SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) August 28, 1998
HAWAIIAN AIRLINES, INC.
(Exact name of registrant as specified in its charter)
HAWAII 1-8836 99-0042880
(state or other jurisdiction (Commission (I.R.S. employer
of incorporation) file number) identification no.)
3375 Koapaka Street, Suite G350
Honolulu, HI 96819-1869
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (808) 835-3700
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ITEM 5. OTHER EVENTS
By-Law Amendments.
On August 28, 1998, the Board of Directors of Hawaiian
Airlines, Inc. (the "Registrant") amended the by-laws of the
Registrant with respect to certain procedural matters
including (1) stockholder requests for special meetings, (2)
notice of stockholders meetings, (3) advance notice of
stockholder proposals to be brought before a stockholders
meting, (4) elections of directors other than at a
stockholders meeting, (5) emergency special meetings of the
Board of Directors, (6) delegation by the Board of Directors
of the authority to appoint or discharge the subordinate
officers or agents, (7) appointment of temporary officers in
the event of temporary disability of an officer, (8)
incidental powers of the President, Treasurer and Corporate
Secretary, (9) delegation by the Board of Directors of
authority to fix salaries and compensation of subordinate
officers and agents and (10) Registrant's right to treat the
holder of record of its capital stock as the holder in fact of
such shares. In addition, the by-laws of the Registrant were
amended to include a statement of the Registrant's policy on
directors' conflicts of interest.
A copy of the Registrant's Amended and Restated By-Laws is
attached hereto as Exhibit 3.1 and is incorporated herein by
reference.
Amendments to Rights Agreement.
On August 28, 1998, the Board of Directors of the Registrant
also approved Amendment No. 4 (the "Amendment") to the Rights
Agreement, dated as of December 23, 1994 (the "Rights
Agreement"), between the Registrant and the Rights Agent
(currently ChaseMellon Shareholder Services, L.L.C., as
successor to Chemical Trust Company of California). Unless the
context indicates to the contrary, terms used and not defined
herein shall have the meanings ascribed to them in the Rights
Agreement. The Rights Agreement was filed as an exhibit to a
Current Report on Form 8-K, dated December 23, 1994, and is
incorporated herein by reference. Amendment No. 1 to the
Rights Agreement was filed as Exhibit 4 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1995 and is incorporated herein by reference. Amendment No. 2
to the Rights Agreement was filed as Exhibit 4 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995 and is incorporated herein by reference.
Amendment No. 3 to the Rights Agreement was filed as an
exhibit to a Current Report on Form 8-K, dated May 21, 1998
and is incorporated herein by reference.
The Amendment modifies the Rights Agreement in order to, among
other things, (i) increase the triggering percentage of the
Rights from 10% to 15%, (ii) delete all references in the
Rights Agreement to the terms "10%
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Ownership Date" and "10% Shareholder" and substitute therefor,
respectively, the terms "Share Acquisition Date" and
"Acquiring Person," (iii) amend the definition of the term
"Distribution Date" in order to allow the Board of Directors
of the Registrant to extend the date on which the Rights are
distributed and (iv) integrate the foregoing changes in
certain other related sections of the Rights Agreement.
A copy of the Amendment is attached hereto as Exhibit 4.1 and
is incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS
(c) Exhibits
Exhibit 3.1 Amended By-Laws of the Registrant, dated as of
August 28, 1998.
Exhibit 4.1 Amendment No. 4, dated as of August 28, 1998, to
the Rights Agreement, dated as of December 23,
1994, between the Registrant and its Rights
Agent.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HAWAIIAN AIRLINES, INC.
Dated: September 11, 1998 By: /s/ John L. Garibaldi
-------------------------
John L. Garibaldi
Executive Vice President
and Chief Financial Officer
EXHIBIT 3.1
AMENDED BYLAWS
OF
HAWAIIAN AIRLINES, INC.
(AS OF AUGUST 28, 1998)
ARTICLE I
OFFICES AND SEAL
SECTION 1.01. PRINCIPAL OFFICE. The principal office of Hawaiian
Airlines, Inc. (the "Corporation") shall be at 3375 Koapaka Street, Suite G-350,
Honolulu, Island of Oahu, State of Hawaii.
SECTION 1.02. OTHER OFFICES. In addition to its principal office at
Honolulu, Hawaii, the Corporation may also have an office or offices in such
other place or places, either within or without the State of Hawaii, as the
Board of Directors of the Corporation (the "Board") may from time to time
determine or as the business of the corporation may require.
SECTION 1.03. CORPORATE SEAL. The Corporation shall have a corporate
seal in such form as shall be determined by the Board.
ARTICLE II
STOCKHOLDERS' MEETINGS
SECTION 2.01. ANNUAL MEETING. Annual meetings of the stockholders of
the Corporation for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings may be held at such
time, date and place as the Board shall determine by resolution. At the annual
meeting, the stockholders entitled to vote for the election of directors shall
elect the directors to hold office until the next annual meeting and thereafter
until their successors shall be duly elected and qualified and, subject to any
requirements of law or of the Articles of Incorporation or of these Bylaws with
respect to notice, may transact any other business which may be brought before
the meeting and take any other corporate action.
SECTION 2.02. SPECIAL MEETING. Special meetings of the stockholders
shall be called by the Corporate Secretary upon written request of the holders
of not less than one-tenth (1/10) of the then issued and outstanding common
stock of the Corporation entitled to vote at such meeting filed with the
Corporate Secretary of the Corporation, or upon the resolution of the Board. A
request by a stockholder or stockholders for a special meeting must contain a
brief description of the business to be brought before the special meeting, the
reasons for conducting such business at such meeting and any material interest
in such business of the person making the request. At any special meeting, such
business shall be brought before the stockholders and may be transacted as shall
have been specified in the notice of such meeting, but any other business may be
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transacted subject to any requirements of law or of the Articles of
Incorporation or of these Bylaws with respect to notice.
SECTION 2.03. PLACE OF MEETINGS. All meetings of the stockholders shall
be held at such places, within or without the State of Hawaii, as may from time
to time be designated by the person or persons calling the respective meeting
and specified in the respective notices or waivers of notice thereof.
SECTION 2.04. NOTICE OF MEETINGS. Written notice specifying the time
and place of the stockholders' meeting, whether annual or special and, if a
special meeting, the nature of the business to be considered, shall be given to
each stockholder entitled to vote at such meeting not less than ten (10) nor
more than seventy (70) days prior to the date set for such meeting, either by
serving the same upon the stockholder personally or by mailing the same to the
stockholder at the stockholder's last known address as shown on the records of
the Corporation. If mailed, such notice is deemed to be delivered when deposited
in the United States mail addressed to the stockholder at the stockholder's
address as it appears in the stock transfer books of the Corporation, with
postage thereon prepaid. Nonreceipt of such notice by any stockholder shall not
invalidate any business done at any meeting, either annual or special, at which
a quorum is present. Any stockholder may, prior to, at the meeting or subsequent
thereto, waive notice of any meeting in writing signed by the stockholder or a
duly authorized attorney-in-fact of the stockholder. Except as otherwise
expressly required by law, notice of any adjourned meeting of the stockholders
need not be given if the time and place thereof are announced at the meeting at
which the adjournment is taken.
SECTION 2.05. QUORUM. The holders of record of a majority in voting
interest of the shares of stock of the Corporation entitled to be voted thereat,
present in person or by proxy, shall constitute a quorum for the transaction of
business at any meeting of the stockholders of the Corporation or any
adjournment thereof. Any decision of a majority of such quorum shall be valid
and binding upon the Corporation, except as otherwise specifically provided by
law, the Articles of Incorporation, or these Bylaws.
SECTION 2.06. VOTING. The holders of Common Stock shall have all the
voting rights provided under the Hawaii Business Corporation Act for voting
common stock except as otherwise provided in the Articles of Incorporation. Each
stockholder shall, at each meeting of the stockholders, be entitled to vote in
person or by proxy each share of the stock of the Corporation having voting
rights on the matter in question and which shall have been held by such
stockholder and registered in the stockholder's name on the books of the
Corporation. All proxies shall be in writing, and any telegraphic, photographic,
photostatic or equivalent reproduction or telecopier copy shall constitute for
all purposes a sufficient writing appointing a proxy.
SECTION 2.07. CONDUCT OF MEETINGS OF STOCKHOLDERS BY PRESIDING OFFICER.
Subject to applicable law, the Articles of Incorporation or these Bylaws, the
officer of the Corporation who is the presiding officer at any meeting of the
stockholders of the Corporation shall have the power (A) to determine the
procedure to be following
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in presenting and voting upon all business that may be transacted at the meeting
and (B) to adjourn a meeting, duly called and noticed, at which a quorum is
present in person or by proxy if a matter to be considered and acted upon at the
meeting requires the affirmative vote of more than a majority of shares
represented at the meeting voting in person or by proxy and at the meeting as
originally duly called and noticed (i) the number of shares voted in person or
by proxy in favor of such matter is insufficient to approve it and (ii) the
number of shares voted in person or by proxy against such matter is insufficient
to disapprove it. Shares which are voted in person or by proxy as abstaining
from voting on any such matter shall be deemed not to have voted on such matter
for the purposes of this section. At any adjourned meeting which has been
adjourned by the presiding officer as provided in this section, any business may
be transacted which could have been transacted at the meeting as originally
called if a quorum is present.
SECTION 2.08. NO CUMULATIVE VOTING. Whenever the Corporation shall have
a class of equity securities registered pursuant to the Securities Exchange Act
of 1934, as amended, which are either listed on a national securities exchange
or traded over-the-counter on the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotation System, no holders
of shares of any class of capital stock of the Corporation shall be entitled to
cumulate votes in the election of directors.
SECTION 2.09. ACTION WITHOUT MEETING. Whenever the vote of stockholders
at a meeting thereof is required or permitted to be taken in connection with any
corporate action permitted by any section of Chapter 415, Hawaii Revised
Statutes, as the same now exists or may be amended from time to time, the
meeting and vote of stockholders may be dispensed with if all of the
stockholders who would have been entitled to vote upon the action if the meeting
were held, consent in writing to the corporate action being taken.
SECTION 2.10. STOCKHOLDER PROPOSALS. At any annual meeting of
stockholders, only such business shall be conducted as shall have been specified
in the notice of meeting (or supplement thereto) given, or otherwise properly
brought, by or at the direction of the Board, or otherwise properly brought by a
stockholder in accordance with this Section (such business brought by a
stockholder is referred to herein as "stockholder business"). In addition to all
other applicable requirements, all proposals of stockholder business must be
made by written notice given by or on behalf of a stockholder of record (the
"Notice of Business"). The Notice of Business must be delivered personally to,
or mailed to, and received at the principal executive offices of the
Corporation, addressed to the attention of the Corporate Secretary, not less
than thirty (30) nor more than sixty (60) days prior to the annual meeting;
provided however, that if less than forty (40) days' notice or prior public
disclosure of the date of the meeting is given or made to stockholders, the
Notice of Business must be received no later than the close of business on the
tenth (10th) day following the day on which such notice of the date of the
meeting was mailed or such public disclosure was made. Such Notice of Business
shall set forth (i) the name and record address of the stockholder proposing
such stockholder business, (ii) the class and number of shares of capital stock
held of record, held beneficially and represented by proxy held by such person
as of the
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record date for the meeting and as of the date of such Notice of Business, (iii)
a brief description of the stockholder business desired to be brought before the
annual meeting and the reasons for conducting such stockholder business at the
annual meeting, (iv) any material interest of the stockholder in such
stockholder business, and (v) all other information that would be required to be
filed with the Securities and Exchange Commission if the person proposing such
stockholder business were a participant in a solicitation subject to Section 14
of the Securities Exchange Act of 1934, as amended. Notwithstanding anything in
these Bylaws to the contrary, no stockholder business shall be conducted at the
annual meeting of stockholders except in accordance with the procedures set
forth in this Section; provided, however, that nothing in this Section shall be
deemed to preclude discussion by any stockholder of any business properly
brought before the annual meeting in accordance with said procedures. The
chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting, that business was not properly brought before the meeting in
accordance with the foregoing procedures and, if so determined, shall declare to
the meeting that any such business not properly brought before the meeting shall
not be transacted.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. GENERAL POWERS. Subject to instructions by the
stockholders and to any limitations provided by law or set forth in the Articles
of Incorporation or in these Bylaws, the Board shall have full power to control
and direct the business and affairs of the Corporation and to exercise all the
powers and perform all the acts which the Corporation may legally exercise and
perform. The Board may appoint committees as deemed appropriate in carrying out
its purposes.
SECTION 3.02. NUMBER AND QUALIFICATIONS. The number of directors shall
be eleven (11). The qualifications of directors shall be as set forth in Clauses
(A) through (G) of this Section 3.02.
(A) At any time that there is a holder of record of one (1) or
more shares of Series B Special Preferred Stock (the "Nominating
Stockholder") and the Nominating Stockholder is the holder of record of
at least 35% of the outstanding common equity interest of the stock of
the Corporation, six (6) directors (the "Nominated Directors") shall
have been identified to the Board by the Nominating Stockholder for
nomination to the Board. If the Nominating Stockholder is the holder of
record of at least 25% but less than 35% of the outstanding common
equity interest of the stock of the Corporation, five (5) Nominated
Directors shall have been identified to the Board by the Nominating
Stockholder for nomination to the Board and one (1) director who is not
(a) employed by the Corporation, (b) affiliated with the Nominating
Stockholder, (c) affiliated with the Corporation's labor unions and (d)
affiliated with AMR Corporation (the "Outside Director") shall have
been nominated by the Board. If the Nominating Stockholder is the
holder of record of at least 10% but less than 25% of the outstanding
common equity interest of the stock of the Corporation,
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four (4) Nominated Directors shall have been identified to the Board by
the Nominating Stockholder for nomination to the Board and two (2)
Outside Directors shall have been nominated by the Board. If the
Nominating Stockholder is the holder of record of at least 5% but less
than 10% of the outstanding common equity interest of the stock of the
Corporation, three (3) Nominated Directors shall have been identified
to the Board by the Nominating Stockholder for nomination to the Board
and three (3) Outside Directors shall have been nominated by the Board.
If the Nominating Stockholder is the holder of record of less than 5%
of the outstanding common equity interest of the stock of the
Corporation, no Nominated Directors shall have been identified to the
Board by the Nominating Stockholder for nomination to the Board and six
(6) Outside Directors shall have been nominated by the Board. The
"outstanding common equity interest" shall mean outstanding Common
Stock, any outstanding Class A Common Stock and Class A Common Stock to
be issued upon exercise, conversion or exchange of outstanding
warrants, stock options or convertible stock, or other securities
exercisable, convertible or exchangeable into Class A Common Stock
(without taking into effect of any anti-dilution provisions in such
securities).
(B) At any time there is a holder of record of one (1) share
of Series C Special Preferred Stock, one director shall have been
identified to the Board by such holder for nomination to the Board (the
"Series C Director").
(C) At any time there is a holder of record of one (1) share
of Series D Special Preferred Stock, one director shall have been
identified to the Board by such holder for nomination to the Board (the
"Series D Director").
(D) At any time there is a holder of record of one (1) share
of Series E Special Preferred Stock, one director shall have been
identified to the Board by such holder for nomination to the Board (the
"Series E Director" and together with the Series C Director and the
Series D Director, the "Series Nominated Directors").
(E) At all times, one Outside Director shall have been
nominated by the Board, such Outside Director to be in addition to any
Outside Directors referred to above.
(F) At all times, one director who is a senior management
official of the Corporation shall have been nominated by the Board.
(G) Directors need not be stockholders.
Each of the directors of the Corporation shall hold office until his or
her successor shall have been duly elected and shall qualify or until he or she
shall resign or shall have been removed in the manner hereinafter provided.
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SECTION 3.03. ELECTION OF DIRECTORS. The directors shall be elected
annually by the stockholders of the Corporation at the annual meeting of
stockholders. In the case of failure to elect the directors at an annual
meeting, the directors may be elected at a special meeting held thereafter or by
written consent in accordance with Section 2.09 of these Bylaws.
SECTION 3.04. RESIGNATIONS. Any director of the Corporation may resign
at any time by giving written notice to the Board, the Chairman of the Board, or
to the Corporate Secretary of the Corporation. Any such resignation shall take
effect at the time specified therein, or, if the time is not specified, it shall
take effect immediately upon its receipt; and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 3.05. VACANCIES. Any vacancy in the Board, whether because of
death, resignation, disqualification, an increase in the number of directors or
any other cause may be filled by vote of the majority of the remaining
directors, although less than a quorum. Each director so chosen to fill a
vacancy shall hold office until his or her successor shall have been elected and
shall qualify or until he or she shall resign or shall have been removed in the
manner hereinafter provided, except that a director chosen by reason of an
increase in the number of directors may serve a term of office continuing only
until the next election of directors by stockholders.
SECTION 3.06. PLACE OF MEETINGS, ETC. The Board may hold any of its
meetings at such place or places within or without the State of Hawaii as the
Board may from time to time by resolution designate or as shall be designated by
the person or persons calling the meeting or in the notice or a waiver of notice
of any such meeting. Directors may participate in any regular or special meeting
of the Board by means of conference telephone or similar communications
equipment pursuant to which all persons participating in the meeting of the
Board can hear each other, and such participation shall constitute presence in
person at such meeting.
SECTION 3.07. FIRST MEETING. The Board shall meet as soon as
practicable after each annual election of directors and notice of such first
meeting shall not be required.
SECTION 3.08. REGULAR MEETINGS. Regular meetings of the Board may be
held at such times as the Board shall from time to time by resolution determine.
If any day fixed for a regular meeting shall be a legal holiday at the place
where the meeting is to be held, then the meeting shall be held at the same hour
and place on the next succeeding business day not a legal holiday. Except as
provided by law, notice of regular meetings need not be given.
SECTION 3.09. SPECIAL MEETINGS. Special meetings of the Board shall be
held whenever called by the President, the Chairman of the Board or a majority
of the authorized number of directors of the Corporation. Special meetings of
the Board shall be held whenever called by the Nominating Stockholder if
necessary under the Articles
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of Incorporation or Section 3.12 of these Bylaws to fill the vacancy of a
Nominated Director. Special meetings of the Board shall be held whenever called
by the holder of the Series C Special Preferred Stock if necessary under the
Articles of Incorporation or Section 3.12 of these Bylaws to fill the vacancy of
the Series C Director. Special meetings of the Board shall be held whenever
called by the holder of the Series D Special Preferred Stock if necessary under
the Articles of Incorporation or Section 3.12 of these Bylaws to fill the
vacancy of the Series D Director. Special meetings of the Board shall be held
whenever called by the holder of the Series E Special Preferred Stock if
necessary under the Articles of Incorporation or Section 3.12 of these Bylaws to
fill the vacancy of the Series E Director. Except as otherwise provided by law
or by these Bylaws, notice of the time and place of each such special meeting
shall be mailed to each director, addressed to each director at such director's
residence or usual place of business, at least five (5) days before the day on
which the meeting is to be held, or shall be sent to each director at such place
by telecopier or be delivered personally not less than twenty-four (24) hours
before the time at which the meeting is to be held; provided, however, that, in
the event the Chairman of the Board, the President or any executive vice
president of the Corporation determines in his or her reasonable judgment that
the Board should take action or deliberate concerning an emergency situation on
less than twenty-four (24) hours' notice, notice of the time and place of a
special meeting to consider such situation shall be sent to the directors'
residence or usual place of business by telecopier or delivered personally not
less than three (3) hours before the time at which the meeting is to be held.
Except where otherwise required by law or by these Bylaws, notice of the purpose
of a special meeting need not be given. Notice of any meeting of the Board shall
not be required to be given to any director who is present at such meeting,
except a director who shall attend such meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
SECTION 3.10. QUORUM. Except as otherwise provided in these Bylaws or
by law, the presence of a majority of the authorized number of directors of the
Corporation, which, so long as there is a Nominating Stockholder, must include
at least three (3) Nominated Directors, shall be required to constitute a quorum
for the transaction of business at any meeting of the Board, and all matters
shall be decided at any such meeting, a quorum being present, by the affirmative
votes of a majority of the directors present, except as otherwise provided
herein. In the absence of a quorum, a majority of directors present at any
meeting may adjourn the same from time to time until a quorum shall be present.
Notice of any adjourned meeting need not be given. The directors shall act only
as a Board, and the individual directors shall have no power as such.
SECTION 3.11. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board or of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or committee.
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SECTION 3.12. REMOVAL OF DIRECTORS AND FILLING OF VACANCIES. Any
director (including a Nominated Director and the Series Nominated Directors) may
be removed at any time, to the extent permitted under the Hawaii Business
Corporation Act, by the affirmative vote of the stockholders having a majority
of the voting power of the Corporation given at a special meeting called for
such purpose. The Board may fill vacancies caused by the removal, resignation or
death of any director, provided that, so long as there is a Nominating
Stockholder, the Board may fill a Nominated Director vacancy only with a person
nominated to the Board by the Nominating Stockholder (which person will
thereafter be deemed a Nominated Director); and, provided that, so long as there
is a holder of Series C Special Preferred Stock, the Board may fill a Series C
Director vacancy only with a person nominated to the Board by such holder; and,
provided that, so long as there is a holder of Series D Special Preferred Stock,
the Board may fill a Series D Director vacancy only with a person nominated to
the Board by such holder; and, provided that, so long as there is a holder of
Series E Special Preferred Stock, the Board may fill a Series E Director vacancy
only with a person nominated to the Board by such holder. If a vacancy is not
filled as provided in the preceding sentence within 30 days, such vacancy may be
filled by the affirmative vote of the holders of a majority of the Series B
Special Preferred Stock given at a special meeting of the holders of Series B
Special Preferred Stock called for such purpose in the case of a vacancy of a
Nominated Director, the holders of a majority of the Series C Special Preferred
Stock given at a special meeting of the holders of Series C Special Preferred
Stock called for such purpose in the case of a vacancy of a Series C Director,
the holders of a majority of the Series D Special Preferred Stock given at a
special meeting of the holders of Series D Special Preferred Stock called for
such purpose in the case of a vacancy of a Series D Director, and the holders of
a majority of the Series E Special Preferred Stock given at a special meeting of
the holders of Series E Special Preferred Stock called for such purpose in the
case of a vacancy of a Series E Director.
SECTION 3.13. COMPENSATION. The directors shall receive only such
compensation for their services as directors as may be allowed by resolution of
the Board. The Board may also provide that the Corporation shall reimburse each
such director for any expense incurred by him or her on account of his or her
attendance at any meetings of the Board or Committees of the Board. Neither the
payment of such compensation nor the reimbursement of such expenses shall be
construed to preclude any director from serving the Corporation or its
subsidiaries in any other capacity and receiving compensation therefor.
SECTION 3.14. COMMITTEES. There shall be such standing, special and ad
hoc committees of the Board, consisting of such directors of the Corporation, as
shall be designated from time to time by resolution adopted by a majority of the
authorized number of directors of the Corporation. Each committee created by
resolution of the Board shall have such duties, power and authority as may be
delegated to such committee by the Board, except as may be limited by law or by
the Corporation's Articles of Incorporation or Bylaws. Any such committee shall
keep written minutes of its meetings and report the same to the Board at the
next regular meeting of the Board.
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ARTICLE IV
OFFICERS
SECTION 4.01. NUMBER. The officers of the Corporation shall be a
Chairman of the Board, a President, one or more Vice Presidents, a Treasurer and
a Corporate Secretary. Not less than two (2) persons shall be such officers of
the Corporation.
SECTION 4.02. ELECTION, TERM OF OFFICE AND QUALIFICATIONS. The officers
shall be appointed annually by the Board at its first meeting after the annual
or special meeting of the stockholders at which the Board is elected and shall
hold office until the next annual meeting and thereafter until their successors
shall be duly appointed and qualified or until their resignation or removal in
the manner hereinafter provided. The number of Vice Presidents may be changed
from time to time by the Board at any meetings thereof and, if increased at any
time, the additional Vice President or Vice Presidents shall be appointed by the
Board.
SECTION 4.03. SUBORDINATE OFFICERS AND AGENTS. There may also be one or
more Assistant Vice Presidents, Assistant Treasurers, Assistant Secretaries and
other subordinate officers and agents who shall be appointed by the Board, each
of whom shall hold office for such period, have such authority, and perform such
duties as the Board may from time to time determine. The authority to appoint or
employ and to discharge or remove subordinate officers and agents and to fix
their powers and duties may be delegated by resolution of the Board to the
President or any officer or officers of the Corporation. The officer to whom the
power to appoint subordinate officers or agents is delegated by the Board shall
report to the Board the names and titles of all subordinate officers and agents
appointed, employed, discharged or removed by such officer. Any officer of the
Corporation may also be a subordinate officer, agent or employee.
SECTION 4.04. REMOVALS. The Board may at any time remove from office or
discharge from employment any officer, subordinate officer, agent, or employee
appointed by the Board or by any person under authority delegated by the Board.
SECTION 4.05. RESIGNATIONS. Any officer or assistant may resign at any
time by giving written notice of such resignation to the Board or the Corporate
Secretary of the Corporation. Any such resignation shall take effect at the time
specified therein, or, if the time be not specified, upon receipt thereof by the
Board or the Corporate Secretary, as the case may be; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
SECTION 4.06. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification, or other cause, may be filled for the
unexpired portion of the term thereof in the manner prescribed in these Bylaws
for regular appointments or elections to such office. In case of the temporary
disability of any officer, the Board may appoint a temporary officer to serve
during such disability.
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SECTION 4.07. CHAIRMAN OF THE BOARD. The Chairman shall preside at all
meetings of the stockholders and Board at which he or she is present, and shall
perform such other duties and have such other powers as the Board may prescribe.
SECTION 4.08. PRESIDENT. The President shall preside at all meetings of
the Board and of the stockholders at which the Chairman is absent. Subject to
the control of the Board, the President shall have general charge and care of
the business and property of the Corporation, shall appoint and discharge
employees and agents of the Corporation and determine their compensation, shall
vote the stock of other companies which is owned by the corporation and shall do
and perform such additional duties as shall be prescribed by the Board. The
President shall have the powers and perform the duties customarily incidental to
the office, and such other duties as may be given to the President elsewhere in
these Bylaws. When authorized by the Board so to do, the President may delegate
to one of the Vice Presidents the whole or any part of the general management
and care of the business and property of the Corporation, including the
employment and discharge of agents and employees.
SECTION 4.09. VICE PRESIDENTS. It shall be the duty of the Vice
Presidents to assume and perform the duties of the President in the absence or
disability of the President or whenever the office of President is vacant. Each
Vice President shall have such powers and duties as shall be prescribed by the
Board or the President or as may be given to them elsewhere in these Bylaws.
SECTION 4.10. TREASURER. The Treasurer shall be the financial and
accounting officer of the Corporation. The Treasurer shall have the powers and
perform the duties customarily incidental to the office, and such other duties
as may be given to the Treasurer elsewhere in these Bylaws or as may be assigned
to the Treasurer from time to time. The Treasurer shall have custody of all
moneys, valuable papers and documents of the Corporation, shall keep the same
for safekeeping in such depositories as may be designated by the Board and shall
expend the funds of the Corporation as directed by the Board. The Treasurer
shall keep or cause to be kept a book or books setting forth a true record of
the receipts and expenditures, assets and liabilities, losses and gains of the
Corporation and shall, when and as required by the Board, render a statement of
the financial condition of the Corporation. If required to do so by the Board,
the Treasurer shall give a bond in such amount and such surety as may be
prescribed by the Board for the faithful discharge of the Treasurer's duties.
The Treasurer shall also do and perform such additional duties as shall be
prescribed by the Board. In the absence or disability of the Treasurer, his or
her duties shall be performed by the Corporate Secretary or by an Assistant
Treasurer.
SECTION 4.11. CORPORATE SECRETARY. The Corporate Secretary shall be ex
officio secretary of the Board. The Corporate Secretary shall have the powers
and perform the duties customarily incidental to the office, and such other
duties as may be given to the Corporate Secretary elsewhere in these Bylaws or
as may be assigned to the Corporate Secretary from time to time. The Corporate
Secretary shall give or cause to be given all required notices of meetings of
the stockholders and the Board, shall record the proceedings of meetings of the
stockholders and the Board in a book or books to be
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11
kept for that purpose, shall register and transfer stock of the Corporation
under such regulations as may be prescribed by the Board and required by law,
and shall perform such other duties as may be assigned to the Corporate
Secretary from time to time by the Board or by the President. The Corporate
Secretary shall have custody of the seal of the Corporation. In the absence or
disability of the Corporate Secretary, the Corporate Secretary's duties shall be
performed by the Treasurer or by an Assistant Corporate Secretary.
SECTION 4.12. SUBORDINATE OFFICERS. The powers and duties of the
subordinate officers and agents of the Corporation shall be as prescribed by the
Board or by any person under authority delegated by the Board. In the absence or
disability of the Treasurer and Corporate Secretary, the Assistant Treasurer or
the Assistant Corporate Secretary may register and transfer stock of the
Corporation under such regulations as may be prescribed by the Board.
SECTION 4.13. COMPENSATION. The compensation of the officers of the
Corporation shall be fixed from time to time by the Board. None of such officers
shall be prevented from receiving such compensation by reason of the fact that
such officer is also a director of the Corporation. Nothing contained herein
shall preclude any officer from serving the Corporation, or any subsidiary
corporation, in any other capacity (including being a director of the
Corporation) and receiving proper compensation therefor. The authority to fix
the salaries and compensation of subordinate officers and agents may be
delegated by the Board to the President or any other officer or officers of the
Corporation.
ARTICLE V
EXECUTION OF INSTRUMENTS
SECTION 5.01. INSTRUMENTS IN GENERAL. All contracts, deeds, leases,
mortgages, agreements of sale, bills of lading, agreements and understandings to
do or perform public or private work, and all bids, tenders or proposals to
enter into any contracts, agreements or understandings with respect thereto, and
all bid or contract bonds accompanying and guaranteeing the same or any of them,
and all other instruments except as otherwise provided in these Bylaws, shall be
signed by such person or persons as shall be provided by general or special
resolution of the Board and in the absence of any such general or special
resolution applicable to any instrument, then such instrument shall be signed by
the President or any Vice President and by the Treasurer or the Corporate
Secretary.
SECTION 5.02. CHECKS, DRAFTS, ETC. All checks, drafts or other orders
for payment of money, notes or other evidence of indebtedness, issued in the
name of or payable to the Corporation, shall be signed or endorsed by such
person or persons and in such manner as, from time to time, shall be determined
by resolution of the Board, and in the absence of such resolution, then such
instrument shall be signed by the President or any Vice President and by the
Treasurer or the Corporate Secretary. Each such
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12
officer, assistant, agent or attorney shall give such bond, if any, as the Board
may require.
SECTION 5.03. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board may select, or
as may be selected by any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation to whom such power shall
have been delegated by the Board. For the purpose of deposit and for the purpose
of collection for the account of the Corporation, the President, any Vice
President or the Treasurer (or any other officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation who
shall from time to time be determined by the Board) may endorse, assign and
deliver checks, drafts and other orders for the payment of money which are
payable to the order of the Corporation.
SECTION 5.04. GENERAL AND SPECIAL BANK ACCOUNTS. The Board may from
time to time authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositories as the Board may
select or as may be selected by any officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation to whom
such power shall have been delegated by the Board. The Board may make such
special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these Bylaws, as it may deem expedient.
SECTION 5.05. FACSIMILE SIGNATURES. The Board may provide for the
execution of checks, stock certificates and other written instruments by the
printed, lithographed or engraved facsimile signature or signatures.
SECTION 5.06. SEAL. Any officer or subordinate officer of the
Corporation and any other person authorized to do so by the Board, may affix the
seal of the Corporation to any instrument and may attest the same.
ARTICLE VI
CAPITAL STOCK
SECTION 6.01. CERTIFICATES FOR STOCK. Every owner of stock of the
Corporation shall be entitled to have a certificate or certificates, to be in
such form as the Board shall prescribe and as may be required by law, certifying
the number and class of shares of the stock of the Corporation owned by such
owner. The certificates representing shares of such stock shall be numbered in
the order in which they shall be issued and shall be signed in the name of the
Corporation by the Chairman or Vice Chairman of the Board or the President or a
Vice President, and by the Treasurer or an Assistant Treasurer, or the Corporate
Secretary or an Assistant Corporate Secretary of the Corporation. Any of or all
of the signatures on the certificates may be a facsimile. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon, any such certificate, shall have ceased to be such officer,
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13
transfer agent or registrar before such certificate is issued, such certificate
may nevertheless be issued by the Corporation with the same effect as though the
person who signed such certificate, or whose facsimile signature shall have been
placed thereupon, were such officer, transfer agent or registrar at the date of
issue. A record shall be kept of the respective names of the persons, firms or
corporations owning the stock represented by such certificates, the number and
class of shares represented by such certificates, respectively, and the
respective dates thereof, and in case of cancellation, the respective dates of
cancellation. Every certificate surrendered to the Corporation for exchange or
transfer shall be canceled, and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been so canceled, except in cases provided for in Section 6.04.
SECTION 6.02. TRANSFERS. Transfers of shares of stock of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof, or by his or her attorney thereunto authorized by power of
attorney duly executed and filed with the Corporate Secretary, or with a
transfer clerk or a transfer agent appointed as provided in Section 6.03, and
upon surrender of the certificate or certificates for such shares properly
endorsed and the payment of all taxes thereon. The person in whose name shares
of stock stand on the books of the Corporation shall be deemed the owner thereof
for all purposes as regards the Corporation. The Corporation shall be entitled
to treat the holder of record of any share or shares of its capital stock as the
holder in fact thereof for any purpose whatsoever and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other claimant thereto. Whenever any transfer of shares shall be
made for collateral security, and not absolutely, such fact shall be so
expressed in the entry of transfer if, when the certificate or certificates
shall be presented to the Corporation for transfer, both the transferor and the
transferee request the Corporation to do so. Each transfer shall be recorded and
the original record or duplicate thereof shall be kept at the principal office
of the Corporation in Honolulu, Hawaii as set forth above.
SECTION 6.03. REGULATIONS. The Board may make such rules and
regulations as it may deem expedient, not consistent with these Bylaws, the
Articles of Incorporation or applicable law concerning the issue, transfer and
registration of certificates for shares of the stock of the Corporation. It may
appoint, or authorize any officer or officers to appoint, one or more transfer
clerks or one or more transfer agents and one or more registrars, and may
require all certificates for stock to bear the signature or signatures of any of
them.
SECTION 6.04. LOST STOLEN, DESTROYED AND MUTILATED CERTIFICATES. In any
case of loss, theft, destruction or mutilation of any certificate of stock,
another may be issued in its place upon proof of such loss, theft, destruction
or mutilation and upon the giving of a bond of indemnity to the Corporation in
such form and in such sum as the Board may direct, provided, however, that a new
certificate may be issued without requiring any bond when, in the judgment of
the Board, it is proper so to do.
SECTION 6.05. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
The books for the transfer of shares of the capital stock of the Corporation or
any class
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14
thereof may be closed as the Board may from time to time determine for a period
not exceeding seventy (70) days before any meeting of stockholders, or before
the day appointed for the payment of any dividend, or before any date on which
rights of any kind in or in connection with the shares of the capital stock of
the Corporation or of any class thereof are to be determined or exercised;
provided, however, that in lieu of closing the books for the transfer of shares
of the capital stock of the Corporation or of any class thereof the Board may
fix in advance a date not exceeding seventy (70) days before any such meeting,
any such payment date or any such date for the determination or exercise of
rights, as a record date for the determination of the stockholders of the
Corporation or of such class thereof entitled to notice of and to vote at any
such meeting, or entitled to receive any such dividend, or entitled to receive
or exercise any such rights in the event that the books for the transfer of
shares of the capital stock of the Corporation or of any class thereof are to be
closed, the Corporate Secretary may be directed by the Boar to give notice of
such closing to the holders of such shares.
SECTION 6.06. FOREIGN STOCK RECORD. A transfer of shares of voting
stock of the Corporation to a Foreigner shall not be valid, except between the
parties to the transfer, until the transfer shall have been (1) recorded on the
books of the Corporation as provided in Section 6.02. of Article VI of these
Bylaws and (2) recorded on the Foreign Stock Record of the Corporation as
provided in this Section 6.06. The Foreign Stock Record shall mean a record
maintained by the Corporate Secretary of the Corporation which shall record the
date of a transfer to a Foreigner, the parties to the transfer and the number
and description of the shares of voting stock transferred to a Foreigner. At no
time shall ownership or control of shares representing more than 25% of the
Corporation's voting shares be registered on the Foreign Stock Record. If at any
time the Corporation shall determine that voting shares are owned or controlled
by Foreigners who are not registered on the Foreign Stock Record, the
registration of such shares shall, subject to the limitation in the preceding
sentence, be made in chronological order in the Foreign Stock Record, based on
the date of the Corporation's finding of ownership or control of such shares by
a Foreigner. If at any time the Corporation shall determine that the number of
voting shares registered on the Foreign Stock Record exceeds 25% of the total
number of voting shares, sufficient shares shall be removed from the Foreign
Stock Record in reverse chronological order so that the number of voting shares
registered on the Foreign Stock Record does not exceed 25% of the total number
of voting shares. At no time shall shares of voting stock known by the
Corporation to be owned or controlled by Foreigners and not registered on the
Foreign Stock Record be entitled to vote until so registered. All shares of
voting stock known to the Corporation to be owned by Foreigners as of the date
of the adoption of this Section 6.06 shall be registered on the Foreign Stock
Record. The shares registered on the Foreign Stock Record pursuant to the
preceding sentence have chronological priority over any subsequent request for
the registration of additional shares of voting stock on the Foreign Stock
Record. As used in this Section 6.06, "Foreigner" means any person who is not a
Citizen of the United States as defined in Section 101(15) of the Transportation
Act, and "voting stock" means collectively the Corporation's Common Stock and
any future shares of stock of the Corporation entitled to vote on matters
generally referred to the stockholders for a vote.
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15
ARTICLE VII
DIRECTOR CONFLICTS OF INTEREST
SECTION 7.01. GENERALLY. No contract or other transaction between the
Corporation and one or more of its directors or any other corporation, firm,
association, or entity of which one or more of its directors are directors or
officers or in which one or more of its directors are financially interested, is
either void or voidable because of such relationship or interest or because such
director or directors are present at the meeting of the Board or a committee
thereof which authorizes, approves, or ratifies such contract or transaction or
because the vote or votes of such director or directors are counted for such
purpose, if:
(a) The fact of such relationship or interest is disclosed or known to
the Board or committee which authorizes, approves, or ratifies the contract or
transaction by a vote or consent sufficient for the purpose without counting the
votes or consents of such interested director or directors; or
(b) The fact of such relationship or interest is disclosed or known to
the stockholders entitled to vote and they authorize, approve or ratify such
contract or transaction by vote or written consent; or
(c) The contract or transaction is fair and reasonable to the
Corporation.
SECTION 7.02. QUORUM. Interested directors may be counted in
determining the presence of a quorum at a meeting of the Board or a committee
thereof which authorizes, approves or ratifies such contract or transaction.
SECTION 7.03. NO LIABILITY. Neither any director nor officer of the
Corporation, being so interested in any contract, transaction or act of the
Corporation which is not void or voidable pursuant to this Article VII, nor any
other corporation, firm, association or entity in which such director or officer
is a director or officer or is financially interested, is liable or accountable
to the Corporation, or to any stockholder thereof, for any loss incurred by the
Corporation pursuant to or by reason of such contract, transaction or act, or
for any gain received by any such other party pursuant thereto or by reason
thereof.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.01. ADJOURNMENT. Whenever at any meeting provided for in
these Bylaws less than a quorum shall be present or represented, such meeting
may thereupon be adjourned without notice from time to time by a majority vote
of those present or represented until a quorum shall be present or represented.
Any meeting at which a quorum is present or represented may be adjourned in the
same manner for such time as may be fixed by a majority vote at such meeting.
Whenever a quorum is present at any adjourned meeting, any business may be
transacted which could have been done at the meeting originally called.
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16
SECTION 8.02. FISCAL YEAR. The fiscal year of the Corporation shall be
as determined from time to time by the Board.
SECTION 8.03. WAIVER OF NOTICES. Whenever notice is required to be
given by these Bylaws or the Articles of Incorporation or by law, the person
entitled to said notice may waive such notice in writing, either before or after
the time stated therein, and such waiver shall be deemed equivalent to notice.
SECTION 8.04. AMENDMENTS. These Bylaws, or any of them, may be amended,
altered or repealed and new Bylaws may be adopted by the affirmative vote of a
majority of the members of the Board, subject to repeal or change by action of
the stockholders; provided however, any amendment to Section 3.02 to change the
number of directors or the qualifications of such directors, Section 3.09 to
change the special meetings provisions, Section 3.12 to change the removal of
directors and filling of vacancies, Section 7.04 to amend the Bylaws and any
other provision of these Bylaws which would, by amendment, be inconsistent with
the aforesaid Sections shall require the affirmative vote of a majority of the
directors then in office, and, so long as there is a Nominating Stockholder,
such majority must include at least one (1) Nominated Director, and, so long as
there are holders of Series C Special Preferred Stock, Series D Special
Preferred Stock and Series E Special Preferred Stock, such majority must include
at least two (2) Series Nominated Directors.
EXHIBIT 4.1
AMENDMENT NO. 4
TO
RIGHTS AGREEMENT
dated as of December 23, 1994
by and between
HAWAIIAN AIRLINES, INC.
and
CHEMICAL TRUST COMPANY OF CALIFORNIA
as Rights Agent
AMENDMENT NO. 4, dated as of August 28, 1998 (the "Amendment"), to the
Rights Agreement, dated as of December 23, 1994, as amended (the "Agreement"),
between Hawaiian Airlines, Inc., a Hawaii corporation (the "Company"), and
Chemical Trust Company of California, which has been succeeded by ChaseMellon
Shareholder Services, L.L.C., a New Jersey limited liability company, as rights
agent (the "Rights Agent"). Unless the context indicates to the contrary,
capitalized terms used and not defined herein shall have the meanings ascribed
to them in the Agreement.
Pursuant to Section 27 of the Agreement, the Board of Directors of the
Company may, from time to time, supplement or amend any provision of the
Agreement in accordance with the provisions of such Section.
This Amendment became effective on August 28, 1998, immediately upon
its approval by the Board of Directors of the Company by resolution adopted at a
meeting held on that date.
Accordingly, in consideration of the premises and mutual agreements
herein set forth, the parties hereby agree as follows:
5. All references in the Agreement to "10% Ownership Date" and "10%
Shareholder" are hereby deleted and the terms "Share Acquisition Date" and
"Acquiring Person" are substituted therefor, respectively.
6. Amendment to Section 1(hh). Section 1(hh) is hereby amended and
restated in its entirety to read as follows:
"(hh) "Acquiring Person" shall mean any Person that, together with all
Affiliates and Associates of such Person, after December 23, 1994
becomes the Beneficial Owner of such number of Voting Shares of the
Company as constitutes a percentage of the then outstanding Voting
Shares that is equal to or greater than 15%; provided, however, that
the term "Acquiring Person" shall not include: (i) an Exempt Person;
(ii) a Grandfathered Acquiring Person or a person who is a direct
transferee of Plan Distribution Shares from a Grandfathered Acquiring
Person unless as a result of another acquisition, theretofore or
thereafter consummated (regardless of whether such other acquisition is
a transfer from a Grandfathered Acquiring Person), such transferee
becomes the Beneficial
<PAGE>
2
Owner of at least 1% more than the percentage of outstanding Voting
Shares transferred directly to the transferee by such Grandfathered
Acquiring Person, (iii) any Person if such Person would not otherwise
be an Acquiring Person but for a reduction in the number of outstanding
Voting Shares resulting from a stock repurchase program or other
similar plan of the Company or from a self-tender offer of the Company,
which plan or tender offer commenced on or after December 23, 1994,
provided, however, that the term "Acquiring Person" shall include such
Person from and after the first date upon which (A) such Person, since
the date of the commencement of such plan or tender offer, shall have
acquired Beneficial Ownership of, in the aggregate, a number of Voting
Shares of the Company equal to 1% or more of the Voting Shares of the
Company then outstanding and (b) such Person, together with all
Affiliates and Associates of such Person, shall Beneficially Own 15% or
more of the Voting Shares of the Company then outstanding; (iv) Airline
Investors Partnership, L.P., a Delaware limited partnership ("AIP"), as
a result of its purchase of shares of Class A Common Stock pursuant to
a Stock Purchase Agreement by and between the Company and AIP, dated as
of December 8, 1995; or (v) any Person that the Board of Directors of
the Company has determined is not an Acquiring Person, if such
determination is prior to the tenth Business Day following the relevant
Share Acquisition Date, provided that, following such determination by
the Board of Directors of the Company, such Person shall be deemed to
be an Acquiring Person upon a public announcement, by the Company or
otherwise, including, without limitation, a report filed pursuant to
Section 13(d) of the Exchange Act, that such Person has acquired any
additional Voting Shares of the Company, if at such time such Person,
together with all Affiliates and Associates of such Person, shall
Beneficially Own 15% or more of the Voting Shares of the Company then
outstanding. In calculating the percentage of the outstanding Voting
Shares that are Beneficially Owned by a person for purposes of this
subsection (hh), Voting Shares that are Beneficially Owned by such
Person shall be deemed outstanding, and Voting Shares that are not
Beneficially Owned by such Person and that are subject to issuance upon
the exercise or conversion of outstanding conversion rights, exchange
rights, rights (other than Rights), warrants or options shall not be
deemed outstanding. Notwithstanding the foregoing, if the Board of
Directors of the Company determines in good faith that a Person that
would otherwise be an Acquiring Person pursuant to the foregoing
provisions of this Section 1(hh) and Section 1(b) hereof has become
such inadvertently, and such Person (a) promptly notifies the Board of
Directors (including, without limitation, through the filing of a
report under Section 13(d) of the Exchange Act) of such status and (b)
as promptly as practicable thereafter, either divests of a sufficient
number of Voting Shares so that such Person would no longer be an
Acquiring Person, or causes any other circumstance, such as the
existence of an agreement respecting Voting Shares, to be eliminated
such that such Person would no longer be an Acquiring Person as defined
pursuant to this
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3
Section 1(hh) and 1(b), then such Person shall not be deemed to be an
Acquiring Person for any purposes of this Agreement. Any determination
made by the Board of Directors of the Company as to whether any Person
is or is not an Acquiring Person shall be conclusive and binding upon
all holders of Rights."
7. Amendment to Section 3(a). Section 3(a) is hereby amended and
restated in its entirety as follows:
"(a) "Distribution Date" shall mean the date, after December 23, 1994,
that is the earliest of (i) the tenth Business Day (or such later day
as shall be designated by the Board of Directors of the Company)
following the date of the commencement of, or the first public
announcement of the intent of any Person, other than an Exempt Person,
to commence a tender offer or exchange offer, the consummation of which
would cause any Person to become an Acquiring Person, (ii) the tenth
Business Day (or such later day as shall be designated by the Board of
Directors of the Company) following the Share Acquisition Date, or
(iii) the date of the first Section 13(a) Event."
8. Amendment to Section 11(a)(ii). Section 11(a)(ii) is hereby amended
and restated in its entirety to read as follows:
"In the event that there is a Share Acquisition Date followed by a
Distribution Date, then, and effective as of such Distribution Date, (a
"Section 11(a)(ii) Event") proper provision shall be made so that
except as provided in Section 7(d) hereof, each holder of a Right shall
thereafter have the right to receive, upon the exercise thereof in
accordance with the terms of this Agreement and payment of the then
current Exercise Price, in lieu of the securities or other property
otherwise purchasable upon such exercise, such number of Common Shares
of the Company as shall equal the result obtained by multiplying the
then current Exercise Price by the then number of one-thousandths of a
Preferred Share for which a Right was exercisable immediately prior to
the first occurrence of a Section 11(a)(ii) Event, and dividing that
product by 50% of the Current Market Price (determined pursuant to
Section 11(d) hereof) of a Common Share on the date of the first
occurrence of the relevant Section 11(a)(ii) Event (such number of
shares being hereinafter referred to as the "Adjustment Shares")."
9. Amendment to Section 13(a). The first paragraph of Section 13(a) and
Section 13(a)(i) are hereby amended and restated in their entirety to read as
follows:
"(a) In the event that at any time on or after the Share Acquisition
Date (a "Section 13(a) Event") directly or indirectly (except pursuant
to a consolidation, merger or sale or transfer of assets or earnings
power which is approved by the Board of Directors of the Company (with
a specific
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4
resolution that this Section 13(a) is not to be applicable) and which
does not involve an Acquiring Person or an Affiliate or Associate of an
Acquiring Person or any other Person in which such Acquiring Person,
Affiliate or Associate has any interest or any other Person acting
directly or indirectly on behalf of or in association with any such
Acquiring Person, Affiliate or Associate (such an approved transaction
being referred to as an "Approved Section 13(a) Transaction")), (1) the
Company shall consolidate with or merge with and into any other Person
and the Company shall not be the continuing or surviving corporation in
such consolidation or merger, (2) any Person shall consolidate with or
merge with and into the Company and the Company shall be the continuing
or surviving corporation in such merger and, in connection with such
merger, all or part of the Common Shares shall be changed into or
exchanged for stock or other securities of any Person or cash or any
other property, or (3) the Company and/or any one or more of its
Subsidiaries shall sell or otherwise transfer, in one or more
transactions (other than transactions in the ordinary course of
business), assets or earning power aggregating more than 50% of the
assets or earning power of the Company and its Subsidiaries (taken as a
whole) to any Person or Persons other than the Company or one or more
of its wholly owned Subsidiaries (such Person, together with the
Persons described in clauses (1) and (2) above shall be collectively
referred to in this Section 13 as the "Surviving Person"), then, and in
each such case, proper provisions shall be made so that:
(i) except as provided in Section 7(d) hereof, each holder of
a Right shall thereafter have the right to receive, upon the
exercise thereof in accordance with the terms of this
Agreement and payment of the then current Exercise Price, in
lieu of the securities or other property otherwise purchasable
upon such exercise, such number of validly authorized and
issued, fully paid and nonassessable Common Shares of the
Surviving Person as shall be equal to a fraction, the
numerator of which is the product of the then current Exercise
Price multiplied by the number of one- thousandths of a
Preferred Share purchasable upon the exercise of one Right
immediately prior to the first Section 13(a) Event (or, if the
Distribution Date shall not have occurred prior to the date of
such Section 13(a) Event, the number of one-thousandths of a
Preferred Share that would have been so purchasable if the
Distribution Date had occurred on the Business Day immediately
preceding the date of such Section 13(a) Event, or, if a
Section 11(a)(ii) Event has occurred prior to such Section
13(a) Event, the product of the number of one-thousandths of a
Preferred Share purchasable upon the exercise of a Right
immediately prior to such Section 11(a)(ii) Event, multiplied
by the Exercise Price in effect immediately prior to such
Section 11(a)(ii) Event), and the denominator of which is 50%
of the Current Market Price per
<PAGE>
5
Common Share of the Surviving Person on the date of
consummation of such Section 13(a) Event;"
10. Amendment to Section 23(a). Section 23(a) is hereby amended by
deleting the phrase ", and the Company shall so redeem the Rights".
11. Amendment to Section 24. Section 24(a) is hereby amended and
restated in its entirety to read as follows:
"(a) At any time after a Share Acquisition Date followed by a
Distribution Date and prior to the first date thereafter upon which an
Acquiring Person, together with all Affiliates and Associates of such
Acquiring Person, shall be the Beneficial Owner of 50% or more of the
Voting Shares then outstanding, the Board of Directors of the Company
may, at its option, authorize and direct the exchange of all, but not
less than all, of the then outstanding Rights for Common Shares at an
exchange ratio (the "Exchange Ratio") per Right, equal to that number
of Common Shares which, as of the date of the Board of Directors'
action, has a current market price equal to the difference between the
Exercise Price and the Current Market Price of the Common Shares that
each holder of a Right would otherwise have the right to receive upon
the exercise of a Right on such date."
12. Amendment to Section 25. Section 25(b) is hereby amended and
restated in its entirety to read as follows:
"(b) Upon the occurrence of a Section 11(a)(ii) Event or a Section
13(a) Event, the Company shall as soon as practicable thereafter give
to each holder of a Right Certificate and to the Rights Agent, in
accordance with Section 26 hereof, a notice of the occurrence of such
Event, specifying the event and the consequences of the Event to
holders of Rights under Sections 11 and 13 hereof."
13. Amendment to Section 26. Section 26 is hereby amended by deleting
the addresses of the Company and the Rights Agent and substituting in lieu
thereof the following:
Hawaiian Airlines, Inc.
3375 Koapaka Street, Suite G-350
Honolulu, HI 96819
Attention: Corporate Secretary
<PAGE>
6
ChaseMellon Shareholder Services, L.L.C.
400 South Hope Street, 4th Floor
Los Angeles, CA 90071
Attention: Ian D. Gass, Assistant Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date above first written.
HAWAIIAN AIRLINES, INC.
By: /s/ Paul J. Casey
---------------------
Name: Paul J. Casey
Title: President and Chief Executive Officer
By: /s/ John L. Garibaldi
-------------------------
Name: John L. Garibaldi
Title: Executive Vice President and
Chief Financial Officer
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By: /s/ Ian D. Gass
-------------------
Name: Ian D. Gass
Title: Assistant Vice President
