Exhibit 10.1


 


AMENDED AND RESTATED MARK B. DUNKERLEY EMPLOYMENT
AGREEMENT


 


This
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is entered by and
between MARK B. DUNKERLEY (“EMPLOYEE”) and each of Hawaiian Holdings, Inc.
(“HH”) and its wholly owned subsidiary Hawaiian Airlines, Inc. (“HA”);
which companies are individually and collectively identified herein as the “COMPANY”).


 


The
parties hereto desire to amend and restate that certain employment agreement
between and among the Employee, HH and HA, as most recently amended effective May 6,
2010 (the “Prior Agreement”) and replace it in its entirety with this
Agreement.  The Company desires to
re-establish its right to the continued services of the Employee, in the
capacity described below, on the terms and conditions and subject to the rights
of termination hereinafter set forth, and the Employee is willing to accept
such employment on such terms and conditions.


 


In
consideration of the mutual agreements hereinafter set forth, the Employee and
the Company have agreed and do hereby agree as follows:


 


1.                                       Employment
as President and Chief Executive Officer; Service as Director.  The Company does hereby continue to employ
the Employee as President and Chief Executive Officer and the Employee does
hereby accept and agree to such continued employment.  The Employee’s duties during the Employment
Period (defined below) shall be the executive, managerial and reporting duties
required of a chief executive officer of a corporation and such other duties as
the Board of Directors of the Company shall from time to time prescribe and as
provided in the Bylaws of the Company, including but not limited to direct
responsibility for and supervision of all aspects of the business and affairs
of HH and HA.  The Employee shall report
directly to the respective Board of Directors of each of HH and HA, as
applicable, for the Employment Period. 
No other person or persons will occupy a position or have any authority
with respect to the Company that is equal to or greater than the position and
authority of the Employee, other than the Board of Directors.  Except for the internal auditor, all other
persons who are employed by the Company will report directly or indirectly to
Employee, and no other persons will report to the Board of Directors of HH or
HA or any member of these Boards of Directors other than Employee.  The Employee shall devote his full time,
energy, and skill to the performance of his duties for the Company and for the
benefit of the Company, except for reasonable vacations authorized by the
respective Board of Directors of HH and HA, as applicable, and reasonable
absences because of illness.  Employee
shall be eligible for up to four (4) weeks of vacation annually, subject
to requirements of operations and as duties may permit provided that unused
vacation shall not be accrued and the Company shall not make payment to
Employee for unutilized vacation. 
Furthermore, the Employee shall exercise due diligence and care in the
performance of his duties to the Company under this Agreement.  Effective as of the Renewal Effective Date
(as defined in section 2 below) and during the Term, (i) HH shall cause
Employee to be appointed to serve as a director of the Board of Directors of HA
and (ii) the Board of Directors of HH shall nominate Employee for election
to HH’s Board of Directors and HH shall use its good faith efforts to elect
Employee to such position.


 


2.                                       Term
of Agreement.  The term of
this Agreement (“Term”) shall commence on May 25, 2010 (the “Renewal
Effective Date”) and shall continue until November 7, 2013.  The period of time commencing on the Renewal
Effective Date and ending on the expiration date of 


 

















 


the
Term, or, if earlier, the date of termination of Employee’s employment (“Termination
Date”) under this Agreement shall be referred to as the “Employment Period.”  The Company and Employee agree to discuss at
least twelve (12) months prior to the expiration date of the Term (unless
Employee’s employment has been terminated prior to such date), their respective
intentions with respect to any extension of the employment of Employee with the
Company beyond the Termination Date.


 


3.                                       Compensation.


 


a)                                      Base Salary.  The Company shall pay the Employee, and the
Employee agrees to accept from the Company as payment for his services to the
Company, a base salary at the rate of Six Hundred Thousand Dollars ($600,000)  per year (“Base Salary”), payable in equal semi-monthly
installments or at such other time or times as the Employee and the Company
shall agree, provided that in no event will such payment be made later than the
409A Limit as defined in Section 22(a) hereof.


 


b)                                     Performance/Incentive
Bonus.  Employee will be eligible to
receive an annual performance/incentive bonus (with a pro rata adjustment for
any partial year period caused by the Termination Date being other than December 31
of any year, subject to attainment of performance targets) of a target amount
of one hundred and twenty-five percent (125%) and a maximum of two hundred
percent (200%) of his annual salary. 
Employee’s bonus for the 2010 year will be based on the full calendar
year (weighted to take into account the portion of the year service was
provided under the Prior Agreement and the portion of the year service was
provided under this Agreement.).  The
bonus plan will be based upon achievement of goals set forth under the 2006
Management Incentive Plan (or its successor plan) and such goals shall be
consistent with those set for other executive officers.  Employee and the Company may, but shall have
no obligation to, agree that a portion of Employee’s performance/incentive
bonus will be paid in shares of common stock of HH valued in a manner agreed
upon by the parties.  Any
performance/incentive bonus pursuant to this paragraph shall be paid no later
than the 409A Limit as defined in Section 22(a) hereof.


 


c)                                      Prior Equity
Awards.  Notwithstanding any provision
of this Agreement to the contrary, the vesting (including accelerated vesting)
and other terms of all equity awards granted to Employee before the Renewal
Effective Date (the “Prior Equity Awards”) shall continue to be governed by the
terms of the Prior Agreement and the applicable equity award agreements;
provided, however, that any accelerated vesting pursuant to Employee’s
termination shall be subject to the Release (as such term is defined herein)
provisions of Section 8(f) of this Agreement.


 


d)                                     401K Plan.  Employee shall be eligible to participate in
the Company’s 401(k) retirement plan with employer “match” contributions
of 2% of Employee’s Base Salary or such greater percentage as may be generally
made available to non-contract employees, in each case to the maximum allowable
legal limit.


 


e)                                      Restricted Stock.


 


(i)             Type A Restricted Stock.  On
the Renewal Effective Date, Employee shall receive a grant of 477,802 shares of
restricted stock (the “Type A Restricted 


 


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Stock”).  None
of the Type A Restricted Stock shall vest unless the Company achieves pre-tax
net profits, determined in accordance with U.S. generally accepted accounting
principles, of at least an aggregate of one million dollars over any rolling
two consecutive Company fiscal quarters in the period commencing with the first
full Company fiscal quarter after the grant date and through the last full
Company fiscal quarter ending prior to November 7, 2013 (the “Type A
Performance Metric”).  Subject to
achieving the Type A Performance Metric, and further subject to Employee’s
continued employment by the Company through each vesting date, the Type A
Restricted Stock will vest as to 12/41 of the covered shares on each of the
first three anniversaries of the grant date and as to the final 5/41 of the
covered shares on November 7, 2013. 
The Type A Restricted Stock will be distributed to Employee on each
vesting date.  In the event that the Type
A Performance Metric has not been achieved as of any vesting date, that tranche
of Type A Restricted Stock shall still be eligible to vest and shall vest on
the date, if any, upon which the Company publicly declares its earnings for the
first Company fiscal quarter in which the Type A Performance Metric has been
fully achieved, so long as such date is not after November 7, 2013, and
subject to Employee’s continued employment by the Company through such date.


 


(ii)          Type A Restricted Stock — Qualifying Change
in Control.  Notwithstanding any provision of this
Agreement to the contrary, in the event of a Change in Control as defined in
Sections 11(a), 11(b) (but substituting 50% for 40% in Sections 11(a) and
(b)), 11(c) or 11(d) hereof occurs prior to November 7, 2013 (a “Qualifying
Change in Control”) while Employee remains employed by the Company (or within
twenty-nine (29) days following Employee’s termination of employment pursuant
to Section 7(c) or (d) of the Agreement), any unvested Type A
Restricted Stock shall be assumed or substituted by the acquirer for an equity
award equivalent in all material respects to the Type A Restricted Stock (an “Equivalent
Type A Award”).  In such event, the Type
A Performance Metric shall be deemed satisfied and the Type A Restricted Stock
shall remain subject to the remaining service-based vesting provisions, subject
to accelerated vesting pursuant to Section 8 hereof.  If any Type A Restricted Stock required to be
assumed or substituted for an Equivalent Type A Award is not so assumed or
substituted, then such Type A Restricted Stock shall become 100% vested upon
such Qualifying Change in Control.


 


(iii)       Type B Restricted Stock.
On the Renewal Effective Date, Employee shall receive a grant of 238,901 shares
of restricted stock (the “Type B Restricted Stock”).  Subject to Employee’s continued employment by
the Company, the Type B Restricted Stock shall vest, if at all (except as
provided in subparagraph (e)(iv) below), on each of the following dates: (i) with
respect to 12/41 of the Type B Restricted Stock (the “First Tranche”), on the
first anniversary of the Renewal Effective Date, but only if the volume
weighted average closing price of the common stock of HH equals or exceeds
$7.70 per share over any 20 trading day period commencing on the Renewal
Effective Date and ending on the first anniversary of the Renewal Effective
Date, (ii) with respect to an additional 12/41 of the Type B Restricted
Stock (the “Second Tranche”), on the second anniversary of the Renewal
Effective Date, but only if the volume weighted average closing price of the
common stock of HH equals or exceeds $8.40 per share over any 20 trading day
period commencing on the first anniversary of the Renewal Effective Date and
ending on the second anniversary of the Renewal Effective Date, (iii) with
respect to an additional 12/41 of the Type B Restricted Stock (the “Third
Tranche”) on the third anniversary of the Renewal Effective Date but only if
the volume weighted average closing price of the common stock of HH equals or
exceeds $9.10 per share over any 20 day period 


 


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commencing on the second
anniversary of the Renewal Effective Date and ending on the third anniversary
of the Renewal Effective Date, and (iv) with respect to the final 5/41 of
the Type B Restricted Stock on November 7, 2013 but only if the volume
weighted average closing price of the common stock of HH equals or exceeds
$9.10 per share over any 20 day period commencing on the second anniversary of
the Renewal Effective Date and ending on November 7, 2013.  In the event that the target price for the
First, Second or Third Tranches is not achieved during the first, second or
third years, respectively, following the Renewal Effective Date, but is
subsequently achieved for a twenty trading day period ending after the first,
second or third anniversaries, respectively, of the Renewal Effective Date and
prior to November 7, 2013, then subject to Employee’s continued employment
with the Company through the end of such twenty day trading period, such
tranche shall vest on such date.  Any of
the target share prices herein shall be proportionately adjusted for any increase
or decrease in the number of issued shares of Company common stock resulting
from a stock split, reverse stock split, stock dividend, combination or
reclassification of the Company common stock, or any other increase or decrease
in the number of issued shares of Company common stock effected without receipt
of consideration by the Company and shall also be equitably adjusted to reflect
any split-up, spin-off or other change in the corporate structure of the
Company; provided, however, that conversion of any convertible securities of the
Company shall not be deemed to have been “effected without receipt of
consideration.”


 


EXAMPLE:  HH
Stock trades at a volume weighted average closing price below $7.70 per share
until October 7, 2013. It then trades at a volume weighted average closing
price of $8.32 per share in the twenty trading day period ending on November 7,
2013.  Employee remains employed with the
Company through November 7, 2013. 
The First Tranche vests on November 7, 2013.  None of the other Type B Restricted Stock
vests because the target prices were not achieved.


 


(iv)      Type B Restricted Stock — Qualifying Change in Control. 
Notwithstanding any provision of this Agreement to the contrary, in the
event a Qualifying Change in Control occurs while Employee is still employed by
the Company (or within twenty-nine (29) days following Employee’s termination
of employment pursuant to Section 7(c) or (d) of the Agreement),
and in which the Company’s stockholders receive per share consideration for
Company common stock (the “Per Share Stockholder Consideration”) that equals or
exceeds the per share price target of any tranche of Type B Restricted Stock,
then all tranches of the Type B Restricted Stock with per share price targets
equal to or less than the Per Share Stockholder Consideration shall have their
share price target performance condition deemed satisfied, and the per share
price target which was applied to the tranche that was eligible to vest on the
anniversary of the Renewal Effective Date coinciding with or immediately preceding
the date on which the Qualifying Change in Control occurs shall be deemed to be
the per share price target for all tranches. 
In such event, any unvested Type B Restricted Stock that has satisfied
its performance condition or is so deemed to have its performance condition
satisfied shall be assumed or substituted by the acquirer for an equity award
equivalent in all material respects to the Type B Restricted Stock (an “Equivalent
Type B Award”) and shall remain subject to the remaining service-based vesting
provisions, subject to accelerated vesting pursuant to Section 8
hereof.  All Type B Restricted Stock with
per share price targets which have not been satisfied or are deemed to have
been satisfied shall be forfeited.  If
any Type B Restricted Stock required to be assumed or substituted for an
Equivalent Type B Award is not so assumed or substituted, then such Type
B Restricted Stock shall become 100% vested upon such Qualifying Change in
Control.


 


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f)                                        The Company
shall use its good faith efforts to ensure that a sufficient number of shares
remain available for issuance under applicable approved restricted stock plan(s) for
the issuance of the Type A and Type B Restricted Stock.  The Company shall use its good faith efforts
to register any shares of common stock issuable pursuant to Type A and Type B
Restricted Stock on Form S-8 (or any applicable successor form).


 


g)                                     The Type A and Type B Restricted Stock shall
provide that any minimum required tax withholding shall be addressed through a
net issuance, whereby that number of shares with a fair market value equal to
the minimum required withholding amount shall be retained by the Company in
order to offset the Company’s obligation for tax withholding payment costs for
Employee’s taxes, unless Employee timely elects in his discretion to make a
cash payment to satisfy such tax withholding payment costs.


 


4.                                       Fringe
Benefits.  Employee
shall be entitled to participate, at the Company’s expense, in any benefit programs
adopted from time to time by the Company for the benefit of its executive
employees and Employee shall be entitled to receive such other fringe benefits
as may be granted to him from time to time by the Company’s Board of
Directors.  Any reimbursement pursuant to
this Section 4 shall be paid as soon as practicable, provided that, to the
extent required to comply with Section 409A of the Internal Revenue Code
(the “Code”), such reimbursement shall be made on or before the last day of the
calendar year following the calendar year in which the expense was
incurred.  While he is employed hereunder
(unless otherwise noted), the Employee shall be entitled to receive the
following benefits:


 


a)                                      Benefit Plans.  Employee shall be entitled to participate in
any benefit plans relating to stock options, stock purchases, pension, thrift,
profit sharing, life and disability insurance, medical coverage, executive
medical coverage, education, or other retirement or employee benefits available
to other executive employees of the Company, subject to any restrictions
(including waiting periods) specified in such plans.


 


b)                                     Automobile.  The Company shall provide Employee with an
automobile allowance of $1000 per month.


 


c)                                      Travel Benefits.  Employee and Employee’s spouse or domestic
partner shall be entitled to travel benefits on Company flights (but not
charter flights) at the P1A/F1 category. 
Employee’s eligible dependents, if any, shall be entitled to travel
benefits on Company flights (but not charter flights) at the P1A/F1 category
when traveling with Employee and/or Employee’s spouse or domestic partner; when
not traveling with Employee and/or Employee’s spouse or domestic partner,
eligible dependents shall be entitled to travel benefits on Company
transpacific flights (but not charter flights) at the S1A/F3 category and
interisland flights at the S1A/F3 category. Employee and Employee’s spouse or
domestic partner and eligible dependents shall be entitled to travel benefits
on other airlines at the sole discretion of such airlines, at a comparable
level to that provided to other Company executive officers.  Upon Employee’s employment termination after
the Term (other than for Cause, as defined herein, or pursuant to Employee’s
death), or upon Employee’s prior employment termination triggering severance
benefits under Section 8 hereof, and subject to Employee’s signing and not
revoking a release of 


 


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claims in favor of the
Company substantially in the form attached as Exhibit A to this Agreement
(a “Release”), the lapse of any statutory period for revoking the Release, and such Release becoming effective in accordance with
its terms within twenty-nine (29) days following Employee’s termination date, Employee and
Employee’s spouse or domestic partner and eligible dependents shall receive,
commencing on the Termination Date, for the duration of Employee’s life the
Company travel benefits described above (but not the other travel benefits on
other airlines) up to a maximum imputed taxable income, in the aggregate, of
$25,000 per calendar year.  The travel
benefits provided pursuant to the preceding sentences of this Section 4(c) shall
be provided on a basis that is no less beneficial than travel benefits provided
as of the Renewal Effective Date, and no less beneficial when compared to the
travel benefits enjoyed by any other employee of the Company or by any member
of the Board of Directors, whichever is better (subject to the $25,000 annual
limitation and the exclusion of travel benefits on other airlines for the
post-termination Company travel benefits). 
Such lifetime travel benefits shall cease to be provided in the event
Employee breaches his obligations under Sections 6 or 10 of this Agreement.


 


d)                                     Executive
Long-Term Disability Insurance Plan.  Employee will be included in the Company’s
Executive Long-Term Disability Insurance Plan, as it may be modified from time
to time, at the Company’s expense.


 


e)                                      Business
Expenses.  The Company
shall reimburse the Employee for any and all necessary, customary, and usual
expenses, properly receipted in accordance with Company policies, incurred by
Employee on behalf of the Company.


 


f)                                        Life Insurance.  The Company shall pay the premium for term
life insurance coverage of $300,000.


 


g)                                     Annual Physical.  The Company shall reimburse Employee (or pay
directly) for the reasonable costs of an annual executive full physical
examination.


 


5.                                       Relocation.  If Employee completes his service under this
Agreement through November 7, 2013 or if Employee’s employment is
terminated prior to November 7, 2013 (i) by act of the Company other
than for Cause (as defined herein) or (ii) by the Employee for Good Reason
(as defined herein), then, subject to Employee signing and not revoking a
Release, the lapse of any statutory period for revoking the Release, and such Release becoming effective in accordance with
its terms within twenty-nine (29) days following Employee’s termination date, the Company
will reimburse the Employee for eligible costs related with relocation from
Hawaii (including eligible costs incurred on or after such employment
termination but prior to the effectiveness of the Release), which will include
but not be limited to the following items: i) the reasonable out-of-pocket
costs of moving his household goods and belongings from Hawaii, including
packing, unpacking, shipping and insurance, (ii) the shipment of one
automobile, and (iii) travel costs for Employee and his domestic partner
directly related to Employee’s relocation from Hawaii (collectively referred to
as the “Termination Expenses”). The Termination Expenses will be reimbursed up
to a maximum of $50,000.00.  Notwithstanding the foregoing in
order to receive reimbursement of the Termination Expenses under this Section 5,
such Termination Expense must be incurred on or before the end of the second
calendar year following the calendar year in which Employee’s termination of
employment occurs and reimbursement of such Termination Expense shall be made
as soon as administratively feasible following submission of such expense but
shall in any event be made on or before the end of the third calendar year
following the calendar year in which Employee’s termination of employment
occurs.


 


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6.                                       Confidential
Information.  Employee
recognizes that by reason of his employment by and service to the Company he
will occupy a position of trust with respect to business and technical
information of a secret or confidential nature which is the property of the
Company which will be imparted to him from time to time in the course of the
performance of his duties hereunder. 
Employee acknowledges that such information is a valuable and unique
asset of the Company and agrees that he shall not, during or after the Term of
this Agreement, use or disclose directly or indirectly any confidential
information of the Company to any person, except that Employee may use and
disclose to authorized personnel of the Company such confidential information
as is reasonably appropriate in the course of the performance of his duties
hereunder.  Confidential information of
the Company shall include all information and knowledge of any nature and in
any form relating to the Company including but not limited to, business plans;
development projects; computer software and related documentation and
materials; designs, practices, processes, methods, know-how and other facts
relating to the business of the Company; advertising, promotions, financial
matters, sales and profit figures, customers or customer lists.  Confidential information shall not include
any information that is or shall become publicly known through no fault of the
Employee and any information received in good faith from a third party who has
the right to disclose such information and who has not received such
information, either directly or indirectly, from the Company.


 


7.                                      Termination
of Employee’s Employment.


 


a)                                      Death;
Disability.  If the
Employee dies while employed by the Company, his employment shall immediately terminate.  If, as a result of Employee’s mental or
physical incapacity, Employee shall be unable to perform the services for the
Company contemplated by this Agreement in the manner in which he previously
performed them during an aggregate of one hundred twenty (120) business days in
any consecutive seven (7) month period (“Disability”), Employee’s
employment may be terminated by the Company for Disability.  In the event of Disability or death, the
Employee or Employee’s beneficiaries, as the case may be, shall continue to be
paid the Base Salary through the Termination Date and a performance/incentive
bonus, pro-rated to reflect the date of death or Disability, and subject to
attaining the requisite performance milestones and payable at the same time as other
participants, as determined in accordance with Section 3(b).  In the case of death, the Employee’s
beneficiaries or his estate shall receive benefits in accordance with the
Company’s retirement, insurance and other applicable programs and plans then in
effect.


 


b)                                     Termination by
the Company for Cause.  The
Company may terminate Employee’s employment under this Agreement for “Cause”
(as defined herein) at any time prior to expiration of the Term, only upon the
occurrence of any one or more of the following events:


 


(i)             The material breach by Employee of his
obligations hereunder, after Employee has been given written notice specifying
the breach and has been provided a thirty day opportunity to cure.  This includes, without limitation, willful
neglect of Employee’s duties or Employee’s willful failure (other than any such
failure resulting from the termination of the Employee’s employment pursuant to
his death, Disability, retirement or Good Reason, as provided elsewhere in this
Agreement) to implement or adhere to policies established by, or directives of,
the Company’s Board of Directors.


 


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(ii)          Employee is convicted of, or pleads guilty or no contest to a felony,
or written evidence is presented to the Board that Employee engaged in a crime
that may have an adverse impact on the Company’s reputation and standing in the
community.


 


(iii)       Employee commits fraud in connection with the business affairs of the
Company, regardless of whether said conduct is designed to defraud the Company
or others.


 


In
the event of termination for Cause, the Company shall pay the Employee any
portion of the Employee’s Base Salary accrued, but not paid, prior to the
Termination Date.  In the event of
termination for Cause, the Company’s obligation to pay Employee’s Base Salary
for any periods after the Termination Date shall cease as of the Termination
Date, all of Employee’s equity compensation awards shall immediately cease
vesting, and all of Employee’s benefits shall cease, except as otherwise
required by law; provided that Employee shall retain his vested equity
compensation awards and other vested benefits and rights under the Company’s
benefit plans in accordance with the terms of such plans and this
Agreement.  If Employee’s employment is
terminated for Cause, Employee’s employment may be terminated on written
notice, effective immediately, unless otherwise expressly provided for in this
Agreement.


 


c)                                      Termination by
the Company without Cause.  The
Company shall have the right to terminate this Agreement prior to the
expiration of the Term, at any time, without Cause.  In the event the Company shall so elect to
terminate this Agreement, the Employee shall be eligible to receive compensation
pursuant to the provisions of Section 8 hereof.


 


d)                                     Termination by
the Employee for Good Reason.  The Employee shall have the right to
terminate this Agreement for “Good Reason” (as defined herein).  For purposes of this Agreement, “Good Reason”
shall mean the occurrence, without the Employee’s prior written consent, of any
one or more of the following events:


 


(i)             The assignment to the Employee of any duties
that are materially inconsistent with Employee’s duties as Chief Executive
Officer, or that reflect a material reduction of his powers and
responsibilities;


 


(ii)          Employee’s ceasing to report solely to the Board of Directors;


 


(iii)       A negative change to Employee’s title;


 


(iv)      The Company’s material breach of any of the provisions of this
Agreement, or a material adverse change in the conditions of Employee’s
employment (e.g., including, without limitation, a failure by the Company to
provide the Employee with incentive compensation and benefit plans that provide
comparable benefits and amounts as such type of programs as are provided to other
Company executive officers, etc.);


 


(v)         The relocation of the Company’s principal executive offices to a
location outside of the Honolulu area or the Company’s requiring the Employee
to be based anywhere other than the Company’s principal executive offices,
except for travel on Company business to an extent substantially consistent
with the Employee’s position and responsibilities;


 


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(vi)      Following a change in control (as defined in Section 11), Employee
not remaining as the chief executive officer of a successor publicly-traded
Company; or


 


(vii)   A failure by the Company to maintain Directors’ and Officers’ insurance
as set forth in Section 20.


 


The
Employee agrees to provide the Company thirty (30) days’ prior written notice
of any termination for Good Reason within ninety (90) days’ of Employee
becoming aware of the occurrence of any of the foregoing (except in the case of
a termination pursuant to subparagraph (vi) hereof), during which 30-day
period the Company shall have the right to cure the circumstances giving rise
to the Good Reason stated in such notice. 
In the event of termination for Good Reason, the Employee shall be
eligible to receive compensation pursuant to the provisions of Section 8 hereof.


 


e)                                      Termination by
the Employee Without Good Reason.  The Employee shall have the right to
terminate this Agreement without Good Reason. 
In the event of a resignation by Employee without Good Reason, the
Company shall pay the Employee any portion of the Employee’s Base Salary
accrued, but not paid, prior to the Termination Date, all of Employee’s equity
compensation awards shall immediately cease vesting, and all of Employee’s
benefits shall cease, except as otherwise required by law or as otherwise
provided herein; provided that Employee shall retain his vested equity
compensation awards and other vested benefits and rights under the Company’s
benefit plans in accordance with the terms of such plans and this Agreement.


 


8.                                       Compensation
Upon Termination by the Company Other than for Cause or By the Employee for
Good Reason.  If the
Employee’s employment shall be terminated (i) by act of the Company other
than for Cause during the Term, or (ii) by the Employee for Good Reason
during the Term, then subject to Employee signing and not revoking a Release,
the lapse of any statutory period for revoking the Release, and such Release becoming effective in accordance with
its terms within twenty-nine (29) days following Employee’s Termination Date, the Company
shall provide severance pay and benefits as follows:


 


a)                                      Payment of
Unpaid Base Salary and Performance/Incentive Bonus.  The Company shall immediately pay the
Employee any portion of the Employee’s Base Salary accrued, but not paid, prior
to the Termination Date and a performance/incentive bonus for such year,
subject to attaining the requisite performance milestones and payable at the
same time as other participants, as determined in accordance with Section 3(b),
with a rating of 1.0 for all objectives that are not intended to constitute
performance-based compensation under Code Section 162(m), and a rating
determined by the Compensation Committee consistent with its determination for
other executives for all objectives that are intended to constitute performance-based
compensation under Code Section 162(m).


 


b)                                     Lump Sum
Payment.  Employee shall receive, on the
twenty-ninth (29th) day following
the Termination Date, or such later time as is required pursuant to Section 22
hereof, a lump sum cash severance payment in an amount equal to 3 times the
amount of Employee’s total Base Salary and average annual bonus payment
received during the 36 month period immediately prior to such termination, up
to a maximum severance payment of  $3,000,000  (the “Cash Severance Amount”).


 


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c)                                      Continuation of
Medical and Other Benefits.  Throughout the Term of this Agreement from
and after the Termination Date, the Company shall continue to provide Employee
with (i) life insurance coverage, disability benefits and medical benefits
as if Employee’s employment under the Agreement had not been terminated;
provided that coverage (as distinct from benefits due to a disability incurred
prior to the Termination Date) under the Company’s long term disability
insurance will not be included as part of benefits provided after termination
of employment, because the carrier limits provision of such to active employees
and (ii) Travel Benefits set forth in Section 4(c), as if Employee’s
employment under the Agreement had not been terminated; provided, however, that
if providing such coverage under (i) above would otherwise potentially
give rise to a discriminatory payment under Code Section 105(h), then
Employee shall receive imputed income with respect to the relevant insurance
coverage premiums.  The Company will seek
in good faith to provide such coverage under an insured plan in order to avoid
imputed income to Employee if such coverage is available on commercially
reasonable terms.  With respect to any
medical reimbursements made to Employee under this Section, such reimbursement
will be paid to Employee as soon administratively feasible following submission
of such claim but shall in any event be made on or before the end of the
calendar year following the calendar year in which Employee’s such claim is
incurred.  If required by law or
otherwise allowed by the relevant carrier, Employee will be afforded the
opportunity to continue such benefits at Employee’s own cost after the benefits
provided under this Section 8(c) have expired.


 


d)                                     Type A and Type
B Restricted Stock Vesting Acceleration.  Any Type A or Type B Restricted Stock as to
which the performance metrics have been met (or are deemed met pursuant to
Sections 4(e)(ii) or 4(e)(iv) hereof), shall be vested 100% and shall
be paid out on the twenty-ninth (29th) day following the Termination Date or such later
date as is required to avoid the imposition of additional taxes under Code Section 409A
pursuant to Section 22 hereof.


 


e)                                      No Mitigation
Required; No Other Entitlement to Benefits Under Agreement.  The Employee shall not be required in any way
to mitigate the amount of any payment provided for in this Section 8,
including, but not limited to, by seeking other employment, nor shall the amount
of any payment provided for in this Section 8 be reduced by any
compensation earned by the Employee as the result of employment with another
employer after the Termination Date, or otherwise.  Except as set forth in this Section 8,
following a termination governed by this Section 8, the Employee shall not
be entitled to any other compensation or benefits set forth in this Agreement,
except as may be separately negotiated by the parties and approved by the Board
of Directors of the Company in writing in conjunction with the termination of
Employee’s employment under this Section 8 or as otherwise provided for in
this Agreement.


 


f)                                        Release of
Claims.  Receipt of the severance
payments and benefits specified in this Section 8 shall be contingent on
Employee’s execution of a Release, and the lapse of any statutory period for
revocation, and such release becoming
effective in accordance with its terms within twenty-nine (29) days following
the termination date.  Any severance payment to which Employee otherwise would
have been entitled during such twenty-nine
(29) day period shall be paid by the Company in full arrears on the
twenty-ninth (29th) day following
Employee’s employment termination date or such later date as is required to
avoid the imposition of additional taxes under Code Section 409A,
together, with respect to any cash severance payments, with interest at the
same rate as provided in Section 22(b).


 


10
















 


9.                                       Code
Section 280G .


 


a)                                      Treatment
Within One Year Following the Renewal Effective Date.  In the event that any payment or distribution
(including benefits and acceleration of vesting of equity compensation) which
is made by the Company to or for the benefit of the Employee (whether paid or
payable or distributed or distributable pursuant to the terms of the Agreement
or otherwise) within one year following the Renewal Effective Date would be
subject to any excise tax, or any interest or penalties are incurred by
Employee with respect to any such excise tax pursuant to Sections 280G or
4999 of the Code, or any successor or like provision (or for the payment of any
tax pursuant to any applicable, like state tax provision) (the “Excise Tax”),
the Company shall make a payment (the “Special Reimbursement”) to or for the
benefit of Employee in an amount such that, after payment by Employee of all
federal, state and local taxes, including, without limitation, any tax under
Sections 280G or 4999 (and any interest and penalties imposed with respect
thereto) imposed on the Special Reimbursement, Employee retains an amount of
the Special Reimbursement sufficient to pay the Excise Tax.  The Special Reimbursement shall be paid as
soon as practicable after it is determined by the Company or Employee and
reviewed for accuracy by the Company’s tax professionals and paid by or on
behalf of Employee; provided however that the Special Reimbursement shall in no
event be paid later than the date which is two (2) weeks after the date
upon which Employee pays such portion of the Excise Tax on which such Special
Reimbursement is payable under this Section.


 


b)                                     Best Results
Treatment At Least One Year the Renewal Effective Date.  If any payment or benefit Employee would
receive pursuant to this Agreement or otherwise on or after the date that is
one year following the Renewal Effective Date, including accelerated vesting of
any equity compensation (“Payment”) would (i) constitute a “parachute
payment” within the meaning of Section 280G of the Code, and (ii) but
for this sentence, be subject to the Excise Tax, then such Payment shall be
reduced to the Reduced Amount.  The “Reduced
Amount” shall be either (x) the largest portion of the Payment that would
result in no portion of the Payment being subject to the Excise Tax or (y) the
largest portion, up to and including the total, of the Payment, whichever
amount, after taking into account all applicable federal, state and local
employment taxes, income taxes, and the Excise Tax (all computed at the highest
applicable marginal rate), results in Employee’s receipt, on an after-tax
basis, of the greater amount of the Payment notwithstanding that all or some
portion of the Payment may be subject to the Excise Tax.  If a reduction in payments or benefits
constituting “parachute payments” is necessary so that the Payment equals the
Reduced Amount, reduction shall occur in the following order: (A) cash
payments shall be reduced first and in
reverse chronological order such that the cash payment owed on the latest date
following the occurrence of the event triggering such Excise Tax will be the
first cash payment to be reduced; (B) accelerated vesting of stock
awards shall be cancelled/reduced next
and in the reverse order of the date of grant for such stock awards (i.e., the vesting of the most recently
granted stock awards will be reduced first), with full-value awards reversed
before any stock option or stock appreciation rights are reduced; and (C) employee
benefits shall be reduced last and in reverse
chronological order such that the benefit owed on the latest date following the
occurrence of the event triggering such Excise Tax will be the first benefit to
be reduced.


 


11

















 


c)                                      280G
Calculations.  The Company
shall appoint a nationally recognized accounting firm to make the
determinations required under this Section 9 and perform the foregoing
calculations.  The Company shall bear all
expenses with respect to the determinations by such accounting firm required to
be made hereunder.


 


The
accounting firm engaged to make the determinations hereunder shall provide its
calculations, together with detailed supporting documentation, to the Company
and Employee within fifteen (15) calendar days after the date on which right to
a Payment is triggered (if requested at that time by the Company or Employee)
or such other time as requested by the Company or Employee.  If the accounting firm determines that no
Excise Tax is payable with respect to a Payment, either before or after the
application of the Reduced Amount, it shall furnish the Company and Employee
with an opinion reasonably acceptable to Employee that no Excise Tax will be
imposed with respect to such Payment. 
Any good faith determinations of the accounting firm made hereunder
shall be final, binding and conclusive upon the Company and Employee.


 


10.                                 Noncompetition, Etc. Provisions.


 


a)                                      Noncompetition.  During the Term of this
Agreement and for a period of twelve (12) months commencing on the Termination
Date, Employee agrees and covenants that Employee shall not, directly or
indirectly, undertake to become an employee, officer, partner, consultant or
otherwise be connected with any entity for which, at such time or for the
twelve (12) month period thereafter in excess of fifteen percent (15%) of its
business is primarily directed at competition with the Company either within
Hawaii or on routes to and from Hawaii serviced by the Company, provided,
however, for sake of clarity, Employee shall not violate this provision if he
is employed with overall responsibility for a business area (such as marketing)
which includes oversight and responsibility for routes within Hawaii or on
routes to and from Hawaii serviced by the Company.  Employee acknowledges and agrees that any
intentional and material breach of this non-competition provision shall entitle
Employer to immediately terminate payments pursuant to Section 8 of this
Agreement and lifetime travel benefits provided in Section 4(c) of
this Agreement.  If the Company ceases
operations on a permanent basis or if the Company ceases to make payments to
Employee pursuant to Section 8 hereof, the restrictions of this section
shall immediately terminate.


 


b)                                     Nondisparagement.  During the Term of this Agreement and for a
period of twenty-four (24) months commencing on the Termination Date, each
party agrees that it/he shall not make any statements that disparage or tend to
disparage the other party, including, in the case of the Company, its products,
services, officers, employees, advisers or other business contacts.  Employee acknowledges and agrees that any
intentional and material breach of this nondisparagement provision shall
entitle the Company to immediately terminate payments pursuant to Section 8
of this Agreement and lifetime travel benefits provided in Section 4(c) of
this Agreement, and if such disparagement is material and results in damage to
the Company, the Company may also seek repayment of amounts previously paid to
Employee pursuant to Section 8.


 


12

















 


c)                                      Right to
Company Materials.  Employee
agrees that all styles, designs, lists, materials, books, files, reports,
correspondence, records, and other documents (“Company Materials”) used,
prepared, or made available to Employee, shall be and shall remain the property
of the Company.  Upon the termination of
employment or the expiration of this Agreement, all Company Materials shall be
returned immediately to the Company, and Employee shall not make or retain any
copies thereof.


 


d)                                     Antisolicitation.  Employee promises and agrees that during the
Term of this Agreement and for the twenty-four (24) month period commencing on
the Termination Date, he will not influence or attempt to influence customers
or suppliers of the Company or any of its present or future subsidiaries or
affiliates, either directly or indirectly, to divert their business to any
individual, partnership, firm, corporation or other entity then in competition
with the Company, or any subsidiary or affiliate of the Company.


 


e)                                      Soliciting
Employees.  During the
Term of this Agreement and for the twenty-four (24) month period commencing on
the Termination Date, Employee promises and agrees that he will not directly or
indirectly solicit any of the Company’s employees to work for any business,
individual, partnership, firm, corporation, or other entity in which Employee
has any relationship.


 


11.                                 Merger
or Other Change in Control.  For purposes of this Agreement, a “Change in
Control” shall mean, with respect to the Company (the definition of which, for
sake of clarity, means either or both of HA or HH), any of the following: (a) any
person or persons acting together that would constitute a “group” for purposes
of Section 13(d) of the Securities Exchange Act of 1934, beneficially
own more than 40% of the total voting power of the stock of the Company
entitled to vote for the board of directors of the Company (the “Voting Stock”)
or economic interests in the Company, (b) the sale, transfer, assignment
or other disposition (including by merger or consolidation) by the shareholders
of HH, in one transaction or a series of related transactions, with the result
that the beneficial owners of the Voting Stock of or economic interests in HH
immediately prior to the transaction (or series) do not, immediately after such
transaction (or series) beneficially own Voting Stock representing more than
40% of the voting power of all classes of Voting Stock of HH or any successor
entity of HH or economic interests in HH representing more than 40% of the
economic interests in HH or any Company or any successor entity of HH; (c) the
sale or other transfer (in one or a series of transactions) of all or
substantially all of the assets of the Company, (d) the dissolution or
liquidation of the Company, or (e) a change in the composition of the
Board, as a result of which, fewer than one-half of the incumbent directors
(without including directors who are appointed as part of the union contract)
are directors who either (i) had been directors, other than directors who
are appointed as part of the union contract, of the Company on the Renewal
Effective Date (the “Original Directors”); or (ii) were elected, or
nominated for election, to the Board of Directors with the affirmative votes of
at least a majority of the aggregate of the Original Directors who were still
in office at the time of the election or nomination or directors whose election
or nomination was previously so approved.


 


12.                                 Notices.  All notices and other communications under
this Agreement shall be in writing and shall be given by facsimile (with
confirmation of transmission), first class mail, certified or registered with
return receipt requested, or national, reputable overnight courier and shall be
deemed to have been duly given three (3) days after mailing or on the next
business day following delivery by overnight courier or transmission of a
facsimile to the respective persons named below:


 


13

















 


	
  If
  to HA:

  	
   

  	
  Hawaiian
  Airlines, Inc.

  
	
   

  	
   

  	
  c/o Ranch Capital, LLC

  
	
   

  	
   

  	
  12730 High Bluff Drive,
  Suite 180

  
	
   

  	
   

  	
  San Diego, California
  92130

  
	
   

  	
   

  	
  Attn: Chairman of the
  Board of Directors

  
	
   

  	
   

  	
   

  
	
  with
  a copy to

  	
   

  	
  Hawaiian
  Airlines, Inc.

  
	
   

  	
   

  	
  3375 Koapaka Street,
  Suite G-350

  
	
   

  	
   

  	
  Honolulu, HI 96819

  
	
   

  	
   

  	
  Attn: General Counsel

  
	
   

  	
   

  	
   

  
	
  If
  to HH:

  	
   

  	
  Hawaiian
  Holdings, Inc.

  
	
   

  	
   

  	
  c/o Ranch Capital, LLC

  
	
   

  	
   

  	
  12730 High Bluff Drive,
  Suite 180

  
	
   

  	
   

  	
  San Diego, California
  92130

  
	
   

  	
   

  	
  Attn: Chairman of the
  Board of Directors

  
	
   

  	
   

  	
   

  
	
  with
  a copy to

  	
   

  	
  Hawaiian
  Holdings, Inc.

  
	
   

  	
   

  	
  3375 Koapaka Street,
  Suite G-350

  
	
   

  	
   

  	
  Honolulu, HI 96819

  
	
   

  	
   

  	
  Attn: General Counsel

  
	
   

  	
   

  	
   

  
	
  If to the Company, then to
  either HA or HH, as set forth above.

  
	
   

  	
   

  	
   

  
	
  If
  to Employee:

  	
   

  	
  Mark B. Dunkerley

  
	
   

  	
   

  	
  at the last residential
  address known to the Company

  
	
   

  	
   

  	
   

  
	
  with
  a copy to

  	
   

  	
  Munger, Tolles &
  Olson

  
	
   

  	
   

  	
  355 S. Grand Ave. 3500

  
	
   

  	
   

  	
  Los Angeles, California
  90071

  
	
   

  	
   

  	
  Attn: Sandra Seville-Jones

  
	
   

  	
   

  	
  Tel: (213) 683-9126

  
	
   

  	
   

  	
  Fax: (213) 683-5126

  



 


Either
party may change such party’s address for notices by written notice duly given
pursuant hereto.


 


13.                                 Arbitration
Clause/Attorneys Fees.  Any
controversy or claim arising out of or relating to this Agreement shall be
settled by expedited arbitration administered by the DRS, Inc. in
Honolulu, Hawaii, and judgment upon the award rendered by the arbitrator(s) may
be entered in any court having jurisdiction thereof.  In the event judicial or quasi-judicial
determination is necessary of any dispute arising as to the parties’ rights and
obligations hereunder, the Company and Employee shall each bear its/his
respective attorneys’ fees and costs associated with such dispute.  The Company shall reimburse Employee (or
directly pay) for all reasonable attorneys’ fees and expenses incurred in
connection with entering into and/or negotiating this Agreement, up to a
maximum of $50,000.  Any such
reimbursement or direct payment payable under this Section 13 shall be
made as soon as practicable after submission of such fee or expense by Employee
for payment; provided however, that in no event shall reimbursement or direct
payment be made later than the end of the year following the year in which
Employee pays such fee or expense.


 


14

















 


14.                                 Termination
of Prior Agreements; Acknowledgement.  Except as specifically provided in Section 3(c),
this Agreement terminates and supersedes any and all prior agreements and
understandings between the parties with respect to employment or with respect
to the compensation of the Employee by the Company from and after the Renewal
Effective Date, including the Prior Agreement. 
Employee acknowledges and agrees that the Company has offered him an
employment agreement on terms comparable in all material respects to the Prior
Agreement, such that subsection (iii) of the first paragraph of Section 7
of the Prior Agreement shall not be triggered.


 


15.                                 Assignment;
Successors.  This
Agreement is personal in its nature and neither of the parties hereto shall,
without the consent of the other, assign or transfer this Agreement or any
rights or obligations hereunder; provided that, in the event of the merger,
consolidation, transfer or sale of all or substantially all of the assets of
the Company with or to any other individual or entity, this Agreement shall,
subject to the express provisions hereof, be binding upon and inure to the
benefit of such successor and such successor shall discharge and perform all
the promises, covenants, duties, and obligations of the Company hereunder.


 


16.                                 Governing
Law.  This Agreement and the legal
relations thus created between the parties hereto shall be governed by and
construed under and in accordance with the laws of the State of Hawaii applied
without regard to the choice of law principles thereof.


 


17.                                 Entire
Agreement; Headings.  This
Agreement embodies the entire agreement of the parties respecting the matters
within its scope and may be modified only in writing.  Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.


 


18.                                 Waiver;
Modification.  Failure to
insist upon strict compliance with any of the terms, covenants, or conditions
hereof shall not be deemed a waiver of such term, covenant, or condition, nor
shall any waiver or relinquishment of, or failure to insist upon strict
compliance with, any right or power hereunder at any one or more times be
deemed a waiver or relinquishment of such right or power at any other time or
times.  This Agreement shall not be
modified in any respect except by a writing executed by the party against whom
such modification is charged.


 


19.                                 Severability.  In the event that a court of competent
jurisdiction determines that any portion of this Agreement is in violation of
any statute or public policy, only the portions of this Agreement that violate
such statute or public policy shall be stricken.  All portions of this Agreement that do not
violate any statute or public policy shall continue in full force and effect.  Further, any court order striking any portion
of is Agreement shall modify the stricken terms as narrowly as possible to give
as much effect as possible to the intentions of the parties under this
Agreement.


 


20.                                 Indemnification.  The Company shall indemnify and hold Employee
harmless to the maximum extent permitted by Section 145 of the Delaware
General Corporation Law and the Restated Articles of Incorporation and Amended
Bylaws of Hawaiian Airlines, Inc. and of Hawaiian Holdings, Inc.
respectively.  The Company will maintain
an Errors and Omissions insurance policy during the term of this Agreement,
which policy shall name the Employee as an insured.


 


15

















 


21.                                 Counterparts.  This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.


 


22.                                 Section 409A.


 


a)                                      General.  This Agreement shall be interpreted,
construed and administered in a manner that satisfies the requirements of Section 409A
of the Code and the Department of Treasury Regulations and other guidance
promulgated thereunder.  It is the intent
of this Agreement to comply with the requirements of Section 409A so that
none of the severance payments and benefits to be provided under this Agreement
will be subject to the additional tax imposed under Section 409A, and any
ambiguities in this Agreement will be interpreted to so comply.  The Company and Employee agree to work
together in good faith to consider amendments to this Agreement and to take
such reasonable actions which are necessary, appropriate or desirable to avoid
imposition of any additional tax or income recognition under Section 409A
prior to actual payment to Employee.  All
payments or distributions under this Agreement shall be made on the date or
during the period specified herein for such payments, subject to Section 22(b) herein.  To the extent no date or period is specified,
a payment or distribution shall be made on or before the later of (i) the
fifteenth day of the third month following the end of Employee’s first taxable
year in which the right to such payment or distribution is no longer subject to
a substantial risk of forfeiture or (ii) the fifteenth day of the third
month following the end of the Company’s first taxable year in which the right
to such payment or distribution is no longer subject to a substantial risk of
forfeiture (the “409A Limit”), except as provided in Section 22(b) herein.


 


b)                                     Specified
Employee Delay.  Each of the
payments under this Agreement shall be considered a separate payment for the
purposes of Section 409A. 
Notwithstanding any provision to the contrary in this Agreement, if (a) Employee
is a “specified employee” within the meaning of Section 409A for the
period in which the payment or benefits under this Agreement would otherwise
commence and (b) any payment or benefit under this Agreement would
otherwise subject Employee to any tax, interest or penalty imposed under Section 409A,
if the payment or benefit would commence within six months of a termination of
Employee’s employment with the Company (the “Deferred Compensation Separation
Benefits”), then all such payments or benefits that would otherwise be paid
during the first six months after Employee’s separation from service within the
meaning of Section 409A shall be accumulated and shall be paid (together
with, in the case of any cash payment, interest credited at the Applicable
Federal Rate in effect as of the date of Employee’s separation from service) on
the earlier of (1) the first day which is at least six (6) months
after Employee’s separation from service within the meaning of Section 409A
or (2) the date of Employee’s death (as applicable, the “Specified
Employee Payment Date”).


 


16

















 


c)                                      Separation from
Service.  Notwithstanding anything to
the contrary in this Agreement, no Deferred Compensation Separation Benefits
payable under this Agreement will be considered due or payable until and unless
Employee has a “separation from service” within the meaning of Section 409A.  Notwithstanding anything herein to the
contrary, if Employee dies following his “separation from service” but prior to
the six (6) month anniversary of the date of his “separation from service,”
then any Deferred Compensation Separation Benefits delayed in accordance with
this Section will be payable in a lump sum as soon as administratively
practicable after the date of Employee’s death, but not later than ninety (90)
days after the date of Employee’s death, and all other Deferred Compensation
Separation Benefits will be payable in accordance with the payment schedule
applicable to each payment or benefit.


 


23.                                 Withholding.  The Company shall have the right to deduct
and withhold from all amounts payable or benefits provided to Employee (whether
pursuant to this Agreement or otherwise) all federal, state and local income
and employment taxes the Company believes is required to be so deducted and
withheld.  In the event any compensation
is paid or benefits are provided other than in cash, Employee shall make
arrangements satisfactory to the Company for the payment to the Company of such
income and employment taxes.


 


24.                                 Indemnity.  From and after the Renewal Effective Date,
the Company will indemnify, defend, protect and hold Employee (and his heirs
and executors) harmless, from and against any and all costs, losses,
liabilities, obligations, damages, lawsuits, deficiencies, claims, demands and
expenses (including reasonable attorneys’ fees) arising out of, relating to or
resulting in any way from any breach of any representation or warranty of the
Company in this Agreement; provided, however, that this Section 24 shall
not apply to any taxes incurred by Employee due to such breach or payments
hereunder.


 


IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
duly authorized representatives, and the Employee has hereunto signed this
Agreement, on the dates set forth below.


 


 


	
  EMPLOYEE

  	
  HAWAIIAN
  HOLDINGS, INC.

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  HAWAIIAN
  AIRLINES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  
													



 


17

















 


EXHIBIT A


 


HAWAIIAN AIRLINES, INC./HAWAIIAN


 


HOLDINGS, INC./MARK B. DUNKERLEY


 


RELEASE OF CLAIMS


 


This Release of Claims (“Agreement”) is made between and among Hawaiian
Airlines, Inc., Hawaiian Holdings, Inc. (the “Company”), and Mark B. Dunkerley (“Employee”).


 


WHEREAS, Employee has agreed to enter into a release of claims in favor
of the Company upon certain events specified in the offer letter agreement by
and between Company and Employee (the “Employment Agreement”).


 


NOW THEREFORE, in consideration of the mutual promises made herein, the
Parties hereby agree as follows:


 


1.                                       Termination.  Employee’s employment from the Company
terminated on
                                
(the “Termination Date”).


 


2.                                       Payment
of Salary.  Employee
acknowledges and represents that the Company has paid all salary, wages,
bonuses, accrued vacation, commissions and any and all other benefits due to
Employee prior to the date on which Employee executed this Agreement.


 


3.                                       Release.


 


(a)                                  Employee irrevocably and
unconditionally releases Employer, its parent corporation, successors, heirs,
assigns, directors, shareholders, trustees, officers, employees, servants,
agents (and former directors, shareholders, trustees, officers, employees,
servants, and agents), attorneys, executors, administrators, insurers,
subsidiaries and affiliated companies from any and all claims, charges,
complaints, grievances, contracts, liabilities, obligations, demands, promises,
reimbursements, causes of action, costs, debts, expenses, damages (including,
but not limited to actual damages, compensatory damages, special damages,
liquidated damages, and punitive damages) of any kind directly or indirectly,
known or unknown, suspected or unsuspected, arising out of or related to (i) the
employment of Employee by Employer, (ii) the termination of Employee’s
employment or the circumstances leading up to Employee’s termination of
employment, and (iii) any other act or occurrence pre-dating Employee’s
execution of this Agreement.


 


(b)                                 Employee acknowledges and
agrees that Employee has read this Agreement. 
Employee also acknowledges and agrees that Employee understands the
terms of this Agreement.  Employee
further acknowledges and agrees that Employee is entering into this Agreement
deliberately, knowingly, and voluntarily, with full knowledge of its
significance, and with the express intention of effecting the legal
consequences relating to the extinguishment of all obligations.  Employee also acknowledges and agrees that
Employer has advised Employee to seek the advice of Employee’s own attorney
prior to executing this Agreement regarding the terms and conditions of this
Agreement.


 

















 


(c)                                  Employee understands that
this Agreement releases Employer from all liability, past or present, arising
out of or related to Employee’s employment, termination of employment and the
circumstances leading up to Employee’s termination of employment, and any other
act or occurrence pre-dating Employee’s execution of this Agreement, including,
but not limited to, any rights or claims pursuant to (i) the Age
Discrimination Act of 1967 (“ADEA”) (29 U.S.C. § 626, et seq.), and any
amendments thereto; (ii) the Civil Rights Act of 1964 (“Title VII”) (42
U.S.C. § 2000e, et seq.), and any amendments thereto; (iii) the Civil
Rights Statutes (42 U.S.C. §§ 1981, 1981a, and 1988), and any amendments
thereto; (iv) the Americans with Disabilities Act of 1990 (“ADA”) (42
U.S.C. § 12101, et seq.), and any amendments thereto; (v) the Employee
Retirement Income Security Act (“ERISA”) (29 U.S.C. §1001 et seq.), and any
amendments thereto; (vi) Hawaii’s Employment Practices Act (Haw. Rev.
Stat. ch. 378), and any amendments thereto; (vii) all applicable state and
federal wage and hour laws, and any amendments thereto; (viii) all claims
based on common law sounding in tort, contract, implied contract, negligence
and/or gross negligence, including, but not limited to promissory estoppel,
quantum meruit, libel/slander, defamation, misrepresentation, emotional
distress (negligent or intentional) fraud or deceit, unpaid wages, equitable
claims, breach of contract, breach of the covenant of good faith and fair
dealing, breach of fiduciary duty, wrongful discharge and/or termination, and
violation of public policy; and (ix) any claim for attorneys’ fees or
costs.


 


Employee
understands that nothing contained in this Agreement shall prohibit Employee
from (i) bringing any action to enforce the terms of this Agreement or
severance and other benefits due pursuant to the Employment Agreement or to
enforce his other vested benefits and rights under the Company’s benefit plans
in accordance with the terms of such plans and the Employment Agreement; (ii) filing
a timely charge or complaint with the Hawaii Civil Rights Commission (“HCRC”)
or the Equal Employment Opportunity Commission (“EEOC”) regarding the validity
of the Agreement; or (iii) filing a timely charge or complaint with the
HCRC or the EEOC or participating in any investigation or proceeding conducted
by the HCRC or the EEOC regarding any claim of employment discrimination.  This release does not extend to any severance
or other obligations due Employee under the Employment Agreement or to Employee’s
vested rights and benefits under the Company’s benefit plans in accordance with
the terms of such plans and the Employment Agreement.  Nothing in this Agreement waives Employee’s
rights to indemnification or any payments under any fiduciary insurance policy,
if any, provided by any act or agreement of the Company, state or federal law
or policy of insurance.


 


(d)                                 Employee acknowledges and
understands that there is a risk that subsequent to the execution of this Agreement,
Employee may incur or suffer loss, damages, or injuries that are in some way
related to or arising out of Employee’s employment with Employer or the
termination thereof, but that are unknown and unanticipated at the time this
Agreement is signed.  Accordingly,
Employee hereby assumes these risks and that this Agreement shall apply to all
such unknown or unanticipated claims.


 


(e)                                  Employee acknowledges and
understands that Employee is not waiving any future rights or claims that might
arise after the date this Agreement is signed by Employee.


 


(f)                                    Employee acknowledges and
understands that Employer does not make nor has made any representations to
force or induce Employee to sign this Agreement other than what is specifically
provided for in this Agreement. 
Furthermore, Employee acknowledges and understands that Employee is
under no obligation to sign this Agreement.


 


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4.                                       Acknowledgment
of Waiver of Claims under ADEA.  Employee acknowledges that he is waiving and
releasing any rights he may have under the Age Discrimination in Employment Act
of 1967 (“ADEA”) and that this waiver and release is knowing and voluntary.
Employee and the Company agree that this waiver and release does not apply to
any rights or claims that may arise under the ADEA after the effective date of
this Agreement.  Employee acknowledges
that the consideration given for this waiver and release Agreement is in
addition to anything of value to which Employee was already entitled.  Employee further acknowledges that he has
been advised by this writing that (a) he should consult with an attorney prior
to executing this Agreement; (b) he has at least twenty-one (21) days
within which to consider this Agreement; (c) he has seven (7) days
following the execution of this Agreement by the parties to revoke the
Agreement; (d) this Agreement shall not be effective until the revocation
period has expired; and (e) nothing in this Agreement prevents or
precludes Employee from challenging or seeking a determination in good faith of
the validity of this waiver under the ADEA, nor does it impose any condition
precedent, penalties or costs for doing so, unless specifically authorized by
federal law.  Any revocation should be in
writing and delivered to the Vice-President of Human Resources at the Company
by close of business on the seventh day from the date that Employee signs this
Agreement.


 


5.                                       No
Pending or Future Lawsuits.  Employee represents that he has no lawsuits,
claims, or actions pending in his name, or on behalf of any other person or
entity, against the Company or any other person or entity referred to
herein.  Employee also represents that he
does not intend to bring any claims on his  own behalf or
on behalf of any other person or entity against the Company or any other person
or entity referred to herein.


 


6.                                       No
Cooperation.  Employee
agrees that he will not counsel or assist any attorneys or their clients in the
presentation or prosecution of any disputes, differences, grievances, claims,
charges, or complaints by any third party against the Company and/or any
officer, director, employee, agent, representative, shareholder or attorney of
the Company, unless under a subpoena or other court order to do so.


 


7.                                       Arbitration.  The parties hereto agree that any and all
disputes arising out of the terms of this Agreement, their interpretation, and
any of the matters herein released, including any potential claims of
harassment, discrimination or wrongful termination shall be subject to binding arbitration,
to the extent permitted by law, as specified in the Employment Agreement.


 


8.                                       Effective
Date.  This
Agreement is effective eight (8) days after it has been signed by all
parties hereto.


 


9.                                       Voluntary
Execution of Agreement.  This Agreement is executed voluntarily and
without any duress or undue influence on the part or behalf of the parties
hereto, with the full intent of releasing all claims.  The parties hereto acknowledge that:


 


(a)                                  They have read this
Agreement;


 


(b)                                 They have been represented
in the preparation, negotiation, and execution of this Agreement by legal
counsel of their own choice or that they have voluntarily declined to seek such
counsel;


 


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(c)                                  They understand the terms
and consequences of this Agreement and of the releases it contains; and


 


(d)                                 They are fully aware of the
legal and binding effect of this Agreement.


 


10.                                 Confidential
Information and Trade Secrets.  Employee agrees that, during Employee’s
employment by Employer, Employee received and was privy to confidential
information and trade secrets.  Employee
agrees that Employee shall hold in confidence and not disclose to any
unauthorized person any knowledge or information of a confidential nature and
any trade secret with respect to the business of Employer acquired and
possessed by Employee and shall not disclose, publish, or make use of the same
without the prior express written consent of Employer.


 


11.                                 Assignment.  This
Agreement is personal as to Employee and shall not be assignable by Employee.


 


12.                                 Modification.  This Agreement may not be
changed, altered, modified, or amended orally, but only by an instrument in
writing signed by the party against whom enforcement of any change, alteration,
modification, or amendment is sought.


 


13.                                 No Bar or
Waiver.  No delay or omission on the part of Employer
or Employee in exercising any right under this Agreement shall operate as a
waiver of such right or of any other right either may have.  A waiver on one occasion shall not be
construed as a bar to or waiver of any right on any future occasion.


 


14.                                 Headings.  Paragraph
headings are not to be considered part of this Agreement and are included
solely for convenience and form no part of this Agreement or affect the
interpretation thereof.


 


15.                                 Notices.  All notices, requests, demand,
and other communications hereunder shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, with postage
prepaid.


 


16.                                 Entire
Agreement.  This Agreement, the severance and
post-termination obligation provisions of the Employment Agreement (e.g.,
Sections 7, 8 and 9 provisions), and Employee’s equity compensation agreements
and other benefit plans contain the entire understanding of Employee and
Employer, and fully supersede any and all prior agreements or understandings
pertaining to the subject matter of this Agreement.  Each of the parties hereto acknowledges that
no party or agent of any party has made any promise, representation or warranty
whatsoever, either expressed or implied, not contained in this Agreement
concerning the subject matter hereof to induce any other party to execute this
Agreement, and each of the parties hereto acknowledges that it has not executed
this Agreement in reliance upon any such promises, representations or
warranties not specifically contained in this Agreement.


 


17.                                 Binding
Effect.  This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and to the successors and assigns of
Employer.


 


18.                                 Applicable
Law.  This Agreement is being delivered in and shall
be construed and enforceable in accordance with the laws of the State of
Hawaii.


 


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19.                                 Miscellaneous.  If any term, covenant, or
agreement in this Agreement or any application thereof shall be held to be
invalid or unenforceable, the remainder of this Agreement and any other
application of such term, covenant, or agreement shall not be affected
thereby.  No party shall be deemed to be
the drafter of this Agreement and this Agreement shall not be construed for or
against any of the parties.


 


IN WITNESS THEREOF, parties
hereto have executed this Agreement on the dates set forth below.


 


 


	
  EMPLOYEE

  	
  HAWAIIAN HOLDINGS, INC.

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  
	
   

  	
  HAWAIIAN AIRLINES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
												



 


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