Exhibit 10.8
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ADVISORY SERVICES AGREEMENT
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THIS ADVISORY SERVICES AGREEMENT (this "AGREEMENT") is entered into as
of December 19, 2001, by and among Hawaiian Airlines, Inc., a Hawaii corporation
(the "COMPANY"), ▇▇▇▇▇ Management LLC, a New York limited liability company
("▇▇▇▇▇ MANAGEMENT"), and ▇▇▇▇ ▇. ▇▇▇▇▇. Capitalized terms used herein but not
otherwise defined have the meanings set forth in the Agreement and Plan of
Merger, dated the date hereof, among the Company, Aloha Airgroup, Inc.,
TurnWorks Acquisition III, Inc. and TurnWorks, Inc., as it may be amended from
time to time (the "MERGER AGREEMENT").
WHEREAS, ▇▇▇▇▇ Management and ▇▇. ▇▇▇▇▇ have been providing financial
advisory, investment banking and other services to the Company since 1996 with
the understanding that at an appropriate time ▇▇▇▇▇ Management, ▇▇. ▇▇▇▇▇ and
the Company would memorialize an agreement to compensate ▇▇▇▇▇ Management and
▇▇. ▇▇▇▇▇ for such services;
WHEREAS, ▇▇. ▇▇▇▇▇ is an officer of ▇▇▇▇▇ Management and Chairman of
the Board of the Company, and has been requested by both the Company and ▇▇▇▇▇
Management to provide advisory services to the Company in addition to those
provided directly by ▇▇▇▇▇ Management and in addition to services provided as
Chairman of the Board; and
WHEREAS, such services have included the evaluation of various
strategic alternatives to enhance shareholder value, the design, in coordination
with another advisor, of the share repurchase program approved by the Board of
Directors, information technology projects, various analyses of fuel-hedging
programs, as well as the transactions currently contemplated in connection with
a proposed merger with the parties to the Merger Agreement (the "TRANSACTION").
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. SCOPE OF ENGAGEMENT. In the course of their engagement as advisors,
▇▇▇▇▇ Management and ▇▇. ▇▇▇▇▇ have performed, and will perform, such advisory
services for the Company in connection with the proposed Transaction as the
parties may reasonably agree are customary and appropriate in transactions of
this type.
2. FEES AND EXPENSES. For their services hereunder, upon consummation
of the Transaction, the Company will pay to ▇▇▇▇▇ Management and ▇▇▇▇ ▇▇▇▇▇ fees
in the aggregate of $5,000,000.
As additional consideration for our services hereunder, upon
consummation of the Transaction, the Company (or, if the Company does not
survive as a legal entity as a result of the Transaction, the surviving parent
company in the Transaction) will issue to ▇▇▇▇▇ Management (or one or more of
its designees) 1,000,000 shares (the "Shares") of common stock (which
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number is not subject to adjustment) of the Company (or, if the Company does not
survive as a legal entity as a result of such Transaction, 1,000,000 shares of
common stock of the surviving parent company in the Transaction) and $2,000,000
principal amount of 8% Notes due 2008 of the Company (or, if the Company does
not survive as a legal entity as a result of such Transaction, $2,000,000
principal amount of 8% Notes due 2008 of the surviving parent company in the
Transaction).
In connection with the issuance of the Shares, ▇▇▇▇▇ Management
acknowledges that the issuance of such Shares to it (and its designee) will not
be registered under the Securities Act of 1933, as amended (the "SECURITIES
Act"), and, upon receipt by it, will constitute "restricted securities" within
the meaning of Rule 144(a)(3) under the Securities Act. ▇▇▇▇▇ Management will
not offer to sell or otherwise dispose of the Shares so acquired by it in
violation of any of the registration requirements of the Securities Act. ▇▇▇▇▇
Management represents and warrants that it (and its designee) is an "accredited
investor" as that term is defined in Rule 501(a) of Regulation D promulgated
under the Securities Act.
The Company represents and warrants to ▇▇▇▇▇ Management that none of
the information to be included or incorporated by reference in any registration
statement, prospectus or proxy statement to be used by the Company in connection
with the Transaction will contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading; PROVIDED, HOWEVER, that the Company makes no such
representation or warranty with respect to any information provided for
inclusion or incorporation by reference therein that was provided by ▇▇▇▇▇
Management.
There shall be no obligation hereunder to reimburse for expenses,
except as provided in the indemnity letter annexed hereto.
3. CERTAIN ACKNOWLEDGMENTS. The Company acknowledges that ▇▇▇▇▇
Management and ▇▇. ▇▇▇▇▇ have been retained hereunder solely as advisors to the
Company, and not as advisors to or agents of any other person, and that the
Company's engagement hereunder of ▇▇▇▇▇ Management and ▇▇. ▇▇▇▇▇ is as an
independent contractor and not in any other capacity, including as a fiduciary.
▇▇▇▇▇ Management may, to the extent it deems appropriate, render the services
hereunder through one or more of its affiliates. Neither this engagement, nor
the delivery of any advice in connection with this engagement, is intended to
confer rights upon any persons not a party hereto (including security holders,
employees or creditors of the Company or any of the other parties to the Merger
Agreement referenced above) as against ▇▇▇▇▇ Management, ▇▇. ▇▇▇▇▇ or their
affiliates or their respective directors, officers, agents and employees.
The Company should be aware that ▇▇▇▇▇ Management and/or its affiliates
may be providing or may in the future provide financial or other services to
other parties with conflicting interests ("advisees"). However, consistent with
▇▇▇▇▇ Management's long-standing policy to hold in confidence the affairs of
advisees, ▇▇▇▇▇ Management will not use confidential information obtained from
the Company except in connection with its services to, and its
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relationship with, the Company, nor will it use on the Company's behalf any
confidential information obtained from any other advisee.
4. INDEMNITY. ▇▇▇▇▇ Management and the Company have entered into a
separate letter agreement, dated the date hereof, providing for the
indemnification of ▇▇▇▇▇ Management by the Company in connection with ▇▇▇▇▇
Management's engagement hereunder, the terms of which are incorporated into this
Agreement in their entirety. Notwithstanding anything herein, or in the
indemnity letter to the contrary, nothing herein shall entitle ▇▇▇▇▇ Management
or any of its affiliates to any indemnity or contribution other than in
connection with this engagement; and nothing herein shall limit any obligation
or liability that any affiliate of ▇▇▇▇▇ Management may have under the Merger
Agreement referenced above and the "ancillary agreements" referenced therein.
5. TERMINATION OF ENGAGEMENT. ▇▇▇▇▇ Management's engagement will
continue until the earlier of the consummation of the Transaction and the
termination of the Merger Agreement referenced above. ▇▇▇▇▇ Management and ▇▇.
▇▇▇▇▇ may terminate this Agreement at any time, with or without cause, by giving
written notice to the Company; PROVIDED, HOWEVER, that no such expiration or
termination will affect the matters set out in this section or under the
captions "Use of Information," "Certain Acknowledgments" and "Miscellaneous" or
in the separate letter agreement relating to indemnification.
6. NO OTHER PAYMENTS. ▇▇▇▇▇ Management and ▇▇. ▇▇▇▇▇ represent and
warrant, as of the date hereof and as of the date of the consummation of the
Transaction, that they are entitled to no other payment from any of the parties
to the Merger Agreement referenced above or any of their successors or assigns,
except as expressly set forth in such Merger Agreement and the "ancillary
agreements" referenced therein, or that may be payable to ▇▇. ▇▇▇▇▇ solely in
his capacity as Chairman of the Board of the Company, including with respect to
options held by ▇▇. ▇▇▇▇▇ as of the date hereof.
7. MISCELLANEOUS. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns. This Agreement shall be binding on all successors to the Company,
including the surviving company in any merger of the Company. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
Delaware applicable to contracts executed in and to be performed in that State.
Each of the parties hereto (i) consents to submit itself to the personal
jurisdiction of any Delaware state court located in the city of Wilmington if
any dispute arises under this Agreement, the ancillary agreements or any
transaction contemplated hereby or thereby, (ii) agrees that it will not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, (iii) agrees that it will not bring any action, suit
or proceeding relating to this Agreement, the ancillary agreements or any
transaction contemplated hereby or thereby in any court other than any such
court,
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(iv) waives any right to trial by jury with respect to any action; suit or
proceeding related to or arising out of this Agreement, the ancillary agreements
or any transaction contemplated hereby or thereby, (v) waives any objection to
the laying of venue of any action, suit or proceeding arising out this
Agreement, the ancillary agreements or any transaction contemplated hereby or
thereby in any such court, (vi) waives and agrees not to plead or claim that any
such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum and (vii) agrees that a final judgment in any such action,
suit or proceeding in any such court shall be conclusive and may be enforced in
any other jurisdiction by suit on the judgment or in any other manner provided
by applicable law. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the Company, ▇▇▇▇▇ Management and ▇▇. ▇▇▇▇▇ have
caused this Agreement to be executed as of the date first written above.
▇▇▇▇▇ Management LLC
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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HAWAIIAN AIRLINES, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice Chairman and
Chief Executive Officer
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
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Annex to the Advisory Agreement
December 19, 2001
▇▇▇▇▇ Management LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Ladies and Gentlemen:
In connection with the engagement of ▇▇▇▇▇ Management Company LLC
("▇▇▇▇▇ MANAGEMENT") to assist us with the Transaction (as defined in the
engagement letter dated as of the date hereof between us and ▇▇▇▇▇ Management)
and the other activities referenced therein (the "ENGAGEMENT"), we agree that we
will indemnify and hold harmless you and your affiliates and their respective
directors, officers, agents and employees and each other person controlling you
or any of your affiliates (collectively, the "INDEMNIFIED PARTIES"), to the full
extent lawful, from and against any losses, expenses, claims or proceedings
(collectively, "LOSSES") (i) related to or arising out of (A) oral or written
information provided by us, our employees or our other agents, which information
either we or you provide to any actual or potential buyers, sellers, investors
or offerees, or (B) any other action or failure to act by us, our directors,
officers, agents or employees or by you or any indemnified party at our request
or with our consent, or (ii) otherwise related to or arising out of the
engagement or any transaction or conduct in connection therewith, except that
this clause (ii) shall not apply with respect to any losses that are finally
judicially determined to have resulted primarily from the gross negligence or
willful misconduct of such indemnified party, or, if applicable, a breach of
fiduciary duty, of such indemnified party to B.
We agree that we will not, without prior written consent of ▇▇▇▇▇
Management, settle any pending or threatened claim or proceeding related to or
arising out of the engagement or any actual or proposed transactions or other
conduct in connection therewith (whether or not you or any indemnified party is
a party to such claim or proceeding) unless such settlement includes a provision
unconditionally releasing you and each other indemnified party from, and holding
all such persons harmless against, all liability in respect of claims by any
releasing party related to or arising out of the engagement or any transactions
or conduct in connection therewith. We will also promptly reimburse each
indemnified party for all expenses (including counsel fees and expenses) as they
are incurred by such indemnified party in connection with investigating,
preparing for, defending, or providing evidence in, any pending or threatened
claim or proceeding related to or arising out of the engagement or any actual or
proposed transaction or other conduct in connection therewith or otherwise in
respect of which indemnification or contribution may be sought hereunder
(whether or not you or any indemnified party is a party to such claim or
proceeding) or in enforcing this agreement.
We further agree that no indemnified party shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to us or any of
our affiliates, creditors or security holders for or in connection with the
engagement or any actual or proposed transactions or other conduct in connection
therewith, except for losses incurred by us that are finally judicially
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determined to have resulted primarily from the gross negligence or willful
misconduct of such indemnified party, or, if applicable, a breach of fiduciary
duty, of such indemnified party to B.
This Agreement is in addition to any rights you may have at common law
or otherwise and shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. This Agreement shall
be governed by, and construed in accordance with, the laws of the State of
Delaware applicable to contracts executed in and to be performed in that State.
Each of the parties hereto (i) consents to submit itself to the personal
jurisdiction of any Delaware state court located in the city of Wilmington if
any dispute arises under this Agreement, the ancillary agreements or any
transaction contemplated hereby or thereby, (ii) agrees that it will not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, (iii) agrees that it will not bring any action, suit
or proceeding relating to this Agreement, the ancillary agreements or any
transaction contemplated hereby or thereby in any court other than any such
court, (iv) waives any right to trial by jury with respect to any action; suit
or proceeding related to or arising out of this Agreement, the ancillary
agreements or any transaction contemplated hereby or thereby, (v) waives any
objection to the laying of venue of any action, suit or proceeding arising out
this Agreement, the ancillary agreements or any transaction contemplated hereby
or thereby in any such court, (vi) waives and agrees not to plead or claim that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum and (vii) agrees that a final judgment in any such
action, suit or proceeding in any such court shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment or in any other
manner provided by applicable law. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement. This Agreement may be
executed and delivered (including by facsimile transmission) in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement. This
Agreement shall remain in full force and effect notwithstanding the completion
or termination of the engagement.
Very truly yours,
HAWAIIAN AIRLINES, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice Chairman and
Chief Executive Officer
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
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Accepted and agreed to as of
the date set forth above:
▇▇▇▇▇ Management LLC
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
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