REGISTRATION RIGHTS AGREEMENT
Exhibit 10.6
This Registration Rights Agreement (this “Agreement”) is made and entered into as of
March 29, 2007, by and between Kitty Hawk, Inc., a Delaware corporation (the “Company”),
and Laurus Master Fund, Ltd. (the “Purchaser”).
This Agreement is made pursuant to the Security Agreement, dated as of March ___, 2007, by and
among the Purchaser, the Company and various subsidiaries of the Company party thereto (as amended,
modified or supplemented from time to time, the “Security Agreement”), and pursuant to the
Note and the Warrants referred to therein.
The Company and the Purchaser hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein that are defined in
the Security Agreement shall have the meanings given such terms in the Security Agreement. As used
in this Agreement, the following terms shall have the following meanings:
“Closing Date” means the date of the issuance by the Company of the Note and Warrants referred
to in the Security Agreement.
“Commission” means the Securities and Exchange Commission.
“Common Stock” means shares of the Company’s common stock, par value $0.000001 per share.
“Effectiveness Date” means (i) with respect to the initial Registration Statement required to
be filed hereunder, a date no later than one hundred eighty (180) days following the Closing Date,
and (ii) with respect to each additional Registration Statement required to be filed hereunder, a
date no later than one hundred eighty (180) days following the applicable Filing Date.
“Effectiveness Period” has the meaning set forth in Section 2(a).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor
statute.
“Filing Date” means, with respect to (i) the Registration Statement required to be filed
hereunder in respect of the shares of Common Stock issuable upon exercise of the Warrants issued as
of the Closing Date, a date no later than ninety (90) days following the Closing Date, (ii) the
shares of Common Stock issuable upon exercise of any Warrant issued after the Closing Date, the
date which is ninety (90) days after the date of the issuance of such Warrant, and (iii) the shares
of Common Stock issuable to the Holder as a result of adjustments to the Exercise Price made
pursuant to the Warrant or otherwise, thirty (30) days after the occurrence such event or the date
of the adjustment of the Exercise Price.
“Holder” or “Holders” means the Purchaser or any of its affiliates or transferees to the
extent any of them hold Registrable Securities, other than those purchasing Registrable Securities
in a market transaction.
“Indemnified Party” has the meaning set forth in Section 5(c).
“Indemnifying Party” has the meaning set forth in Section 5(c).
“Note” has the meaning set forth in the Security Agreement.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition), whether commenced or
threatened.
“Prospectus” means the prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by the Registration Statement,
and all other amendments and supplements to the Prospectus, including post-effective amendments,
and all material incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
“Registrable Securities” means the shares of Common Stock issuable upon exercise of the
Warrants.
“Registration Statement” means each registration statement required to be filed hereunder,
including the Prospectus therein, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by reference in such registration statement.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“Securities Act” means the Securities Act of 1933, as amended, and any successor statute.
“Security Agreement” has the meaning given to such term in the Preamble hereto.
“Trading Market” the NASD Over The Counter Bulletin Board, NASDAQ Capital Market,
NASDAQ National Market System, American Stock Exchange or New York Stock
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Exchange (whichever of the foregoing is at the time the principal trading exchange or market
for the Common Stock).
“Warrants” means the Common Stock purchase warrants issued in connection with the
Security Agreement, whether on the Closing Date or thereafter.
2. Registration.
(a) On or prior to the Filing Date the Company shall prepare and file with the
Commission a Registration Statement covering the Registrable Securities for a selling
stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The
Registration Statement shall be on Form S-3 (except if the Company is not then eligible to
register for resale the Registrable Securities on Form S-3, in which case such registration
shall be on another appropriate form in accordance herewith). The Company shall use its
best efforts to cause each Registration Statement to become effective and remain effective
as provided herein. The Company shall use its best efforts to cause each Registration
Statement to be declared effective under the Securities Act as promptly as possible after
the filing thereof, but in any event no later than the Effectiveness Date. The Company
shall use its reasonable commercial efforts to keep each Registration Statement continuously
effective under the Securities Act until the date which is the earlier date of when (i) all
Registrable Securities have been sold or (ii) all Registrable Securities covered by such
Registration Statement may be sold immediately without registration under the Securities Act
and without volume restrictions pursuant to Rule 144(k), as determined by the counsel to the
Company pursuant to a written opinion letter to such effect, addressed and acceptable to the
Company’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) Within three business days of the Effectiveness Date, the Company shall cause its
counsel (which may be in-house counsel) to issue a blanket opinion in the form attached
hereto as Exhibit A, to the transfer agent stating that the shares are subject to an
effective registration statement and can be reissued free of restrictive legend upon notice
of a sale by the Purchaser and confirmation by the Purchaser that it has complied with the
prospectus delivery requirements, provided that the Company has not advised the transfer
agent orally or in writing that the opinion has been withdrawn. Copies of the blanket
opinion required by this Section 2(c) shall be delivered to the Purchaser within the time
frame set forth above.
3. Registration Procedures. If and whenever the Company is required by the provisions hereof
to effect the registration of any Registrable Securities under the Securities Act, the Company
will, as expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement with respect to such
Registrable Securities, respond as promptly as possible to any comments received from the
Commission, and use its best efforts to cause the Registration Statement to become and
remain effective for the Effectiveness Period with respect thereto, and promptly provide to
the Purchaser copies of all filings and Commission letters of comment relating thereto;
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(b) prepare and file with the Commission such amendments and supplements to the
Registration Statement and the Prospectus used in connection therewith as may be necessary
to comply with the provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Registration Statement and to keep such Registration
Statement effective until the expiration of the Effectiveness Period applicable to such
Registration Statement;
(c) furnish to the Purchaser such number of copies of the Registration Statement and
the Prospectus included therein (including each preliminary Prospectus) as the Purchaser
reasonably may request to facilitate the public sale or disposition of the Registrable
Securities covered by the Registration Statement;
(d) use its best efforts to register or qualify the Purchaser’s Registrable Securities
covered by such Registration Statement under the securities or “blue sky” laws of such
jurisdictions within the United States as the Purchaser may reasonably request, provided,
however, that the Company shall not for any such purpose be required to qualify generally to
transact business as a foreign corporation in any jurisdiction where it is not so qualified
or to consent to general service of process in any such jurisdiction;
(e) list the Registrable Securities covered by such Registration Statement with any
securities exchange on which the Common Stock of the Company is then listed;
(f) promptly notify the Purchaser at any time when a Prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event of which
the Company has knowledge as a result of which the Prospectus contained 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
(g) make available for inspection by the Purchaser and any attorney, accountant or
other agent retained by the Purchaser, all publicly available, non-confidential financial
and other records, pertinent corporate documents and properties of the Company, and cause
the Company’s officers, directors and employees to supply all publicly available,
non-confidential information reasonably requested by the attorney, accountant or agent of
the Purchaser.
4. Registration Expenses. All expenses relating to the Company’s compliance with Sections 2
and 3 hereof, including, without limitation, all registration and filing fees, printing expenses,
fees and disbursements of counsel and independent public accountants for the Company, fees and
expenses (including reasonable counsel fees) incurred in connection with complying with state
securities or “blue sky” laws, fees of the NASD, and fees of transfer agents and registrars, are
called “Registration Expenses”. All selling commissions applicable to the sale of
Registrable Securities, including any fees and disbursements of any counsel to the Holders are
called “Selling Expenses”. The Company shall only be responsible for all Registration
Expenses.
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5. Indemnification.
(a) In the event of a registration of any Registrable Securities under the Securities
Act pursuant to this Agreement, the Company will indemnify and hold harmless the Purchaser,
and its officers, directors and each other person, if any, who controls the Purchaser within
the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which the Purchaser, or such 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 any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement under which such
Registrable Securities were registered under the Securities Act pursuant to this Agreement,
any preliminary Prospectus or final Prospectus contained therein, or any amendment or
supplement thereof, 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, and will reimburse the Purchaser, and each such person
for any reasonable legal or other expenses incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case if and 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 so made in conformity
with information furnished by or on behalf of the Purchaser or any such person in writing
specifically for use in any such document.
(b) In the event of a registration of the Registrable Securities under the Securities
Act pursuant to this Agreement, the Purchaser will indemnify and hold harmless the Company,
and its officers, directors and each other person, if any, who controls the Company within
the meaning of the Securities Act, against all losses, claims, damages or liabilities, joint
or several, to which the Company or such 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 any untrue statement or alleged untrue statement of
any material fact which was furnished in writing by the Purchaser to the Company expressly
for use in (and such information is contained in) the Registration Statement under which
such Registrable Securities were registered under the Securities Act pursuant to this
Agreement, any preliminary Prospectus or final Prospectus contained therein, or any
amendment or supplement thereof, 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, and will reimburse the Company and each such person
for any reasonable legal or other expenses incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action, provided,
however, that the Purchaser will be liable in any such case if and only 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 so made in
conformity with information furnished in writing to the Company by or on behalf of the
Purchaser specifically for use in any such document. Notwithstanding the provisions of this
paragraph, the Purchaser shall not be required to indemnify any person or entity in excess
of the amount of the aggregate net
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proceeds received by the Purchaser in respect of Registrable Securities in connection
with any such registration under the Securities Act.
(c) Promptly after receipt by a party entitled to claim indemnification hereunder (an
“Indemnified Party”) of notice of the commencement of any action, such Indemnified
Party shall, if a claim for indemnification in respect thereof is to be made against a party
hereto obligated to indemnify such Indemnified Party (an “Indemnifying Party”),
notify the Indemnifying Party in writing thereof, but the omission so to notify the
Indemnifying Party shall not relieve it from any liability which it may have to such
Indemnified Party other than under this Section 5(c) and shall only relieve it from any
liability which it may have to such Indemnified Party under this Section 5(c) if and to the
extent the Indemnifying Party is prejudiced by such omission. In case any such action shall
be brought against any Indemnified Party and it shall notify the Indemnifying Party of the
commencement thereof, the Indemnifying Party shall be entitled to participate in and, to the
extent it shall wish, to assume and undertake the defense thereof 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 and undertake the defense thereof, the
Indemnifying Party shall not be liable to such Indemnified Party under this Section 5(c) for
any legal expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof; if the Indemnified Party retains its own counsel, then the Indemnified
Party shall pay all fees, costs and expenses of such counsel, provided,
however, that, if the defendants in any such action include both the Indemnified
Party and the Indemnifying Party and the Indemnified Party shall have reasonably concluded
based on the advice of counsel that there may be reasonable defenses available to it which
are different from or additional to those available to the Indemnifying Party or if the
interests of the Indemnified Party reasonably may be deemed to conflict with the interests
of the Indemnifying Party, the Indemnified Party shall have the right to select one separate
counsel and to assume such legal defenses and otherwise to participate in the defense of
such action, with the reasonable expenses and fees of such separate counsel and other
expenses related to such participation to be reimbursed by the Indemnifying Party as
incurred.
(d) In order to provide for just and equitable contribution in the event of joint
liability under the Securities Act in any case in which either (i) the Purchaser, or any
officer, director or controlling person of the Purchaser, makes a claim for indemnification
pursuant to this Section 5 but it is judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be enforced in such
case notwithstanding the fact that this Section 5 provides for indemnification in such case,
or (ii) contribution under the Securities Act may be required on the part of the Purchaser
or such officer, director or controlling person of the Purchaser in circumstances for which
indemnification is provided under this Section 5; then, and in each such case, the Company
and the Purchaser will contribute to the aggregate losses, claims, damages or liabilities to
which they may be subject (after contribution from others) in such proportion so that the
Purchaser is responsible only for the portion represented by the percentage that the public
offering price of its securities offered by the Registration Statement bears to the public
offering price of all securities offered by such Registration
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Statement, provided, however, that, in any such case, (A) the Purchaser
will not be required to contribute any amount in excess of the public offering price of all
such securities offered by it pursuant to such Registration Statement; and (B) no person or
entity guilty of fraudulent misrepresentation (within the meaning of Section 10(f) of the
Act) will be entitled to contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
6. Representations and Warranties.
(a) The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange
Act and, except with respect to certain matters which the Company has disclosed to the
Purchaser on Schedule 12(x) to the Security Agreement or which are excluded pursuant
to the terms of Section 12(x) of the Security Agreement, the Company has timely filed all
proxy statements, reports, schedules, forms, statements and other documents required to be
filed by it under the Exchange Act since January 1, 2006. The Company has filed (i) its
Annual Report on Form 10-K for its fiscal year ended December 31, 2005 and (ii) its
Quarterly Report on Form 10-Q for the fiscal quarters ended September 30, 2006, June 30,
2006 and March 31, 2006 (collectively, the “SEC Reports”). Each SEC Report was, at
the time of its filing, in substantial compliance with the requirements of its respective
form and none of the SEC Reports, nor the financial statements (and the notes thereto)
included in the SEC Reports, as of their respective filing dates, contained any untrue
statement of a material fact or omitted 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. The financial statements of the Company included in
the SEC Reports comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the Commission or other applicable
rules and regulations with respect thereto. Such financial statements have been prepared in
accordance with generally accepted accounting principles (“GAAP”) applied on a
consistent basis during the periods involved (except (i) as may be otherwise indicated in
such financial statements or the notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed) and fairly
present in all material respects the financial condition, the results of operations and the
cash flows of the Company and its subsidiaries, on a consolidated basis, as of, and for, the
periods presented in each such SEC Report.
(b) The Common Stock is listed or quoted, as applicable, for trading on the American
Stock Exchange and satisfies all requirements for the continuation of such listing or
quotation, as applicable; and the Company shall do all things necessary so that the Common
Stock continues to be listed or quoted, as applicable, on a Trading Market. The Company has
not received any notice that its Common Stock will be delisted from or no longer be quoted
on, as applicable, the American Stock Exchange (except for prior notices which have been
fully remedied) or that the Common Stock does not meet all requirements for the continuation
of such listing or quotation, as applicable.
(c) Neither the Company, nor any of its affiliates, nor any person acting on its or
their behalf, has directly or indirectly made any offers or sales of any security or
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solicited any offers to buy any security under circumstances that would cause the
offering of the Securities pursuant to the Security Agreement to be integrated with prior
offerings by the Company for purposes of the Securities Act which would prevent the Company
from selling the Common Stock pursuant to Rule 506 under the Securities Act, or any
applicable exchange-related stockholder approval provisions, nor will the Company or any of
its affiliates or subsidiaries take any action or steps that would cause the offering of the
Securities to be integrated with other offerings.
(d) The Warrants and the shares of Common Stock issuable upon exercise of the Warrants
are all restricted securities under the Securities Act as of the date of this Agreement.
The Company will not issue any stop transfer order or other order impeding the sale and
delivery of any of the Registrable Securities at such time as such Registrable Securities
are registered for public sale or an exemption from registration is available, except as
required by federal or state securities laws or as permitted under the provisions of Section
7(d) below.
(e) The Company understands the nature of the Registrable Securities issuable upon
exercise of the Warrant and recognizes that the issuance of such Registrable Securities may
have a potential dilutive effect. The Company specifically acknowledges that its obligation
to issue the Registrable Securities is binding upon the Company and enforceable regardless
of the dilution such issuance may have on the ownership interests of other shareholders of
the Company.
(f) Except for agreements made in the ordinary course of business, there is no
agreement that has not been filed with the Commission as an exhibit to a registration
statement or to a form required to be filed by the Company under the Exchange Act as set
forth in Item 601 of Regulation S-K, the breach of which could reasonably be expected to
have a material and adverse effect on the Company and its subsidiaries, or would prohibit or
otherwise interfere with the ability of the Company to enter into and perform any of its
obligations under this Agreement in any material respect.
(g) The Company will at all times have authorized and reserved a sufficient number of
shares of Common Stock for the full exercise of the Warrants.
(h) The Company shall provide written notice to each Holder of (i) the occurrence of
each Discontinuation Event (as defined below) and (ii) the declaration of effectiveness by
the SEC of each Registration Statement required to be filed hereunder, in each case within
three (3) business days of the date of each such occurrence and/or declaration.
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a Holder, of any of their
respective obligations under this Agreement, each Holder or the Company, as the case may be,
in addition to being entitled to exercise all rights granted by law and under this
Agreement, including recovery of damages, will be entitled to specific performance of its
rights under this Agreement.
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(b) No Piggyback on Registrations. Neither the Company nor any of its security holders
(other than the Holders in such capacity pursuant hereto) may include securities of the
Company in any Registration Statement other than the Registrable Securities, and the Company
shall not after the Closing Date enter into any agreement providing any such right for
inclusion of shares in the Registration Statement to any of its security holders. Except as
disclosed on Schedule 12(c) to the Security Agreement, the Company has not
previously entered into any agreement granting any registration rights with respect to any
of its securities to any person or entity that have not been fully satisfied.
(c) Compliance. Each Holder covenants and agrees that it will comply with the
prospectus delivery requirements of the Securities Act and the manner of sale provisions set
forth in the Registration Statement, in each case as applicable to it in connection with
sales of Registrable Securities pursuant to the Registration Statement.
(d) Discontinued Disposition. Each Holder agrees by its acquisition of such
Registrable Securities that, upon receipt of a notice from the Company of the occurrence of
a Discontinuation Event (as defined below), such Holder will forthwith discontinue
disposition of such Registrable Securities under the applicable Registration Statement until
such Holder’s receipt of the copies of the supplemented Prospectus and/or amended
Registration Statement or until it is advised in writing (the “Advice”) by the
Company that the use of the applicable Prospectus may be resumed, and, in either case, has
received copies of any additional or supplemental filings that are incorporated or deemed to
be incorporated by reference in such Prospectus or Registration Statement. The Company may
provide appropriate stop orders to enforce the provisions of this paragraph. For purposes
of this Agreement, a “Discontinuation Event” shall mean (i) when the Commission
notifies the Company whether there will be a “review” of such Registration Statement and
whenever the Commission comments in writing on such Registration Statement (the Company
shall provide true and complete copies thereof and all written responses thereto to each of
the Holders); (ii) any request by the Commission or any other Federal or state governmental
authority for amendments or supplements to such Registration Statement or Prospectus or for
additional information; (iii) the issuance by the Commission of any stop order suspending
the effectiveness of such Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose; (iv) the receipt by the
Company of any notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any Proceeding for such purpose; (v) any request by the Company
to suspend the filing of a Registration Statement or require that the Purchaser suspend
further offers and sales of Registrable Securities for a period not to exceed an aggregate
of thirty (30) days in any six (6) month period or an aggregate of sixty (60) days in any
twelve (12) month period for valid business reasons (not including avoidance of its
obligations hereunder) to avoid premature public disclosure of a pending corporate
transaction, including pending acquisitions or divestitures of assets, mergers and
combinations and similar events; and/or (vi) the occurrence of any event or passage of time
that makes the financial statements included in such Registration Statement ineligible for
inclusion therein or any statement made in such Registration Statement or Prospectus or any
document
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incorporated or deemed to be incorporated therein by reference untrue in any material
respect or that requires any revisions to such Registration Statement, Prospectus or other
documents so that, in the case of such Registration Statement or Prospectus, as the case may
be, it will not contain any 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, in
light of the circumstances under which they were made, not misleading.
(e) Piggy-Back Registrations. If at any time after the Closing Date there is not an
effective Registration Statement covering all of the Registrable Securities required to be
covered hereunder and the Company shall determine to prepare and file with the Commission a
registration statement relating to an offering for its own account or the account of others
under the Securities Act of any of its equity securities, other than on Form S-4 or Form S-8
(each as promulgated under the Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity or business
or equity securities issuable in connection with stock option or other employee benefit
plans, then the Company shall send to each Holder written notice of such determination and,
if within fifteen (15) days after receipt of such notice, any such Holder shall so request
in writing, the Company shall include in such registration statement all or any part of such
Registrable Securities such Holder requests to be registered to the extent the Company may
do so without violating registration rights of others which exist as of the date of this
Agreement, subject to customary underwriter cutbacks applicable to all holders of
registration rights and subject to obtaining any required consent of any selling
stockholder(s) to such inclusion under such registration statement.
(f) Amendments and Waivers. 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, unless the same shall be in writing
and signed by the Company and the Holders of the then outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of certain Holders and that does
not directly or indirectly affect the rights of other Holders may be given by Holders of at
least a majority of the Registrable Securities to which such waiver or consent relates;
provided, however, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the immediately
preceding sentence.
(g) Notices. Any notice or request hereunder may be given to the Company or the
Purchaser at the respective addresses set forth below or as may hereafter be specified in a
notice designated as a change of address under this Section 7(g). Any notice or request
hereunder shall be given by registered or certified mail, return receipt requested, hand
delivery, overnight mail, Federal Express or other national overnight next day carrier
(collectively, “Courier”) or telecopy (confirmed by mail). Notices and requests
shall be, in the case of those by hand delivery, deemed to have been given when delivered to
any party to whom it is addressed, in the case of those by mail or overnight mail, deemed to
have been given three (3) business days after the date when deposited in the mail or with
the overnight mail carrier, in the case of a Courier, the next business day
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following timely delivery of the package with the Courier, and, in the case of a
telecopy, when confirmed. The address for such notices and communications shall be as
follows:
| If to the Company: | Kitty Hawk, Inc. 0000 Xxxx 00xx Xxxxxx P.O. Box 612787 XXX Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 00000 Attention: Chief Financial Officer Facsimile: (000) 000-0000 |
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| with a copy to: Xxxxxx and Xxxxx, LLP 000 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, XX 00000 Attention: Xxxxxxx XxXxxxx Facsimile: (000) 000-0000 |
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| If to a Purchaser: | To the address set forth under such Purchaser’s name on the signature pages hereto |
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| with a copy to: Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP 0000 Xxxxxxxxx Xxxxx Xxxxxxxxxx, XX 00000 Attention: Xxxxxx Xxxxxxxx Facsimile: (000) 000-0000 |
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| If to any other Person who is then the registered Holder: | To the address of such Holder as it appears in the stock transfer books of the Company |
or such other address as may be designated in writing hereafter in accordance with this
Section 7(g) by such Person.
(h) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and shall inure to
the benefit of each Holder. The Company may not assign its rights or obligations hereunder
without the prior written consent of each Holder. Each Holder may assign their respective
rights hereunder in the manner and to the persons and entities as permitted under the
Warrants.
(i) Execution and Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original and, all of
which taken together shall constitute one and the same agreement. In the event that any
signature is delivered by facsimile transmission, such signature shall create a valid
binding obligation of the party executing (or on whose behalf such
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signature is executed) the same with the same force and effect as if such facsimile
signature were the original thereof.
(j) Governing Law, Jurisdiction and Waiver of Jury Trial. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. The Company hereby consents and agrees that the state or federal courts
located in the County of New York, State of New York shall have exclusion jurisdiction to
hear and determine any Proceeding between the Company, on the one hand, and the Purchaser,
on the other hand, pertaining to this Agreement or to any matter arising out of or related
to this Agreement; provided, that the Purchaser and the Company acknowledge that any
appeals from those courts may have to be heard by a court located outside of the County of
New York, State of New York, and further provided, that nothing in this
Agreement shall be deemed or operate to preclude the Purchaser from bringing a Proceeding in
any other jurisdiction to collect the obligations, to realize on the Collateral or any other
security for the obligations, or to enforce a judgment or other court order in favor of the
Purchaser. The Company expressly submits and consents in advance to such jurisdiction in
any Proceeding commenced in any such court, and the Company hereby waives any objection
which it may have based upon lack of personal jurisdiction, improper venue or forum non
conveniens. The Company hereby waives personal service of the summons, complaint and other
process issued in any such Proceeding and agrees that service of such summons, complaint and
other process may be made by registered or certified mail addressed to the Company at the
address set forth in Section 7(g) and that service so made shall be deemed completed upon
the earlier of the Company’s actual receipt thereof or three (3) days after deposit in the
U.S. mails, proper postage prepaid. The parties hereto desire that their disputes be
resolved by a judge applying such applicable laws. Therefore, to achieve the best
combination of the benefits of the judicial system and of arbitration, the parties hereto
waive all rights to trial by jury in any Proceeding brought to resolve any dispute, whether
arising in contract, tort, or otherwise between the Purchaser and/or the Company arising out
of, connected with, related or incidental to the relationship established between then in
connection with this Agreement. If either party hereto shall commence a Proceeding to
enforce any provisions of this Agreement, the Security Agreement or any other Ancillary
Agreement, then the prevailing party in such Proceeding shall be reimbursed by the other
party for its reasonable attorneys’ fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.
(k) Cumulative Remedies. The remedies provided herein are cumulative and not exclusive
of any remedies provided by law.
(l) Severability. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their reasonable efforts to find and employ an
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alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(m) Headings. The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
(n) Termination of Agreement. Upon the expiration of the Effectiveness Period, this
Agreement shall terminate; provided, however, that the provisions of Section 5 hereof shall
survive any such termination.
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signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| KITTY HAWK, INC. | LAURUS MASTER FUND, LTD. | |||||||||
By:
|
/s/ Xxxxx Xxxxxxxxxxxx | By: | /s/ Xxxxx Grin | |||||||
Chief Financial Officer |
Director |
|||||||||
| Address for
Notices: Laurus Master Fund, Ltd. c/o M&C Corporate Services Limited X.X. Xxx 000 XX Xxxxxx Xxxxx Xxxxxx Xxxx South Church Street Grand Cayman, Cayman Islands Facsimile: 000-000-0000 with copy to: Laurus Capital Management, LLC 000 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Attention: Portfolio Services Facsimile: 212-541-4410 |
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