REGISTRATION RIGHTS AGREEMENT
between
HAWAIIAN AIRLINES, INC.
and
AIRLINE INVESTORS PARTNERSHIP, L.P.
_______________________________________
Dated as of January 31, 1996
_______________________________________
TABLE OF CONTENTS
PAGE
1. Background............................................1
2. Registration Under Securities Act, etc................1
2.1 Registration on Request..........................1
2.2 Incidental Registration..........................4
2.3 Registration Procedures..........................5
2.4 Underwritten Offerings...........................9
2.5 Preparation; Reasonable Investigation...........10
2.6 Limitations, Conditions and Qualifications to
Obligations under Registration Covenants........10
2.7 Indemnification.................................11
3. Definitions..........................................15
4. Rule 144 and Rule 144A...............................17
5. Amendments and Waivers...............................17
6. Nominees for Beneficial Owners.......................17
7. Notices..............................................18
8. Assignment...........................................18
9. Calculation of Percentage Interests in Registrable
Securities...........................................19
10. No Inconsistent Agreements...........................19
11. Remedies.............................................19
12. Severability.........................................19
13. Entire Agreement.....................................19
14. Headings.............................................20
15. Governing Law........................................20
16. Counterparts.........................................20
17. Termination..........................................20
Page 1
REGISTRATION RIGHTS AGREEMENT, dated as of January 31, 1996,
between HAWAIIAN AIRLINES, INC., a Hawaii corporation (the "Company") and
AIRLINE INVESTORS PARTNERSHIP, L.P., a Delaware limited partnership (the
"Purchaser").
The parties hereby agree as follows:
1. BACKGROUND. Pursuant to a Stock Purchase Agreement, dated
as of December 8, 1995, between the Company and the Purchaser (the
"Purchase Agreement"), the Purchaser has agreed to purchase from the
Company, and the Company has agreed to issue and sell to the Purchaser at
the Closing (as defined in the Purchase Agreement), 4 shares of Series B
Special Preferred Stock, par value $0.01 per share of the Company and an
aggregate of 18,181,818 shares (the "Shares") of the Company's Class A
Common Stock, par value $.01 per share. The Purchaser would not enter
into the Purchase Agreement unless this Registration Rights Agreement
were being simultaneously entered into by the Company. Capitalized terms
used herein but not otherwise defined shall have the meanings given them
in Section 3.
2. REGISTRATION UNDER SECURITIES ACT, ETC.
2.1 REGISTRATION ON REQUEST.
(a) REQUEST. At any time, or from time to time,
upon the written request of one or more holders (the "Initiating
Holders") of Registrable Securities that the Company effect the
registration under the Securities Act of all or part of such Initiating
Holders' Registrable Securities, the Company promptly will give written
notice of such requested registration to all registered holders of
Registrable Securities, and thereupon the Company will use its best
efforts to effect, at the earliest possible date, the registration under
the Securities Act, including by means of a shelf registration on Form
S-3 (or any successor form) pursuant to Rule 415 under the Securities Act
if so requested in such request (but only if the Company is then eligible
to use such a shelf registration and if Form S-3 (or such successor form)
is then available to the Company), of
(i) the Registrable Securities which the
Company has been so requested to register by such Initiating
Holders, and
(ii) all other Registrable Securities which the
Company has been requested to register by the holders thereof (such
holders together with the
Page 2
Initiating Holders hereinafter are referred to as the "Selling
Holders") by written request given to the Company within 30 days
after the giving of such written notice by the Company,
all to the extent necessary to permit the disposition of the Registrable
Securities and such shares of Common Stock so to be registered.
(b) REGISTRATION OF OTHER SECURITIES. Whenever the
Company shall effect a registration pursuant to this Section 2.1, no
securities other than Registrable Securities shall be included among the
securities covered by such registration unless the Selling Holders of not
less than 66-2/3% of all Registrable Securities to be covered by such
registration shall have consented in writing to the inclusion of such
other securities.
(c) REGISTRATION STATEMENT FORM. Registrations under
this Section 2.1 shall be on such appropriate registration form of the
Commission as shall be reasonably selected by the Company.
(d) EFFECTIVE REGISTRATION STATEMENT. A
registration requested pursuant to this Section 2.1 shall not be deemed
to have been effected (i) unless a registration statement with respect
thereto has become effective and remained effective in compliance with
the provisions of the Securities Act with respect to the disposition of
all Registrable Securities covered by such registration statement until
such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement (unless the
failure to so dispose of such Registrable Securities shall be caused
solely by reason of a failure on the part of the Selling Holders),
PROVIDED, that except with respect to any registration statement filed
pursuant to Rule 415 under the Securities Act, such period need not
exceed 135 days; (ii) if after it has become effective, such registration
is interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court for
any reason not attributable solely to the Selling Holders and has not
thereafter become effective; or (iii) if the conditions to closing
specified in the underwriting agreement, if any, entered into in
connection with such registration are not satisfied or waived, other than
solely by reason of a failure on the part of the Selling Holders.
(e) SELECTION OF UNDERWRITERS. The underwriter or
underwriters of each underwritten offering of the Registrable Securities
so to be registered shall be
Page 3
selected by the Selling Holders of more than 50% of each
class of Registrable Securities to be included in such
registration and shall be reasonably acceptable to the Company.
(f) PRIORITY IN REQUESTED REGISTRATION. If the
managing underwriter of any underwritten offering shall advise the
Company in writing (and the Company shall so advise each Selling Holder
of Registrable Securities requesting registration of such advice) that,
in its opinion, the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering within
a price range acceptable to the Selling Holders of 66-2/3% of the
Registrable Securities requested to be included in such registration, the
Company, except as provided in the following sentence, will include in
such registration, to the extent of the number and type which the Company
is so advised can be sold in such offering, Registrable Securities
requested to be included in such registration, PRO RATA (based on the
number of Registrable Securities held by each of the Selling Holders)
among the Selling Holders requesting such registration. Notwithstanding
the foregoing, if the total number of Registrable Securities requested to
be included in any registration cannot be included, holders of
Registrable Securities requesting registration thereof pursuant to
Section 2.1, representing not less than 50% of the Registrable Securities
with respect to which registration has been requested, shall have the
right to withdraw the request for registration by giving written notice
to the Company within 20 days after receipt of the notice from the
managing underwriter described above by the Company and, in the event of
such withdrawal, such request shall not be counted for purposes of the
requests for registration to which holders of Registrable Securities are
entitled pursuant to Section 2.1 hereof. In connection with any such
registration to which this Section 2.1(f) is applicable, no securities
other than Registrable Securities shall be covered by such registration.
(g) LIMITATIONS ON REGISTRATION REQUESTS.
Notwithstanding anything in this Section 2.1 to the contrary, in no event
will the Company be required to (i) effect, in the aggregate, more than
two registrations pursuant to this Section 2.1; or (ii) effect a
registration pursuant to this Section 2.1 within the six-month period
occurring immediately subsequent to the effectiveness (within the meaning
of Section 2.1(d)) of a registration statement filed pursuant to this
Section 2.1, unless a majority of the Disinterested Directors determines
that effecting a second registration within the six-month period would
not have a material adverse effect on the market price of the Common
Stock.
Page 4
(h) EXPENSES. The Company will pay all
Registration Expenses in connection with any registrations requested
pursuant to this Section 2.1.
2.2 INCIDENTAL REGISTRATION.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. If the
Company at any time prior to February 1, 2006, proposes to register any
of its Common Stock under the Securities Act by registration on any form
other than Forms S-4 or S-8 (or successor forms), whether or not for sale
for its own account, it will each such time give prompt written notice to
all registered holders of Registrable Securities of its intention to do
so and of such holders' rights under this Section 2.2. Upon the written
request of any such holder (a "Requesting Holder") made as promptly as
practicable and in any event within 30 days after the receipt of any such
notice from the Company (15 days if the Company states in such written
notice or gives telephonic or telecopied notice to all registered holders
of Registrable Securities, with written confirmation to follow promptly
thereafter, that (i) such registration will be on Form S-3 and (ii) such
shorter period of time is required because of a planned filing date)
(which request shall specify the Registrable Securities intended to be
disposed of by such Requesting Holder), the Company will use its best
efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to
register by the Requesting Holders thereof; PROVIDED, that prior to the
effective date of the registration statement filed in connection with
such registration, immediately upon notification to the Company from the
managing underwriter of the price at which such securities are to be
sold, if such price is below the price which any Requesting Holder shall
have indicated to be acceptable to such Requesting Holder, the Company
shall so advise such Requesting Holder of such price, and such Requesting
Holder shall then have the right to withdraw its request to have its
Registrable Securities included in such registration statement; PROVIDED,
FURTHER, HOWEVER, that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of
the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give
written notice of such determination to each Requesting Holder of
Registrable Securities and (x) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from any
obligation of the Company to pay the Registration Expenses in connection
therewith), without prejudice, how-
Page 5
ever, to the rights of any holder or holders of Registrable
Securities entitled to do so to cause such registration to
be effected as a registration under Section 2.1, and (y) in the
case of a determination to delay registering, shall be permitted
to delay registering any Registrable Securities, for the same period as
the delay in registering such other securities. No registration effected
under this Section 2.2 shall relieve the Company of its obligation to
effect any registration upon request under Section 2.1.
(b) PRIORITY IN INCIDENTAL REGISTRATIONS. If the
managing underwriter of any underwritten offering shall inform the
Company by letter of its opinion that the number or type of Registrable
Securities requested to be included in such registration would materially
adversely affect such offering, and the Company has so advised the
Requesting Holders in writing, then the Company will include in such
registration, to the extent of the number and type which the Company is
so advised can be sold in (or during the time of) such offering, FIRST,
all securities proposed by the Company to be sold for its own account,
and SECOND, such Registrable Securities requested to be included in such
registration pursuant to this Agreement, PRO RATA (based on the number of
Registrable Securities requested to be included therein by each
Requesting Holder) among such Requesting Holders.
(c) EXPENSES. The Company will pay all Registration
Expenses in connection with any registration contemplated pursuant to
this Section 2.2.
2.3 REGISTRATION PROCEDURES. If and when-ever the
Company is required to use its best efforts to effect the registration of
any Registrable Securities under the Securities Act as provided in
Sections 2.1 and 2.2, the Company will, as expeditiously as possible:
(i) prepare and (within 90 days after the end of the
period within which requests for registra-
Page 6
tion may be given to the Company) file with the Commission
the requisite registration statement to effect such
registration and thereafter use its best efforts to
cause such registration statement to become effective;
PROVIDED, HOWEVER, that the Company may discontinue any registration
of its securities which are not Registrable Securities (and, under
the circumstances specified in Section 2.2(a), Registrable
Securities) at any time prior to the effective date of the
registration statement relating thereto;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep
such registration statement effective in accordance with Section
2.1(d)(i) hereof and to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities
covered by such registration statement until such time as all of
such Registrable Securities have been disposed of in accordance with
the intended methods of disposition by the seller or sellers thereof
set forth in such registration statement; PROVIDED, that except with
respect to any such registration statement filed pursuant to Rule
415 under the Securities Act, such period need not exceed 135 days;
(iii) furnish to each seller of Registrable Securities
covered by such registration statement, such number of conformed
copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such
number of copies of the prospectus contained in such registration
statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, as such seller may
reasonably request;
(iv) use its reasonable best efforts (x) to register
or qualify all Registrable Securities and other securities covered
by such registration statement under such other securities or blue
sky laws of such States of the United States of America where an
exemption is not available and as the sellers of Registrable
Securities covered by such registration statement shall reasonably
request, (y) to keep such registration or qualification in effect
for so long as such registration statement remains in effect and (z)
to take any other action which may be reasonably necessary or
advisable to enable such sellers to consummate the disposition in
such jurisdictions of the securities to be sold by such sellers,
except that the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this
subdivision (iv) be obligated to be so qualified or to consent to
general service of process in any such jurisdiction;
(v) use its best efforts to cause all Registrable
Securities covered by such registration statement to be registered
with or approved by such
Page 7
other federal or state governmental agencies or
authorities as may be necessary in the reasonable
opinion of counsel to the Company and counsel to the seller or
sellers of Registrable Securities to enable the seller or sellers
thereof to consummate the disposition of such Registrable
Securities;
(vi) furnish at the effective date of such
registration statement to each seller of Registrable Securities, and
each such seller's underwriters, if any, a signed counterpart of:
(x) an opinion of counsel for the Company,
dated the effective date of such registration statement and, if
applicable, the date of the closing under the underwriting
agreement, and
(y) a "comfort" letter signed by the
independent public accountants who have certified the Company's
financial statements included or incorporated by reference in
such registration statement,
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in
the case of the accountants' comfort letter, with respect to events
subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in
accountants' comfort letters delivered to the underwriters in
underwritten public offerings of securities and, in the case of the
accountants' comfort letter, such other financial matters, and, in
the case of the legal opinion, such other legal matters, as the
underwriters may reasonably request;
(vii) notify each seller of Registrable Securities
covered by such registration statement at any time when a prospectus
relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, in the light of the circumstances under which they were
made, and at the request of any such seller promptly prepare and
furnish to it a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
Page 8
prospectus shall not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances under which they were made;
(viii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable
(but not more than eighteen months after the effective date of such
registration statement), an earnings statement covering the period
of at least twelve months beginning with the first full calendar
month after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 promulgated thereunder;
(ix) provide and cause to be maintained a transfer
agent and registrar (which, in each case, may be the Company) for
all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such
registration; and
(x) use its best efforts to list all Registrable
Securities covered by such registration statement on any national
securities exchange on which Registrable Securities of the same
class covered by such registration statement are then listed and, if
no such Registrable Securities are so listed, on any national
securities exchange on which the Common Stock is then listed.
The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish the Company such
information regarding such seller and the distribution of such securities
as the Company may from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the
Company of the happening of any event of the kind described in
subdivision (vii) of this Section 2.3, such holder will forthwith
discontinue such holder's disposition of Registrable Securities pursuant
to the registration statement relating to such Registrable Securities
until such holder's receipt of the copies of the supplemented or amended
prospectus contemplated by subdivision (vii) of this Section 2.3 and, if
so directed by the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then
Page 9
in such holder's possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice.
2.4 UNDERWRITTEN OFFERINGS.
(a) REQUESTED UNDERWRITTEN OFFERINGS. If requested
by the underwriters for any underwritten offering by holders of
Registrable Securities pursuant to a registration requested under Section
2.1, the Company will enter into an underwriting agreement with such
underwriters for such offering, such agreement to be reasonably
satisfactory in substance and form to each such holder and the
underwriters and to contain such representations and warranties by the
Company and such other terms as are generally prevailing in agreements of
that type, including, without limitation, indemnities to the effect and
to the extent provided in Section 2.7 or such other indemnities as are
customarily received by underwriters in public offerings of similar
securities. The holders of the Registrable Securities proposed to be
sold by such underwriters will reasonably cooperate with the Company in
the negotiation of the underwriting agreement. Such holders of
Registrable Securities to be sold by such underwriters shall be parties
to such underwriting agreement and may, at their option, require that any
or all of the representations and warranties by, and the other agreements
on the part of, the Company to and for the benefit of such underwriters
shall also be made to and for the benefit of such holders of Registrable
Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such holders of Registrable
Securities. No holder of Registrable Securities shall be required to
make any representations or warranties to or agreements with the Company
other than representations, warranties or agreements regarding such
holder, such holder's Registrable Securities and such holder's intended
method of distribution or any other representations required by
applicable law.
(b) INCIDENTAL UNDERWRITTEN OFFERINGS. If the
Company proposes to register any of its securities under the Securities
Act as contemplated by Section 2.2 and such securities are to be
distributed by or through one or more underwriters, the Company will, if
requested by any Requesting Holder of Registrable Securities, use its
reasonable best efforts to arrange for such underwriters to include all
the Registrable Securities to be offered and sold by such Requesting
Holder among the securities of the Company to be distributed by such
underwriters, subject to the provisions of Section 2.2(b). The holders
of Registrable Securities to be distributed by such underwriters
Page 10
shall be parties to the underwriting agreement between the Company and such
underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part
of, the Company to and for the benefit of such underwriters shall also be
made to and for the benefit of such holders of Registrable Securities and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to
the obligations of such holders of Registrable Securities. Any such
Requesting Holder of Registrable Securities shall not be required to make
any representations or warranties to or agreements with the Company or
the underwriters other than representations, warranties or agreements
regarding such Requesting Holder, such Requesting Holder's Registrable
Securities and such Requesting Holder's intended method of distribution
or any other representations required by applicable law.
2.5 PREPARATION; REASONABLE INVESTIGATION. In connection
with the preparation and filing of each registration statement under the
Securities Act pursuant to this Agreement, the Company will give the
holders of Registrable Securities to be registered under such
registration statement, their underwriters, if any, and their respective
counsel the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with
the Commission, and each amendment thereof or supplement thereto, and
will give each of them such reasonable access to its books and records
and such opportunities to discuss the business of the Company with its
officers and the independent public accountants who have certified its
financial statements as shall be necessary, in the opinion of such
holders' and such underwriters' respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
2.6 LIMITATIONS, CONDITIONS AND QUALIFICATIONS TO
OBLIGATIONS UNDER REGISTRATION COVENANTS. The Company shall be entitled
to postpone for a reasonable period of time (but not exceeding 90 days)
the filing of any registration statement otherwise required to be
prepared and filed by it pursuant to Section 2.1 if the Company
determines, in its reasonable judgment, that such registration and
offering would interfere with any financing, acquisition, corporate
reorganization or other material transaction involving the Company and
promptly gives the holders of Registrable Securities requesting
registration thereof pursuant to Section 2.1 written notice of such
determination, containing a general statement of the reasons for such
postponement and an approximation of the anticipated delay. If the
Company shall so postpone the filing of a registra-
Page 11
tion statement, holders of Registrable Securities requesting registration
thereof pursuant to Section 2.1, representing not less than 50% of the
Registrable Securities with respect to which registration has been requested,
shall have the right to withdraw the request for registration by giving written
notice to the Company within 30 days after receipt of the notice of
postponement and, in the event of such withdrawal, such request shall not
be counted for purposes of the requests for registration to which holders of
Registrable Securities are entitled pursuant to Section 2.1 hereof.
2.7 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company
will, and hereby does, indemnify and hold harmless, in the case of any
registration statement filed pursuant to Section 2.1 or 2.2, each seller
of any Registrable Securities covered by such registration statement and
each other Person who participates as an underwriter in the offering or
sale of such securities and each other Person, if any, who controls such
seller or any such underwriter within the meaning of the Securities Act
or the Exchange Act, and their respective directors, officers, partners,
agents and affiliates, against any losses, claims, damages or
liabilities, joint or several, to which such seller or underwriter or any
such director, officer, partner, agent, affiliate or controlling person
may become subject under the Securities Act or otherwise, including,
without limitation, the reasonable fees and expenses of legal counsel,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which
such securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or
any amendment or supplement thereto, or any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company
will reimburse such seller or underwriter and each such director,
officer, partner, agent, affiliate and controlling Person for any
reasonable legal or any other expenses incurred by them in connection
with investigating or defending any such loss, claim, liability, action
or proceeding; PROVIDED, HOWEVER, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in such registration statement, any such preliminary
Page 12
prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such seller or underwriter,
as the case may be, specifically stating that it is for use in the
preparation thereof; PROVIDED, FURTHER, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement
or alleged untrue statement of any material fact contained in any such
registration statement, preliminary prospectus, final prospectus or
summary prospectus contained therein or any omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances in which they were made
not misleading in a prospectus or prospectus supplement, if such untrue
statement or omission is completely corrected in an amendment or
supplement to such prospectus or prospectus supplement, the seller of the
Registrable Securities has an obligation under the Securities Act to
deliver a prospectus or prospectus supplement in connection with such
sale of Registrable Securities and the seller of Registrable Securities
thereafter fails to deliver such prospectus or prospectus supplement as
so amended or supplemented prior to or concurrently with the sale of
Registrable Securities to the person asserting such loss, claim, damage
or liability after the Company has furnished such seller with a
sufficient number of copies of the same. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on
behalf of such seller or underwriter or any such director, officer,
partner, agent, affiliate or controlling person and shall survive the
transfer of such securities by such seller or underwriter.
(b) INDEMNIFICATION BY THE SELLERS. As a condition
to including any Registrable Securities in any registration statement,
the Company shall have received an undertaking reasonably satisfactory to
it from the prospective seller of such Registrable Securities, to
indemnify and hold harmless (in the same manner and to the same extent as
set forth in Section 2.7(a)) the Company, and each director of the
Company, each officer of the Company and each other Person, if any, who
participates as an underwriter in the offering or sale of such securities
and each other Person who controls the Company or any such underwriter
within the meaning of the Securities Act or the Exchange Act, with
respect to any statement or alleged statement in or omission or alleged
omission from such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement
or omission or alleged omission was made
Page 13
in reliance upon and in conformity with written information furnished to the
Company by such seller specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; PROVIDED, HOWEVER,
that the liability of such indemnifying party under this Section 2.7(b) shall
be limited to the amount of proceeds received by such indemnifying party in
the offering giving rise to such liability. Such indemnity shall remain
in full force and effect, regardless of any investigation made by or on
behalf of the Company or any such director, officer or controlling person
and shall survive the transfer of such securities by such seller.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt
by an indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in Section 2.7(a) or (b), such
indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action; PROVIDED, HOWEVER, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of
this Section 2.7, except to the extent that the indemnifying party is
actually and materially prejudiced by such failure to give notice. In
case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it may wish, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; PROVIDED, HOWEVER,
that any indemnified party may, at its own expense, retain separate
counsel to participate in, but not control, such defense.
Notwithstanding the foregoing, in any action or proceeding in which both
the Company and an indemnified party is, or is reasonably likely to
become, a party, such indemnified party shall have the right to employ
separate counsel at the Company's expense and to control its own defense
of such action or proceeding if, in the reasonable opinion of counsel to
such indemnified party, (a) there are or may be legal defenses available
to such indemnified party or to other indemnified parties that are
different from or additional to those available to the Company or (b) any
conflict or potential conflict exists between the Company and such
indemnified party that would make such separate representation advisable;
PROVIDED, HOWEVER, that in no event shall the Company be required to pay
fees and expenses under this Section 2.7 for more than one firm of
attorneys representing the indemnified parties (together, if appropriate,
with one firm of local counsel per jurisdiction) in any one legal action
or group of
Page 14
related legal actions. No indemnifying party shall be liable
for any settlement of any action or proceeding effected without its
written consent, which consent shall not be unreasonably withheld. No
indemnifying party shall, without the consent of the indemnified party,
which consent shall not be unreasonably withheld, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to
such indemnified party of a release from all liability with respect to
such claim or litigation or which requires action other than the payment
of money by the indemnifying party.
(d) CONTRIBUTION. If the indemnification provided
for in this Section 2.7 shall for any reason be held by a court to be
unavailable to an indemnified party under Section 2.7(a) or (b) hereof in
respect of any loss, claim, damage or liability, or any action in respect
thereof, then, in lieu of the amount paid or payable under Section 2.7(a)
or (b), the indemnified party and the indemnifying party under Section
2.7(a) or (b) shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating the same), (i) in such proportion as is
appropriate to reflect the relative fault of the Company and the
prospective sellers of Registrable Securities covered by the registration
statement which resulted in such loss, claim, damage or liability, or
action or proceeding in respect thereof, with respect to the statements
or omissions which resulted in such loss, claim, damage or liability, or
action or proceeding in respect thereof, as well as any other relevant
equitable considerations or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as shall be
appropriate to reflect the relative benefits received by the Company and
such prospective sellers from the offering of the securities covered by
such registration statement, PROVIDED, that for purposes of this clause
(ii), the relative benefits received by the prospective sellers shall be
deemed not to exceed the amount of proceeds received by such prospective
sellers. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. Such prospective sellers' obligations to contribute
as provided in this Section 2.7(d) are several in proportion to the
relative value of their respective Registrable Securities covered by such
registration statement and not joint. In addition, no Person shall be
obligated to contribute hereunder any amounts in payment for any
settlement of any action or claim effected without such Person's consent,
which consent shall not be unreasonably withheld.
Page 15
(e) OTHER INDEMNIFICATION. Indemnification and
contribution similar to that specified in the preceding subdivisions of
this Section 2.7 (with appropriate modifications) shall be given by the
Company and each seller of Registrable Securities with respect to any
required registration or other qualification of securities under any
federal or state law or regulation of any governmental authority other
than the Securities Act.
(f) INDEMNIFICATION PAYMENTS. The indemnification
and contribution required by this Section 2.7 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or expense, loss, damage or
liability is incurred.
3. DEFINITIONS. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean and include the Class A Common Stock,
par value $.01 per share, of the Company and each other class of capital
stock of the Company that does not have a preference over any other class
of capital stock of the Company as to dividends or upon liquidation,
dissolution or winding up of the Company and, in each case, shall include
any other class of capital stock of the Company into which such stock is
reclassified or reconstituted.
"DISINTERESTED DIRECTOR" means, with respect to any transaction
or series of related transactions, a member of the board of directors of
the Company who does not have any material direct or indirect financial
interest in or with respect to such transaction or series of related
transactions.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any superseding Federal statute, and the rules and
regulations promulgated thereunder, all as the same shall be in effect at
the time. Reference to a particular section of the Securities Exchange
Act of 1934, as amended, shall include a reference to the comparable
section, if any, of any such superseding Federal statute.
"INITIATING HOLDER" is defined in Section 2.1.
Page 16
"PERSON" means any individual, firm, corporation, partnership,
limited liability company or partnership, trust, incorporated or
unincorporated association, joint venture, joint stock company,
government (or an agency or political subdivision thereof) or other
entity of any kind and shall include any successor (by merger or
otherwise) of such entity.
"REGISTRABLE SECURITIES" means any Shares and any Related
Registrable Securities. As to any particular Registrable Securities,
once issued, such securities shall cease to be Registrable Securities
when (a) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such
registration statement, (b) they shall have been sold as permitted by
Rule 144 (or any successor provision) under the Securities Act, (c) they
shall have been otherwise transferred, new certificates for them not
bearing a legend restricting further transfer shall have been delivered
by the Company and subsequent public distribution of them shall not
require registration of such distribution under the Securities Act or (d)
they shall have ceased to be outstanding. All references to percentages
of Registrable Securities shall be calculated pursuant to Section 9.
"REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with Section 2, including, without
limitation, all registration and filing fees, all fees of the American
Stock Exchange, other national securities exchanges or the National
Association of Securities Dealers, Inc., all fees and expenses of
complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the
fees and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of "comfort" letters required
by or incident to such performance and compliance, any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities (excluding any underwriting discounts or commissions with
respect to the Registrable Securities) and the reasonable fees and
expenses of one counsel to the Selling Holders (selected by Selling
Holders representing at least 50% of the Registrable Securities covered
by such registration); PROVIDED, HOWEVER, that in the event the Company
shall determine, in accordance with Section 2.2(a) or Section 2.6, not to
register any securities with respect to which it had given written notice
of its intention to so register to holders of Registrable Securities, all
of the costs of the type (and subject to any limitation to the extent)
set forth in this definition and incurred by Requesting Holders in
connection with such
Page 17
registration on or prior to the date the Company notifies the Requesting
Holders of such determination shall be deemed Registration Expenses.
"RELATED REGISTRABLE SECURITIES" means with respect to the
Shares any securities of the Company issued or issuable with respect to
any of the Shares by way of a dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or
other reorganization or otherwise.
"REQUESTING HOLDER" is defined in Section 2.2.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
or any superseding Federal statute, and the rules and regulations
promulgated thereunder, all as the same shall be in effect at the time.
References to a particular section of the Securities Act of 1933, as
amended, shall include a reference to the comparable section, if any, of
any such superseding Federal statute.
"SELLING HOLDER" is defined in Section 2.1.
4. RULE 144 AND RULE 144A. The Company shall take all
actions reasonably necessary to enable holders of Registrable Securities
to sell such securities without registration under the Securities Act
within the limitation of the provisions of (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, (b) Rule
144A under the Securities Act, as such Rule may be amended from time to
time, or (c) any similar rules or regulations hereafter adopted by the
Commission. Upon the request of any holder of Registrable Securities,
the Company will deliver to such holder a written statement as to whether
it has complied with such requirements.
5. AMENDMENTS AND WAIVERS. This Agreement may be amended
with the consent of the Company and the Company may take any action
herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company shall have obtained the written
consent to such amendment, action or omission to act, of the holder or
holders of at least 66-2/3% of the Registrable Securities affected by
such amendment, action or omission to act. Each holder of any
Registrable Securities at the time or thereafter outstanding shall be
bound by any consent authorized by this Section 5, whether or not such
Registrable Securities shall have been marked to indicate such consent.
6. NOMINEES FOR BENEFICIAL OWNERS. In the event that any
Registrable Securities are held by a nominee for the beneficial owner
thereof, the beneficial owner thereof
Page 18
may, at its election in writing delivered to the Company, be treated as the
holder of such Registrable Securities for purposes of any request or other
action by any holder or holders of Registrable Securities pursuant to this
Agreement or any determination of any number or percentage of shares of
Registrable Securities held by any holder or holders of Registrable Securities
contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances
reasonably satisfactory to it of such owner's beneficial ownership of
such Registrable Securities.
7. NOTICES. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be
by registered or certified first-class mail, return receipt requested,
telecopier, courier service or personal delivery:
(a) if to the Purchaser, addressed to it in the manner
set forth in the Purchase Agreement, or at such other address as it shall
have furnished to the Company in writing in the manner set forth herein;
(b) if to any other holder of Registrable Securities, at
the address that such holder shall have furnished to the Company in
writing in the manner set forth herein, or, until any such other holder
so furnishes to the Company an address, then to and at the address of the
last holder of such Registrable Securities who has furnished an address
to the Company; or
(c) if to the Company, addressed to it in the manner set
forth in the Purchase Agreement, or at such other address as the Company
shall have furnished to each holder of Registrable Securities at the time
outstanding in the manner set forth herein.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; when
delivered by a courier, if delivered by overnight courier service; three
business days after being deposited in the mail, postage prepaid, if
mailed; and when receipt is acknowledged, if telecopied.
8. ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and,
with respect to the Company, its respective successors and permitted
assigns and, with respect to the Purchaser, any holder of any Registrable
Securities, subject to the provisions respecting the minimum amount of
Registrable Securities required in order to be entitled to certain
rights, or take certain actions, contained herein.
Page 19
Except by operation of law, this Agreement may not be assigned by the Company
without the prior written consent of the holders of 66-2/3% of the Registrable
Securities outstanding at the time such consent is requested.
9. CALCULATION OF PERCENTAGE INTERESTS IN REGISTRABLE
SECURITIES. For purposes of this Agreement, all references to a
percentage of the Registrable Securities shall be calculated based upon
the number of Registrable Securities outstanding at the time such
calculation is made.
10. NO INCONSISTENT AGREEMENTS. The Company will not
hereafter enter into any agreement with respect to its securities which
is inconsistent with the rights granted to the holders of Registrable
Securities in this Agreement. Without limiting the generality of the
foregoing, the Company will not hereafter enter into any agreement with
respect to its securities which grants, or modify any existing agreement
with respect to its securities to grant, to the holder of its securities
in connection with an incidental registration of such securities equal or
higher priority to the rights granted to the Purchaser under Section 2 of
this Agreement.
11. REMEDIES. Each holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance
of its rights under this Agreement. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
12. SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions
contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of the Purchaser shall be
enforceable to the fullest extent permitted by law.
13. ENTIRE AGREEMENT. This Agreement, together with the
Purchase Agreement (including the exhibits and schedules thereto), is
intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter
contained herein and therein. There are no restrictions,
Page 20
promises, warranties or undertakings, other than those set forth or referred
to herein and therein. This Agreement and the Purchase Agreement (including
the exhibits and schedules thereto) supersede all prior agreements and
understandings between the parties with respect to such subject matter.
14. HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
15. GOVERNING LAW. This Agreement has been negotiated,
executed and delivered in the State of New York and shall be governed by
and construed in accordance with the laws of the State of New York,
without regard to principles of conflicts of law.
16. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed an original
and all of which taken together shall constitute one and the same
instrument.
17. TERMINATION. Upon termination of the Purchase Agreement
in accordance with Section 9.1 thereof, this Agreement shall terminate
automatically.
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Page 21
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their respective
representatives hereunto duly authorized as of the date first above
written.
HAWAIIAN AIRLINES, INC.
By: /S/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
By: /S/ Xxx X. Xxxxx
-------------------------------
Name: Xxx X. Xxxxx
Title: Vice 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
