1 if it
executes a writing so stating.
2
2.2 Purchaser's Deliveries
At the Closing, Purchaser shall deliver the Purchase Price payable in
accordance with Section 1.3 of this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY
The Company represents and warrants to Purchaser that:
3.1 Organization and Corporate Power
The Company is a corporation duly organized, validly existing and in
good standing under the laws of Delaware. The Company has all requisite
corporate power to own its properties and to carry on its business as it is now
being conducted and is duly licensed or qualified to do business in each
jurisdiction in which the nature of its business or the ownership or leasing of
its properties makes such license or qualification necessary.
3.2 Authority
The Company has all requisite corporate power and authority (a) to
execute and deliver this Agreement and the other Acquisition Documents to which
it is a party, and, (b) to perform its obligations hereunder (including, without
limitation, all right, power, capacity and authority to issue, sell, transfer
and convey the Acquired Stock as provided by this Agreement, subject to
applicable federal and state securities law restrictions). This Agreement
constitutes a valid and binding obligation of the Company, enforceable in
accordance with its terms, except as enforceability may be limited by bankruptcy
laws, similar laws of debtor relief and general principles of equity.
3.3 No Violations
Except as set forth in Schedule 3.3, neither the execution and the
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby by the Company, will violate (i) any confidentiality
agreement, (ii) any Applicable Law, or (iii) any material provision of the
charter or bylaws of the Company.
3.4 Consents
Except for any consent described in Schedule 3.4, no permit, consent,
approval or authorization of, or declaration to or filing with, any Governmental
Authority is required in connection with any of the execution, delivery or
performance of this Agreement by the Company or the consummation of the Company
of any other transaction contemplated hereby.
3.5 Valid Offering
(a) Upon issuance of the Acquired Stock pursuant to this Agreement,
the Acquired Stock will be duly and validly issued, fully paid and
non-assessable, and the Purchaser
3
will receive good title thereto, free and clear of all Encumbrances except (i)
under the provisions of applicable federal and foreign and state securities law
and (ii) as a result of acts of the Purchaser.
(b) The Company has not taken any action that would result in the
offering and sale of the Acquired Stock pursuant to this Agreement being treated
as a public offering rather than a valid private offering under applicable law.
3.6 Brokerage
There are no claims for brokerage commissions, finders' fees
or similar compensation in connection with the transactions contemplated by this
Agreement based on any agreement made by or on behalf of the Company. The
Company will indemnify the Purchaser against any claim regarding brokerage
commissions, finders' fees or similar compensation in connection with this
transaction based on any agreement made by or on behalf of the Company.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES CONCERNING PURCHASER
Purchaser represents and warrants to the Company that:
4.1 Capacity
Purchaser is an individual with full capacity, power and authority to
enter into this Agreement and perform its obligations hereunder.
4.2 Authorization
This Agreement constitutes a valid and binding obligation of
Purchaser, enforceable in accordance with its terms, except as enforceability
may be limited by bankruptcy laws, similar laws of debtor relief and general
principles of equity.
4.3 No Violation
Neither the execution and the delivery of this Agreement, nor the
consummation of the transactions contemplated hereby by the Purchaser, will
violate (i) any confidentiality agreement, or (ii) any Applicable Law.
4.4 Consents
Except for any consent described in Schedule 4.4, no permit, consent,
approval or authorization of, or declaration to or filing with, any Governmental
Authority is required in connection with any of the execution, delivery or
performance of this Agreement by the Purchaser or the consummation of the
Purchaser of any other transaction contemplated hereby.
4
4.5 Brokerage
There are no claims for brokerage commissions, finders' fees or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of
Purchaser.
4.6 Availability of Funds
Purchaser has sufficient funds available on hand to enable Purchaser
to consummate the transactions contemplated hereby and to permit Purchaser to
timely perform all of its obligations under this Agreement.
4.7 Part 121 Certificate
Purchaser has not been denied a Part 121 certificate by the Department
of Transportation.
4.8 U.S. Resident
Purchaser is a citizen of the United States within the meaning of 49
U.S.C. 40102(a)(15)(C).
4.9 Knowledge of Appointment of Trustee for HAL
Purchaser acknowledges that Company has not been involved in the
management of HAL since the Trustee was appointed, that the Trustee has
eliminated the Company's interaction with the employees of HAL, and that the
Trustee does not provide to the Company any information relating to HAL's
business, operations, assets, liabilities, financial condition or results of
operation which is not otherwise provided by the Trustee to the public on
xxxx://xxx.xxxxxxxxxxxxxxxx.xxx.
4.10 Knowledge and Experience.
The Purchaser is a sophisticated investor with a past history of
investing in and operating airlines and has sufficient knowledge and experience
in financial and business matters to be capable of evaluating the merits, risks
and suitability of an unregistered, non-liquid investment such as an investment
in the Company, and has evaluated the merits, risks and suitability of such an
investment. The Purchaser has expertise in, and is not relying on the Company
with respect to, the corporate, Tax, legal, regulatory, bankruptcy and economic
considerations involved in its investment in the Company. The Purchaser
understands that the offer and sale of the Acquired Stock has not been approved
or disapproved by the SEC or any other Governmental Authority. The Purchaser is
dealing with the Company on a professional arms-length basis and neither the
Company nor any of its affiliates or representatives is acting as a fiduciary or
advisor to the Purchaser with respect to this Agreement or any of the
transactions contemplated hereby.
5
4.11 Accredited Investor; Securities Law Restrictions.
Purchaser is an "accredited investor" (as defined in Rule 501(a)(5)
under the Securities Act) and is acquiring the Acquired Stock hereunder for its
own account. Purchaser is purchasing the Acquired Stock for investment purposes
and not with a view to offer or sale thereof in connection with any public
distribution or in any other manner that would violate the Securities Act or the
securities or blue sky laws of any state or of any foreign jurisdiction or
require registration thereunder. Purchaser will not offer or sell or otherwise
dispose of any of the Acquired Stock so purchased in violation of the Securities
Act or the Exchange Act. Purchaser understands that the Acquired Stock is being
offered and sold in reliance upon specific exemptions from the registration
requirements of federal and state securities laws and that the Company is
relying upon the truth and accuracy of the representations and warranties of the
Purchaser set forth herein in order to determine the availability of such
exemptions. The Purchaser understands and agrees that the Acquired Stock has not
been registered under the Securities Act, or any foreign or state securities
laws and that, accordingly, will not be transferable except as permitted under
various exemptions contained in the Securities Act, foreign or state securities
laws, or upon satisfaction of the registration and prospectus delivery
requirements of the Securities Act. The Purchaser acknowledges and agrees that
it must bear the economic risk of the Acquired Stock it is acquiring hereunder
for an indefinite period of time because such stock has not been registered
under the Securities Act and therefore cannot be transferred unless subsequently
registered or an exemption from registration is available.
4.12 No other Representations or Warranties.
No representations or warranties have been made to the Purchaser by
the Company or any director, officer, employee, agent or affiliate of the
Company other than the limited representations of the Company set forth herein
and the Purchaser understands, acknowledges and agrees that the Company makes no
other representations and warranties of any kind or nature, expressed or
implied, all of which are specifically disclaimed by the Company. The decision
of the Purchaser to purchase the securities being acquired by it pursuant hereto
is based on the information contained in this Agreement and the Purchaser's own
independent investigation of the Company. The Purchaser acknowledges that it has
had an opportunity to ask questions of the executive officers of the Company
with the full understanding that such executive officers were appointed to their
positions on June 14, 2004, and has received sufficient information to evaluate
its investment in the Company. The Purchaser has been, and will continue to be,
solely responsible for making its own independent appraisal of an investigation
into, and in connection with this Agreement and the transactions contemplated
hereby it has made such an independent appraisal of an investigation into, the
financial condition, creditworthiness, affairs, status and nature of the Company
and its related companies and it has not relied, and will not hereafter rely, on
the Company or any affiliate or representative of the Company with respect to
such matters or to update Purchaser with respect to such matters.
4.13 No Action Taken to Invalidate Private Placement.
The Purchaser has not taken any action that would result in the
offering of the Acquired Stock pursuant to this Agreement being treated as a
public offering rather than a valid private offering under applicable law.
6
ARTICLE 5
DEFINITIONS
5.1 Definitions
For purposes hereof, the following terms when used herein shall have
the respective meanings set forth below:
"Acquisition Documents" means, collectively, this Agreement, and all
agreements, instruments, certificates and other documents executed and delivered
in connection herewith or contemplated hereby.
"Applicable Law" means any Law or other legally enforceable obligation
imposed by a Governmental Authority in the applicable jurisdiction
"Business Day" means any day that is not a Saturday, a Sunday or other
day on which banks are required or authorized by law to be closed in the City of
New York.
"Encumbrances" means all options, proxies, voting trusts, voting
agreements, judgments, pledges, charges, escrows, rights of first refusal or
first offer, mortgages, indentures, claims, transfer restrictions, liens,
equities, security interests and other encumbrances of every kind and nature
whatsoever, whether arising by agreement, operation of law or otherwise.
"Governmental Authority" means any nation or government, any state,
municipality, or other political subdivision thereof and any entity, body,
agency, commission, department, board, bureau or court, whether domestic,
foreign, or multinational, exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and any
executive official thereof.
"Knowledge" means: (a) with respect to the Company the actual
knowledge of Xxxxxxxx X. Xxxxxxxxxx and Xxxxxxx X. Xxxxxx; and (b) with respect
to the Purchaser the actual knowledge of Xxxxxx X. Xxxxx.
"Law" means any statute, law, ordinance, regulation, decision or rule
of any Governmental Authority, whether foreign, federal, state, municipal, local
or otherwise.
"Market Price" means the closing price of the Common Stock on the
American Stock Exchange on the Business Day immediately preceding the Closing
Date.
"Officer's Certificate" means a certificate delivered by a
corporation's or limited liability the Company's president or its chief
financial officer, stating that the officer signing such certificate has made or
has caused to be made such investigations as are reasonably necessary in order
to permit him to verify the accuracy of the information set forth in such
certificate.
7
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a Governmental Authority or any department, agency or political
subdivision thereof.
"Representatives" shall mean any officer, director, member,
shareholder, principal, attorney, agent, employee, banker, accountant,
consultant or other representative.
"Required Consents" shall mean those consents, if any, listed in
Schedule 3.4 that may be required in order to allow the Company to issue and
sell the Acquired Stock to Purchaser free and clear of all liens, claims and
encumbrances, and to make the other commitments set forth herein.
"Securities Act" means the Securities Act of 1933, as amended.
"SEC" means the Securities and Exchange Commission
"The Exchange Act" means Securities Exchange Act of 1934, as amended.
ARTICLE 6
MISCELLANEOUS
6.1 Press Releases and Communications.
Except as required by The Exchange Act or the rules of the American
Stock Exchange, no press release, public announcement or statement related to
this Agreement or the transactions contemplated herein, or any other
announcement or communication to the employees, customers or suppliers of the
Company or the Company, shall be issued or made by any party hereto without the
joint approval of Purchaser and the Company.
6.2 Expenses.
Except as otherwise expressly provided herein, each party shall pay
all of its own expenses (including without limitation attorneys', consultants
and accountants' fees and expenses) incurred in connection with the negotiation
of this Agreement, the performance of their respective obligations hereunder and
the consummation of the transactions contemplated by this Agreement (whether
consummated or not).
6.3 Notices.
All notices, demands and other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and
shall be deemed to have been given when personally delivered, delivered by
Federal Express or similar overnight courier service. Notices, demands and
communications to Purchaser and the Company shall, unless another address is
specified in writing, be sent to the address indicated below:
8
Notices to Purchaser: with a copy (which shall not constitute
delivery of notice) to:
Xxxxxx X. Xxxxx ____________________________________________
____________________________________________
____________________________________________
Notices to the Company: with a copy (which shall not constitute
delivery of notice) to:
Hawaiian Holdings, Inc. Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
c/o Ranch Capital LLC The Chrysler Building
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000 000 Xxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Attn: Xxxxxxxx Xxxxxxxxxx Tel: (000) 000-0000
Fax: (000) 000-0000
Tel.: (000) 000-0000
Fax: (000) 000-0000
6.4 Assignment
This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, except that neither this Agreement nor any of the rights, interests
or obligations hereunder may be assigned by Purchaser or the Company without the
written consent of the other party, such consent not to be unreasonably
withheld.
6.5 Severability
Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making the determination
of invalidity or unenforceability shall have the power to reduce the scope,
duration or area of the term or provision, to delete specific words or phrases
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
9
6.6 No Strict Construction
The language used in this Agreement shall be deemed to be the language
chosen by the parties hereto to express their mutual intent, and no rule of
strict construction shall be applied against any Person.
6.7 Amendment and Waiver
Any provision of this Agreement or the Exhibits or Schedules attached
hereto may be amended or waived only in writing signed by Purchaser and the
Company. No waiver of any provision hereunder or any breach or default thereof
shall extend to or affect in any way any other provision or prior or subsequent
breach or default.
6.8 Complete Agreement
This Agreement and the documents referred to herein contain the
complete agreement between the parties hereto and supersede any prior
understandings, agreements or representations by or between the parties, written
or oral, which may have related to the subject matter hereof in any way.
6.9 Counterparts
This Agreement may be executed in multiple counterparts, any one of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same instrument.
6.10 Governing Law
All matters relating to the interpretation, construction, validity and
enforcement of this Agreement shall be governed by and construed in accordance
with the domestic laws of the State of Delaware without giving effect to any
choice or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdiction) that would cause the application of laws of any
jurisdiction other than the State of Delaware.
6.11 Submission to Jurisdiction
All actions or proceedings arising in connection with this Agreement
may be tried and litigated in the state or federal courts located in the State
of Delaware. Each party hereby waives any right it may have to assert the
doctrine of forum non conveniens or similar doctrine or to object to venue with
respect to any proceeding brought in accordance with this paragraph, and
stipulates that the state and federal courts located in the State of Delaware
shall have in persona jurisdiction over each of them for the purpose of
litigating any such dispute, controversy, or proceeding. Each party hereby
authorizes and accepts service of process sufficient for personal jurisdiction
in any action against it as contemplated by this Section 6.11 by registered or
certified mail, return receipt requested, postage prepaid, to its address for
the giving of notices as set forth in Section 6.3 above. Nothing herein shall
affect the right of any party to serve process in any other manner permitted by
law.
10
6.12 Descriptive Headings; Interpretation
The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part hereof or define, limit or
otherwise affect the meaning of any of the terms or provisions hereof. The use
of the word "including" in this Agreement shall be by way of example rather than
by limitation and shall be deemed to include the phrase "including without
limitation."
6.13 Construction of Certain Terms and Phrases
Unless the context of this Agreement otherwise requires, (i) words of
any gender include each other gender; (ii) unless the context requires
otherwise, words using the singular or plural number also include the plural or
singular number, respectively; (iii) the terms "hereof," "herein," "hereby" and
derivative or similar words refer to this entire Agreement; and (iv) the terms
"Article" or "Section" refer to the specified Article or Section of this
Agreement. Whenever this Agreement refers to a number of days, such number shall
refer to calendar days unless business days are specified.
6.14 No Third Party Beneficiaries
This Agreement shall not confer any rights or remedies upon any Person
other than the parties hereto and their respective heirs, personal legal
representatives, successors and permitted assigns, the Purchaser Indemnified
Parties and the Company Indemnified Parties.
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
HAWAIIAN HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
/s/ Xxxxxx X. Xxxxx
-------------------------------
XXXXXX X. XXXXX
12
