SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
(Amendment No. 1)
(Rule 13d-101)
Under the Securities Exchange Act of 1934
Hawaiian Holdings, Inc.
(Name of Issuer)
Common Stock ($.01 par value)
(Title of Class of Securities)
419879101
(CUSIP NUMBER)
Zac Hirzel
3963 Maple Avenue, Suite 170
Dallas, TX 75219
(214) 999-0014
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
- with copies to -
Burke A. McDavid
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201-4618
(214) 969-2800
December 11, 2013
(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 which 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 x.
The information required in the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the Act), or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act.
CUSIP No. 419879101 | 13D/A |
1 | NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Hirzel Capital Management LLC | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ¨ (b) ¨
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS*
AF/OO | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Texas | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7 | SOLE VOTING POWER
0 | ||||
8 | SHARED VOTING POWER
5,661,017 | |||||
9 | SOLE DISPOSITIVE POWER
0 | |||||
10 | SHARED DISPOSITIVE POWER
5,661,017 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,661,017 | |||||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
| |||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.8% | |||||
14 | TYPE OF REPORTING PERSON*
IA, OO |
* | SEE INSTRUCTIONS BEFORE FILLING OUT |
CUSIP No. 419879101 | 13D/A |
1 | NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Zac S. Hirzel | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ¨ (b) ¨
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS*
AF/OO | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
United States | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7 | SOLE VOTING POWER
0 | ||||
8 | SHARED VOTING POWER
5,661,017 | |||||
9 | SOLE DISPOSITIVE POWER
0 | |||||
10 | SHARED DISPOSITIVE POWER
5,661,017 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,661,017 | |||||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
| |||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.8% | |||||
14 | TYPE OF REPORTING PERSON*
HC, IN |
* | SEE INSTRUCTIONS BEFORE FILLING OUT |
CUSIP No. 419879101 | 13D/A |
1 | NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Hirzel Capital Master Fund, L.P. | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ¨ (b) ¨
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS*
WC | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7 | SOLE VOTING POWER
4,769,243 | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
4,769,243 | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,769,243 | |||||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
| |||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.1% | |||||
14 | TYPE OF REPORTING PERSON*
PN |
* | SEE INSTRUCTIONS BEFORE FILLING OUT |
CONFIDENTIAL
SCHEDULE 13D/A
This Amendment No .1 (this Amendment) to the Schedule 13D filed with the Securities Exchange Commission on October 10, 2013 (the Schedule 13D) is being filed on behalf of Hirzel Capital Management, LLC, a Texas limited liability company (Hirzel Capital), Hirzel Capital Master Fund, L.P., a Cayman Islands exempted limited partnership (the Fund), and Mr. Zac S. Hirzel, the principal of Hirzel Capital, relating to Common Stock ($.01 par value) (the Common Stock) of Hawaiian Holdings, Inc., a Delaware corporation (the Issuer).
This Amendment relates to Common Stock of the Issuer purchased by the Fund and the accounts of certain other private funds (collectively, the Hirzel Accounts). The Fund may direct the vote and disposition of the 4,769,243 shares of Common Stock that it holds directly. Hirzel Capital serves as the general partner or managing member of the Hirzel Accounts and may direct the vote and disposition of the 5,661,017 shares of Common Stock held by the Hirzel Accounts. As the principal of Hirzel Capital, Mr. Hirzel may direct the vote and disposition of the 5,661,017 shares of Common Stock held by the Hirzel Accounts.
The Common Stock held by the Reporting Persons (as defined below) reported on this Amendment were previously reported on a Schedule 13G filed with the Securities Exchange Commission on April 11, 2013. This Amendment amends and restates the Schedule 13D as set forth below.
Item 3 of the Schedule 13D is hereby amended as follows:
Item 3. | Source and Amount of Funds |
As of December 11, 2013, the Hirzel Accounts had invested $33,789,938 (inclusive of brokerage commissions) in the Common Stock of the Issuer. The source of these funds was the working capital of the Hirzel Accounts.
Item 4 of the Schedule 13D is hereby amended to add the following:
Item 4. | Purpose of the Transaction |
On December 11, 2013, the Issuer and the Reporting Persons entered into an agreement (the Agreement). Pursuant to the Agreement, the Issuer agreed to take all necessary action to appoint Mr. Hirzel to the Issuers Board of Directors (the Board) effective as of the start of the regularly-scheduled meeting of the Board in February 2014. In addition, the Issuer has agreed to include Mr. Hirzel in its slate of nominees for election to the Board at the Issuers 2014 Annual Meetings of Stockholders.
Pursuant to the Agreement, the Stockholder Group (as defined in the Agreement) has agreed during the period commencing on December 11, 2013, and ending on the later of (i) the Issuers 2016 Annual Meeting of Stockholders, or (ii) twelve (12) months after the conclusion of Mr. Hirzels service on the Board (the Effective Period) to vote for and to publicly support and recommend that the Issuers stockholders vote for the Boards slate of nominees for directors at each meeting of the Issuers stockholders that is called by or on behalf of the Issuer. In addition, the Stockholder Group has agreed to customary standstill provisions during the Effective Period that provide, among other things, that the Stockholder Group will not (a) acquire beneficial ownership of more than 15% of the Issuers outstanding voting securities, subject to the consent of the Board to increase such limitation; (b) engage in or in any way participate in a solicitation of proxies with respect to the Issuer; (c) initiate any shareholder proposals; or (d) make certain unpermitted dispositions of the Issuers voting securities. The Agreement is attached hereto as Exhibit 99.3 and incorporated herein by reference.
Item 5. | Interest in Securities of the Issuer |
(a) The aggregate percentage of Common Stock reported to be owned by the Reporting Persons is based upon 52,387,065 shares of Common Stock outstanding, which is the total number of shares of Common Stock outstanding as of October 18, 2013, as reported in the Issuers Form 10-Q filed with the Securities and Exchange Commission on October 24, 2013.
The Fund may be deemed to beneficially own the 4,769,243 shares of Common Stock that it owns directly, representing approximately 9.1% of the issued and outstanding shares of Common Stock of the Issuer
Hirzel Capital, as the as the general partner or managing member of the Hirzel Accounts, may be deemed to beneficially own the 5,661,017 shares of Common Stock held by the Hirzel Accounts, representing approximately 10.8% of the issued and outstanding shares of Common Stock of the Issuer.
In addition, Mr. Hirzel, as the principal of Hirzel Capital, the general partner or managing member of the Hirzel Accounts, may also be deemed to beneficially own the 5,661,017 shares of Common Stock beneficially owned by the Hirzel Accounts, representing approximately 10.8% of the issued and outstanding shares of Common Stock of the Issuer.
Hirzel Capital and Mr. Hirzel disclaim beneficial ownership of the Common Stock held by the Hirzel Accounts except to the extent of their pecuniary interest therein.
(b) The Fund has the sole power to vote and dispose of the Common Stock that it holds directly reported in this Schedule 13D.
Hirzel Capital and Mr. Hirzel have the shared power to vote and dispose of the Common Stock owned by the Hirzel Accounts reported in this Schedule 13D.
The filing of this Schedule 13D shall not be construed as admission that Hirzel Capital or Mr. Hirzel is, for the purposes of Section 13(d) or 13(g) of the Act, or otherwise, the beneficial owner of any of the 5,661,017 shares of Common Stock owned by the Hirzel Accounts. Pursuant to Rule 13d-4, Hirzel Capital and Mr. Hirzel disclaim all such beneficial ownership.
(c) Annex A attached hereto lists all transactions in the Common Stock during the past sixty (60) days by the Reporting Persons. The transactions in the Common Stock were effected in the open market.
(d) No person other than the Reporting Persons is known to have the right to receive, or the power to direct the receipt of dividends from, or proceeds from the sale of, the Common Stock.
(e) Not applicable.
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Item 7 is hereby amended to add the following:
Item 7. | Material to be Filed as Exhibits |
Exhibit 99.3 | Agreement between the Issuer and the Reporting Persons dated as of December 11, 2013. |
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Signatures
After reasonable inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: December 13, 2013
HIRZEL CAPITAL MANAGEMENT, LLC | ||
By: | /s/ Zac S. Hirzel | |
Zac S. Hirzel | ||
President | ||
HIRZEL CAPITAL MASTER FUND, L.P. | ||
By: Hirzel Capital Management, LLC, its general partner | ||
By: | /s/ Zac S. Hirzel | |
Zac S. Hirzel | ||
President | ||
/s/ Zac S. Hirzel | ||
Zac S. Hirzel |
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ANNEX A
Date |
Shares Purchased/ (Sold) |
Price Per Share | Total Cost | |||||||||
10/23/2013 |
29,800 | $ | 7.3950 | $ | 220,967.00 |
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Exhibit 99.3
Hawaiian Holdings, Inc.
3375 Koapaka Street, Suite G350
Honolulu, Hawaii 96819
December 11, 2013
Mr. Zac S. Hirzel
Hirzel Capital Management, LLC
3963 Maple Avenue, Suite 170
Dallas, Texas 75201
Dear Mr. Hirzel:
This letter (this Agreement) constitutes the agreement between Hawaiian Holdings, Inc. (the Company), on the one hand, and you, Hirzel Capital Management LLC (HCM) and each private investment funds or managed account over which HCM has discretionary authority (the Stockholder Affiliates), on the other hand, with respect to the matters set forth below. You, HCM and the Stockholder Affiliates and the affiliates (as defined below) of each of the forgoing are collectively referred to as the Stockholder Group.
1. The Company agrees that it will take all necessary action to appoint you as a director effective as of the start of the regularly-scheduled February meeting of the Companys Board of Directors (the Board) and include you on the slate of directors for the 2014 Annual Meeting (as defined below).
2. The Stockholder Group acknowledges that, as a condition to appointing you to the Board, the Company may require you to agree (in writing if requested), during the term of any service as a director of the Company, to (a) comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to members of the Board, including, without limitation, the Companys code of conduct, insider trading policy, Regulation FD policy, related party transactions policy and corporate governance guidelines, in each case as amended from time to time; and (b) keep confidential and not publicly disclose discussions and matters considered in meetings of the Board and its committees, unless previously disclosed publicly by the Company.
3. During the Effective Period (as defined below), (a) the Stockholder Group will publicly support and recommend that the Companys stockholders vote for the election of each member of the Companys slate of directors (including, without limitation, the Companys nominees at the Companys 2014 Annual Meeting of Stockholders (the 2014 Annual Meeting)) at each meeting of the Companys stockholders that is called by or on behalf of the Company; and (b) the Stockholder Group will cause all Voting Securities (as defined below) that it is entitled to vote at each such meeting (whether held of record or beneficially) to be present for quorum purposes and to be voted at such meeting in accordance with the recommendation of the Board on each item presented at such meeting.
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4. Subject to paragraph 9, the Stockholder Group agrees that during the period commencing on the date of this Agreement and ending on the later of (i) the Companys 2016 Annual Meeting of Stockholders or (ii) twelve (12) months after the conclusion of your service on the Board (the Effective Period), no member of the Stockholder Group will, and each such member will cause its respective principals, directors, stockholders, members, general partners, officers, employees, agents, representatives and affiliates not to, in any way, directly or indirectly:
(a) make, participate in or induce any solicitation (as such term is used in the proxy rules of the Securities and Exchange Commission (the SEC)) of proxies with respect to the election or removal of directors or any other matter or proposal, or seek to advise, induce or influence any Person with respect to the voting of any Voting Securities;
(b) initiate, propose or otherwise solicit (as such term is used in the proxy rules of the SEC), directly or indirectly, the Companys stockholders for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or Rule 14a-8 promulgated under the Securities Exchange Act of 1934, as amended (the Exchange Act), or otherwise, or cause or induce any Person to initiate or submit any such shareholder proposal;
(c) (i) other than as provided in this Agreement, seek, alone or in concert with others, election or appointment to, or representation on, or nominate or propose the nomination of any candidate to, the Board, or (ii) seek, alone or in concert with others, the removal of any member of the Board;
(d) make a request for any stockholder list or other similar Company records;
(e) form or join in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities, or deposit any Voting Securities into a voting trust, arrangement or agreement or subject any Voting Securities to any voting trust, arrangement or agreement, in each case other than solely with other members of the Stockholder Group with respect to Voting Securities now or hereafter owned by them;
(f) act, alone or in concert with others, to (i) control or seek to control, or influence or seek to influence, the management, the Board or the policies of the Company; or (ii) seek, propose or make any public statement with respect to any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, sale or purchase of securities, dissolution, liquidation, restructuring, recapitalization or similar transaction involving the Company or its subsidiaries;
(g) with respect to the Company or the Voting Securities, (i) other than with the members of the Stockholder Group, communicate with the Companys stockholders or others pursuant to Rule 14a-1(l)(2)(iv) pursuant to the Exchange Act; (ii) participate in, or take any action pursuant to, any proxy access proposal adopted by the SEC; or (iii) conduct any nonbinding referendum or stockholder forum, or hold a town hall regarding the Company;
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(h) sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions, derivative agreements or otherwise, voting rights decoupled from the underlying Voting Shares held by the Stockholder Group to any third party;
(i) make or disclose any statement regarding any intent, purpose, plan or proposal with respect to the Board or the Company, its management, policies, affairs or assets, or the Voting Securities or this Agreement, that is inconsistent with the provisions of this Agreement, including, without limitation, any intent, purpose, plan or proposal that is conditioned on, or would require, the waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that could require the Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(j) other than with the members of the Stockholder Group, have any discussions or communications, or enter into any agreements, understandings or arrangements (whether written or oral), with, or advise, finance, assist or encourage, any Person in connection with any of the foregoing, or make any investment in or enter into any arrangement or understanding or form a group with any Person that engages, or offers or proposes to engage, in any of the foregoing; or
(k) beneficially own any Voting Securities in excess of fifteen percent (15%) of the total issued and outstanding Voting Securities, subject to the consent of the Board to increase such limitation (it being understood that any request for such consent shall (i) be made on a non-public basis and (ii) not be made in a manner that could reasonably be expected to require the Company to make any public disclosure relating to such request); or
(l) take or seek to take, or cause or seek to cause or solicit others to take, any action inconsistent with any of the foregoing.
5. Nothing in this Agreement shall be construed to (a) require any third-party investor in any private investment fund managed by HCM or its affiliates that is not a member of the Stockholder Group, with respect to any Voting Securities other than those held by the Stockholder Group on behalf of such third-party investor, to comply with the provisions of paragraph 4 so long as such third-party investor is not acting in concert with, or at the instruction or request of, or otherwise taking any of the actions described in paragraph 4(e) with, any member of the Stockholder Group.
6. During the Effective Period, the Stockholder Group will not engage in any sale, transfer or other disposition of any Voting Securities to any Person other than to another member of the Stockholder Group as of the date of this Agreement, except for (a) privately negotiated sales so long as the transferee immediately following any such sale would not, together with such transferees affiliates, beneficially own in the aggregate more than five percent (5%) of the Voting Securities then outstanding; (b) sales made in compliance with Rule 144; and (c) to a third-party purchaser in connection with a change in control transaction of the Company that is approved by the Board.
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7. During the Effective Period, the Stockholder Group and the Company each agree that they will refrain from disparaging, impugning or taking any action reasonably likely to damage the reputation of the other party or the directors or officers of the Company.
8. The Stockholder Group represents that it has provided the Company with a true and correct list of all Voting Securities beneficially owned by the members of the Stockholder Group as of the date of this Agreement.
9. Notwithstanding anything to the contrary in this Agreement, you, during the term of your service as a director of the Company, will not be prohibited from acting in your capacity as a director, including taking any of the actions specified in paragraph 4 (so long as any such actions are taken (a) solely in your capacity as a director and (b) in furtherance of your fiduciary duties to the Companys stockholders), and complying with your fiduciary duties as a director of the Company in the ordinary course of business in your role as a director of the Company, all in accordance with the agreement set forth in paragraph 2.
10. The Company and the Stockholder Group each acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by it and that, in the event of any breach or threatened breach hereof, (a) the non-breaching party will be entitled to injunctive and other equitable relief, without proof of actual damages; (b) the breaching party will not plead in defense thereto that there would be an adequate remedy at law; and (c) the breaching party agrees to waive any applicable right or requirement that a bond be posted by the non-breaching party. Such remedies will not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.
11. All notices, consents, requests, instructions, approvals and other communications provided for herein, and all legal process in regard hereto, will be in writing and will be deemed validly given, made or served if (a) given by fax, when such fax is transmitted to the fax number set forth below and the appropriate confirmation is received, or (b) if given by any other means, when delivered in person, by overnight courier or two business days after being sent by registered or certified mail (postage prepaid, return receipt requested) as follows:
If to the Company to:
Hawaiian Holdings, Inc.
3375 Koapaka Street, Suite G350
Honolulu, Hawaii 96819
Attn: Hoyt H. Zia, Senior Vice President and General Counsel
Fax: (808) 835-3690
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With a copy (which shall not constitute notice) to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
Attn: Aaron J. Alter
Bradley L. Finkelstein
Fax: (650) 493-6811
If to the Stockholder Group to:
Hirzel Capital Management, LLC
3963 Maple Avenue, Suite 170
Dallas, Texas 75201
Attn: Zac Hirzel
Fax: (214) 999-0020
With a copy (which shall not constitute notice) to:
Akin Gump Strauss Hauer & Feld LLP
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201
Attn: Burke A. McDavid
Fax: (214) 969-4343
12. As used in this Agreement, (a) the term Person shall be interpreted broadly to include, among others, any individual, general or limited partnership, corporation, limited liability or unlimited liability company, joint venture, estate, trust, group, association or other entity of any kind or structure; (b) the term affiliate shall have the meaning set forth in Rule 12b-2 promulgated under the Exchange Act and shall include Persons who become affiliates of any Person subsequent to the date of this Agreement; (c) the term Voting Securities shall mean the shares of the Companys common stock and any other securities of the Company entitled to vote in the election of directors, or securities convertible into, or exercisable or exchangeable for, such shares or other securities, whether or not subject to the passage of time or other contingencies; (d) the term business day shall mean any day other than a Saturday, Sunday or a day on which the Federal Reserve Bank of San Francisco is closed; and (e) the term beneficially own or beneficially owned shall have the meaning set forth in Rule 13d-3 promulgated under the Exchange Act.
13. This Agreement may be executed by the parties hereto in separate counterparts (including by fax, .jpeg, .tiff, .bmp and .pdf), each of which when so executed shall be an original, but all such counterparts shall together constitute one and the same instrument.
14. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. Each of the Stockholder Group and the Company (a) irrevocably and unconditionally consents to the personal jurisdiction and venue of the federal or state courts located in Wilmington, Delaware; (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (c) agrees that it shall not bring any action relating to this Agreement or otherwise in any court other than the federal or state courts located in Wilmington, Delaware; and (d) irrevocably waives the right to trial by jury.
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15. This Agreement constitutes the only agreement between the Stockholder Group and the Company with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party hereto may assign or otherwise transfer either this Agreement or any of its rights, interests or obligations hereunder without the prior written consent of the other parties hereto. Any purported transfer without such consent shall be void. No amendment, modification, supplement or waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the party or parties hereto affected thereby, and then only in the specific instance and for the specific purpose stated therein. Any waiver by any party hereto of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a party hereto to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
16. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, then the other provisions of this Agreement shall remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable. The parties hereto further agree to replace such invalid or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the purposes of such invalid or unenforceable provision.
17. This Agreement is solely for the benefit of the parties hereto and is not enforceable by any other Person.
18. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this Agreement, and that it has executed this Agreement with the advice of such counsel. Each party hereto and its counsel cooperated and participated in the drafting and preparation of this Agreement, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any party hereto that drafted or prepared it is of no application and is hereby expressly waived by each of the parties, and any controversy over interpretations of this Agreement shall be decided without regard to events of drafting or preparation.
[Signature page follows.]
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CONFIDENTIAL
If the terms of this Agreement are in accordance with your understanding, please sign below, whereupon this Agreement shall constitute a binding agreement among us.
Very truly yours, | ||
HAWAIIAN HOLDINGS, INC. | ||
By: | /s/ Mark B. Dunkerley | |
Name: Mark B. Dunkerley | ||
Title: President and Chief Executive Officer |
Acknowledged and agreed to as of the date | ||
first written above: | ||
HIRZEL CAPITAL MANAGEMENT, LLC | ||
By: | /s/ Zac S. Hirzel | |
Name: Zac S. Hirzel | ||
Title:Managing Member | ||
ZAC S. HIRZEL | ||
/s/ Zac S. Hirzel |