-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KguE/T7tZXljkhp8pQtBxCl35qUfPBbuS/UPb0TxFU/swhvkljQKgWbFq70xJYRm qNDqcu79RMFBmVv0U9ZlOQ== 0000950142-02-000429.txt : 20020507 0000950142-02-000429.hdr.sgml : 20020507 ACCESSION NUMBER: 0000950142-02-000429 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020507 GROUP MEMBERS: AIP GENERAL PARTNER, INC. GROUP MEMBERS: AIRLINE INVESTORS PARTNERSHIP, L.P. GROUP MEMBERS: JOHN W. ADAMS SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: HAWAIIAN AIRLINES INC/HI CENTRAL INDEX KEY: 0000046205 STANDARD INDUSTRIAL CLASSIFICATION: AIR TRANSPORTATION, SCHEDULED [4512] IRS NUMBER: 990042880 STATE OF INCORPORATION: HI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-13378 FILM NUMBER: 02637084 BUSINESS ADDRESS: STREET 1: 3375 KOAPAKA ST STREET 2: STE G350 CITY: HONOLULU STATE: HI ZIP: 96819 BUSINESS PHONE: 8088353700 FORMER COMPANY: FORMER CONFORMED NAME: HAL INC /HI/ DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: HAWAIIAN AIRLINES INC DATE OF NAME CHANGE: 19850314 FORMER COMPANY: FORMER CONFORMED NAME: INTER ISLAND AIRWAYS LTD DATE OF NAME CHANGE: 19670920 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: AIRLINE INVESTORS PARTNERSHIP LP CENTRAL INDEX KEY: 0001006659 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O SMITH MANAGEMENT CO STREET 2: 885 THIRD AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2128885500 MAIL ADDRESS: STREET 1: C/O SMITH MANAGEMENT CO STREET 2: 885 THIRD AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D/A 1 sc13da4.txt SCHEDULE 13-D/AMENDMENT #4 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Amendment No. 4) Under the Securities Exchange Act of 1934 HAWAIIAN AIRLINES, INC. (Name of Issuer) COMMON STOCK, PAR VALUE $.01 PER SHARE (Title of Class of Securities) 419849-104 (CUSIP Number) Thomas X. Fritsch, Esq. 885 Third Avenue 34th Floor New York, New York 10022 Tel. No.: (212) 888-5500 With a copy to: Judith R. Thoyer, Esq. Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, New York, 10019-6064 Tel. No.: (212) 373-3000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) May 2, 2002 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [X]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). This document consists of 8 pages - ----------------------------- ----------------------------- Cusip No. 419849-104 Page 2 of 8 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Airline Investors Partnership, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS N/A - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 18,181,818 NUMBER OF ------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON ------------------------------------------------ WITH 9 SOLE DISPOSITIVE POWER 18,181,818 ------------------------------------------------ 10 SHARED DISPOSITIVE POWER - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 18,462,643 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 53.2% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- Cusip No. 419849-104 Page 3 of 8 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AIP General Partner, Inc. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS N/A - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 18,181,818 NUMBER OF ------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON ------------------------------------------------ WITH 9 SOLE DISPOSITIVE POWER 18,181,818 ------------------------------------------------ 10 SHARED DISPOSITIVE POWER - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 18,462,643 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 53.2% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- Cusip No. 419849-104 Page 4 of - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON John Adams - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS N/A - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 18,462,643 NUMBER OF ------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING -- PERSON ------------------------------------------------ WITH 9 SOLE DISPOSITIVE POWER 18,462,643 ------------------------------------------------ 10 SHARED DISPOSITIVE POWER -- - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 18,462,643 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 53.2% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- Cusip No. 419849-104 Page 5 of 8 - ----------------------------- ----------------------------- AMENDMENT NO. 4 TO SCHEDULE 13D This is Amendment No. 4 (this "AMENDMENT") to the Schedule 13D filed by the Reporting Parties with respect to the Common Stock (the "COMMON STOCK") of Hawaiian Airlines, Inc. (the "COMPANY"), dated as of January 18, 1996, as amended by Amendment No. 1, dated as of January 31, 1996, as amended by Amendment No. 2, dated as of December 19, 2001, as amended by Amendment No. 3, dated as of April 18, 2002 (the "ORIGINAL SCHEDULE 13D"). ITEM 4 PURPOSE OF THE TRANSACTION. Item 4 is amended as follows: On May 2, 2002, the Company entered into an Agreement and Plan of Merger, dated as of May 2, 2002 (the "HAWAIIAN MERGER AGREEMENT"), by and among the Company, Hawaiian Holdings, Inc. ("HOLDINGS") and HA Sub Inc. ("HA SUB"), in order to effect a reorganization of the Company into a holding company structure whereby the Company will become a subsidiary of Holdings and the shareholders of the Company will become shareholders of Holdings (the "REORGANIZATION"). Pursuant to the Hawaiian Merger Agreement, INTER ALIA, on the terms and subject to the conditions set forth therein, (i) HA Sub will merge with and into the Company, with the Company as the surviving corporation (the "HAWAIIAN MERGER"), (ii) each share of Common Stock, together with the rights to purchase the preferred stock of the Company attached thereto (other than such shares held by a wholly owned subsidiary of Holdings pursuant to the AIP Merger Agreement (as defined below)), will be converted into one share of Holdings common stock, and (iii) each share of Holdings common stock held by the Company (being the 100 shares issued upon the formation of Holdings) will be canceled. After the completion of the Reorganization, each shareholder of Holdings common stock will hold the same relative percentage of shares of Holdings as such shareholder held of Common Stock immediately prior to the Reorganization. In addition, Holdings will become a public company subject to the reporting requirements of the Exchange Act of 1934 and will apply for its shares of common stock to be listed on the American Stock Exchange and the Pacific Exchange, and the Company will no longer be a public company subject to the reporting requirements of the Exchange Act of 1934 and will cause its Common Stock and preferred stock purchase rights to be delisted from the American Stock Exchange and the Pacific Exchange. In connection with the Hawaiian Merger Agreement, AIP General Partner, Inc. ("AIP GP"), the general partner of Airline Investors Partnership, L.P. ("AIP"), and AIP, Inc. ("AIP INC."), the sole limited partner of AIP, entered into an Agreement and Plan of Merger, dated as of May 2, 2002 (the "AIP MERGER Agreement"), with Holdings and AIP Merger Sub, Inc., a wholly owned subsidiary of Holdings ("AIP MERGER SUB"), pursuant to which, INTER ALIA, on the terms and subject to the conditions set forth therein, (i) the stockholders of each of AIP GP and AIP Inc. will form a Delaware limited liability company ("AIP LLC") and contribute all of the outstanding shares of capital stock of AIP GP and AIP Inc., respectively, to AIP LLC in exchange for interests therein, (ii) AIP will transfer its shares of Series B Special Preferred Stock, par value $.01 per share, of the Company to John W. Adams, (iii) AIP GP will merge with and into AIP Inc., with AIP Inc. as the surviving corporation (the "FIRST AIP MERGER"), (iv) AIP Merger Sub will merge with and into AIP Inc., with AIP Inc. as the surviving corporation (the "SECOND AIP MERGER" and together with the First AIP Merger, the "AIP MERGERS"), and (v) AIP LLC will - ----------------------------- ----------------------------- Cusip No. 419849-104 Page 6 of 8 - ----------------------------- ----------------------------- have its shares of AIP Inc. common stock converted into Holdings common stock in an amount equal to the number of shares of Common Stock held by AIP immediately prior to the AIP Mergers. The foregoing discussion of the AIP Merger Agreement and the Hawaiian Merger Agreement is qualified in its entirety by reference to each such agreement filed as EXHIBIT 1 and EXHIBIT 2, respectively, to this Amendment and incorporated by reference herein. ITEM 6. CONTRACTS, ARANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Item 6 is hereby amended as follows: AIP has informed the Company that it intends to vote the shares of Common Stock and the special preferred stock of the Company beneficially owned by it in favor of the proposal to approve the Hawaiian Merger Agreement at the 2002 annual meeting of shareholders of the Company. In order for the Hawaiian Merger Agreement to be approved by the shareholders of the Company, the affirmative vote of holders of 75% of all issued and outstanding shares of Common Stock and special preferred stock of the Company, voting together as a single voting group, and the affirmative vote of holders of a majority of the shares of the Company's special preferred stock represented at the meeting, voting separately, is required. As of the date hereof, AIP beneficially owns approximately 52.76% of the issued and outstanding shares of Common Stock and four of the seven shares of Company's special preferred stock. The voting of all of AIP's shares in favor of the Hawaiian Merger Agreement will assure the necessary vote for the approval of the separate voting group comprised of the holders of the Company's special preferred stock. The voting of all of AIP's shares of Common Stock in favor of the Hawaiian Merger Agreement, however, is insufficient to ensure that that the 75% voting requirement required under Hawaii law will be satisfied. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. EXHIBIT DESCRIPTION ------- ----------- 1 Agreement and Plan of Merger, dated as of May 2, 2002, among AIP General Partner, Inc., AIP Inc., AIP Merger Sub, Inc. and Hawaiian Holdings, Inc. 2 Agreement and Plan of Merger, dated as of May 2, 2002, among Hawaiian Airlines, Inc., HA Sub Inc. and Hawaiian Holdings, Inc. - ----------------------------- ----------------------------- Cusip No. 419849-104 Page 7 of 8 - ----------------------------- ----------------------------- EXHIBIT INDEX EXHIBIT DESCRIPTION ------- ----------- 1 Agreement and Plan of Merger, dated as of May 2, 2002, among AIP General Partner, Inc., AIP Inc., AIP Merger Sub, Inc. and Hawaiian Holdings, Inc. 2 Agreement and Plan of Merger, dated as of May 2, 2002, among Hawaiian Airlines, Inc., HA Sub Inc. and Hawaiian Holdings, Inc. - ----------------------------- ----------------------------- Cusip No. 419849-104 Page 8 of 8 - ----------------------------- ----------------------------- SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. May 7, 2002 AIRLINE INVESTORS PARTNERSHIP, L.P. By: AIP General Partner, Inc., its general partner By: /S/ JOHN W. ADAMS -------------------------------- John W. Adams President AIP GENERAL PARTNER, INC. By: /S/ JOHN W. ADAMS -------------------------------- John W. Adams President /S/ JOHN W. ADAMS ----------------------------------- John W. Adams EX-2 3 ex1sc13da4.txt EXHIBIT 1 EXECUTION COPY ================================================================================ AGREEMENT AND PLAN OF MERGER AMONG HAWAIIAN HOLDINGS, INC., AIP GENERAL PARTNER, INC., AIP, INC. AND AIP MERGER SUB, INC. DATED AS OF MAY 2, 2002 ================================================================================ TABLE OF CONTENTS ----------------- PAGE ARTICLE I MERGER.........................................................3 Section 1.1 Merger.....................................................3 Section 1.2 Effective Time.............................................3 Section 1.3 Organizational Documents...................................4 Section 1.4 Directors and Officers.....................................4 ARTICLE II CONVERSION OF SECURITIES; ISSUANCE OF NEW SECURITIES; STOCK CERTIFICATES.................................4 Section 2.1 Conversion of Securities...................................4 Section 2.2 Stock Certificates.........................................5 ARTICLE III CONDITIONS TO MERGER...........................................5 Section 3.1 Conditions Precedent.......................................5 ARTICLE IV TERMINATION AND AMENDMENT......................................6 Section 4.1 Termination................................................6 Section 4.2 Amendment..................................................6 ARTICLE V GENERAL PROVISIONS.............................................7 Section 5.1 Governing Law..............................................7 Section 5.2 Notices....................................................7 Section 5.3 Entire Agreement...........................................7 Section 5.4 Headings...................................................8 Section 5.5 Counterparts...............................................8 Section 5.6 Assignment.................................................8 Section 5.7 Severability...............................................8 Exhibit A Form of Registration Rights Agreement...........................A-1 Exhibit B Form of Joinder to Stockholders Agreement.......................B-1 Exhibit C Form of AIP LLC Certificate.....................................C-1 GLOSSARY OF DEFINED TERMS DEFINED TERMS LOCATION - ------------- -------- Agreement................................................ Preamble AIP...................................................... Recitals AIP GP................................................... Preamble AIP GP Common Stock...................................... Section 2.1(a) AIP Inc.................................................. Preamble AIP Inc. Class A Common Stock............................ Section 2.1(b)(i) AIP Inc. Class B Common Stock............................ Section 2.1(b)(i) AIP LLC.................................................. Recitals Ancillary Agreements..................................... Recitals Certificates............................................. Section 2.2 Certificates of Merger................................... Section 1.2(a) Code..................................................... Recitals Converted Shares......................................... Section 2.2 DGCL..................................................... Recitals First Merger............................................. Recitals First Effective Time..................................... Section 1.2(a) Hawaiian................................................. Recitals Hawaiian Common Stock.................................... Recitals Hawaiian Merger.......................................... Recitals Hawaiian Merger Agreement................................ Recitals Hawaiian Merger Sub...................................... Recitals Hawaiian Series B Special Preferred Stock................ Recitals Hawaiian Shareholder Approval............................ Recitals HBCA..................................................... Recitals Hawaiian Holdings........................................ Preamble Hawaiian Holdings Common Stock........................... Section 2.1(b)(i) Joinder to the Stockholders Agreement.................... Recitals Merger Sub............................................... Preamble Mergers.................................................. Recitals Registration Rights Agreement............................ Recitals Reorganization........................................... Recitals Rights Agreement......................................... Recitals Second Effective Time.................................... Section 1.2(a) Second Merger............................................ Recitals Share.................................................... Section 2.2 Surviving Corporation.................................... Section 1.1(b) AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of May 2, 2002, by and among AIP General Partner, Inc., a Delaware corporation ("AIP GP"), AIP, Inc., a Delaware corporation ("AIP INC."), Hawaiian Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of Hawaiian ("HAWAIIAN HOLDINGS"), and AIP Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Hawaiian Holdings ("MERGER Sub"). WITNESSETH: WHEREAS, the respective Boards of Directors of Hawaiian Holdings, AIP GP, AIP Inc. and Merger Sub have each approved and adopted this Agreement and the Ancillary Agreements (as defined below) to which it is a party and the transactions contemplated by this Agreement and such Ancillary Agreements, in each case after making a determination that this Agreement and such Ancillary Agreements and such transactions are advisable and fair to, and in the best interests of, such corporation and its shareholders; WHEREAS, the Board of Directors of Hawaiian Airlines, Inc., a Hawaii corporation ("HAWAIIAN"), by resolutions adopted at the April 26, 2002 meeting of such Board of Directors, has deemed the Hawaiian Merger (as defined below) to be an "Approved Section 13(a) Transaction" and deemed AIP Inc. not to be an "Acquiring Person," in each case, under the Rights Agreement, dated December 23, 1994, by and between Hawaiian and ChaseMellon Shareholder Services, L.L.C. (as successor to Chemical Trust Company of California) (as amended, supplemented or otherwise modified from time to time, the "RIGHTS AGREEMENT"); WHEREAS, Hawaiian Holdings, in its capacity as the sole shareholder of Merger Sub, and the shareholders who hold all of the voting stock of each of AIP GP and AIP Inc. have each adopted this Agreement; WHEREAS, AIP GP is the sole general partner, and AIP Inc. is the sole limited partner, of Airline Investors Partnership, L.P., a Delaware limited partnership and the majority shareholder of Hawaiian ("AIP"); WHEREAS, (a) prior to the Effective Time (as defined below), (i) the shareholders of each of AIP GP and AIP Inc. will contribute all of the outstanding shares of capital stock of AIP GP and AIP Inc. to AIP, LLC, a Delaware limited liability company ("AIP LLC"), and become the sole holders of membership interests of AIP LLC and (ii) as permitted by Section 4(a)(i)(a) of the Designation of the Series B Special Preferred Stock, par value $.01 per share, of Hawaiian (the "HAWAIIAN SERIES B SPECIAL PREFERRED STOCK"), AIP will transfer the four shares of Hawaiian Series B Special Preferred Stock that it holds to AIP's affiliate, John W. Adams; and (b) pursuant to the transactions contemplated by this Agreement and on the terms and subject to the conditions set forth herein, INTER ALIA, (i) at the First Effective Time (as defined below), AIP GP, in accordance with the Delaware General Corporation Law (as amended from time to time, the "DGCL"), will merge with and into AIP Inc., with AIP Inc. as the surviving corporation (the "FIRST MERGER"), (ii) by reason of the First Merger, AIP Inc. will hold all of the partnership interests in AIP and AIP will therefore cease to exist, with AIP Inc. thereby becoming the direct holder of all of the shares of Common Stock, par value $.01 per share, of Hawaiian (the "HAWAIIAN COMMON STOCK") held by AIP immediately prior to the Mergers; (iii) immediately after the First Merger, at the Second Effective Time (as defined below), AIP Merger Sub, in accordance with the DGCL, will merge with and into AIP Inc., with AIP Inc. as the surviving corporation (the "SECOND MERGER" and, together with the First Merger, the "MERGERS"), and (iv) pursuant to the Second Merger, AIP LLC will have its shares of AIP Inc. Common Stock (as defined below) converted into the right to receive a number of shares of Hawaiian Holdings Common Stock (as defined below) equal to the number of shares of Hawaiian Common Stock held by AIP immediately prior to the Mergers; WHEREAS, immediately after the Effective Time, Hawaiian Holdings and AIP LLC will enter into a Registration Rights Agreement (the "REGISTRATION RIGHTS AGREEMENT"), substantially in the form attached hereto as EXHIBIT A, and a Joinder to the Stockholders Agreement (the "JOINDER TO THE STOCKHOLDERS AGREEMENT"), substantially in the form attached hereto as Exhibit B (collectively, with the Hawaiian Merger Agreement (as defined below), the "ANCILLARY AGREEMENTS"); WHEREAS, Hawaiian Holdings, Hawaiian and HA Sub Inc., a Hawaii corporation and a wholly owned subsidiary of Hawaiian Holdings ("HAWAIIAN MERGER SUB"), have entered into an Agreement and Plan of Merger (the "HAWAIIAN MERGER AGREEMENT"), dated as of the date hereof, pursuant to which, INTER ALIA, (i) Hawaiian Merger Sub, in accordance with the Hawaii Business Corporation Act (as amended from time to time, the "HBCA"), will merge with and into Hawaiian, with Hawaiian as the surviving corporation (the "HAWAIIAN MERGER" and, together with the Second Merger, the "REORGANIZATION"), and (ii) each share of the capital stock of Hawaiian (other than shares of Hawaiian capital stock held by AIP, Inc.) will be converted into the right to receive one share of Hawaiian Holdings Common Stock; WHEREAS, the consummation of the Hawaiian Merger requires, among other things, the approval of the Hawaiian Merger Agreement by the affirmative vote of (i) 75% of the outstanding shares of Hawaiian Common Stock and Hawaiian Special Preferred Stock, voting as a single voting group and (ii) a majority of the outstanding shares of Hawaiian Special Preferred Stock represented at the Annual Meeting (as defined below), voting as a single voting group (collectively, the "HAWAIIAN SHAREHOLDER APPROVAL"); and WHEREAS, it is the intention of the parties hereto that the Reorganization shall be a tax-free transaction under Section 351 of the Internal Revenue Code of 1986, as amended (the "CODE"), and the rules and regulations promulgated thereunder. NOW, THEREFORE, in furtherance of the foregoing, the parties agree as follows: 2 ARTICLE I MERGER Section 1.1 MERGER. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL: (a) AIP GP shall be merged with and into AIP Inc. at the First Effective Time. Following the First Effective Time, the separate corporate existence of AIP GP shall cease, and AIP Inc. shall continue as the surviving corporation. The effects and consequences of the First Merger shall be as set forth in this Agreement and the DGCL. (b) Merger Sub shall be merged with and into AIP Inc. at the Second Effective Time. Following the Second Effective Time, the separate corporate existence of Merger Sub shall cease, and AIP Inc. shall continue as the surviving corporation (the "SURVIVING CORPORATION"), becoming a wholly owned subsidiary of Hawaiian Holdings. The effects and consequences of the Second Merger shall be as set forth in this Agreement and the DGCL. Section 1.2 EFFECTIVE TIME. (a) Subject to the provisions of this Agreement, as soon as practicable following the satisfaction or waiver of the conditions set forth in Section 3.1, the parties shall duly prepare, execute and file certificates of merger (the "CERTIFICATES OF MERGER") complying with Section 251(c) of the DGCL with the Secretary of State of the State of Delaware with respect to the Mergers. The First Merger shall become effective upon the filing of the Certificate of Merger relating to the First Merger (or at such later time reflected in such Certificate of Merger as shall be agreed to by AIP GP and AIP Inc.). The date and time when the First Merger shall become effective is hereinafter referred to as the "FIRST EFFECTIVE TIME." The Second Merger shall become effective upon the filing of the Certificate of Merger relating to the Second Merger (or at such later time reflected in such Certificate of Merger as shall be agreed to by AIP Inc. and Hawaiian Holdings). The date and time when the Second Merger shall become effective is hereinafter referred to as the "SECOND EFFECTIVE TIME." (b) The Mergers shall have the effects set forth in the DGCL, including without limitation, Section 259 of the DGCL. Without limiting the generality of the foregoing, and subject thereto, from the Second Effective Time, (i) all the properties, rights, privileges, immunities, powers and franchises of AIP Inc., AIP GP and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities, obligations and duties of AIP Inc., AIP GP and Merger Sub shall become the debts, liabilities, obligations and duties of the Surviving Corporation. (c) A Certificate of Cancellation shall be filed with the Secretary of State of the State of Delaware immediately after the First Effective Time to evidence the dissolution of AIP in the public record. 3 Section 1.3 ORGANIZATIONAL DOCUMENTS. The Certificate of Incorporation and the Bylaws of Merger Sub in effect at the Second Effective Time shall become the Certificate of Incorporation and Bylaws of the Surviving Corporation until thereafter amended as provided therein or by the DGCL; PROVIDED, HOWEVER, that Article I of such Certificate of Incorporation shall provide that the name of the Surviving Corporation shall be "AIP, Inc." Section 1.4 DIRECTORS AND OFFICERS. The directors and officers of Merger Sub immediately prior to the Second Effective Time shall be the directors of the Surviving Corporation from and after the Second Effective Time and shall hold office until the earlier of their respective death, resignation or removal or their respective successors are duly elected or appointed and qualified in the manner provided for in the Certificate of Incorporation and Bylaws of the Surviving Corporation, or as otherwise provided by the DGCL. ARTICLE II CONVERSION OF SECURITIES; ISSUANCE OF NEW SECURITIES; STOCK CERTIFICATES Section 2.1 CONVERSION OF SECURITIES. (a) At the First Effective Time, by virtue of the First Merger and without any action on the part of the holders of shares of Common Stock, par value $.01 per share, of AIP GP ("AIP GP COMMON STOCK"), each share of AIP GP Common Stock issued and outstanding immediately prior to the First Effective Time shall be canceled and extinguished without any conversion thereof and no payment shall be made with respect thereto. (b) At the Second Effective Time, by virtue of the Second Merger and without any action on the part of the holders of shares of AIP Inc. Common Stock: (i) each share of Class A Common Stock, par value $.01 per share, of AIP Inc. (the "AIP INC. CLASS A COMMON STOCK") and each share of Class B Common Stock, par value $.01 per share, of AIP Inc. (the "AIP INC. CLASS B COMMON STOCK" and, collectively with the AIP Inc. Class A Common Stock, the "AIP INC. COMMON STOCK"), issued and outstanding immediately prior to the Second Effective Time, shall be converted into the right to receive a number of validly issued, fully paid and nonassessable shares of Common Stock, par value $.01 per share, of Hawaiian Holdings (the "HAWAIIAN HOLDINGS COMMON STOCK") equal to the number obtained by dividing (A) the number of shares of Hawaiian Common Stock issued and outstanding immediately prior to the First Effective Time and held by AIP by (B) 1000; and (ii) each share of common stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall convert into one validly issued, fully paid and nonassessable share of common stock, par value $.01 per share, of the Surviving Corporation. 4 Section 2.2 STOCK CERTIFICATES. As soon as practicable after the Second Effective Time, AIP Inc. shall cause AIP LLC to surrender to Hawaiian Holdings or its transfer agent, in accordance with a letter of transmittal to be delivered to AIP LLC, the certificate or certificates (the "CERTIFICATES") that immediately prior to the Second Effective Time evidenced outstanding shares of capital stock of AIP Inc. (each, a "SHARE"), including, without limitation, AIP Inc. Class A Common Stock and AIP Inc. Class B Common Stock, that were converted (the "CONVERTED SHARES") into the right to receive shares of Hawaiian Holdings Common Stock pursuant to Section 2.1(b). Upon surrender of a Certificate to Hawaiian Holdings or such transfer agent for cancellation, together with a duly executed letter of transmittal and such other documents as Hawaiian Holdings or such transfer agent shall require, the holder of such Certificate shall be entitled to receive in exchange therefor one or more shares of Hawaiian Holdings Common Stock representing, in the aggregate, the whole number of shares that such holder has the right to receive pursuant to Section 2.1(b) after taking into account all shares of AIP Inc. Common Stock then held by such holder. Each Certificate surrendered pursuant to the previous sentence shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall, after the Second Effective Time, be deemed to represent only the right to receive shares of Hawaiian Holdings Common Stock, and until such surrender or exchange, no such shares of Hawaiian Holdings Common Stock shall be delivered to the holder of such outstanding Certificate in respect thereof. ARTICLE III CONDITIONS TO MERGER Section 3.1 CONDITIONS PRECEDENT. The respective obligation of each party to effect the Mergers is subject to the satisfaction or waiver of each of the following conditions: (a) The Hawaiian Merger Agreement shall have received the Hawaiian Shareholder Approval. (b) Each party to the Hawaiian Merger Agreement shall have satisfied or waived each condition to the consummation of the Hawaiian Merger set forth in Article III of the Hawaiian Merger Agreement. (c) Each of the parties to the Registration Rights Agreement shall have executed and delivered such agreement substantially in the form attached hereto as EXHIBIT A. (d) Each of Hawaiian Holdings and AIP LLC shall have executed and delivered the Joinder to the Stockholders Agreement substantially in the form attached hereto as EXHIBIT B or such other instrument amending the applicable stockholders agreement that has, INTER ALIA, the same effect as the Joinder to the Stockholders Agreement. 5 (e) AIP LLC shall have executed and delivered the certificate substantially in the form attached hereto as EXHIBIT C. (f) AIP Inc. shall have received a written opinion from Paul, Weiss, Rifkind, Wharton & Garrison to the effect that (i) holders of AIP Inc. Common Stock will not recognize any gain or loss on the exchange of such AIP Inc. Common Stock for Hawaiian Holdings Common Stock and (ii) the Reorganization will constitute a tax-free transaction under Section 351 of Code. (g) No court or governmental entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any law or order (whether temporary, preliminary or permanent) that is in effect and has a material adverse effect on Hawaiian or AIP or enjoins or otherwise prohibits consummation of the transactions contemplated by this Agreement and no judicial or administrative proceeding that seeks any such result shall continue to be pending. (h) All required approvals, licenses and certifications from, and notifications and filings to, governmental entities and non-governmental third parties shall have been obtained or made, as applicable. (i) The shares of Hawaiian Holdings Common Stock issuable in the Mergers pursuant to Article II and such other shares to be reserved for issuance in connection with the Mergers shall have been authorized for listing on the American Stock Exchange and the Pacific Exchange, subject only to official notice of issuance. ARTICLE IV TERMINATION AND AMENDMENT Section 4.1 TERMINATION. This Agreement may be terminated at any time prior to the Effective Time by the affirmative vote of two-thirds of the boards of directors of each of Hawaiian Holdings, AIP GP and AIP Inc. (with the consent of two-thirds of the board of directors of Hawaiian). In the event of such termination, this Agreement shall become null and void and have no effect, without any liability or obligation on the part of AIP GP, AIP Inc., Merger Sub or Hawaiian Holdings to each other or to Hawaiian by reason of this Agreement. Section 4.2 AMENDMENT. This Agreement may be amended, modified or supplemented at any time; PROVIDED, HOWEVER, that after any such approval, there shall be made no amendment that (a) alters or changes the amount or kind of shares to be received by shareholders in the Mergers; (b) alters or changes any term of the Certificate of Incorporation or Bylaws of the Surviving Corporation, except for alterations or changes that could otherwise be adopted by the directors of the Surviving Corporation, or (c) alters or changes any other terms and conditions of this Agreement if any of the alterations or changes, alone or in the aggregate, would materially adversely affect the holders of shares of AIP Inc. Common Stock. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties. 6 ARTICLE V GENERAL PROVISIONS Section 5.1 GOVERNING LAW. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to contracts to be made and performed entirely therein without giving effect to the principles of conflicts of law thereof or of any other jurisdiction. Section 5.2 NOTICES. All notices, consents and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered by hand or by Federal Express or a similar overnight courier or (b) when successfully transmitted by telecopier (with a confirming copy of such communication to be sent as provided in clauses (a) or (b) above) to the party for whom intended, at the address or telecopier number for such party set forth below (or at such other address or telecopier number for a party as shall be specified by like notice, provided, however, that any notice of change of address or telecopier number shall be effective only upon receipt): If to AIP GP and AIP Inc., to: Airline Investors Partnership, L.P. c/o Smith Management LLC 885 Third Avenue, 34th Floor New York, New York 10022 Telecopier No: (212) 751-9501 If to Hawaiian Holdings or Merger Sub, to: Hawaiian Holdings, Inc. 3375 Koapaka Street, Suite G-350 Honolulu, Hawaii 96819-1869 Telecopier No. (808) 835-3690 Attention: Secretary Copies of all notices, requests, permissions, waivers, referrals and all other communications hereunder given prior to the Effective Time shall be given to: Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, New York 10019-6064 Telecopier No. (212) 757-3990 Attention: Judith R. Thoyer, Esq. Section 5.3 ENTIRE AGREEMENT. This Agreement (including the documents and the instruments referred to herein), together with all exhibits, schedules, appendices, certificates, instruments and agreements delivered pursuant hereto and 7 thereto (a) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, and (b) except as provided herein, is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder. Section 5.4 HEADINGS. Headings of the articles and sections of this Agreement, the table of contents are for convenience of the parties only, and shall be given no substantive or interpretative effect whatsoever. Section 5.5 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be deemed to be an original and all of which shall together be considered one and the same agreement. Section 5.6 ASSIGNMENT. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective permitted successors and assigns. Section 5.7 SEVERABILITY. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 8 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. HAWAIIAN HOLDINGS, INC. By: /S/ JOHN W. ADAMS ------------------------------- Name: John W. Adams Title: President AIP GENERAL PARTNER, INC. By: /S/ JOHN W. ADAMS ------------------------------- Name: John W. Adams Title: President AIP, INC. By: /S/ JOHN W. ADAMS ------------------------------- Name: John W. Adams Title: President AIP MERGER SUB, INC. By: /S/ JOHN W. ADAMS ------------------------------- Name: John W. Adams Title: President EX-2 4 ex2sc13da4.txt EXHIBIT 2 ================================================================================ AGREEMENT AND PLAN OF MERGER AMONG HAWAIIAN HOLDINGS, INC., HAWAIIAN AIRLINES, INC. AND HA SUB INC. DATED AS OF MAY 2, 2002 ================================================================================ TABLE OF CONTENTS ----------------- PAGE ARTICLE I MERGER.........................................................3 Section 1.1 Merger.....................................................3 Section 1.2 Effective Time.............................................3 Section 1.3 Organizational Documents...................................3 Section 1.4 Directors..................................................4 Section 1.5 Officers...................................................4 ARTICLE II CONVERSION OF SECURITIES; ISSUANCE OF NEW SECURITIES; STOCK CERTIFICATES.................................4 Section 2.1 Conversion of Securities...................................4 Section 2.2 Stock Certificates.........................................5 Section 2.3 Issuance of Special Preferred Stock........................5 Section 2.4 Stock Options; 401(k) Plans................................6 Section 2.5 Dissenting Shares..........................................6 ARTICLE III CONDITIONS TO MERGER...........................................7 Section 3.1 Conditions Precedent.......................................7 ARTICLE IV TERMINATION AND AMENDMENT......................................8 Section 4.1 Termination................................................8 Section 4.2 Amendment..................................................8 ARTICLE V GENERAL PROVISIONS.............................................8 Section 5.1 Governing Law..............................................8 Section 5.2 Notices....................................................8 Section 5.3 Entire Agreement...........................................9 Section 5.4 Headings...................................................9 Section 5.5 Counterparts..............................................10 Section 5.6 Assignment................................................10 Section 5.7 Severability..............................................10 Exhibit A Form of Amended and Restated Certificate of Incorporation of Hawaiian Holdings, Inc.....................................A-1 Exhibit B Form of Amended Bylaws of Hawaiian Holdings, Inc................B-1 GLOSSARY OF DEFINED TERMS DEFINED TERMS LOCATION - ------------- -------- Agreement................................................. Preamble AIP GP.................................................... Recitals AIP Inc................................................... Recitals AIP LLC................................................... Recitals AIP Merger Agreement...................................... Recitals AIP Merger Sub............................................ Recitals AIP Mergers............................................... Recitals Ancillary Agreements...................................... Recitals Annual Meeting............................................ Section 3.1(a) Articles of Merger........................................ Section 1.2(a) Code...................................................... Recitals DGCL...................................................... Section 1.3(a) Dissenting Shares......................................... Section 2.5(a) Effective Time............................................ Section 1.2(a) First AIP Merger.......................................... Recitals Hawaiian Holdings......................................... Preamble Hawaiian Holdings Common Stock............................ Section 2.1(a) Hawaiian Holdings Series A Special Preferred Stock........ Section 2.3(a) Hawaiian Holdings Series B Special Preferred Stock........ Section 2.3(b) Hawaiian Holdings Series C Special Preferred Stock........ Section 2.3(b) Hawaiian Holdings Series D Special Preferred Stock........ Section 2.3(b) Hawaiian Holdings Special Preferred Stock................. Section 2.3(b) Hawaiian.................................................. Preamble Hawaiian Common Stock..................................... Section 2.1(a) Hawaiian Option........................................... Section 2.4(a) Hawaiian Option Plans..................................... Section 2.4(a) Hawaiian Series B Special Preferred Stock................. Section 2.1(b) Hawaiian Series C Special Preferred Stock ................ Section 2.1(b) Hawaiian Series D Special Preferred Stock................. Section 2.1(b) Hawaiian Series E Special Preferred Stock................. Section 2.1(b) Hawaiian Shareholder Approval............................. Recitals HBCA...................................................... Recitals Joinder to the Stockholders Agreement..................... Recitals Merger.................................................... Recitals Merger Sub................................................ Preamble Pilot Allocation Agreement................................ Section 2.4(b) Registration Rights Agreement............................. Recitals Reorganization............................................ Recitals Rights Agreement.......................................... Recitals Second AIP Merger......................................... Recitals Securities Act............................................ Section 2.4(a) Surviving Corporation..................................... Section 1.1 AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of May 2, 2002, by and among Hawaiian Airlines, Inc., a Hawaii corporation ("HAWAIIAN"), Hawaiian Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of Hawaiian ("HAWAIIAN HOLDINGS"), and HA Sub Inc., a Hawaii orporation and a wholly owned subsidiary of Hawaiian Holdings ("MERGER SUB"). WITNESSETH: WHEREAS, the respective Boards of Directors of Hawaiian Holdings, Hawaiian and Merger Sub have each approved and adopted this Agreement and the Ancillary Agreements (as defined below) to which it is a party and the transactions contemplated by this Agreement and such Ancillary Agreements, including, without limitation, the reorganization of Hawaiian into a Delaware holding company structure, in each case after making a determination that this Agreement and such Ancillary Agreements and such transactions are advisable and fair to, and in the best interests of, such corporation and its shareholders; WHEREAS, the Board of Directors of Hawaiian, by resolutions adopted at the April 26, 2002 meeting of such Board of Directors, has deemed the Merger (as defined below) to be an "Approved Section 13(a) Transaction" and deemed AIP Inc. (as defined below) not to be an "Acquiring Person," in each case, under the Rights Agreement, dated December 23, 1994, by and between Hawaiian and ChaseMellon Shareholder Services, L.L.C. (as successor to Chemical Trust Company of California) (as amended, supplemented or otherwise modified from time to time, the "RIGHTS AGREEMENT"); WHEREAS, Hawaiian Holdings, in its capacity as the sole shareholder of Merger Sub has adopted and approved this Agreement; WHEREAS, Hawaiian Holdings, AIP Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Hawaiian Holdings ("AIP MERGER SUB"), AIP General Partner, Inc., a Delaware corporation ("AIP GP") (which is the sole general partner of Airline Investors Partnership, L.P., a Delaware limited partnership and the majority shareholder of Hawaiian ("AIP")), and AIP, Inc., a Delaware corporation ("AIP INC.") (which is the sole limited partner of AIP), have entered into an Agreement and Plan of Merger (the "AIP MERGER AGREEMENT"), dated as of the date hereof, pursuant to which, INTER ALIA, (a) prior to the effective time of the AIP Mergers (as defined below), (i) the shareholders of each of AIP GP and AIP Inc. will contribute all of the outstanding shares of capital stock of AIP GP and AIP Inc. to AIP, LLC, a Delaware limited liability company ("AIP LLC") and become the sole holders of membership interests of AIP LLC and (ii) as permitted by Section 4(a)(i)a) of the Designation of the Hawaiian Series B Special Preferred Stock (as defined below), AIP will transfer the four shares of Hawaiian Series B Special Preferred Stock (as defined below) that it holds to AIP's affiliate, John W. Adams; and (b) prior to the Effective Time (as defined below), (i) AIP GP will merge with and into AIP Inc., with AIP Inc. as the surviving corporation (the "FIRST AIP MERGER"), as a result of which AIP Inc. will hold all of the partnership interests in AIP and AIP will therefore cease to exist, with AIP Inc. thereby becoming the direct holder of all of the shares of Hawaiian Common Stock (as defined below) held by AIP immediately prior thereto, (ii) immediately after the First AIP Merger, AIP Merger Sub will merge with and into AIP Inc., with AIP Inc. as the surviving corporation (the "SECOND AIP MERGER" and, together with the First AIP Merger, the "AIP MERGERS"), and (iii) pursuant to the Second AIP Merger, AIP LLC will have its shares of AIP Inc. converted into the right to receive a number of shares of Hawaiian Holdings Common Stock (as defined below) equal to the number of shares of Hawaiian Common Stock held by AIP immediately prior to the AIP Mergers; WHEREAS, at the Effective Time, pursuant to the transactions contemplated by this Agreement and on the terms and subject to the conditions set forth herein, INTER ALIA, (i) Merger Sub, in accordance with the Hawaii Business Corporation Act (as amended from time to time, the "HBCA"), will merge with and into Hawaiian, with Hawaiian as the surviving corporation (the "MERGER" and, together with the Second AIP Merger, the "REORGANIZATION"), (ii) each share of Hawaiian Common Stock (other than such shares held by AIP Inc., which shares shall continue to be outstanding and held by AIP Inc. as a wholly owned subsidiary of Hawaiian Holdings) will be converted into the right to receive one share of Hawaiian Holdings Common Stock, (iii) each share of Hawaiian Special Preferred Stock (as defined below) will be converted into the right to receive one share of Hawaiian Holdings Common Stock, and (iv) each share of Hawaiian Holdings Common Stock held by Hawaiian (being the 100 shares issued upon the formation of Hawaiian Holdings) will be canceled; WHEREAS, immediately after the Effective Time, Hawaiian Holdings and AIP LLC will enter into a Registration Rights Agreement, substantially in the form attached as EXHIBIT A to the AIP Merger Agreement, and a Joinder to the Stockholders Agreement, substantially in the form attached as Exhibit B to the AIP Merger Agreement (collectively, with the AIP Merger Agreement, the "ANCILLARY AGREEMENTS"); WHEREAS, the consummation of the Merger requires, among other things, the approval of this Agreement by the affirmative vote of (i) 75% of the outstanding shares of Hawaiian Common Stock and Hawaiian Special Preferred Stock, voting as a single voting group and (ii) a majority of the outstanding shares of Hawaiian Special Preferred Stock represented at the Annual Meeting (as defined below), voting as a single voting group (collectively, the "HAWAIIAN SHAREHOLDER APPROVAL"); and WHEREAS, it is the intention of the parties hereto that the Reorganization shall be a tax-free transaction under Section 351 of the Internal Revenue Code of 1986, as amended (the "CODE"), and the rules and regulations promulgated thereunder. NOW, THEREFORE, in furtherance of the foregoing, the parties agree as follows: 2 ARTICLE I MERGER Section 1.1 MERGER. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the HBCA, Merger Sub shall be merged with and into Hawaiian at the Effective Time (as defined below) of the Merger. Following the Effective Time of the Merger, the separate corporate existence of Merger Sub shall cease, and Hawaiian shall continue as the surviving corporation (the "SURVIVING CORPORATION"), becoming a wholly owned subsidiary, directly and indirectly, of Hawaiian Holdings. The effects and the consequences of the Merger shall be as set forth in this Agreement and the HBCA. Section 1.2 EFFECTIVE TIME. (a) Subject to the provisions of this Agreement, as soon as practicable following the satisfaction or waiver of the conditions set forth in Section 3.1, the parties shall duly prepare, execute and file articles of merger (the "ARTICLES OF MERGER") complying with Section 414-315 of the HBCA with the Director of the Department of Commerce and Consumer Affairs of the State of Hawaii. The Merger shall become effective upon the filing of the Articles of Merger (or at such later time reflected in such Articles of Merger as shall be agreed to by Hawaiian Holdings and Hawaiian). The date and time when the Merger shall become effective is hereinafter referred to as the "EFFECTIVE TIME." (b) The Merger shall have the effects set forth in the HBCA, including without limitation, Section 414-316 of the HBCA. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, (i) all the properties, rights, privileges, immunities, powers and franchises of Hawaiian and Merger Sub shall vest in the Surviving Corporation, and (ii) all debts, liabilities, obligations and duties of Hawaiian and Merger Sub shall become the debts, liabilities, obligations and duties of the Surviving Corporation. Section 1.3 ORGANIZATIONAL DOCUMENTS. (a) The parties shall cause (i) the Certificate of Incorporation of Hawaiian Holdings to be amended and restated to be in the form set forth in EXHIBIT A hereto and (ii) the Bylaws of Hawaiian Holdings to be amended and restated to be in the form set forth in EXHIBIT B hereto, in each case as of immediately prior to the effective time of the AIP Mergers. As so amended and restated, the Certificate of Incorporation and the Bylaws of Hawaiian Holdings shall be the Certificate of Incorporation and Bylaws of Hawaiian Holdings until thereafter changed or amended either (A) as provided therein or by the Delaware General Corporation Law (as amended from time to time, the "DGCL"), in the case of such Certificate of Incorporation, or (B) as provided therein, by the Certificate of Incorporation or by the DGCL, in the case of such Bylaws. (b) The Articles of Incorporation and the Bylaws of Merger Sub in effect at the Effective Time shall become the Articles of Incorporation and Bylaws of the Surviving Corporation until thereafter amended as provided therein or by the HBCA; 3 PROVIDED, HOWEVER, that Article I of such Articles of Incorporation shall provide that the name of the Surviving Corporation shall be "Hawaiian Airlines, Inc." Section 1.4 DIRECTORS. The directors of Hawaiian immediately prior to the Effective Time shall be the directors of each of Hawaiian Holdings and the Surviving Corporation from and after the Effective Time and shall hold office until the earlier of their respective death, resignation or removal or their respective successors are duly elected or appointed and qualified in the manner provided for in the Certificate of Incorporation and Bylaws of Hawaiian Holdings, or as otherwise provided by the DGCL (in the case of the directors of Hawaiian Holdings), and in the Articles of Incorporation and Bylaws of the Surviving Corporation, or as otherwise provided by the HBCA (in the case of the directors of the Surviving Corporation). Section 1.5 OFFICERS. The officers of Hawaiian immediately prior to the Effective Time shall be the officers of each of Hawaiian Holdings and the Surviving Corporation from and after the Effective Time and shall hold office until the earlier of their respective death, resignation or removal or their respective successors are duly elected or appointed and qualified in the manner provided for in the Certificate of Incorporation and Bylaws of Hawaiian Holdings, or as otherwise provided by the DGCL (in the case of the officers of Hawaiian Holdings), and in the articles of incorporation and bylaws of the Surviving Corporation, or as otherwise provided by the HBCA (in the case of the officers of the Surviving Corporation). ARTICLE II CONVERSION OF SECURITIES; ISSUANCE OF NEW SECURITIES; STOCK CERTIFICATES Section 2.1 CONVERSION OF SECURITIES. At the Effective Time, by virtue of the Merger and without any action on the part of the holders of shares of Hawaiian Common Stock and Hawaiian Special Preferred Stock: (a) each share of Hawaiian Common Stock, par value $.01 per share, of Hawaiian, together with the rights associated with such shares pursuant to the Rights Agreement ("HAWAIIAN COMMON STOCK"), issued and outstanding immediately prior to the Effective Time (other than any shares of Hawaiian Common Stock held by AIP Inc., which shares shall continue to be outstanding, and each Dissenting Share (as defined below)) shall be converted into the right to receive one validly issued, fully paid and nonassessable share of Common Stock, par value $.01 per share, of Hawaiian Holdings ("HAWAIIAN HOLDINGS COMMON STOCK"); (b) each share of (i) Series B Special Preferred Stock, par value $.01 per share, of Hawaiian ("HAWAIIAN SERIES B SPECIAL PREFERRED STOCK"), (ii) Series C Special Preferred Stock, par value $.01 per share, of Hawaiian ("HAWAIIAN SERIES C SPECIAL PREFERRED STOCK"), (iii) Series D Special Preferred Stock, par value $.01 per share, of Hawaiian ("HAWAIIAN SERIES D SPECIAL PREFERRED STOCK"), and (iv) Series E Special Preferred Stock, par value $.01 per share, of Hawaiian ("HAWAIIAN SERIES E SPECIAL 4 PREFERRED STOCK" and, collectively with the foregoing, "HAWAIIAN SPECIAL PREFERRED STOCK") issued and outstanding immediately prior to the Effective Time shall be converted into the right to receive one validly issued, fully paid and nonassessable share of Hawaiian Holdings Common Stock; (c) each share of capital stock of Hawaiian Holdings, including, without limitation, Hawaiian Holdings Common Stock, that is issued, outstanding and held by Hawaiian immediately prior to the Effective Time shall be canceled and extinguished without any conversion thereof and no payment shall be made with respect thereto; and (d) each share of common stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall convert into a number of validly issued, fully paid and nonassessable shares of common stock, par value $.01 per share, of the Surviving Corporation equal to the number obtained by dividing (i) the number of shares of Hawaiian Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of Hawaiian Common Stock held by AIP Inc.) by (ii) 1000. Section 2.2 STOCK CERTIFICATES. From and after the Effective Time, subject to Section 2.1, all of the outstanding certificates which immediately prior to the Effective Time represented shares of Hawaiian Common Stock and shares of Hawaiian Special Preferred Stock shall be deemed for all purposes to evidence ownership of, and to represent, shares of Hawaiian Holdings Common Stock into which the shares of Hawaiian Common Stock and Hawaiian Special Preferred Stock formerly represented by such certificates have been converted as provided in this Agreement. The registered owner on the books and records of Hawaiian Holdings or its transfer agent of any outstanding stock certificate shall, until such certificate shall have been surrendered for transfer or otherwise accounted for to Hawaiian Holdings or its transfer agent, have and be entitled to exercise any voting and other rights with respect to, and to receive any dividends and other distributions upon, the shares of Hawaiian Holdings Common Stock evidenced by such outstanding certificates which prior to the Merger represented shares of Hawaiian Common Stock and Special Preferred Stock as provided above. Section 2.3 ISSUANCE OF SPECIAL PREFERRED STOCK. (a) Immediately following the Effective Time, Hawaiian Holdings shall issue to AIP LLC four validly issued, fully paid and nonassessable shares of Series A Special Preferred Stock, par value $.01 per share, of Hawaiian Holdings ("HAWAIIAN HOLDINGS SERIES A SPECIAL PREFERRED STOCK"). (b) Immediately following the Effective Time, pursuant to the applicable collective bargaining agreement which shall continue to be binding on the Surviving Corporation by operation of law, Hawaiian Holdings shall issue (i) to the Association of Flight Attendants one validly issued, fully paid and nonassessable share of Series B Special Preferred Stock, par value $.01 per share, of Hawaiian Holdings ("HAWAIIAN HOLDINGS SERIES B SPECIAL PREFERRED STOCK"), (ii) to the International Association of Machinists and Aerospace Workers one validly issued, fully paid and nonassessable share of Series C Special Preferred Stock, par value $.01 per share, of 5 Hawaiian Holdings ("HAWAIIAN HOLDINGS SERIES C SPECIAL PREFERRED STOCK") and (iii) to the Hawaiian Master Executive Council c/o the Air Line Pilots Association, International one validly issued, fully paid and nonassessable share of Series D Special Preferred Stock, par value $.01 per share, of Hawaiian Holdings ("HAWAIIAN HOLDINGS SERIES D SPECIAL PREFERRED STOCK" and, collectively with the foregoing and the Hawaiian Holdings Series A Special Preferred Stock, the "HAWAIIAN HOLDINGS SPECIAL PREFERRED STOCK"). (c) The rights, preferences and privileges of the shares of Hawaiian Holdings Special Preferred Stock issued pursuant to this Section 2.3 shall be as set forth in the Certificate of Incorporation attached hereto as EXHIBIT A. Section 2.4 STOCK OPTIONS; 401(K) PLANS. (a) Hawaiian Holdings shall assume sponsorship of each of Hawaiian's 1994 Stock Option Plan, as amended, Hawaiian's 1996 Stock Incentive Plan, as amended, Hawaiian's 1996 Nonemployee Director Stock Option Plan, as amended (collectively, the "HAWAIIAN OPTION PLANS"). In addition, each option to purchase Hawaiian Common Stock (each a "HAWAIIAN OPTION") issued under a Hawaiian Option Plan or granted by Hawaiian outside of the Hawaiian Option Plans that is outstanding and unexercised immediately prior to the Effective Time shall, as of such time, be assumed by Hawaiian Holdings in such a manner that it is converted into an option to acquire, on substantially similar terms and conditions as were applicable under the respective Hawaiian Option Plans and the underlying option agreements (as modified by this Section 2.4), that number of shares of Hawaiian Holdings Common Stock equal to the number of shares of Hawaiian Common Stock subject to such Hawaiian Option at an exercise price per share equal to the exercise price per share for such Hawaiian Option immediately prior to the Effective Time. As soon as reasonably practicable, Hawaiian Holdings shall file a registration statement under the Securities Act of 1933, as amended (the "SECURITIES ACT") on Form S-8 with respect to the shares of Hawaiian Holdings Common Stock subject to such assumed options or otherwise available under the Hawaiian Option Plans. (b) From and after the Effective Time, each pilot participant eligible to receive a share of Hawaiian Common Stock under Hawaiian's Pilots' 401(k) Plan and that certain Stock Allocation Agreement, dated May, 2001 (collectively referred to herein as the "PILOT ALLOCATION AGREEMENT") from the Stock Pool (as defined under such Pilot Allocation Agreement), shall be eligible to receive one share of Hawaiian Holdings Common Stock, and otherwise on the same terms and conditions as were applicable, under the Pilot Allocation Agreement. Section 2.5 DISSENTING SHARES. (a) Notwithstanding any provision of this Agreement to the contrary, any Hawaiian Share held by a holder who has exercised dissenters' rights for such shares in accordance with the HBCA and who, as of the Effective Time, has not effectively withdrawn or lost such dissenters' rights ("DISSENTING SHARES"), shall not be converted into or represent a right to receive shares of Hawaiian Holdings Common Stock in the Merger, but the holder thereof shall only be entitled to such rights as are granted by the HBCA. 6 (b) Notwithstanding the provisions of Section 2.5(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) his dissenters' rights, then, as of the later of the Effective Time and the occurrence of such event, such holder's shares shall automatically be converted into and represent only the right to receive shares of Hawaiian Holdings Common Stock, without interest thereon, upon surrender of the certificate or certificates representing such Dissenting Shares. ARTICLE III CONDITIONS TO MERGER Section 3.1 CONDITIONS PRECEDENT. The respective obligation of each party to effect the Merger is subject to the satisfaction or waiver of each of the following conditions: (a) The Hawaiian Shareholder Approval shall have been obtained at the 2002 Annual Meeting of the shareholders of Hawaiian (the "ANNUAL MEETING"). (b) The AIP Mergers shall have been consummated in accordance with the AIP Merger Agreement. (c) The registration statement on Form S-4 filed with the Securities and Exchange Commission by Hawaiian Holdings in connection with the issuance of shares of Hawaiian Holdings Common Stock in the Merger shall have become effective under the Securities Act, and shall not be the subject of any stop order or proceedings seeking a stop order. (d) Hawaiian shall have received a written opinion from Paul, Weiss, Rifkind, Wharton & Garrison to the effect that (i) holders of Hawaiian Common Stock and Hawaiian Special Preferred Stock will not recognize any gain or loss on the exchange of such Hawaiian Common Stock and Hawaiian Special Preferred Stock for Hawaiian Holdings Common Stock and (ii) the Reorganization will constitute a tax-free transaction under Section 351 of Code. (e) No court or governmental entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any law or order (whether temporary, preliminary or permanent) that is in effect and has a material adverse effect on Hawaiian or enjoins or otherwise prohibits consummation of the transactions contemplated by this Agreement and no judicial or administrative proceeding that seeks any such result shall continue to be pending. (f) All required approvals, licenses and certifications from, and notifications and filings to, governmental entities and non-governmental third parties shall have been obtained or made, as applicable. (g) The shares of Hawaiian Holdings Common Stock issuable in the Merger pursuant to Article II and such other shares to be reserved for issuance in 7 connection with the Merger shall have been authorized for listing on the American Stock Exchange and the Pacific Exchange, subject only to official notice of issuance. ARTICLE IV TERMINATION AND AMENDMENT Section 4.1 TERMINATION. This Agreement may be terminated at any time prior to the Effective Time, whether before or after the Hawaiian Shareholder Approval, by the affirmative vote of two-thirds of the boards of directors of each of Hawaiian Holdings and Hawaiian. In the event of such termination, this Agreement shall become null and void and have no effect, without any liability or obligation on the part of Hawaiian, Merger Sub or Hawaiian Holdings by reason of this Agreement. Section 4.2 AMENDMENT. This Agreement may be amended, modified or supplemented at any time before or after the Hawaiian Shareholder Approval; PROVIDED, HOWEVER, that after any such approval and prior to the Effective Time, there shall be made no amendment that (a) alters or changes the amount or kind of shares to be received by shareholders in the Merger or by AIP LLC or its affiliates in the AIP Mergers; (b) alters or changes any term of the Certificate of Incorporation or Bylaws of Hawaiian Holdings or the articles of incorporation or bylaws of the Surviving Corporation, except for alterations or changes that could otherwise be adopted by the directors of Hawaiian Holdings or the Surviving Corporation, as applicable; or (c) alters or changes any other terms and conditions of this Agreement if any of the alterations or changes, alone or in the aggregate, would materially adversely affect the holders of shares of Hawaiian Common Stock. This Agreement may not be amended except after approval by a majority of the board of directors of Hawaiian and evidenced by an instrument in writing signed on behalf of each of the parties. ARTICLE V GENERAL PROVISIONS Section 5.1 GOVERNING LAW. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to contracts to be made and performed entirely therein without giving effect to the principles of conflicts of law thereof or of any other jurisdiction, except to the extent that provisions of the HBCA are mandatorily applicable. Section 5.2 NOTICES. All notices, consents and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered by hand or by Federal Express or a similar overnight courier or (b) when successfully transmitted by telecopier (with a confirming copy of such communication to be sent as provided in clauses (a) or (b) above) to the party for whom intended, at the address or telecopier number for such party set forth below (or at such other address or telecopier number for a party as shall be specified by like notice, provided, however, that 8 any notice of change of address or telecopier number shall be effective only upon receipt): If to Merger Sub, to: HA Sub Inc. 3375 Koapaka Street, Suite G-350 Honolulu, Hawaii 96819-1869 Telecopier No. (808) 835-3690 Attention: Secretary If to Hawaiian, to: Hawaiian Airlines, Inc. 3375 Koapaka Street, Suite G-350 Honolulu, Hawaii 96819-1869 Telecopier No. (808) 835-3690 Attention: General Counsel If to Hawaiian Holdings, to: Hawaiian Holdings, Inc. 3375 Koapaka Street, Suite G-350 Honolulu, Hawaii 96819-1869 Telecopier No. (808) 835-3690 Attention: Secretary Copies of all notices, requests, permissions, waivers, referrals and all other communications hereunder given prior to the Effective Time shall be given to: Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, New York 10019-6064 Telecopier No. (212) 757-3990 Attention: Judith R. Thoyer, Esq. Section 5.3 ENTIRE AGREEMENT. This Agreement (including the documents and the instruments referred to herein), together with all exhibits, schedules, appendices, certificates, instruments and agreements delivered pursuant hereto and thereto (a) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, and (b) except as provided herein, is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder. Section 5.4 HEADINGS. Headings of the articles and sections of this Agreement, the table of contents are for convenience of the parties only, and shall be given no substantive or interpretative effect whatsoever. 9 Section 5.5 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be deemed to be an original and all of which shall together be considered one and the same agreement. Section 5.6 ASSIGNMENT. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective permitted successors and assigns. Section 5.7 SEVERABILITY. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 10 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. HAWAIIAN HOLDINGS, INC. By: /S/ JOHN W. ADAMS ------------------------------- Name: John W. Adams Title: President HAWAIIAN AIRLINES, INC. By: /S/ PAUL J. CASEY ------------------------------- Name: Paul J. Casey Title: Vice Chairman, Chief Executive Officer and President By: /S/ CHRISTINE R. DEISTER ------------------------------- Name: Christine R. Deister Title: Executive Vice President and Chief Financial Officer HA SUB INC. By: /S/ CHRISTINE R. DEISTER ------------------------------- Name: Christine R. Deister Title: Vice President, Treasurer By: /S/ LYN F. ANZAI ------------------------------- Name: Lyn F. Anzai Title: Vice President, Secretary -----END PRIVACY-ENHANCED MESSAGE-----