AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 10, 2002
Registration No. 333-63575
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HAWAIIAN HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 71-0879698
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
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3375 KOAPAKA STREET, SUITE G-350
HONOLULU, HAWAII 96819
(808) 835-3700
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
HAWAIIAN HOLDINGS, INC.
1996 STOCK INCENTIVE PLAN, AS AMENDED
(Full title of the plan)
LYN F. ANZAI, ESQ.
VICE PRESIDENT, SECRETARY AND
GENERAL COUNSEL
HAWAIIAN HOLDINGS, INC.
3375 KOAPAKA STREET, SUITE G-350
HONOLULU, HAWAII 96819
(808) 835-3700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (the "Amendment") to the
Registration Statement on Form S-8 (Registration No. 333-63575) of Hawaiian
Airlines, Inc., a Hawaii corporation ("Hawaiian"), is being filed by Hawaiian
Holdings, Inc., a Delaware corporation (the "Company"), pursuant to Rule 414
under the Securities Act of 1933, as amended (the "Securities Act"), to reflect
the reorganization of Hawaiian into a holding company structure (the
"Reorganization"), which was completed on August 29, 2002.
As a result of the Reorganization, Hawaiian became a wholly owned
subsidiary of the Company, and the shareholders of Hawaiian became shareholders
of the Company. After the completion of the Reorganization, the Company became
the successor of Hawaiian as the public company, and the shareholders of the
Company held the same relative percentage of Common Stock, par value $.01 per
share, of the Company ("Company Common Stock") as they owned of Common Stock,
par value $.01 per share, of Hawaiian ("Hawaiian Common Stock") and special
preferred stock of Hawaiian immediately prior to the Reorganization.
Additionally, pursuant to the Reorganization, the Company assumed
sponsorship of each of Hawaiian's 1994 Stock Option Plan, as amended, Hawaiian's
1996 Stock Incentive Plan, as amended, and Hawaiian's 1996 Nonemployee Director
Stock Option Plan, as amended (collectively, the "Hawaiian Option Plans"). Each
outstanding option and other award assumed by the Company is exercisable or
issuable upon the same terms and conditions as were in effect immediately prior
to the completion of the Reorganization. The number of shares of Company Common
Stock issuable upon the exercise or issuance of such an option or award
immediately after the effectiveness of the Reorganization equals the number of
shares of Hawaiian Common Stock subject to the option prior to the completion of
the Reorganization. All options and awards issued pursuant to any plan or
agreement assumed by the Company after the completion of the Reorganization will
entitle the holder thereof to purchase Company Common Stock in accordance with
the terms of such plan or agreement as in effect on the date of issuance.
In accordance with Rule 414 under the Securities Act, the Company, as
the successor issuer to Hawaiian, hereby expressly adopts Registration Statement
No. 333-63575 on Form S-8 (the "Registration Statement") as its own for all
purposes of the Securities Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). The Hawaiian Airlines, Inc. 1996 Stock Incentive
Plan, as amended, to which this Registration Statement relates, shall be known
as the Hawaiian Holdings, Inc. 1996 Stock Incentive Plan, as amended (the
"Plan"). The Plan covers employees of the Company and its subsidiaries
(including Hawaiian), and shares of stock issued in accordance with the Plan
will be shares of Company Common Stock instead of shares of Hawaiian Common
Stock.
The applicable registration fees were paid at the time of the original
filing of the Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents and information previously filed with the
Securities and Exchange Commission by Hawaiian Airlines, Inc. (including the
Registrant, as successor issuer) are hereby incorporated by reference in this
registration statement:
o The Annual Report on Form 10-K/A for the year ended December
31, 2001 (as filed by Hawaiian Airlines, Inc. on July 23,
2002).
o The Quarterly Report on Form 10-Q/A for the quarterly period
ended March 31, 2002 (as filed by Hawaiian Airlines, Inc. on
July 23, 2002).
o The Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 2002 (as filed by Hawaiian Airlines, Inc. on
August 14, 2002).
o The Current Reports on Form 8-K filed by Hawaiian Airlines,
Inc. on February 15, 2002, April 1, 2002, May 3, 2002 and May
20, 2002.
o The Current Report on Form 8-K of the Registrant filed on
August 30, 2002.
o The description of the common stock, par value $0.01 per
share, of the Registrant which is incorporated by reference
into the Registrant's registration statement on Form 8-A,
filed on August 26, 2002 pursuant to the Exchange Act.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this prospectus and prior to the filing of a post-effective amendment
which indicates that all securities registered have been sold or which
de-registers all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of Title 8 of the General Corporation Law of the State of
Delaware ("GCL") gives a Delaware corporation the power to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation) by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees),
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judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the person's
conduct was unlawful. The same Section also gives a Delaware corporation the
power to indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by the person in connection with the defense or
settlement of such action or suit if the person acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper. Section 145 of the GCL further provides that, to the extent
that a present or former director or officer of a Delaware corporation has been
successful on the merits or otherwise in defense of any such action, suit or
proceeding referred to above, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection therewith.
Section 145 of the GCL also provides that expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
Delaware corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the corporation as authorized in
this Section. Such expenses (including attorneys' fees) incurred by former
directors and officers or other employees and agents may be so paid upon such
terms and conditions, if any, as the corporation deems appropriate.
The Registrant's Amended and Restated Certificate of Incorporation and
Amended By-laws contain specific authority for indemnification by the Registrant
of current and former directors, officers, employees or agents of the Registrant
on terms that have been derived from Section 145 of Title 8 of the GCL.
Section 102(b)(7) of the GCL provides that the certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director: (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders; (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Section 174 of the GCL (pertaining to
certain prohibited acts including unlawful payment of dividends or unlawful
purchase or redemption of the corporation's capital stock); or (iv) for any
transaction from which the director derived an improper personal benefit. The
Registrant's Amended and Restated Certificate of Incorporation provides that, to
the fullest extent permitted under the GCL as amended from time to time, no
director shall be personally liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director.
The Registrant maintains directors and officers liability insurance for
the benefit of its directors and certain of its officers.
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Reference is made to Item 9 for our undertakings with respect to
indemnification for liabilities arising under the Securities Act of 1933.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration Statement
(unless as otherwise indicated):
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
------ --------------------
4.1 Amended and Restated Certificate of Incorporation of Hawaiian
Holdings, Inc. (incorporated by reference to Exhibit 3.1 to
the Current Report on Form 8-K filed by Hawaiian Holdings,
Inc. on August 30, 2002).
4.2 Amended By-laws of Hawaiian Holdings, Inc. (incorporated by
reference to Exhibit 3.2 to the Current Report on Form 8-K
filed by Hawaiian Holdings, Inc. on August 30, 2002).
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison.
23.1 Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included
as part of Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on signature page of this
Registration Statement).
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum
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aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Honolulu, State of Hawaii, on September 10, 2002.
HAWAIIAN HOLDINGS, INC.
By: /s/ Christine R. Deister
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Name: Christine R. Deister
Title: Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Christine R. Deister and Lyn F. Anzai,
and each of them, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to this Registration Statement,
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully as to intents and purposes as he or she might do or could do
in person hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or her substitute or substitutes, may lawfully
do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below on September 10, 2002 by the following persons
in the capacities indicated.
SIGNATURE TITLES
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/s/ John W. Adams Chairman of the Board of Directors,
----------------------------- Chief Executive Officer and President
John W. Adams (Principal Executive Officer)
/s/ Christine R. Deister Executive Vice President and
----------------------------- Chief Financial Officer (Principal
Christine R. Deister Financial and Accounting Officer)
/s/ Gregory S. Anderson Director
-----------------------------
Gregory S. Anderson
SIGNATURE TITLES
--------- ------
/s/ Todd G. Cole Director
-----------------------------
Todd G. Cole
/s/ Robert G. Coo Director
-----------------------------
Robert G. Coo
/s/ Joseph P. Hoar Director
-----------------------------
Joseph P. Hoar
/s/ Reno F. Morella Director
-----------------------------
Reno F. Morella
/s/ Samson Po'omaihealani Director
-----------------------------
Samson Po'omaihealani
/s/ Edward Z. Safady Director
-----------------------------
Edward Z. Safady
/s/ Sharon L. Soper Director
-----------------------------
Sharon L. Soper
/s/ Thomas J. Trzanowski Director
-----------------------------
Thomas J. Trzanowski
/s/ William M. Weisfield Director
-----------------------------
William M. Weisfield
INDEX TO EXHIBITS
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
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4.1 Amended and Restated Certificate of Incorporation of Hawaiian
Holdings, Inc. (incorporated by reference to Exhibit 3.1 to
the Current Report on Form 8-K filed by Hawaiian Holdings,
Inc. on August 30, 2002).
4.2 Amended By-laws of Hawaiian Holdings, Inc. (incorporated by
reference to Exhibit 3.2 to the Current Report on Form 8-K
filed by Hawaiian Holdings, Inc. on August 30, 2002).
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison.
23.1 Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included
as part of Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on signature page of this
Registration Statement).