SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
HAWAIIAN AIRLINES, INC.
(Exact name of registrant as specified in its charter)
HAWAII 99-0042880
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
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3375 Koapaka Street
Suite G350
Honolulu, Hawaii 96819
(808) 835-3700
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
LYN F. ANZAI, ESQ.
Vice President, General Counsel and Corporate Secretary
3375 Koapaka Street
Suite G350
Honolulu, Hawaii 96819
(808) 835-3700
(Name, address, including zip code and telephone number,
including area code, of agent for service)
Copy to:
BRADFORD P. WEIRICK, ESQ.
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7000
(1) These shares are issued and reserved for issuance pursuant to the Hawaiian
Airlines, Inc. Pilots' 401(k) Plan (the "Plan"). Pursuant to Rule 416,
also being registered are additional shares of Common Stock as may become
available under the Plan through the operation of anti-dilution
provisions.
(2) Estimated in accordance with Rule 457(h) and Rule 457(c) of the Securities
Act of 1933, as amended, solely for the purpose of calculating the
registration fee, as follows: $1,268.25 with respect to 1,685,380 shares
of Common Stock, based on a price of $3.01 per share, the average of the
high and low trading prices of the Common Stock of Hawaiian Airlines, Inc.
on the American Stock Exchange on May 15, 2001.
(3) These Preferred Stock Purchase Rights attach to each share of Common Stock
upon issuance.
INTRODUCTION
This Registration Statement on Form S-8 is filed by Hawaiian Airlines, Inc., a Hawaii corporation (the "Company" or "Registrant"), relating to 1,685,380 shares of its common stock, par value $0.01 per share (the "Common Stock"), issuable to eligible employees of the Company under the Hawaiian Airlines, Inc. Pilots' 401(k) Plan (the "Plan").
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The information specified by Item 1 and Item 2 of Part I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the "Securities Act") and the introductory note to Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The SEC allows us to "incorporate by reference" the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this registration statement, and later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") until such time as this registration statement is no longer effective:
(1) the Annual Report on Form 10-K for the fiscal year ended December 31, 2000;
(2) the Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2001;
(3) the Current Report on Form 8-K, filed on April 6, 2001; and
(4) the description of the Company's Common Stock contained in its Registration Statements on Form 8-A/A filed on July 1, 1996; on Form 8-A 12B/A, filed on September 14, 1998; and on Form S-8 (Registration No. 333-09673), filed on August 6, 1996.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address: Hawaiian Airlines, Inc., Attention:
Corporate Secretary, 3375 Koapaka St., Suite G350, Honolulu, Hawaii 96819,
telephone number (808) 835-3700.
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 415-5 of the Hawaii Business Corporation Act (the "HBCA") permits a corporation to indemnify any person who was or is a party to or is threatened to be made a party to any 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 was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation in such a capacity with another enterprise (such person being hereinafter referred to as the "Indemnitee"). The indemnity may cover
expenses (including attorneys' fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceedings, had no reasonable cause to believe the Indemnitee's conduct was unlawful.
Section 415-48.5 of the HBCA provides that a corporation does not have
the power to eliminate or limit the personal liability of a director for (a) any
breach of the director's duty of loyalty to the corporation or its shareholders,
(b) any act or omission of the director not performed in good faith, or which
involves intentional misconduct or knowing violation of the law, or which
constitutes a willful or reckless disregard of the director's fiduciary duty,
(c) the director's willful or negligent violation of any provision of the HBCA
regarding payment of dividends or stock purchase or redemption, or (d) any
transaction from which the director received an improper benefit.
Section 415-5 of the HBCA also provides that, in the case of an action or suit by or on behalf of the corporation, the corporation has the power to indemnify an Indemnitee against expenses (including attorneys' fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believes to be in, or not opposed to, the best interests of the corporation, except that no indemnification may be made in respect to any claim, issue or matter as to which the Indemnitee had been adjudged to be liable for negligence or misconduct in the performance of the Indemnitee's duties to the corporation unless, and only to the extent that, the court in which the action or suit was brought determines that, despite the adjudication of liability, but in view of all circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court deems proper. The provision does not, however, expressly authorize the corporation to indemnify the Indemnitee against judgments, fines and amounts paid in settlement arising out of a shareholder's derivative action.
The HBCA further provides that indemnification is mandatory with respect to expenses incurred in connection with any action, suit or proceeding, to the extent the Indemnitee is successful on the merits or otherwise in defense of any such action or claim.
The HBCA allows the payment by the corporation of expenses incurred by an Indemnitee in advance of the final disposition of an action, suit or proceeding if the Indemnitee provides an undertaking of repayment. Additionally, it provides that the indemnity provided by the statute is not exclusive of any other rights to which an Indemnitee may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise. It also provides that a corporation may purchase insurance for officers or directors of the corporation.
Article VII of the Company's Restated Articles of Incorporation incorporates the provisions of the HBCA so as to provide the indemnification of the HBCA to officers and directors of the Company. Article VII also provides that the indemnity provided thereunder is nonexclusive of any other rights of indemnification to which an Indemnitee may be entitled.
In addition, the Company has entered into indemnification agreements with each of its directors and executive officers providing indemnification to the fullest extent permitted by law. Furthermore, the Company has a policy of directors' and officers' liability insurance which insures directors and officers against the cost of defense, settlement or payment of a judgment under certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to another filing of the Company with the SEC, each of the following exhibits is filed herewith:
The following exhibits are filed herewith:
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 Restated Articles of Incorporation of the Company,
incorporated by reference to Exhibit 3(a) to the Company's
Registration Statement on Form S-8 filed on December 23,
1998, Registration No. 333-69665.
4.2 By-laws of the Company, as amended and restated,
incorporated by reference to Exhibit 3.1 to the Company's
Current Report on Form 8-K filed on September 14, 1998,
Commission File No. 1-8836.
5.1 Opinion and Consent of Lyn F. Anzai, Esq.
5.2 IRS Determination Letter that the Hawaiian Airlines, Inc.
Pilots' 401(k) Plan is qualified under Section 401 of the
Internal Revenue Code.
23.1 Consent of Lyn F. Anzai, Esq. (contained in Exhibit 5.1).
23.2 Consent of Ernst & Young, LLP.
23.3 Consent of KPMG LLP.
24.1 Power of Attorney (included on the signature page hereto).
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ITEM 9. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
(a) 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;
(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 and of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC 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 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 (1)(a)(i) and (1)(a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
(b) That, for the purpose of determining any liability under the Securities Act, 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.
(c) 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.
(2) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act 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.
(3) Insofar as indemnification for liabilities arising under the Securities Act 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 SEC such indemnification is against public policy as expressed in the Act 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 Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 and County of Honolulu, State of Hawaii, on this 18th day of May, 2001.
HAWAIIAN AIRLINES, INC.
By: /s/ CHRISTINE R. DEISTER
-------------------------------------------------
Christine R. Deister
Executive Vice President, Chief Financial
Officer and Treasurer
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Paul J. Casey, Lyn F. Anzai and Christine R. Deister his or her true and lawful attorneys-in-fact and agents, each acting alone, with full powers 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 Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full powers 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 to all intents and purposes as he or she might, or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE
/s/ PAUL J. CASEY Director, Vice Chairman of the April 27, 2001
------------------------------------- Board and Chief Executive Officer
(Paul J. Casey) (Principal Executive Officer)
/s/ CHRISTINE R. DEISTER Executive Vice President, Chief April 27, 2001
------------------------------------- Financial Officer and Treasurer
(Christine R. Deister) (Principal Accounting and
Financial Officer)
/s/ JOHN W. ADAMS Director, Chairman of the Board April 27, 2001
-------------------------------------
(John W. Adams)
/s/ TODD G. COLE Director April 27, 2001
-------------------------------------
(Todd G. Cole)
/s/ ROBERT G. COO Director April 27, 2001
-------------------------------------
(Robert G. Coo)
/s/ JOSEPH P. HOAR Director April 27, 2001
-------------------------------------
(Joseph P. Hoar)
/s/ RENO F. MORELLA Director April 27, 2001
-------------------------------------
(Reno F. Morella)
/s/ ARTHUR J. PASMAS Director April 27, 2001
-------------------------------------
(Arthur J. Pasmas)
/s/ SAMSON POOMAIHEALANI Director April 27, 2001
-------------------------------------
(Samson Poomaihealani)
/s/ EDWARD Z. SAFADY Director April 27, 2001
-------------------------------------
(Edward Z. Safady)
/s/ SHARON L. SOPER Director April 27, 2001
-------------------------------------
(Sharon L. Soper)
/s/ THOMAS J. TRZANOWSKI Director April 27, 2001
-------------------------------------
(Thomas J. Trzanowski)
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INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION
4.1 Restated Articles of Incorporation of the Company,
incorporated by reference to Exhibit 3(a) to the
Company's Registration Statement on Form S-8 filed
on December 23, 1998, Registration No. 333-69665.
4.2 By-laws of the Company, as amended and restated,
incorporated by reference to Exhibit 3.1 to the
Company's Current Report on Form 8-K filed on
September 14, 1998, Commission File No. 1-8836.
5.1 Opinion and Consent of Lyn F. Anzai, Esq.
5.2 IRS Determination Letter that the Hawaiian Airlines,
Inc. Pilots' 401(k) Plan is qualified under Section
401 of the Internal Revenue Code.
23.1 Consent of Lyn F. Anzai, Esq. (contained in Exhibit
5.1).
23.2 Consent of Ernst & Young, LLP.
23.3 Consent of KPMG LLP.
24.1 Power of Attorney (included on the signature page
hereto).
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EXHIBIT 5.1
[Letterhead of Hawaiian Airlines, Inc.]
May 18, 2001
Hawaiian Airlines, Inc.
3375 Koapaka Street
Suite G350
Honolulu, HI 96819
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
I have acted as counsel for Hawaiian Airlines, Inc., a Hawaii corporation (the "Company"), in connection with the Registration Statement of the Company on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, relating to the registration of 1,685,380 shares of Common Stock (the "Common Stock") of the Company.
In connection therewith, I have examined, among other things, the Registration Statement. I have also examined such corporate proceedings, documents, records and matters of law as I have deemed necessary for purposes of rendering this opinion.
Based upon the foregoing, and in reliance thereon, I am of the opinion that the shares of Common Stock are validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ LYN F. ANZAI ------------------------------------- Lyn F. Anzai |
EXHIBIT 5.2
May 2, 2001
Internal Revenue Service
District Director
2 Cupania Circle
Monterey Park, CA 91755
Date: January 7, 1997 Employer Identification Number: 99-0042880
File Folder Number: 990000404
Hawaiian Airlines Incorporated Person to Contact: Daniel Arredondo
c/o Shawn B. Thompson, Esq. Contact Telephone Number: (213) 725-0164
Thompson & Chan Plan Name: Hawaiian Airlines, Inc.
P.O. Box 4699 Pilots' 401(k) Plan
Honolulu, HI 96812-4699 Plan Number 007
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Dear Applicant:
We have made a favorable determination on your plan, identified above, based on the information supplied. Please keep this letter in your permanent records.
Continued qualification of the plan under its present form will depend on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable determination letter, points out some features that may affect the qualified status of your employee retirement plan, and provides information on the reporting requirements for your plan. It also describes some events that automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal Revenue Code. It is not a determination regarding the effect of other federal or local statutes.
This determination expresses an opinion on whether the amendment(s), in
and of itself, affects the continued qualified status of the plan under Code
Section 401 and the exempt status of the related trust under section 501(a). It
is not an opinion on the qualification of the plan as a whole and the exempt
status of the related trust as a whole.
This determination letter is applicable for the amendment(s) adopted on 0533396/093096.
This determination letter is applicable for the plan adopted on 090190.
This letter ma not be relied upon with respect to whether the plan satisfies the qualification requirements as amended by the Uruguay Round Agreements Act, Pub. L. 103-465.
The information on the enclosed addendum is an integral part of this determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative
Letter 835 (DO/CG)
HAWAIIAN AIRLINES INCORPORATED
as indicated in the power of attorney.
If you have questions concerning this matter, please contact the person whose name and telephone number are shown above.
Sincerely,
/s/ Steven A. Jensen Steven A. Jensen District Director |
Enclosure(s)
Publication 794
Addendum
Letter 835 (DO/CG)
HAWAIIAN AIRLINES INCORPORATED
This addendum also satisfies the requirements of Code section 401 (k).
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form S-8) relating to the distribution of stock to the pilots of Hawaiian Airlines, Inc. our report dated March 16, 2001, with respect to the financial statements and the schedule of Hawaiian Airlines, Inc. included in the Annual Report on Form 10-K for the year ended December 31, 2000.
/s/ Ernst & Young, LLP
Honolulu, Hawaii
May 10, 2001
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EXHIBIT 23.3
ACCOUNTANTS' CONSENT
The Board of Directors
Hawaiian Airlines, Inc.:
We consent to incorporation by reference in the Registration Statement on Form S-8 of Hawaiian Airlines, Inc., registering 1,685,380 shares of Common Stock and 1,685,380 Preferred Stock Purchase Rights pursuant to the Hawaiian Airlines, Inc. Pilots' 401(k) Plan, of our reports dated March 11, 1999, relating to the statements of operations, shareholders' equity and comprehensive income, and cash flows of Hawaiian Airlines, Inc. for the year ended December 31, 1998, and relating to the financial statement schedule for the year ended December 31, 1998, which reports appear in the December 31, 2000 annual report on Form 10-K of Hawaiian Airlines, Inc.
/s/ KPMG LLP
Honolulu, Hawaii
May 18, 2001
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