Exhibit 10.15
EXECUTION COPY
STOCKHOLDER ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT dated as of December 19, 2001 (the
"Agreement") is entered into by and between Aloha Securities & Investment
Company, a Hawaii limited partnership ("ASIC"), Sheridan Ing Partners Hawaii, a
Hawaii limited partnership ("SIPH", and, together with ASIC, the
"Stockholders"), Xxxxx X. Xxxxxx ("GZ") and Xxxxxx X. Xxxxxxxxx ("BC", and
together with GZ, the "Executives").
WHEREAS Aloha Airgroup, Inc. (the "Employer") and GZ have
entered into an amended and restated employment agreement made as of May 11,
1994, as amended as of December 1, 1995 and November 1, 2000 (the "GZ Employment
Agreement");
WHEREAS the Employer and BC have entered into an employment
agreement made as of January 1, 1994, as amended and restated as of January 1,
1997 (the "BC Employment Agreement" and, together with the GZ Employment
Agreement, the "Employment Agreements");
WHEREAS the Employer has entered into a merger agreement dated
as of the date hereof among Hawaiian Airlines, Inc., TurnWorks Acquisition III,
Inc. and TurnWorks, Inc. (the "Merger Agreement"), pursuant to which the
Employer intends to participate in the mergers described therein (the
"Mergers");
WHEREAS, in contemplation of the Mergers, the Executives and
the Employer desired to further amend the Employment Agreements and, in
furtherance of that objective, the Employer and GZ entered into an employment
amendment agreement dated the date hereof (the "GZ Amendment") and the Employer
and BC entered into an employment amendment agreement dated the date hereof (the
"BC Amendment" and, together with the GZ Amendment, the "Amendments"); and
WHEREAS, in order to induce the Executives to enter into the
Amendments, the Stockholders have agreed to assume and pay those liabilities of
the Employer under the Employment Agreements as specifically set forth herein;
NOW, THEREFORE, in consideration of the recitals and
agreements herein contained, the parties agree as follows:
1. EFFECTIVENESS. This Agreement shall not become effective until
immediately prior to the Effective Time (as such term is defined in the Merger
Agreement).
2. TERMINATION. (a) This Agreement shall immediately terminate (without
the need for any further action by any of the parties hereto) if the Merger
Agreement is terminated for any reason whatsoever.
(b) In the event of the termination of this Agreement pursuant to the
provisions of this Section 2, this Agreement shall become void and have no
effect, without any liability on the part of any party hereto or its directors,
officers, stockholders or partners, or any persons who control any of the
foregoing, in respect of this Agreement.
3. ASSUMPTION. Each Stockholder agrees to assume, and immediately prior
to the Effective Time shall assume, perform and pay, the liabilities of the
Employer under the Employment Agreements with respect to:
(a) the Separation Payment payable under Section 4(f)(ii) of each
Executive's Employment Agreement; and
(b) all payments in respect of any and all stock options granted to
each Executive prior to the Date of Termination, regardless of whether or not
such options have vested.
Notwithstanding anything herein to the contrary, ASIC's maximum
liability under this Agreement shall be $3,711,379 and SIPH's maximum liability
under this Agreement shall be $1,237,126.
4. SEPARATION PAYMENTS. Each of the Executives hereby agrees that the
Stockholders' liability to the Executives assumed under Section 3(a) hereof
shall be satisfied in full by the payment (in immediately available funds) by
the Stockholders of $1,527,279 in the aggregate to GZ (the "GZ Separation
Payment") and by the payment (in immediately available funds) by the
Stockholders of $766,826 in the aggregate to BC (the "BC Separation Payment").
5. STOCK OPTION PAYMENTS. Each of the Executives hereby agrees that the
Stockholders' liability to the Executives assumed under Section 3(b) hereof
shall be satisfied in full by the payment (in immediately available funds) by
the Stockholders of $1,705,800 in the aggregate to GZ (the "GZ Stock Option
Payment" and, together with the GZ Separation Payment, the "GZ Stockholders
Payment") and by the payment (in immediately available funds) by the
Stockholders of $948,600 in the aggregate to BC (the "BC Stock Option Payment"
and, together with the BC Separation Payment, the "BC Stockholders Payment").
6. NO OTHER CLAIMS. (a) GZ hereby acknowledges and agrees that, upon
receipt of the GZ Stockholders Payment, and without prejudice to any rights GZ
may have against the Employer arising out of his employment, GZ will have no
additional claim whatsoever against any stockholder of the Employer.
(b) BC hereby acknowledges and agrees that, upon receipt of the BC
Stockholders Payment, and without prejudice to any rights BC may have against
the Employer arising out of her employment, BC will have no additional claim
whatsoever against any stockholder of the Employer:
7. AMENDMENT. The provisions of this Agreement may not be amended,
waived or modified unless such amendment, waiver or modification is in writing
and signed by the parties hereto.
8. CAPITALIZED TERMS. Capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Employment Agreements.
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9. GOVERNING LAW. This Agreement shall be deemed to be a contract made
under the laws of the State of Hawaii, and for all purposes governed by and
construed in accordance with the laws of such State applicable to contracts made
and performed entirely within such State.
10. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf as of the date first written above.
ALOHA SECURITIES & INVESTMENT COMPANY, a
Hawaii Limited Partnership, by its
General Partner:
ALOHA INVESTMENT COMPANY INC., a
Hawaii corporation
/s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: Vice President
SHERIDAN ING PARTNERS HAWAII, a
Hawaii Limited Partnership, by its General
Partner:
Xxxxxx K.Y. Ing and Xxxxxxx K.M. Ing,
Co-Trustees of the FLP Trust dated May 21, 1987
/s/ Xxxxxx K.Y. Ing
----------------------------------------
Name: Xxxxxx K.Y. Ing
Title: Co-Trustee
/s/ Xxxxxxx K.M Ing
----------------------------------------
Name: Xxxxxxx K.M. Ing
Title: Co-Trustee
/s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
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