0000891092-05-000033.txt : 20120626
0000891092-05-000033.hdr.sgml : 20120626
20050112114530
ACCESSION NUMBER: 0000891092-05-000033
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 2
FILED AS OF DATE: 20050112
DATE AS OF CHANGE: 20050112
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: HAWAIIAN HOLDINGS INC
CENTRAL INDEX KEY: 0001172222
STANDARD INDUSTRIAL CLASSIFICATION: AIR TRANSPORTATION, SCHEDULED [4512]
IRS NUMBER: 710879698
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-78463
FILM NUMBER: 05525164
BUSINESS ADDRESS:
STREET 1: 3375 KOAPAKA STREET
STREET 2: SUITE G-350
CITY: HONOLULU
STATE: HI
ZIP: 96819
FORMER COMPANY:
FORMER CONFORMED NAME: HAWAIIAN AIR GROUP INC
DATE OF NAME CHANGE: 20020429
FORMER COMPANY:
FORMER CONFORMED NAME: HA HOLDINGS INC
DATE OF NAME CHANGE: 20020425
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: Smith Jeffrey A
CENTRAL INDEX KEY: 0001295322
FILING VALUES:
FORM TYPE: SC 13D/A
BUSINESS ADDRESS:
BUSINESS PHONE: 212-888-5500
MAIL ADDRESS:
STREET 1: C/O AIP, LLC
STREET 2: 885 THIRD AVENUE, 34TH FLOOR
CITY: NEW YORK
STATE: NY
ZIP: 10022
SC 13D/A
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e20252sc_13d.txt
FORM SCHEDULE 13/A
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
SCHEDULE 13D
(Amendment No. 11)
Under the Securities Exchange Act of 1934
HAWAIIAN HOLDINGS, INC.
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
419879-101
(CUSIP Number)
Thomas X. Fritsch, Esq.
885 Third Avenue
34th Floor
New York, New York 10022
Tel. No.: (212) 888-5500
COPY TO:
Daniel A. Etna, Esq.
Herrick, Feinstein LLP
2 Park Avenue
New York, New York 10016
Tel. No.: (212) 592-1557
(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
January 7, 2005
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box | |.
(Continued on following pages)
1
SCHEDULE 13D
Cusip No. 419879-101
----------------------------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION Nos. OF ABOVE PERSONS (ENTITIES ONLY)
AIP, LLC
----------------------------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) | |
(b) |X|
----------------------------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
----------------------------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
N/A
----------------------------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) | |
----------------------------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
----------------------------------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES None
-------------------------------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY None
-------------------------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING None
-------------------------------------------------------------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 2,159,403
----------------------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,159,403
----------------------------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | |
----------------------------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.99%
----------------------------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO (limited liability company)
----------------------------------------------------------------------------------------------------------------------------------
2
Cusip No. 419879-101
----------------------------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION Nos. OF ABOVE PERSONS (ENTITIES ONLY)
Jeffrey A. Smith
----------------------------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) | |
(b) |X|
----------------------------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
----------------------------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
N/A
----------------------------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) | |
----------------------------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
----------------------------------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES None
-------------------------------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY None
-------------------------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING None
-------------------------------------------------------------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 2,159,403
----------------------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,159,403
----------------------------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | |
----------------------------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.99%
----------------------------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
----------------------------------------------------------------------------------------------------------------------------------
3
AMENDMENT NO. 11 TO SCHEDULE 13D
Amendment No. 11 ("Amendment") to the Schedule 13D filed by, among others,
the reporting persons listed above with respect to the Common Stock, par value
$.01 per share (the "Common Stock"), of Hawaiian Holdings, Inc., a Delaware
corporation (the "Company"), dated as of January 18, 1996, as amended by
Amendment No. 1, dated as of January 31, 1996, as amended by Amendment No. 2,
dated as of December 19, 2001, as amended by Amendment No. 3, dated as of April
22, 2002, as amended by Amendment No. 4, dated as of May 7, 2002, as amended by
Amendment No. 5, dated as of May 31, 2002, as amended by Amendment No. 6, dated
as of July 11, 2002, as amended by Amendment No. 7, dated as of September 9,
2002, as amended by Amendment No. 8, dated as of March 5, 2004, as amended by
Amendment No. 9, dated as of April 2, 2004, and as amended by Amendment No. 10,
dated June 22, 2004 (as so amended, the "Schedule 13D"). Unless otherwise
indicated, capitalized terms contained herein shall have the meaning ascribed to
them in the Schedule 13D.
This Amendment should be read in conjunction with, and is qualified in its
entirety by reference to, the Schedule 13D and the exhibits thereto.
Item 4. Purpose of Transaction
Item 4 of the Schedule 13D is hereby amended by the following:
On December 30, 2004, AIP entered into an agreement with, among others, RC
Aviation which, among other things, amended and restated certain transfer
restriction provisions (the "Amended and Restated Transfer Restrictions")
contained in the AIP Stockholders Agreement. The Amended and Restated Transfer
Restrictions are attached hereto as Exhibit 10.1 and incorporated herein by
reference.
4
Item 5. Interest in Securities of the Issuer
Item 5(a) of the Schedule 13D is hereby amended as follows:
(a) As a result of the sale of shares of Common Stock by AIP on January 7,
2005, as more particularly described in Item 5(c) below, as of the close of
business on January 12, 2005, AIP beneficially owned directly 2,149,403 shares
of Common Stock. The 2,149,403 shares of Common Stock beneficially owned
directly by AIP constitute approximately 6.99% of the shares of Common Stock
outstanding on January 7, 2005. As of the close of business on January __, 2005,
Mr. Smith beneficially owned indirectly the 2,149,403 shares of Common Stock
beneficially owned directly by AIP. Mr. Smith disclaims beneficial ownership of
such shares of Common Stock for all other purposes.
As of the close of business on January 12, 2005, Mr. Smith did not
beneficially own directly any shares of Common Stock.
Item 5(b) of the Schedule 13D is hereby amended as follows:
(b) As a result of being the Managing Member of AIP, Mr. Smith may be
deemed to share with AIP the power to dispose or to direct the disposition of
the 2,149,403 shares of Common Stock beneficially owned directly by AIP. Mr.
Smith disclaims beneficial ownership of such shares of Common Stock for all
other purposes. Under the AIP Stockholders Agreement, RC Aviation has the sole
power to vote or to direct the vote of the 2,149,403 shares of Common Stock
beneficially owned directly by AIP.
As a result of entering into the AIP Stockholders Agreement with RC
Aviation, AIP may be deemed to have formed a "group" with RC Aviation within the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
Accordingly, AIP may be deemed to share beneficial ownership of the 10,000,000
shares of Common Stock beneficially owned directly by RC Aviation. If AIP were
determined to be the beneficial owner of the Common Stock owned by RC Aviation,
AIP would be the beneficial owner of 12,149,403 shares of Common Stock,
representing approximately 39.5% of the shares of Common Stock outstanding on
January 7, 2005. Each of AIP and Mr. Smith disclaims beneficial ownership of all
shares of Common Stock beneficially owned by RC Aviation.
Item 5(c) of the Schedule 13D is hereby amended as follows:
(c) On December 7, 2005, AIP sold 2,000,000 shares of Common Stock by
means of an open market sale at a per share sales price of $6.55.
5
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to
Securities of the Issuer
Item 6 of the Schedule 13D is hereby supplemented as follows:
See Item 4 for a description of the Amended and Restated Transfer
Restrictions.
Item 7. Material to be Filed as Exhibits
Exhibit Number Document Description
-------------- --------------------
10.1 Amended and Restated Transfer Restrictions
6
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: January 12, 2005
AIP, LLC
By: /s/ Jeffery A. Smith
-------------------------------
Name: Jeffery A. Smith
Title: Managing Member
/s/ Jeffery A. Smith
-------------------------------
Jeffery A. Smith
7
EX-10.1
2
e20252ex10_1.txt
AMENDED AND RESTATED AIP STOCKHOLDERS AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED
SECTIONS OF
AIP STOCKHOLDERS AGREEMENT
3.1. Restrictions on Transfer. Subject to compliance with the limitations
on the rights of AIP to freely Transfer Equity Securities of HHI set forth in
this Article 3 (together with any limitations which may arise from any other
agreement to which AIP is subject or applicable federal and state securities
laws), AIP may sell, pledge, hypothecate, transfer, assign or otherwise dispose
of (a "Transfer") any of its remaining shares of Common Stock or other Equity
Security to any Person at any time. Notwithstanding anything else contained in
this Agreement, AIP may Transfer any Equity Security to an Affiliate of AIP, but
only if such Affiliate, before the consummation of the Transfer, agrees, in
writing, to be bound by this Agreement. Any transferee of AIP other than an
Affiliate shall be released from the obligations set forth in this Agreement:
provided, however, any transferee that receives shares from AIP in a privately
negotiated transaction and not in a market transaction prior to the Effective
Date, shall be bound by this Agreement until the day immediately following such
Effective Date. Notwithstanding anything else contained in this Agreement, the
provisions of this Article 3 will not apply to any Common Stock acquired by John
W. Adams as the result of any exercise of existing options or warrants.
Notwithstanding anything else contained herein to the contrary, until the
Effective Date, other than open-market sales, AIP may not Transfer any Equity
Securities of HHI unless the transferee thereof has provided a signed affidavit
indicating that such person is a U.S. citizen within the meaning of Section
40102(a)(15) of the Transportation Act (49 U.S.C. Section 40101, ET SEQ.,).
3.2 Right of First Offer. If at any time after December 22, 2004, AIP has
a bona fide intent to complete a Transfer with respect to any shares of Common
Stock owned by AIP, AIP shall first give the Buyer a right of first offer to
purchase the shares of Common Stock that AIP wishes to Transfer. AIP shall do so
by notifying Larry Hershfield (an "Intention to Sell") of AIP's intention to
Transfer its shares of Common Stock. Thereafter, AIP shall negotiate in good
faith for the sale of its shares of Common Stock with the Buyer for a period of
one hour. During the one hour period following receipt of the Intention to Sell,
AIP shall not engage in any
1
discussions, written or oral, regarding the Transfer of its shares of Common
Stock with any other person or entity. If at the end of the one hour period
after receipt of the Intention to Sell, the parties have been unable to reach
agreement as to the terms of such purchase, AIP shall be free to negotiate with
third parties for the sale of such shares of Common Stock, and subject to
Section 3.3 below hereof, may enter into agreements with respect to same. AIP
and Buyer shall consummate any purchase of Common Stock agreed upon during the
one hour period within three (3) days of such agreement to purchase.
3.3 Right of First Refusal. Prior to entering into any Transfer with any
potential transferee (a "Transferee"), AIP shall first offer to the Buyer the
right to purchase all of the shares of Common Stock proposed to be Transferred
in accordance with the following provisions:
(a) If AIP receives (i) a bona fide written offer to purchase all or part
of its shares of Common Stock (a "Bona Fide Offer") from a Transferee that AIP
desires to accept, or (ii) a bona fide written acceptance from a Transferee of
AIP's offer to sell all or part of its shares of Common Stock (a "Bona Fide
Acceptance"), then AIP shall, not later than two (2) days after receipt of such
Bona Fide Offer or Bona Fide Acceptance, deliver written notice thereof (a
"First Refusal Notice") to the Buyer. A First Refusal Notice in respect of any
shares of Common Stock shall: (i) identify the Transferee; (ii) state the
aggregate purchase price for such shares of Common Stock to be paid by the
Transferee (if such purchase price is to be paid by delivery of property other
than cash, such price shall be the fair market value of such property and such
notice shall state AIP's estimate of the fair market value of such property);
(iii) summarize all material terms and conditions of the Bona Fide Offer or Bona
Fide Acceptance and all other transactions and agreements directly or indirectly
conditioned upon or otherwise related to the purchase of the shares of Common
Stock by the Transferee; and (iv) be accompanied by a certificate of AIP or a
duly authorized officer of AIP certifying that the information set forth in the
First Refusal Notice is true, correct and complete in all respects to the best
of his or her knowledge and that the Bona Fide Offer or Bona Fide Acceptance is
a result of arm's-length
2
offer and has not been made or otherwise effected for the purpose of avoiding,
evading, circumventing or otherwise adversely affecting the right of the Buyer
to purchase the shares of Common Stock pursuant to the provisions of this
Section 3.3.
(b) For a period of twenty four (24) hours following receipt by the Buyer
of a First Refusal Notice (the "First Refusal Period"), the Buyer may elect, by
the delivery of written notice of such election to AIP (the "First Refusal
Election Notice") within such First Refusal Period, to purchase all the shares
of Common Stock at a price equal to the price set forth in the First Refusal
Notice and on the terms and conditions, including the manner of payment,
described in the First Refusal Notice and in the accompanying materials. The
rights afforded to the Buyer pursuant to this Section 3.3 may be exercised by
the Buyer or may be assigned by it to an entity wholly owned by the Buyer, in
which case each reference to the Buyer in this Section 3.3 shall be deemed to
include such assignee.
(c) If the Buyer duly and timely delivers a First Refusal Election Notice
to AIP in respect of all of the shares of Common Stock subject to the First
Refusal Notice during the First Refusal Period, then AIP shall be obligated to
sell all such shares of Common Stock to the Buyer, and the Buyer shall be
obligated to purchase all such shares of Common Stock from AIP, free and clear
of all liens, claims, charges or security interests. The purchase of any shares
of Common Stock by the Buyer shall be consummated on or before the tenth (10th)
day after the First Refusal Election Notice is received by AIP or on such other
date as AIP and the Buyer may agree.
(d) If the Buyer does not duly and timely deliver a First Refusal Election
Notice to AIP in respect of any shares of Common Stock, or if the Buyer fails to
close such purchase as required by the date set forth in Subsection 3.3 (c), AIP
shall have the right to enter into an agreement to sell such shares of Common
Stock to the Transferee by a date not later than fifteen (15) Days after (i) the
expiration of the First Refusal Period in respect of such shares of Common Stock
or (ii) the date of the failure to close such purchase at a price and on terms
which are in strict accordance with the price and terms included in the Bona
Fide Offer or Bona Fide
3
Acceptance (except for variations in immaterial terms and conditions of the Bona
Fide Offer or Bona Fide Acceptance which are neither individually nor in the
aggregate more favorable to the Transferee than those originally contained in
the Bona Fide Offer or Bona Fide Acceptance).
(e) This Section 3.3 shall only apply to privately negotiated sales of
AIP's Common Stock and shall not apply to sales of AIP's Common Stock to be sold
in market transactions.
4