EXHIBIT 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement"), effective as
of August 18, 2005 (the "EFFECTIVE DATE"), is entered by and between XXXX X.
XXXXXXXXX ("EMPLOYEE") and each of Hawaiian Holdings, Inc. ("HH") and its wholly
owned subsidiary Hawaiian Airlines, Inc. ("HA"; which companies are are
individually and collectively identified herein as the "COMPANY").
The parties hereto desire to amend and restate that certain employment
agreement dated as of December 23, 2002 by and between the Employee and the
Company (the "Original Agreement") and replace it in its entirety with this
Agreement. The Company desires to re-establish its right to the continued
services of the Employee, in the capacity described below, on the terms and
conditions and subject to the rights of termination hereinafter set forth, and
the Employee is willing to accept such employment on such terms and conditions,
In consideration of the mutual agreements hereinafter set forth, the
Employee and the Company have agreed and do hereby agree as follows:
1. EMPLOYMENT AS PRESIDENT AND CHIEF EXECUTIVE OFFICER; SERVICE AS
DIRECTOR. The Company does hereby employ, engage, and hire the Employee as
President and Chief Executive Officer and the Employee does hereby accept and
agree to such hiring, engagement, and employment. The Employee's duties during
the Employment Period (defined below) shall be the executive, managerial and
reporting duties as required by a chief executive officer of a corporation and
such other duties as the Board of Directors of the Company shall from time to
time prescribe and as provided in the Bylaws of the Company, including but not
limited to direct responsibility for and supervision of all aspects of the
business and affairs of HH and HA. The Employee shall report directly to the
respective Board of Directors of each of HH and HA, as applicable, for the
Employment Period. No other person will occupy a position or have any authority
with respect to the Company that is equal to or greater than the position and
authority of the Employee. The Employee shall devote his full time, energy, and
skill to the performance of his duties for the Company and for the benefit of
the Company, reasonable vacations authorized by the respective Board of
Directors of HH and HA, as applicable, and reasonable absences because of
illness excepted, it being understood that Employee shall be eligible for up to
four (4) weeks of vacation annually, subject to requirements of operations and
as duties may permit provided that unused vacation shall not be accrued and the
Company shall not make payment to Employee for unutilized vacation. Furthermore,
the Employee shall exercise due diligence and care in the performance of his
duties to the Company under this Agreement. Effective as of the Effective Date
and during the Term, (i) HH shall cause Employee to be appointed to serve as a
director of the Board of Directors of HA and (ii) the Board of Directors of HH
shall nominate Employee for election to HH's Board of Directors and HH shall use
its good faith efforts to elect Employee to such position.
President and Chief Executive Officer
Amended and Restated Employment Agreement
Page 2
2. TERM OF AGREEMENT. The term of this Agreement ("Term") shall commence on
the Effective Date and shall continue for a period of thirty-six (36) months.
The period of time commencing on the Effective Date and ending on the expiration
date of the Term, or, if earlier, the date of termination of the Employee's
employment ("Termination Date") under this or any successor agreement shall be
referred to as the "Employment Period." The Company agrees that it will discuss
with Employee at least twelve months prior to the Termination Date, its
intentions with respect to any extension of its employment of Employee beyond
the Termination Date.
3. COMPENSATION.
a) BASE SALARY. The Company shall pay the Employee, and the Employee
agrees to accept from the Company in full payment for his services to the
Company, a base salary at the rate of Five Hundred and Fifty Thousand Dollars
($550,000.00) per year ("Base Salary"), payable in equal semi-monthly
installments or at such other time or times as the Employee and the Company
shall agree. Employee's Base Salary shall be reviewed on a calendar year basis,
at least annually, by the Company and may be increased as determined by the
Board of Directors of HH or HA in either of their respective sole and absolute
discretion.
b) PERFORMANCE/INCENTIVE BONUS. Employee will be eligible to receive
an annual performance/incentive bonus (with a pro rata adjustment for any
partial year period caused by the Termination Date being other than December 31
of any year) of a target amount of one hundred percent (100%) and a maximum of
two hundred percent (200%) of his annual salary. Employee's bonus for the 2005
year will be based on the full calendar year. The bonus plan will be based upon
achievement of goals set forth in a plan approved by the Company, with the
intention that such plan will provide for goals that may be adjusted by the
Board of Directors from time to time to reflect the nature of the airline
industry and changes in competition. Employee and the Company may, but shall
have no obligation to, agree that a portion of Employee's performance/incentive
bonus will be paid in shares of common stock of HH valued in a manner agreed
upon by the parties.
c) STOCK INCENTIVE PLAN. Employee shall receive a grant of options to
purchase 1,044,000 shares (the "Options") of the common stock of HH. 300,000 of
the Options were granted on June 10, 2005, and 744,000 of the Options were
granted in July 2005. All Options will vest as follows: (i) one-third on January
1, 2006; (ii) one-third on January 1, 2007; and (iii) one-third on January 1,
2008. In the event that HH shall distribute to the holders of its common stock
rights to acquire its common stock or makes any offer solely to holders of its
common stock to subscribe for or obtain common stock or warrants, options,
convertible securities or other instruments convertible into, or exercisable
for, common stock in each case that are (i) distributed or offered solely to
common stock holders at any time within three (3) years of the Effective Date
and (ii) entitle the common stockholders to acquire common stock at a discount
to, or at a price less than, the fair market value (determined by reference to
such value on the day preceding the public announcement of any such distribution
or offering) of common
President and Chief Executive Officer
Amended and Restated Employment Agreement
Page 3
stock (collectively, the "Rights"), then the Company shall also grant Employee
additional options to purchase shares of the common stock of HH (the "Additional
Options") on the date that is two business days after the last day for the
exercise of the Rights. The number of shares represented by the Additional
Options shall equal (i) that percentage which the number of shares of common
stock purchasable or issuable pursuant to the Rights bears to the number of
outstanding shares of common stock on the date the Rights are distributed or
offered times (ii) the number of shares of common stock subject to the
unexercised Options. One-third of the Additional Options shall vest on each of
the dates the Options would vest (or to the extent any of such Options have
already vested on the date the Additional Options are granted, a pro rata
portion of the Additional Options shall be vested when the Additional Options
are granted). The exercise price per share of the Options and the Additional
Options (collectively, the "Total Options") shall be equal to the fair market
value of the common stock of HH on the grant date. Employee and HH shall enter
into separate stock option agreements reflecting the terms of the Total Options,
which shall not conflict in any way with the terms set forth herein and shall
include provisions for equitable adjustment in the event of a stock split, stock
dividend or other similar event affecting the common stock of HH. The Company
shall use its good faith efforts to ensure that a sufficient number of options
remain available for issuance under its approved stock option plan of HH. The
Company shall use its good faith efforts to register any shares of common stock
issuable upon exercise of the Total Options on Form S-8 and to maintain such
registration for as long as Employee holds such shares or Total Options (as the
case may be). The Company hereby represents and warrants to the Employee that,
after taking into account all of the shares, rights to acquire, warrants,
options, convertible securities and any other instrument convertible into or
exercisable for capital stock of HH on the Effective Date, other than any
options under stock option plans of the Company (the "Total Shares"), the shares
issuable to the Employee upon the exercise of all of the Options will represent
approximately two and twenty-five hundredths percent (2.25%) of the Total
Shares.
d) 1996 STOCK INCENTIVE PLAN. Employee's existing options to purchase
200,000 shares of stock of HH pursuant to the Company's 1996 Stock Incentive
Plan, as Amended, shall remain outstanding in accordance with the terms of
Employee's existing option agreement.
e) 401K Plan. Employee shall be eligible to participate in the
Company's 401K retirement plan with employer "match" contributions of 2% of
Employee's Base Salary or such greater percentage as may be generally made
available to non-contract employees, in each case to the maximum allowable legal
limit
4. FRINGE BENEFITS. Employee shall be entitled to participate, at the
Company's expense, in any benefit programs adopted from time to time by the
Company for the benefit of its executive employees and Employee shall be
entitled to receive such other fringe benefits as may be granted to him from
time to time by the Company's Board of Directors.
President and Chief Executive Officer
Amended and Restated Employment Agreement
Page 4
a) BENEFIT PLANS. Employee shall be entitled to participate in any
benefit plans relating to stock options, stock purchases, pension, thrift,
profit sharing, life and disability insurance, medical coverage, executive
medical coverage, education, or other retirement or employee benefits available
to other executive employees of the Company, subject to any restrictions
(including waiting periods) specified in such plans.
b) AUTOMOBILE. The Company shall provide Employee with an automobile
allowance of $1000.00 per month.
c) TRAVEL BENEFITS. Employee and Employee's spouse or domestic partner
shall be entitled to travel benefits on Company flights (but not charter
flights) at the PS2F/PS2Y category. Employee's eligible dependents, if any,
shall be entitled to travel benefits on Company flights (but not charter
flights) at the PS2F/PS2Y category when traveling with Employee and/or
Employee's spouse or domestic partner; when not traveling with Employee and/or
Employee's spouse or domestic partner, eligible dependents shall be entitled to
travel benefits on Company transpacific flights (but not charter flights) at the
PS8Y/SA1F category and interisland flights at the SA0Y/SA1F category. Employee
and Employee's spouse or domestic partner and eligible dependents shall be
entitled to travel benefits on other airlines at the sole discretion of such
airlines, at a comparable level to that provided to other Company executive
officers.
d) EXECUTIVE LONG-TERM DISABILITY INSURANCE PLAN. Subject to the
applicable waiting periods, Employee will be included in the Company's Executive
Long-Term Disability Insurance Plan, as it may be modified from time to time, at
the Company's expense.
e) BUSINESS EXPENSES. The Company shall reimburse the Employee for any
and all necessary, customary, and usual expenses, properly receipted in
accordance with Company policies, incurred by Employee on behalf of the Company.
f) LIFE INSURANCE. The Company shall pay the premium for term life
insurance coverage of $300,000.
5. RELOCATION.
a) The Company will reimburse the Employee for eligible costs related
with relocation to Hawaii, which will include but not be limited to the
following items: i) the reasonable out-of-pocket costs of moving his household
goods and belongings from his present home to Hawaii, including packing,
unpacking, shipping and insurance; and ii) closing costs at actual and
reasonable amounts for the sale of Employee's current home, and/or the purchase
of a home in Honolulu, Hawaii (collectively referred to as the "Relocation
Expenses"). The Relocation Expenses will be reimbursed up to a maximum of
$50,000.00, inclusive of tax.
President and Chief Executive Officer
Amended and Restated Employment Agreement
Page 5
b) If, during the first three (3) years following the Effective Date,
the Company terminates the Employee's employment without cause, or if Employee
terminates his employment pursuant to Section 7(d) hereunder, then the Company
will reimburse the Employee for eligible costs related with relocation from
Hawaii, which will include but not be limited to the following items: i) the
reasonable out-of-pocket costs of moving his household goods and belongings from
Hawaii, including packing, unpacking, shipping and insurance, (ii) the shipment
of one automobile, and (iii) travel costs for Employee and his domestic partner
directly related to Employee's relocation from Hawaii (collectively referred to
as the "Termination Expenses"). The Termination Expenses will be reimbursed up
to a maximum of $50,000.00, inclusive of tax.
c) If Employee purchases a residence in Honolulu and within one year
of the Effective Date is terminated by the Company without cause, or if Employee
terminates employment hereunder within said first year of employment pursuant to
Section 7(d) or this Agreement, Employee shall have the option, exercisable on
written notice to the Company delivered within ninety (90) days of said
termination, to sell said purchased residence to the Company at the original
purchase price. The closing of the sale of the Employee's residence to the
Company pursuant to this provision shall take place no later than ninety (90)
days after the receipt by the Company of the written notice of the exercise by
the Employee of the option set forth herein.
6. CONFIDENTIAL INFORMATION. Employee recognizes that by reason of his
employment by and service to the Company he will occupy a position of trust with
respect to business and technical information of a secret or confidential nature
which is the property of the Company which will be imparted to him from time to
time in the course of the performance of his duties hereunder. Employee
acknowledges that such information is a valuable and unique asset of the Company
and agrees that he shall not, during or after the Term of this Agreement, use or
disclose directly or indirectly any confidential information of the Company to
any person, except that Employee may use and disclose to authorized personnel of
the Company such confidential information as is reasonably appropriate in the
course of the performance of his duties hereunder. Confidential information of
the Company shall include all information and knowledge of any nature and in any
form relating to the Company including but not limited to, business plans;
development projects; computer software and related documentation and materials;
designs, practices, processes, methods, know-how and other facts relating to the
business of the Company; advertising, promotions, financial matters, sales and
profit figures, customers or customer lists. Confidential information shall not
include any information that is or shall become publicly known through no fault
of the Employee and any information received in good faith from a third party
who has the right to disclose such information and who has not received such
information, either directly or indirectly, from the Company.
President and Chief Executive Officer
Amended and Restated Employment Agreement
Page 6
7. TERMINATION OF EMPLOYEE'S EMPLOYMENT.
a) DEATH; DISABILITY. If the Employee dies while employed by the
Company, his employment shall immediately terminate. If, as a result of
Employee's mental or physical incapacity, Employee shall be unable to perform
the services for the Company contemplated by this Agreement in the manner in
which he previously performed them during an aggregate of one hundred twenty
(120) business days in any consecutive seven (7) month period ("Disability"),
Employee's employment may be terminated by the Company for Disability. In the
event of Disability or death, the Employee or Employee's beneficiaries, as the
case may be, shall continue to be paid the Base Salary through the Termination
Date and a performance/incentive bonus, to the date of death or Disability, as
determined in accordance with Section 3(b). In the case of death, the Employee's
beneficiaries or his estate shall receive benefits in accordance with the
Company's retirement, insurance and other applicable programs and plans then in
effect.
b) TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate
Employee's employment under this Agreement for "cause" at any time prior to
expiration of the Term, only upon the occurrence of any one or more of the
following events:
(i) The material breach by Employee of his obligations hereunder,
after Employee has been given written notice specifying the breach and has been
provided a thirty day opportunity to cure. This includes, without limitation,
willful neglect of Employee's duties or Employee's willful failure (other than
any such failure resulting from the termination of the Employee's employment for
death, disability, retirement or good reason, as provided elsewhere in this
Agreement) to implement or adhere to policies established by, or directives of,
the Company's Board of Directors.
(ii) Employee is convicted of, or pleads guilty or no contest to
a felony, or written evidence is presented to the Board that Employee engaged in
a crime that may have an adverse impact on the Company's reputation and standing
in the community.
(iii) Committed fraud in connection with the business affairs of
the Company, regardless of whether said conduct is designed to defraud the
Company or others.
In the event of termination for cause, the Company shall pay the Employee
any portion of the Employee's Base Salary accrued, but not paid, prior to the
Termination Date. In the event of termination for cause, the Company's
obligation to pay Employee's Base Salary for any periods after the Termination
Date shall cease as of the Termination Date. If Employee's employment is
terminated for cause, Employee's employment may be terminated on written notice,
effective immediately, unless otherwise expressly provided for in this
Agreement.
President and Chief Executive Officer
Amended and Restated Employment Agreement
Page 7
c) TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company shall have
the right to terminate this Agreement prior to the expiration of the Term, at
any time, without cause. In the event the Company shall so elect to terminate
this Agreement, the Employee shall receive compensation pursuant to the
provisions of Section 8 hereof.
d) TERMINATION BY THE EMPLOYEE FOR GOOD REASON. The Employee shall
have the right to terminate this Agreement for good reason. For purposes of this
Agreement, "good reason" shall mean the occurrence, without the Employee's prior
written consent, of any one or more of the following events:
(i) The assignment to the Employee of any duties that are
materially inconsistent with, or reflect a material reduction of the powers and
responsibilities, or a change of the Employee's reporting responsibilities, or a
negative change of Employee's title and responsibilities;
(ii) The Company's material breach of any of the provisions of
this Agreement, or a material change in the conditions of Employee's employment
(e.g. including, without limitation, a failure by the Company to provide the
Employee with incentive compensation and benefit plans that provide comparable
benefits and amounts as such type of programs in effect as of the Effective Date
as provided to other Company executive officers, etc.);
(iii) The relocation of the Company's principal executive offices
to a location outside of the Honolulu area or the Company's requiring the
Employee to be based anywhere other than the Company's principal executive
offices, except for travel on Company business to an extent substantially
consistent with the Employee's position and responsibilities;
(iv) A change in control of the Company as provided for in
Section 10 hereof; or
(v) A failure by the Company to maintain Directors' and Officers'
insurance as set forth in Paragraph 19 hereof.
The Employee agrees to provide the Company thirty (30) days' prior written
notice of any termination for good reason (except in the case of a termination
pursuant to subparagraph (iv) hereof), during which 30-day period the Company
shall have the right to cure the circumstances giving rise to the good reason
stated in such notice. In the event of termination for good reason, the Employee
shall receive compensation pursuant to the provisions of Section 8 hereof.
e) TERMINATION BY THE EMPLOYEE WITHOUT GOOD REASON. The Employee shall
have the right to terminate this Agreement without good reason. In the event of
a resignation by Employee without good reason, the
President and Chief Executive Officer
Amended and Restated Employment Agreement
Page 8
Company shall pay the Employee any portion of the Employee's Base Salary
accrued, but not paid, prior to the Termination Date.
8. COMPENSATION UPON TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE OR BY
THE EMPLOYEE FOR GOOD REASON. If the Employee's employment shall be terminated
(i) by act of the Company other than for cause, or (ii) by the Employee for good
reason, the Employee shall be entitled to the following benefits:
a) PAYMENT OF UNPAID BASE SALARY AND PERFORMANCE/INCENTIVE BONUS. The
Company shall immediately pay the Employee any portion of the Employee's Base
Salary accrued, but not paid, prior to the Termination Date and a
performance/incentive bonus for such year as determined in accordance with
Section 3(b).
b) LUMP SUM PAYMENT. The Employee shall receive, no later than five
(5) calendar days after the Termination Date, a lump sum payment in the amount
of one million dollars ($1,000,000) by wire transfer of immediately available
funds to an account designated in writing by the Employee.
c) CONTINUATION OF FRINGE BENEFITS. Throughout the Term of this
Agreement from and after the date of Termination, the Company shall continue to
provide the Employee with the following fringe benefits as if the Employee's
employment under the Agreement had not been terminated: (i) Benefit Plans set
forth in Section 4(a) to the extent that Employee can be provided with such
fringe benefits or continue to participate in such Benefit Plans without
adversely effecting the tax-qualified status of any such Benefit Plan, or if
provision would effect the tax status of any such Benefit Plan, the economic
equivalent of the benefits under the Benefit Plan at no greater cost to the
Company than if it had provided the benefits under such Benefit Plan, provided
that [1] such plans shall be those plans then in effect by the Employer (or, if
they are not, then benefits not less favorable to the Employee than those in
effect immediately prior to his termination), [2] that in lieu of medical plan
benefits, Employee will be provided with a cash lump sum payment equivalent to
the value of such benefits for the Term, and [3] that coverage (as distinct from
benefits due to disability) under the Company's long term disability insurance
will not be included as part of benefits provided after termination of
employment because the carrier limits provision of such to employees and (ii)
Travel Benefits set forth in Section 4(d). If required by law or otherwise
allowed by the relevant carrier, Employee will be afforded the opportunity to
continue such benefits at Employee's own cost after the Term.
d) STOCK OPTIONS. Notwithstanding any provision in any applicable
Company equity plans or agreements (such as, but not limited to, those relating
to stock options, stock appreciation rights, restricted stock awards, stock
purchases) to the contrary, all rights to such equity benefits previously
granted to Employee shall become immediately fully vested and exercisable as of
the Termination Date, unless the Termination Date is caused by a termination by
Employee without good
President and Chief Executive Officer
Amended and Restated Employment Agreement
Page 9
reason, and shall remain exercisable for a period thereafter of one (1) year
(but not beyond the term of the option or rights). To the extent that any of the
Total Options have not been granted to the Employee on or before the Termination
Date ("Unissued Options"), Employee shall be entitled to receive a lump sum
payment on the first anniversary of the Termination Date, by wire transfer of
immediately available funds to an account designated in writing by Employee, in
the amount of the number of Unissued Options multiplied by the average of the
spread during the period beginning on the Termination Date and ending on the
first anniversary of the Termination Date between (i) what the exercise price
for such Unissued Options would have been had they been granted in accordance
with the terms and on the dates set forth in this Agreement and (ii) the closing
market price of HH shares during that period on the principal market or exchange
on which HH Common Stock is traded. The provisions of this Section 8(d) shall
supersede, insofar as concerns Employee, any such plans or agreements of the
Company referred to above as of the Effective Date.
e) NO MITIGATION REQUIRED; NO OTHER ENTITLEMENT TO BENEFITS UNDER
AGREEMENT. The Employee shall not be required in any way to mitigate the amount
of any payment provided for in this Section 8, including, but not limited to, by
seeking other employment, nor shall the amount of any payment provided for in
this Section 8 be reduced by any compensation earned by the Employee as the
result of employment with another employer after the Termination Date, or
otherwise. Except as set forth in this Section 8, following a termination
governed by this Section 8, the Employee shall not be entitled to any other
compensation or benefits set forth in this Agreement, except as may be
separately negotiated by the parties and approved by the Board of Directors of
the Company in writing in conjunction with the termination of Employee's
employment under this Section 8.
9. NONCOMPETITION PROVISIONS.
a) NONCOMPETITION. During the Term of this Agreement and for a period
of twelve (12) months commencing on the Termination Date, Employee agrees and
covenants that Employee shall not, directly or indirectly, undertake to become
an employee, officer, partner, consultant or otherwise be connected with any
entity for which, at such time or for the twelve (12) month period thereafter in
excess of fifteen percent (15%) of its business is primarily directed at
competition with the Company either within Hawaii or on routes to and from
Hawaii serviced by the Company, provided, however, for sake of clarity, Employee
shall not violate this provision if he is employed with overall responsibility
for a business area (such as marketing) which includes oversight and
responsibility for routes within Hawaii or on routes to and from Hawaii serviced
by the Company. Employee acknowledges and agrees that any breach of this
non-competition provision shall entitle Employer to immediately terminate
payments pursuant to Section 8 of this Agreement. If the Company ceases
operations on a permanent basis or if the Company ceases to make payments to
Employee pursuant to Section 8 hereof, the restrictions of this section shall
immediately terminate.
President and Chief Executive Officer
Amended and Restated Employment Agreement
Page 10
b) NONDISPARAGEMENT. During the Term of this Agreement and for a
period of twenty-four (24) months commencing on the Termination Date, each party
agrees that it/he shall not make any statements that disparage or tend to
disparage the other party, including, in the case of the Company, its products,
services, officers, employees, advisers or other business contacts. Employee
acknowledges and agrees that any breach of this nondisparagement provision shall
entitle the Company to immediately terminate payments pursuant to Section 8 of
this Agreement, and if such disparagement is material and results in damage to
the Company, the Company may also seek repayment of amounts previously paid to
Employee pursuant to Section 8. The Company acknowledges that any breach of this
nondisparagement provision shall accelerate all payments due Employee under
Paragraph 8 hereof, which shall become immediately payable in full.
c) RIGHT TO COMPANY MATERIALS. Employee agrees that all styles,
designs, lists, materials, books, files, reports, correspondence, records, and
other documents ("Company Materials") used, prepared, or made available to
Employee, shall be and shall remain the property of the Company. Upon the
termination of employment or the expiration of this Agreement, all Company
Materials shall be returned immediately to the Company, and Employee shall not
make or retain any copies thereof.
d) ANTISOLICITATION. Employee promises and agrees that during the Term
of this Agreement and for the twenty-four (24) month period commencing on the
Termination Date, he will not influence or attempt to influence customers or
suppliers of the Company or any of its present or future subsidiaries or
affiliates, either directly or indirectly, to divert their business to any
individual, partnership, firm, corporation or other entity then in competition
with the Company, or any subsidiary or affiliate of the Company.
e) SOLICITING EMPLOYEES. During the Term of this Agreement and for the
twenty-four (24) month period commencing on the Termination Date, Employee
promises and agrees that he will not directly or indirectly solicit any of the
Company's employees to work for any business, individual, partnership, firm,
corporation, or other entity in which Employee has any relationship.
10. MERGER OR OTHER CHANGE IN CONTROL. In the event of a "change in
control" (defined below) of either HH or HA, the Employee shall have the right,
on written notice to the Company given at any time within sixty (60) days after
such change in control occurs, to elect to terminate his employment with the
Company, which termination will be deemed a termination by the Employee for good
cause as set forth in Section 7(d), in accordance with which the Employee shall
receive compensation pursuant to the provisions of Section 8 hereof. A "change
in control" shall mean, with respect to the Company (the definition of which,
for sake of clarity, means either or both of HA or HH), any of the following:
(a) any person or persons acting together that would constitute a "group" for
purposes of Section 13(d) of the Securities Exchange Act of 1934, beneficially
own 30% or more of the total voting power of the stock of the Company entitled
to vote for the board of directors of the Company (the "Voting Stock")
President and Chief Executive Officer
Amended and Restated Employment Agreement
Page 11
or economic interests in the Company, (b) the sale, transfer, assignment or
other disposition (including by merger or consolidation) by the shareholders of
HH, in one transaction or a series of related transactions, with the result that
the beneficial owners of the Voting Stock of or economic interests in HH
immediately prior to the transaction (or series) do not, immediately after such
transaction (or series) beneficially own Voting Stock representing more than 50%
of the voting power of all classes of Voting Stock of HH or any successor entity
of HH or economic interests in HH representing more than 50% of the economic
interests in HH or any Company or any successor entity of HH; (c) the approval
by the shareholders of the Company of any sale or other transfer (in one or a
series of transactions) of all or substantially all of the assets of the
Company, (d) the dissolution or liquidation of the Company, or (e) a change in
the composition of the Board, as a result of which, fewer than one-half of the
incumbent directors (without including directors who are appointed as part of
the union contract) are directors who either (i) had been directors, other than
directors who are appointed as part of the union contract, of the Company on the
Effective Date (the "Original Directors"); or (ii) were elected, or nominated
for election, to the Board of Directors with the affirmative votes of at least a
majority of the aggregate of the Original Directors who were still in office at
the time of the election or nomination or directors whose election or nomination
was previously so approved.
11. NOTICES. All notices and other communications under this Agreement
shall be in writing and shall be given by facsimile (with confirmation of
transmission), first class mail, certified or registered with return receipt
requested, or national, reputable overnight courier and shall be deemed to have
been duly given three (3) days after mailing or on the next business day
following delivery by overnight courier or transmission of a facsimile to the
respective persons named below:
If to HA: Hawaiian Airlines, Inc.
c/o Ranch Capital, LLC
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chairman of the Board of Directors
with a copy to Hawaiian Airlines, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxxx, XX 00000
Attn: General Counsel
If to HH: Hawaiian Holdings, Inc.
c/o Ranch Capital, LLC
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chairman of the Board of Directors
President and Chief Executive Officer
Amended and Restated Employment Agreement
Page 12
with a copy to Hawaiian Holdings, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxxx, XX 00000
Attn: General Counsel
If to the Company, then to either HA or HH, as set forth above.
If to Employee: Xxxx X. Xxxxxxxxx
c/o Munger, Xxxxxx & Xxxxx
000 X. Xxxxx Xxx. 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx-Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Either party may change such party's address for notices by written notice
duly given pursuant hereto.
12. ARBITRATION CLAUSE/ATTORNEYS FEES. Any controversy or claim arising out
of or relating to this Agreement shall be settled by expedited arbitration
administered by the DRS, Inc. in Honolulu, Hawaii, and judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. In the event judicial or quasi-judicial determination is necessary of
any dispute arising as to the parties' rights and obligations hereunder, the
Company and Employee shall each bear its/his respective attorneys' fees and
costs associated with such dispute. The Company shall reimburse the Employee for
all reasonable attorneys' fees and expenses incurred in connection with entering
into and/or negotiating this Agreement.
13. TERMINATION OF PRIOR AGREEMENTS. This Agreement terminates and
supersedes any and all prior agreements and understandings (including, without
limitation, the Original Agreement) between the parties with respect to
employment or with respect to the compensation of the Employee by the Company
from and after the Effective Date except for the grant of the stock options
referred to in Section 3(d) that will continue to be governed by the agreements
entered into with respect thereto.
14. ASSIGNMENT; SUCCESSORS. This Agreement is personal in its nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder; provided that,
in the event of the merger, consolidation, transfer or sale of all or
substantially all of the assets of the Company with or to any other individual
or entity, this Agreement shall, subject to the express provisions hereof, be
binding upon and inure to the benefit of such successor and such successor shall
discharge and perform all the promises, covenants, duties, and obligations of
the Company hereunder.
15. GOVERNING LAW. This Agreement and the legal relations thus created
between the parties hereto shall be governed by and construed under and in
President and Chief Executive Officer
Amended and Restated Employment Agreement
Page 13
accordance with the laws of the State of Hawaii applied without regard to the
choice of law principles thereof.
16. ENTIRE AGREEMENT; HEADINGS. This Agreement embodies the entire
agreement of the parties respecting the matters within its scope and may be
modified only in writing. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
17. WAIVER; MODIFICATION. Failure to insist upon strict compliance with any
of the terms, covenants, or conditions hereof shall not be deemed a waiver of
such term, covenant, or condition, nor shall any waiver or relinquishment of, or
failure to insist upon strict compliance with, any right or power hereunder at
any one or more times be deemed a waiver or relinquishment of such right or
power at any other time or times. This Agreement shall not be modified in any
respect except by a writing executed by the party against whom such modification
is charged.
18. SEVERABILITY. In the event that a court of competent jurisdiction
determines that any portion of this Agreement is in violation of any statute or
public policy, only the portions of this Agreement that violate such statute or
public policy shall be stricken. All portions of this Agreement that do not
violate any statute or public policy shall continue in full force and effect.
Further, any court order striking any portion of is Agreement shall modify the
stricken terms as narrowly as possible to give as much effect as possible to the
intentions of the parties under this Agreement.
19. INDEMNIFICATION. The Company shall indemnify and hold Employee harmless
to the maximum extent permitted by Section 145 of the Delaware General
Corporation Law and the Restated Articles of Incorporation and Amended Bylaws of
Hawaiian Airlines, Inc. and of Hawaiian Holdings, Inc. respectively. The Company
will maintain an Errors and Omissions insurance policy during the term of this
Agreement, which policy shall name the Employee as an insured.
20. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
21. SECTION 409A. Notwithstanding any other provision of this Agreement to
the contrary, in the event that any amounts of compensation payable or benefits
provided under this Agreement upon the termination of the employment of Employee
are considered as the deferral of compensation pursuant to a "nonqualified
deferred compensation plan" within the meaning of Section 409A of the Code, then
this Agreement shall be construed, and such compensation shall be payable or
benefits provided, so that this Agreement and the time of payment of such
compensation or benefits satisfies the requirements of Section 409A of the Code.
Upon the issuance of the guidance by the Internal Revenue Service as to the
application of Section 409A of the Code to payments upon the termination of
employment of an employee, the Company
President and Chief Executive Officer
Amended and Restated Employment Agreement
Page 14
and Employee shall mutually agree to such reasonable amendments to this
Agreement as are requested by Employee as to the time for payment (which time
shall not be earlier than the time presently provided herein) of any amounts of
compensation payable or benefits to be provided upon the termination of
employment of Employee. The Company shall have no liability for any delay in the
time of payment of any compensation or the provision of any benefit (and it
shall not be a breach of this Agreement) that the Company reasonably and in good
faith believes is required by the provisions of this Section 21; provided,
however, that nothing contained herein shall be construed to excuse the Company
from paying any amounts or providing any benefits in accordance with its
obligations hereunder.
22. WITHHOLDING. The Company shall have the right to deduct and withhold
from all amounts payable or benefits provided to Employee (whether pursuant to
this Agreement or otherwise) all federal, state and local income and employment
taxes the Company believes is required to be so deducted and withheld. In the
event any compensation is paid or benefits are provided other than in cash,
Employee shall make arrangements satisfactory to the Company for the payment to
the Company of such income and employment taxes.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officers, and the Employee has hereunto signed this
Agreement, as of the date first above written.
EMPLOYEE HAWAIIAN HOLDINGS, INC.
/s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------- -----------------------------------------
Xxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxx
---------------------------------------
Title: Chief Financial Officer and Treasurer
--------------------------------------
HAWAIIAN AIRLINES, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
---------------------------------------
Title: Senior Vice President, Chief Financial
Officer and Treasurer
--------------------------------------
