Exhibit 10.14
EXECUTION COPY
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of December 19, 2001 between
Pacific Century Trust ("Seller"), as trustee of the Aloha Airgroup, Inc.
Non-Pilots Pension Trust (the "Trust"), and Hawaiian Airlines, Inc., a Hawaii
corporation ("Purchaser"). All capitalized terms used but not otherwise defined
herein shall have the meaning ascribed to such terms in the Merger Agreement (as
defined below).
WHEREAS concurrently herewith Purchaser is entering into a
merger agreement dated as of the date hereof among Purchaser, Aloha Airgroup,
Inc. (the "Company"), TurnWorks Acquisition III, Inc. and TurnWorks, Inc. (the
"Merger Agreement");
WHEREAS the Merger Agreement contemplates that Purchaser will
purchase from Seller immediately prior to the Closing Time (as defined below) an
aggregate of 10,000 shares (the "Shares") of issued and outstanding Series C 10%
exchangeable preferred stock, stated value U.S.$1,000 per share, of the Company,
and Purchaser has determined to purchase from Seller the Shares upon the terms
and subject to the conditions set forth herein;
WHEREAS, Seller acts as trustee of the Trust, which Trust
holds assets on behalf of the Aloha Airgroup, Inc. Pension Plan for Employees
Represented by the International Association of Machinists, the Aloha Airgroup,
Inc. Pension Plan for Dispatchers and Assistant Dispatchers Represented by the
Transport Workers Union of America and the Aloha Airgroup, Inc. Pension Plan for
NonRepresented employees (collectively, the "Plans"), pursuant to a Trust
Agreement, dated January 1, 2000 and entered into with the Company (the "Trust
Agreement");
WHEREAS, Section 4.4 of the Trust Agreement authorizes the
Company, as the Employer (as such term is defined in the Trust Agreement), to
direct the Trustee with regard to investments of the Trust;
WHEREAS, Xxxxxx X. Xxxxxxxx, as Plan Administrator (the "Plan
Administrator"), has been duly authorized by the Company to so direct the
Trustee;
WHEREAS, the Plan Administrator, as fiduciary to the Plans,
having used prudence and diligence in reviewing the desirability of the sale
contemplated herein to the Trust and the fair value of the proceeds to be
received by the Trust, including proceeds receivable under the Participation
Rights Agreement, dated September 8, 2000, between the Trust and the Company has
determined, and does hereby represent, that the sale contemplated herein is
consistent with the requirements of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), is in the best interests of the participants and
beneficiaries of the Plans and will result in the Trust receiving at least fair
value for the Shares;
WHEREAS, the Plan Administrator has determined to, and hereby
directs, the Trustee to sell the Shares; and
WHEREAS, the Trustee has determined that following such
direction with respect to the sale of the Shares is in accordance with the terms
of the Trust Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements and covenants hereinafter set forth, each of Seller and
Purchaser hereby agree as follows:
1. SALE OF SHARES. Subject to the terms and conditions contained
herein, Seller will sell to Purchaser, and Purchaser will buy from Seller, the
Shares for an aggregate cash purchase price (the "Purchase Price") of
U.S.$10,000,000, representing U.S.$1,000 per Share, plus accrued and unpaid
dividends (at a rate of 10% per annum payable semi-annually) as of the Closing
Time (as defined below). The Purchase Price will be payable by Purchaser at the
Closing Time.
2. CLOSING.
(a) The closing of the sale and purchase under Section 1 of this
Agreement shall take place at the offices of Cleary, Gottlieb, Xxxxx & Xxxxxxxx,
Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, on the same day as, and
immediately prior to, the Effective Time (as defined in the Merger Agreement)
(the "Closing Time").
(b) At the Closing Time, Seller shall deliver or cause to be
delivered to Purchaser (i) stock certificates evidencing the Shares duly
endorsed in blank or accompanied by a duly executed stock power in proper form
for transfer and (ii) a receipt for the Purchase Price in respect of the Shares.
(c) At the Closing Time, Purchaser shall deliver to Seller, (i) the
Purchase Price by either (A) certified checks or (B) wire transfer of
immediately available funds to the bank account of Seller, as furnished to
Purchaser in writing not less than two business days prior to the Closing Time
and (ii) a receipt for the Shares.
3. REPRESENTATIONS OF SELLER. As an inducement to Purchaser to enter
into this Agreement, Seller represents and warrants to Purchaser that:
(a) Seller owns beneficially and of record the Shares and has good
and valid title to the Shares, free and clear of all Liens. Seller has the
unrestricted power and authority to transfer the Shares to Purchaser. The
delivery of and payment for the Shares pursuant to this Agreement will transfer
to Purchaser good and valid title to Seller's Shares free and clear of any
perfected security interest or any other security interests, claims, liens or
encumbrances. There are no voting trusts, stockholder agreements, proxies or
other agreements or understandings in effect with respect to the voting or
transfer of any of Seller's Shares.
(b) Seller has all requisite power and authority to enter into and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby; and the execution and delivery of this Agreement by Seller,
the performance by Seller of its obligations hereunder and the consummation by
Seller of the transactions contemplated hereby have been duly authorized by all
requisite action on the part of Seller.
(c) This Agreement has been duly executed and delivered by Seller
and constitutes a legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws of general application
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affecting enforcement of creditors' rights generally and (ii) the availability
of the remedy of specific performance or injunctive or other forms of equitable
relief may be subject to equitable defenses and would be subject to the
discretion of the court before which any proceeding therefor may be brought.
(d) (i) No Order has been issued by any court or other Governmental
Authority against Seller purporting to enjoin or restrain the execution,
delivery or performance of this Agreement; and (ii) as of the date hereof, there
is no litigation, suit, claim, action or proceeding pending or, to the knowledge
of Seller, threatened in writing against Seller or any of its property or
assets, before any court, arbitrator or Governmental Authority, domestic or
foreign, seeking relief which, if ordered, would delay or prevent the
consummation of the transaction contemplated hereby.
(e) The execution, delivery and performance by Seller of this
Agreement and the transactions contemplated hereby and thereby, including,
without limitation, the sale of the Shares by Seller (i) if applicable, do not
contravene the terms of the articles of incorporation or by-laws, or similar
instrument of organization, or any amendment thereof, of Seller, (ii) do not
violate, conflict with or result in any breach, default or contravention of (or
with due notice or lapse of time or both would result in any breach, default or
contravention of), or the creation of any Lien under, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument (collectively, a "Contractual Obligation") of Seller, or
any law, statute, rule or regulation (collectively, a "Requirement of Law")
applicable to Seller and (iii) do not violate any Orders against, or binding
upon, Seller.
(f) No approval, consent, compliance, exemption, authorization or
other action by, or notice to, or filing with, any Governmental Authority or any
other Person, and no lapse of a waiting period under a Requirement of Law, is
necessary or required in connection with the execution, delivery or performance
(including, without limitation, the sale and delivery of the Shares) by, or
enforcement against, Seller of this Agreement and the transactions contemplated
hereby.
(g) No form of general solicitation or general advertising was used
by Seller or its representatives in connection with the sale of the Shares.
(h) No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transaction contemplated hereby based upon arrangements made by or on behalf of
Seller.
4. REPRESENTATIONS OF PURCHASER. As an inducement to Seller to enter
into this Agreement, Purchaser represents and warrants to Seller that:
(a) Purchaser is aware that the Shares may not be sold, transferred,
offered for sale, pledged, hypothecated or otherwise disposed of without
registration or qualification under the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable state securities laws, except pursuant to
an exemption from such registration or qualification under the Securities Act
and any applicable state securities laws. Purchaser is aware that the Company
has no obligation to register the Shares for resale.
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(b) Purchaser is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Hawaii and has all requisite
power and authority to enter into and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby; and the
execution and delivery of this Agreement by Purchaser, the performance by
Purchaser of its obligations hereunder and the consummation by Purchaser of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of Purchaser.
(c) This Agreement has been duly executed and delivered by Purchaser
and constitutes a legal, valid and binding obligation of Purchaser, enforceable
against it in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws of general application affecting enforcement of creditors'
rights generally and (ii) the availability of the remedy of specific performance
or injunctive or other forms of equitable relief may be subject to equitable
defenses and would be subject to the discretion of the court before which any
proceeding therefor may be brought.
(d) (i) No Order has been issued by any court or other Governmental
Authority against Purchaser purporting to enjoin or restrain the execution,
delivery or performance of this Agreement; and (ii) as of the date hereof, there
is no litigation, suit, claim, action or proceeding pending or, to the knowledge
of Purchaser, threatened in writing against Purchaser or any of its property or
assets, before any court, arbitrator or Governmental Authority, domestic or
foreign, seeking relief which, if ordered, would delay or prevent the
consummation of the transaction contemplated hereby.
(e) The execution, delivery and performance by Purchaser of this
Agreement and the transactions contemplated hereby and thereby (i) do not
contravene the terms of the Certificate of Incorporation or the By-laws, (ii) do
not violate, conflict with or result in any breach, default or contravention of
(or with due notice or lapse of time or both would result in any breach, default
or contravention of), or the creation of any Lien under, any Contractual
Obligation of Purchaser or any Requirement of Law applicable to Purchaser and
(iii) do not violate any Orders against, or binding upon, Purchaser.
(f) No approval, consent, compliance, exemption, authorization or
other action by, or notice to, or filing with, any Governmental Authority or any
other Person, and no lapse of a waiting period under a Requirement of Law, is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, Purchaser of this Agreement and the transactions
contemplated hereby.
(g) Purchaser acknowledges that it did not agree to purchase the
Shares as a result of any form of general solicitation or general advertising.
(h) No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transaction contemplated hereby based upon arrangements made by or on behalf of
Purchaser.
5. COVENANTS.
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(a) Purchaser covenants with Seller that it shall hold the Shares
until cancelled as contemplated in the Merger Agreement.
(b) Purchaser acknowledges that it is not entitled to and covenants
with Seller that it will not receive any dividends or other distributions as
holder of the Shares prior to the Effective Time.
6. CONDITIONS TO CLOSING.
(a) The obligation of Purchaser to purchase the Shares, to pay the
purchase price therefor at the Closing Time and to perform any other obligations
hereunder shall be subject to the satisfaction (or waiver by Purchaser) of the
following conditions on or before the Closing Time:
(i) REPRESENTATIONS AND COVENANTS. The representations and
warranties of Seller contained herein shall have been true and
correct when made and (other than the representations and warranties
set out in Section 3(d)(ii) hereof) shall be true and correct in all
material respects as of the Closing Time with the same force and
effect as though made on and as of the Closing Time. Seller shall
have performed and complied in all material respects with all
covenants and agreements required hereby to be performed or complied
with by Seller on or prior to the Closing Time. Seller shall have
delivered to Purchaser a certificate, dated the Closing Time and
signed by an authorized representative of Seller, to the foregoing
effect.
(ii) NO ORDERS. No Order shall have been issued or litigation
initiated by any Governmental Authority to restrain or prohibit, or
to obtain damages or a discovery order in respect of, this Agreement
or the consummation of the transactions contemplated hereby.
(iii) CONSENTS. All authorizations, consents, orders or approvals
of, or declarations or filings with, or expiration of waiting
periods imposed by, or notifications to, any Governmental Authority
required by any Law in connection with the execution, delivery and
performance of this Agreement shall have been obtained, filed,
expired or given as of the Closing Time.
(b) The obligations of Seller to sell the Shares and to perform any
other obligations hereunder shall be subject to the satisfaction (or waiver by
Seller) of the following conditions on or before the Closing Time:
(i) REPRESENTATIONS AND COVENANTS. The representations and
warranties of Purchaser contained herein shall have been true and
correct when made and (other than the representations and warranties
set out in Section 4(d)(ii) hereof) shall be true and correct in all
material respects as of the Closing Time with the same force and
effect as though made on and as of the Closing Time. Purchaser shall
have performed and complied in all material respects with all
covenants and agreements required hereby to be performed or complied
with by Purchaser on or prior to the Closing Time. Purchaser shall
have delivered to Seller a certificate,
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dated the Closing Time and signed by an officer of Purchaser, to the
foregoing effect.
(ii) NO ORDERS. No Order shall have been issued or litigation
initiated by any Governmental Authority to restrain or prohibit, or
to obtain damages or a discovery order in respect of, this Agreement
or the consummation of the transactions contemplated hereby.
(iii) CONSENTS. All authorizations, consents, orders or approvals
of, or declarations or filings with, or expiration of waiting
periods imposed by, or notifications to, any Governmental Authority
required by any Law in connection with the execution, delivery and
performance of this Agreement shall have been obtained, filed,
expired or given as of the Closing Time.
(c) The obligations of Purchaser and Seller under this Agreement are
subject to the satisfaction or waiver of all of the conditions listed in Article
VIII of the Merger Agreement.
(d) The Plan Administrator represents that he has heretofore
consulted with counsel regarding his obligations under ERISA with respect to the
execution and performance of this Agreement. It is understood and agreed that
between the date hereof and the sale of the Shares at the Closing Time, the Plan
Administrator may consult with counsel and such valuation firms as he shall deem
necessary or appropriate in order to fulfill his fiduciary obligations under
ERISA in verifying that the Purchase Price hereunder would result in the Trust
receiving at least fair value to the Plan for the Shares at the Closing Time. If
the Plan Administrator determines that the Purchase Price at the Closing Time
would otherwise be less than the fair value to the Plan of the Shares at the
Closing Time, Purchaser shall have the right, but not the obligation, to make up
the shortfall.
7. TERMINATION.
(a) This Agreement may be terminated as follows:
(i) by mutual written consent of each of Seller and Purchaser;
(ii) at the written election of Purchaser, in the event that the
conditions set forth in Section 6(a) have not been fulfilled by the
Closing Time or have become impossible of fulfillment prior to the
Closing Time;
(iii) at the written election of Seller, in the event that the
conditions set forth in Section 6(b) have not been fulfilled by the
Closing Time or have become impossible of fulfillment prior to the
Closing Time; or
(iv) at the written election of either Purchaser or Seller, in the
event that (A) the conditions set forth in Section 6(c) have not
been fulfilled by the Closing Time or have become impossible of
fulfillment prior to the Closing Time or (B) the Plan Administrator
determines that the Purchase Price at the Closing Time is
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less than the fair value to the Plan of the Shares at the Closing
Time and Purchaser does not make up the shortfall (as provided in
Section 6(d)).
(b) 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.
(c) In the event of the termination of this Agreement pursuant to
the provisions of this Section 7, this Agreement shall become void and have no
effect, without any liability on the part of any party hereto or its directors,
officers or stockholders in respect of this Agreement.
8. GOVERNING LAW. 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, except to the extent that
provisions of the Hawaii Business Corporation Act, as amended, ("HBCA") are
mandatorily applicable. 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 or any transaction
contemplated hereby, (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 or any transaction contemplated hereby 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 or any
transaction contemplated hereby, (v) waives any objection to the laying of venue
of any action, suit or proceeding arising out this Agreement or any transaction
contemplated hereby 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.
9. ASSIGNMENT. This Agreement may not be assigned by any party hereto
without the prior written consent of the other parties hereto.
10. PARTIES. All the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors of the parties hereto.
11. AMENDMENTS. This Agreement may be amended or modified only by an
instrument in writing signed by each of Seller and Purchaser.
12. NOTICES. All notices, consents, requests, instructions, approvals
and other communications provided herein shall be validly given or made (and
shall be deemed to have been duly given or made upon receipt or delivery), if in
writing and delivered personally or sent by nationally recognized overnight
courier, by facsimile transmission (followed up by certified or registered mail,
return receipt requested) or by registered or certified mail return receipt
requested, (i) if to Purchaser at 0000 Xxxxxxx Xxxxxx, Xxxxx X000, Xxxxxxxx,
Xxxxxx 00000-0000, attention: Vice Chairman and Chief Executive Officer,
facsimile: 000-000-0000, with a copy to the attention of the General Counsel,
facsimile: 000-000-0000 and (ii) if to Seller at X.X. Xxx
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0000, Xxxxxxxx, Xxxxxx 00000, attention: Xxx Xxxx, VP & Trust Officer,
facsimile: 000-000-0000.
13. MISCELLANEOUS. This Agreement may be executed concurrently in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Each counterpart
may be delivered by facsimile transmission, which transmission shall be deemed
delivery of an originally executed document.
14. 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; provided, however, that in no event shall Purchaser
be required to purchase the Shares if the Merger Agreement is terminated.
15. ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their understandings and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
16. FURTHER ACTION. Each of the parties hereto shall use all reasonable
efforts to take, or cause to be taken, all appropriate action, do or cause to be
done all things necessary, proper or advisable under applicable laws and
regulations, and execute and deliver such documents and other papers, as may be
required to carry out the provisions of this Agreement and consummate and make
effective the transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
HAWAIIAN AIRLINES, INC.
/s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice Chairman and Chief Executive Officer
/s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer
PACIFIC CENTURY TRUST, AS TRUSTEE OF THE ALOHA
AIRGROUP, INC. NON-PILOTS PENSION TRUST
/s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Vice President
/s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Trust Officer
/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX, in his capacity as Plan
Administrator of the Aloha Airgroup, Inc.
Non-Pilots Pension Trust
