<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 31, 1998
REGISTRATION NO.333-69665
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO.1 TO
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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<S> <C>
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)
------------------------
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. //
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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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<S> <C> <C> <C> <C>
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 (a), may determine.
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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.
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<S> <C>
SEC Registration Fee . . . . . . . . . . . . . . . . $ 4,565.08
American Stock Exchange and Pacific Exchange . . . .
Application Fees . . . . . . . . . . . . . . . . . 0.00
Legal fees and expenses* . . . . . . . . . . . . . . 9,500.00
Accounting fees and expenses*. . . . . . . . . . . . 10,000.00
Blue sky fees and expenses*. . . . . . . . . . . . . 0.00
Miscellaneous. . . . . . . . . . . . . . . . . . . . 7,000.00
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TOTAL* $31,065.08
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* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 415[cad 220]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.
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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[cad 220]effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
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(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.
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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
Amendment No. 1 to the registration statement on Form S-3 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City and County
of Honolulu, State of Hawaii, on this 31st day of December, 1998.
HAWAIIAN AIRLINES, INC.
By: /s/ PAUL J. CASEY
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Paul J. Casey
President and Chief Executive Officer
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.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ PAUL J. CASEY Director, President and
- --------------------- Chief Executive Officer
Paul J. Casey (Principal Executive Officer) December 31, 1998
/s/ JOHN L. GARIBALDI Executive Vice President
- --------------------- and Chief Financial]
John L. Garibaldi Officer (Principal
Accounting and
Financial Officer) December 31, 1998
/s/ JOHN W. ADAMS Director, Chairman of the
- --------------------- Board
John W. Adams December 31, 1998
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ TODD G. COLE
- ------------------------- Director December 31, 1998
Todd G. Cole
/s/ ROBERT G. COO
- ------------------------- Director December 31, 1998
Robert G. Coo
/s/ WILLIAM BOYCE LUM
- ------------------------- Director December 31, 1998
William Boyce Lum
/s/ RENO F. MORELLA
- ------------------------- Director December 31, 1998
Reno F. Morella
/s/ ARTHUR J. PASMAS
- ------------------------- Director December 31, 1998
Arthur J. Pasmas
/s/ SAMSON POOMAIHEALANI
- ------------------------- Director December 31, 1998
Samson Poomaihealani
/s/ EDWARD Z. SAFADY
- ------------------------- Director December 31, 1998
Edward Z. Safady
/s/ SHARON L. SOPER
- ------------------------- Director December 31, 1998
Sharon L. Soper
/s/ THOMAS J. TRZANOWSKI
- ------------------------- Director December 31, 1998
Thomas J. Trzanowski
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