EXHIBIT 5
AMENDMENT NO. 4
TO
RIGHTS AGREEMENT
dated as of December 23, 1994
by and between
HAWAIIAN AIRLINES, INC.
and
CHEMICAL TRUST COMPANY OF CALIFORNIA
as Rights Agent
AMENDMENT NO. 4, dated as of August 28, 1998 (the "Amendment"), to the
Rights Agreement, dated as of December 23, 1994, as amended (the "Agreement"),
between Hawaiian Airlines, Inc., a Hawaii corporation (the "Company"), and
Chemical Trust Company of California, which has been succeeded by ChaseMellon
Shareholder Services, L.L.C., a New Jersey limited liability company, 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.
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.
This Amendment became effective on August 28, 1998, immediately upon
its approval by the Board of Directors of the Company by resolution adopted at a
meeting held on that date.
Accordingly, in consideration of the premises and mutual agreements
herein set forth, the parties hereby agree as follows:
5. All references in the Agreement to "10% Ownership Date" and "10%
Shareholder" are hereby deleted and the terms "Share Acquisition Date" and
"Acquiring Person" are substituted therefor, respectively.
6. Amendment to Section 1(hh). Section 1(hh) is hereby amended and
restated in its entirety to read as follows:
"(hh) "Acquiring Person" shall mean any Person that, together with all
Affiliates and Associates of such Person, after December 23, 1994
becomes the Beneficial Owner of such number of Voting Shares of the
Company as constitutes a percentage of the then outstanding Voting
Shares that is equal to or greater than 15%; provided, however, that
the term "Acquiring Person" shall not include: (i) an Exempt Person;
(ii) a Grandfathered Acquiring Person or a person who is a direct
transferee of Plan Distribution Shares from a Grandfathered Acquiring
Person unless as a result of another acquisition, theretofore or
thereafter
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consummated (regardless of whether such other acquisition is a transfer
from a Grandfathered Acquiring Person), such transferee becomes the
Beneficial Owner of at least 1% more than the percentage of outstanding
Voting Shares transferred directly to the transferee by such
Grandfathered Acquiring Person, (iii) any Person if such Person would
not otherwise be an Acquiring Person but for a reduction in the number
of outstanding Voting Shares resulting from a stock repurchase program
or other similar plan of the Company or from a self-tender offer of the
Company, which plan or tender offer commenced on or after December 23,
1994, provided, however, that the term "Acquiring Person" shall include
such Person from and after the first date upon which (A) such Person,
since the date of the commencement of such plan or tender offer, shall
have acquired Beneficial Ownership of, in the aggregate, a number of
Voting Shares of the Company equal to 1% or more of the Voting Shares
of the Company then outstanding and (b) such Person, together with all
Affiliates and Associates of such Person, shall Beneficially Own 15% or
more of the Voting Shares of the Company then outstanding; (iv) Airline
Investors Partnership, L.P., a Delaware limited partnership ("AIP"), as
a result of its purchase of shares of Class A Common Stock pursuant to
a Stock Purchase Agreement by and between the Company and AIP, dated as
of December 8, 1995; or (v) any Person that the Board of Directors of
the Company has determined is not an Acquiring Person, if such
determination is prior to the tenth Business Day following the relevant
Share Acquisition Date, provided that, following such determination by
the Board of Directors of the Company, such Person shall be deemed to
be an Acquiring Person upon a public announcement, by the Company or
otherwise, including, without limitation, a report filed pursuant to
Section 13(d) of the Exchange Act, that such Person has acquired any
additional Voting Shares of the Company, if at such time such Person,
together with all Affiliates and Associates of such Person, shall
Beneficially Own 15% or more of the Voting Shares of the Company then
outstanding. In calculating the percentage of the outstanding Voting
Shares that are Beneficially Owned by a person for purposes of this
subsection (hh), Voting Shares that are Beneficially Owned by such
Person shall be deemed outstanding, and Voting Shares that are not
Beneficially Owned by such Person and that are subject to issuance upon
the exercise or conversion of outstanding conversion rights, exchange
rights, rights (other than Rights), warrants or options shall not be
deemed outstanding. Notwithstanding the foregoing, if the Board of
Directors of the Company determines in good faith that a Person that
would otherwise be an Acquiring Person pursuant to the foregoing
provisions of this Section 1(hh) and Section 1(b) hereof has become
such inadvertently, and such Person (a) promptly notifies the Board of
Directors (including, without limitation, through the filing of a
report under Section 13(d) of the
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Exchange Act) of such status and (b) as promptly as practicable
thereafter, either divests of a sufficient number of Voting Shares so
that such Person would no longer be an Acquiring Person, or causes any
other circumstance, such as the existence of an agreement respecting
Voting Shares, to be eliminated such that such Person would no longer
be an Acquiring Person as defined pursuant to this Section 1(hh) and
1(b), then such Person shall not be deemed to be an Acquiring Person
for any purposes of this Agreement. Any determination made by the Board
of Directors of the Company as to whether any Person is or is not an
Acquiring Person shall be conclusive and binding upon all holders of
Rights."
7. 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,
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."
8. Amendment to Section 11(a)(ii). Section 11(a)(ii) is hereby amended
and restated in its entirety to read as follows:
"In the event that there is a Share Acquisition Date followed by a
Distribution Date, then, and effective as of such Distribution Date, (a
"Section 11(a)(ii) Event") proper provision shall be made so that
except as provided in Section 7(d) hereof, each holder of a Right shall
thereafter have the right to receive, upon the exercise thereof in
accordance with the terms of this Agreement and payment of the then
current Exercise Price, in lieu of the securities or other property
otherwise purchasable upon such exercise, such number of Common Shares
of the Company as shall equal the result obtained by multiplying the
then current Exercise Price by the then number of one-thousandths of a
Preferred Share for which a Right was exercisable immediately prior to
the first occurrence of a Section 11(a)(ii) Event, and dividing that
product by 50% of the Current Market Price (determined pursuant to
Section 11(d) hereof) of a Common Share on the date of the first
occurrence of the relevant Section 11(a)(ii) Event (such number of
shares being hereinafter referred to as the "Adjustment Shares")."
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9. Amendment to Section 13(a). The first paragraph of Section 13(a) and
Section 13(a)(i) are hereby amended and restated in their entirety to read as
follows:
"(a) In the event that at any time on or after the Share Acquisition
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:
(i) except as provided in Section 7(d) hereof, each holder of
a Right shall thereafter have the right to receive, upon the
exercise thereof in accordance with the terms of this
Agreement and payment of the then current Exercise Price, in
lieu of the securities or other property otherwise purchasable
upon such exercise, such number of validly authorized and
issued, fully paid and nonassessable Common Shares of the
Surviving Person as shall be equal to a fraction, the
numerator of which is the product of the then current Exercise
Price multiplied by the number of one-thousandths of a
Preferred Share purchasable upon the exercise of one Right
immediately prior to the first Section 13(a) Event (or, if the
Distribution Date shall not have
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occurred prior to the date of such Section 13(a) Event, the
number of one-thousandths of a Preferred Share that would have
been so purchasable if the Distribution Date had occurred on
the Business Day immediately preceding the date of such
Section 13(a) Event, or, if a Section 11(a)(ii) Event has
occurred prior to such Section 13(a) Event, the product of the
number of one- thousandths of a Preferred Share purchasable
upon the exercise of a Right immediately prior to such Section
11(a)(ii) Event, multiplied by the Exercise Price in effect
immediately prior to such Section 11(a)(ii) Event), and the
denominator of which is 50% of the Current Market Price per
Common Share of the Surviving Person on the date of
consummation of such Section 13(a) Event;"
10. Amendment to Section 23(a). Section 23(a) is hereby amended by
deleting the phrase ", and the Company shall so redeem the Rights".
11. Amendment to Section 24. Section 24(a) is hereby amended and
restated in its entirety to read as follows:
"(a) At any time after a Share Acquisition Date followed by a
Distribution Date and prior to the first date thereafter upon which an
Acquiring Person, together with all Affiliates and Associates of such
Acquiring Person, shall be the Beneficial Owner of 50% or more of the
Voting Shares then outstanding, the Board of Directors of the Company
may, at its option, authorize and direct the exchange of all, but not
less than all, of the then outstanding Rights for Common Shares at an
exchange ratio (the "Exchange Ratio") per Right, equal to that number
of Common Shares which, as of the date of the Board of Directors'
action, has a current market price equal to the difference between the
Exercise Price and the Current Market Price of the Common Shares that
each holder of a Right would otherwise have the right to receive upon
the exercise of a Right on such date."
12. Amendment to Section 25. Section 25(b) is hereby amended and
restated in its entirety to read as follows:
"(b) Upon the occurrence of a Section 11(a)(ii) Event or a Section
13(a) Event, the Company shall as soon as practicable thereafter give
to each holder of a Right Certificate and to the Rights Agent, in
accordance with Section 26 hereof, a notice of the occurrence of such
Event, specifying the event and the consequences of the Event to
holders of Rights under Sections 11 and 13 hereof."
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13. Amendment to Section 26. Section 26 is hereby amended by deleting
the addresses of the Company and the Rights Agent and substituting in lieu
thereof the following:
Hawaiian Airlines, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxxx, XX 00000
Attention: Corporate Secretary
ChaseMellon Shareholder Services, L.L.C.
000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxx X. Xxxx, Assistant Vice President
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/ Xxxx X. Xxxxx
---------------------
Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By: /s/ Xxx X. Xxxx
-------------------
Name: Xxx X. Xxxx
Title: Assistant Vice President
