Exhibit 4.9
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made as of September
11, 1997, by and among WESTERN PACIFIC AIRLINES, INC., a Delaware corporation
(the "Company"), and each of XXXX PETROLEUM OF TEXAS, INC., a Delaware
corporation ("Xxxx"), and GFI COMPANY, a Nevada corporation ("GFI"). Each of
Xxxx and GFI are sometimes referred to herein as an "Investor" and collectively
as the "Investors"
R E C I T A L S:
WHEREAS, Xxxx is the wholly-owned subsidiary of Xxxx Petroleum Corporation,
a Delaware corporation ("HPC");
WHEREAS, Bank One Texas, N.A. (the "Bank") is prepared to extend a line of
credit to and loan the Company an amount equal to Ten Million Dollars
($10,000,000.00) pursuant to that certain Promissory Note (the "Note");
WHEREAS, as a condition precedent to the Bank's loan to the Company
pursuant to the Note, the Bank requires that HPC enter into an agreement (the
"Guaranty") whereby HPC unconditionally guarantees all of Company's obligations
under the Note;
WHEREAS, as a condition precedent to HPC's entering into the Guaranty, GFI
has entered into an agreement to contribute to HPC fifty percent (50%) of all
liabilities and obligations that may become payable under the Guaranty (the
"Contribution Agreement");
WHEREAS, in order to induce the HPC to enter into the Guaranty and GFI to
enter into the Contribution Agreement, the Company has agreed to indemnify and
reimburse HPC and GFI for all costs, expenses or other liabilities incurred by
such parties as set forth in that certain Reimbursement Agreement, dated as of
the date hereof, by and among the Company, HPC and GFI; and
WHEREAS, as further consideration to HPC and GFI for their entering into
and continued compliance with the terms of the Guaranty, the Company has agreed
to provide to each of the Investors certain registration rights under the
Securities Act of 1933, as amended, and the rules and regulations thereunder, or
any similar successor statute (collectively, the "Securities Act"), and
applicable state securities laws, all upon the terms and conditions stated
herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each of the
Investors hereby agree as follows:
1. DEFINITIONS.
(a) As used in this Agreement, the following terms shall have the
following meanings:
(i) "Affiliate" means a Person that, directly or indirectly, through
one or more intermediaries, controls, or is controlled by, or is under common
control with, a specified Person.
(ii) "Common Stock," means the Common Stock of the Company, par value
$0.001 per share, and any shares of capital stock issued or issuable as a
dividend on or in exchange for or otherwise with respect to the Common Stock.
(iii) "Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, limited liability company, joint
venture, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
(iv) "register," "registered," and "registration" refer to a
registration effected by preparing and filing a Registration Statement or
Statements in compliance with the Securities Act and pursuant to Rule 415 under
the Securities Act or any successor rule providing for offering securities on a
continuous basis ("Rule 415"), and the declaration or ordering of effectiveness
of such Registration Statement by the United States Securities and Exchange
Commission (the "Commission").
(v) "Purchase Period" means the period of time beginning on the date
hereof and ending on September 11, 2002.
(vi) "Registrable Securities" means (i) all shares of Common Stock
currently owned by an Investor and all shares of Common Stock issuable to such
Investor or which such Investor has the right to acquire upon conversion or
exercise of any warrants, options, stock purchase rights or other convertible
securities as of the date the applicable Registration Request (as defined in
Section 2(a)(i) below), and (ii) all shares of Common Stock purchased by such
Investor during the Purchase Period from the Company or an Affiliate of the
Company or any "joint filer" of such Investor for purposes of Section 13(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"); PROVIDED,
however, that Registrable Securities shall not include any shares of Common
Stock, whether owned by the Investor or issuable to such Investor upon
conversion or exercise of any warrants, options, stock purchase rights or other
convertible securities, that are otherwise subject to a registration obligation
on the part of the Company.
(vii) "Registration Statement" means a registration statement of the
Company under the Securities Act.
2. AGREEMENT TO REGISTER SHARES.
(a) In consideration of each of HPC's entering into and continued
compliance with the terms of the Guaranty and GFI's entering into and continued
compliance with the terms of the Contribution Agreement, the Company agrees and
covenants as follows:
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(i) the Company will, as soon as practicable any in any event
within 120 days following the receipt of a written request from an Investor
(each a "Registration Request"), file a Registration Statement with the
Commission to register under the Securities Act such Investor's resales of
the Registrable Securities included in the Registration Request; PROVIDED,
however, that each Investor shall have the right to make a Registration
Request only if the aggregate dollar value of the shares to be registered,
measured by the closing price of the Company's Common Stock as quoted on
the Nasdaq National Market (and as reported by The Wall Street Journal or,
if not reported thereby, by another authoritative source) on the trading
day immediately preceding the Registration Request, exceeds $ 1,000,000.00.
(ii) the Company will use its reasonable best efforts to cause
the Registration Statement to become effective as soon as practicable and
in any event within 180 days after the date of the Company's receipt of the
Registration Request; and
(iii) the Company will use its reasonable best efforts to keep the
Registration Statement effective pursuant to Rule 415 at all times until
the earlier of (A) the date on which all of the Registrable Securities have
been sold and (B) the date on which the Registrable Securities (in the
opinion of counsel to the Company in substance reasonably acceptable to the
Investor) may be sold without volume limitations in a public transaction
pursuant to an available exemption from the requirements of registration
under the Securities Act (the "Registration Period").
(b) Each of the Investors will cooperate with the Company in connection
with a registration of the Registrable Shares and will furnish (i) such
information as may be reasonably required by the Company or by the Commission in
connection therewith and (ii) such representations, undertakings and agreements
as may be reasonably required by the Commission in connection therewith.
(c) If any offering pursuant to a Registration Statement involves an
underwritten offering, the Investors who hold a majority in interest of the
Registrable Securities subject to such underwritten offering, shall have the
right to select one legal counsel and an investment banker or bankers and
manager or managers to administer the offering, which investment banker or
bankers or manager or managers shall be reasonably satisfactory to the Company.
3. ADDITIONAL OBLIGATIONS OF THE COMPANY RELATING TO THE REGISTRABLE
SECURITIES. In connection with the registration of the Registrable Securities,
the Company will have the following obligations:
(a) The Company will prepare and file with the Commission such
amendments (including post-effective amendments) and supplements to each
Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to keep the Registration Statement
effective at all times during the Registration Period, and, during such
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period, comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities of the Company covered by such
Registration Statement until such time as all of such Registrable Securities
have been disposed of in accordance with the intended methods of disposition by
the seller or sellers thereof as set forth in such Registration Statement.
(b) The Company shall furnish to each Investor (i) promptly after the
same is prepared and publicly distributed, filed with the Commission, or
received by the Company, one copy of each Registration Statement and any
amendment thereto, each preliminary prospectus and prospectus and each amendment
or supplement thereto, and, in the case of the Registration Statement referred
to in Section 2(a) above, each letter written by or on behalf of the Company to
the Commission or the staff of the Commission, and each item of correspondence
from the Commission or the staff of the Commission, in each case relating to
such Registration Statement (other than any portion of any thereof which
contains information for which the Company has sought confidential treatment),
and (ii) such number of copies of a prospectus, including a preliminary
prospectus, and all amendments and supplements thereto and such other documents
as such Investor may reasonably request in order to facilitate the disposition
of the Registrable Securities owned by such Investor.
(c) The Company will use its reasonable best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement, and, if such an order is issued, to obtain the
withdrawal of such order at the earliest possible moment and to notify each
Investor of the issuance of such order and the resolution thereof.
(d) The Company shall use reasonable efforts to (i) register and
qualify the Registrable Securities covered by each Registration Statement under
such other securities or "blue sky" laws of such jurisdictions in the United
States as the Investors who hold a majority in interest of the Registrable
Securities being offered reasonably request, (ii) prepare and file in those
jurisdictions such amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof, (iii) take such other actions as may be
necessary to maintain such registrations and qualifications in effect, and (iv)
take all other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions; PROVIDED, HOWEVER, that
the Company shall not be required in connection therewith or as a condition
thereto to (a) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify, (b) subject itself to general taxation in any
such jurisdiction, (c) file a general consent to service of process in any such
jurisdiction, (d) provide any undertakings that cause the Company undue expense
or burden, or (e) make any change in its charter or bylaws, which in each case
the Board of Directors of the Company determines to be contrary to the best
interests of the Company and its stockholders.
(e) In the event Investors who hold a majority-in-interest of the
Registrable Securities included in a Registration Request select underwriters
for the offering, the Company shall in good faith endeavor to negotiate to enter
into and perform its obligations under an
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underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
underwriters of such offering.
(f) As promptly as practicable after becoming aware of such event, the
Company shall notify each Investor of the happening of any event, of which the
Company has knowledge, as a result of which the prospectus included in a
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, and use its best
efforts promptly to prepare a supplement or amendment to such Registration
Statement to correct such untrue statement or omission, and deliver such number
of copies of such supplement or amendment to each Investor as such Investor may
reasonably request.
(g) The Company shall permit a single firm of counsel designated by the
Investors to review each Registration Statement and all amendments and
supplements thereto and documents incorporated by reference therein (as well as
all requests for acceleration of effectiveness thereof) a reasonable period of
time prior to their filing with the Commission, and not file any document in a
form to which such counsel reasonably objects.
(h) At the request of any Investor, the Company shall furnish, on the
date that Registrable Securities are delivered to an underwriter, if any, for
sale in connection with a Registration Statement or, if such securities are not
being sold by an underwriter, on the date of effectiveness thereof, a letter,
dated such date, from the Company's independent certified public accountants in
form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and the Investors.
(i) The Company shall make available for inspection by (i) any
Investor, (ii) any underwriter participating in any disposition pursuant to a
Registration Statement, (iii) one firm of attorneys and one firm of accountants
or other agents retained by the Investors and (iv) one firm of attorneys
retained by all such underwriters (collectively, the "Inspectors") all pertinent
financial and other records, and pertinent corporate documents and properties of
the Company (collectively, the "Records"), as shall be reasonably deemed
necessary by each Inspector to enable each Inspector to exercise its due
diligence responsibility, and cause the Company's officers, directors and
employees to supply all information which any Inspector may reasonably request
for purposes of such due diligence; PROVIDED, HOWEVER, that each Inspector shall
hold in confidence and shall not make any disclosure (except to an Investor) of
any Record or other information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so notified, unless
(a) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (b) the release of such
Records is ordered pursuant to a subpoena or other order from a court or
government body of competent jurisdiction, or (c) the information in such
Records has been made generally available to the public other than by disclosure
in violation of this or any other agreement. The Company shall not be required
to disclose any confidential
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information in such Records to any Inspector until and unless such Inspector
shall have entered into confidentiality agreements (in form and substance
satisfactory to the Company) with the Company with respect thereto,
substantially in the form of this Section 3(i). Each Investor agrees that it
shall, upon learning that disclosure of such Records is sought in or by a court
or governmental body of competent jurisdiction or through other means, give
prompt notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, the Records deemed confidential. Nothing herein shall be deemed to limit
the Investor's ability to sell Registrable Securities in a manner which is
otherwise consistent with applicable laws and regulations.
(j) The Company shall hold in confidence and not make any disclosure of
information concerning an Investor provided to the Company unless (i) disclosure
of such information is necessary to comply with federal or state securities
laws, (ii) the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release of
such information is ordered pursuant to a subpoena or other order from a court
or governmental body of competent jurisdiction, or (iv) such information has
been made generally available to the public other than by disclosure in
violation of this or any other agreement. The Company agrees that it shall,
upon learning that disclosure of such information concerning an Investor is
sought in or by a court or governmental body of competent jurisdiction or
through other means, give prompt notice to such Investor prior to making such
disclosure, and allow the Investor, at its expense, to undertake appropriate
action to prevent disclosure of, or to obtain a protective order for, such
information.
(k) The Company shall use its best efforts either to (i) cause all the
Registrable Securities covered by each Registration Statement to be listed on
each national securities exchange on which securities of the same class or
series issued by the Company are then listed, if any, if the listing of such
Registrable Securities is then permitted under the rules of such exchange, or
(ii) secure the designation and quotation, of all the Registrable Securities
covered by such Registration Statement on the Nasdaq-NMS or, if not eligible for
the Nasdaq-NMS on the Nasdaq SmallCap and, without limiting the generality of
the foregoing, to arrange for at least two market makers to register with the
National Association of Securities Dealers, Inc. ("NASD") as such with respect
to such Registrable Securities.
(l) The Company shall provide a transfer agent and registrar, which may
be a single entity, for the Registrable Securities not later than the effective
date of each Registration Statement.
(m) The Company shall cooperate with the Investors who hold Registrable
Securities being offered and the managing underwriter or underwriters, if any,
to facilitate the timely preparation and delivery of certificates (not bearing
any restrictive legends) representing Registrable Securities to be offered
pursuant to the applicable Registration Statement and enable such certificates
to be in such denominations or amounts, as the case may be, as the
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managing underwriter or underwriters, if any, or the Investors may reasonably
request and registered in such names as the managing underwriter or
underwriters, if any, or the Investors may request.
(n) The Company shall take all other reasonable actions necessary to
expedite and facilitate disposition by the Investors of Registrable Securities
pursuant to the applicable Registration Statement.
4. OBLIGATIONS OF THE INVESTORS.
In connection with the registration of the Registrable Securities, the
Investors shall have the following obligations:
(a) It shall be a condition precedent to the obligations of the Company
to complete the registration pursuant to this Agreement with respect to the
Registrable Securities of a particular Investor that such Investor shall furnish
to the Company such information regarding itself, the Registrable Securities
held by it and the intended method of disposition of the Registrable Securities
held by it as shall be reasonably required to effect the registration of such
Registrable Securities and shall execute such documents in connection with such
registration as the Company may reasonably request. At least three (3) business
days prior to the first anticipated filing date of a Registration Statement, the
Company shall notify each Investor of the information the Company requires from
each such Investor.
(b) Each Investor agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and filing of any
Registration Statement hereunder.
(c) No Investor may participate in any underwritten registration
hereunder unless such Investor (i) agrees to sell such Investor's Registrable
Securities on the basis provided in any underwriting arrangements in usual and
customary form entered into by the Company, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions and any expenses in excess of those payable by the
Company pursuant to Section 6 below.
5. INDEMNIFICATION
(a) Upon the registration of the Registrable Shares under the
Securities Act pursuant to this Agreement, the Company will indemnify and hold
harmless (i) each Investor and the directors, officers, partners, employees,
agents and each person who controls any Investor within
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the meaning of the Securities Act or the Exchange Act, if any, or (ii) any
Affiliate of the foregoing (collectively, the "Indemnified Persons"), against
any losses, claims, damages or liabilities, joint or several, to which any
Indemnified Person 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 any untrue statement or alleged untrue
statement of any material fact contained in or incorporated by reference into
such Registration Statement or preliminary prospectus (if used prior to the
effective date of such Registration Statement) or final or summary prospectus
contained therein (if used during the period the Company is required to keep
such Registration Statement effective), or any amendment or supplement thereto,
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 made therein not misleading, and will promptly reimburse each
Indemnified Person for any legal or any other expenses reasonably incurred by it
(from time to time as such expenses are incurred) in connection with
investigating or defending any such action or claim (excluding any amounts paid
in settlement of any litigation, commenced or threatened, if such settlement is
effected without the prior written consent of the Company, which shall not be
unreasonably withheld); provided, however, that the Company will not be liable
to a particular Indemnified Person in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon (i) an
untrue statement or omission or alleged omission made in the applicable
Registration Statement, any preliminary prospectus or the final or summary
prospectus or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by that Indemnified
Person; or (ii) any act or action of that Indemnified Person other than as a
selling shareholder under such Registration Statement.
(b) Upon the registration of the Registrable Shares under the
Securities Act pursuant to this Agreement, each Investor shall indemnify and
hold harmless the Company, each of the Company's directors, officers, employees
and agents, and each other person, if any, who controls the Company under the
meaning of the Exchange Act, against any losses, claims, damages or liabilities,
joint or several, to which the Company or any such director, officer, or
controlling person 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, any untrue statement or alleged untrue
statement of any material fact contained in such Registration Statement or
preliminary prospectus or final or summary prospectus contained therein, or any
amendment or supplement thereto, 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 made therein not misleading, and
will promptly reimburse the Company, each such director, officer and controlling
person for any legal or other expenses reasonably incurred (from time to time as
such expenses are incurred) by them in connection with investigating or
defending any such action or claim (excluding any amounts paid in settlement of
any litigation, commenced or threatened, if such settlement is effected without
the prior written consent of Investors, which shall not be unreasonably
withheld); but in all such cases only if, and to the extent that, any such loss,
claim, damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission therein
made in
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reliance upon and in conformity with written information furnished to the
Company by such Investor or such Investor's Affiliates specifically for use in
the preparation thereof.
(c) Promptly after receipt by a party entitled to indemnification
hereunder of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
hereunder, notify the indemnifying party in writing of the commencement thereof.
In case any such action is brought against the indemnified party and it shall so
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in and, to the extent that it so chooses,
to assume the defense thereof with counsel reasonably satisfactory to such
indemnified party, and, after notice from the indemnifying party that it so
chooses, such indemnifying party shall not be liable for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof; provided, however, that if the indemnifying party fails to take
reasonable steps necessary to diligently defend such claim within twenty (20)
days after receiving notice from the indemnified party that the indemnified
party believes the indemnifying party has failed to take such steps, the
indemnified party may assume its own defense and the indemnifying party shall be
liable for any expenses therefor. The indemnity agreements in this Section
shall be in addition to any liabilities which the indemnifying parties may have
pursuant to law or contract.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section is for
any reason held to be unenforceable although applicable in accordance with its
terms, the Company and the Investors shall contribute to the losses, claims,
damages, liabilities and expenses for which such indemnification or
reimbursement is held unavailable in such proportion as is appropriate to
reflect the relative benefits to, and relative faults of, the Company, on the
one hand, and the Investors, on the other hand, in connection with the
transactions to which such indemnification or reimbursement relates. As among
themselves, the holders of the Registrable Shares shall contribute to amounts
payable by other selling holders, if any, in such manner as shall give effect,
to the extent permitted by law, to the provisions of this Section. 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.
6. EXPENSES; NO OBLIGATION FOR UNDERWRITTEN OFFERING.
All reasonable expenses, other than underwriting discounts and commissions,
incurred in connection with registrations, filings or qualifications pursuant to
Sections 2 and 3, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, the fees and disbursements of
counsel for the Company and the Investors, shall be borne by the Company.
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7. REPORTING OBLIGATIONS. With a view to making available to the
Investors the benefits of Rule 144 promulgated under the Securities Act or any
other similar rule or regulation of the Commission that may at any time permit
the investors to sell securities of the Company to the public without
registration ("Rule 144"), the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144; and
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act so long as the Company remains subject to such requirements and the
filing of such reports and other documents as required for the applicable
provisions of Rule 144.
8. WAIVER, MODIFICATION IN WRITING. No failure or delay on the part
of the Company or an Investor in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be
available to the Company or the Investors at law or in equity. The provisions
of this Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given without the written consent of the
Company, on the one hand, and, on the other hand, each of the Investors. Any
amendment, supplement or modification of or to any provision of this Agreement,
or any waiver of any provision of this Agreement, shall be effective only in the
specific instance and for the specific purpose for which made or given. Except
where notice is specifically required by this Agreement, no notice to or demand
on any party hereto in any case shall entitle the other party to any other or
further notice or demand in similar or other circumstances.
9. COMMUNICATIONS. All notices and demands provided for hereunder
shall be in writing, and shall be given by registered or certified mail, return
receipt requested, telex, telegram, telecopy, courier service of personal
delivery, and addressed to the relevant party or parties at the following
address:
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(i) if to the Company:
Western Pacific Airlines, Inc.
0000 Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
X'Xxxxxx & Xxxxxx
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
(ii) if to Xxxx:
Xxxx Petroleum of Texas, Inc.
c/x Xxxx Petroleum Corporation
0000 Xxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxx
with a copy to:
Xxxxxx & Xxxxxx
3700 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx XxXxxxx, Esq.
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(iii) if to GFI:
GFI Company
Xxxxxx Center
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xx. Xxxxx X. Story
with a copy to:
Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx Xxx, Esq.
or to such other address as a Investor or the Company, as the case may be, may
designate in writing to the other parties hereto, which notice shall be deemed
given when received.
10. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute one and the same agreement.
11. BINDING EFFECT; ASSIGNMENT. The rights and obligations of the
parties under this Agreement may not be assigned to any other Person; provided,
however, that the Company may assign its rights hereunder to any successor
entity to the Company, whether pursuant to a sale of substantially all of the
Company's assets, or the merger or consolidation of the Company, that agrees to
be bound by the terms and conditions hereof or is so bound by operation by law.
Except as expressly provided in this Agreement, this Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement, and their respective successors and permitted
assigns. This Agreement shall be binding upon the Company and the Purchasers,
and their respective successors and permitted assigns.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF DELAWARE, AND FOR ALL PURPOSES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
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13. EXPENSES. Each of the parties hereto shall pay its own respective
costs and expenses incurred in connection with the negotiation, execution and
performance of this Agreement.
14. SEVERABILITY OF PROVISIONS. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
15. HEADINGS. The Article and Section headings used or contained in
this Agreement are for convenience of reference only and shall not affect the
construction of this Agreement.
16. INTEGRATION. This Agreement (including the exhibits hereto)
constitutes the entire agreement among the parties with respect to the
registration of the Registrable Securities and there are no promises or
undertakings with respect thereto relative to the subject matter hereof not
expressly set forth or referred to herein.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by its duly authorized officer as of the date first written above.
WESTERN PACIFIC AIRLINES, INC.
By: /S/XXXXXX X. XXXXXXX
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Name: XXXXXX X. XXXXXXX
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Title: VICE PRESIDENT/CFO
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XXXX PETROLEUM OF TEXAS, INC.
By: /S/XXXX XXXXX
---------------------------------------------
Name: XXXX XXXXX XX.
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Title: EXECUTIVE VICE PRESIDENT
------------------------------------------
GFI COMPANY
By: /S/XXXXXX XXXXXXX XX
---------------------------------------------
Name: XXXXXX XXXXXXX XX
-------------------------------------------
Title:
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14
