EXHIBIT 4.7
SENIOR PREFERRED STOCK
REGISTRATION RIGHTS AGREEMENT
dated as of
June 30, 2000
among
XXXXXXX AIRCRAFT HOLDINGS, INC.
and
THE HOLDERS OF SENIOR PREFERRED STOCK PARTY HERETO
TABLE OF CONTENTS
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PAGE
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE 2
REGISTRATION RIGHTS
Section 2.01. Demand Registration . . . . . . . . . . . . . . . . . .3
Section 2.02. Incidental Registration . . . . . . . . . . . . . . . .5
Section 2.03. Holdback Agreements . . . . . . . . . . . . . . . . . .6
Section 2.04. Registration Procedures . . . . . . . . . . . . . . . .6
Section 2.05. Indemnification by the Company. . . . . . . . . . . . .9
Section 2.06. Indemnification by Participating Holders. . . . . . . 10
Section 2.07. Conduct of Indemnification Proceedings. . . . . . . . 10
Section 2.08. Contribution. . . . . . . . . . . . . . . . . . . . . 11
Section 2.09. Participation in Public Offering. . . . . . . . . . . 12
Section 2.10. Other Indemnification . . . . . . . . . . . . . . . . 12
Section 2.11. Cooperation by the Company. . . . . . . . . . . . . . 13
ARTICLE 3
MISCELLANEOUS
Section 3.01. Entire Agreement. . . . . . . . . . . . . . . . . . . 13
Section 3.02. Binding Effect; Benefit . . . . . . . . . . . . . . . 13
Section 3.03. Assignability . . . . . . . . . . . . . . . . . . . . 13
Section 3.04. Amendment; Waiver; Termination. . . . . . . . . . . . 13
Section 3.05. Notices . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.06. Headings. . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.07. Counterparts. . . . . . . . . . . . . . . . . . . . . 15
Section 3.08. Applicable Law. . . . . . . . . . . . . . . . . . . . 15
Section 3.09. Specific Enforcement. . . . . . . . . . . . . . . . . 15
Section 3.10. Consent to Jurisdiction . . . . . . . . . . . . . . . 00
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XXXXXX XXXXXXXXX STOCK
REGISTRATION RIGHTS AGREEMENT
SENIOR PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT")
dated as of June 30, 2000 by and among XxXxxxx Aircraft Holdings, Inc., a
Delaware corporation (the "COMPANY"), and the initial holders named on the
signature pages hereto (the "INITIAL HOLDERS").
This Agreement is being entered into pursuant to a Securities Purchase
Agreement (the "SECURITIES PURCHASE AGREEMENT") dated the date hereof by and
among the Company, XxXxxxx Holdings Co. ("HOLDINGS") and the Initial Holders
providing for the purchase by the Initial Holders from the Company and Holdings
of 16% Senior Redeemable Exchangeable Preferred Stock of the Company (the
"SENIOR PREFERRED STOCK") and warrants to purchase common stock, par value $0.01
per share of Holdings (the "WARRANTS"). In order to induce the Initial Holders
to purchase the Senior Preferred Stock and the Warrants, the Company has agreed
to provide them and subsequent holders of Senior Preferred Stock with
registration rights with respect to the Senior Preferred Stock as set forth in
this Agreement.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. (a) The following terms, as used herein, have
the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with such
Person; PROVIDED that no stockholder of the Company shall be deemed an
Affiliate of any other stockholder of the Company solely by reason of any
investment in the Company. For the purpose of this definition, the term
"CONTROL" (including with correlative meanings, the terms "CONTROLLING",
"CONTROLLED BY" and "under common control with"), when used with respect to
any Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
"AFFILIATED EMPLOYEE BENEFIT TRUST" means any trust that is a successor
to the assets held by a trust established under an employee benefit plan
subject to ERISA or any other trust established directly or indirectly under
such plan or any other such plan having the same sponsor.
"BOARD" means the board of directors of the Company.
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"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are authorized by law to close.
"COMMON STOCK" means the common stock, par value $0.01 per share, of the
Company and any stock into which such Common Stock may thereafter be converted
or changed, and "COMMON SHARES" means shares of Common Stock.
"COMPANY SECURITIES" means the Common Stock and securities convertible into
or exchangeable for Common Stock, preferred stock and options, warrants or other
rights to acquire Common Stock, preferred stock or any other equity security
issued by the Company.
"HOLDER" means each Person (other than the Company) who owns any
Registrable Securities.
"PERSON" means an individual, corporation, limited liability company,
partnership, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"PUBLIC OFFERING" means any primary or secondary public offering of
Registrable Securities of the Company pursuant to an effective registration
statement under the Securities Act other than pursuant to a registration
statement filed in connection with a transaction of the type described in Rule
145 of the Securities Act or for the purpose of issuing securities pursuant to
an employee benefit plan.
"REGISTRABLE SECURITIES" means at any time, with respect to any Holder, any
Senior Preferred Stock purchased under the Securities Purchase Agreement and any
securities issued or issuable in respect of such Senior Preferred Stock by way
of conversion, exchange, accretion, stock dividend, split or combination,
recapitalization, merger, consolidation or other reorganization or otherwise
until (i) a registration statement covering such Senior Preferred Stock has been
declared effective by the SEC and such Senior Preferred Stock has been disposed
of pursuant to such effective registration statement, (ii) such Senior Preferred
Stock is sold under circumstances in which all of the applicable conditions of
Rule 144 (or any similar provisions then in force) under the Securities Act are
met or (iii) such Senior Preferred Stock is otherwise transferred, the Company
has delivered a new certificate or other evidence of ownership for such Senior
Preferred Stock not bearing a restrictive legend and such Senior Preferred Stock
may be resold without volume limitations without subsequent registration under
the Securities Act.
"REGISTRATION EXPENSES" means (i) all registration and filing fees, (ii)
fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities registered), (iii) printing
expenses, (iv) internal expenses of the Company (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), (v) reasonable fees and disbursements of counsel for the
Company and customary fees and expenses for independent certified public
accountants retained by the Company (including expenses relating to any comfort
letters or costs associated with the delivery by independent certified public
accountants of any comfort letter requested pursuant to Section 2.04(h) hereof),
(vi) the reasonable fees and expenses of any special experts retained by the
Company in connection with the applicable registration, (vii) reasonable fees
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and expenses of up to one counsel for the Holders participating in the offering
selected by Holders holding the majority of the Senior Preferred Stock to be
sold for the account of all Holders in the offering, (viii) fees and expenses in
connection with any review of underwriting arrangements by the National
Association of Securities Dealers, Inc. (the "NASD"), including fees and
expenses of any "QUALIFIED INDEPENDENT UNDERWRITER", and (ix) fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities; but shall not include any underwriting fees, discounts or
commissions attributable to the sale of Registrable Securities, or any
out-of-pocket expenses (except as set forth in clause (vii) above) of the
Holders (or the agents who manage their accounts) or any fees and expenses of
underwriter's counsel.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHELF REGISTRATION" means a shelf registration statement filed under Rule
415 under the Securities Act.
"SUBSIDIARY" means, with respect to any Person, any entity of which
ownership interests having ordinary voting power to elect a majority of the
board of directors or other Persons performing similar functions are at the time
directly or indirectly owned by such Person.
"UNDERWRITTEN PUBLIC OFFERING" means a firmly underwritten Public Offering.
ARTICLE 2
REGISTRATION RIGHTS
Section 2.01. DEMAND REGISTRATION. (a) If the Company shall receive a
written request by the holders of 40% of the outstanding Registrable Securities
(the "REQUISITE HOLDERS") that the Company effect the registration under the
Securities Act, which, at the option of the Requisite Holders, may be a Shelf
Registration or an Underwritten Public Offering, of all or a portion of such
Requisite Holders' Registrable Securities, and specifying the intended method of
disposition thereof, then the Company shall promptly give written notice of such
requested registration (a "DEMAND REGISTRATION") at least 10 days prior to the
anticipated filing date of the registration statement relating to such Demand
Registration to the Holders other than the Requisite Holders (the "OTHER
HOLDERS") and thereupon will use its best efforts to effect, as expeditiously as
possible, the registration under the Securities Act of:
(i) the Registrable Securities then held by the Requisite Holders
which the Company has been so requested to register by the Requisite
Holders; and
(ii) all other Registrable Securities of any Other Holder who has
requested the Company to register by written request received by the
Company within 5 days after the receipt by such Other Holder of such
written notice given by the Company,
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all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered; PROVIDED that, subject to Section 2.01(d) hereof, the Company shall
not be obligated to effect more than two Demand Registrations for the Holders.
In no event will the Company be required to effect more than one Demand
Registration within any four-month period.
(b) Promptly after the expiration of the 5-day period referred to in
Section 2.01(a)(ii) hereof, the Company will notify all the Holders to be
included in the Demand Registration of the other Holders and the number of
Registrable Securities requested to be included therein. The Requisite Holders
requesting a registration under this Section may, at any time prior to the
effective date of the registration statement relating to such registration,
revoke such request, without liability to any of the other Holders, by providing
a written notice to the Company revoking such request, in which case such
request, so revoked, shall be considered a Demand Registration unless the
participating Holders reimburse the Company for all costs incurred by the
Company in connection with such registration or unless such revocation arose out
of the fault of the Company.
(c) The Company will pay all Registration Expenses in connection with any
Demand Registration.
(d) A registration requested pursuant to this Section shall not be deemed
to have been effected unless the registration statement relating thereto (A) has
become effective under the Securities Act and (B) has remained effective for a
period of at least 180 days (or such shorter period in which all Registrable
Securities of the Holders included in such registration have actually been sold
thereunder); PROVIDED that if (i) after any registration statement requested
pursuant to this Section becomes effective (x) such registration statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court and (y) less than 75% of the
Registrable Securities included in such registration statement is sold
thereunder, or (ii) the Maximum Offering Size (as defined below) is reduced in
accordance with Section 2.01(e) such that less than 66 2/3% of the Registrable
Securities of the Holders sought to be included in such registration are
included, such registration statement shall be at the sole expense of the
Company and shall not be considered a Demand Registration and PROVIDED, FURTHER
that, in the event of any Black Out Period (as defined), such registration
statement will remain effective for a period of time equal to 180 days plus the
length of such Black Out Period.
(e) If a Demand Registration involves an Underwritten Public Offering and
the managing underwriter shall advise the Company and the Selling Holders that,
in its view, (i) the number and/or type of Registrable Securities requested to
be included in such registration (including any securities which the Company
proposes to be included which are not Registrable Securities) or (ii) the
inclusion of some or all of the Registrable Securities owned by the Holders, in
any such case, exceeds the largest number and/or type of securities which can be
sold without having an adverse effect on such offering, including the price at
which such securities can be sold (the "MAXIMUM OFFERING SIZE"), the Company
will include in such registration, in the priority listed below, up to the
Maximum Offering Size:
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(A) first, all Registrable Securities requested to be registered by
the Holders (allocated, if necessary for the offering not to exceed the
Maximum Offering Size, pro rata among such Holders on the basis of the
relative number of shares of Registrable Securities so requested to be
registered); and
(B) second, any securities proposed to be registered by the Company.
(f) Notwithstanding anything to the contrary in this Section 2.01, the
Company shall not be required to file, amend or supplement any registration
statement, any related prospectus or any document incorporated therein by
reference, for a period (a "BLACK OUT PERIOD") not to exceed, for so long as
this Agreement is in effect, an aggregate of 60 days in any calendar year, in
the event that (i) in the case of an amendment or supplement only, an event
occurs and is continuing as a result of which such registration statement
pursuant to a Demand Registration, any related prospectus or any document
incorporated therein by reference as then amended or supplemented would, in the
Company's good faith judgment, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
and (ii) in all cases, (A) the Company determines in its good faith judgment
that the disclosure of such event at such time would have a material adverse
effect on the business, operations or prospects of the Company or (B) the
disclosure otherwise relates to a material business transaction which has not
yet been publicly disclosed; PROVIDED that such Black Out Period shall be
extended for any period, not to exceed an aggregate of 30 days in any calendar
year, during which the SEC is reviewing any proposed amendment or supplement to
the registration statement, any related prospectus or any document incorporated
therein by reference which has been filed by the Company.
Section 2.02. INCIDENTAL REGISTRATION. (a) If the Company proposes to
register any Company Securities under the Securities Act (other than a
registration of Common Shares (A) issuable upon exercise of employee stock
options or in connection with any employee benefit or similar plan of the
Company or (B) in connection with a direct or indirect acquisition by the
Company of another company), whether or not for sale for its own account, it
will each such time, subject to the provisions of Section 2.02(b), give prompt
written notice at least 10 days prior to the anticipated filing date of the
registration statement relating to such registration to each Holder, which
notice shall set forth such Holder's rights under this Section 2.02 and shall
offer such Holders the opportunity to include in such registration statement
such number of Registrable Securities as each such Holder may request (an
"INCIDENTAL REGISTRATION"). Upon the written request of any such Holder made
within 5 days after the receipt of notice from the Company (which request shall
specify the number of Registrable Securities intended to be disposed of by such
Holder), the Company will use its best efforts to effect the registration under
the Securities Act of all Registrable Securities which the Company has been so
requested to register by such Holders, to the extent required to permit the
disposition of the Registrable Securities so to be registered; PROVIDED that (1)
if such registration involves an Underwritten Public Offering, all such Holders
requesting to be included in the Company's registration must sell their
Registrable Securities to the underwriters selected as provided in Section
2.04(f) on the same terms and conditions as apply to the Company and (2) if, at
any time after giving written notice of its intention to register any stock
pursuant to this Section 2.02(a) and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register such securities, the Company
shall give written notice to all such Holders and, thereupon,
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shall be relieved of its obligation to register any Registrable Securities in
connection with such registration (without prejudice, however, to the rights
of any Holder under Section 2.01). No registration effected under this
Section 2.02 shall relieve the Company of its obligations to effect a Demand
Registration to the extent required by Section 2.01. The Company will pay
all Registration Expenses in connection with each registration of Registrable
Securities requested pursuant to this Section 2.02.
(b) If a registration pursuant to this Section 2.02 involves an
Underwritten Public Offering (other than in the case of an Underwritten Public
Offering requested by a Holder in a Demand Registration, in which case the
provisions with respect to priority of inclusion in such offering set forth in
Section 2.01(e) shall apply) and the managing underwriter advises the Company
that, in its view, the number and/or type of shares of Registrable Securities
which the Company and the Holders intend to include in such registration exceeds
the Maximum Offering Size, the Company will include in such registration, in the
priority listed below, up to the Maximum Offering Size:
(i) first, so much of the securities proposed to be registered for
the account of the Company as would not cause the offering to exceed the
Maximum Offering Size; and
(ii) second, all Registrable Securities requested to be included in
such registration pursuant to Section 2.02 (allocated, if necessary for the
offering not to exceed the Maximum Offering Size, pro rata among such
Holders on the basis of the relative number of shares of Registrable
Securities requested to be so included).
Section 2.03. HOLDBACK AGREEMENTS. If any registration of Registrable
Securities shall be in connection with an Underwritten Public Offering, each
Holder agrees not to effect any public sale or distribution, including any sale
pursuant to Rule 144, or any successor provision, under the Securities Act, of
any Registrable Securities (in each case, other than as part of such
Underwritten Public Offering) during the 14 days prior to the effective date of
such registration statement (except as part of such registration) or during the
period after such effective date equal to the lesser of (i) such period of time
as agreed between such managing underwriter and the Company and (ii) 180 days
(such lesser period, the "APPLICABLE HOLDBACK PERIOD").
Section 2.04. REGISTRATION PROCEDURES. Whenever Holders request that any
Registrable Securities be registered pursuant to Section 2.01 or 2.02, the
Company will, subject to the provisions of such Sections, use its best efforts
to effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof as quickly as
practicable, and in connection with any such request:
(a) The Company will as expeditiously as possible prepare and file
with the SEC a registration statement on any form for which the Company
then qualifies or which counsel for the Company shall deem appropriate and
which form shall be available for the sale of the Registrable Securities to
be registered thereunder in accordance with the intended method of
distribution thereof, and use its best efforts to cause such filed
registration statement to become and remain effective for a period of not
less than 180 days.
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(b) The Company will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to
each Holder holding Registrable Securities covered by such registration
statement and each underwriter, if any, of the Registrable Securities
covered by such registration statement copies of such registration
statement as proposed to be filed, and thereafter the Company will furnish
to such Holder and underwriter, if any, such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference
therein), the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such Holder or
underwriter may reasonably request in order to facilitate the disposition
of the Registrable Securities owned by such Holder.
(c) After the filing of the registration statement, the Company will
promptly notify each Holder holding Registrable Securities covered by such
registration statement of any stop order issued or threatened by the SEC
and take all reasonable actions required to prevent the entry of such stop
order or to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify
the Registrable Securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions in the United
States as any Holder holding such Registrable Securities reasonably (in
light of such Holder's intended plan of distribution) requests and (ii)
cause such Registrable Securities to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of
the business and operations of the Company and do any and all other acts
and things that may be reasonably necessary or advisable to enable such
Holder to consummate the disposition of the Registrable Securities owned by
such Holder; PROVIDED that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it would not otherwise
be required to qualify but for this paragraph (d), (B) subject itself to
taxation in any such jurisdiction or (C) consent to general service of
process in any such jurisdiction.
(e) The Company will immediately notify each Holder holding such
Registrable Securities, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the occurrence of an
event requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading and promptly prepare and make available to each such Holder any
such supplement or amendment.
(f) (i) The Requisite Holders will have the right, in their sole
discretion, to select an underwriter or underwriters in connection with any
Public Offering resulting from the exercise by any such Requisite Holders
of a Demand Registration, which underwriter or underwriters may include any
Affiliate of any Holder and (ii) the Company will select an underwriter or
underwriters in connection with any other Public Offering. In connection
with any Public Offering, the Company will enter into customary agreements
(including an underwriting
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agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of Registrable
Securities in any such Public Offering, including the engagement of a
"qualified independent underwriter" in connection with the qualification
of the underwriting arrangements with the NASD.
(g) Upon the execution of confidentiality agreements in form and
substance satisfactory to the Company, the Company will make available for
inspection by any Holder and any underwriter participating in any
disposition pursuant to a registration statement being filed by the Company
pursuant to this Section 2.04 and any attorney, accountant or other
professional retained by any such Holder or underwriter (collectively, the
"INSPECTORS"), all financial 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 reasonably requested by any Inspectors
in connection with such registration statement. Records that the Company
determines, in good faith, to be confidential and that it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless
(i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such registration statement or (ii) the release
of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction. Each Holder agrees that information
obtained by it as a result of such inspections shall be deemed confidential
and shall not be used by it as the basis for any market transactions in the
Company Securities or its Affiliates unless and until such is made
generally available to the public. Each Holder further agrees that it
will, upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the Company,
at its expense, to undertake appropriate action to prevent disclosure of
the Records deemed confidential.
(h) The Company will furnish to each such Holder and to each such
underwriter, if any, a signed counterpart, addressed to such underwriter,
of (i) an opinion or opinions of counsel to the Company and (ii) a comfort
letter or comfort letters from the Company's independent public
accountants, each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case may be, as
a majority of such Holders or the managing underwriter therefor reasonably
requests.
(i) The Company will otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
stockholders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act.
The Company may require each such Holder to promptly furnish in writing to
the Company such information regarding the distribution of the Registrable
Securities as the Company may from time to time reasonably request and such
other information as may be legally required in connection with such
registration.
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Each such Holder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 2.04(e), such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to the registration statement covering such Registrable Securities until such
Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 2.04(e), and, if so directed by the Company, such Holder
will deliver to the Company all copies, other than any permanent file copies
then in such Holder's possession, of the most recent prospectus covering such
Registrable Securities at the time of receipt of such notice. In the event that
the Company shall give such notice, the Company shall extend the period during
which such registration statement shall be maintained effective (including the
period referred to in Section 2.04(a)) by the number of days during the period
from and including the date of the giving of notice pursuant to Section 2.04(e)
to the date when the Company shall make available to such Holder a prospectus
supplemented or amended to conform with the requirements of Section 2.04(e).
Each Holder agrees that, upon receipt of the notice from the Company of the
commencement of a Black Out Period (in each case, a "BLACK OUT NOTICE"), such
Person will forthwith discontinue disposition of Registrable Securities pursuant
to the applicable registration statement until such Person is advised in writing
by the Company of the termination of the Black Out Period. Each Person
receiving a Black Out Notice hereby agrees that it will either (i) destroy any
prospectuses, other than permanent file copies, then in such Person's possession
which have been replaced by the Company with more recently dated prospectuses or
(ii) deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Person's possession of the prospectus
covering such Registrable Securities that was current at the time of receipt of
the Black Out Notice.
Section 2.05. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Holder holding Registrable Securities covered
by a registration statement, its officers, directors and agents, and each
person, if any, who controls such Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or prospectus relating to the Registrable Securities (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished in writing to the Company by such Holder or on such Holder's behalf
expressly for use therein; PROVIDED that with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus, or in any prospectus, as the case may be, the indemnity agreement
contained in this paragraph shall not apply to the extent that any such loss,
claim, damage, liability or expense results from the fact that a current copy of
the prospectus (or, in the case of a prospectus, the prospectus as amended or
supplemented) was not sent or given to the person asserting any such loss,
claim, damage, liability or expense at or prior to the written confirmation of
the sale of the Registrable Securities concerned to such person if it is
determined that the Company has provided such prospectus and it was the
responsibility of such Holder to provide such person with a current copy of the
prospectus (or such amended or supplemented prospectus, as the case may be) and
such current copy of the prospectus (or such amended or supplemented prospectus,
as the case may be) would have cured the defect
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giving rise to such loss, claim, damage, liability or expense. The Company
also agrees to indemnify any underwriters of the Registrable Securities,
their officers and directors and each person who controls such underwriters
on substantially the same basis as that of the indemnification of the Holders
provided in this Section 2.05.
Section 2.06. INDEMNIFICATION BY PARTICIPATING HOLDERS. Each Holder
holding Registrable Securities included in any registration statement agrees,
severally but not jointly, to indemnify and hold harmless the Company, its
officers, directors and agents and each Person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Holder, but only (i) with respect to information furnished in writing by
such Holder or on such Holder's behalf expressly for use in any registration
statement or prospectus relating to the Registrable Securities, or any amendment
or supplement thereto, or any preliminary prospectus or (ii) to the extent that
any loss, claim, damage, liability or expense described in Section 2.05 results
from the fact that a current copy of the prospectus (or, in the case of a
prospectus, the prospectus as amended or supplemented) was not sent or given to
the Person asserting any such loss, claim, damage, liability or expense at or
prior to the written confirmation of the sale of the Registrable Securities
concerned to such Person if it is determined that it was the responsibility of
such Holder to provide such Person with a current copy of the prospectus (or
such amended or supplemented prospectus, as the case may be) and such current
copy of the prospectus (or such amended or supplemented prospectus, as the case
may be) would have cured the defect giving rise to such loss, claim, damage,
liability or expense. Each such Holder also agrees to indemnify and hold
harmless underwriters of the Registrable Securities, their officers and
directors and each Person who controls such underwriters on substantially the
same basis as that of the indemnification of the Company provided in this
Section 2.06. As a condition to including Registrable Securities in any
registration statement filed in accordance with Article 2 hereof, the Company
may require that it shall have received an undertaking reasonably satisfactory
to it from anyunderwriter to indemnify and hold it harmless to the extent
customarily provided by underwriters with respect to similar securities.
Section 2.07. CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
this Article 2, such Person (an "INDEMNIFIED PARTY") shall promptly notify the
Person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Party, and
shall assume the payment of all fees and expenses; PROVIDED that the failure of
any Indemnified Party so to notify the Indemnifying Party shall not relieve the
Indemnifying Party of its obligations hereunder except to the extent that the
Indemnifying Party is materially prejudiced by such failure to notify. In any
such proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) in the
reasonable judgment of such Indemnified Party representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local
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counsel) at any time for all such Indemnified Parties, and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of any
such separate firm for the Indemnified Parties, such firm shall be designated
in writing by the Indemnified Parties. The Indemnifying Party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent, or if there be a final judgment
for the plaintiff, the Indemnifying Party shall indemnify and hold harmless
such Indemnified Parties from and against any loss or liability (to the
extent stated above) by reason of such settlement or judgment. No
Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Party is or could have been a
party and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnifid Party from all liability arising out of such proceeding.
Section 2.08. CONTRIBUTION. If the indemnification provided for in this
Article 2 is unavailable to the Indemnified Parties in respect of any losses,
claims, damages or liabilities referred to herein, then each such Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages or liabilities (i) as between the Company and the Holders
holding Registrable Securities covered by a registration statement on the one
hand and the underwriters on the other, in such proportion as is appropriate to
reflect the relative benefits received by the Company and such Holders on the
one hand and the underwriters on the other, from the offering of the Registrable
Securities, or if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits but also
the relative fault of the Company and such Holders on the one hand and of such
underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations and (ii) as between the Company on the one
hand and each such Holder on the other, in such proportion as is appropriate to
reflect the relative fault of the Company and of each such Holder in connection
with such statements or omissions, as well as any other relevant equitable
considerations. The relative benefits received by the Company and such Holders
on the one hand and such underwriters on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
and such Holders bear to the total underwriting discounts and commissions
received by such underwriters, in each case as set forth in the table on the
cover page of the prospectus. The relative fault of the Company and such
Holders on the one hand and of such underwriterson the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and such Holders or
by such underwriters. The relative fault of the Company on the one hand and of
each such Holder on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 2.08 were determined by pro rata
allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount
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paid or payable by an Indemnified Party as a result of the losses, claims,
damages or liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 2.08, no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission, and no
Holder shall be required to contribute any amount in excess of the amount by
which the total price at which the Registrable Securities of such Holder were
offered to the public exceeds the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. Each such Holder's obligation to contribute
pursuant to this Section 2.08 is several in the proportion that the proceeds
of the offering received by such Holder bears to the total proceeds of the
offering received by all such Holders and not joint.
Section 2.09. PARTICIPATION IN PUBLIC OFFERING. No Person may participate
in any Public Offering hereunder unless such Person (a) agrees to sell such
Person's securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and
(b) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements and the provisions of this Agreement in
respect of registration rights.
Section 2.10. OTHER INDEMNIFICATION. Indemnification similar to that
specified herein (with appropriate modifications) shall be given by the Company
and each Holder participating therein with respect to any required registration
or other qualification of securities under any federal or state law or
regulation or governmental authority other than the Securities Act.
Section 2.11. COOPERATION BY THE COMPANY. In the event any Holder shall
transfer any Registrable Securities pursuant to Rule 144A under the Securities
Act, the Company shall cooperate, to the extent commercially reasonable, with
such Holder and shall provide to such Holder such information as such Holder
shall reasonably request.
ARTICLE 3
MISCELLANEOUS
Section 3.01. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto and supersedes all prior agreements and
understandings, oral and written, among the parties hereto with respect to the
subject matter hereof.
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Section 3.02. BINDING EFFECT; BENEFIT. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
successors, legal representatives and permitted assigns. Nothing in this
Agreement, expressed or implied, shall confer on any Person other than the
parties hereto, and their respective heirs, successors, legal representatives
and permitted assigns, any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
Section 3.03. ASSIGNABILITY. This Agreement shall not be assignable by
any party hereto, except that any Person acquiring Registrable Securities who
executes and delivers to the Company an agreement to be bound by this Agreement
and shall thenceforth be a "HOLDER". Any Holder who ceases to own beneficially
any Senior Preferred Stock shall cease to be bound by the terms hereof (other
than the provisions of Sections 2.05, 2.06, 2.07, 2.08, and 2.10 applicable to
such Holder with respect to any offering of Registrable Securities completed
before the date such Holder ceased to own any Registrable Securities).
Section 3.04. AMENDMENT; WAIVER; TERMINATION. No provision of this
Agreement may be waived except by an instrument in writing executed by the party
against whom the waiver is to be effective. No provision of this Agreement may
be amended or otherwise modified except by an instrument in writing executed by
the Company with the approval of the Board and Holders holding at least 75% of
the outstanding Registrable Securities.
Section 3.05. NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmissions and
shall be given,
if to the Company, to:
XxXxxxx Aircraft Holdings, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: R. Xxxx XxXxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxx-Xxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
if to any Initial Holder, to:
DLJ Investment Partners II, Inc.
000 Xxxx Xxxxxx
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Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
All notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding business day in the place of receipt.
Any notice, request or other written communication sent by facsimile
transmission shall be confirmed by certified mail, return receipt requested,
posted within one Business Day, or by personal delivery, whether courier or
otherwise, made within two Business Days after the date of such facsimile
transmission.
Any Person who becomes a Holder shall provide its address and fax number to
the Company, which shall promptly provide such information to each other Holder.
Section 3.06. HEADINGS. The headings contained in this Agreement are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
Section 3.07. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
Section 3.08. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICTS OF LAW RULES OF SUCH STATE.
Section 3.09. SPECIFIC ENFORCEMENT. Each party hereto acknowledges that
the remedies at law of the other parties for a breach or threatened breach of
this Agreement would be inadequate and, in recognition of this fact, any party
to this Agreement, without posting any bond, and in addition to all other
remedies which may be available, shall be entitled to obtain equitable relief in
the form of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy which may then be available.
Section 3.10. CONSENT TO JURISDICTION. Any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall be
brought in the United States District Court for the Southern District
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of New York or any other New York State court sitting in New York City, and
each of the parties hereby consents to the exclusive jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding in any such court or that any
such suit, action or proceeding which is brought in any such court has been
brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within
or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party as
provided in Section 3.05 shall be deemed effective service of process on such
party.
[SIGNATURE PAGES FOLLOW]
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXXX AIRCRAFT HOLDINGS, INC.
By:
---------------------------------
Name:
Title:
DLJ INVESTMENT PARTNERS II, L.P.
By: DLJ INVESTMENT PARTNERS II, INC., as
managing general partner
By:
---------------------------------
Name:
Title:
DLJ INVESTMENT PARTNERS, L.P.
By: DLJ INVESTMENT PARTNERS, INC. as,
managing general partner
By:
---------------------------------
Name:
Title:
S-2
DLJ INVESTMENT FUNDING II, INC.
By:
---------------------------------
Name:
Title:
DLJ ESC II, L.P.
By: DLJ LBO PLANS MANAGEMENT CORPORATION, as
managing general partner
By:
---------------------------------
Name:
Title:
