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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 23, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HAWAIIAN AIRLINES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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HAWAII 99-0042880
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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3375 KOAPAKA STREET
SUITE G350
HONOLULU, HAWAII 96819
(808) 835-3700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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LYN F. ANZAI, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
3375 KOAPAKA STREET
SUITE G350
HONOLULU, HAWAII 96819
(808) 835-3700
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPY TO:
BRADFORD P. WEIRICK, ESQ.
GIBSON, DUNN & CRUTCHER LLP
333 SOUTH GRAND AVENUE
LOS ANGELES, CALIFORNIA 90071-3197
(213) 229-7000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement from the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED UNIT(1) PRICE(1) REGISTRATION FEE
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Common stock ($.01 par value) 5,643,010 shares $2.91 $16,421,159 $4,565.08
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(1) Estimated solely for the purpose of determining the registration fee.
Calculated on the basis of the average of the high and low reported prices
of the Registrant's common stock on the American Stock Exchange on December
21, 1998.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING SHAREHOLDERS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
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SUBJECT TO COMPLETION, DATED DECEMBER 23, 1998
PROSPECTUS
HAWAIIAN AIRLINES, INC.
COMMON STOCK
($.01 PAR VALUE)
5,643,010 SHARES
Airline Investors Partnership, L.P., AMR Corporation, Martin Anderson and
Robert R. Midkiff desire to register, in the aggregate, 5,643,010 shares of
common stock of Hawaiian Airlines, Inc., a Hawaii corporation. They may offer
and sell these shares from time to time pursuant to this prospectus on terms,
including the price per share, to be determined at the time of sale. We will not
receive any of the proceeds from the sale of the shares.
The common stock is listed on the American Stock Exchange and the Pacific
Exchange under the symbol "HA." On December 23, 1998, the last reported sale
price per share of the common stock, as quoted on the American Stock Exchange,
was $2 7/8.
CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 2 IN THIS PROSPECTUS.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this prospectus is , 1998.
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TABLE OF CONTENTS
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The Company....................... 2
Risk Factors...................... 2
Available Information............. 8
Incorporation of Certain Documents
by Reference.................... 8
Selling Shareholders.............. 9
Use of Proceeds................... 9
Plan of Distribution.............. 9
Legal Matters..................... 10
Experts........................... 10
Miscellaneous..................... 10
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THE COMPANY
Hawaiian Airlines, Inc. is the largest airline headquartered in Hawaii,
based on operating revenues of $404.2 million for the fiscal year ended December
31, 1997. We transport passengers, cargo and mail over a route system that
services the six major islands of Hawaii and Las Vegas, Los Angeles, San
Francisco, Seattle and Portland. In addition, Hawaiian provides the only direct
service from Hawaii to Pago Pago, American Samoa and Papeete, Tahiti. Hawaiian
also provides charter service from Honolulu to Las Vegas, Nevada and to
Anchorage, Alaska.
We were incorporated in January 1929 in Hawaii. Our principal executive
offices are located at 3375 Koapaka St., Suite G350, Honolulu, Hawaii 96819,
telephone number (808) 835-3700.
RISK FACTORS
THIS PROSPECTUS CONTAINS "FORWARD-LOOKING STATEMENTS" WITHIN THE MEANING OF
THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995. THESE STATEMENTS ARE
SUBJECT TO CERTAIN RISKS AND UNCERTAINTIES, INCLUDING THOSE IDENTIFIED IN THIS
SECTION. READERS SHOULD NOT UNDULY RELY ON THESE STATEMENTS, WHICH SPEAK ONLY AS
OF THE DATE ON THE FRONT OF THIS PROSPECTUS. HAWAIIAN IS NOT OBLIGATED TO MODIFY
THESE FORWARD-LOOKING STATEMENTS TO REFLECT EVENTS OR CIRCUMSTANCES AFTER THE
DATE ON THE FRONT OF THIS PROSPECTUS OR TO REFLECT UNANTICIPATED EVENTS OR
DEVELOPMENTS.
IN ADDITION TO THE OTHER INFORMATION INCLUDED ELSEWHERE IN THIS PROSPECTUS,
YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING FACTORS IN EVALUATING AN INVESTMENT
IN THE COMMON STOCK OFFERED BY THIS PROSPECTUS:
AIRLINE INDUSTRY IS CYCLICAL
The airline industry is a highly cyclical business with substantial
volatility. Airlines frequently experience short-term cash requirements. This is
caused by seasonal fluctuations in traffic, which often put a drain on cash
during off-peak periods, and various other factors, including price competition
from other airlines, national and international events, fuel prices and general
economic conditions, including inflation. Because a substantial portion of
airline travel is discretionary, our operating and financial results may be
negatively impacted by any downturn in national or regional economic conditions
in the United States, particularly California and Hawaii, and certain Asian
countries, particularly Japan. Airlines require substantial liquidity to
continue operating under most conditions. The airline industry also has low
gross profit margins and revenues that vary to a substantially greater degree
than do the related costs. Therefore, a significant shortfall from expected
revenue levels could have a material adverse effect on our operations. Working
capital deficits are not uncommon in the airline industry since airlines
typically have no product inventories and ticket sales not yet flown are
reflected as current liabilities.
PRICE DISCOUNTING MAKES AIRLINE INDUSTRY HIGHLY COMPETITIVE
The airline industry is highly competitive and industry earnings are
volatile. For example, many airlines often offer reduced discount fares in order
to attract customers. In addition, there are several new carriers in the
industry which have low cost structures. In some cases, these new entrants have
also
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discounted their prices. When our competitors offer discounted fares, we often
lower our fares as well in order to remain competitive. This results in lower
profits for the Company. Although, generally speaking, the domestic airline
industry currently does not engage in deeply-discounted price competition, and
fare levels have continued to increase since 1992, significant industry-wide
discounts could be reimplemented at any time. If our competitors offer
broadly-available, deeply-discounted fares, this could cause lower profits for
the entire industry and could reduce fares to levels where we would be unable to
earn a profit.
INCREASING NUMBER OF CONSOLIDATIONS AND ALLIANCES HAS ALSO INCREASED COMPETITION
The U.S. airline industry has consolidated in recent years and may further
consolidate in the future. Consolidations have enabled certain carriers to
expand their international operations and increase their presence in the U.S.
domestic market. In addition, many major domestic carriers have formed alliances
with domestic regional carriers and foreign carriers. As a result, many of the
carriers with whom we compete in our transpacific and South Pacific markets are
larger and have substantially greater resources than we have. Some of these
carriers have also begun to fly from mainland United States or from Japan
directly to outer-island destinations in Hawaii, which affects inter-island
competition. Aloha Airlines, Inc., our main competitor in the inter-island
market, has a marketing affiliation with United Airlines, which strengthens its
competitive position. Similarly, we have established marketing alliances with
American Airlines, Inc., Northwest Airlines, Inc. and Continental Airlines,
Inc., as well as Reno Air and Southwest Airlines. Continuing developments in the
industry will affect our ability to compete in the various markets in which we
operate.
AIRLINE INDUSTRY HAS HIGH OPERATING LEVERAGE
Airlines, including Hawaiian, operate with high financial and operating
leverage. The expenses of each flight change only marginally based on the number
of passengers carried--they are generally fixed costs. However, the amount of
revenue earned from a particular flight DOES depend on the number of passengers
carried. As a result, a decrease in the number of passengers carried, while
causing a decrease in revenue, may also result in a disproportionately greater
decrease in profits, because our expenses would basically remain the same.
OUR PROFITABILITY IS DEPENDENT ON HAWAIIAN TOURISM
Our operations are limited almost exclusively to flights to, from and among,
the Hawaiian Islands. This means that our profitability is linked to the number
of travelers to, from and among the Hawaiian Islands. Most people who travel to
Hawaii are tourists. Because tourism levels are related to discretionary income,
the level of Hawaiian tourism depends largely on the strength of the economies
in the areas that tourists come from. Hawaiian tourism also depends upon the
popularity of Hawaii as a tourist destination. From time to time, various events
such as the Persian Gulf War and industry-specific problems such as strikes have
had a negative impact on tourism in Hawaii. In addition, the financial turmoil
in Asia may have a material adverse affect on Hawaii tourism. Total Hawaii
visitor counts in 1998 are forecasted to be flat at best when compared to 1997.
For the ten months ended October 1998, westbound visitors to Hawaii (mainly from
mainland United States) totaled approximately 3.41 million, an increase of 3.9%
from the same period in 1997. During the same period, eastbound visitors (mainly
from Japan) totaled approximately 2.34 million, a decrease of 10.2%. Thus,
overall visitor arrivals for the first ten months of 1998 reached approximately
5.75 million, a decrease of 1.9% from the same period in 1997.
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Significant obstacles to growth in Hawaii passenger traffic have been and
will continue to be the following:
DEPRESSED HAWAII ECONOMY
The local Hawaii economy has stagnated over the past seven years. This
stagnation is due to a variety of factors, including declines in outside capital
investment, sluggish tourism, reduced military spending and a reduction in the
Hawaii sugar and pineapple industries. Since 1991, Hawaii has experienced record
bankruptcies, rising foreclosures and business failures and continued job
losses. In late 1997, the Governor of Hawaii created an Economic Revitalization
Task Force, consisting of selected members of the public and private sectors and
labor unions. The Task Force recommended certain fundamental tax and business
proposals, several of which were adopted by the 1998 Hawaii legislative session.
For example, the legislature established the Hawaii Tourism Board to oversee
statewide marketing efforts for the Hawaii tourism industry and funded it with
an annual budget of $60.0 million. We do not yet know whether the Tourism Board
will succeed in promoting tourism in Hawaii.
COMPETING LEISURE TRAVEL INDUSTRIES
Major leisure travel destinations continue to compete with Hawaii for the
leisure traveler. The vacation cruise industry has recently enjoyed a resurgence
and areas such as Mexico, the Caribbean, Europe and domestic leisure
attractions, such as theme parks and Las Vegas, have undertaken effective
promotional and marketing activities. This has resulted in increased competition
for tourism business.
We cannot predict whether the level of passenger traffic to Hawaii will
decline in the future. A decline in the number of travelers to Hawaii could have
a material adverse effect on Hawaiian's operations.
TRAVEL TO HAWAII IS SEASONAL
We believe that Hawaii is generally a popular spot for seasonal vacation
travelers. Fewer people travel to Hawaii during January through March, with
strong travel periods occurring during June, July, August and December. As
discussed above, certain of our costs do not vary significantly regardless of
traffic levels. As a result, during the slower, off-peak months, we experience
lower profits and less liquidity. In addition, during off-peak periods, we may
attempt to increase passenger traffic by discounting fares, which may have an
additional downward impact on profits and liquidity.
CHANGES IN FUEL COSTS AFFECT OUR OPERATING COSTS
Fuel costs are a significant portion of our total operating costs
(approximately 19.5% for 1997). Fuel prices are extremely volatile. Several
factors can have an effect on fuel prices, including economic and political
events throughout the world and applicable fuel taxes. We can neither predict
nor control near- or longer-term fuel prices. Significant increases in fuel
costs would materially affect Hawaiian's operating results.
Hawaiian purchases almost all of its fuel from Northwest Airlines, Inc. If
there is a fuel shortage, Northwest will provide fuel to its own fleet first and
then a portion of the remaining fuel available will be allocated between
Hawaiian and any other applicable airlines. Our fuel agreement with Northwest is
renewed automatically on December 31 of each year unless either we or Northwest
cancel it by giving 90 days notice. We do not know if we would be able to secure
an adequate supply of fuel from alternate sources if a fuel shortage caused the
supply from Northwest to be inadequate or if Northwest canceled the agreement.
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WE HAVE A LARGE NUMBER OF LEASED AIRCRAFT
Hawaiian owns two DC-9-51 aircraft and leases eleven DC-9-51s and ten
DC-10-10s pursuant to leases that expire at various times between 2000 and 2004.
In November 1998, we took possession of a DC-10-30 pursuant to a lease agreement
with a purchase option that we expect to exercise before the end of 1998, and we
also entered into a purchase agreement to buy a second DC-10-30 during the first
quarter of 1999. In order to maintain our current operations, we will need to
either renew our leases as they expire or buy or lease replacement aircraft.
Also, if we decide to expand operations, we will need to buy or lease additional
aircraft. We cannot guarantee that lease renewals, additional aircraft leases or
aircraft purchases will be available on favorable terms or that we will have
sufficient funds to lease or buy additional aircraft.
WE RELY UPON OUR RELATIONSHIP WITH AMERICAN AIRLINES
Hawaiian currently leases all ten of its DC-10-10 aircraft from American
Airlines, Inc., and has an agreement with American to maintain these aircraft as
well as the two DC-10-30 aircraft which we are acquiring. American can terminate
its obligation to provide maintenance services on and after January 1, 1999, by
giving 180 days notice. American has recently announced plans to reduce the
number of DC-10-10s in its fleet, which may affect our ability to rely on
American for maintenance. If American were to terminate the maintenance
arrangement, we would have to seek an alternate source of maintenance service or
maintain the DC-10-10s and DC-10-30s ourselves. We cannot determine whether we
would be able to do so in a way that is as cost-effective as our arrangement
with American.
In addition, we participate in American's AAdvantage-Registered Trademark-
frequent flyer program, which makes us more competitive by enabling passengers
to use their Hawaiian Airlines frequent flyer miles on American flights. We also
have a code sharing agreement with American and participate in American's
SABRE-Registered Trademark- reservation system, which gives us exposure to a
larger number of customers. Any inability to continue in these programs or
participate in comparable programs offered by other airlines could have a
material adverse effect on our operations.
WE ARE SUBJECT TO CERTAIN REGULATORY OVERSIGHT AND TAXES
We are regulated by the Department of Transportation and the Federal
Aviation Administration, among other agencies. The DOT may review our economic
authority at any time and impose fines or other sanctions for violations of law
or regulations. The FAA also may review our operating authority, conduct safety
audits of our operations, aircraft and employees and impose fines and other
sanctions on us and our employees, who are generally licensed by the FAA, if we
or they violate aviation safety, security or other regulations. In the last
several years, the FAA has issued a number of maintenance directives and other
regulations that affect the airline industry. We expect to continue to spend
substantial amounts of money to comply with these new regulations. Additional
laws can be passed by Congress and regulations have been and can be promulgated
by the FAA and DOT that could significantly increase our operating costs. As a
general proposition, we do not own routes or takeoff and landing slots. To the
extent they are regulated, such rights are conditional and may be removed by
action of the relevant agency. In addition, international treaties regulate the
award of international routes to U.S. carriers, which are amended from time to
time. We cannot predict what additional laws and regulations will be adopted or
what changes to these treaties will be made, if any, or how they will affect us.
We are also subject to regulation or oversight by federal agencies other than
the FAA and DOT, such as the U.S. Postal Service, the Customs Service and the
Department of Agriculture, as well as various state agencies. Labor relations in
the air transportation industry are generally regulated under the Railway Labor
Act.
We believe that we are in compliance with all requirements necessary to
maintain our operating authority granted by the DOT and our air carrier
operating certificate issued by the FAA. Any change,
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suspension or termination of any of the Company's DOT or FAA authorizations or
certificates could have a material adverse effect upon Hawaiian.
The airline industry is subject to various passenger, cargo and fuel taxes,
which change from time to time. Hawaiian has and will continue to change its
fares in response to any enacted tax changes, depending on prevailing market
conditions. We cannot be certain that we will be able to maintain our current
fare levels or predict the effects on our fares should these taxes lapse and/or
be reinstated.
In an attempt to boost tourism, on September 1, 1997, the Governor of Hawaii
placed a two-year moratorium on aircraft landing fees at all Hawaii airports.
However, the Governor has the right to reinstate the landing fee charges before
the end of the two-year period.
WE ARE PARTY TO CERTAIN LABOR AGREEMENTS
We are party to five collective bargaining agreements with unions, which
cover 90% of our employees. These agreements are amendable in February 2000.
This means that our ability to negotiate with our employees is limited by the
terms of these agreements. Negotiation of these agreements could result in an
increase in compensation and benefit costs. If, during or prior to labor
negotiations, we experience work stoppages or other labor difficulties, our
operations may be hampered or halted. This could have a material adverse effect
on our reputation and operations.
WE UTILIZE DERIVATIVE FINANCIAL INSTRUMENTS
We utilize crude oil forward contracts to manage market risks and hedge our
financial exposure resulting from fluctuations in our aircraft fuel costs. We
employ a strategy whereby crude oil contracts are used to cover up to 45% of our
anticipated aircraft fuel needs on a rolling twelve month basis. These forward
contracts expose us to potential losses in the event of crude oil price
fluctuations.
We experienced net realized and unrealized losses on such contracts
amounting to $361,000 and $1.6 million for the three and nine month periods
ended September 30, 1998.
AIP CURRENTLY CONTROLS THE COMPANY
Airline Investors Partnership, L.P. ("AIP") owned 44.3% of the issued and
outstanding common stock of the Company as of November 30, 1998. Upon selling
its shares that are covered by this prospectus, AIP would own 39% of the
Company. Our Amended Bylaws give AIP the right to nominate six of the 11
directors of Hawaiian until AIP ceases to own at least 35% of the common stock.
AIP's current stock ownership enables AIP to control even those shareholder
decisions that require approval by 75% of the outstanding common stock under
Hawaii law, as AIP has the power to prevent any such action from being approved
if it does not vote in favor of the proposed action. Thus, through its share
ownership and its right to nominate a majority of Hawaiian's Board of Directors,
AIP can control fundamental shareholder decisions impacting Hawaiian. John W.
Adams, Chairman of the Board of Directors of Hawaiian, is the sole stockholder
of the general partner of AIP and controls the voting of AIP's shares.
VARIOUS PROVISIONS MAKE IT DIFFICULT FOR A THIRD PARTY TO ACQUIRE THE COMPANY
AIP's substantial ownership interest in our common stock could make it more
difficult for a third party to acquire Hawaiian. A potential buyer would
probably not be able to acquire Hawaiian without AIP's consent or its
participation in the transaction.
Hawaiian is subject to Section 415-73 of the Hawaii Business Corporation
Act, which restricts mergers and consolidations. Subject to certain exceptions,
Section 415-73 prohibits any merger or consolidation of Hawaiian unless it is
approved by the Board of Directors and at least 75% of the shareholders of
Hawaiian.
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Our Restated Articles of Incorporation and our Amended Bylaws include a
number of provisions that may discourage persons from trying to launch a
non-negotiated takeover of Hawaiian. These provisions include:
- a restriction on action by written consent of the shareholders, unless
such consent is unanimous;
- a prohibition on cumulative voting;
- certain qualifications for directors; and
- restrictions on the filling of vacancies of board seats.
Our Articles of Incorporation allow us to issue up to 2,000,000 shares of
preferred stock. The Board has the right to determine the particular terms of
this preferred stock. Accordingly, the Board of Directors may, without
shareholder approval, issue preferred stock with dividend, liquidation,
conversion, voting or other rights that could adversely affect the rights of
holders of the common stock. The issuance of shares of preferred stock may make
it more difficult for a buyer to acquire or take control of Hawaiian.
The Transportation Act prohibits non-U.S. citizens from owning more than 25%
of the voting interest of a U.S. air carrier. Our Articles of Incorporation
prohibit non-US citizens from owning more than 25% of our stock. As of November
30, 1998, we believe that non-US citizens held less than 12% of our common
stock. This foreign ownership restriction limits the ability of a non-U.S.
citizen to acquire a controlling block of our stock.
Hawaiian has a shareholders' rights plan. This plan provides that, subject
to certain discretion of the Board of Directors, if Hawaiian is acquired or a
buyer acquires more than 15% of the outstanding common stock, we would issue to
our shareholders, other than the buyer, additional shares of common stock at a
discount. This would substantially dilute the buyer's ownership interest in
Hawaiian.
WE DO NOT TYPICALLY PAY DIVIDENDS
We have not paid cash dividends on our common stock in the last several
years and have no plans to do so in the foreseeable future. Moreover, we are
prohibited from paying dividends by the terms of our most restrictive credit
facility. We intend to retain our earnings, if any, to finance the development
and growth of our business.
OUR STOCK PRICE HAS BEEN VOLATILE
Since 1995, the price range of the common stock has varied widely. The price
of the common stock may be subject to significant fluctuation in the future. We
cannot predict the effect, if any, that sales of shares of common stock by the
selling shareholders, or the availability of such shares for sale, will have on
the market prices of our common stock prevailing from time to time. The
possibility that the selling shareholders may sell substantial amounts of shares
in the public market may adversely affect prevailing market prices for the
common stock. It could also impair our ability to raise capital through the sale
of our stock.
SHARES ELIGIBLE FOR FUTURE SALE COULD IMPACT STOCK PRICE
The market price of our common stock could be adversely impacted by the
availability of shares for future sale. The shares of common stock covered by
this prospectus will be registered and will be freely tradable by persons who
are not affiliates of Hawaiian without restriction or further registration under
the Securities Act. Substantially all of the other outstanding shares of common
stock, other than shares held by officers, directors and other affiliates of
Hawaiian, are freely tradable. Shares of common stock held by affiliates of
Hawaiian are subject to limitations on the number of shares that
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may be sold unless the sale of the shares is registered or is exempt from
registration under the Securities Act.
AIP has registration rights for the shares of common stock it holds. AIP
can, on up to two occasions, require us to register all or any portion of AIP's
shares under the Securities Act, at our expense. In addition, if Hawaiian
registers any other shares of its common stock for public sale under the
Securities Act at any time prior to January 2006, AIP has the right to include
its shares in the registration.
In addition, there are currently up to 5,600,000 shares of common stock
reserved for issuance pursuant to the options granted or which may be granted
under the 1994 Stock Option Plan, the 1996 Stock Incentive Plan and the 1996
Nonemployee Director Stock Option Plan. As of November 30, 1998, our various
401(k) plans held an aggregate of approximately 1,413,989 shares of common
stock. Sales of these shares, depending on the volume, could adversely affect
the trading prices of the common stock.
AN OWNERSHIP CHANGE COULD AFFECT OUR NET OPERATING LOSS CARRYOVERS
We believe that substantially all of our net operating losses, as computed
for federal income tax purposes, are currently subject to limitation under
Section 382 of the Internal Revenue Code. In the event an ownership change (as
defined in Section 382) of Hawaiian were to occur in the future, our ability to
utilize net operating losses incurred prior to that ownership change could be
subject to additional limitations under Section 382.
YEAR 2000 PROBLEM
Hawaiian is currently in the process of upgrading a number of major
information technology systems for strategic purposes as well as to address
issues associated with the year 2000. The estimated cost to upgrade these
systems is approximately $10.0 to $12.0 million, of which approximately $8.0
million had been incurred as of September 30, 1998. These information technology
projects are designed to either replace or enhance existing systems, including
local and wide area networks, yield management, revenue and financial
accounting, human resources and payroll.
In addition to replacing the above information technology systems, we have
recognized the potential impact of the year 2000 on our operations and have
established a dedicated director and Year 2000 Project Office to oversee our
compliance efforts. The Year 2000 Project Office operates on four tracks,
including (i) information and communication systems; (ii) hardware; (iii)
business partnerships; and (iv) government and externalities. Each track uses
available best practices and is broken down into the following phases:
inventory, assessment, remediation, testing, and implementation. The strategy is
to create a comprehensive review of all mission critical systems as they apply
to the continuum of our business operations. The Project Office provides regular
informational briefings and newsletter updates to our employees and regular
briefings to management and the board of directors regarding our year 2000
compliance program.
STATE OF READINESS
We have recently completed an inventory of substantially all of our
potentially affected mission critical hardware and have also completed
inventories of major applications in the mainframe and client-server
environments. We are in the process of completing our inventory of PC
applications and data, which we expect to complete by the end of January 1999.
We have also tested the mainframe, hardware and operating systems, and we
believe that such systems are year 2000 ready. In addition to joint efforts with
trade associations such as the Air Transport Association, we have mailed surveys
to over 1,400 business partners with the intent of discerning their respective
year 2000 compliance efforts.
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We are following up our survey efforts with telephone calls and, in certain
cases, on-site visits, to learn more information about our significant business
partners' year 2000 issues.
Because of the upgrading of the major information technology systems
discussed above, there remains only a small amount of computer code requiring
redress. We are in the process of having this legacy code remediated by a third
party vendor with work expected to be completed by the end of 1998. Further,
assessments of our hardware have found that only a very small amount of our
equipment is date sensitive. At current, we believe that all mission critical
systems will be remediated and tested by mid-1999.
ESTIMATED COSTS TO ADDRESS YEAR 2000 ISSUES
As mentioned above, because a substantial portion of our information systems
is being upgraded or replaced by new applications that are represented to be
year 2000 ready, our remaining year 2000 issues are primarily related to
remediation of legacy code and testing. In addition to the estimated costs of
$10.0 to $12.0 million relating to the upgrade of our major information
technology systems discussed above, additional year 2000 remediation costs are
estimated to approximate an additional $1.0 to $2.0 million. Expectations about
future year 2000-related costs are subject to various uncertainties that could
cause the actual results to differ materially from our expectations, including
our success in identifying systems and programs that are not year 2000 ready,
the nature and amount of programming required to upgrade or replace each of the
affected programs, the availability, rate and magnitude of related labor and
consulting costs and the success of our business partners, vendors and clients
in addressing the year 2000 issue.
RISKS OF YEAR 2000 ISSUES
Preliminary reviews of our flight systems have found little potential impact
of year 2000 issues, and existing contingency plans and training address the
possible loss of most affected operations systems. The primary risks to us are
those of business continuity. If our significant vendors or suppliers (such as
Northwest, who provides the majority of our fuel, or American, who allows us to
participate in the SABRE-Registered Trademark- reservation system) are unable to
become year 2000 compliant in time, this could have a material adverse effect on
our ability to continue our operations. In addition, the failure of the FAA or
various airports that we use (such as the Honolulu airport) to remediate their
year 2000 issues in time could also materially affect our business.
CONTINGENCY PLANS
While we believe that all of our mission critical systems will be year 2000
ready, we will have appropriate contingency plans developed to address complete
and partial systems failure for our significant information systems. We expect
to have contingency plans in place by May 1999.
Because of the variables associated with the year 2000 date problem, we
cannot give assurance that our current system transitions will be sufficient to
remedy all year 2000 issues or assure that we will not be affected by the year
2000 issue in some form or manner.
AVAILABLE INFORMATION
The Company has filed a registration statement on Form S-3 with the SEC
under the Securities Act of 1933. The registration statement registers the
common stock covered by this prospectus. This prospectus omits certain
information and exhibits included in the registration statement. You can obtain
copies of the registration statement and any schedules and exhibits accompanying
the registration statement by paying a fee to the SEC, or you can examine the
documents free of charge at the principal office of the SEC in Washington, D.C.
Statements contained in this prospectus regarding any
9
<PAGE>
contract or other document are not necessarily complete. For additional
information, you should refer to the copy of the contract or other document
filed as an exhibit to the registration statement.
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's Public Reference Rooms at 450 Fifth Street, N.W., Washington, D.C., 20549.
The SEC also has Public Reference Rooms in New York, New York and Chicago,
Illinois. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. Our SEC filings are also available to the public at the
SEC's web site at http://www.sec.gov. The Company's common stock is listed on
the American Stock Exchange and the Pacific Exchange, and the reports, proxy
statements and other information filed by the Company with the American Stock
Exchange and the Pacific Exchange can also be inspected at the offices of the
American Stock Exchange and the Pacific Exchange.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
it, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and later information that we file with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until the selling shareholders have sold all of the shares of common stock:
(1) the Annual Report on Form 10-K for the fiscal year ended December 31,
1997;
(2) the Quarterly Reports on Form 10-Q for the quarters ended March 31,
1998, June 30, 1998 and September 30, 1998;
(3) the Current Reports on Form 8-K, filed on May 22, 1998 and September 14,
1998; and
(4) the description of the Company's common stock contained in its
Registration Statements on Form 8-A/A filed on July 1, 1996; on Form 8-A 12B/A,
filed on September 14, 1998; and on Form S-8 (Registration No. 333-09673), filed
on August 6, 1996.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address: Hawaiian Airlines, Inc., Attention:
Corporate Secretary, 3375 Koapaka St., Suite G350, Honolulu, Hawaii 96819,
telephone number (808) 835-3700.
SELLING SHAREHOLDERS
AMR Corporation has requested registration of the shares of common stock of
Hawaiian underlying the warrants it currently holds. Martin Anderson and Robert
R. Midkiff have converted the warrants they previously held into shares of
common stock of Hawaiian. The terms of the warrants obligate us to register the
shares of common stock held by Martin Anderson and Robert R. Midkiff and the
shares underlying the warrants held by AMR Corporation. The shares held by AIP
are entitled to registration pursuant to a Registration Rights Agreement between
AIP and Hawaiian.
The table attached as Annex I hereto sets forth, as of December 23, 1998:
- the name of each selling shareholder and his or its relationship to
Hawaiian during the last three years;
- the number of shares of common stock each selling shareholder owned prior
to this offering;
- the number of shares of common stock each selling shareholder is offering
under this prospectus; and
10
<PAGE>
- the amount and the percentage of Hawaiian's common stock that each selling
shareholder would own after completion of this offering.
The information contained in Annex I may change from time to time.
USE OF PROCEEDS
The common stock is being offered for the accounts of each of the selling
shareholders. Hawaiian will not receive any of the proceeds from the sale of the
common stock.
PLAN OF DISTRIBUTION
The selling shareholders may sell the shares of common stock on the American
Stock Exchange, the Pacific Exchange or the over-the-counter market, or
otherwise at prices and on terms then prevailing or at prices related to the
then current market price, or in negotiated transactions.
The common stock may be sold in:
- a block trade, where a broker or dealer will try to sell the common stock
as agent but may position and resell a portion of the block as principal
to facilitate the transaction;
- transactions where a broker or dealer acts as principal and resells the
common stock for its account pursuant to this prospectus;
- an exchange distribution in accordance with the rules of such exchange;
and
- ordinary brokerage transactions and transactions in which the broker
solicits purchases.
In effecting sales, brokers or dealers engaged by any of the selling
shareholders may arrange for other brokers or dealers to participate. Any of the
selling shareholders also may, from time to time, authorize underwriters acting
as their agent to offer and sell the common stock upon such terms and conditions
as shall be set forth in a prospectus supplement. Underwriters, brokers or
dealers will receive commissions or discounts from any of the selling
shareholders in amounts to be negotiated immediately prior to sale. Offers and
sales may also be made directly by a selling shareholder, or other BONA FIDE
owner of the common stock, so long as an applicable exemption from state
broker-dealer registration requirements is available in the jurisdiction of
sale. Such selling shareholders, underwriters, brokers or dealers and any other
participating brokers or dealers may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales and any discounts
and commissions received by them and any profit realized by them on the resale
of the Securities may be deemed to be underwriting discounts and commissions
under the Securities Act.
There is no assurance that any of the selling shareholders will offer for
sale or sell any or all of the shares of common stock covered by this
prospectus.
LEGAL MATTERS
Lyn F. Anzai, Vice President, General Counsel and Corporate Secretary of the
Company will issue an opinion regarding the legality of the common stock being
registered. Ms. Anzai owns 7,000 shares of common stock.
EXPERTS
The financial statements and the financial statement schedule of Hawaiian
Airlines, Inc. as of December 31, 1997 and 1996, and for each of the years in
the three-year period ended December 31, 1997, have been incorporated herein and
in the registration statement in reliance upon the reports of KPMG Peat Marwick
LLP, independent certified public accountants, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing.
11
<PAGE>
MISCELLANEOUS
You should rely only on the information contained in or incorporated by
reference in this prospectus. We have authorized no one to provide you with
different information. These securities are not being offered in any location
where the offer is not permitted. You should not assume that the information in
this prospectus, including information incorporated by reference, is accurate as
of any date other than the date on the front of the prospectus.
12
<PAGE>
ANNEX I
<TABLE>
<CAPTION>
SHARES TO BE BENEFICIALLY
SHARES OF COMMON OWNED
STOCK UPON COMPLETION OF
BENEFICIALLY OFFERING(1)
RELATIONSHIP TO COMPANY OWNED AS OF SHARES OFFERED ---------------------------
SELLING SHAREHOLDER DURING LAST THREE YEARS DECEMBER 23, 1998 HEREBY NUMBER PERCENT
- ------------------------------------- ----------------------- ----------------- -------------- ------------ -------------
<S> <C> <C> <C> <C> <C>
Airline Investors Partnership,
L.P................................ Shareholder(2) 18,181,818 2,200,000 15,981,818 39%
AMR Corporation...................... Shareholder(3) 1,949,338 1,949,338 0 0%
Martin Anderson...................... Shareholder 809,186 809,186 0 0%
Robert R. Midkiff.................... Shareholder 684,486 684,486 0 0%
</TABLE>
- ------------------------
(1) Assumes that all shares offered hereby are sold, that no additional shares
will be acquired and that no shares other than those offered hereby will be
sold.
(2) As discussed in the Risk Factors section, Airline Investors Partnership,
L.P. (AIP) owns a controlling interest in the Company and will still be able
to control most shareholder actions even after selling its shares covered by
this prospectus.
(3) As discussed in the Risk Factors section, AMR Corporation (American
Airlines) is a party to various agreements with Hawaiian, including leasing,
maintenance and code sharing arrangements. Our annual report for the year
ended December 31, 1997 contains additional information on these agreements.
A-1
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The Company will incur the following expenses in connection with the
distribution of the common stock.
<TABLE>
<S> <C>
SEC Registration Fee............................................... $
American Stock Exchange and Pacific Exchange Application Fees......
Legal fees and expenses*...........................................
Accounting fees and expenses*...................................... 10,000
Blue sky fees and expenses*........................................
Miscellaneous......................................................
---------
TOTAL* $
---------
</TABLE>
- ------------------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 415-5 of the Hawaii Business Corporation Act (the "HBCA") permits a
corporation to indemnify any person who was or is a party to or is threatened to
be made a party to any proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by
reason of the fact that the person was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation in such
a capacity with another enterprise (such person being hereinafter referred to as
the "Indemnitee"). The indemnity may cover expenses (including attorneys' fees),
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with such proceeding if the Indemnitee acted in good faith and in
a manner the Indemnitee reasonably believed to be in, or not opposed to, the
best interests of the corporation and, with respect to any criminal action or
proceedings, had no reasonable cause to believe the Indemnitee's conduct was
unlawful.
Section 415-48.5 of the HBCA provides that a corporation does not have the
power to eliminate or limit the personal liability of a director for (a) any
breach of the director's duty of loyalty to the corporation or its shareholders,
(b)any act or omission of the director not performed in good faith, or which
involves intentional misconduct or knowing violation of the law, or which
constitutes a willful or reckless disregard of the director's fiduciary duty,
(c)the director's willful or negligent violation of any provision of the HBCA
regarding payment of dividends or stock purchase or redemption, or (d) any
transaction from which the director received an improper benefit.
Section 415-5 of the HBCA also provides that, in the case of an action or
suit by or on behalf of the corporation, the corporation has the power to
indemnify an Indemnitee against expenses (including attorneys' fees) actually
and reasonably incurred in connection with the defense or settlement of such
action or suit if the Indemnitee acted in good faith and in a manner the
Indemnitee reasonably believes to be in, or not opposed to, the best interests
of the corporation, except that no indemnification may be made in respect to any
claim, issue or matter as to which the Indemnitee had been adjudged to be liable
for negligence or misconduct in the performance of the Indemnitee's duties to
the corporation unless, and only to the extent that, the court in which the
action or suit was brought determines that, despite the adjudication of
liability, but in view of all circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such expenses as such court
deems proper.
II-1
<PAGE>
The provision does not, however, expressly authorize the corporation to
indemnify the Indemnitee against judgments, fines and amounts paid in settlement
arising out of a shareholder's derivative action.
The HBCA further provides that indemnification is mandatory with respect to
expenses incurred in connection with any action, suit or proceeding, to the
extent the Indemnitee is successful on the merits or otherwise in defense of any
such action or claim.
The HBCA allows the payment by the corporation of expenses incurred by an
Indemnitee in advance of the final disposition of an action, suit or proceeding
if the Indemnitee provides an undertaking of repayment. Additionally, it
provides that the indemnity provided by the statute is not exclusive of any
other rights to which an Indemnitee may be entitled under any bylaw, agreement,
vote of shareholders or disinterested directors or otherwise. It also provides
that a corporation may purchase insurance for officers or directors of the
corporation.
Article VII of the Company's Restated Articles of Incorporation incorporates
the provisions of the HBCA so as to provide the indemnification of the HBCA to
officers and directors of the Company. Article VII also provides that the
indemnity provided thereunder is nonexclusive of any other rights of
indemnification to which an Indemnitee may be entitled.
In addition, the Company has entered into indemnification agreements with
each of its directors and executive officers providing indemnification to the
fullest extent permitted by law. Furthermore, the Company has a policy of
directors' and officers' liability insurance which insures directors and
officers against the cost of defense, settlement or payment of a judgment under
certain circumstances.
ITEM 16. EXHIBITS
The Exhibit Index appears on page II-6.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered thereby and the offerings of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
II-2
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City and County of Honolulu, State of Hawaii, on this 23rd
day of December, 1998.
<TABLE>
<S> <C> <C>
HAWAIIAN AIRLINES, INC.
By: /s/ PAUL J. CASEY
-----------------------------------------
Paul J. Casey
President and Chief Executive Officer
</TABLE>
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Paul J.
Casey, Lyn F. Anzai, John L. Garibaldi and Clarence K. Lyman his or her true and
lawful attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full powers and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might, or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or his or her substitute or substitutes may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
Director, President and
/s/ PAUL J. CASEY Chief Executive Officer
- ------------------------------ (Principal Executive December 23, 1998
(Paul J. Casey) Officer)
Executive Vice President
/s/ JOHN L. GARIBALDI and Chief Financial
- ------------------------------ Officer (Principal December 23, 1998
(John L. Garibaldi) Accounting and
Financial Officer)
/s/ JOHN W. ADAMS
- ------------------------------ Director, Chairman of the December 23, 1998
(John W. Adams) Board
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ TODD G. COLE
- ------------------------------ Director December 23, 1998
(Todd G. Cole)
/s/ ROBERT G. COO
- ------------------------------ Director December 23, 1998
(Robert G. Coo)
/s/ WILLIAM BOYCE LUM
- ------------------------------ Director December 23, 1998
(William Boyce Lum)
/s/ RENO F. MORELLA
- ------------------------------ Director December 23, 1998
(Reno F. Morella)
/s/ ARTHUR J. PASMAS
- ------------------------------ Director December 23, 1998
Arthur J. Pasmas
/s/ SAMSON POOMAIHEALANI
- ------------------------------ Director December 23, 1998
(Samson Poomaihealani)
/s/ EDWARD Z. SAFADY
- ------------------------------ Director December 23, 1998
(Edward Z. Safady)
/s/ SHARON L. SOPER
- ------------------------------ Director December 23, 1998
Sharon L. Soper
/s/ THOMAS J. TRZANOWSKI
- ------------------------------ Director December 23, 1998
Thomas J. Trzanowski
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- --------------- ----------------------------------------------------------------------------------------------
<C> <S>
3(a) Restated Articles of Incorporation of the Company.
3(b) By-laws of the Company, as amended and restated, incorporated by reference to Exhibit 3.1 to
the Company's Current Report on Form 8-K filed on September 14, 1998, Commission File No.
1-8836.
5.1 Opinion and Consent of Lyn F. Anzai, Esq.
23.1 Consent of Lyn F. Anzai, Esq. (contained in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney (included on the signature page hereto).
</TABLE>
II-6
<PAGE>
EXHIBIT 3(a)
ARTICLES OF INCORPORATION
OF
HAWAIIAN AIRLINES, INC.
ARTICLE I
NAME
The name of the Corporation shall be:
HAWAIIAN AIRLINES, INC.
ARTICLE II
OFFICES
The location of the principal office of the Corporation shall be in the City of
Honolulu, Island of Oahu, State of Hawaii, and the mailing address of the
principal office of the Corporation shall be 3375 Koapaka Street, Suite G-350,
Honolulu, Hawaii 96819, or such other mailing address as shall be specified by
an amendment to the Bylaws of the Corporation. The Corporation may have such
other offices within and without the State of Hawaii as its business may from
time to time require.
ARTICLE III
PURPOSES AND POWERS
The purpose of the Corporation is to engage in commercial air transportation and
any lawful act or activity for which corporations may be organized under the law
of Hawaii.
ARTICLE IV
CAPITAL STOCK
A. The Corporation is authorized to issue two classes of shares of capital
stock, which shall be designated Common Stock and Preferred Stock, respectively.
The total number of shares of capital stock which the Corporation is authorized
to issue is sixty-two million (62,000,000) shares.
B. (i) The total number of shares of Common Stock which the Corporation
shall have authority to issue is sixty million (60,000,000) shares, and all such
shares shall have a par value of $.01 per share.
<PAGE>
(ii) The Common Stock shall have all the voting rights provided under
the Hawaii Business Corporation Act for voting common stock except as otherwise
provided in these Amended Articles of Incorporation.
(iii) The ownership or control of more than twenty-five percent (25%) of
the issued and outstanding voting capital stock of the Corporation by persons
who are not "citizens of the United States" as defined in Section 102(a)(15) of
the Transportation Act (49 U.S.C. Section 4101, ET SEQ., the "Act") is
prohibited; provided, however, that such percentage shall be deemed to be
automatically increased or decreased from time to time to that percentage of
ownership which is then permissible by persons who are not "citizens of the
United States" under the Act or under any successor or other law of the United
States of America which provides for the regulation of, or is otherwise
applicable to, the Corporation or its subsidiaries in their business activities.
As used in the preceding sentence, capital stock of the Corporation means the
Common Stock and any shares of Preferred Stock of the Corporation entitled to
vote on matters generally referred to the shareholders for a vote.
(iv) All shares of Common Stock shall rank equally in the event of
liquidation of the Corporation and shall be entitled to any assets of the
Corporation available for distribution to shareholders after payment in full of
any preferential amount to which holders of Preferred Stock may be entitled.
(v) Any certificates that represent shares of Class A Common Stock and
any documents that refer to shares of Class A Common Stock shall for all
purposes be deemed to represent and refer to shares of Common Stock of the
Company.
C. The total number of shares of Preferred Stock which this Corporation is
authorized to issue is two million (2,000,000) shares having a par value of $.01
each and which may be issued from time to time in one or more series. The two
million (2,000,000) shares is divided into 1,979,993 Preferred Stock, 20,000
Series A Junior Participating Cumulative Preferred Stock, 4 Series B Special
Preferred Stock, 1 Series C Special Preferred Stock, 1 Series D Special
Preferred Stock and 1 Series E Special Preferred Stock. Prior to or
simultaneously with the creation and/or issuance of any such series, the Board
of Directors is hereby authorized to fix the voting powers, designations,
preferences and participating, optional, relative or other special rights, and
qualifications, limitations or restrictions thereof to the full extent permitted
by the laws of the State of Hawaii, unless such voting powers, designations,
preferences, rights and qualifications, limitations or restrictions thereof are
otherwise established by these Amended Articles of Incorporation; provided that,
in no event shall any shares, except shares of the Series A Junior Participating
Cumulative Preferred Stock, par value $.01 per share, be entitled to more than
one vote per share on any matters for which shareholder approval is required.
Unless otherwise provided in the resolution creating a series, all shares of
that series redeemed, repurchased or otherwise reacquired, as well as shares of
a series authorized but not yet issued, shall thereupon, without further action
by the Board of Directors, be or become authorized but unissued shares subject
to all of the authority of the Board of Directors in this Article IV provided.
D. No holder of the shares of any class of capital stock or other securities
of the Corporation shall have any preemptive or preferential right of
subscription for or to purchase any shares of any class of stock or other
securities of the Corporation, whether now or hereafter authorized, other than
such right or rights, if any, and upon such terms and at such prices as the
Board of Directors, in its discretion, from time to
2
<PAGE>
time may determine. The Board of Directors may issue shares of capital stock or
other securities without offering the same in whole or part to the holders of
the capital stock or any other securities of the Corporation.
E. Sections 415-171 and 415-172 of the Hawaii Revised Statutes, as amended,
relating to control share acquisitions, shall not apply to any acquisition of
shares of capital stock of the Corporation.
ARTICLE V
BOARD OF DIRECTORS
If the Corporation has only one stockholder, the Board of Directors shall have
one or more directors. If the Corporation has two stockholders, the Board of
Directors shall have two or more directors. If the Corporation has three or
more stockholders, the Board of Directors shall have a minimum of three
directors. Not less than one member of the Board of Directors shall be a
resident of the State of Hawaii, and in the absence of such one member, the
Board of Directors shall not function. The number of directors shall be fixed
by, and the members of the Board of Directors shall be elected or appointed at
such times, in such manner and for such terms as may be prescribed by the Bylaws
which also may provide for the removal of directors and filling of vacancies and
may provide that the remaining members of the Board of Directors, although less
than a majority thereof, may by the affirmative vote of the majority of such
remaining members fill vacancies in the Board of Directors. The directors need
not be stockholders of the Corporation. The Board of Directors shall have full
power to control and direct the business and affairs of the Corporation,
subject, however, to any limitations which may be set forth in the Hawaii
Business Corporation Act, in these Articles or in the Bylaws. The Board of
Directors, without the approval of the stockholders of the Corporation, or of
any percentage thereof, may authorize the borrowing of money or the incurring of
debts even though, as a result thereof, the amount of the Corporation's
indebtedness may exceed its capital stock.
ARTICLE VI
OFFICERS
The officers of the Corporation shall consist of such officers and assistant
officers and agents as may be prescribed by the Bylaws. The officers shall be
elected or appointed, hold office and may be removed, and shall have such
qualifications, as may be prescribed by the Bylaws. Any two or more offices may
be held by the same person, provided, however, that not less than two (2)
persons shall be officers.
All officers and agents of the Corporation, as between themselves and the
Corporation, shall have such authority and perform such duties in the management
of the Corporation as may be prescribed by the Bylaws, or as may be determined
by resolution of the Board of Directors not inconsistent with the Bylaws.
ARTICLE VII
INDEMNITY AND LIMIT ON LIABILITY
3
<PAGE>
A. The Corporation shall indemnify each person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that such person is or was a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director or officer of
another Corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
this Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the conduct of the person was unlawful. The
termination of any action, suit, or proceeding by judgment, order, settlement,
conviction, or upon a plea or nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interests of this Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such conduct was unlawful.
B. The Corporation shall indemnify each person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director or officer of the
Corporation or any subsidiary of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, including any subsidiary
of the Corporation against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of this
Corporation and, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of such person's duty to
this Corporation unless and only to the extent that the court in which such
action or suit was brought or in any other court having jurisdiction in the
premises shall determine upon application that, despite the adjudication of
liability but in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
C. To the extent that a director or officer of the Corporation or a person
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraph (A) or paragraph (B) of this Article VII, or
in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
D. Any indemnification under paragraph A or paragraph B of this Article VII
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in
paragraph A or paragraph B. Such determination shall be made (1) by the Board
of Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding,
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or (2) if such a quorum is not obtainable by independent legal counsel in a
written opinion to the Corporation, or (3) by a majority vote of the
stockholders, or (4) by the court in which the proceeding is or was pending upon
application made by the Corporation or such person or the attorney or other
person rendering services in connection with the defense, whether or not the
application by such person, attorney, or other person is opposed by the
Corporation.
E. Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of Directors in a
particular case upon receipt of an undertaking by or on behalf of the director
or officer to repay such amount unless it shall ultimately be determined that he
is entitled to be indemnified by the Corporation as authorized in this Article
VII.
F. Any indemnification pursuant to this Article VII shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any Bylaw, argument or otherwise and shall continue as to a
person who has ceased to be a director or officer and shall inure to the benefit
of the heirs, executors and administrators of such a person.
G. The Corporation shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or
is or was serving at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article VII.
H. To the fullest extent permitted by the Hawaii Business Corporation Act as
the same exists or may hereafter be amended, a director of the Corporation shall
not be liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director. If the Hawaii Business Corporation Act
is amended after the date of the filing of these Articles of Incorporation to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Hawaii
Business Corporation Act, as so amended from time to time. No repeal or
modification of this Article VII by the stockholders shall adversely affect any
right or protection of a director of the Corporation existing by virtue of this
Article VII at the time of such repeal or modification.
ARTICLE VIII
LIMITED LIABILITY
No stockholder of the Corporation shall be liable for any debt of the
Corporation beyond any amount which may be due and unpaid upon the par value of
the share or shares held by such stockholder.
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ARTICLE IX
BYLAWS
In furtherance and not in limitation of the powers conferred by statute, the
power to alter, amend or repeal the Bylaws or adopt new Bylaws, subject to
repeal or change by action of the stockholders, shall be vested in the Board of
Directors.
ARTICLE X
SERVICE OF PROCESS
Service of process may be made upon any officer of the Corporation.
ARTICLE XI
AMENDMENT
These Articles may be amended by the affirmative vote of the holders of not less
than two-thirds (2/3) of all the stock of the Corporation issued and outstanding
and having voting power, at a meeting duly called for such purpose, hereafter
prescribed by statute, and all rights conferred on stockholders herein are
granted subject to this reservation.
ARTICLE XII
DURATION
The Corporation shall exist in Perpetuity.
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DESIGNATION OF PREFERRED STOCK
SECTION 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as Series A Junior Participating Cumulative Preferred Stock,
par value $.01 per share (the "Series A Preferred Stock"), and the number of
shares constituting such series shall be 20,000 (twenty thousand).
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(a) The holders of shares of Series A Preferred Stock, in preference
to the holders of shares of Common Stock, par value $.01 per share, of the
Corporation (the "Common Stock") and of any other junior stock of the
Corporation that may be outstanding, shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the [tenth day of January,
April, July and October] in each year (each such date being referred to herein
as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a share
of Series A Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (i) $.25 per share ($1.00 per annum), or (ii)
subject to the provision for adjustment hereinafter set forth, 1000 times the
aggregate per share amount of all cash dividends, and 1000 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock, or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series A Preferred Stock. In the event that the Corporation shall at any time
declare or pay any dividend on Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise) into a greater or
lesser number of shares of Common Stock, then and in each such event, the amount
to which the holder of each share of Series A Preferred Stock was entitled
immediately prior to such event under clause (ii) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event, and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (a) of this Section 2
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided, however,
that in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $.25 per
share ($1.00 per annum) on the Series A Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Preferred Stock, unless
the date
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of issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which cases such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
cumulate but shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board
of Directors may fix a record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than 60 days
prior to the date fixed for the payment thereof.
SECTION 3. VOTING RIGHTS. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Each share of Series A Preferred Stock shall entitle the holder
thereof to 1000 votes (and each one one-thousandth of a share of Series A
Preferred Stock shall entitle the holder thereof to one vote) on all matters
submitted to a vote of the shareholders of the Corporation. In the event that
the Corporation shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then and in each such event,
the number of votes per share to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event, and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided in the Amended Articles of
Incorporation of the Corporation or herein or by law, the holders of shares of
Series A Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of shareholders of the
Corporation.
(c) In addition, the holders of shares of Series A Preferred Stock
shall have the following special voting rights:
(i) In the event that at any time dividends on Series A
Preferred Stock, whenever accrued and whether or not consecutive, shall not have
been paid or declared and a sum sufficient for the payment thereof set aside, in
an amount equivalent to six quarterly dividends on all shares of Series A
Preferred Stock at the time outstanding, then and in each such event, the
holders of shares of Series A Preferred Stock and each other series of preferred
stock now or hereafter issued that shall be accorded such class voting right by
the Board of Directors and that shall have the right to elect one director (or,
in the event any such other series is entitled to a greater number of directors,
such number of directors, which shall be cumulative with
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and not in addition to the director provided for herein, such director or
directors being hereinafter referred to as "Special Directors") as the result of
a prior or subsequent default in payment of dividends on such series (each such
other series being hereinafter called "Other Series of Preferred Stock"), voting
separately as a class without regard to series, shall be entitled to elect the
Special Director at the next annual meeting of shareholders of the Corporation,
in addition to the directors to be elected by the holders of all shares of the
Corporation entitled to vote for the election of directors, and the holders of
all shares (including the Series A Preferred Stock) otherwise entitled to vote
for directors, voting separately as a class, shall be entitled to elect the
remaining members of the Board of Directors, provided that the Series A
Preferred Stock and each Other Series of Preferred Stock, voting as a class,
shall not have the right to elect more than one Special Director (in addition to
any Special Director to which the holders of any Other Series of Preferred Stock
are then entitled). Such special voting right of the holders of shares of
Series A Preferred Stock may be exercised until all dividends in default on the
Series A Preferred Stock shall have been paid in full or declared and funds
sufficient therefor set aside, and when so paid or provided for, such special
voting right of the holders of shares of Series A Preferred Stock shall cease,
but subject always to the same provisions for the vesting of such special voting
rights in the event of any such future dividend default or defaults.
(ii) At any time after such special voting rights shall have so
vested in the holders of shares of Series A Preferred Stock, the Secretary of
the Corporation may, and upon the written request of the holders of record of
10% or more in number of the shares of Series A Preferred Stock and each Other
Series of Preferred Stock then outstanding addressed to the Secretary at the
principal executive office of the Corporation shall, call a special meeting of
the holders of shares of Preferred Stock so entitled to vote, for the election
of the Special Directors to be elected by them as herein provided, to be held
within 60 days after such call and at the place and upon the notice provided by
law and in the Bylaws for the holding of meetings of shareholders; provided,
however, that the Secretary shall not be required to call such special meeting
in the case of any such request received less than 90 days before the date fixed
for any annual meeting of shareholders, and if in such case such special meeting
is not called or held, the holders of shares of Preferred Stock so entitled to
vote shall be entitled to exercise the special voting rights provided in this
paragraph at such annual meeting. If any such special meeting required to be
called as above provided shall not be called by the Secretary within 30 days
after receipt of any such request, then the holders of record of 10% or more in
number of the shares of Series A Preferred Stock and each Other Series of
Preferred Stock then outstanding may designate in writing one of their number to
call such meeting, and the person so designated may, at the expense of the
Corporation, call such meeting to be held at the place and upon the notice given
by such person, and for that sole purpose shall have access to the stock books
of the Corporation. No such special meeting and no adjournment thereof shall be
held on a date later than 60 days before the annual meeting of shareholders.
If, at any meeting so called or at any annual meeting held while the holders of
shares of Series A Preerred Stock have the special voting rights provided for in
this paragraph, the holders of not less than 40% of the aggregate voting power
of Series A Preferred Stock and each Other Series of Preferred Stock then
outstanding are present in person or by proxy, which percentage shall be
sufficient to constitute a quorum for the election of additional directors as
herein provided, the then authorized number of directors of the Corporation
shall be increased by the number of Special Directors to be elected, as of the
time of such special meeting or the time of the first such annual meeting held
while
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such holders have special voting rights and such quorum is present, and the
holders of shares of Series A Preferred Stock and each Other Series of Preferred
Stock, voting as a class, shall be entitled to elect the Special Director or
Directors so provided for. If the directors of the Corporation are then divided
into classes under provisions of the Amended Articles of Incorporation of the
Corporation or the Bylaws, the Special Director or Directors shall belong to
each class of directors in which a vacancy is created as a result of such
increase in the authorized number of directors. If the foregoing expansion of
the size of the Board of Directors shall not be valid under applicable law, then
the holders of shares of Series A Preferred Stock and of each Other Series of
Preferred Stock, voting as a class, shall be entitled, at the meeting of
shareholders at which they would otherwise have voted, to elect a Special
Director or Directors to fill any then existing vacancies on the Board of
Directors, and shall additionally be entitled, at such meeting and each
subsequent meeting of shareholders at which directors are elected, to elect all
of the directors then being elected until by such class vote the appropriate
number of Special Directors has been so elected.
(iii) Upon the election at such meeting by the holders of shares
of Series A Preferred Stock and each Other Series of Preferred Stock, voting as
a class, of the Special Director or Directors they are entitled so to elect, the
persons so elected, together with such persons as may be directors or as may
have been elected as directors by the holders of all shares (including Series A
Preferred Stock) otherwise entitled to vote for directors, shall constitute the
duly elected directors of the Corporation. Each Special Director so elected by
holders of shares of Series A Preferred Stock and each Other Series of Preferred
Stock, voting as a class, shall serve until the next annual meeting or until
their respective successors shall be elected and qualified, or if any such
Special Director is a member of a class of directors under provisions dividing
the directors into classes, each such Special Director shall serve until the
annual meeting at which the term of office of such Special Director's class
shall expire or until such Special Director's successor shall be elected and
shall qualify, and at each subsequent meeting of shareholders at which the
directorship of any Special Director is up for election, said special class
voting rights shall apply in the reelection of such Special Director or in the
election of such Special Director's successor; provided, however, that whenever
the holders of shares of Series A Preferred Stock and each Other Series of
Preferred Stock shall be divested of the special rights to elect one or more
Special Directors as above provided, the terms of office of all persons elected
as Special Directors, or elected to fill any vacancies resulting from the death,
resignation, or removal of Special Directors shall forthwith terminate (and the
number of directors shall be reduced accordingly).
(iv) If, at any time after a special meeting of shareholders or
an annual meeting of shareholders at which the holders of shares of Series A
Preferred Stock and each Other Series of Preferred Stock, voting as a class,
have elected one or more Special Directors as provided above, and while the
holders of shares of Series A Preferred Stock and each Other Series of Preferred
Stock shall be entitled so to elect one or more Special Directors, the number of
Special Directors who have been so elected (or who by reason of one or more
resignations, deaths or removals have succeeded any Special Directors so
elected) shall by reason of resignation, death or removal be reduced the vacancy
in the Special Directors may be filled by any one or more remaining Special
Director or Special Directors. In the event that such election shall not occur
within 30 days after such vacancy arises, or in the event that there shall not
be incumbent at least one Special Director, the Secretary of the Corporation
may,
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and upon the written request of the holders of record of 10% or more in number
of the shares of Series A Preferred Stock and each Other Series of Preferred
Stock then outstanding addressed to the Secretary at the principal office of the
Corporation shall, call a special meeting of the holders of shares of Series A
Preferred Stock and each Other Series of Preferred Stock so entitled to vote,
for an election to fill such vacancy or vacancies, to be held within 60 days
after such call and at the place and upon the notice provided by law and in the
Bylaws for the holding of meetings of shareholders; provided, however, that the
Secretary shall not be required to call such special meeting in the case of any
such request received less than 90 days before the date fixed for any annual
meeting of shareholders, and if in such case such special meeting is not called,
the holders of shares of Preferred Stock so entitled to vote shall be entitled
to fill such vacancy or vacancies at such annual meeting. If any such special
meeting required to be alled as above provided shall not be called by the
Secretary within 30 days after receipt of any such request, then the holders of
record of 10% or more in number of the shares of Series A Preferred Stock and
each Other Series of Preferred Stock then outstanding may designate in writing
one of their number to call such meeting, and the person so designated may, at
the expense of the Corporation, call such meeting to be held at the place and
upon the notice above provided, and for that purpose shall have access to the
stock books of the Corporation; no such special meeting and no adjournment
thereof shall be held on a date later than 60 days before the annual meeting of
shareholders.
(d) Nothing herein shall prevent the directors or shareholders from
taking any action to increase the number of authorized shares of Series A
Preferred Stock, or increasing the number of authorized shares of Preferred
Stock of the same class as the Series A Preferred Stock or the number of
authorized shares of Common Stock, or changing the par value of the Common Stock
or Preferred Stock, or issuing options, warrants or rights to any class of stock
of the Corporation as authorized by the Amended Articles of Incorporation of the
Corporation, as it may hereafter be amended.
(e) Except as set forth herein, holders of shares of Series A
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote as set forth in the
Amended Articles of Incorporation of the Corporation or herein or by law) for
taking any corporate action.
SECTION 4. CERTAIN RESTRICTIONS.
(a) Whenever any dividends or other distributions payable on the
Series A Preferred Stock as provided in Section 2 hereof are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not, directly or indirectly:
(i) declare or pay dividends on, or make any other
distributions with respect to, any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock;
(ii) declare or pay dividends on, or make any other
distributions with respect to, any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up) with the Series
A Preferred Stock, except dividends paid ratably on shares of the Series A
Preferred Stock and all such parity
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stock on which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares
of Series A Preferred Stock, or any shares of stock ranking on a parity with the
Series A Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or
classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration, directly or
indirectly, any shares of stock of the Corporation unless the Corporation could,
under paragraph (a) of this Section 4, purchase or otherwise acquire such shares
at such time and in such manner.
SECTION 5. REACQUIRED SHARES. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
preferred stock, without designation as to series, and may be reissued as part
of any series of preferred stock created by resolution or resolutions of the
Board of Directors (including Series A Preferred Stock), subject to the
conditions and restrictions on issuance set forth herein.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made to:
(a) the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received the greater of (i) $1.00 per share ($.001
per one one-thousandth of a share), plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, or (ii) an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 1000 times the aggregate amount
to be distributed per share to holders of shares of Common Stock; or
(b) the holders of shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series A Preferred
Stock and all other such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up.
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In the event that the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then and in each such event, the aggregate amount to
which the holder of each share of Series A Preferred Stock was entitled
immediately prior to such event under the proviso in clause (a) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event, and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
SECTION 7. CONSOLIDATION, MERGER, ETC. In the event that the
Corporation shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other property, or otherwise
changed, then and in each such event, the shares of Series A Preferred Stock
shall at the same time be similarly exchanged or changed in an amount per share
(subject to the provision for adjustment hereinafter set forth) equal to 1000
times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event that the Corporation shall
at any time declare or pay any dividend on Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
greater or lesser number of shares of Common Stock, then and in each such event,
the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event, and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
SECTION 8. NO REDEMPTION. The shares of Series A Preferred Stock
shall not be redeemable. Notwithstanding the foregoing, the Corporation may
acquire shares of Series A Preferred Stock in any other manner permitted by law,
the Amended Articles of Incorporation of the Corporation or herein.
SECTION 9. RANK. Unless otherwise provided in the Amended Articles
of Incorporation of the Corporation, including any amendment relating to a
subsequent series of preferred stock of the Corporation, the Series A Preferred
Stock shall rank junior to all other series of the Corporation's preferred stock
as to the payment of dividends and the distribution of assets on liquidation,
dissolution or winding up, and senior to the Common Stock of the Corporation.
SECTION 10. AMENDMENT. The Amended Articles of Incorporation of the
Corporation shall not be amended in any manner that would materially and
adversely alter or change the powers, preferences or special rights of the
Series A Preferred Stock without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single series.
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SECTION 11. FRACTIONAL SHARES. Series A Preferred Stock may be
issued in fractions of a share (in one one-thousandths (1/1000) of a share and
integral multiples thereof) that shall entitle the holder thereof, in proportion
to such holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and have the benefit of all other rights
of holders of shares of Series A Preferred Stock.
SECTION 12. PREEMPTIVE RIGHTS. No holder of shares of Series A
Preferred Stock shall have any preemptive or preferential rights of subscription
for or to purchase any shares of any class of stock or other securities of the
Corporation, whether now or hereafter authorized, other than such right or
rights, if any, and upon such terms and at such prices as the Board of
Directors, in its discretion, from time to time may determine. The Board of
Directors may issue shares of any class of stock or other securities without
offering the same in whole or in part to the stockholders of the Corporation.
DESIGNATION OF SPECIAL PREFERRED STOCK
SECTION 1. DESIGNATION AND AMOUNT. The designation of the four
series so created shall be (a) Series B Special Preferred Stock, par value $.01
per share (the "Series B Special Preferred Stock"), (b) Series C Special
Preferred Stock, par value $.01 per share (the "Series C Special Preferred
Stock"), (c) Series D Special Preferred Stock, par value $.01 per share (the
"Series D Special Preferred Stock") and (d) Series E Special Preferred Stock,
par value $.01 per share (the "Series E Special Preferred Stock") (collectively,
the "Special Preferred Stock"). The Series B Special Preferred Stock shall
consist of four (4) shares. The Series C Special Preferred Stock shall consist
of one (1) share. The Series D Special Preferred Stock shall consist of one (1)
share. The Series E Special Preferred Stock shall consist of one (1) share.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS. At any time that a
dividend or distribution is declared and paid with respect to Common Stock, a
dividend shall be paid on the Special Preferred Stock in an amount per share
equal to twice the dividend per share paid on the Common Stock, and, except as
provided in Sections 6 and 7 hereof, the Special Preferred Stock shall not be
entitled to receive any other dividends or distributions thereon.
SECTION 3. VOTING RIGHTS.
(a) VOTING RIGHTS OF THE SPECIAL PREFERRED STOCK. The Special
Preferred Stock shall have the right to vote: (i) as required by the Hawaii
Business Corporation Act and (ii) together with Class A Common Stock as a single
class with respect to any matters submitted to the shareholders of the Class A
Common Stock of the Corporation. The holder of each share of Special Preferred
Stock shall be entitled to vote each share of the Special Preferred Stock of the
Corporation which shall have been held by such holder and registered in the name
of such holder on the books of the Corporation.
(b) NOTICE. So long as any shares of the Special Preferred Stock
remain outstanding, the Corporation will provide the holders of the Special
Preferred Stock with notice of each annual and special meeting of stockholders,
including without limitation any meeting at which matters on which the Special
Preferred Stock is entitled to vote, to the same extent as the holders of the
Common Stock.
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(c) CONDITIONAL RIGHT TO ELECT DIRECTORS TO FILL VACANCIES.
(i) SERIES B SPECIAL PREFERRED STOCK. In the event of a vacancy
or vacancies on the Board of Directors of the Corporation caused by the removal,
resignation or death of one or more directors whom the holders of Series B
Special Preferred Stock are entitled to identify to the Board of Directors for
nomination to the Board of Directors pursuant to the Bylaws of the Corporation,
and unless such vacancy is filled by the Board of Directors in accordance with
the Bylaws within 30 days, such vacancy or vacancies may be filled by the
affirmative vote of a majority of the holders of the Series B Special Preferred
Stock at a special meeting of holders of Series B Special Preferred Stock called
for such purpose, or by the unanimous written consent in lieu of meeting of all
holders of Series B Special Preferred Stock, such director or directors to hold
office until the next election of directors.
(ii) SERIES C SPECIAL PREFERRED STOCK. In the event of a vacancy
on the Board of Directors of the Corporation caused by the removal, resignation
or death of a director whom the holders of Series C Special Preferred Stock are
entitled to identify to the Board of Directors for nomination pursuant to the
Bylaws of the Corporation, and unless such vacancy is filled by the Board of
Directors in accordance with the Bylaws within 30 days, such vacancy may be
filled by the affirmative vote of a majority of the holders of the Series C
Special Preferred Stock at a special meeting of holders of the Series C Special
Preferred Stock called for such purpose, or by the unanimous written consent in
lieu of meeting of all holders of Series C Special Preferred Stock, such
director to hold office until the next election of directors.
(iii) SERIES D SPECIAL PREFERRED STOCK. In the event of a
vacancy on the Board of Directors of the Corporation caused by the removal,
resignation or death of a director whom the holders of Series D Special
Preferred Stock are entitled to identify to the Board of Directors for
nomination pursuant to the Bylaws of the Corporation, unless such vacancy is
filled by the Board of Directors in accordance with the Bylaws within 30 days,
such vacancy may be filled by the affirmative vote of a majority of the holders
of the Series D Special Preferred Stock at a special meeting of holders of
Series D Special Preferred Stock called for such purpose, or by the unanimous
written consent in lieu of meeting of all holders of Series D Special Preferred
Stock, such director to hold office until the next election of directors.
(iv) SERIES E SPECIAL PREFERRED STOCK. In the event of a vacancy
on the Board of Directors of the Corporation caused by the removal, resignation
or death of a director whom the holders of Series E Special Preferred Stock are
entitled to identify to the Board of Directors for nomination pursuant to the
Bylaws of the Corporation, unless such vacancy is filled by the Board of
Directors in accordance with the Bylaws within 30 days, such vacancy may be
filled by the affirmative vote of a majority of the holders of the Series E
Special Preferred Stock at a special meeting of holders of Series E Special
Preferred Stock called for such purpose, or by the unanimous written consent in
lieu of meeting of all holders of Series E Special Preferred Stock, such
director to hold office until the next election of directors.
(d) Except as otherwise expressly provided herein or otherwise
expressly required by law, the Special Preferred Stock shall not have any other
voting rights with respect to the affairs of the Corporation.
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SECTION 4. CONVERSION.
(a) CONVERTIBLE INTO CLASS A COMMON STOCK.
(i) SERIES B SPECIAL PREFERRED STOCK.
a) TRANSFER. A share of Series B Special Preferred Stock
shall be converted into one share of Class A Common Stock automatically upon
transfer of such share to any person (a "Transferee") who is not an "affiliate"
of the initial holder of such share of Series B Special Preferred Stock.
"Affiliate" shall mean any corporation, partnership, limited liability company,
trust or other entity or an individual, which is, or is at least 50% owned,
directly or indirectly, by, one or more of the stockholders of the general
partners and/or the stockholders of the limited partners of the holder of the
Series B Special Preferred Stock as of the date of issuance thereof.
b) LESS THAN 5%. Each share of Series B Special Preferred
Stock shall be converted into one share of Class A Common Stock automatically if
the holder of Series B Special Preferred Stock is the holder of record of less
than 5% of the "outstanding common equity interest" of the stock of the
Corporation for a period of 365 consecutive days. "Outstanding common equity
interest" shall mean outstanding Class A Common Stock, outstanding Class B
Common Stock, Class A Common Stock to be issued upon exercise, conversion or
exchange of outstanding warrants, stock options, or convertible stock, or other
securities exerciseable, convertible or exchangeable into Class A Common Stock
(without taking into effect any anti-dilution provisions in such securities).
(ii) SERIES C SPECIAL PREFERRED STOCK. A share of Series C
Special Preferred Stock shall be converted into one share of Class A Common
Stock automatically upon transfer of such share to any Transferee. In addition
to the foregoing, each share of the Series C Special Preferred Stock shall be
converted into one share of Class A Common Stock automatically if the collective
bargaining agreement by and between the holders of such share and the
Corporation is amended through collective bargaining pursuant to the Railway
Labor Act, 45 U.S.C. Section 156, so that the collective bargaining agreement
no longer entitles such holders to nominate a representative on the Board of
Directors.
(iii) SERIES D SPECIAL PREFERRED STOCK. A share of Series D
Special Preferred Stock shall be converted into one share of Class A Common
Stock automatically upon transfer of such share to any Transferee. In addition
to the foregoing, each share of the Series D Special Preferred Stock shall be
converted into one share of Class A Common Stock automatically if the collective
bargaining agreement by and between the holders of such share and the
Corporation is amended through collective bargaining pursuant to the Railway
Labor Act, 45 U.S.C. Section 156, so that the collective bargaining agreement
no longer entitles such holders to nominate a representative on the Board of
Directors.
(iv) SERIES E SPECIAL PREFERRED STOCK. A share of Series E
Special Preferred Stock shall be converted into one share of Class A Common
Stock automatically upon transfer of such share to any Transferee. In addition
to the foregoing, each share of the Series E Special Preferred Stock shall be
converted into one share of Class A Common Stock automatically if the collective
bargaining agreement by and between the holders of such share and the
Corporation is amended
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through collective bargaining pursuant to the Railway Labor Act, 45 U.S.C.
Section 156, so that the collective bargaining agreement no longer entitles
such holders to nominate a representative on the Board of Directors.
(b) TIME OF CONVERSION AND SURRENDER OF SHARES. Conversion shall be
deemed to have been effected on the date that, as the case may be, (i) the share
of Special Preferred Stock is transferred to the Transferee, (ii) is the 365th
consecutive day after the holder of Series B Special Preferred Stock is the
holder of record of less than 5% of the outstanding common equity interest of
the stock of the Corporation, and (iii) the related collective bargaining
agreement is amended, and each such date is referred to herein as the
"Conversion Date." The Transferee or the other holder of the converted Special
Preferred Stock shall be deemed to have become a stockholder of record of the
Class A Common Stock on the applicable Conversion Date. On the applicable
Conversion Date or as soon as practicable thereafter, any holder of a converted
share of Special Preferred Stock must deliver the certificate representing such
share to the Corporation during regular business hours at the principal office
of the Corporation or at such other place as may be designated in writing
delivered to the holder of such certificate by the Corporation, duly endorsed
for transfer to the Corporation (if required by it), accompanied by written
notice identifying the Transferee or other holder, as the case may be. As
promptly as practicable thereafter, the Corporation shall issue and deliver at
such office to such Transferee or other holder a certificate for the shares of
Class A Common Stock issuable upon conversion.
(c) ISSUANCE OF CLASS A COMMON STOCK. All shares of Class A Common
Stock that may be issued upon conversion of the Special Preferred Stock shall be
issued for consideration that the Board of Directors hereby determines to be
adequate, and upon issuance, such shares of Class A Common Stock will be validly
issued, fully paid and nonassessable. The Corporation will pay any and all
documentary and other taxes that may be payable in respect of any issue or
delivery of shares of Class A Common Stock on conversion of the Special
Preferred Stock pursuant hereto. The Corporation shall not, however, be
required to pay any tax that may be payable in respect of any transfer involved
in the issue and delivery of shares of Class A Common Stock in a name other than
that in which the shares of the Special Preferred Stock so converted were
registered, and no such issue or delivery shall be made unless and until the
person requesting such transfer has paid to the Corporation the amount of any
such tax or has established to the satisfaction of the Corporation that such tax
has been paid.
(d) ADJUSTMENTS. The number of shares of Class A Common Stock
issuable upon the conversion of each share of the Special Preferred Stock shall
not be subject to adjustment.
SECTION 5. REACQUIRED SHARES. Any shares of Special Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever (including upon conversion into Class A Common Stock) shall be
retired and canceled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of preferred
stock, without designation as to series, and may be reissued as part of any
series of preferred stock subsequently created by resolution or resolutions of
the Board of Directors.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of
the liquidation, dissolution or winding up of the Corporation, whether voluntary
or
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involuntary, the holders of the Special Preferred Stock shall be entitled to
receive, out of the assets of the Corporation, whether such assets are capital
or surplus of any nature, $.01 per share of Special Preferred Stock before any
payment shall be made or any assets distributed to the holders of the Common
Stock or the holders of any other class of stock junior in respect of
liquidation rights to the Special Preferred Stock; and the holders of the
Special Preferred Stock shall not be entitled to any further payments. If upon
such liquidation, dissolution or winding up, whether voluntary or involuntary,
the assets of the Corporation or proceeds thereof shall be insufficient to make
the full liquidating payment of $.01 per share of the Special Preferred Stock
and the full liquidating payment due to any holder of Preferred Stock of any
series ranking pari passu with the Special Preferred Stock, then such assets and
proceeds shall be distributed among the holders of the Special Preferred Stock,
ratably on a share for share basis in accordance with the respective amounts
which would be payable on all such series of Preferred Stock, if all remaining
liquidating amounts payable were paid in full and nothing shall be paid to the
holders of any other class of stock junior to the Special Preferred Stock.
Neither a consolidation nor merger of the Corporation with or into one or more
corporations, nor a sale of all or a substantial part of the assets of the
Corporation, shall be deemed to be a liquidation, dissolution or winding up
within the meaning of this Section 6 unless such consolidation, merger or sale
shall be in connection with a plan of liquidation, dissolution or winding up of
the business of the Corporation.
SECTION 7. CONSOLIDATION, MERGER, ETC. In the event that the
Corporation shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other property, or otherwise
changed, then and in each such event, all shares of Special Preferred Stock
shall at the same time be similarly exchanged or changed in an amount per share
equal to the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged.
SECTION 8. NO REDEMPTION. The shares of Special Preferred Stock
shall not be redeemable. Notwithstanding the foregoing, the Corporation may
acquire shares of Special Preferred Stock in any other manner permitted by law,
the Amended Articles of Incorporation of the Corporation or herein.
SECTION 9. RANK. With regard to rights to receive distributions
upon liquidation, dissolution or winding up of the Corporation, the Special
Preferred Stock shall rank (i) senior to the Common Stock of the Corporation,
(ii) senior to any series of Preferred Stock of the Corporation the terms of
which specifically provide that such series shall rank junior to the Special
Preferred Stock, (iii) junior to any series of Preferred Stock of the
Corporation the terms of which specifically provide that such series shall rank
senior to the Special Preferred Stock, and (iv) pari passu with each other and
with any series of Preferred Stock of the Corporation the terms of which do not
specifically provide that such series shall rank junior or senior to the Special
Preferred Stock.
SECTION 10. PREEMPTIVE RIGHTS. No holder of the shares of Special
Preferred Stock shall have any preemptive or preferential rights of subscription
for or to purchase any shares of any class of stock or other securities of the
Corporation, whether now or hereafter authorized, other than such right or
rights, if any, and upon such terms and at such prices as the Board of
Directors, in its discretion from time to
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time may determine. The Board of Directors may issue shares of Special
Preferred Stock or other securities without offering the same in whole or in
part to the stockholders of the Corporation.
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EXHIBIT 5.1
[LETTERHEAD OF HAWAIIAN AIRLINES, INC.]
DECEMBER 23, 1998
Hawaiian Airlines, Inc.
3375 Koapaka Street
Suite G350
Honolulu, HI 96819
Re: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
I have acted as counsel for Hawaiian Airlines, Inc., a Hawaii corporation
(the "Company"), in connection with the Registration Statement of the Company on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended, relating to the registration of 5,643,010 shares of Common Stock (the
"Common Stock") of the Company held by Airline Investors Partnership, L.P., AMR
Corporation, Martin Anderson and Robert R. Midkiff.
In connection therewith, I have examined, among other things, the
Registration Statement. I have also examined such corporate proceedings,
documents, records and matters of law as I have deemed necessary for purposes of
rendering this opinion.
Based upon the foregoing, and in reliance thereon, I am of the opinion that
the shares of Common Stock are validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
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Very truly yours,
/s/ LYN F. ANZAI
-----------------------------------------
Lyn F. Anzai
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EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
THE BOARD OF DIRECTORS
HAWAIIAN AIRLINES, INC.:
We consent to incorporation by reference in the Registration Statement on
Form S-3 of Hawaiian Airlines, Inc., registering 5,643,010 shares of Common
Stock, of our reports dated February 26, 1998, relating to the balance sheets of
Hawaiian Airlines, Inc. as of December 31, 1997 and 1996, and the related
statements of operations, shareholders' equity and cash flows for each of the
years in the three-year period ended December 31, 1997, and relating to the
financial statement schedule for the three-year period ended December 31, 1997,
which reports appear in the December 31, 1997 annual report on Form 10-K of
Hawaiian Airlines, Inc. We also consent to the reference to our firm under the
heading "EXPERTS" in the prospectus.
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<S> <C> <C>
/s/ KPMG PEAT MARWICK LLP
-----------------------------------------
KPMG Peat Marwick LLP
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Honolulu, Hawaii
December 22, 1998
