EXHIBIT 4.2
EXECUTION VERSION
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 10, 2000
AMONG
JET BLUE AIRWAYS CORPORATION
AND
THE STOCKHOLDERS NAMED HEREIN
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TABLE OF CONTENTS
Page
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Section 1. Definitions 1
Section 2. Demand Registration 5
Section 3. Registrations on Form S-3 6
Section 4. Piggyback Registration 8
Section 5. Holdback Agreement 8
Section 6. Preparation and Filing 9
Section 7. Expenses 9
Section 8. Indemnification 9
Section 9. Underwriting Agreement 9
Section 10. Suspension 9
Section 11. Information by Holder 9
Section 12. Exchange Act Compliance 9
Section 13. No Conflict of Rights 9
Section 14. Termination 9
Section 15. Successors and Assigns 9
Section 16. Assignment 9
Section 17. Entire Agreement 9
Section 18. Notices 9
Section 19. Modifications; Amendments; Waivers 9
Section 20. Headings 9
Section 21. Severability 9
Section 22. Governing Law; Etc 9
Section 23. Counterparts; Validity 9
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JET BLUE AIRWAYS CORPORATION
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (the
"AGREEMENT") is made as of August 10, 2000 by and among Jet Blue Airways
Corporation, a Delaware corporation (the "COMPANY"), and the Stockholders ("as
defined below").
RECITALS
WHEREAS, the Company and certain of the Stockholders (the "Prior
Stockholders") are parties to an Registration Rights Agreement dated as of
December 1, 1998 (the "Original Registration Rights Agreement"), and wish to
amend and restate the Original Registration Rights Agreement upon the terms and
condition set forth herein;
WHEREAS, the Company and certain of the Stockholders (the "Series B
Investors") are parties to the Series B Preferred Stock Purchase Agreement of
even date herewith (the "Series B Agreement"); and
WHEREAS, in order to induce the Company to enter into the Series B
Agreement and to induce the Series B Investors to invest funds in the Company
pursuant to the Series B Agreement, the Prior Stockholders, the Series B
Investors and the Company hereby agree that this Agreement shall govern the
rights of the Stockholders to cause the Company to register shares of Common
Stock issuable to the Stockholders and certain other matters as set forth
herein;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and in the Series B Agreement, the parties agree that the Registration
Rights Agreement, dated as of December 1, 1998, is hereby amended and restated
and replaced in its entirety by this Agreement and further agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
"AFFILIATE" means, with respect to any Person, a Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. For the purpose of
the above definition, the term "control" (including, with correlative meaning,
the terms "controlling," "controlled by" and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management, policies or
investment decisions of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"COMMISSION" shall mean the Securities and Exchange Commission or
any other Governmental Authority at the time administering the Securities Act
and the Exchange Act.
"COMMON STOCK" shall have the meaning ascribed to it in the
Preamble.
"COMMON STOCK EQUIVALENT" shall mean one share of Common Stock or
the right to acquire, whether or not such right is immediately exercisable, one
share of Common Stock, whether evidenced by an option, warrant, convertible
security or other instrument or agreement.
"COMPANY" shall have the meaning ascribed to it in the caption to
this Agreement.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any successor Federal statute then in force, and the rules and
regulations of the Commission promulgated thereunder, all as the same may from
time to time be in effect.
"GOVERNMENTAL AUTHORITY" shall mean any domestic or foreign
government or political subdivision thereof, whether on a federal, state or
local level and whether executive, legislative or judicial in nature, including
any agency, authority, board, bureau, commission, court, department or other
instrumentality thereof.
"INFORMATION" shall have the meaning ascribed to it in SECTION
6(A)(X).
"INITIAL PUBLIC OFFERING" shall mean an underwritten Initial Public
Offering for the account of the Company of Common Stock pursuant to a
registration statement filed under the Securities Act.
"INSPECTORS" shall have the meaning ascribed to it in SECTION
6(A)(X).
"INVESTORS" shall mean, collectively, (i) the Persons listed on
SCHEDULE I attached to this Agreement, (ii) any Management Stockholder to the
extent such Management Stockholder's Restricted Securities are obtained by
purchase of, or conversion of, Series A or B Preferred Stock held by such
Management Stockholder, and (iii) any successor to, or assignee or transferee of
Restricted Securities held by an Investor who or which agrees in writing to be
treated as an Investor hereunder and to be bound by and comply with all of the
applicable terms and provisions hereof.
"MAJORITY OF INVESTORS" shall mean those Investors who hold in the
aggregate in excess of 50% of the Restricted Securities (based on Common Stock
Equivalents) held by all of the Investors.
"MANAGEMENT STOCKHOLDERS" shall mean collectively, (i) the Persons
listed on SCHEDULE II attached to this Agreement, (ii) any other Person who is
or becomes a holder of Restricted Securities and is an employee of the Company,
and (iii) any successor to, or assignee or transferee of Restricted Securities
held by a Management Stockholder who or which agrees in writing to be treated as
a Stockholder hereunder and to be bound by and comply with all of the applicable
terms and provisions hereof.
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"MATERIAL TRANSACTION" shall mean any material transaction in which
the Company or any of its subsidiaries proposes to engage or is engaged,
including a purchase or sale of assets or securities, financing, merger,
consolidation, tender offer or any other transaction that would require
disclosure pursuant to the Exchange Act, and with respect to which the Board of
Directors of the Company reasonably has determined in good faith that compliance
with this Agreement may reasonably be expected to either materially interfere
with the Company's or such subsidiary's ability to consummate such transaction
in a timely fashion or require the Company to disclose material, non-public
information prior to such time as it would otherwise be required to be
disclosed.
"OTHER SHARES" shall mean at any time those shares of Common Stock
which do not constitute Primary Shares or Registrable Shares including those
shares of Common Stock owned by Management Stockholders that do not meet the
requirements of clause (ii) of the definition of Investors.
"PERSON" shall be construed as broadly as possible and shall include
an individual person, a partnership (including a limited liability partnership),
a corporation, an association, a joint stock company, a limited liability
company, a trust, a joint venture, an unincorporated organization and a
Governmental Authority.
"PRIMARY SHARES" shall mean, at any time, the authorized but
unissued shares of Common Stock or Common Stock held by the Company in its
treasury.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any prospectus subject to completion, and any such
prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Shares and, in
each case, by all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"PUBLIC OFFERING" shall mean the closing of a public offering of
Common Stock pursuant to a Registration Statement declared effective under the
Securities Act, except that a Public Offering shall not include an offering of
securities to be issued as consideration in connection with a business
acquisition or an offering of securities issuable pursuant to an employee
benefit plan.
"RECORDS" shall have the meaning ascribed to it in SECTION 6(A)(X).
"REGISTRABLE SHARES" shall mean, at any time, and with respect to
any Stockholder, the shares of Common Stock held by such Stockholder which
constitute Restricted Securities. As to any particular Registrable Shares, once
issued, such Registrable Shares shall cease to be Registrable Shares (A) when
such Registrable Shares have been registered under the Securities Act, the
Registration Statement in connection therewith has been declared effective and
they have been disposed of pursuant to and in the manner described in such
effective Registration Statement, (B) when such Registrable Shares are sold or
distributed pursuant to Rule 144, (C) in the case of any Stockholder who,
together with its Affiliates, holds Common Stock
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Equivalents that constitute less than two percent of the issued and outstanding
shares of Common Stock of the Company, one year after the date on which such
Stockholder may first sell such Registrable Shares under Rule 144 (provided that
such Stockholder is still able, at such time, to sell such Registrable Shares
under Rule 144), or (D) when such Registrable Shares have ceased to be
outstanding.
"REGISTRATION DATE" shall mean the date upon which the Registration
Statement pursuant to which the Company shall have initially registered shares
of Common Stock under the Securities Act for sale to the public shall have been
declared effective.
"REGISTRATION STATEMENT" shall mean any registration statement of
the Company which covers any of the Registrable Shares, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"REPRESENTATIVE" of a Person shall be construed broadly and shall
include such Person's partners, officers, directors, employees, agents, counsel,
accountants and other representatives.
"RESTRICTED SECURITIES" shall mean, at any time and with respect to
any Stockholder, the Common Stock Equivalents and any other securities received
with respect to any such Common Stock Equivalents, which are held by such
Stockholder and which theretofore have not been sold to the public pursuant to a
Registration Statement or pursuant to Rule 144.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act
or any successor rule thereto.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
or any successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same may from time to time be in
effect.
"STOCKHOLDERS" shall mean, collectively, all of the Investors and
the Management Stockholders.
"STOCKHOLDERS' COUNSEL" shall have the meaning ascribed to it in
SECTION 6(A)(II).
"SUSPENSION PERIOD" shall have the meaning ascribed to it in SECTION
10.
"TRANSFER" shall mean any disposition of any Restricted Securities
or of any interest therein which would constitute a sale thereof within the
meaning of the Securities Act, other than any such disposition pursuant to a
Registration Statement and in compliance with all applicable state securities
and "blue sky" laws.
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SECTION 2. DEMAND REGISTRATION.
(a) At any time after the earlier to occur of (i) the third
anniversary of this Agreement and (ii) that date which is six (6) months
after the date upon which the Registration Statement for use in the
Initial Public Offering shall have been declared effective, if the Company
shall be requested the holders of at least 60 percent of the Restricted
Securities (based on Common Stock Equivalents) held by all Investors to
effect the registration under the Securities Act of Registrable Shares, it
shall within 10 days of such request give written notice to the other
Stockholders of its requirement to so register such Registrable Shares
and, upon the written request, delivered to the Company within 30 days
after delivery of any such notice by the Company, of the other
Stockholders to include in such registration Registrable Shares (which
request shall specify the number of Registrable Shares proposed to be
included in such registration), the Company shall, subject to SECTION 2(b)
below, promptly thereafter use its best efforts to effect such
registration under the Securities Act of the Registrable Shares which the
Company has been so requested to register for sale in accordance with the
method of distribution specified in the initiating request. If such method
of distribution is an underwritten Public Offering, the Company may
designate the managing underwriter for such offering, subject to the
approval of those Stockholders holding a majority of the Registrable
Shares requested to be included in such offering (which approval shall not
be unreasonably withheld).
(b) Anything contained in SECTION 2(a) to the contrary
notwithstanding, the Company shall not be obligated to effect pursuant to
SECTION 2(a) any registration under the Securities Act except in
accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts
to file and cause to become effective (A) more than two Registration
Statements initiated pursuant to SECTION 2(a); PROVIDED HOWEVER,
that if the Investors were unable to sell at least 90% of the
Registrable Shares requested to be included in the last registration
pursuant to SECTION 2(a) as a result of an underwriter's cutback,
then additional registrations shall be added to this SECTION 2(b)(I)
until the foregoing condition is satisfied, or (B) any Registration
Statement during any period in which any other registration
statement (other than on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto) pursuant to which
Primary Shares are to be or were sold has been filed and not
withdrawn or has been declared effective within the prior 180 days;
(ii) the Company may delay the filing or effectiveness of any
Registration Statement for a period of up to 90 days after the date
of a request for registration pursuant to SECTION 2(a) if at the
time of such request the Company is engaged, or proposes to engage,
in a Material Transaction; and
(iii) with respect to any registration pursuant to SECTION
2(a), the Company may include in such registration any Primary
Shares or Other Shares; PROVIDED, HOWEVER, that if the managing
underwriter advises the Company that the
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inclusion of all Registrable Shares, Primary Shares and Other Shares
proposed to be included in such registration would interfere with
the successful marketing (including pricing) of all such securities,
then the number of Registrable Shares, Primary Shares and Other
Shares proposed to be included in such registration shall be
included in the following order:
(A) FIRST, the Registrable Shares held by the
Stockholders requesting that their Registrable Shares be
included in such registration pursuant to SECTION 2(a), PRO
RATA based upon the number of Restricted Securities owned by
each such Stockholder at the time of such registration;
PROVIDED, HOWEVER, that if the managing underwriter advises
the Company that the PRO RATA inclusion of Registrable Shares
held by all Management Stockholders would interfere with the
successful marketing (including pricing) of such securities,
then the managing underwriter may reduce that percentage of
Registrable Shares held by Management Stockholders that may be
included PRO RATA in the proposed registration, which
percentage may be smaller than the percentage of Registrable
Shares held by the Investors to be included in such
registration;
(B) SECOND, the Primary Shares; and
(C) THIRD, the Other Shares.
(c) A requested registration under this SECTION 2 may be rescinded
prior to such registration being declared effective by the Commission by
written notice to the Company from those Stockholders who initiated the
request; PROVIDED, HOWEVER, that such rescinded registration shall not
count as a registration initiated pursuant to this SECTION 2 for purposes
of subclause (A) of clause (i) of subsection (b) above if the Company
shall have been reimbursed (pro rata by the Stockholders requesting
registration or in such other proportion as they may agree) for all
out-of-pocket expenses incurred by the Company in connection with such
rescinded registration; PROVIDED FURTHER, HOWEVER, that such Stockholders
shall not be required to reimburse the Company if such rescission shall
have been caused by, or made in response to, the material adverse effect
of an event on the business, prospects, properties, condition (financial
or otherwise) or operations of the Company.
SECTION 3. REGISTRATIONS ON FORM S-3.
(a) Subject to paragraph (c) below, at such time as the Company
shall have qualified for the use of Form S-3 promulgated under the
Securities Act or any successor form thereto, the holders of at least 60
percent of the Restricted Securities (based on Common Stock Equivalents)
held by all Investors shall have the right to request in writing no more
than three registrations on Form S-3, or such successor form, and to
effect a registration under the Securities Act of Registrable Shares in
accordance with this Section.
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(b) If the Company shall be requested by the Stockholders to effect
a registration under the Securities Act of Registrable Shares in
accordance with this Section, then the Company shall promptly give written
notice of such proposed registration to all holders of Restricted
Securities and shall offer to include in such proposed registration any
Registrable Shares requested to be included in such proposed registration
by such holders who respond in writing to the Company's notice within 30
days after delivery of such notice (which response shall specify the
number of Registrable Shares proposed to be included in such
registration). The Company shall promptly use its commercially reasonable
efforts to effect such registration on Form S-3 of the Registrable Shares
which the Company has been so requested to register
(c) The Company shall not be obligated to effect any registration
under the Securities Act requested by the Stockholders under this Section
except in accordance with the following provisions:
(i) the Company shall not be obligated to effect any such
registration initiated pursuant to SECTION 3(a) if (A) the Company
shall reasonably conclude that the anticipated gross offering price
of all Registrable Shares to be included therein would be less than
$500,000, (B) such registration is requested within six (6) months
after a registered offering of the Company in which any of the
Stockholders were given the opportunity to participate or (C) the
Company shall have effected two or more Registration Statements on
Form S-3 pursuant to this SECTION 3 during the preceding 12-month
period; and
(ii) the Company may delay the filing or effectiveness of any
Registration Statement pursuant to this Section for a period not to
exceed 90 days after the date of a request for registration if the
Company's Board of Directors has determined that such registration
would have a material adverse effect upon the Company or its then
current business plans; PROVIDED, HOWEVER, that the Company may
cause such delay only once during any 360-day period.
(d) A requested registration under this SECTION 3 may be rescinded
prior to such registration being declared effective by the Commission by
written notice to the Company by the Stockholders requesting such
registration and such rescinded registration shall not count as a
registration initiated pursuant to SECTION 3 if (i) the Stockholders
initiating such request shall have reimbursed the Company for all
out-of-pocket expenses incurred by the Company in connection with such
rescinded registration or (ii) such rescinded registration results from a
material adverse change to the business, prospects, operation or financial
condition of the Company (in which case such Stockholders shall not be
required to so reimburse the Company).
(e) A requested registration on Form S-3 or any such successor form
in compliance with this SECTION 3 shall not count as a registration
statement initiated pursuant to SECTION 2 but shall otherwise be treated
as a registration initiated pursuant to, and shall, except as otherwise
expressly provided in this SECTION 3, be subject to SECTION 2.
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SECTION 4. PIGGYBACK REGISTRATION.
If the Company at any time proposes for any reason to register
Primary Shares or Other Shares under the Securities Act (other than on Form S-4
or Form S-8 promulgated under the Securities Act or any successor forms
thereto), it shall promptly give written notice to each Stockholder of its
intention so to register the Primary Shares or Other Shares and, upon the
written request, given within 20 days after delivery of any such notice by the
Company, of any such Stockholder to include in such registration Registrable
Shares (which request shall specify the number of Registrable Shares proposed to
be included in such registration), the Company shall use its best efforts to
cause all such Registrable Shares to be included in such registration on the
same terms and conditions as the securities otherwise being sold in such
registration; PROVIDED, HOWEVER, that if the managing underwriter advises the
Company that the inclusion of all Registrable Shares or Other Shares proposed to
be included in such registration would interfere with the successful marketing
(including pricing) of Primary Shares proposed to be registered by the Company,
then the number of Primary Shares, Registrable Shares and Other Shares proposed
to be included in such registration shall be included in the following order:
(i) FIRST, the Primary Shares;
(ii) SECOND, the Registrable Shares held by the Stockholders
requesting that their Registrable Shares be included in such
registration, PRO RATA based upon the number of Restricted
Securities owned by each such Stockholder at the time of such
registration; PROVIDED, HOWEVER, that if the managing underwriter
advises the Company that the PRO RATA inclusion of Registrable
Shares held by all Management Stockholders would interfere with the
successful marketing (including pricing) of such securities, then
the managing underwriter may reduce that percentage of Registrable
Shares held by Management Stockholders that may be included PRO RATA
in the proposed registration, which percentage may be smaller than
the percentage of Registrable Shares held by the Investors to be
included in such registration; and
(iii) THIRD, the Other Shares.
SECTION 5. HOLDBACK AGREEMENT.
(a) If the Company at any time shall register shares of Common Stock
under the Securities Act in an underwritten offering (i) pursuant to an
Initial Public Offering or (ii) pursuant to any other registration under
the Securities Act (other than on Form S-4 or Form S-8 promulgated under
the Securities Act or any successor forms thereto), the Stockholders shall
not sell, make any short sale of, grant any option for the purchase of, or
otherwise dispose of any Restricted Securities (other than those
Registrable Shares included in such registration pursuant to SECTIONS 2, 3
or 4) without the prior written consent of the managing underwriters of
such offering for a period as shall be determined by the managing
underwriters, which period cannot begin more than 7 days prior to the
effectiveness of such Registration Statement and cannot last more than 90
days (180 days in the case of the Company's Initial Public Offering) after
the effective date of such
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Registration Statement; PROVIDED HOWEVER, that the restrictions on
transfer of Restricted Securities under this Section shall not be imposed
upon the Stockholders more than once during any consecutive twelve month
period.
(b) If the Company at any time pursuant to SECTIONS 2, 3 or 4 of
this Agreement shall register under the Securities Act Registrable Shares
held by Stockholders for sale to the public pursuant to an underwritten
offering, the Company shall not, without the prior written consent of a
Majority of Investors, effect any public sale or distribution of
securities similar to those being registered, or any securities
convertible into or exercisable or exchangeable for such securities, for
such period as shall be determined by the managing underwriters, which
period shall not begin more than 7 days prior to the effectiveness of the
Registration Statement pursuant to which such public offering shall be
made and shall not last more than 90 days (180 days in the case of the
Company's Initial Public Offering) after the closing of sale of shares
pursuant to such Registration Statement (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or any
successor form).
SECTION 6. PREPARATION AND FILING.
(a) If and whenever the Company is under an obligation pursuant to
the provisions of this Agreement to use its best efforts to effect the
registration of any Registrable Shares, the Company shall, as
expeditiously as practicable:
(i) use its best efforts to cause a Registration Statement
that registers such Registrable Shares to become and remain
effective for a period of 90 days or until all of such Registrable
Shares have been disposed of (if earlier);
(ii) furnish, at least five business days before filing a
Registration Statement that registers such Registrable Shares, a
Prospectus relating thereto and any amendments or supplements
relating to such Registration Statement or Prospectus, to one
counsel selected by a Majority of Investors (the "STOCKHOLDERS'
COUNSEL") copies of all such documents proposed to be filed (it
being understood that such five-business-day period need not apply
to successive drafts of the same document proposed to be filed so
long as such successive drafts are supplied to such counsel in
advance of the proposed filing by a period of time that is customary
and reasonable under the circumstances);
(iii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used
in connection therewith as may be necessary to keep such
Registration Statement effective for the lesser of a period of 90
days or until all of such Registrable Shares have been disposed of
(if earlier) and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of such Registrable
Shares;
(iv) notify the Stockholders' Counsel promptly in writing (A)
of any comments by the Commission with respect to such Registration
Statement or
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Prospectus, or any request by the Commission for the amending or
supplementing thereof or for additional information with respect
thereto, (B) of the issuance by the Commission of any stop order
suspending the effectiveness of such Registration Statement or
Prospectus or any amendment or supplement thereto or the initiation
of any proceedings for that purpose and (C) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of such Registrable Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purposes;
(v) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of
such jurisdictions as any seller of Registrable Shares reasonably
requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller of
Registrable Shares to consummate the disposition in such
jurisdictions of the Registrable Shares owned by such seller;
PROVIDED, HOWEVER, that the Company will not be required to qualify
generally to do business, subject itself to general taxation or
consent to general service of process in any jurisdiction where it
would not otherwise be required so to do but for this clause (v);
(vi) furnish to each seller of such Registrable Shares such
number of copies of a summary Prospectus or other Prospectus,
including a preliminary Prospectus, in conformity with the
requirements of the Securities Act, and such other documents as such
seller of Registrable Shares may reasonably request in order to
facilitate the public sale or other disposition of such Registrable
Shares;
(vii) use its best efforts to cause such Registrable Shares to
be registered with or approved by such other Governmental
Authorities as may be necessary by virtue of the business and
operations of the Company to enable the seller or sellers thereof to
consummate the disposition of such Registrable Shares;
(viii) notify on a timely basis each seller of such
Registrable Shares at any time when a Prospectus relating to such
Registrable Shares is required to be delivered under the Securities
Act within the appropriate period mentioned in clause (i) of this
SECTION 6 of the happening of any event as a result of which the
Prospectus included in such Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing and, at the request of such seller,
prepare and furnish to such seller a reasonable number of copies of
a supplement to or an amendment of such Prospectus as may be
necessary so that, as
(ix) thereafter delivered to the offerees of such shares, such
Prospectus shall not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
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(x) make available for inspection by any seller of such
Registrable Shares, any underwriter participating in any disposition
pursuant to such Registration Statement and any attorney, accountant
or other agent retained by any such seller or underwriter
(collectively, the "INSPECTORS"), all pertinent financial, business
and other records, pertinent corporate documents and properties of
the Company (collectively, the "RECORDS"), as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and
employees to supply all information (together with the Records, the
"INFORMATION") reasonably requested by any such Inspector in
connection with such Registration Statement (and any of the
Information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so
notified, shall not be disclosed by the Inspectors unless (A) the
disclosure of such Information is necessary to avoid or correct a
misstatement or omission in the Registration Statement, (B) the
release of such Information is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction, (C) such
Information has been made generally available to the public, and (D)
the seller of Registrable Shares agrees that it will, upon learning
that disclosure of such Information is sought in a court of
competent jurisdiction, give notice to the Company and allow the
Company, at the Company's expense, to undertake appropriate action
to prevent disclosure of the Information deemed confidential);
(xi) use its best efforts to obtain from its independent
certified public accountants a "cold comfort" letter in customary
form and covering such matters of the type customarily covered by
cold comfort letters;
(xii) use its best efforts to obtain, from its counsel, an
opinion or opinions in customary form (which shall also be addressed
to the Stockholders selling Registrable Shares in such
registration);
(xiii) provide a transfer agent and registrar (which may be
the same entity and which may be the Company) for such Registrable
Shares;
(xiv) issue to any underwriter to which any seller of
Registrable Shares may sell shares in such offering certificates
evidencing such Registrable Shares;
(xv) list such Registrable Shares on any national securities
exchange on which any shares of the Common Stock are listed or, if
the Common Stock is not listed on a national securities exchange,
use its best efforts to qualify such Registrable Shares for
inclusion on the automated quotation system of the National
Association of Securities Dealers, Inc. (the "NASD"), National
Market System ("NMS"), or such other national securities exchange as
the holders of a majority of such Registrable Shares shall request
included in such registration;
(xvi) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its securityholders, as
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soon as reasonably practicable, earnings statements which need not
be audited covering a period of 12 months beginning within three
months after the effective date of the Registration Statement, which
earnings statements shall satisfy the provisions of Section 11(a) of
the Securities Act; and
(xvii) use its best efforts to take all other steps necessary
to effect the registration of such Registrable Shares contemplated
hereby.
(b) each holder of Registrable Shares that sells Registrable Shares
pursuant to a registration under this Agreement agrees that during such
time as such seller may be engaged in a distribution of the Registrable
Shares, such seller shall comply with Regulation M promulgated under the
Exchange Act and pursuant thereto it shall, among other things: (i) not
engage in any stabilization activity in connection with the Securities of
the Company in contravention of such rules; (ii) distribute the
Registrable Shares under the registration statement solely in the manner
described in the registration statement; and (iii) cease distribution of
such Registrable Shares pursuant to such registration statement upon
receipt of written notice from the Company that the prospectus covering
the Registrable Shares contains any untrue statement of a material fact or
omits a material fact required to be stated therein or necessary to make
the statements therein not misleading.
SECTION 7. EXPENSES.
All reasonable expenses incurred by the Company in complying with
SECTION 6, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), fees and expenses of
complying with securities and blue sky laws, printing expenses, fees and
expenses of the Company's counsel and accountants and fees and expenses of the
Stockholders' Counsel, shall be paid by the Company; PROVIDED, HOWEVER, that all
underwriting discounts and selling commissions applicable to the Registrable
Shares shall not be borne by the Company but shall be borne by the seller or
sellers thereof, in proportion to the number of Registrable Shares sold by such
seller or sellers.
SECTION 8. INDEMNIFICATION.
(a) In connection with any registration of any Registrable Shares
under the Securities Act pursuant to this Agreement, the Company shall
enter into such reasonable customary indemnification agreements that
indemnify and hold harmless the seller of such Registrable Shares, each
underwriter, broker or any other Person acting on behalf of such seller,
each other Person, if any, who controls any of the foregoing Persons
within the meaning of the Securities Act and each Representative of any of
the foregoing Persons, against any losses, claims, damages or liabilities,
joint or several, to which any of the foregoing Persons may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement under which such Registrable
Shares were registered, any preliminary Prospectus or final Prospectus
contained therein, any
12
amendment or supplement thereto or any document incident to registration
or qualification of any Registrable Shares, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading or, with respect to any Prospectus, necessary to make the
statements therein in light of the circumstances under which they were
made not misleading, or any violation by the Company of the Securities Act
or state securities or blue sky laws applicable to the Company and
relating to action or inaction required of the Company in connection with
such registration or qualification under such state securities or blue sky
laws, and the Company shall promptly reimburse such seller, such
underwriter, such broker, such controlling Person or such Representatives
for any reasonable legal or other expenses incurred by any of them in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the Company shall not be
liable to any such Person to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in said Registration
Statement, preliminary Prospectus, amendment, supplement or document
incident to registration or qualification of any Registrable Shares in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such Person, or a Person
duly acting on their behalf, specifically for use in the preparation
thereof; PROVIDED FURTHER, HOWEVER, that the foregoing indemnity agreement
is subject to the condition that, insofar as it relates to any untrue
statement, allegedly untrue statement, omission or alleged omission made
in any preliminary Prospectus but eliminated or remedied in the final
Prospectus (filed pursuant to Rule 424 of the Securities Act), such
indemnity agreement shall not inure to the benefit of any indemnified
party from whom the Person asserting any loss, claim, damage, liability or
expense purchased the Registrable Shares which are the subject thereof, if
a copy of such final Prospectus had been timely made available to such
Indemnified Person and such final Prospectus was not delivered to such
Person with or prior to the written confirmation of the sale of such
Registrable Shares to such Person.
(b) In connection with any registration of Registrable Shares under
the Securities Act pursuant to this Agreement, each seller of Registrable
Shares shall enter into such reasonable customary indemnification
agreements that indemnify and hold harmless (in the same manner and to the
same extent as set forth in the paragraph (a) of this SECTION 8) the
Company, each underwriter or broker involved in such offering, each other
seller of Registrable Shares under such Registration Statement, each
Person who controls any of the foregoing Persons within the meaning of the
Securities Act and any Representative of the foregoing Persons with
respect to any statement or omission from such Registration Statement, any
preliminary Prospectus or final Prospectus contained therein, any
amendment or supplement thereto or any document incident to registration
or qualification of any Registrable Shares, if such statement or omission
was made in reliance upon and in conformity with written information
furnished to the Company or such underwriter through an instrument duly
executed by such seller or a Person duly acting on their behalf
specifically for use in connection with the preparation of such
Registration Statement, preliminary Prospectus, final Prospectus,
amendment or
13
supplement; PROVIDED, HOWEVER, that the maximum amount of liability in
respect of such indemnification shall be limited, in the case of each
seller of Registrable Shares, to an amount equal to the net proceeds
actually received by such seller from the sale of Registrable Shares
effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this SECTION 8, such indemnified party will, if a claim in
respect thereof is made against an indemnifying party, give written notice
to the latter of the commencement of such action (PROVIDED HOWEVER, that
an indemnified party's failure to give such notice in a timely manner
shall only relieve the indemnification obligations of an indemnifying
party to the extent such indemnifying party is prejudiced by such
failure). In case any such action is brought against an indemnified party,
the indemnifying party will be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be responsible for
any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense thereof; PROVIDED, HOWEVER, that if any
indemnified party shall have reasonably concluded that there may be one or
more legal or equitable defenses available to such indemnified party which
are in addition to or conflict with those available to the indemnifying
party, or that such claim or litigation involves or could have an effect
upon matters beyond the scope of the indemnity agreement provided in this
SECTION 8, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party and such
indemnifying party shall reimburse such indemnified party and any Person
controlling such indemnified party for that portion of the fees and
expenses of any one lead counsel (PLUS appropriate special and local
counsel) retained by the indemnified party which are reasonably related to
the matters covered by the indemnity agreement provided in this SECTION 8.
(d) If the indemnification provided for in this SECTION 8 is held by
a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, claim, damage or liability referred to
herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amounts paid or
payable by such indemnified party as a result of such loss, claim, damage
or liability in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and of the indemnified
party on the other hand in connection with the statements or omissions
which resulted in such loss, claim, damage or liability as well as any
other relevant equitable considerations; PROVIDED, HOWEVER, that the
maximum amount of liability in respect of such contribution shall be
limited, in the case of each seller of Registrable Shares, to an amount
equal to the net proceeds actually received by such seller from the sale
of Registrable Shares effected pursuant to such registration. The relative
fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the indemnifying party or
by the
14
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) The indemnification and contribution provided for under this
Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party and will
survive the Transfer of securities.
SECTION 9. UNDERWRITING AGREEMENT.
(a) Notwithstanding the provisions of SECTIONS 5, 6 and 8, to the
extent that the Stockholders selling Registrable Shares in a proposed
registration shall enter into an underwriting or similar agreement, which
agreement contains provisions covering one or more issues addressed in
such Sections of this Agreement, the provisions contained in such Sections
of this Agreement addressing such issue or issues shall be of no force or
effect with respect to such registration, but this provision shall not
apply to the Company if the Company is not a party to the underwriting or
similar agreement.
(b) If any registration pursuant to SECTIONS 2 or 3 is requested to
be an underwritten offering, the Company shall negotiate in good faith to
enter into a reasonable and customary underwriting agreement with the
underwriters thereof. The Company shall be entitled to receive indemnities
from lead institutions, underwriters, selling brokers, dealer managers and
similar securities industry professionals participating in the
distribution, to the same extent as provided above with respect to
information so furnished in writing by such Persons specifically for
inclusion in any Prospectus or Registration Statement and to the extent
customary given their role in such distribution.
(c) No Stockholder may participate in any registration hereunder
that is underwritten unless such Stockholder agrees to (i) sell such
Stockholder's Registrable Shares proposed to be included therein on the
basis provided in any underwriting arrangements acceptable to the Company
and the Majority of Investors and (ii) as expeditiously as possible,
notify the Company of the occurrence of any event concerning such
Stockholder as a result of which the Prospectus relating to such
registration contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
SECTION 10. SUSPENSION.
Anything contained in this Agreement to the contrary
notwithstanding, the Company may (not more than once with respect to each
registration), by notice in writing to each holder of Registrable Shares to
which a Prospectus relates, require such holder to suspend, for up to 90 days
(the "SUSPENSION PERIOD"), the use of any Prospectus included in a Registration
Statement filed under SECTIONS 2, 3 or 4 if a Material Transaction exists that
would require an amendment to such Registration Statement or supplement to such
Prospectus (including any such amendment or supplement made through
incorporation by reference to a report filed under
15
Section 13 of the Exchange Act). The period during which such Prospectus must
remain effective shall be extended by a period equal to the Suspension Period.
The Company may (but shall not be obligated to) withdraw the effectiveness of
any Registration Statement subject to this provision.
SECTION 11. INFORMATION BY HOLDER.
Each holder of Registrable Shares to be included in any registration
shall furnish to the Company and the managing underwriter such written
information regarding such holder and the distribution proposed by such holder
as the Company or the managing underwriter may reasonably request in writing and
as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
SECTION 12. EXCHANGE ACT COMPLIANCE.
From and after the Registration Date or such earlier date as a
registration statement filed by the Company pursuant to the Exchange Act
relating to any class of the Company's securities shall have become effective,
the Company shall comply with all of the reporting requirements of the Exchange
Act (whether or not it shall be required to do so) and shall comply with all
other public information reporting requirements of the Commission which are
conditions to the availability of Rule 144 for the sale of the Common Stock. The
Company shall cooperate with each Stockholder in supplying such information as
may be necessary for such Stockholder to complete and file any information
reporting forms presently or hereafter required by the Commission as a condition
to the availability of Rule 144.
SECTION 13. NO CONFLICT OF RIGHTS.
The Company represents and warrants to the Stockholders that the
registration rights granted to the Stockholders hereby do not conflict with any
other registration rights granted by the Company. The Company shall not, after
the date hereof, grant any registration rights which conflict with or impair, or
have any priority over, the registration rights granted hereby. In any
underwritten public offering, the managing underwriter shall be a nationally
recognized investment banking firm selected by the Company, and reasonably
acceptable to a Majority of Investors if the Investors would have the right
(prior to giving effect to any cutbacks) to include Registrable Shares in such
public offering.
SECTION 14. TERMINATION.
This Agreement shall terminate and be of no further force or effect
when there shall not be any Restricted Securities; PROVIDED HOWEVER, that
SECTIONS 7 and 8 shall survive the termination of this Agreement.
SECTION 15. SUCCESSORS AND ASSIGNS.
This Agreement shall bind and inure to the benefit of the Company
and the Stockholders and, subject to SECTION 16, their respective successors and
assigns.
16
SECTION 16. ASSIGNMENT.
Each Stockholder may assign its rights hereunder to any purchaser
from such Stockholder of Restricted Securities; PROVIDED, HOWEVER, that such
purchaser shall, as a condition to the effectiveness of such assignment, be
required to execute a counterpart to this Agreement agreeing to be treated as an
Investor or Management Stockholder hereunder, as applicable, whereupon such
purchaser shall have the benefits of, and shall be subject to the restrictions
contained in, this Agreement as an Investor or Management Stockholder, as
applicable.
SECTION 17. ENTIRE AGREEMENT.
This Agreement contains the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings with respect hereto, all of which are hereby terminated in their
entirety and of no further force or effect.
SECTION 18. NOTICES.
All notices, requests, consents and other communications hereunder
to any party shall be deemed to be sufficient if contained in a written
instrument and shall be deemed to have been duly given when delivered in Person,
by telex, telegram or telecopy, by overnight courier, or by first class
registered or certified mail, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by the addressee to the sender:
(i) if to the Company, to:
Jet Blue Airways Corporation
6322 South 0000 Xxxx, Xxxxx X-00
Xxxx Xxxx Xxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Xxxxxx Xxxxx
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
0000 Xxxx Xxxx
Xxx Xxxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
(ii) if to any Management Stockholder, to him or her at the
address set forth in the books of the Company;
17
with a copy to:
Xxxxxxx, Phlegler & Xxxxxxxx LLP
0000 Xxxx Xxxx
Xxx Xxxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
(iii) if to any Investor, to him, her or it at the address set
forth on SCHEDULE I or, if none, in the books of the Company.
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery, telex, telegram or
telecopy, on the date of such delivery, (b) in the, case of overnight courier,
on the next business day, and (c) in the case of mailing, on the fifth business
day following such mailing.
SECTION 19. MODIFICATIONS; AMENDMENTS; WAIVERS.
The terms and provisions of this Agreement may not be modified or
amended, nor may any provision applicable to the Stockholders be waived, except
pursuant to a writing signed by (i) the Company, (ii) Investors holding 66 2/3%
of the Common Stock Equivalents of the Company held by all Investors and (iii)
Management Stockholders holding a majority of the Common Stock held by all
Management Stockholders; PROVIDED, HOWEVER, that (A) any such amendment,
modification, or waiver that would adversely affect the rights hereunder of any
Stockholder, in its capacity as a Stockholder, without similarly affecting the
rights hereunder of all Stockholders of such class, in their capacities as
Stockholders of such class, shall not be effective as to such Stockholder
without its prior written consent, (B) SCHEDULE I to this Agreement shall be
deemed to be automatically amended from time to time to reflect the addition to
this Agreement of any Person identified in clause (ii) of the definition of
Investors and (C) SCHEDULE II to this Agreement shall be deemed to be
automatically amended from time to time to reflect the addition to this
Agreement of any Person identified in clause (ii) of the definition of
Management Stockholder.
18
SECTION 20. HEADINGS.
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
SECTION 21. SEVERABILITY.
It is the desire and intent of the parties that the provisions of
this Agreement be enforced to the fullest extent permissible under the law and
public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any provision of this Agreement would be held in any
jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 22. GOVERNING LAW; ETC.
All questions concerning the construction, interpretation and
validity of this Agreement shall be governed by and construed and enforced in
accordance with the domestic laws of the State of New York, without giving
effect to any choice or conflict of law provision or rule (whether in the State
of New York or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of New York. In furtherance of the
foregoing, the internal law of the State of New York will control the
interpretation and construction of this Agreement, even if under such
jurisdiction's choice of law or conflict of law analysis, the substantive law of
some other jurisdiction would ordinarily apply.
SECTION 23. COUNTERPARTS; VALIDITY.
This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which taken together shall constitute
one and the same agreement, and telecopied signatures shall be effective. The
failure of any Person holding Registrable Shares to execute this Agreement shall
not render this Agreement invalid as between the Company and any other Person
holding Registrable Shares.
* * * *
19
IN WITNESS WHEREOF, the parties hereto have executed this Amended
and Restated Registration Rights Agreement on the date first written above.
JET BLUE AIRWAYS CORPORATION
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Executive Officer
CHASE NEW AIR INVESTORS (GC), LLC
By: Chase Venture Capital Associates, L.P.,
its Managing Member
By: Chase Capital Partners
its General Partner
By: illegible
------------------------------------------
Name:
Title
WESTON NEW AIR HOLDINGS
By:
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Partner
QUANTUM INDUSTRIAL PARTNERS LDC
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Attorney-in-Fact
[Signature Page to Amended and Restated Registration Rights Agreement]
SFM DOMESTIC INVESTMENTS LLC
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Attorney-in-Fact
NMS CAPITAL, L.P., a Delaware Limited
Partnership
By: NMS Capital Management LLC,
its General Partner
By: /s/ Xxxxxx X. XxXxxxxxx
---------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: A Member
BAS CAPITAL FUNDING CORPORATION
By: /s/ Xxxxxx X. XxXxxxxxx
---------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: CFO
BANCBOSTON VENTURES INC.
By: /s/ Xxx X. Tesani
---------------------------------------
Name: Xxx X. Tesani
Title: Managing Director
[Signature Page to Amended and Restated Registration Rights Agreement]
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx and Company Incorporated as
Investment Advisor
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
MASSMUTUAL HIGH YIELD PARTNERS II, LLC
By: HYP Management Inc. as managing member
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
MASSMUTUAL CORPORATE VALUE PARTNERS LIMITED
By: Xxxxx X. Xxxxxx and Company Incorporated
under delegated authority from Massachusetts
Mutual Life Insurance Company as Investment
Manager
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
NEELEMAN HOLDINGS, LC
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------------
Name:
Title:
[Signature Page to Amended and Restated Registration Rights Agreement]
XXXXXXXX VENTURES III, LLC
By: /s/ Xxxx Xxxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Member
XXXXX HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
XXXXXX HOLDINGS, LLC
By: /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Manager
/s/ Xxxxx Xxxxxx
-----------------------------------------------
Xxxxx Xxxxxx
[Signature Page to Amended and Restated Registration Rights Agreement]
/s/ Xxxxx Xxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxx
/s/ Xxx Xxxxxx
--------------------------------------------
Xxx Xxxxxx
/s/ Xxxxx Xxxxx
--------------------------------------------
Xxxxx Xxxxx
/s/ Xxxxx Xxxxxxx
--------------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxx Xxxx
--------------------------------------------
Xxxxxx Xxxx
/s/ Xxxxxx Xxxxx Xxxxxx Xxxxx
--------------------------------------------
Xxxxxx Xxxxx
/s/ Xxxx Xxxx
--------------------------------------------
Xxxx Xxxx
/s/ Xxxxxx Land
--------------------------------------------
Xxxxxx Land
/s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
Xxxxx X. Xxxxxx
[Signature Page to Amended and Restated Registration Rights Agreement]
/s/ Xxxx Xxxx
--------------------------------------------
Xxxx Xxxx
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxx Xxxxxxxx
--------------------------------------------
Xxxx Xxxxxxxx
/s/ Xxxx Xxxxxxx
--------------------------------------------
Xxxx Xxxxxxx
ASHWOO CAPITAL PARTNERS II
/s/ Xxxxxxxx Twill
--------------------------------------------
By: Xxxxxxxx Twill
/s/ Xxxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxx
n/a
--------------------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx
--------------------------------------------
Xxx Xxxxxx
JAMESTICS LTD.
By: /s/ June X. Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Co-Manager
L&C DEVELOPMENT, LP
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Partner
[Signature Page to Amended and Restated Registration Rights Agreement]
SCHEDULE I
STOCKHOLDERS
Xxxx Xxxxxx BAS Capital Funding Corporation
Xxx Xxxxxx Quantum Industrial Partners LDC
BAS Capital Funding Corporation Xxxxxx Land
BancBoston Ventures, Inc. SFM Domestic Investments LLC
Chase New Air Investors Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxxx Usto Xxxxxx
Xxxxxx & Xxxxxx Xxxxx Weston New Air Holdings
Xxxxx Xxxxxxxx Xxxxxx Holdings LLC
Xxxxx Xxxxxxxxx/L&C Development, LP
Xxxxx Xxxxxxxx
Xxxxx Xxxxx
Gerluch & Co.
Jamestics Ltd.
Xxxx Xxxxxxxx/Xxxxxxxx Ventures III, LLC
Xxxxx Holdings
Xxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxxxx Twill
Xxxx Xxxx
Xxxxxx Xxxx
Mass Mutual Life Insurance Company
Xxxxxxx Xxxxxxx
Neeleman Holdings
SCHEDULE II
MANAGEMENT STOCKHOLDERS
Xxxxx Xxxxxx
Xxxx Xxxx
Xxx Xxxxxx
Xxxxx Xxxxx
Xxxxxx and Xxxxxx Xxxxx
Xxxx Xxxx
Xxxxxx Land
Xxxxx X. Xxxxxx
Usto Xxxxxx
Xxxxxxxx Twill
Xxxxx Xxxxx
Xxxxxx Holdings, LLC
Neeleman Holdings, XX
Xxxxx Holdings, LC
