-----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, Ndn80fOBplWDXug7M3ABKRtEMsQy1v8sZEzK+hgLsYuI1CyHJgl/uAWQw6ewkSup OrsiGBgkwn8Je+q7UB4Yzg== 0000950142-98-000718.txt : 19980915 0000950142-98-000718.hdr.sgml : 19980915 ACCESSION NUMBER: 0000950142-98-000718 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19980828 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980914 SROS: AMEX FILER: 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: 8-K SEC ACT: SEC FILE NUMBER: 001-08836 FILM NUMBER: 98708945 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 8-K 1 FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported) August 28, 1998 HAWAIIAN AIRLINES, INC. (Exact name of registrant as specified in its charter) HAWAII 1-8836 99-0042880 (state or other jurisdiction (Commission (I.R.S. employer of incorporation) file number) identification no.) 3375 Koapaka Street, Suite G350 Honolulu, HI 96819-1869 (Address of principal executive offices) (Zip code) Registrant's telephone number, including area code (808) 835-3700 2 ITEM 5. OTHER EVENTS By-Law Amendments. On August 28, 1998, the Board of Directors of Hawaiian Airlines, Inc. (the "Registrant") amended the by-laws of the Registrant with respect to certain procedural matters including (1) stockholder requests for special meetings, (2) notice of stockholders meetings, (3) advance notice of stockholder proposals to be brought before a stockholders meting, (4) elections of directors other than at a stockholders meeting, (5) emergency special meetings of the Board of Directors, (6) delegation by the Board of Directors of the authority to appoint or discharge the subordinate officers or agents, (7) appointment of temporary officers in the event of temporary disability of an officer, (8) incidental powers of the President, Treasurer and Corporate Secretary, (9) delegation by the Board of Directors of authority to fix salaries and compensation of subordinate officers and agents and (10) Registrant's right to treat the holder of record of its capital stock as the holder in fact of such shares. In addition, the by-laws of the Registrant were amended to include a statement of the Registrant's policy on directors' conflicts of interest. A copy of the Registrant's Amended and Restated By-Laws is attached hereto as Exhibit 3.1 and is incorporated herein by reference. Amendments to Rights Agreement. On August 28, 1998, the Board of Directors of the Registrant also approved Amendment No. 4 (the "Amendment") to the Rights Agreement, dated as of December 23, 1994 (the "Rights Agreement"), between the Registrant and the Rights Agent (currently ChaseMellon Shareholder Services, L.L.C., as successor to Chemical Trust Company of California). Unless the context indicates to the contrary, terms used and not defined herein shall have the meanings ascribed to them in the Rights Agreement. The Rights Agreement was filed as an exhibit to a Current Report on Form 8-K, dated December 23, 1994, and is incorporated herein by reference. Amendment No. 1 to the Rights Agreement was filed as Exhibit 4 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 1995 and is incorporated herein by reference. Amendment No. 2 to the Rights Agreement was filed as Exhibit 4 to the Registrant's Annual Report on Form 10-K for the year ended December 31, 1995 and is incorporated herein by reference. Amendment No. 3 to the Rights Agreement was filed as an exhibit to a Current Report on Form 8-K, dated May 21, 1998 and is incorporated herein by reference. The Amendment modifies the Rights Agreement in order to, among other things, (i) increase the triggering percentage of the Rights from 10% to 15%, (ii) delete all references in the Rights Agreement to the terms "10% 3 Ownership Date" and "10% Shareholder" and substitute therefor, respectively, the terms "Share Acquisition Date" and "Acquiring Person," (iii) amend the definition of the term "Distribution Date" in order to allow the Board of Directors of the Registrant to extend the date on which the Rights are distributed and (iv) integrate the foregoing changes in certain other related sections of the Rights Agreement. A copy of the Amendment is attached hereto as Exhibit 4.1 and is incorporated herein by reference. ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS (c) Exhibits Exhibit 3.1 Amended By-Laws of the Registrant, dated as of August 28, 1998. Exhibit 4.1 Amendment No. 4, dated as of August 28, 1998, to the Rights Agreement, dated as of December 23, 1994, between the Registrant and its Rights Agent. 4 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. HAWAIIAN AIRLINES, INC. Dated: September 11, 1998 By: /s/ John L. Garibaldi ------------------------- John L. Garibaldi Executive Vice President and Chief Financial Officer EX-3.1 2 EXHIBIT 3.1 EXHIBIT 3.1 AMENDED BYLAWS OF HAWAIIAN AIRLINES, INC. (AS OF AUGUST 28, 1998) ARTICLE I OFFICES AND SEAL SECTION 1.01. PRINCIPAL OFFICE. The principal office of Hawaiian Airlines, Inc. (the "Corporation") shall be at 3375 Koapaka Street, Suite G-350, Honolulu, Island of Oahu, State of Hawaii. SECTION 1.02. OTHER OFFICES. In addition to its principal office at Honolulu, Hawaii, the Corporation may also have an office or offices in such other place or places, either within or without the State of Hawaii, as the Board of Directors of the Corporation (the "Board") may from time to time determine or as the business of the corporation may require. SECTION 1.03. CORPORATE SEAL. The Corporation shall have a corporate seal in such form as shall be determined by the Board. ARTICLE II STOCKHOLDERS' MEETINGS SECTION 2.01. ANNUAL MEETING. Annual meetings of the stockholders of the Corporation for the purpose of electing directors and for the transaction of such other proper business as may come before such meetings may be held at such time, date and place as the Board shall determine by resolution. At the annual meeting, the stockholders entitled to vote for the election of directors shall elect the directors to hold office until the next annual meeting and thereafter until their successors shall be duly elected and qualified and, subject to any requirements of law or of the Articles of Incorporation or of these Bylaws with respect to notice, may transact any other business which may be brought before the meeting and take any other corporate action. SECTION 2.02. SPECIAL MEETING. Special meetings of the stockholders shall be called by the Corporate Secretary upon written request of the holders of not less than one-tenth (1/10) of the then issued and outstanding common stock of the Corporation entitled to vote at such meeting filed with the Corporate Secretary of the Corporation, or upon the resolution of the Board. A request by a stockholder or stockholders for a special meeting must contain a brief description of the business to be brought before the special meeting, the reasons for conducting such business at such meeting and any material interest in such business of the person making the request. At any special meeting, such business shall be brought before the stockholders and may be transacted as shall have been specified in the notice of such meeting, but any other business may be 2 transacted subject to any requirements of law or of the Articles of Incorporation or of these Bylaws with respect to notice. SECTION 2.03. PLACE OF MEETINGS. All meetings of the stockholders shall be held at such places, within or without the State of Hawaii, as may from time to time be designated by the person or persons calling the respective meeting and specified in the respective notices or waivers of notice thereof. SECTION 2.04. NOTICE OF MEETINGS. Written notice specifying the time and place of the stockholders' meeting, whether annual or special and, if a special meeting, the nature of the business to be considered, shall be given to each stockholder entitled to vote at such meeting not less than ten (10) nor more than seventy (70) days prior to the date set for such meeting, either by serving the same upon the stockholder personally or by mailing the same to the stockholder at the stockholder's last known address as shown on the records of the Corporation. If mailed, such notice is deemed to be delivered when deposited in the United States mail addressed to the stockholder at the stockholder's address as it appears in the stock transfer books of the Corporation, with postage thereon prepaid. Nonreceipt of such notice by any stockholder shall not invalidate any business done at any meeting, either annual or special, at which a quorum is present. Any stockholder may, prior to, at the meeting or subsequent thereto, waive notice of any meeting in writing signed by the stockholder or a duly authorized attorney-in-fact of the stockholder. Except as otherwise expressly required by law, notice of any adjourned meeting of the stockholders need not be given if the time and place thereof are announced at the meeting at which the adjournment is taken. SECTION 2.05. QUORUM. The holders of record of a majority in voting interest of the shares of stock of the Corporation entitled to be voted thereat, present in person or by proxy, shall constitute a quorum for the transaction of business at any meeting of the stockholders of the Corporation or any adjournment thereof. Any decision of a majority of such quorum shall be valid and binding upon the Corporation, except as otherwise specifically provided by law, the Articles of Incorporation, or these Bylaws. SECTION 2.06. VOTING. The holders of Common Stock shall have all the voting rights provided under the Hawaii Business Corporation Act for voting common stock except as otherwise provided in the Articles of Incorporation. Each stockholder shall, at each meeting of the stockholders, be entitled to vote in person or by proxy each share of the stock of the Corporation having voting rights on the matter in question and which shall have been held by such stockholder and registered in the stockholder's name on the books of the Corporation. All proxies shall be in writing, and any telegraphic, photographic, photostatic or equivalent reproduction or telecopier copy shall constitute for all purposes a sufficient writing appointing a proxy. SECTION 2.07. CONDUCT OF MEETINGS OF STOCKHOLDERS BY PRESIDING OFFICER. Subject to applicable law, the Articles of Incorporation or these Bylaws, the officer of the Corporation who is the presiding officer at any meeting of the stockholders of the Corporation shall have the power (A) to determine the procedure to be following 3 in presenting and voting upon all business that may be transacted at the meeting and (B) to adjourn a meeting, duly called and noticed, at which a quorum is present in person or by proxy if a matter to be considered and acted upon at the meeting requires the affirmative vote of more than a majority of shares represented at the meeting voting in person or by proxy and at the meeting as originally duly called and noticed (i) the number of shares voted in person or by proxy in favor of such matter is insufficient to approve it and (ii) the number of shares voted in person or by proxy against such matter is insufficient to disapprove it. Shares which are voted in person or by proxy as abstaining from voting on any such matter shall be deemed not to have voted on such matter for the purposes of this section. At any adjourned meeting which has been adjourned by the presiding officer as provided in this section, any business may be transacted which could have been transacted at the meeting as originally called if a quorum is present. SECTION 2.08. NO CUMULATIVE VOTING. Whenever the Corporation shall have a class of equity securities registered pursuant to the Securities Exchange Act of 1934, as amended, which are either listed on a national securities exchange or traded over-the-counter on the National Market System of the National Association of Securities Dealers, Inc. Automated Quotation System, no holders of shares of any class of capital stock of the Corporation shall be entitled to cumulate votes in the election of directors. SECTION 2.09. ACTION WITHOUT MEETING. Whenever the vote of stockholders at a meeting thereof is required or permitted to be taken in connection with any corporate action permitted by any section of Chapter 415, Hawaii Revised Statutes, as the same now exists or may be amended from time to time, the meeting and vote of stockholders may be dispensed with if all of the stockholders who would have been entitled to vote upon the action if the meeting were held, consent in writing to the corporate action being taken. SECTION 2.10. STOCKHOLDER PROPOSALS. At any annual meeting of stockholders, only such business shall be conducted as shall have been specified in the notice of meeting (or supplement thereto) given, or otherwise properly brought, by or at the direction of the Board, or otherwise properly brought by a stockholder in accordance with this Section (such business brought by a stockholder is referred to herein as "stockholder business"). In addition to all other applicable requirements, all proposals of stockholder business must be made by written notice given by or on behalf of a stockholder of record (the "Notice of Business"). The Notice of Business must be delivered personally to, or mailed to, and received at the principal executive offices of the Corporation, addressed to the attention of the Corporate Secretary, not less than thirty (30) nor more than sixty (60) days prior to the annual meeting; provided however, that if less than forty (40) days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, the Notice of Business must be received no later than the close of business on the tenth (10th) day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made. Such Notice of Business shall set forth (i) the name and record address of the stockholder proposing such stockholder business, (ii) the class and number of shares of capital stock held of record, held beneficially and represented by proxy held by such person as of the 4 record date for the meeting and as of the date of such Notice of Business, (iii) a brief description of the stockholder business desired to be brought before the annual meeting and the reasons for conducting such stockholder business at the annual meeting, (iv) any material interest of the stockholder in such stockholder business, and (v) all other information that would be required to be filed with the Securities and Exchange Commission if the person proposing such stockholder business were a participant in a solicitation subject to Section 14 of the Securities Exchange Act of 1934, as amended. Notwithstanding anything in these Bylaws to the contrary, no stockholder business shall be conducted at the annual meeting of stockholders except in accordance with the procedures set forth in this Section; provided, however, that nothing in this Section shall be deemed to preclude discussion by any stockholder of any business properly brought before the annual meeting in accordance with said procedures. The chairman of the meeting shall, if the facts warrant, determine and declare to the meeting, that business was not properly brought before the meeting in accordance with the foregoing procedures and, if so determined, shall declare to the meeting that any such business not properly brought before the meeting shall not be transacted. ARTICLE III BOARD OF DIRECTORS SECTION 3.01. GENERAL POWERS. Subject to instructions by the stockholders and to any limitations provided by law or set forth in the Articles of Incorporation or in these Bylaws, the Board shall have full power to control and direct the business and affairs of the Corporation and to exercise all the powers and perform all the acts which the Corporation may legally exercise and perform. The Board may appoint committees as deemed appropriate in carrying out its purposes. SECTION 3.02. NUMBER AND QUALIFICATIONS. The number of directors shall be eleven (11). The qualifications of directors shall be as set forth in Clauses (A) through (G) of this Section 3.02. (A) At any time that there is a holder of record of one (1) or more shares of Series B Special Preferred Stock (the "Nominating Stockholder") and the Nominating Stockholder is the holder of record of at least 35% of the outstanding common equity interest of the stock of the Corporation, six (6) directors (the "Nominated Directors") shall have been identified to the Board by the Nominating Stockholder for nomination to the Board. If the Nominating Stockholder is the holder of record of at least 25% but less than 35% of the outstanding common equity interest of the stock of the Corporation, five (5) Nominated Directors shall have been identified to the Board by the Nominating Stockholder for nomination to the Board and one (1) director who is not (a) employed by the Corporation, (b) affiliated with the Nominating Stockholder, (c) affiliated with the Corporation's labor unions and (d) affiliated with AMR Corporation (the "Outside Director") shall have been nominated by the Board. If the Nominating Stockholder is the holder of record of at least 10% but less than 25% of the outstanding common equity interest of the stock of the Corporation, 5 four (4) Nominated Directors shall have been identified to the Board by the Nominating Stockholder for nomination to the Board and two (2) Outside Directors shall have been nominated by the Board. If the Nominating Stockholder is the holder of record of at least 5% but less than 10% of the outstanding common equity interest of the stock of the Corporation, three (3) Nominated Directors shall have been identified to the Board by the Nominating Stockholder for nomination to the Board and three (3) Outside Directors shall have been nominated by the Board. If the Nominating Stockholder is the holder of record of less than 5% of the outstanding common equity interest of the stock of the Corporation, no Nominated Directors shall have been identified to the Board by the Nominating Stockholder for nomination to the Board and six (6) Outside Directors shall have been nominated by the Board. The "outstanding common equity interest" shall mean outstanding Common Stock, any outstanding Class A Common Stock and Class A Common Stock to be issued upon exercise, conversion or exchange of outstanding warrants, stock options or convertible stock, or other securities exercisable, convertible or exchangeable into Class A Common Stock (without taking into effect of any anti-dilution provisions in such securities). (B) At any time there is a holder of record of one (1) share of Series C Special Preferred Stock, one director shall have been identified to the Board by such holder for nomination to the Board (the "Series C Director"). (C) At any time there is a holder of record of one (1) share of Series D Special Preferred Stock, one director shall have been identified to the Board by such holder for nomination to the Board (the "Series D Director"). (D) At any time there is a holder of record of one (1) share of Series E Special Preferred Stock, one director shall have been identified to the Board by such holder for nomination to the Board (the "Series E Director" and together with the Series C Director and the Series D Director, the "Series Nominated Directors"). (E) At all times, one Outside Director shall have been nominated by the Board, such Outside Director to be in addition to any Outside Directors referred to above. (F) At all times, one director who is a senior management official of the Corporation shall have been nominated by the Board. (G) Directors need not be stockholders. Each of the directors of the Corporation shall hold office until his or her successor shall have been duly elected and shall qualify or until he or she shall resign or shall have been removed in the manner hereinafter provided. 6 SECTION 3.03. ELECTION OF DIRECTORS. The directors shall be elected annually by the stockholders of the Corporation at the annual meeting of stockholders. In the case of failure to elect the directors at an annual meeting, the directors may be elected at a special meeting held thereafter or by written consent in accordance with Section 2.09 of these Bylaws. SECTION 3.04. RESIGNATIONS. Any director of the Corporation may resign at any time by giving written notice to the Board, the Chairman of the Board, or to the Corporate Secretary of the Corporation. Any such resignation shall take effect at the time specified therein, or, if the time is not specified, it shall take effect immediately upon its receipt; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 3.05. VACANCIES. Any vacancy in the Board, whether because of death, resignation, disqualification, an increase in the number of directors or any other cause may be filled by vote of the majority of the remaining directors, although less than a quorum. Each director so chosen to fill a vacancy shall hold office until his or her successor shall have been elected and shall qualify or until he or she shall resign or shall have been removed in the manner hereinafter provided, except that a director chosen by reason of an increase in the number of directors may serve a term of office continuing only until the next election of directors by stockholders. SECTION 3.06. PLACE OF MEETINGS, ETC. The Board may hold any of its meetings at such place or places within or without the State of Hawaii as the Board may from time to time by resolution designate or as shall be designated by the person or persons calling the meeting or in the notice or a waiver of notice of any such meeting. Directors may participate in any regular or special meeting of the Board by means of conference telephone or similar communications equipment pursuant to which all persons participating in the meeting of the Board can hear each other, and such participation shall constitute presence in person at such meeting. SECTION 3.07. FIRST MEETING. The Board shall meet as soon as practicable after each annual election of directors and notice of such first meeting shall not be required. SECTION 3.08. REGULAR MEETINGS. Regular meetings of the Board may be held at such times as the Board shall from time to time by resolution determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held, then the meeting shall be held at the same hour and place on the next succeeding business day not a legal holiday. Except as provided by law, notice of regular meetings need not be given. SECTION 3.09. SPECIAL MEETINGS. Special meetings of the Board shall be held whenever called by the President, the Chairman of the Board or a majority of the authorized number of directors of the Corporation. Special meetings of the Board shall be held whenever called by the Nominating Stockholder if necessary under the Articles 7 of Incorporation or Section 3.12 of these Bylaws to fill the vacancy of a Nominated Director. Special meetings of the Board shall be held whenever called by the holder of the Series C Special Preferred Stock if necessary under the Articles of Incorporation or Section 3.12 of these Bylaws to fill the vacancy of the Series C Director. Special meetings of the Board shall be held whenever called by the holder of the Series D Special Preferred Stock if necessary under the Articles of Incorporation or Section 3.12 of these Bylaws to fill the vacancy of the Series D Director. Special meetings of the Board shall be held whenever called by the holder of the Series E Special Preferred Stock if necessary under the Articles of Incorporation or Section 3.12 of these Bylaws to fill the vacancy of the Series E Director. Except as otherwise provided by law or by these Bylaws, notice of the time and place of each such special meeting shall be mailed to each director, addressed to each director at such director's residence or usual place of business, at least five (5) days before the day on which the meeting is to be held, or shall be sent to each director at such place by telecopier or be delivered personally not less than twenty-four (24) hours before the time at which the meeting is to be held; provided, however, that, in the event the Chairman of the Board, the President or any executive vice president of the Corporation determines in his or her reasonable judgment that the Board should take action or deliberate concerning an emergency situation on less than twenty-four (24) hours' notice, notice of the time and place of a special meeting to consider such situation shall be sent to the directors' residence or usual place of business by telecopier or delivered personally not less than three (3) hours before the time at which the meeting is to be held. Except where otherwise required by law or by these Bylaws, notice of the purpose of a special meeting need not be given. Notice of any meeting of the Board shall not be required to be given to any director who is present at such meeting, except a director who shall attend such meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. SECTION 3.10. QUORUM. Except as otherwise provided in these Bylaws or by law, the presence of a majority of the authorized number of directors of the Corporation, which, so long as there is a Nominating Stockholder, must include at least three (3) Nominated Directors, shall be required to constitute a quorum for the transaction of business at any meeting of the Board, and all matters shall be decided at any such meeting, a quorum being present, by the affirmative votes of a majority of the directors present, except as otherwise provided herein. In the absence of a quorum, a majority of directors present at any meeting may adjourn the same from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given. The directors shall act only as a Board, and the individual directors shall have no power as such. SECTION 3.11. ACTION BY CONSENT. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. 8 SECTION 3.12. REMOVAL OF DIRECTORS AND FILLING OF VACANCIES. Any director (including a Nominated Director and the Series Nominated Directors) may be removed at any time, to the extent permitted under the Hawaii Business Corporation Act, by the affirmative vote of the stockholders having a majority of the voting power of the Corporation given at a special meeting called for such purpose. The Board may fill vacancies caused by the removal, resignation or death of any director, provided that, so long as there is a Nominating Stockholder, the Board may fill a Nominated Director vacancy only with a person nominated to the Board by the Nominating Stockholder (which person will thereafter be deemed a Nominated Director); and, provided that, so long as there is a holder of Series C Special Preferred Stock, the Board may fill a Series C Director vacancy only with a person nominated to the Board by such holder; and, provided that, so long as there is a holder of Series D Special Preferred Stock, the Board may fill a Series D Director vacancy only with a person nominated to the Board by such holder; and, provided that, so long as there is a holder of Series E Special Preferred Stock, the Board may fill a Series E Director vacancy only with a person nominated to the Board by such holder. If a vacancy is not filled as provided in the preceding sentence within 30 days, such vacancy may be filled by the affirmative vote of the holders of a majority of the Series B Special Preferred Stock given at a special meeting of the holders of Series B Special Preferred Stock called for such purpose in the case of a vacancy of a Nominated Director, the holders of a majority of the Series C Special Preferred Stock given at a special meeting of the holders of Series C Special Preferred Stock called for such purpose in the case of a vacancy of a Series C Director, the holders of a majority of the Series D Special Preferred Stock given at a special meeting of the holders of Series D Special Preferred Stock called for such purpose in the case of a vacancy of a Series D Director, and the holders of a majority of the Series E Special Preferred Stock given at a special meeting of the holders of Series E Special Preferred Stock called for such purpose in the case of a vacancy of a Series E Director. SECTION 3.13. COMPENSATION. The directors shall receive only such compensation for their services as directors as may be allowed by resolution of the Board. The Board may also provide that the Corporation shall reimburse each such director for any expense incurred by him or her on account of his or her attendance at any meetings of the Board or Committees of the Board. Neither the payment of such compensation nor the reimbursement of such expenses shall be construed to preclude any director from serving the Corporation or its subsidiaries in any other capacity and receiving compensation therefor. SECTION 3.14. COMMITTEES. There shall be such standing, special and ad hoc committees of the Board, consisting of such directors of the Corporation, as shall be designated from time to time by resolution adopted by a majority of the authorized number of directors of the Corporation. Each committee created by resolution of the Board shall have such duties, power and authority as may be delegated to such committee by the Board, except as may be limited by law or by the Corporation's Articles of Incorporation or Bylaws. Any such committee shall keep written minutes of its meetings and report the same to the Board at the next regular meeting of the Board. 9 ARTICLE IV OFFICERS SECTION 4.01. NUMBER. The officers of the Corporation shall be a Chairman of the Board, a President, one or more Vice Presidents, a Treasurer and a Corporate Secretary. Not less than two (2) persons shall be such officers of the Corporation. SECTION 4.02. ELECTION, TERM OF OFFICE AND QUALIFICATIONS. The officers shall be appointed annually by the Board at its first meeting after the annual or special meeting of the stockholders at which the Board is elected and shall hold office until the next annual meeting and thereafter until their successors shall be duly appointed and qualified or until their resignation or removal in the manner hereinafter provided. The number of Vice Presidents may be changed from time to time by the Board at any meetings thereof and, if increased at any time, the additional Vice President or Vice Presidents shall be appointed by the Board. SECTION 4.03. SUBORDINATE OFFICERS AND AGENTS. There may also be one or more Assistant Vice Presidents, Assistant Treasurers, Assistant Secretaries and other subordinate officers and agents who shall be appointed by the Board, each of whom shall hold office for such period, have such authority, and perform such duties as the Board may from time to time determine. The authority to appoint or employ and to discharge or remove subordinate officers and agents and to fix their powers and duties may be delegated by resolution of the Board to the President or any officer or officers of the Corporation. The officer to whom the power to appoint subordinate officers or agents is delegated by the Board shall report to the Board the names and titles of all subordinate officers and agents appointed, employed, discharged or removed by such officer. Any officer of the Corporation may also be a subordinate officer, agent or employee. SECTION 4.04. REMOVALS. The Board may at any time remove from office or discharge from employment any officer, subordinate officer, agent, or employee appointed by the Board or by any person under authority delegated by the Board. SECTION 4.05. RESIGNATIONS. Any officer or assistant may resign at any time by giving written notice of such resignation to the Board or the Corporate Secretary of the Corporation. Any such resignation shall take effect at the time specified therein, or, if the time be not specified, upon receipt thereof by the Board or the Corporate Secretary, as the case may be; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 4.06. VACANCIES. A vacancy in any office because of death, resignation, removal, disqualification, or other cause, may be filled for the unexpired portion of the term thereof in the manner prescribed in these Bylaws for regular appointments or elections to such office. In case of the temporary disability of any officer, the Board may appoint a temporary officer to serve during such disability. 10 SECTION 4.07. CHAIRMAN OF THE BOARD. The Chairman shall preside at all meetings of the stockholders and Board at which he or she is present, and shall perform such other duties and have such other powers as the Board may prescribe. SECTION 4.08. PRESIDENT. The President shall preside at all meetings of the Board and of the stockholders at which the Chairman is absent. Subject to the control of the Board, the President shall have general charge and care of the business and property of the Corporation, shall appoint and discharge employees and agents of the Corporation and determine their compensation, shall vote the stock of other companies which is owned by the corporation and shall do and perform such additional duties as shall be prescribed by the Board. The President shall have the powers and perform the duties customarily incidental to the office, and such other duties as may be given to the President elsewhere in these Bylaws. When authorized by the Board so to do, the President may delegate to one of the Vice Presidents the whole or any part of the general management and care of the business and property of the Corporation, including the employment and discharge of agents and employees. SECTION 4.09. VICE PRESIDENTS. It shall be the duty of the Vice Presidents to assume and perform the duties of the President in the absence or disability of the President or whenever the office of President is vacant. Each Vice President shall have such powers and duties as shall be prescribed by the Board or the President or as may be given to them elsewhere in these Bylaws. SECTION 4.10. TREASURER. The Treasurer shall be the financial and accounting officer of the Corporation. The Treasurer shall have the powers and perform the duties customarily incidental to the office, and such other duties as may be given to the Treasurer elsewhere in these Bylaws or as may be assigned to the Treasurer from time to time. The Treasurer shall have custody of all moneys, valuable papers and documents of the Corporation, shall keep the same for safekeeping in such depositories as may be designated by the Board and shall expend the funds of the Corporation as directed by the Board. The Treasurer shall keep or cause to be kept a book or books setting forth a true record of the receipts and expenditures, assets and liabilities, losses and gains of the Corporation and shall, when and as required by the Board, render a statement of the financial condition of the Corporation. If required to do so by the Board, the Treasurer shall give a bond in such amount and such surety as may be prescribed by the Board for the faithful discharge of the Treasurer's duties. The Treasurer shall also do and perform such additional duties as shall be prescribed by the Board. In the absence or disability of the Treasurer, his or her duties shall be performed by the Corporate Secretary or by an Assistant Treasurer. SECTION 4.11. CORPORATE SECRETARY. The Corporate Secretary shall be ex officio secretary of the Board. The Corporate Secretary shall have the powers and perform the duties customarily incidental to the office, and such other duties as may be given to the Corporate Secretary elsewhere in these Bylaws or as may be assigned to the Corporate Secretary from time to time. The Corporate Secretary shall give or cause to be given all required notices of meetings of the stockholders and the Board, shall record the proceedings of meetings of the stockholders and the Board in a book or books to be 11 kept for that purpose, shall register and transfer stock of the Corporation under such regulations as may be prescribed by the Board and required by law, and shall perform such other duties as may be assigned to the Corporate Secretary from time to time by the Board or by the President. The Corporate Secretary shall have custody of the seal of the Corporation. In the absence or disability of the Corporate Secretary, the Corporate Secretary's duties shall be performed by the Treasurer or by an Assistant Corporate Secretary. SECTION 4.12. SUBORDINATE OFFICERS. The powers and duties of the subordinate officers and agents of the Corporation shall be as prescribed by the Board or by any person under authority delegated by the Board. In the absence or disability of the Treasurer and Corporate Secretary, the Assistant Treasurer or the Assistant Corporate Secretary may register and transfer stock of the Corporation under such regulations as may be prescribed by the Board. SECTION 4.13. COMPENSATION. The compensation of the officers of the Corporation shall be fixed from time to time by the Board. None of such officers shall be prevented from receiving such compensation by reason of the fact that such officer is also a director of the Corporation. Nothing contained herein shall preclude any officer from serving the Corporation, or any subsidiary corporation, in any other capacity (including being a director of the Corporation) and receiving proper compensation therefor. The authority to fix the salaries and compensation of subordinate officers and agents may be delegated by the Board to the President or any other officer or officers of the Corporation. ARTICLE V EXECUTION OF INSTRUMENTS SECTION 5.01. INSTRUMENTS IN GENERAL. All contracts, deeds, leases, mortgages, agreements of sale, bills of lading, agreements and understandings to do or perform public or private work, and all bids, tenders or proposals to enter into any contracts, agreements or understandings with respect thereto, and all bid or contract bonds accompanying and guaranteeing the same or any of them, and all other instruments except as otherwise provided in these Bylaws, shall be signed by such person or persons as shall be provided by general or special resolution of the Board and in the absence of any such general or special resolution applicable to any instrument, then such instrument shall be signed by the President or any Vice President and by the Treasurer or the Corporate Secretary. SECTION 5.02. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for payment of money, notes or other evidence of indebtedness, issued in the name of or payable to the Corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the Board, and in the absence of such resolution, then such instrument shall be signed by the President or any Vice President and by the Treasurer or the Corporate Secretary. Each such 12 officer, assistant, agent or attorney shall give such bond, if any, as the Board may require. SECTION 5.03. DEPOSITS. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board may select, or as may be selected by any officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of the Corporation to whom such power shall have been delegated by the Board. For the purpose of deposit and for the purpose of collection for the account of the Corporation, the President, any Vice President or the Treasurer (or any other officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of the Corporation who shall from time to time be determined by the Board) may endorse, assign and deliver checks, drafts and other orders for the payment of money which are payable to the order of the Corporation. SECTION 5.04. GENERAL AND SPECIAL BANK ACCOUNTS. The Board may from time to time authorize the opening and keeping of general and special bank accounts with such banks, trust companies or other depositories as the Board may select or as may be selected by any officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of the Corporation to whom such power shall have been delegated by the Board. The Board may make such special rules and regulations with respect to such bank accounts, not inconsistent with the provisions of these Bylaws, as it may deem expedient. SECTION 5.05. FACSIMILE SIGNATURES. The Board may provide for the execution of checks, stock certificates and other written instruments by the printed, lithographed or engraved facsimile signature or signatures. SECTION 5.06. SEAL. Any officer or subordinate officer of the Corporation and any other person authorized to do so by the Board, may affix the seal of the Corporation to any instrument and may attest the same. ARTICLE VI CAPITAL STOCK SECTION 6.01. CERTIFICATES FOR STOCK. Every owner of stock of the Corporation shall be entitled to have a certificate or certificates, to be in such form as the Board shall prescribe and as may be required by law, certifying the number and class of shares of the stock of the Corporation owned by such owner. The certificates representing shares of such stock shall be numbered in the order in which they shall be issued and shall be signed in the name of the Corporation by the Chairman or Vice Chairman of the Board or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Corporate Secretary or an Assistant Corporate Secretary of the Corporation. Any of or all of the signatures on the certificates may be a facsimile. In case any officer, transfer agent or registrar who has signed, or whose facsimile signature has been placed upon, any such certificate, shall have ceased to be such officer, 13 transfer agent or registrar before such certificate is issued, such certificate may nevertheless be issued by the Corporation with the same effect as though the person who signed such certificate, or whose facsimile signature shall have been placed thereupon, were such officer, transfer agent or registrar at the date of issue. A record shall be kept of the respective names of the persons, firms or corporations owning the stock represented by such certificates, the number and class of shares represented by such certificates, respectively, and the respective dates thereof, and in case of cancellation, the respective dates of cancellation. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled, and no new certificate or certificates shall be issued in exchange for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 6.04. SECTION 6.02. TRANSFERS. Transfers of shares of stock of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with the Corporate Secretary, or with a transfer clerk or a transfer agent appointed as provided in Section 6.03, and upon surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes thereon. The person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation. The Corporation shall be entitled to treat the holder of record of any share or shares of its capital stock as the holder in fact thereof for any purpose whatsoever and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other claimant thereto. Whenever any transfer of shares shall be made for collateral security, and not absolutely, such fact shall be so expressed in the entry of transfer if, when the certificate or certificates shall be presented to the Corporation for transfer, both the transferor and the transferee request the Corporation to do so. Each transfer shall be recorded and the original record or duplicate thereof shall be kept at the principal office of the Corporation in Honolulu, Hawaii as set forth above. SECTION 6.03. REGULATIONS. The Board may make such rules and regulations as it may deem expedient, not consistent with these Bylaws, the Articles of Incorporation or applicable law concerning the issue, transfer and registration of certificates for shares of the stock of the Corporation. It may appoint, or authorize any officer or officers to appoint, one or more transfer clerks or one or more transfer agents and one or more registrars, and may require all certificates for stock to bear the signature or signatures of any of them. SECTION 6.04. LOST STOLEN, DESTROYED AND MUTILATED CERTIFICATES. In any case of loss, theft, destruction or mutilation of any certificate of stock, another may be issued in its place upon proof of such loss, theft, destruction or mutilation and upon the giving of a bond of indemnity to the Corporation in such form and in such sum as the Board may direct, provided, however, that a new certificate may be issued without requiring any bond when, in the judgment of the Board, it is proper so to do. SECTION 6.05. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD. The books for the transfer of shares of the capital stock of the Corporation or any class 14 thereof may be closed as the Board may from time to time determine for a period not exceeding seventy (70) days before any meeting of stockholders, or before the day appointed for the payment of any dividend, or before any date on which rights of any kind in or in connection with the shares of the capital stock of the Corporation or of any class thereof are to be determined or exercised; provided, however, that in lieu of closing the books for the transfer of shares of the capital stock of the Corporation or of any class thereof the Board may fix in advance a date not exceeding seventy (70) days before any such meeting, any such payment date or any such date for the determination or exercise of rights, as a record date for the determination of the stockholders of the Corporation or of such class thereof entitled to notice of and to vote at any such meeting, or entitled to receive any such dividend, or entitled to receive or exercise any such rights in the event that the books for the transfer of shares of the capital stock of the Corporation or of any class thereof are to be closed, the Corporate Secretary may be directed by the Boar to give notice of such closing to the holders of such shares. SECTION 6.06. FOREIGN STOCK RECORD. A transfer of shares of voting stock of the Corporation to a Foreigner shall not be valid, except between the parties to the transfer, until the transfer shall have been (1) recorded on the books of the Corporation as provided in Section 6.02. of Article VI of these Bylaws and (2) recorded on the Foreign Stock Record of the Corporation as provided in this Section 6.06. The Foreign Stock Record shall mean a record maintained by the Corporate Secretary of the Corporation which shall record the date of a transfer to a Foreigner, the parties to the transfer and the number and description of the shares of voting stock transferred to a Foreigner. At no time shall ownership or control of shares representing more than 25% of the Corporation's voting shares be registered on the Foreign Stock Record. If at any time the Corporation shall determine that voting shares are owned or controlled by Foreigners who are not registered on the Foreign Stock Record, the registration of such shares shall, subject to the limitation in the preceding sentence, be made in chronological order in the Foreign Stock Record, based on the date of the Corporation's finding of ownership or control of such shares by a Foreigner. If at any time the Corporation shall determine that the number of voting shares registered on the Foreign Stock Record exceeds 25% of the total number of voting shares, sufficient shares shall be removed from the Foreign Stock Record in reverse chronological order so that the number of voting shares registered on the Foreign Stock Record does not exceed 25% of the total number of voting shares. At no time shall shares of voting stock known by the Corporation to be owned or controlled by Foreigners and not registered on the Foreign Stock Record be entitled to vote until so registered. All shares of voting stock known to the Corporation to be owned by Foreigners as of the date of the adoption of this Section 6.06 shall be registered on the Foreign Stock Record. The shares registered on the Foreign Stock Record pursuant to the preceding sentence have chronological priority over any subsequent request for the registration of additional shares of voting stock on the Foreign Stock Record. As used in this Section 6.06, "Foreigner" means any person who is not a Citizen of the United States as defined in Section 101(15) of the Transportation Act, and "voting stock" means collectively the Corporation's Common Stock and any future shares of stock of the Corporation entitled to vote on matters generally referred to the stockholders for a vote. 15 ARTICLE VII DIRECTOR CONFLICTS OF INTEREST SECTION 7.01. GENERALLY. No contract or other transaction between the Corporation and one or more of its directors or any other corporation, firm, association, or entity of which one or more of its directors are directors or officers or in which one or more of its directors are financially interested, is either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the Board or a committee thereof which authorizes, approves, or ratifies such contract or transaction or because the vote or votes of such director or directors are counted for such purpose, if: (a) The fact of such relationship or interest is disclosed or known to the Board or committee which authorizes, approves, or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested director or directors; or (b) The fact of such relationship or interest is disclosed or known to the stockholders entitled to vote and they authorize, approve or ratify such contract or transaction by vote or written consent; or (c) The contract or transaction is fair and reasonable to the Corporation. SECTION 7.02. QUORUM. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board or a committee thereof which authorizes, approves or ratifies such contract or transaction. SECTION 7.03. NO LIABILITY. Neither any director nor officer of the Corporation, being so interested in any contract, transaction or act of the Corporation which is not void or voidable pursuant to this Article VII, nor any other corporation, firm, association or entity in which such director or officer is a director or officer or is financially interested, is liable or accountable to the Corporation, or to any stockholder thereof, for any loss incurred by the Corporation pursuant to or by reason of such contract, transaction or act, or for any gain received by any such other party pursuant thereto or by reason thereof. ARTICLE VIII GENERAL PROVISIONS SECTION 8.01. ADJOURNMENT. Whenever at any meeting provided for in these Bylaws less than a quorum shall be present or represented, such meeting may thereupon be adjourned without notice from time to time by a majority vote of those present or represented until a quorum shall be present or represented. Any meeting at which a quorum is present or represented may be adjourned in the same manner for such time as may be fixed by a majority vote at such meeting. Whenever a quorum is present at any adjourned meeting, any business may be transacted which could have been done at the meeting originally called. 16 SECTION 8.02. FISCAL YEAR. The fiscal year of the Corporation shall be as determined from time to time by the Board. SECTION 8.03. WAIVER OF NOTICES. Whenever notice is required to be given by these Bylaws or the Articles of Incorporation or by law, the person entitled to said notice may waive such notice in writing, either before or after the time stated therein, and such waiver shall be deemed equivalent to notice. SECTION 8.04. AMENDMENTS. These Bylaws, or any of them, may be amended, altered or repealed and new Bylaws may be adopted by the affirmative vote of a majority of the members of the Board, subject to repeal or change by action of the stockholders; provided however, any amendment to Section 3.02 to change the number of directors or the qualifications of such directors, Section 3.09 to change the special meetings provisions, Section 3.12 to change the removal of directors and filling of vacancies, Section 7.04 to amend the Bylaws and any other provision of these Bylaws which would, by amendment, be inconsistent with the aforesaid Sections shall require the affirmative vote of a majority of the directors then in office, and, so long as there is a Nominating Stockholder, such majority must include at least one (1) Nominated Director, and, so long as there are holders of Series C Special Preferred Stock, Series D Special Preferred Stock and Series E Special Preferred Stock, such majority must include at least two (2) Series Nominated Directors. EX-4.1 3 EXHIBIT 4.1 EXHIBIT 4.1 AMENDMENT NO. 4 TO RIGHTS AGREEMENT dated as of December 23, 1994 by and between HAWAIIAN AIRLINES, INC. and CHEMICAL TRUST COMPANY OF CALIFORNIA as Rights Agent AMENDMENT NO. 4, dated as of August 28, 1998 (the "Amendment"), to the Rights Agreement, dated as of December 23, 1994, as amended (the "Agreement"), between Hawaiian Airlines, Inc., a Hawaii corporation (the "Company"), and Chemical Trust Company of California, which has been succeeded by ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability company, as rights agent (the "Rights Agent"). Unless the context indicates to the contrary, capitalized terms used and not defined herein shall have the meanings ascribed to them in the Agreement. Pursuant to Section 27 of the Agreement, the Board of Directors of the Company may, from time to time, supplement or amend any provision of the Agreement in accordance with the provisions of such Section. This Amendment became effective on August 28, 1998, immediately upon its approval by the Board of Directors of the Company by resolution adopted at a meeting held on that date. Accordingly, in consideration of the premises and mutual agreements herein set forth, the parties hereby agree as follows: 5. All references in the Agreement to "10% Ownership Date" and "10% Shareholder" are hereby deleted and the terms "Share Acquisition Date" and "Acquiring Person" are substituted therefor, respectively. 6. Amendment to Section 1(hh). Section 1(hh) is hereby amended and restated in its entirety to read as follows: "(hh) "Acquiring Person" shall mean any Person that, together with all Affiliates and Associates of such Person, after December 23, 1994 becomes the Beneficial Owner of such number of Voting Shares of the Company as constitutes a percentage of the then outstanding Voting Shares that is equal to or greater than 15%; provided, however, that the term "Acquiring Person" shall not include: (i) an Exempt Person; (ii) a Grandfathered Acquiring Person or a person who is a direct transferee of Plan Distribution Shares from a Grandfathered Acquiring Person unless as a result of another acquisition, theretofore or thereafter consummated (regardless of whether such other acquisition is a transfer from a Grandfathered Acquiring Person), such transferee becomes the Beneficial 2 Owner of at least 1% more than the percentage of outstanding Voting Shares transferred directly to the transferee by such Grandfathered Acquiring Person, (iii) any Person if such Person would not otherwise be an Acquiring Person but for a reduction in the number of outstanding Voting Shares resulting from a stock repurchase program or other similar plan of the Company or from a self-tender offer of the Company, which plan or tender offer commenced on or after December 23, 1994, provided, however, that the term "Acquiring Person" shall include such Person from and after the first date upon which (A) such Person, since the date of the commencement of such plan or tender offer, shall have acquired Beneficial Ownership of, in the aggregate, a number of Voting Shares of the Company equal to 1% or more of the Voting Shares of the Company then outstanding and (b) such Person, together with all Affiliates and Associates of such Person, shall Beneficially Own 15% or more of the Voting Shares of the Company then outstanding; (iv) Airline Investors Partnership, L.P., a Delaware limited partnership ("AIP"), as a result of its purchase of shares of Class A Common Stock pursuant to a Stock Purchase Agreement by and between the Company and AIP, dated as of December 8, 1995; or (v) any Person that the Board of Directors of the Company has determined is not an Acquiring Person, if such determination is prior to the tenth Business Day following the relevant Share Acquisition Date, provided that, following such determination by the Board of Directors of the Company, such Person shall be deemed to be an Acquiring Person upon a public announcement, by the Company or otherwise, including, without limitation, a report filed pursuant to Section 13(d) of the Exchange Act, that such Person has acquired any additional Voting Shares of the Company, if at such time such Person, together with all Affiliates and Associates of such Person, shall Beneficially Own 15% or more of the Voting Shares of the Company then outstanding. In calculating the percentage of the outstanding Voting Shares that are Beneficially Owned by a person for purposes of this subsection (hh), Voting Shares that are Beneficially Owned by such Person shall be deemed outstanding, and Voting Shares that are not Beneficially Owned by such Person and that are subject to issuance upon the exercise or conversion of outstanding conversion rights, exchange rights, rights (other than Rights), warrants or options shall not be deemed outstanding. Notwithstanding the foregoing, if the Board of Directors of the Company determines in good faith that a Person that would otherwise be an Acquiring Person pursuant to the foregoing provisions of this Section 1(hh) and Section 1(b) hereof has become such inadvertently, and such Person (a) promptly notifies the Board of Directors (including, without limitation, through the filing of a report under Section 13(d) of the Exchange Act) of such status and (b) as promptly as practicable thereafter, either divests of a sufficient number of Voting Shares so that such Person would no longer be an Acquiring Person, or causes any other circumstance, such as the existence of an agreement respecting Voting Shares, to be eliminated such that such Person would no longer be an Acquiring Person as defined pursuant to this 3 Section 1(hh) and 1(b), then such Person shall not be deemed to be an Acquiring Person for any purposes of this Agreement. Any determination made by the Board of Directors of the Company as to whether any Person is or is not an Acquiring Person shall be conclusive and binding upon all holders of Rights." 7. Amendment to Section 3(a). Section 3(a) is hereby amended and restated in its entirety as follows: "(a) "Distribution Date" shall mean the date, after December 23, 1994, that is the earliest of (i) the tenth Business Day (or such later day as shall be designated by the Board of Directors of the Company) following the date of the commencement of, or the first public announcement of the intent of any Person, other than an Exempt Person, to commence a tender offer or exchange offer, the consummation of which would cause any Person to become an Acquiring Person, (ii) the tenth Business Day (or such later day as shall be designated by the Board of Directors of the Company) following the Share Acquisition Date, or (iii) the date of the first Section 13(a) Event." 8. Amendment to Section 11(a)(ii). Section 11(a)(ii) is hereby amended and restated in its entirety to read as follows: "In the event that there is a Share Acquisition Date followed by a Distribution Date, then, and effective as of such Distribution Date, (a "Section 11(a)(ii) Event") proper provision shall be made so that except as provided in Section 7(d) hereof, each holder of a Right shall thereafter have the right to receive, upon the exercise thereof in accordance with the terms of this Agreement and payment of the then current Exercise Price, in lieu of the securities or other property otherwise purchasable upon such exercise, such number of Common Shares of the Company as shall equal the result obtained by multiplying the then current Exercise Price by the then number of one-thousandths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and dividing that product by 50% of the Current Market Price (determined pursuant to Section 11(d) hereof) of a Common Share on the date of the first occurrence of the relevant Section 11(a)(ii) Event (such number of shares being hereinafter referred to as the "Adjustment Shares")." 9. Amendment to Section 13(a). The first paragraph of Section 13(a) and Section 13(a)(i) are hereby amended and restated in their entirety to read as follows: "(a) In the event that at any time on or after the Share Acquisition Date (a "Section 13(a) Event") directly or indirectly (except pursuant to a consolidation, merger or sale or transfer of assets or earnings power which is approved by the Board of Directors of the Company (with a specific 4 resolution that this Section 13(a) is not to be applicable) and which does not involve an Acquiring Person or an Affiliate or Associate of an Acquiring Person or any other Person in which such Acquiring Person, Affiliate or Associate has any interest or any other Person acting directly or indirectly on behalf of or in association with any such Acquiring Person, Affiliate or Associate (such an approved transaction being referred to as an "Approved Section 13(a) Transaction")), (1) the Company shall consolidate with or merge with and into any other Person and the Company shall not be the continuing or surviving corporation in such consolidation or merger, (2) any Person shall consolidate with or merge with and into the Company and the Company shall be the continuing or surviving corporation in such merger and, in connection with such merger, all or part of the Common Shares shall be changed into or exchanged for stock or other securities of any Person or cash or any other property, or (3) the Company and/or any one or more of its Subsidiaries shall sell or otherwise transfer, in one or more transactions (other than transactions in the ordinary course of business), assets or earning power aggregating more than 50% of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any Person or Persons other than the Company or one or more of its wholly owned Subsidiaries (such Person, together with the Persons described in clauses (1) and (2) above shall be collectively referred to in this Section 13 as the "Surviving Person"), then, and in each such case, proper provisions shall be made so that: (i) except as provided in Section 7(d) hereof, each holder of a Right shall thereafter have the right to receive, upon the exercise thereof in accordance with the terms of this Agreement and payment of the then current Exercise Price, in lieu of the securities or other property otherwise purchasable upon such exercise, such number of validly authorized and issued, fully paid and nonassessable Common Shares of the Surviving Person as shall be equal to a fraction, the numerator of which is the product of the then current Exercise Price multiplied by the number of one- thousandths of a Preferred Share purchasable upon the exercise of one Right immediately prior to the first Section 13(a) Event (or, if the Distribution Date shall not have occurred prior to the date of such Section 13(a) Event, the number of one-thousandths of a Preferred Share that would have been so purchasable if the Distribution Date had occurred on the Business Day immediately preceding the date of such Section 13(a) Event, or, if a Section 11(a)(ii) Event has occurred prior to such Section 13(a) Event, the product of the number of one-thousandths of a Preferred Share purchasable upon the exercise of a Right immediately prior to such Section 11(a)(ii) Event, multiplied by the Exercise Price in effect immediately prior to such Section 11(a)(ii) Event), and the denominator of which is 50% of the Current Market Price per 5 Common Share of the Surviving Person on the date of consummation of such Section 13(a) Event;" 10. Amendment to Section 23(a). Section 23(a) is hereby amended by deleting the phrase ", and the Company shall so redeem the Rights". 11. Amendment to Section 24. Section 24(a) is hereby amended and restated in its entirety to read as follows: "(a) At any time after a Share Acquisition Date followed by a Distribution Date and prior to the first date thereafter upon which an Acquiring Person, together with all Affiliates and Associates of such Acquiring Person, shall be the Beneficial Owner of 50% or more of the Voting Shares then outstanding, the Board of Directors of the Company may, at its option, authorize and direct the exchange of all, but not less than all, of the then outstanding Rights for Common Shares at an exchange ratio (the "Exchange Ratio") per Right, equal to that number of Common Shares which, as of the date of the Board of Directors' action, has a current market price equal to the difference between the Exercise Price and the Current Market Price of the Common Shares that each holder of a Right would otherwise have the right to receive upon the exercise of a Right on such date." 12. Amendment to Section 25. Section 25(b) is hereby amended and restated in its entirety to read as follows: "(b) Upon the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event, the Company shall as soon as practicable thereafter give to each holder of a Right Certificate and to the Rights Agent, in accordance with Section 26 hereof, a notice of the occurrence of such Event, specifying the event and the consequences of the Event to holders of Rights under Sections 11 and 13 hereof." 13. Amendment to Section 26. Section 26 is hereby amended by deleting the addresses of the Company and the Rights Agent and substituting in lieu thereof the following: Hawaiian Airlines, Inc. 3375 Koapaka Street, Suite G-350 Honolulu, HI 96819 Attention: Corporate Secretary 6 ChaseMellon Shareholder Services, L.L.C. 400 South Hope Street, 4th Floor Los Angeles, CA 90071 Attention: Ian D. Gass, Assistant Vice President IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date above first written. HAWAIIAN AIRLINES, INC. By: /s/ Paul J. Casey --------------------- Name: Paul J. Casey Title: President and Chief Executive Officer By: /s/ John L. Garibaldi ------------------------- Name: John L. Garibaldi Title: Executive Vice President and Chief Financial Officer CHASEMELLON SHAREHOLDER SERVICES, L.L.C. By: /s/ Ian D. Gass ------------------- Name: Ian D. Gass Title: Assistant Vice President -----END PRIVACY-ENHANCED MESSAGE-----