--------------------------
OMB APPROVAL
--------------------------
OMB Number: 3235-0145
Expires: December 31, 2005
Estimated average burden
hours per response......11
--------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
Hawaiian Holdings, Inc.
--------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $0.01 per share
--------------------------------------------------------------------------------
(Title of Class of Securities)
419879101
--------------------------------------------------------------------------------
(CUSIP Number)
Erin C. Ross
Watershed Asset Management, L.L.C.
One Maritime Plaza, Suite 1525
San Francisco, California 94111
(415) 391-8900
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 10, 2006
--------------------------------------------------------------------------------
(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 that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 13d-1(f) or 240.13d-1(g), check the
following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7 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 the
disclosures provided in a prior cover page.
The information required in 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).
(Continued on following pages)
Page 1 of 46 Pages
Exhibit Index Found on Page 23
13D
===================
CUSIP No. 419879101
===================
------------====================================================================
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Watershed Capital Partners, L.P.
------------====================================================================
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) [ ]
(b) [ X ]**
2
** The reporting persons making this filing hold an
aggregate of 3,971,372 Shares, which is 8.4% of the
class of securities. The reporting person on this
cover page, however, may be deemed a beneficial owner
only of the securities reported by it on this cover
page. [See Preliminary Note]
------------====================================================================
3 SEC USE ONLY
------------====================================================================
SOURCE OF FUNDS (See Instructions)
4
WC, OO
------------====================================================================
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
5 TO ITEMS 2(d) OR 2(e)
[ ]
------------====================================================================
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
------------====================================================================
SOLE VOTING POWER
7
NUMBER OF -0-
------------==============================================
SHARES SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 576,608 [See Preliminary Note]
------------==============================================
EACH SOLE DISPOSITIVE POWER
9
REPORTING -0-
PERSON WITH ------------==============================================
SHARED DISPOSITIVE POWER
10
576,608 [See Preliminary Note]
------------====================================================================
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
576,608 [See Preliminary Note]
------------====================================================================
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES (See Instructions) [ ]
------------====================================================================
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
1.2% [See Preliminary Note]
------------====================================================================
TYPE OF REPORTING PERSON (See Instructions)
14
PN
------------====================================================================
Page 2 of 46 Pages
13D
===================
CUSIP No. 419879101
===================
------------====================================================================
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Watershed Capital Institutional Partners, L.P.
------------====================================================================
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) [ ]
(b) [ X ]**
2
** The reporting persons making this filing hold an
aggregate of 3,971,372 Shares, which is 8.4% of the
class of securities. The reporting person on this
cover page, however, may be deemed a beneficial owner
only of the securities reported by it on this cover
page. [See Preliminary Note]
------------====================================================================
3 SEC USE ONLY
------------====================================================================
SOURCE OF FUNDS (See Instructions)
4
WC
------------====================================================================
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
5 TO ITEMS 2(d) OR 2(e)
[ ]
------------====================================================================
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
------------====================================================================
SOLE VOTING POWER
7
NUMBER OF -0-
------------==============================================
SHARES SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 2,623,212 [See Preliminary Note]
------------==============================================
EACH SOLE DISPOSITIVE POWER
9
REPORTING -0-
PERSON WITH ------------==============================================
SHARED DISPOSITIVE POWER
10
2,623,212 [See Preliminary Note]
------------====================================================================
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
2,623,212 [See Preliminary Note]
------------====================================================================
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES (See Instructions) [ ]
------------====================================================================
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
5.6% [See Preliminary Note]
------------====================================================================
TYPE OF REPORTING PERSON (See Instructions)
14
PN
------------====================================================================
Page 3 of 46 Pages
13D
===================
CUSIP No. 419879101
===================
------------====================================================================
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
WCIP Cayman, Ltd.
------------====================================================================
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) [ ]
(b) [ X ]**
2
** The reporting persons making this filing hold an
aggregate of 3,971,372 Shares, which is 8.4% of the
class of securities. The reporting person on this
cover page, however, is a beneficial owner only of
the securities reported by it on this cover page.
[See Preliminary Note]
------------====================================================================
3 SEC USE ONLY
------------====================================================================
SOURCE OF FUNDS (See Instructions)
4
WC, OO
------------====================================================================
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
5 TO ITEMS 2(d) OR 2(e)
[ ]
------------====================================================================
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Cayman Islands
------------====================================================================
SOLE VOTING POWER
7
NUMBER OF -0-
------------==============================================
SHARES SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 71,500 [See Preliminary Note]
------------==============================================
EACH SOLE DISPOSITIVE POWER
9
REPORTING -0-
PERSON WITH ------------==============================================
SHARED DISPOSITIVE POWER
10
71,500 [See Preliminary Note]
------------====================================================================
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
71,500 [See Preliminary Note]
------------====================================================================
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES (See Instructions) [ ]
------------====================================================================
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
0.2% [See Preliminary Note]
------------====================================================================
TYPE OF REPORTING PERSON (See Instructions)
14
OO
------------====================================================================
Page 4 of 46 Pages
13D
===================
CUSIP No. 419879101
===================
------------====================================================================
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Watershed Asset Management, L.L.C.
------------====================================================================
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) [ ]
(b) [ X ]**
2
** The reporting persons making this filing hold an
aggregate of 3,971,372 Shares, which is 8.4% of the
class of securities. The reporting person on this
cover page, however, may be deemed a beneficial owner
only of the securities reported by it on this cover
page. [See Preliminary Note]
------------====================================================================
3 SEC USE ONLY
------------====================================================================
SOURCE OF FUNDS (See Instructions)
4
AF
------------====================================================================
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
5 TO ITEMS 2(d) OR 2(e)
[ ]
------------====================================================================
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
------------====================================================================
SOLE VOTING POWER
7
NUMBER OF -0-
------------==============================================
SHARES SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 3,971,372 [See Preliminary Note]
------------==============================================
EACH SOLE DISPOSITIVE POWER
9
REPORTING -0-
PERSON WITH ------------==============================================
SHARED DISPOSITIVE POWER
10
3,971,372 [See Preliminary Note]
------------====================================================================
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
3,971,372 [See Preliminary Note]
------------====================================================================
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES (See Instructions) [ ]
------------====================================================================
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
8.4% [See Preliminary Note]
------------====================================================================
TYPE OF REPORTING PERSON (See Instructions)
14
OO
------------====================================================================
Page 5 of 46 Pages
13D
===================
CUSIP No. 419879101
===================
------------====================================================================
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
WS Partners, L.L.C.
------------====================================================================
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) [ ]
(b) [ X ]**
2
** The reporting persons making this filing hold an
aggregate of 3,971,372 Shares, which is 8.4% of the
class of securities. The reporting person on this
cover page, however, may be deemed a beneficial owner
only of the securities reported by it on this cover
page. [See Preliminary Note]
------------====================================================================
3 SEC USE ONLY
------------====================================================================
SOURCE OF FUNDS (See Instructions)
4
AF
------------====================================================================
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
5 TO ITEMS 2(d) OR 2(e)
[ ]
------------====================================================================
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
------------====================================================================
SOLE VOTING POWER
7
NUMBER OF -0-
------------==============================================
SHARES SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 3,199,820 [See Preliminary Note]
------------==============================================
EACH SOLE DISPOSITIVE POWER
9
REPORTING -0-
PERSON WITH ------------==============================================
SHARED DISPOSITIVE POWER
10
3,199,820 [See Preliminary Note]
------------====================================================================
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
3,199,820 [See Preliminary Note]
------------====================================================================
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES (See Instructions) [ ]
------------====================================================================
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
6.8% [See Preliminary Note]
------------====================================================================
TYPE OF REPORTING PERSON (See Instructions)
14
OO
------------====================================================================
Page 6 of 46 Pages
13D
===================
CUSIP No. 419879101
===================
------------====================================================================
NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Meridee A. Moore
------------====================================================================
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) [ ]
(b) [ X ]**
2
** The reporting persons making this filing hold an
aggregate of 3,971,372 Shares, which is 8.4% of the
class of securities. The reporting person on this
cover page, however, may be deemed a beneficial owner
only of the securities reported by it on this cover
page. [See Preliminary Note]
------------====================================================================
3 SEC USE ONLY
------------====================================================================
SOURCE OF FUNDS (See Instructions)
4
AF
------------====================================================================
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
5 TO ITEMS 2(d) OR 2(e)
[ ]
------------====================================================================
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States
------------====================================================================
SOLE VOTING POWER
7
NUMBER OF -0-
------------==============================================
SHARES SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 3,971,372 [See Preliminary Note]
------------==============================================
EACH SOLE DISPOSITIVE POWER
9
REPORTING -0-
PERSON WITH ------------==============================================
SHARED DISPOSITIVE POWER
10
3,971,372 [See Preliminary Note]
------------====================================================================
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
3,971,372 [See Preliminary Note]
------------====================================================================
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES (See Instructions) [ ]
------------====================================================================
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
8.4% [See Preliminary Note]
------------====================================================================
TYPE OF REPORTING PERSON (See Instructions)
14
IN
------------====================================================================
Page 7 of 46 Pages
This Amendment No. 1 to Schedule 13D amends the Schedule 13D initially
filed on December 12, 2005 (collectively, with all amendments thereto, the
"Schedule 13D").
Preliminary Note: The Reporting Persons (as defined below) are filing
this Schedule 13D with respect to shares of common stock, par value $0.01 per
share (the "Shares"), of Hawaiian Holdings, Inc. (the "Company"). Certain of the
Reporting Persons own, in aggregate, (i) 3,245,476 Shares and (ii) Warrants (the
"Warrants") to purchase 725,896 Shares. Each Warrant has an exercise price of
$7.20, subject to adjustment from time to time, and is immediately exercisable.
As reported in the prior Schedule 13D, certain of the Reporting Persons
had the right to acquire 1,058,823 Shares as in-kind distributions from RC
Aviation LLC to such Reporting Persons as members of RC Aviation LLC (together
with the one additional Share that was received as part of the in-kind
distribution from RC Aviation LLC, the "LLC Shares"). Beneficial ownership of
the LLC Shares was attributed to the Reporting Persons in the prior Schedule
13D. The distribution of such LLC Shares has occurred since the filing of the
prior Schedule 13D and the Reporting Persons continue to be the deemed
beneficial owners of the LLC Shares.
As reported in the prior Schedule 13D, RC Aviation LLC, a principal
investor in the Company in which certain of the Reporting Persons are members,
held a warrant to purchase Shares from the Company. Pursuant to RC Aviation
LLC's Second Amended and Restated Limited Liability Company Agreement dated as
of June 1, 2005 (the "RC LLC Agreement"), RC Aviation LLC was obligated to
distribute to certain of its members 90% of either (i) their pro rata share of
such warrant or (ii) a cash amount equivalent to the value of such pro rata
share. Since the filing of the prior Schedule 13D, RC Aviation LLC made an
in-kind distribution of such warrant, resulting in certain of the Reporting
Persons receiving, in aggregate, the Warrants to purchase 725,896 Shares. The
prior Schedule 13D discussed the effect of the distribution of the warrant by RC
Aviation LLC to the Reporting Persons and noted that upon receipt of such
warrant by the Reporting Persons, the Reporting Persons would be deemed to
beneficially own the Shares underlying the Warrants. At the time of the prior
Schedule 13D, however, beneficial ownership of the Shares underlying the
Warrants was not attributed to the Reporting Persons. Given that the warrant has
been distributed to the Reporting Persons, this amendment to the Schedule 13D
attributes beneficial ownership of the 725,896 Shares underlying the Warrants to
the Reporting Persons. For the full terms and conditions of the Warrants, see
Exhibit 5 filed herewith and incorporated herein by reference.
Unless stated otherwise, all numbers and percentages contained in this
Schedule 13D represent Shares currently held by certain Reporting Persons and
all Shares that would be issued to certain Reporting Persons assuming full
exercise of the Warrants, and such numbers and percentages do not otherwise
reflect the Warrants.
Item 2. Identity And Background
------ -----------------------
Item 2 of the Schedule 13D is amended and restated in its entirety as
follows:
Page 8 of 46 Pages
(a) This statement is filed by the entities and persons listed below,
all of whom together are referred to herein as the "Reporting Persons."
The Funds
---------
(i) Watershed Capital Partners, L.P., a Delaware limited
partnership ("WCP"), with respect to the Shares
beneficially owned by it (through its direct
ownership of Shares and Warrants);
(ii) Watershed Capital Institutional Partners, L.P., a
Delaware limited partnership ("WCIP"), with respect
to the Shares beneficially owned by it (through its
direct ownership of Shares and Warrants) and its
wholly-owned subsidiary, WCIP Cayman (as defined
below); and
(iii) WCIP Cayman, Ltd., a Cayman Islands wholly-owned
subsidiary of WCIP ("WCIP Cayman"), with respect to
the Shares beneficially owned by it.
WCP, WCIP and WCIP Cayman are together referred to herein as the
"Funds."
The Management Company
----------------------
(iv) Watershed Asset Management, L.L.C., a Delaware
limited liability company (the "Management Company"),
with respect to the Shares beneficially owned
(through its direct ownership of Shares and Warrants)
by Watershed Capital Partners (Offshore), Ltd.
("Watershed Offshore"), an entity managed by the
Management Company, and with respect to the Shares
beneficially owned (through their direct and indirect
ownership of Shares and Warrants) by the Funds, for
which the Management Company serves as an investment
adviser.
The General Partner
-------------------
(v) WS Partners, L.L.C., a Delaware limited liability
company, which is the general partner of each of WCP
and WCIP (the "General Partner"), with respect to the
Shares beneficially owned by WCP and WCIP (through
their direct and indirect ownership of Shares and
Warrants).
The Managing Member
-------------------
(vi) Meridee A. Moore, a United States citizen who is the
Senior Managing Member of both the General Partner
and the Management Company, with respect to the
Shares beneficially owned by the Funds and Watershed
Offshore (through their direct and indirect ownership
of Shares and Warrants).
Meridee A. Moore is referred to herein as the "Individual Reporting
Person."
Page 9 of 46 Pages
(b) The address of the principal business and principal office of the
Funds, the General Partner, the Management Company and the Individual Reporting
Person is c/o Watershed Asset Management, L.L.C., One Maritime Plaza, Suite
1525, San Francisco, California 94111.
(c) The principal business of each of the Funds is that of a private
investment fund engaging in the purchase and sale of investments for its own
account. The principal business of the General Partner is to act as the general
partner of each of WCP and WCIP. The principal business of the Management
Company is to act as the investment adviser to the Funds and Watershed Offshore.
The principal business of the Individual Reporting Person is serving as the
Senior Managing Member of both the Management Company and the General Partner.
(d) None of the Funds, the Management Company, the General Partner or
the Individual Reporting Person has, during the last five years, been convicted
in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) None of the Funds, the Management Company, the General Partner or
the Individual Reporting Person has, during the last five years, been party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
(f) The citizenship of each of the Funds, the General Partner, the
Management Company and the Individual Reporting Person is set forth above.
Item 3. Source And Amount Of Funds And Other Consideration
------ --------------------------------------------------
Item 3 of the Schedule 13D is amended and supplemented by the
following:
Since the filing of the prior Schedule 13D, the Funds and Watershed
Offshore acquired (i) 420,000 Shares through open-market purchases (the "Open
Market Shares") and (ii) warrants to
Page 10 of 46 Pages
purchase 725,896 Shares through the distribution of the Warrants from RC
Aviation LLC to such Reporting Persons, as members of RC Aviation LLC, pursuant
to the terms of the RC LLC Agreement (as defined in the Preliminary Note), as
reported in Item 4 of the prior Schedule 13D. Although previously reported in
Item 3 of the prior Schedule 13D, the Funds and Watershed Offshore also acquired
the LLC Shares (as defined in the Preliminary Note) as an in-kind distribution
from RC Aviation LLC to such Reporting Persons as members of RC Aviation LLC,
pursuant to the terms of the RC LLC Agreement.
The net investment cost (including commissions) for the Open Market
Shares acquired by each of the Funds and Watershed Offshore since the filing of
the prior Schedule 13D is set forth below:
Entity Shares Acquired Approximate Net
------ --------------- ---------------
Investment Cost
---------------
WCP 114,000 $401,511.32
WCIP 80,200 $363,339.24
WCIP Cayman 71,500 $205,194.20
Watershed Offshore 154,300 $543,160.08
The consideration for such acquisitions of the Open Market Shares
and/or the investment in RC Aviation LLC was obtained as follows: (i) with
respect to WCP, WCIP Cayman and Watershed Offshore, from working capital and/or
borrowings pursuant to margin accounts maintained in the ordinary course of
business by WCP, WCIP Cayman and Watershed Offshore at Goldman, Sachs & Co. and
(ii) with respect to WCIP, from working capital. WCP, WCIP Cayman and Watershed
Offshore hold certain securities in their respective margin accounts at Goldman,
Sachs & Co., and the accounts may from time to time have debit balances. It is
not possible to determine the amount of borrowings, if any, used to acquire the
Open Market Shares and/or the investment in RC Aviation LLC.
Page 11 of 46 Pages
Item 4. Purpose Of The Transaction
------ --------------------------
Item 4 of the Schedule 13D is amended and updated as follows:
The purpose of the acquisitions of the Shares and Warrants is for
investment, and the acquisitions of the Shares and/or Warrants by each of the
Funds and Watershed Offshore were made in the ordinary course of business and
were not made for the purpose of acquiring control of the Company.
Although no Reporting Person has any specific plan or proposal to
acquire or dispose of Shares and/or Warrants, consistent with its investment
purpose, each Reporting Person at any time and from time to time may acquire
additional Shares and/or Warrants or dispose of any or all of its Shares and/or
Warrants depending upon an ongoing evaluation of the investment in such
securities, prevailing market conditions, other investment opportunities,
liquidity requirements of the Reporting Person and/or other investment
considerations. No Reporting Person has made a determination regarding a maximum
or minimum number of Shares and/or Warrants which it may hold at any point in
time.
Also, consistent with their investment intent and in an effort to
maximize shareholder value, the Reporting Persons may engage in communications
with one or more shareholders of the Company, one or more officers of the
Company, one or more members of the board of directors of the Company, potential
investors in the Company and/or other persons regarding the Company, including
but not limited to its operations.
As stated in Item 3, the Shares reported herein were acquired by the
Funds and Watershed Offshore either through open-market purchases or as in-kind
distributions from RC Aviation LLC to such Reporting Persons, as members of RC
Aviation LLC. In particular, 1,058,824 of the Shares reported herein (the LLC
Shares) were acquired by certain of the Reporting Persons as in-kind
distributions from RC Aviation LLC to such Reporting Persons as members of RC
Aviation LLC.
Page 12 of 46 Pages
In addition, since the filing of the prior Schedule 13D, RC Aviation LLC made an
in-kind distribution of the Common Stock Warrant described in Item 4 of the
prior Schedule 13D. This distribution resulted in the Funds and Watershed
Offshore receiving, in aggregate, the Warrants to purchase 725,896 Shares. As
such Warrants are immediately exercisable, the Reporting Persons may be deemed,
in aggregate, to be the beneficial owner of the 725,896 Shares underlying the
Warrants. The Warrants are exercisable at an exercise price of $7.20 per Share,
subject to adjustment from time to time for certain dilutive events, pursuant to
the terms of the Warrants. The Warrants are immediately exercisable, subject to
a cap (which may be waived by the holder upon 65 days' notice) that would
prevent the holder of the Warrants from acquiring the underlying Shares to the
extent that such acquisition would cause such holder, or any other persons who
are deemed to beneficially own any Shares beneficially owned by such holder, to
beneficially own in aggregate more than 9.999% of the total number of issued and
outstanding Shares (including Shares that would be issuable upon the exercise of
the Warrants).
The descriptions above of the Common Stock Warrant and the Warrants are
qualified in their entirety by the full terms and conditions of the Common Stock
Warrant and the Warrants, which are incorporated herein by reference. For the
full terms and conditions of the Common Stock Warrant, see Exhibit 10.44 to the
Annual Report on Form 10-K filed by the Company with the SEC on March 23, 2006.
For the full terms and conditions of the Warrants, see Exhibit 5 filed
herewith.
WCP, WCIP and Watershed Offshore have agreed to purchase certain
warrants (the "Trade Warrants") issued by the Company to purchase an aggregate
of 215,517 Shares, subject to the negotiation and completion of documentation
and the satisfaction of any conditions precedent. Each Trade Warrant has an
exercise price of $5.00 per Share, is immediately exercisable and has an
expiration date of March 13, 2009. Upon the purchase of the Trade Warrants, the
Reporting
Page 13 of 46 Pages
Persons will be deemed to beneficially own an additional 215,517 Shares. As the
Reporting Persons are not currently deemed to beneficially own any of the Trade
Warrants or any Shares underlying the Trade Warrants, the 3,971,372 Shares
reported herein do not include such 215,517 additional Shares, which represent
approximately 0.5% of the outstanding Shares of the Company. The description
above of the Trade Warrants is qualified in its entirety by the full terms and
conditions of the Trade Warrants, which are incorporated herein by reference.
For the full terms and conditions of the Trade Warrants, see Exhibit 10.03 to
the Form 8-K filed by the Company with the SEC on March 17, 2006.
The Reporting Persons no longer own the Series A Notes or the Series B
Notes reported in the Item 4 of the prior Schedule 13D, as such Notes were
redeemed by the Company.
Except to the extent the information stated in this Item 4 may be
deemed a plan or proposal, none of the Reporting Persons has any plans or
proposals which relate to, or could result in, any of the matters referred to in
paragraphs (a) through (j), inclusive, of the instructions to Item 4 of Schedule
13D. The Reporting Persons may, at any time and from time to time, review or
reconsider their position and/or change their purpose and/or formulate plans or
proposals with respect thereto.
Item 5. Interest In Securities Of The Issuer
------ ------------------------------------
Item 5 of the Schedule 13D is amended and restated in its entirety as
follows:
(a) The Funds
---------
(a),(b) The information set forth in Rows 7 through 13 of the
cover page hereto for each Fund is incorporated
herein by reference for each such Fund. The
percentage amount set forth in Row 13 for all cover
pages filed herewith is calculated based upon the
46,553,914 Shares outstanding as of August 6, 2006,
as reported by the Company in its Quarterly Report on
Form 10-Q for the period ended June 30, 2006 and
filed with the Securities and Exchange Commission on
August 8, 2006, plus the number of additional Shares
each Reporting Person is deemed to own through its
beneficial ownership of Warrants.
Page 14 of 46 Pages
(c) The trade dates, number of Shares purchased or sold
and the price per Share (including commissions) for
all purchases and sales of the Shares by the Funds in
the past 60 days are set forth on Schedules A-B
hereto and are incorporated herein by reference. All
of such transactions were open-market transactions.
No transactions by WCIP have been consummated in the
past 60 days.
(d) The General Partner has the power to direct the
receipt of dividends relating to, or the disposition
of the proceeds of the sale of, all of the Shares and
Warrants held by the WCP and WCIP as reported herein.
WCIP is the sole shareholder of WCIP Cayman. The
Management Company, as an investment adviser, has the
power to direct the receipt of dividends relating to,
or the disposition of the proceeds of the sale of,
all of the Shares and Warrants held by the Funds as
reported herein. The Individual Reporting Person is
the Senior Managing Member of the General Partner and
the Management Company.
(e) Not applicable.
(b) The Management Company
----------------------
(a),(b) The information set forth in Rows 7 through 13 of the
cover page hereto for the Management Company is
incorporated herein by reference.
(c) The trade dates, number of Shares purchased or sold
and the price per Share (including commissions) for
all purchases and sales of the Shares by the
Management Company on behalf of Watershed Offshore in
the past 60 days are set forth on Schedule C hereto
and are incorporated herein by reference. All of such
transactions were open-market transactions.
For information regarding transactions by the
Management Company on behalf of the Funds, see Item
5(a) above.
(d) The Management Company, as an investment adviser, has
the power to direct the receipt of dividends relating
to, or the disposition of the proceeds of the sale
of, all of the Shares and Warrants held by Watershed
Offshore and the Funds as reported herein. The
General Partner has the power to direct the receipt
of dividends relating to, or the disposition of the
proceeds of the sale of, all of the Shares and
Warrants held by WCP and WCIP as reported herein.
WCIP is the sole shareholder of WCIP Cayman. The
Individual Reporting Person is the Senior Managing
Member of the Management Company.
(e) Not applicable.
Page 15 of 46 Pages
(c) The General Partner
-------------------
(a),(b) The information set forth in Rows 7 through 13 of the
cover page hereto for the General Partner is
incorporated herein by reference.
(c) None.
(d) The General Partner has the power to direct the
receipt of dividends relating to, or the disposition
of the proceeds of the sale of, all of the Shares and
Warrants held by WCP and WCIP as reported herein.
WCIP is the sole shareholder of WCIP Cayman. The
Management Company, as an investment adviser, has the
power to direct the receipt of dividends relating to,
or the disposition of the proceeds of the sale of,
all of the Shares and Warrants held by the Funds as
reported herein. The Individual Reporting Person is
the Senior Managing Member of the General Partner and
the Management Company.
(e) Not applicable.
(d) The Individual Reporting Person
--------------------------------
(a),(b) The information set forth in Rows 7 through 13 of the
cover page hereto for the Individual Reporting Person
is incorporated herein by reference for the
Individual Reporting Person.
(c) None.
(d) The General Partner has the power to direct the
receipt of dividends relating to, or the disposition
of the proceeds of the sale of, all of the Shares and
Warrants held by WCP and WCIP as reported herein.
WCIP is the sole shareholder of WCIP Cayman. The
Management Company, as an investment adviser, has the
power to direct the receipt of dividends relating to,
or the disposition of the proceeds of the sale of,
all the Shares and Warrants held by Watershed
Offshore and the Funds as reported herein. The
Individual Reporting Person is the Senior Managing
Member of the General Partner and the Management
Company.
(e) Not applicable.
The Shares reported hereby for WCP and WCIP Cayman are beneficially
owned by such Funds (in each case through their direct ownership of Shares and
Warrants). Of the Shares reported hereby for WCIP, 2,551,712 Shares are owned
directly by WCIP (through its direct ownership of Shares and Warrants) and the
remaining 71,500 Shares are owned directly by WCIP Cayman.
Page 16 of 46 Pages
WCIP, as the sole shareholder of WCIP Cayman, may be deemed to be the beneficial
owner of all such Shares owned by WCIP Cayman. WCIP hereby disclaims any
beneficial ownership of any such Shares owned directly by WCIP Cayman. The
Shares reported hereby by the Management Company on behalf of Watershed Offshore
are beneficially owned by Watershed Offshore (through its direct ownership of
Shares and Warrants). The General Partner, as general partner to WCP and WCIP,
may be deemed to be the beneficial owner of all such Shares beneficially owned
by WCP and WCIP (in each case through their direct and indirect ownership of
Shares and Warrants). The Management Company, as investment adviser to Watershed
Offshore and the Funds, may be deemed to be the beneficial owner of all such
Shares beneficially owned by Watershed Offshore and the Funds (in each case
through their direct and indirect ownership of Shares and Warrants). The
Individual Reporting Person, as the Senior Managing Member of both the General
Partner and the Management Company, may be deemed to be the beneficial owner of
all such Shares beneficially owned by the Funds and Watershed Offshore (in each
case through their direct and indirect ownership of Shares and Warrants). Each
of the Management Company, the General Partner and the Individual Reporting
Person hereby disclaims any beneficial ownership of any such Shares.
Item 6. Contracts, Arrangements, Understandings Or
----------------------------------------------
Relationships With Respect To Securities Of The Issuer
------------------------------------------------------
Item 6 of the Schedule 13D is amended and updated as follows:
As reported above, RC Aviation LLC distributed the 1,058,824 LLC Shares
and the Warrants to certain of the Reporting Persons. For a description of the
terms and conditions of the Warrants, see Item 4 above.
Also as described in Item 4 above, WCP, WCIP and Watershed Offshore
have agreed to purchase Trade Warrants issued by the Company to purchase in
aggregate 215,517 Shares, subject
Page 17 of 46 Pages
to the negotiation and completion of documentation and the satisfaction of any
conditions precedent. Each Trade Warrant has an exercise price of $5.00 per
Share, is immediately exercisable and has an expiration date of March 13, 2009.
Upon the purchase of the Trade Warrants, the Reporting Persons will be deemed to
beneficially own an additional 215,517 Shares. As the Reporting Persons are not
currently deemed to beneficially own any of the Trade Warrants or any Shares
underlying the Trade Warrants, the 3,971,372 Shares reported herein do not
include such 215,517 additional Shares, which represent approximately 0.5% of
the outstanding Shares of the Company. The description above of the Trade
Warrants is qualified in its entirety by the full terms and conditions of the
Trade Warrants, which are incorporated herein by reference. For the full terms
and conditions of the Trade Warrants, see Exhibit 10.03 to the Form 8-K filed by
the Company with the SEC on March 17, 2006.
Other than the Warrants, the RC LLC Agreement, the Trade Warrants and
as otherwise described in this Schedule 13D, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) among the
Reporting Persons or between such persons and any other person with respect to
any securities of the Company, including but not limited to the transfer or
voting of any securities of the Company, finder's fees, joint ventures, loan or
option arrangements, puts or calls, guarantees of profits, divisions of profits
or loss, or the giving or withholding of proxies.
Item 7. Materials To Be Filed As Exhibits
------ ---------------------------------
Item 7 of the Schedule 13D is amended and updated as follows:
There is filed herewith as Exhibit 4 a written agreement relating to
the filing of joint acquisition statements as required by Section 240.13d-1(k)
under the Securities Exchange Act of 1934, as amended. The form of the Warrants
is filed herewith as Exhibit 5 to this Schedule 13D and incorporated herein by
reference.
Page 18 of 46 Pages
SIGNATURES
----------
After reasonable inquiry and to the best of our knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Dated: August 15, 2006
/s/ Meridee A. Moore
----------------------------------------
WS PARTNERS, L.L.C.,
On its own behalf and
As the General Partner of
WATERSHED CAPITAL PARTNERS, L.P.
and WATERSHED CAPITAL INSTITUTIONAL PARTNERS, L.P.
By Meridee A. Moore,
Senior Managing Member
/s/ Meridee A. Moore
----------------------------------------
WATERSHED ASSET MANAGEMENT, L.L.C.
On its own behalf and on behalf of
WCIP CAYMAN, LTD.
By Meridee A. Moore,
Senior Managing Member
/s/ Meridee A. Moore
----------------------------------------
Meridee A. Moore
Page 19 of 46 Pages
SCHEDULE A
----------
WATERSHED CAPITAL PARTNERS, L.P.
--------------------------------
NO. OF SHARES PRICE
TRADE DATE PURCHASED PER SHARE ($)
------------ ---------- --------------
6/23/06 6,400 3.15
7/28/06 19,300 2.78
Page 20 of 46 Pages
SCHEDULE B
----------
WCIP CAYMAN, LTD.
-----------------
NO. OF SHARES PRICE
TRADE DATE PURCHASED PER SHARE ($)
------------ ---------- --------------
6/23/06 17,200 3.15
7/28/06 54,300 2.78
Page 21 of 46 Pages
SCHEDULE C
----------
WATERSHED ASSET MANAGEMENT, L.L.C.
----------------------------------
The transactions listed below were effected solely on behalf of
Watershed Offshore. For transactions on behalf of WCP and WCIP Cayman, see
Schedules A and B, respectively.
NO. OF SHARES PRICE
TRADE DATE PURCHASED PER SHARE ($)
------------ ---------- --------------
6/23/06 8,600 3.15
7/28/06 26,400 2.78
Page 22 of 46 Pages
EXHIBIT INDEX
EXHIBIT 4 Joint Acquisition Statement Pursuant to Section
240.13d-1(k)
EXHIBIT 5 Form of Warrant
Page 23 of 46 Pages
EXHIBIT 4
to
SCHEDULE 13D
JOINT ACQUISITION STATEMENT
PURSUANT TO SECTION 240.13d-1(k)
--------------------------------
The undersigned acknowledge and agree that the foregoing statement on
Schedule 13D is filed on behalf of each of the undersigned and that all
subsequent amendments to this statement on Schedule 13D shall be filed on behalf
of each of the undersigned without the necessity of filing additional joint
acquisition statements. The undersigned acknowledge that each shall be
responsible for the timely filing of such amendments, and for the completeness
and accuracy of the information concerning him, her or it contained therein, but
shall not be responsible for the completeness and accuracy of the information
concerning the other entities or persons, except to the extent that he, she or
it knows or has reason to believe that such information is inaccurate.
Dated: August 15, 2005
/s/ Meridee A. Moore
----------------------------------------
WS PARTNERS, L.L.C.,
On its own behalf and
As the General Partner of
WATERSHED CAPITAL PARTNERS, L.P.
and WATERSHED CAPITAL INSTITUTIONAL PARTNERS, L.P.
By Meridee A. Moore,
Senior Managing Member
/s/ Meridee A. Moore
----------------------------------------
WATERSHED ASSET MANAGEMENT, L.L.C.
On its own behalf and on behalf of
WCIP CAYMAN, LTD.
By Meridee A. Moore,
Senior Managing Member
/s/ Meridee A. Moore
----------------------------------------
Meridee A. Moore
Page 24 of 46 Pages
EXHIBIT 5
to
SCHEDULE 13D
THE OFFER AND SALE OF THE WARRANT REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAW. NEITHER THIS WARRANT NOR THE UNDERLYING STOCK, NOR ANY PORTION
THEREOF OR INTEREST THEREIN, MAY BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
UNLESS THE SAME IS REGISTERED AND QUALIFIED IN ACCORDANCE WITH SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAW, OR, IN THE OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY, SUCH REGISTRATION AND QUALIFICATION ARE NOT
REQUIRED.
Warrant No. W-__ May 1, 2006
WARRANT
to Purchase the Common Stock of
Hawaiian Holdings, Inc.
THIS CERTIFIES THAT, for value received, _____________ having an
address at _______________________________________________________________, or
registered assigns, is entitled to purchase from Hawaiian Holdings, Inc., a
Delaware corporation, or any successor (the "Company"), in whole or in part, at
a purchase price of $7.20 per share (subject to adjustment as provided herein),
at any time, from and after the date hereof to and including June 1, 2010,
_______ shares of the fully paid and nonassessable Common Stock (as herein
defined) (as such number may be adjusted as provided herein).
The shares of Common Stock which may be purchased pursuant to this
Warrant are referred to herein as the "Aggregate Number" Certain terms used in
this Warrant are defined in Section 6.
This Warrant certificate is being issued to consummate the distribution
of Warrant No. W-3 by RC Aviation LLC to its members.
The number of shares of Common Stock purchasable hereunder ("Warrant
Shares") is subject to adjustment as hereinafter set forth. This Warrant is
subject to the following provisions, terms and conditions:
1. (a) Exercise of Warrant. The rights represented by this Warrant may
be exercised by the Holder hereof, in whole or in part (but not as to a
fractional share of Common Stock), by (A) the delivery of this Warrant, together
with a properly completed Subscription Form in the form attached hereto, to the
principal office of the Company at 3375 Koapaka Street, Suite G350, Honolulu, HI
96819 (or to such other address as it may designate by notice in writing to the
Holder) and (B) payment to the Company of the Warrant Purchase Price for the
Warrant Shares being purchased (i) by cash or by certified check or bank draft,
(ii) as provided in Section 1(b) or (iii) any combination thereof. In the case
of payment of all or a portion of the Warrant Purchase Price pursuant to Section
1(b), the direction of the Holder to make a "cashless exercise" shall serve as
accompanying payment for that potion of the Warrant Purchase Price. The Company
agrees that the shares so purchased shall be deemed to be issued to the Holder
as the record owner of such shares as of the close of business on the date on
which this Warrant shall have
Page 25 of 46 Pages
been delivered to the Company and payment made for such shares as aforesaid.
Certificates for the shares so purchased shall be delivered to the Holder within
ten (10) Business Days after the rights represented by this Warrant shall have
been so exercised, and, unless this Warrant has expired, a new Warrant
representing, and with an Aggregate Number equal to, the number of Warrant
Shares, if any, with respect to which this Warrant shall not then have been
exercised, in all other respects identical with this Warrant, shall also be
issued and delivered to the Holder within such time, or, at the request of such
Holder, appropriate notation may be made on this Warrant and signed by the
Company and the same returned to such Holder.
(b) Cashless Exercise. If the sale of the Warrant Shares is not covered
by a registration statement under the Securities Act, the Holder shall have the
right to pay all or a portion of the Warrant Purchase Price by making a
"Cashless Exercise" pursuant to this Section 1(b), in which case (i) shares of
the Company's Common Stock other than the Warrant Shares or (ii) at any time
after June 1, 2006, the Warrant Shares to be acquired upon the exercise of this
Warrant may be applied to pay the exercise price in connection with the exercise
of this Warrant in whole or in part. Any shares of Common Stock or Warrant
Shares transferred to the Company as payment of the exercise price under this
Warrant shall be valued at the Fair Market Value of such shares of Common Stock
or Warrant Shares.
(c) Transfer Restriction Legend. Each certificate for Warrant Shares
issued upon exercise of this Warrant, unless at the time of exercise the offer
and sale of such Warrant Shares are registered under the Securities Act, shall
bear the following legend (and any additional legend required by applicable law
or rule) on the face thereof:
The offer and sale of the shares of stock
represented hereby have not been registered
pursuant to the Securities Act of 1933, as
amended, or any state securities law.
Neither these shares, nor any portion
thereof or interest therein, may be sold,
transferred or otherwise disposed of unless
the same are registered and qualified in
accordance with said Act and any applicable
state securities law, or, in the opinion of
counsel reasonably satisfactory to the
Company, such registration and qualification
are not required.
The provisions of Section 2 shall be binding upon all holders of certificates
for Warrant Shares bearing the above legend and shall also be applicable to all
holders of this Warrant.
(d) Expenses and Taxes on Exercise. The Company shall pay all expenses,
taxes and other charges payable in connection with the preparation, execution
and delivery of any stock certificates and substitute Warrants pursuant to this
Section 1, except that, in case such stock certificates or Warrants shall be
registered in a name or names other than the name of the holder of this Warrant,
funds sufficient to pay all stock transfer taxes which shall be payable upon the
execution and delivery of such stock certificates or Warrants shall be paid by
the Holder to the Company at the time the Company delivers such stock
certificates or Warrants to the Company for exercise.
(e) Limitation on Exercise. Notwithstanding any provision of this
Warrant to the
Page 26 of 46 Pages
contrary, the number of shares of Common Stock that may be acquired by the
Holder upon any exercise of this Warrant shall be limited to the extent
necessary to ensure that, following such exercise, the total number of shares of
Common Stock then beneficially owned by Holder, its affiliates, any investment
manager having discretionary investment authority over the accounts or assets of
the Holder, or any other Persons whose beneficial ownership of Common Stock
would be aggregated with the Holder's for purposes of Section 13(d) and Section
16 of the Securities Exchange Act of 1934 (the "Exchange Act") does not exceed
9.999% of the total number of issued and outstanding shares of Common Stock
(including for such purpose the shares of Common Stock issuable upon exercise of
this Warrant). For such purposes, beneficial ownership shall be determined in
accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. The Company's obligation to issue shares of Common Stock
in excess of the limitation referred to in this Section l(e) shall be suspended
(and shall not terminate or expire notwithstanding any contrary provisions
hereof) until such time, if any, as such shares of Common Stock may be issued in
compliance with such limitation. By written notice to the Company at any time on
or after the date hereof, the Holder may waive the provisions of this Section
1(e), or increase or decrease such limitation percentage to any other percentage
specified in such notice, not to exceed 9.999%. Any such waiver, or increase or
decrease, will not be effective until the sixty-fifth day after such notice is
delivered to the Company
2. (a) Warrants Not Registered: Transferee Restrictions. Each Holder,
by acceptance thereof, represents and acknowledges that the offer and sale of
this Warrant are not being registered under the Securities Act, that the
issuance of this Warrant is being made in reliance on the exemption from
registration under Section 4(2) of the Securities Act as not involving any
public offering and that the Company's reliance on such exemption is predicated
in part on the representations made by the initial Holder of this Warrant to the
Company that such Holder (i) is acquiring this Warrant for investment purposes
for its own account, with no present intention of reselling or otherwise
distributing the same in violation of the Securities Act, subject, nevertheless,
to any requirement of law that the disposition of its property shall at all
times be within its control, (ii) is an "accredited investor" as defined in
Regulation D under the Securities Act and (iii) has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of the investments made or to be made in connection with
the acquisition and exercise of this Warrant. Neither this Warrant nor the
related Warrant Shares may be transferred except pursuant to an effective
registration statement under the Securities Act or upon the conditions specified
in Section 2(b).
(b) Notice of Transfer, Opinion of Counsel. Each Holder, by acceptance
hereof, agrees that prior to the disposition of this Warrant or of any Warrant
Shares, other than pursuant to an effective registration under the Securities
Act, such Holder will give written notice to the Company expressing such
Holder's intention to effect such disposition and describing briefly such
Holder's intention as to the manner in which this Warrant or the Warrant Shares
theretofore issued or thereafter issuable upon exercise hereof, are to be
disposed together with an opinion of counsel as may be designated by such Holder
and reasonably satisfactory to the Company as to the necessity or non-necessity
of registration under the Securities Act. If in the opinion of such counsel, the
proposed disposition does not require registration under the Securities Act of
the disposition of this Warrant and/or the Warrant Shares issuable or issued
upon the exercise of this Warrant, such Holder shall be entitled to dispose of
this Warrant and/or the Warrant Shares
Page 27 of 46 Pages
theretofore issued upon the exercise hereof, all in accordance with the terms of
the notice delivered by such Holder to the Company. The Company is entitled to
rely on the most recent written notice from the Holder with respect to the
ownership of the Warrant.
3. Representations, Warranties and Covenants of the Company.
--------------------------------------------------------
(a) The Company hereby represents and warrants that:
(A) The Company has full corporate power and
authority to execute and deliver this Warrant.
(B) The execution and delivery of this Warrant and
the consummation by the Company of the transactions
contemplated hereby have been duly and validly approved by all
necessary corporate action on the part of the Company.
(C) This Warrant has been duly executed and delivered
by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable in accordance with its
terms.
(D) The Holder of this Warrant, when such Warrant is
issued by the Company to such Holder, shall have good title
thereto free from all taxes, liens and charges with respect to
the issuance thereof.
(b) The Company covenants and agrees that:
(A) Reservation of Shares. During the period within
which the rights represented by this Warrant may be exercised,
the Company will have at all times authorized, and reserved
for the purpose of issue or transfer upon exercise of the
rights evidenced by this Warrant, a sufficient number of
shares of the Common Stock to provide therefore
(B) Issuance of Shares. The Warrant Shares issued
pursuant to the exercise of this Warrant will, upon issuance,
be duly and validly issued, fully paid and nonassessable and
the holder of such Warrant Shares shall have good title to
such Warrant Shares free from all taxes, liens and charges
with respect to the issuance thereof.
(C) Listing on Securities Exchanges. The Company
promptly will procure at its sole expense the listing of all
Warrant Shares then registered for public sale (subject to
issuance or notice of issuance) on all stock exchanges on
which the shares of Common Stock are then listed.
4. Participation in Distributions of Common Stock and Certain
----------------------------------------------------------
Adjustments.
-----------
Under certain conditions, the Aggregate Number is subject to adjustment
as set forth in this Section 4. No adjustments shall be made under this Section
4 as a result of the issuance by the Company of the Warrant Shares upon exercise
of this Warrant.
Page 28 of 46 Pages
(a) Adiustments. The Aggregate Number, after taking into consideration
any prior adjustments pursuant to this Section 4, shall be subject to adjustment
from time to time as follows and, thereafter, as adjusted, shall be deemed to be
the Aggregate Number hereunder. No adjustment shall be made under this Section
4(a) upon the issuance of Convertible Securities or Common Stock issuable upon
exercise or conversion of such Convertible Securities if an adjustment shall
previously have been made upon the issuance of such Convertible Securities
pursuant to Section 4(c).
(i) Stock Dividends; Subdivisions and
Combinations. In case at any time or from time to
time the Company shall:
(A) issue to the holders of the Common Stock a
dividend payable in, or other distribution of, Common Stock (a
"Stock Dividend"),
(B) subdivide its outstanding shares of Common Stock
into a larger number of shares of Common Stock, including
without limitation by means of a stock split (a "Stock
Subdivision"), or
(C) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock (a "Stock
Combination"),
then the Aggregate Number in effect immediately prior thereto
shall be (1) proportionately increased in the case of a Stock
Dividend or a Stock Subdivision and (2) proportionately
decreased in the case of a Stock Combination. In the event the
Company shall declare or pay, without consideration, any
dividend on the Common Stock payable in any right to acquire
Common Stock for no consideration, then the Company shall be
deemed to have made a Stock Dividend in an amount of shares
equal to the maximum number of shares issuable upon exercise
of such rights to acquire Common Stock.
(ii) Other Distributions. In case at any
time or from time to time the Company shall take a
record of the holders of the Common Stock for the
purpose of entitling them to receive any dividend or
other distribution, other than a distribution of
Common Stock, Convertible Securities or options,
warrants or other rights to subscribe for or purchase
any Convertible Securities (collectively, a
"Distribution"), of:
(A) Cash (other than regular quarterly dividends
payable out of current consolidated earnings);
(B) any evidences of its indebtedness, any shares of
its CapitalStock (other than Common Stock) or any other
securities or property of any nature whatsoever (other than
cash); or
(C) any options, warrants or other rights to
subscribe for or purchase any of the following: any evidences
of its indebtedness, any shares of its Capital Stock (other
than Common Stock) or any other securities or property of any
nature whatsoever (other than cash),
Page 29 of 46 Pages
then the Holder shall be entitled to receive such Distribution
as if the Holder had fully exercised this Warrant upon the
exercise of this Warrant at any time on or after the taking of
such record, the number of Warrant Shares to be received upon
exercise of this Warrant determined as stated herein and, in
addition and without further payment, the cash, evidences of
indebtedness, stock, securities, other property, options,
warrants and/or other rights (or any portion thereof) to which
the Holder would have been entitled by way of such
Distribution and subsequent dividends and distributions
through the date of exercise as if such Holder (x) had fully
exercised this Warrant immediately prior to such Distribution
and (y) had retained the Distribution in respect of the Common
Stock and all subsequent dividends and distributions of any
nature whatsoever in respect of any stock or securities paid
as dividends and distributions and originating directly or
indirectly from such Common Stock.
A reclassification of the Common Stock into shares of
Common Stock and shares of any other class of stock shall be
deemed a Distribution by the Company to the holders of the
Common Stock of such shares of such other class of stock and,
if the outstanding shares of Common Stock shall be changed
into a larger or smaller number of shares of Common Stock as a
part of such reclassification, such event shall be deemed a
Stock Subdivision or Stock Combination, as the case may be, of
the outstanding shares of Common Stock within the meaning of
Section 4(a)(i) hereof.
(iii) Issuance of Common Stock. If at any
time or from time to time the Company shall (except
as hereinafter provided in this Section 4(a)(iii))
issue or sell any additional shares of Common Stock
for a consideration per share less than the Fair
Market Value, then, effective on the date specified
below, the Aggregate Number shall be adjusted by
multiplying (A) the Aggregate Number immediately
prior thereto by (B) a fraction, the numerator of
which shall be the sum of the number of shares of
Common Stock outstanding immediately prior to the
issuance of such additional shares of Common Stock
(calculated on a Fully Diluted basis) and the number
of such additional shares of Common Stock so issued
and the denominator of which shall be the sum of the
number of shares of Common Stock outstanding
immediately prior to the issuance of such additional
shares of Common Stock (calculated on a Fully Diluted
basis) and the number of shares of Common Stock which
the aggregate consideration for the total number of
such additional shares of Common Stock so issued
would purchase at the Fair Market Value. The date as
of which the Fair Market Value shall be computed
shall be the earlier of the date on which the Company
shall enter into a firm contract or commitment for
the issuance of such additional shares of Common
Stock or the date of actual issuance of such
additional shares of Common Stock.
The provisions of this Section 4(a)(iii) shall not apply to any
issuance of additional shares of Common Stock for which an adjustment is
otherwise provided under
Page 30 of 46 Pages
Section 4(a)(i) hereof. No adjustment of the Aggregate Number shall be made
under this Section 4(a)(iii) upon:
(A) the issuance of any additional shares of Common Stock
which are issued pursuant to (x) the exercise of other subscription or
purchase rights or (y) the exercise of any conversion or exchange
rights in any Convertible Securities, provided that for purposes of
clauses (x) or (y) an adjustment shall previously have been made upon
the issuance of such other rights or upon the issuance of such
Convertible Securities pursuant to Section 4(a)(iv) or (v) hereof or no
such adjustment shall have been required upon the issuance of such
other rights or Convertible Securities;
(B) the issuance of Common Stock in any merger or other
acquisition of a business or Person approved by the Board of Directors
of the Company;
(C) the issuance of Common Stock in a Qualified Public
Offering;
(D) the issuance of Common Stock upon the exercise of rights
issued in connection with the contemplated rights offering by the
Company for the purpose of the redemption of the Series A Subordinated
Convertible Notes and Series B Subordinated Convertible Notes issued by
the Corporation (collectively, the "Subordinated Convertible Notes"),
prior to the first anniversary of the issuance of the Subordinated
Convertible Notes;
(E) the issuance of up to 1,500,000 shares of Common Stock
issuable to unions of Hawaiian Airlines, Inc., in transactions approved
by the Board of Directors of the Company;
(F) the issuance of shares of Common Stock upon the exercise
of stock options or other awards made or denominated in shares of
Common Stock under the Company's 2005 Stock Incentive Plan or any of
the Company's other stock plans including any stock option, stock
purchase, restricted stock or similar plan hereafter adopted by the
Board of Directors of the Company and, if required by applicable law or
stock exchange requirement, approved by the stockholders of the
Company;
(G) the issuance of Common Stock on exercise or conversion of
Convertible Securities outstanding on the Closing Date; or
(H) the issuance of Common Stock pursuant to Convertible
Securities to financial institutions or similar entities in
transactions approved by the Board of Directors of the Company, the
principal purpose of which is not raising capital through the sale of
equity securities.
(iv) Warrants and Options. If at any time or
from time to time the Company shall take a record of
the holders of the Common
Page 31 of 46 Pages
Stock for the purpose of entitling them to receive a
distribution of, or shall in any manner (whether
directly, by assumption in a merger in which the
Company is the surviving corporation and in which the
shareholders of the Company immediately prior to the
merger continue to own more than fifty percent (50%)
of the outstanding Common Stock immediately after the
merger and for a period of one hundred eighty (180)
days thereafter, or otherwise) issue or sell any
warrants, options or other rights to subscribe for or
purchase, directly or indirectly, any Convertible
Securities, whether or not the rights to subscribe,
purchase, exchange or convert thereunder are
immediately exercisable, and the consideration per
share for which additional shares of Common Stock may
at any time thereafter be issuable pursuant to such
warrants, options or other rights or pursuant to the
terms of such Convertible Securities shall be less
than the Fair Market Value, then the Aggregate Number
shall be adjusted as provided in Section 4(a)(iii)
hereof on the basis that (A) the maximum number of
additional shares of Common Stock issuable pursuant
to all such warrants, options or other rights or
necessary to effect the conversion or exchange of all
such Convertible Securities shall be deemed to have
been issued as of the date of the determination of
the Fair Market Value as hereinafter provided and (B)
the aggregate consideration for such maximum number
of additional shares of Common Stock shall be deemed
to be the minimum consideration received and
receivable by the Company for the issuance of such
additional shares of Common Stock pursuant to the
terms of such warrants, options or other rights or
such Convertible Securities. For purposes of this
Section 4(a)(iv), the effective date of such
adjustment and the date as of which the Fair Market
Value shall be computed shall be the earliest of (x)
the date on which the Company shall take a record of
the holders of the Common Stock for the purpose of
entitling them to receive any such warrants, options
or other rights, (y) the date on which the Company
shall enter into a firm contract or commitment for
the issuance of such warrants, options or other
rights and (z) the date of actual issuance of such
warrants, options or other rights.
No adjustment of the Aggregate Number shall be made under this
Section 4(a)(iv) upon:
(A) the issuance of any warrants, options or other
rights which are issued pursuant to the exercise of any
warrants, options or other rights if an adjustment shall have
been made or is contemporaneously made or if no such
adjustment shall have been required upon the issuance of such
warrants, options or other rights, pursuant to this Section
4(a)(iv);
(B) the issuance of warrants, options or other rights
to subscribe for or purchase Convertible Securities in any
merger or other acquisition of a business or Person approved
by the Board of Directors of the Company;
Page 32 of 46 Pages
(C) the issuance of warrants, options or other rights
to subscribe for or purchase shares of Common Stock or other
awards made or denominated in shares of Common Stock under the
Company's 2005 Stock Incentive Plan or any of the Company's
other stock plans including any stock option, stock purchase,
restricted stock or similar plan hereafter adopted by the
Board of Directors of the Company and, if required by
applicable law or stock exchange requirement, approved by the
stockholders of the Company;
(D) the issuance of rights to purchase Common Stock
issued in connection with the contemplated rights offering by
the Company for the purpose of the redemption of the
Subordinated Convertible Notes, prior to the first anniversary
of the issuance of the Subordinated Convertible Notes; or
(E) the issuance of options, warrants or other rights
to subscribe for or purchase Convertible Securities to
financial institutions or similar entities in transactions
approved by the Board of Directors of the Company, the
principal purpose of which is not raising capital through the
sale of equity securities.
(v) Convertible Securities. If at any time
or from time to time the Company shall take a record
of the holders of the Common Stock for the purpose of
entitling them to receive a distribution of or shall
in any manner (whether directly, by assumption in a
merger in which the Company is the surviving
corporation and in which the shareholders of the
Company immediately prior to the merger continue to
own more than fifty percent (50%) of the outstanding
Common Stock immediately after the merger and for a
period of one hundred eighty (180) days thereafter,
or otherwise) issue or sell Convertible Securities,
whether or not the rights to exchange or convert
thereunder are immediately exercisable, and the
consideration per share for the additional shares of
Common Stock which may at any time thereafter be
issuable pursuant to the terms of such Convertible
Securities shall be less than the Fair Market Value,
then the Aggregate Number shall be adjusted as
provided in Section 4(a)(iii) hereof on the basis
that (A) the maximum number of additional shares of
Common Stock necessary to effect the conversion or
exchange of all such Convertible Securities shall be
deemed to have been issued as of the date of the
determination of the Fair Market Value as herein
provided and (B) the aggregate consideration for such
maximum number of additional shares of Common Stock
shall be deemed to be the minimum consideration
received and receivable by the Company for the
issuance of such additional shares of Common Stock
pursuant to the terms of such Convertible Securities.
For purposes of this Section 4(a)(v), the effective
date of such adjustment and the date as of which the
Fair Market Value shall be computed shall be the
earliest of (x) the date on which the Company shall
take a record of the holders of the Common Stock for
the purpose of entitling them to receive any such
Convertible Securities, (y) the date on which the
Company shall enter into a
Page 33 of 46 Pages
firm contract or commitment for the issuance of such
Convertible Securities and (z) the date of actual
issuance of such Convertible Securities.
No adjustment of the Aggregate Number shall be made under this
Section 4(a)(v) upon:
(A) the issuance of any Convertible Securities which
are issued pursuant to the exercise of any warrants, options
or other subscription or purchase rights if an adjustment
shall previously have been made or is contemporaneously made
or if no such adjustment shall have been required upon the
issuance of such warrants, options or other rights pursuant to
Section 4(a)(iv) hereof;
(B) the issuance of Convertible Securities in any
merger or other acquisition of a business or Person approved
by the Board of Directors of the Company;
(C) the issuance of Convertible Securities upon the
exercise, conversion or the extension of the term of
Convertible Securities outstanding on the Closing Date or the
cancellation and reissuance with identical terms and
conditions except for a longer term of any such Convertible
Securities outstanding on the Closing Date; or
(D) the issuance of Convertible Securities to
financial institutions or similar entities in transactions
approved by the Board of Directors of the Company, the
principal purpose of which is not raising capital through the
sale of equity securities.
(vi) Subsequent Adjustments. If at any time
after any adjustment of the Aggregate Number shall
have been made pursuant to Section 4(a) (iv) or (v)
hereof on the basis of the issuance of warrants,
options or other rights or the issuance of
Convertible Securities, or after any new adjustments
of the Aggregate Number shall have been made pursuant
to this Section 4(a)(vi), then:
(A) such warrants; options or rights or the right of
conversion or exchange in such Convertible Securities shall
expire, and all or a portion of such warrants, options or
rights, or the right of conversion or exchange in respect of
all or a portion of such Convertible Securities, as the case
may be, shall not have been exercised prior to such
expiration, then
(B) such previous adjustment shall be rescinded and
annulled and the additional shares of Common Stock which were
deemed to have been issued by virtue of the computation made
in connection with such adjustment shall no longer be deemed
to have been issued by virtue of such computation;
(C) simultaneously therewith, a recomputation shall
be made of the effect of such warrants, options or rights or
Convertible Securities on the determination of the Aggregate
Number, which shall be made on the basis of
Page 34 of 46 Pages
treating the number of additional shares of Common Stock, if
any, theretofore actually issued pursuant to any previous
exercise of such warrants, options or rights or such right of
conversion or exchange as having been issued on the date or
dates of such exercise and, in the case of a recomputation of
a calculation originally made pursuant to Section 4(a)(iv) or
(v), for the consideration actually received and receivable
therefor;
and, if and to the extent called for by the foregoing
provisions of Section 4(a)(vi) on the basis aforesaid, a new
adjustment of the Aggregate Number shall be made, such new
adjustment shall supersede the previous adjustment so
rescinded and annulled.
(vii) Miscellaneous. The following
provisions shall be applicable to the making of
adjustments of the Aggregate Number provided above in
this Section 4(a):
(A) Whenever the Aggregate Number is adjusted
pursuant to this Section 4(a), the Warrant Purchase Price per
Warrant Share payable upon exercise of this Warrant shall be
adjusted by multiplying the Warrant Purchase Price immediately
prior to such adjustment by a fraction, the numerator of which
shall be the Aggregate Number prior to such adjustment, and
the denominator of which shall be the Aggregate Number
following such adjustment.
(B) The sale or other disposition of any issued
shares of Common Stock owned or held by or for the account of
the Company or any of its Subsidiaries shall be deemed an
issuance thereof for the purposes of this Section 4(a).
(C) To the extent that any additional shares of
Common Stock or any Convertible Securities or any warrants,
options or other rights to subscribe for or purchase any
Convertible Securities (1) are issued solely for cash
consideration, the consideration received by the Company
therefor shall be deemed to be the amount of the cash received
by the Company therefor or (2) are offered by the Company for
subscription, the consideration received by the Company shall
be deemed to be the subscription price, in any such case
excluding any amounts paid or receivable for accrued interest
or accrued or accumulated dividends. To the extent that such
issuance shall be for a consideration other than cash, or
partially for cash and partially for other consideration, then
the amount of such consideration shall be deemed to be the
fair market value of such other consideration plus, if
applicable, the amount of such cash at the time of such
issuance, determined in the manner set forth in Section
4(d)(ii). In case any additional shares of Common Stock or any
Convertible Securities or any warrants, options or other
rights to subscribe for or purchase any Convertible Securities
shall be issued in connection with any merger in which the
Company is the survivor and issues any securities, the amount
of consideration therefor shall be deemed to be the fair
market value of such additional shares of Common Stock,
Page 35 of 46 Pages
Convertible Securities, warrants, options or other rights, as
the case may be, determined in the manner set forth in Section
4(d)(ii).
The consideration for any shares of Common Stock
issuable pursuant to the terms of any Convertible Securities
shall be equal to (x) the consideration received by the
Company for issuing any warrants, options or other rights to
subscribe for or purchase such Convertible Securities, plus
(y) the consideration paid or payable to the Company in
respect of the subscription for or purchase of such
Convertible Securities, plus (z) the consideration, if any,
payable to the Company upon the exercise of the right of
conversion or exchange of such Convertible Securities.
In case of the issuance at any time of any additional
shares of Common Stock or Convertible Securities in payment or
satisfaction of any dividends upon any class of stock other
than Common Stock, the Company shall be deemed to have
received for such additional shares of Common Stock or
Convertible Securities a consideration equal to the amount of
such dividend so paid or satisfied.
(D) The adjustments required by the preceding
paragraphs of this Section 4(a) shall be made whenever and as
often as any specified event requiring an adjustment shall
occur, except that no adjustment of the Aggregate Number that
would otherwise be required shall be made if the amount of
such adjustment shall be less than one percent (1%) of the
number of Warrant Shares issuable upon exercise of the
Warrants immediately prior to such adjustment. Any adjustment
representing a change of less than such minimum amount (except
as aforesaid) shall be carried forward and made as soon as
such adjustment, together with other adjustments required by
this Section 4(a) and not previously made, would result in a
minimum adjustment. For the purpose of any adjustment, any
specified event shall be deemed to have occurred at the close
of business on the date of its occurrence.
(E) In computing adjustments under this Section 4(a),
fractional interests in Common Stock shall be taken into
account to the nearest one-thousandth of a share.
(F) If the Company shall take a record of the holders
of the Common Stock for the purpose of entitling them to
receive a dividend or distribution or subscription or purchase
rights and shall, thereafter and before the distribution to
shareholders thereof, legally abandon its plan to pay or
deliver such dividend, distribution, subscription or purchase
rights, then no adjustment shall be required by reason of the
taking of such record and any such adjustment previously made
in respect thereof shall be rescinded and annulled.
(b) Changes in Common Stock. In case at any time the Company shall
initiate any transaction or be a party to any transaction (including, without
limitation, a merger, consolidation, share exchange, sale, lease or other
disposition of all or substantially all of the Company's assets,
Page 36 of 46 Pages
liquidation, recapitalization or reclassification of the Common Stock) in
connection with which the previous outstanding Common Stock shall be changed
into or exchanged for different securities of the Company or Capital Stock or
other securities of another corporation or interests in a non-corporate entity
or other property (including cash) or any combination of the foregoing (each
such transaction being herein called a "Transaction"), then, as a condition of
the consummation of the Transaction and without duplication of any adjustment
made pursuant to Section 4(a)(i), lawful, enforceable and adequate provision
shall be made so that the Holder shall be entitled to receive upon exercise of
this Warrant at any time on or after the consummation of the Transaction, in
lieu of the Warrant Shares issuable upon such exercise prior to such
consummation, the securities or other property (including cash) to which such
Holder would have been entitled upon consummation of the Transaction if such
Holder had exercised this Warrant immediately prior thereto (subject to
adjustments from and after the consummation date as nearly equivalent as
possible to the adjustments provided for in this Section 4). The foregoing
provisions of this Section 4(b) shall similarly apply to successive
Transactions.
(c) Other Action Affecting Capital Stock. In case at any time or from
time to time the Company shall take any action of the type contemplated in
Section 4(a) or (b) hereof but not expressly provided for by such provisions
(other than the granting of stock appreciation rights, phantom stock rights or
other rights with equity features) other than cash bonuses, then, unless in the
opinion of the Company's Board of Directors such action will not have a material
adverse effect upon the rights of the Holder (taking into consideration, if
necessary, any prior actions which the Company's Board of Directors deemed not
to materially adversely affect the rights of the Holder), the Aggregate Number
shall be adjusted in such manner and at such time as the Company's Board of
Directors may in good faith determine to be equitable in the circumstances.
(d) Notices.
(i) Notice of Proposed Actions. In case the Company
shall propose (A) to pay any dividend payable in stock of any
class to the holders of the Common Stock or to make any other
distribution to the holders of the Common Stock, (B) to offer
to the holders of the Common Stock rights to subscribe for or
to purchase any Convertible Securities or additional shares of
Common Stock or shares of stock of any class or any other
securities, warrants, rights or options, (other than the
exercise of preemptive rights by such a holder) (C) to effect
any reclassification of the Common Stock, (D) to effect any
recapitalization, stock subdivision, stock combination or
other capital reorganization, (E) to effect any consolidation
or merger, share exchange, or sale, lease or other disposition
of all or substantially all of its property, assets or
business, (F) to effect the liquidation, dissolution or
winding up of the Company, or (G) to effect any other action
which would require an adjustment under this Section 4, then
in each such case the Company shall give to the Holder written
notice of such proposed action, which shall specify the date
on which a record is to be taken for the purposes of such
stock dividend, stock subdivision, stock combination,
distribution or rights, or the date on which such
reclassification, recapitalization, reorganization,
consolidation, merger, share exchange, sale, lease, transfer,
disposition, liquidation, dissolution, winding up or other
Page 37 of 46 Pages
transaction is to take place and the date of participation
therein by the holders of Common Stock, if any such date is to
be fixed, or the date on which the transfer of Common Stock is
to occur, and shall also set forth such facts with respect
thereto as shall be reasonably necessary to indicate the
effect of such action on the Common Stock and on the Aggregate
Number after giving effect to any adjustment which will be
required as a result of such action. Such notice shall be so
given in the case of any action covered by clause (A) or (B)
above at least ten (10) days prior to the record date for
determining holders of the Common Stock for purposes of such
action and, in the case of any other such action, at least ten
(10) days prior to the earlier of the date of the taking of
such proposed action or the date of participation therein by
the holders of Common Stock.
(ii) Adjustment Notice. Whenever the Aggregate Number
is to be adjusted pursuant to this Section 4, unless otherwise
agreed by the Holder, the Company shall promptly (and in any
event within twenty (20) Business Days after the event
requiring the adjustment) prepare a certificate signed by the
Chief Financial Officer of the Company, setting forth, in
reasonable detail, the event requiring the adjustment and the
method by which such adjustment is to be calculated. The
Company shall keep at its principal office copies of all such
certificates and cause the same to be available for inspection
at said office during normal business hours by the Holder or
any prospective purchaser of the Warrant (in whole or in part)
if so designated by the Holder.
5. No Dilution or Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, share exchange, dissolution or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant, including, without limitation, the adjustments
required under Section 4 hereof, and will at all times in good faith assist in
the carrying out of all such terms and in taking of all such action as may be
necessary or appropriate to protect the rights of the Holder against dilution or
other impairment. Without limiting the generality of the foregoing and
notwithstanding any other provision of this Warrant to the contrary (including
by way of implication), the Company (a) will not increase the par value of any
shares of Common Stock receivable on the exercise of this Warrant above the
amount payable therefor on such exercise or (b) will take all such action as may
be necessary or appropriate so that the Company may validly and legally issue
fully paid and nonassessable shares of Common Stock on the exercise of this
Warrant.
6. Definitions. The terms defined in this Section 6, whenever used in
this Warrant, shall, unless the context otherwise requires, have the respective
meanings hereinafter specified:
(a) "Aggregate Number" shall have the meaning set forth in the recitals
hereto.
(b) "Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in The City of New York are authorized or
required by law or executive order to close.
Page 38 of 46 Pages
(c) "Capital Stock" shall mean (a) with respect to any Person that is a
corporation, any and all shares, interests or equivalents in capital stock
(whether voting or nonvoting, and whether common or preferred) of such
corporation, and (b) with respect to any Person that is not a corporation, any
and all partnership, membership, limited liability company or other equity
interests of such Person that confer on a Person the right to receive a share of
the profits and losses of, or the distribution of assets of, the issuing Person;
and in each case, any and all warrants, rights or options to purchase, and all
conversion or exchange rights, voting rights, calls or rights of any character
with respect to, any of the foregoing, including, without limitation, any rights
in respect of any change in the value of any of the foregoing, including stock
appreciation rights and similar interests.
(d) "Cashless Exercise" shall have the meaning set forth in Section
1(b).
(e) "Closing Date" shall mean June 1, 2005.
(f) "Common Stock" shall mean the Common Stock, par value $.01 per
share, of the Company or any other Capital Stock of the Company into which such
stock is reclassified or reconstituted.
(g) "Company" shall have the meaning set forth in the introductory
paragraph hereto.
(h) "Convertible Securities" shall mean evidences of indebtedness,
shares of stock or other securities (including, without limitation, options and
warrants) which are directly or indirectly convertible, exercisable or
exchangeable, with or without payment of additional consideration in cash or
property, for shares of Common Stock, either immediately or upon the onset of a
specified date or the happening of a specified event.
(i) "Distribution" shall have the meaning set forth in Section
4(a)(ii).
(j) "Fair Market Value" shall mean, with respect to a share of Common
Stock on any date: (i) the fair market value of the outstanding Common Stock
over then ten (10) trading days prior to the date of calculation based upon (a)
if the Common Stock is listed on a national securities exchange, the closing
price per share of Common Stock on each such day published in The Wall Street
Journal (National Edition) or, if no such closing price on each such day is
published in The Wall Street Journal (National Edition), the average of the
closing bid and asked prices on each such day, as officially reported on the
principal national securities exchange on which the Common Stock is then listed
or admitted to trading; (b) if the Common Stock is not then listed or admitted
to trading on any national securities exchange, but is designated as a national
market system security, the last trading price of the Common Stock on each such
day; and (c) if there shall have been no trading on any such day or if the
Common Stock is not so designated, the average of the reported closing bid and
asked price of the Common Stock, on each such day as shown by NASDAQ and
reported by any member firm of the NYSE selected by the Company; or (ii) if none
of (i)(a), (b) or (c) is applicable, a market price per share determined in good
faith by the Board of Directors of the Company, which shall be deemed to be
"Fair Market Value".
(k) "Fully Diluted" shall mean, with respect to the Common Stock as of
a
Page 39 of 46 Pages
particular time, the total number of outstanding shares of Common Stock as of
such time as determined by treating (i) the shares issuable under the Warrants
as having been issued and (ii) all outstanding and "in-the-money" and then
exercisable Convertible Securities, as having been converted, exercised or
exchanged and the shares issuable thereunder as having been issued.
(1) "Holder" shall mean any holder of an interest in the Warrant or the
outstanding Warrant Shares who becomes a holder in compliance with Section 2
hereof.
(m) "Person" shall mean any individual, firm, corporation, limited
liability company, partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, Governmental Authority or other
entity of any kind, and shall include any successor (by merger or otherwise) of
such entity.
(n) "Qualified Public Offering" shall mean the consummation of a firm
commitment public offering of the Common Stock of the Company by a nationally
recognized investment banking firm pursuant to an effective registration
statement under the Securities Act covering the offer and sale of such
securities for cash for the account of the Company.
(o) "Required Holders" shall mean the holders of a majority of the
Total Warrant Shares.
(p) Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar federal statute, and the rules and regulations thereunder as the
same shall be in effect at the time.
(q) "Stock Combination" shall have the meaning set forth in Section
4(a)(i).
(r) "Stock Dividend' shall have the meaning set forth in Section
4(a)(i).
(s) "Stock Subdivision" shall have the meaning set forth in Section
4(a)(i).
(t) "Total Warrants" shall mean this Warrant, together with any
portions thereof assigned or transferred.
(u) "Total Warrant Shares" shall mean the shares of Common Stock
issuable upon exercise of the Total Warrants and which have not been so
exercised.
(v) "Transaction" shall have the meaning set forth in Section 4(b).
(w) "Warrant Purchase Price" shall mean the purchase price of $7.20 per
share of Common Stock payable upon exercise of this Warrant, as adjusted as
provided herein.
(x) "Warrants" shall mean this Warrant and all Warrants issued in
exchange, transfer or replacement thereof.
(y) "Warrant Shares" shall have the meaning set forth in the fourth
paragraph hereto.
Page 40 of 46 Pages
(z) As used herein, any reference to a specified percentage of Warrants
or Warrant Shares shall exclude any Warrants or Warrant Shares held by the
Company or a subsidiary thereof.
7. Exchange, Replacement and Assignability. This Warrant is
exchangeable, upon the surrender hereof by the Holder at the office or agency of
the Company described in Section 1, for new Warrants of like tenor and date
representing in the aggregate the right to purchase the number of shares which
may be purchased hereunder, each of such new Warrants to represent the right to
purchase such number of shares as shall be designated by such Holder at the time
of such surrender. Upon receipt of evidence satisfactory to the Company of the
loss, theft, destruction or mutilation of Warrants and, in the case of any such
loss, theft or destruction, of an indemnity letter (reasonably satisfactory to
the Company) of an institutional holder of such Warrants, or in other cases, of
a bond of indemnity or other security satisfactory to the Company, or, in the
case of any such mutilation, upon surrender or cancellation of Warrants, the
Company will issue to the Holder a new Warrant of like tenor and date, in lieu
of this Warrant or such new Warrants, representing the right to purchase the
number of shares which may be purchased hereunder. Subject to compliance with
Section 2, this Warrant and all rights hereunder are transferable in whole or in
part upon the books of the Company by the registered holder hereof in person or
by duly authorized attorney, and new Warrants shall be made and delivered by the
Company, of the same tenor and date as this Warrant but registered in the name
of the transferees, upon surrender of this Warrant, duly endorsed, to the
appropriate office or agency of the Company. All expenses, taxes (other than
stock transfer taxes) and other charges payable in connection with the
preparation, execution and delivery of Warrants pursuant to this Section 7 shall
be paid by the Company.
8. Transfer Books. No Rights as Stockholder, Survival of Rights. The
Company will at no time close its transfer books against the transfer of this
Warrant or any Warrant Shares in any manner which interferes with the timely
exercise of this Warrant. This Warrant shall not entitle the Holder to any
voting rights or any rights as a stockholder of the Company. The rights and
obligations of the Company, of the Holder of this Warrant and of any Holder of
Warrant Shares issued upon exercise of this Warrant pursuant to the terms of
this Warrant shall survive the exercise of this Warrant.
9. Omissions and Indulgences: Amendment and Waiver.
(a) It is agreed that any waiver, permit, consent or approval of any
kind or character on the Holder's part of any breach or default under this
Warrant, or any waiver on the Holder's part of any provisions or conditions of
this Warrant must be in writing.
(b) Any amendment, supplement or modification of or to any provision of
this Warrant, any waiver of any provision of this Warrant and any consent to any
departure by any party from the terms of any provision of this Warrant shall be
effective only if it is made or given in writing and signed by the Company and
the Required Holders; provided, however, that no such amendment, supplement or
modification may be made without the written consent of the Holder if such
amendment, supplement or modification changes the Aggregate Number, the Warrant
Purchase Price or the expiration date of this Warrant.
Page 41 of 46 Pages
(c) Any amendment or waiver consented to as provided in this Section 9
is binding upon each future holder of this Warrant and upon the Company without
regard to whether this Warrant has been marked to indicate such amendment or
waiver.
10. Rights of Transferees. Subject to compliance with Section 2, the
rights granted to the Holder hereunder of this Warrant shall pass to and inure
to the benefit of all subsequent transferees of all or any portion of the
Warrant (provided that the Holder and any transferee shall hold such rights in
proportion to their respective ownership of the Warrant and Warrant Shares)
until extinguished pursuant to the terms hereof.
11. Captions. The titles and captions of the Sections and other
provisions of this Warrant are for convenience of reference only and are not to
be considered in construing this Warrant.
12. Notices. All notices, demands and other communications provided for
or permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopy, overnight
courier service or personal delivery:
(a) if to the Company:
Hawaiian Holdings, Inc.
3375 Koapaka Street
Suite G-350
Honolulu, Hawaii 96819
Attention: Chief Executive Officer
Facsimile: (808) 835-3690
with copies to:
Dechert LLP
30 Rockefeller Plaza
New York, New York 10112
Attention: Charles I. Weissman, Esq.
Facsimile: (212) 698-3599
(b) if to the Holder:
_____________
_____________
_____________
_____________
Attention: _____________
Facsimile: _____________
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; when delivered by courier, if
delivered by commercial
Page 42 of 46 Pages
overnight courier service; five (5) Business Days after being deposited in the
mail, postage prepaid, if mailed; and when receipt is acknowledged, if
telecopied.
13. Successors and Assigns. This Warrant shall be binding upon and
inure to the benefit of the parties hereto and their respective successors or
heirs and personal representatives and permitted assigns; provided, that the
Company shall have no right to assign its rights, or to delegate its
obligations, hereunder without the prior written consent of the Holder.
14. Governing Law. THIS WARRANT IS TO BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE AND WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE.
15. Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof. The parties hereto further agree to replace such
invalid, illegal or unenforceable provision of this Warrant with a valid, legal
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such invalid, illegal or unenforceable
provision.
16. Entire Agreement. This Warrant contains the entire agreement among
the parties with respect to the subject matter hereof and thereby supercedes all
prior and contemporaneous agreements or understandings with respect thereto.
17. No Strict Construction. The Company and the Holder each acknowledge
that they have been represented by counsel in connection with this Warrant. The
Company and the Holder have participated jointly in the negotiation and drafting
of this Warrant. In the event an ambiguity or question of intent or
interpretation arises under any provision of this Warrant, this Warrant shall be
construed as if drafted jointly by the parties thereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Warrant.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 43 of 46 Pages
IN WITNESS WHEREOF, Hawaiian Holdings, Inc. has caused this Warrant to
be signed by its duly authorized officer and dated as of May 1, 2006.
HAWAIIAN HOLDINGS, INC.
/s/ Peter R. Ingram
------------------------------
Name: Peter R. Ingram
Title: Chief Financial Officer and Treasurer
Page 44 of 46 Pages
SUBSCRIPTION FORM
To: Hawaiian Holdings, Inc.
3375 Koapaka Street
Suite G-350
Honolulu, HI 96819
Attention: Chief Executive Officer
Facsimile: (808) 835-3690
1. The undersigned, pursuant to the provisions of the attached Warrant,
hereby elects to exercise this Warrant with respect to ____ shares of Common
Stock (the "Exercise Amount"). Capitalized terms used but not otherwise defined
herein have the meanings ascribed thereto in the attached Warrant.
2. The undersigned herewith tenders payment for such shares in the
following manner (please check type, or types, of payment and indicate the
portion of the Exercise Price to be paid by each type of payment):
----- Exercise for Cash --------------------------
----- Cashless Exercise --------------------------
3. Please issue a certificate or certificates representing the shares
issuable in respect hereof under the terms of the attached Warrant, as follows:
----------------------------------
(Name of Record Holder/Transferee)
and deliver such certificate or certificates to the following address:
-------------------------------------
(Address of Record Holder/Transferee)
4. The undersigned represents that the aforesaid shares are being
acquired for the account of the undersigned for investment and not with a view
to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such shares.
5. If the Exercise Amount is less than all of the shares of Common
Stock purchasable hereunder, please issue a new warrant representing the
remaining balance of such shares, as follows:
----------------------------------
(Name of Record Holder/Transferee)
Page 45 of 46 Pages
and deliver such warrant to the following address:
-------------------------------------
(Address of Record Holder/Transferee)
-------------------------------------
(Signature)
------------------
(Date)
Page 46 of 46 Pages