STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement (the "AGREEMENT") is dated as of October
16, 2002, by and between AIR METHODS CORPORATION, a Delaware corporation (the
"COMPANY"), on the one hand, and PRUDENTIAL CAPITAL PARTNERS, L.P., a Delaware
limited partnership ("PCP"), and PRUDENTIAL CAPITAL PARTNERS MANAGEMENT FUND,
L.P., a Delaware limited partnership ("PCPMF"), on the other hand.
RECITALS
A. This Agreement is entered into in connection with the
Securities Purchase Agreement, dated as of October 16, 2002 (the "PURCHASE
AGREEMENT"), by and between the Company, Mercy Air Service, Inc, a California
corporation, ARCH Air Medical Service, Inc., a Missouri corporation, and Rocky
Mountain Holdings, L.L.C., a Delaware limited liability company, on the one
hand, and PCP and PCPMF, on the other hand, which provides for the sale by the
Company to PCP and PCPMF of (i) $23,000,000 aggregate principal amount of the
Company's 12.00% Senior Subordinated Notes Due 2007 (the "NOTES") and (ii)
Common Stock Purchase Warrants (the "WARRANTS") exercisable for the Company's
common stock, par value $0.06 per share (the "COMMON STOCK").
B. In order to induce PCP and PCPMF to enter into the Purchase
Agreement, the Company has agreed to provide the registration and other rights
set forth in this Agreement. The execution and delivery of this Agreement is a
condition to PCP's and PCPMF's obligation to purchase the Notes and Warrants
under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and obligations hereinafter set forth, the parties agree as follows:
1. DEFINITIONS.
Certain capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to them in the Purchase Agreement, and for purposes
of this Agreement, the following terms shall have the following respective
meanings:
"AGREEMENT": See the introductory paragraph hereto.
"BUSINESS DAY": Any day that is not a Saturday, Sunday or a day on
which banking institutions in New York are authorized or required by law to be
closed.
"CLOSING DATE": October 16, 2002.
"COMMON STOCK": See Recital A hereto.
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"COMPANY": See the introductory paragraph hereto.
"DAMAGES PAYMENT DATE": See Section 3(c) hereof.
"EFFECTIVENESS DATE": The 90th day after the earlier of the date the
Registration Statement is filed and the Filing Date.
"EFFECTIVENESS PERIOD": See Section 2(a) hereof.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"EXCLUDED SECURITIES": See Section 10 hereto.
"FILING DATE": The 75th day after the Closing Date.
"HOLDER": Any Person owning of record Registrable Securities. For the
purpose of determining the Holders (by number of shares) of Registrable
Securities on any date, the unexercised portion of the Warrants shall be deemed
to have been exercised as of such date to acquire the number of shares of Common
Stock covered thereby.
"INDEMNIFIED HOLDER": See Section 6 hereof.
"INDEMNIFIED PERSON": See Section 6 hereof.
"INDEMNIFYING PERSON": See Section 6 hereof.
"INSPECTORS": See Section 11 hereof.
"LIQUIDATED DAMAGES": See Section 3(a) hereof.
"NASD": See Section 4(o) hereof.
"NOTES": See Recital A hereto.
"OFFER": See Section 10 hereto.
"PERSON": An individual, partnership, corporation, limited liability
company, unincorporated association, trust or joint venture, or a governmental
agency or political subdivision thereof.
"PROSPECTUS": Any prospectus included in the Registration Statement
(including, without limitation, any prospectus subject to completion and 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, and all other amendments and supplements to
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any of the foregoing, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in any of
the foregoing.
"PURCHASE AGREEMENT": See Recital A hereto.
"QIU": See Section 4(o) hereof.
"RECORDS": See Section 11 hereof.
"REGISTRABLE SECURITIES": (i) any shares of Common Stock or other
securities issued or issuable upon exercise of the Warrants; and (ii) any
securities issued or issuable with respect to the Common Stock or other
securities referred to in the foregoing clause (i) by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise. As to any particular
Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (a) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (b) such securities may be distributed to the public pursuant to Rule
144 (or any successor provision) under the Securities Act without volume
limitations, (c) they shall have been otherwise transferred, new certificates
for them not bearing a legend restricting further transfer shall have been
delivered by the Company and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or any similar
state law then in force, or (d) they shall have ceased to be outstanding.
"REGISTRATION DEFAULT": See Section 3(a) hereof.
"REGISTRATION STATEMENT": The registration statement of the Company
filed with the SEC pursuant to the provisions of this Agreement (including the
Prospectus), amendments and supplements to such registration statement,
including post-effective amendments, all exhibits and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
"RULE 144": Rule 144 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
"RULE 144A": Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
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"RULE 415": Rule 415 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"SEC": The Securities and Exchange Commission.
"SECURITIES ACT": The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"SHELF REGISTRATION": See Section 2(a) hereof.
"SHELF REGISTRATION STATEMENT": See Section 2(a) hereof.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING": A registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
"WARRANTS": See Recital A hereto.
"WARRANT HOLDER": See Section 10 hereof.
2. SHELF REGISTRATION.
(a) SHELF REGISTRATION. The Company shall, as promptly as practicable
and in any event on or prior to the Filing Date, prepare and file with the SEC a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Securities (the "SHELF
REGISTRATION"). The Shelf Registration shall be on Form S-1, with re-filing on
Form S-3 at such time as the Company becomes eligible for use of that form
(provided that the Form S-1 shall remain effective until the effectiveness of
the From S-3), or another appropriate form permitting registration of such
Registrable Securities for resale by Holders in the manner or manners designated
by them (including, without limitation, one or more underwritten offerings).
Except for up to 100,000 shares subject to exercise under warrants issued to RCG
Capital Management Group, Inc., the Company shall not permit any securities
other than the Registrable Securities to be included in the Shelf Registration.
As used herein the term "SHELF REGISTRATION STATEMENT") means any Registration
Statement filed in connection with the Shelf Registration.
The Company shall use its best efforts to cause the Shelf Registration
to be declared effective under the Securities Act as promptly as practicable and
in any event on or prior to the Effectiveness Date and to keep the Shelf
Registration continuously effective under the Securities Act until such time as
all Registrable Securities can be sold under Rule 144 under the Securities Act
without volume limitations (as it may be shortened pursuant to clause (i) or
clause (ii) immediately following, the "EFFECTIVENESS PERIOD"), or such shorter
period ending when (i) all the Registrable Securities covered by the Shelf
Registration have been sold in the manner set forth and as contemplated in the
Shelf Registration or (ii) the date on which all the Registrable Securities (x)
held by Persons who are not affiliates of the Company may be resold pursuant to
Rule 144(k) under the Securities Act or (y) cease to be outstanding or
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(iii) the date on which all of the securities described in the first sentence of
the definition of "Registrable Securities" shall have ceased to be "Registrable
Securities" pursuant to the second sentence of such definition.
(b) SUPPLEMENTS AND AMENDMENTS. The Company shall promptly supplement
and amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for the Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of a majority (by number of shares) of the Registrable Securities
covered by the Registration Statement or by any underwriter of such Registrable
Securities.
3. LIQUIDATED DAMAGES.
(a) The parties hereto agree that the Holders will suffer damages if
the Company fails to fulfill its obligations under Section 2 hereof and that it
would not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Company agrees to pay liquidated damages on the Registrable
Securities ("LIQUIDATED DAMAGES") under the circumstances and to the extent set
forth below (each of which shall be given independent effect; each a
"REGISTRATION DEFAULT"):
(i) if the Shelf Registration is not filed on or prior to the Filing
Date, then commencing on the day after the Filing Date, Liquidated Damages
shall accrue (with the aggregate amount of such Liquidated Damages to be
calculated, and such amount to be ratably paid to the Holders, as set forth
in the last sentence of Section 3(c)) at a rate of 0.25% per annum for the
first 30 days immediately following the Filing Date, such Liquidated
Damages increasing by an additional 0.25% per annum at the beginning of
each subsequent 30-day period;
(ii) if the Initial Shelf Registration is not declared effective by
the SEC on or prior to the Effectiveness Date, then commencing on the day
after the Effectiveness Date, Liquidated Damages shall accrue (with the
aggregate amount of such Liquidated Damages to be calculated, and such
amount to be ratably paid to the Holders, as set forth in the last sentence
of Section 3(c)) at a rate of 0.25% per annum for the first 30 days
immediately following the day after such Effectiveness Date, such
Liquidated Damages increasing by an additional 0.25% per annum at the
beginning of each subsequent 30-day period; and
(iii) if the Shelf Registration has been declared effective and ceases
to be effective at any time during the Effectiveness Period (other than as
permitted under Section 3(b) hereof), Liquidated Damages shall accrue (with
the aggregate amount of such Liquidated Damages to be calculated, and such
amount to be ratably paid to the Holders, as set forth in the last sentence
of Section 3(c)) at a rate of 0.25% per annum for the first 30 days
commencing on the day the Shelf Registration ceases to be effective,
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such Liquidated Damages increasing by an additional 0.25% per annum at the
beginning of each such subsequent 30-day period;
provided, however, that at no time shall the aggregate rate of Liquidated
Damages accruing exceed in the aggregate 2.00% per annum; provided, further,
however, that (1) upon the filing of the Initial Shelf Registration as required
hereunder (in the case of clause (a)(i) of this Section 3), (2) upon the
effectiveness of the Shelf Registration as required hereunder (in the case of
clause (a)(ii) of this Section 3) or (3) upon the effectiveness of the Shelf
Registration which had ceased to remain effective, or a subsequent Shelf
Registration, as applicable (in the case of clause (a)(iii) of this Section 3),
Liquidated Damages on the Registrable Securities as a result of such clause (or
the relevant subclause thereof), as the case may be, shall cease to accrue.
(b) Notwithstanding paragraph (a) of this Section 3, the Company
shall be permitted to suspend the effectiveness of the Prospectus for a period
not to exceed 30 days in any 90-day period, and not to exceed an aggregate of 60
days in any 360-day period, if (i) the Prospectus contained in the Shelf
Registration Statement would, in the Company's good faith judgment, contain a
material misstatement or omission as a result of a previously undisclosed
proposed or pending material business transaction, the disclosure of which would
impede the Company's ability to consummate such transaction.
(c) The Company shall notify the Holders within two Business Days
after each and every date on which an event occurs in respect of which
Liquidated Damages are required to be paid. Any accrued and unpaid amounts of
Liquidated Damages pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 3
will be payable in cash quarterly on each of January 16, April 16, July 16 and
October 16 (each a "DAMAGES PAYMENT DATE"), commencing with the first such date
occurring after any such Liquidated Damages begin to accrue. The aggregate
amount of Liquidated Damages will be determined by multiplying the applicable
rate of Liquidated Damages by $23,000,000, multiplied by a fraction, the
numerator of which is the number of days such Liquidated Damages rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360, and such
aggregate amount shall be allocated to each Holder ratably based on the
Registrable Securities (by number of shares) held by such Holder at the time any
such Liquidated Damages begin to accrue divided by the Registrable Securities
(by number of shares) held by all Holders at such time.
4. REGISTRATION PROCEDURES.
In connection with the filing of the Registration Statement pursuant
to Section 2 hereof, the Company shall effect such registration to permit the
resale of the securities covered thereby in accordance with the intended method
or methods of disposition thereof, and pursuant thereto and in connection with
the Registration Statement filed by the Company hereunder the Company shall:
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(a) Prepare and file with the SEC prior to the Filing Date, a
Registration Statement as prescribed by Section 2 hereof, and use its best
efforts to cause such Registration Statement to become effective and remain
effective as provided herein; provided, however, that before filing the
Registration Statement or Prospectus (including any amendments or
supplements thereto), the Company shall furnish to and afford the Holders
that have provided the information required by the second full paragraph of
Section 4, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents proposed to
be filed (in each case, where possible, at least five Business Days prior
to such filing, or such date as is reasonable under the circumstances). The
Company shall not file any Registration Statement or Prospectus (including
any amendments or supplements thereto) if the Holders of a majority (by
number of shares) of the Registrable Securities that have provided the
information required by the second full paragraph of Section 4, their
counsel or the managing underwriters, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to the Shelf Registration as may be necessary to keep the
Registration Statement continuously effective for the Effectiveness Period;
cause the related Prospectus to be supplemented by any prospectus
supplement required by applicable law, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) promulgated
under the Securities Act; and comply with the provisions of the Securities
Act and the Exchange Act applicable to it with respect to the disposition
of all securities covered by such Registration Statement as so amended or
in such Prospectus as so supplemented.
(c) Notify the selling Holders, their counsel and the managing
underwriters, if any, promptly (but in any event within two Business Days)
and, if requested by such persons, confirm such notice in writing, (i) when
a Prospectus (including any prospectus supplement or post-effective
amendment) has been filed, and, with respect to the Registration Statement
(including any post-effective amendment), when the same has become
effective under the Securities Act, (ii) of the issuance by the SEC of any
stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus or
the initiation of any proceedings for that purpose, (iii) of the happening
of any event, the existence of any condition or any information becoming
known that makes any statement made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, 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 not misleading, and
that in the case of the Prospectus, 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 the light
of the circumstances under which
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they were made, not misleading and (iv) of the Company's determination that
a post-effective amendment to a Registration Statement would be
appropriate.
(d) Use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus and, if any such order is
issued, to use its best efforts to obtain the withdrawal of any such order
at the earliest possible time.
(e) In the event of an underwritten offering pursuant to the terms of
this Agreement, if requested by the managing underwriter or underwriters,
if any, or the Holders of a majority (by number of shares) of the
Registrable Securities being sold in connection with such underwritten
offering (i) promptly incorporate in a prospectus supplement or, if
required, a post-effective amendment such information as the managing
underwriter or underwriters (if any), such Holders or counsel for any of
them reasonably determine is necessary to be included therein, (ii) make
all required filings of such prospectus supplement or such post-effective
amendment as soon as reasonably practicable after the Company has received
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment and (iii) supplement or make
amendments to such Registration Statement.
(f) Furnish to each selling Holder, its counsel and each managing
underwriter, if any, at the sole expense of the Company, one conformed copy
of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and all documents incorporated or deemed to be incorporated
therein by reference and all exhibits.
(g) Deliver to each selling Holder, its counsel and the underwriters,
if any, at the sole expense of the Company, as many copies of the
Prospectus (including each form of preliminary prospectus and each
amendment or supplement thereto and any documents incorporated by reference
therein) as such Persons may reasonably request; and the Company hereby
consents to the use of the Prospectus (including each amendment or
supplement thereto) by each of the selling Holders and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and
sale of the Registrable Securities covered by the Prospectus (including any
amendment or supplement thereto).
(h) Prior to any public offering of Registrable Securities, to use
its best efforts to register or qualify, to the extent required by
applicable law, and to cooperate with the selling Holders, the managing
underwriter or underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities or offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Holder, or the managing underwriter or
underwriters, if any, reasonably request; provided, however, that where
Registrable Securities are offered other than
8
through an underwritten offering, the Company agrees to cause the Company's
counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 4(h); keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the applicable Registration Statement;
provided, however, that the Company shall not be required to (A) qualify
generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general service of
process in any such where it is not then so subject or (C) subject itself
to taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(i) Cooperate with the selling Holders and the managing underwriter
or underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing shares of Registrable Securities to be sold,
which certificates, when such Registrable Securities are sold pursuant to
the Shelf Registration Statement, shall not bear any restrictive legends
(unless sold to affiliates of the Company); and enable such shares of
Registrable Securities to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or Holders may
reasonably request.
(j) Use its best efforts to cause the Registrable Securities covered
by the Shelf Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be reasonably
necessary to enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Securities, except as may be required solely as a consequence of the nature
of such selling Holder's business, in which case the Company will cooperate
in all reasonable respects with the filing of such Registration Statement
and the granting of such approvals.
(k) Upon the occurrence of any event contemplated by Section
4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, as promptly as practicable (except
during any suspension of the effectiveness of the Prospectus pursuant to
Section 3(b) hereof, in which case full compliance shall be effected not
later than the Business Day immediately following the last day of any such
suspension period) prepare and (subject to Section 4(a) hereof) file with
the SEC, at the sole expense of the Company, a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities being
sold thereunder, the Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein
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or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(l) (i) In connection with any underwritten offering of Registrable
Securities pursuant to the Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of securities similar
to the Registrable Securities and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in order
to expedite or facilitate the registration or the disposition of such
Registrable Securities and, in such connection, make such representations
and warranties to, and covenants with, the underwriters with respect to the
business of the Company and its subsidiaries (including any acquired
business, properties or entity, if applicable) and the Registration
Statement, Prospectus (including all documents, if any, incorporated or
deemed to be incorporated by reference therein), in each case, as are
customarily made by issuers to underwriters in underwritten offerings of
securities similar to the Registrable Securities and confirm the same in
writing if and when requested. The Holders of Registrable Securities to be
distributed through such underwriting may, at their option, require that
any or all of the representations and warranties by, and the other
agreements on the part of the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holders and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement shall also be conditions
precedent to the obligations of such Holders. Any such Holder shall not be
required to make any representations or warranties to or agreements with
the Company or the underwriters other than representations, warranties or
agreements regarding such Holder, such Holder's Registrable Securities,
such Holder's intended method of distribution, information requested by
such Holder in writing to be included in the registration statement, and
any other representation required by law. No such Holder shall be required
to indemnify the underwriters or any other Person for any breach by the
Company of its representations, warranties or agreements.
(ii) Furnish, at the request of any Holder, on the date that such
Registrable Securities are delivered to the underwriters for sale in
connection with a registration, if such Registrable Securities are being
sold through underwriters, (A) a signed counterpart of an opinion, dated
such date, of counsel representing the Company for the purposes of such
registration, in form, scope and substance reasonably satisfactory to such
Holder, addressed to the underwriters and to such Holder and (B) a letter,
dated such date, signed by the independent certified public accountants of
the Company, in form, scope and substance reasonably satisfactory to such
Holder, addressed to the underwriters and to such Holder, covering
substantially the same matters with respect to the Registration Statement
(and the Prospectus included therein) and, in the case of the independent
certified public accountants' letter, with respect to events subsequent to
the date of the applicable financial statements, as are customarily covered
in opinions of issuers' counsel and in independent certified public
accountants' letters delivered to the underwriters in underwritten public
offerings of securities and, in the
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case of the independent certified public accountants' letter, such other
financial matters, and, in the case of the legal opinion, such other legal
matters, as such Holder (or the underwriters) may reasonably request.
(iii) If such Registrable Securities are not being sold through
underwriters, furnish at the request of any Holder (A) within 25 days after
such request, a signed counterpart of an opinion, dated such date, of
counsel representing the Company for the purposes of such registration, in
form, scope and substance reasonably satisfactory to such Holder, and
addressed to such Holder, covering substantially the same matters with
respect to the Registration Statement (and the Prospectus included therein)
as are customarily covered in opinions of issuers' counsel delivered to the
underwriters in underwritten public offerings of securities and such other
legal matters as such Holder may reasonably request; provided that the
Company shall be required to deliver no more than two such opinions, and
(B) on the date that the registration statement with respect to such
Registrable Securities becomes effective, a letter signed by the
independent certified public accountants of the Company, in form, scope and
substance reasonably satisfactory to such Holder, addressed to such Holder,
covering substantially the same matters with respect to the Registration
Statement (and the Prospectus included therein) and with respect to events
subsequent to the date of the applicable financial statements, as are
customarily covered in independent certified public accountants' letters
delivered to underwriters in underwritten public offerings of securities,
and such other financial matters as such Holder may reasonably request.
Notwithstanding the foregoing, the Company may satisfy its obligation under
clause (B) of the immediately preceding sentence by making representations
and warranties in form, scope and substance satisfactory to such Holder.
(m) Provide (i) the Holders and their counsel, (ii) the underwriters
(which term, for purposes of this Agreement, shall include a Person deemed
to be an underwriter within the meaning of Section 2(11) of the Securities
Act), if any, thereof, (iii) the sales or placement agent, if any, thereof
and (iv) one counsel for such underwriters or agents, reasonable
opportunity to participate in the preparation of such Registration
Statement, the Prospectus included therein or filed with the SEC, and each
amendment or supplement thereto.
(n) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders "earning statements"
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Securities
are sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of each first fiscal quarter of the Company
after the effective date of the Registration Statement
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during which Registrable Securities are sold pursuant to the Registration
Statement, which statements shall cover said 12-month periods.
(o) Cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities and their respective counsel
in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD"), including, if the
Conduct Rules of the NASD or any successor thereto as amended from time to
time so require, engaging a "qualified independent underwriter" ("QIU") as
contemplated therein and making Records available to such QIU as though it
were a participating underwriter for the purposes of Section 11 and
otherwise applying the provisions of this Agreement to such QIU (including
indemnification) as though it were a participating underwriter.
(p) Cause the Registrable Securities covered by the Registration
Statement to be listed at all times on each securities exchange or
automated quotation system on which similar securities issued by the
Company are listed.
(q) Use its best efforts to take all other steps necessary or
advisable to effect the registration of the Registrable Securities.
The Company may condition its obligations hereunder on the receipt
from each seller of Registrable Securities as to which registration is being
effected of such information regarding such seller and the distribution of such
Registrable Securities as shall be required to effect the registration of such
seller's Registrable Securities. Each seller as to which the Shelf Registration
is being effected agrees to furnish promptly to the Company all information
required to be disclosed so that the information previously furnished to the
Company by such seller is not materially misleading and does not omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made.
Each Holder agrees by acquisition of such Registrable Securities that,
upon actual receipt of any notice from the Company of the happening of any event
of the kind described in Section 4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, such
Holder will forthwith discontinue disposition of such Registrable Securities
covered by the Registration Statement or Prospectus until such Holder's receipt
of the copies of the supplemented or amended Prospectus contemplated by Section
4(k) hereof, or until it is advised in writing by the Company that the use of
the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto.
5. REGISTRATION EXPENSES.
All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by the Company, including,
without limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings
12
required to be made with the NASD in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Registrable Securities and
determination of the eligibility of the Registrable Securities for investment
under the laws of such jurisdictions as provided in Section 4(h) hereof)), (ii)
printing expenses (including, without limitation, expenses of printing
prospectuses if the printing of prospectuses is requested by the managing
underwriter or underwriters, if any, or by the Holders of a majority (in number
of shares) of the Registrable Securities included in any Registration
Statement), (iii) messenger, telephone or delivery expenses, (iv) fees and
disbursements of counsel for the Company and reasonable fees and disbursements
of one counsel for the sellers of Registrable Securities (selected by the
Holders (by number of shares) of a majority of Registrable Securities being
sold), (v) fees and disbursements of all independent certified public
accountants referred to in Section 4(l)(ii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance covering officers and directors of the Company, if the Company desires
such insurance, (vii) fees and expenses of all other Persons retained by the
Company, (viii) internal expenses of the Company (including, without limitation,
all salaries and expenses of officers and employees of the Company performing
legal or accounting duties), (ix) the expense of any annual audit, (x) the fees
and expenses incurred in connection with the listing or quoting of the
securities to be registered on any securities exchange or automated quotation
system and (xi) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements and any other documents necessary in order to comply with this
Agreement.
Notwithstanding anything in this Agreement to the contrary, each Holder shall
pay all underwriting discounts and brokerage commissions with respect to any
Registrable Securities sold by it.
6. INDEMNIFICATION.
The Company agrees to indemnify and hold harmless (i) each Holder,
(ii) each Person, if any, who controls (within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act) any Holder (any of the
Persons referred to in this clause (ii) being hereinafter referred to as a
"controlling person") and (iii) the respective officers, directors, partners,
employees, representatives and agents of the Holders (including predecessor
Holders) or any controlling person (any person referred to in clause (i), (ii)
or (iii) may hereinafter be referred to as an "INDEMNIFIED HOLDER"), from and
against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or Prospectus (including
any amendment or supplement thereto or any related 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
13
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Holder
furnished to the Company in writing by such Holder expressly for use in therein;
provided, however, that the Company shall not be liable to any Indemnified
Holder under the indemnity agreement of this paragraph with respect to any
preliminary prospectus to the extent that any such loss, claim, damage,
liability, judgment or expense of such Indemnified Holder results from the fact
that such Indemnified Holder sold Registrable Securities under a Registration
Statement to a Person as to whom it shall be established that there was not sent
or given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (or of the preliminary prospectus as then amended or supplemented if
the Company shall have furnished such Indemnified Holder with such amendment or
supplement thereto on a timely basis), in any case where such delivery is
required by applicable law and the loss, claim, damage, liability or expense of
such Indemnified Holder results from an untrue statement or omission of a
material fact contained in the preliminary prospectus which was corrected in the
Prospectus (including the preliminary prospectus as then amended or supplemented
if the Company shall have furnished such Indemnified Holder with such amendment
or supplement thereto, as the case may be, on a timely basis). The Company shall
notify each Indemnified Holder promptly of the institution, threat or assertion
of any claim, proceeding (including any governmental investigation) or
litigation in connection with the matters addressed by this Agreement which
involves the Company or such Indemnified Holder.
Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, officers and each Person 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 each Holder, but only with reference to such losses, claims,
damages or liabilities which are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information relating to a Holder furnished to the Company in writing by
such Holder expressly for use in any Registration Statement or Prospectus
(including any amendment or supplement thereto or any related preliminary
prospectus).
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "INDEMNIFIED PERSON") shall promptly
notify the Person or Persons against whom such indemnity may be sought (each an
"INDEMNIFYING PERSON") in writing, and such Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 6 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person 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 Person unless (i) such
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) such Indemnifying Person has failed within a reasonable time to
retain counsel
14
reasonably satisfactory to such Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include an Indemnifying
Person and an Indemnified Person and the Indemnified Person reasonably concludes
that representation of both parties by the same counsel would be inappropriate
due to actual or potential conflicting interests between them. It is understood
that an Indemnifying Person shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Indemnified Persons, and that all such fees and expenses shall be reimbursed
as they are incurred. Any such separate firm for the Indemnified Holders shall
be designated in writing by the Holders of a majority (by number of shares) of
the Registrable Securities, and any such separate firm for the Company, its
directors, officers and such control Persons of the Company shall be designated
in writing by the Company. The Indemnifying Person 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,
such Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 6 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Person on the one hand, and the Indemnified Person on the
other, in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the parties 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 or such Indemnified Holder and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
Each party hereto agrees that it would not be just and equitable if
contribution pursuant to this Section 6 were determined by pro-rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and 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 incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, in no event shall
15
any Holder be required to contribute or indemnify for any amount in excess of
the net proceeds received by such Holder from the sale of the Registrable
Securities pursuant to the Shelf Registration Statement. 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.
If the Company and any Holders enter into an underwriting agreement
that contains indemnification provisions inconsistent with this Section 6, the
terms of this Section 6 will supersede such terms of the underwriting agreement.
The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any Person controlling any Holder or by or on behalf of the
Company, its officers or directors or any other Person controlling any of the
Company and (iii) acceptance of and payment for any of the Registrable
Securities.
7. RULES 144 AND 144A.
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner in accordance with
the requirements of the Securities Act and the Exchange Act and, for so long as
any Registrable Securities remain outstanding, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder or
beneficial owner of Registrable Securities, make available such information as
is necessary to permit sales pursuant to Rule 144A under the Securities Act. The
Company further covenants that, for so long as any Registrable Securities remain
outstanding, it will use its best efforts to take such further action as any
Holder may reasonably request, all to the extent required from time to time to
enable such holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule
144(k) or Rule 144A under the Securities Act, as such rules may be amended from
time to time, or (b) any similar rule or regulation hereafter adopted by the
SEC.
8. UNDERWRITTEN REGISTRATIONS.
If any of the Registrable Securities covered by the Shelf Registration
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority (by number of shares) of the Registrable Securities
to be included in such offering and will be reasonably acceptable to the
Company.
16
No Holder may participate in any underwritten registration hereunder
unless such Holder (a) agrees to sell such Holder's Registrable 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, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
9. BOARD OBSERVATION RIGHTS AND OTHER INFORMATION.
PCP shall have the right (i) to attend (or have its affiliated
designee attend) all meetings of the board of directors of the Company as a
non-voting observer, (ii) receive all distributions of materials and notices
given to members of the Company's board of directors and (iii) receive all
distributions of materials and notices given to stockholders of the Company;
provided, however, that such right will terminate when PCP and PCPMF
collectively fail to hold at least 5% of the number of shares of Common Stock
(which shall be deemed to include all shares of Common Stock for which any
unexercised portion of a Warrant is exercisable) that they collectively held
immediately after the Closing Date.
All expenses and disbursements incurred or made by PCP related to the
exercise of its rights under this Section 9 shall be reimbursed by the Company
promptly after demand by PCP.
10. PREEMPTIVE RIGHTS.
If the Company offers to issue (an "OFFER") to any Person other than a
Holder of a Warrant any additional equity securities (including options,
warrants or similar securities) other than Excluded Securities, it shall give
each Holder of a Warrant with respect to which a portion thereof remains
unexercised (a "WARRANT HOLDER") the right to purchase, on the same terms and
conditions as such securities are being offered for sale to such Person, a
portion of such securities sufficient to maintain such Holder's percentage
ownership in the Company represented by such unexercised Warrant. The Company
shall provide written notice to each Warrant Holder of any Offer, which notice
shall contain the terms and conditions of the Offer. Each Warrant Holder shall
have a period equal to the greater of (i) 15 Business Days from the date such
Warrant Holder receives such notice from the Company and (ii) the period of time
that such Person will be permitted to accept the Offer, to exercise its right to
purchase such securities under this Section 10. A Warrant Holder shall exercise
its right by providing written notice to the Company of its intent to purchase
and the number of securities which it intends to purchase. Thereafter, such
Warrant Holder shall have a period equal to the greater of (i) 10 days from the
date such Warrant Holder gives such notice and (ii) the period of time that such
Person is required to purchase and pay for securities pursuant to the Offer, to
purchase and pay for such securities pursuant to this Section 10. If a Warrant
Holder exercises its right to purchase securities pursuant to this Section 10,
its obligation to purchase such securities shall be subject to the consummation
of the transaction that gave rise to the notice received by such Warrant Holder
from the Company.
17
"EXCLUDED SECURITIES" shall mean (i) issuances of up to 150,000 shares of
Common Stock upon exercise of warrants of the Company outstanding as of the date
hereof, (ii) issuances of equity securities to officers, directors or employees
of, or consultants to, the Company as compensation for services, directly or
pursuant to a stock option plan or an employee stock purchase plan approved by
the Company's board of directors, (iii) issuances of Common Stock or
equity-equivalent securities in an offering to the public pursuant to a
registration statement filed under the Securities Act, (iv) issuances of Common
Stock or equity-equivalent securities as a dividend or distribution to
stockholders of the Company generally or (v) issuances of Common Stock or
equity-equivalent securities in connection with joint ventures or acquisitions,
whether by merger, consolidation, purchase of assets, exchange of stock,
reorganization, or otherwise.
11. INFORMATION COVENANTS.
Until each of PCP and PCPMF has sold or otherwise disposed of its
Warrant and Warrant Shares, the Company shall:
(a) Make available for inspection by a representative designated by
such Person, any underwriter participating in any disposition of such Person's
Registrable Securities, or any attorney, accountant or other agent retained by
any such Person or underwriter (collectively, the "INSPECTORS"), at the offices
where normally kept, during reasonable business hours upon reasonable notice,
all financial and other records, pertinent corporate documents and instruments
and agreements of the Company and its subsidiaries (collectively, the "RECORDS")
as shall be reasonably requested by such Inspectors, and cause the officers,
directors and employees of the Company and its subsidiaries to supply all
information reasonably requested by any such Inspector in connection therewith
and to meet with the Inspectors; and
(b) Deliver to such Person the financial statements as required
pursuant to paragraphs 6A(i), (ii), (iii), (iv) and (v) of the Purchase
Agreement as in effect on the date hereof, which paragraphs are incorporated
herein by reference, except that the obligations of the Company shall be in
favor of PCP and PCPMF.
12. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS The Company has not, as of the date
hereof, and the Company shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. The Company has not entered and will not enter into any
agreement with respect to any of its securities that will grant to any Person
piggyback registration rights with respect to a Registration Statement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES The Company shall
not, directly or indirectly, take any action with respect to the Registrable
Securities as a class
18
that would adversely affect the ability of the Holders to include Registrable
Securities held by them in a registration undertaken pursuant to this Agreement.
(c) AMENDMENTS AND WAIVERS The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Company and the Holders of not less than a majority (by number of
shares) of the Registrable Securities then outstanding; provided, however, that
(i) Section 6 and this Section 12(c) may not be amended, modified or
supplemented without the prior written consent of the Company and each Holder
(including, in the case of an amendment, modification or supplement of Section 6
that would be given retroactive effect, any Person that was a Holder of
Registrable Securities disposed of pursuant to any Registration Statement and
whose rights under Section 6 would be affected by such amendment, modification
or supplement) and (ii) Section 9 may not be amended, modified or supplemented
without the prior written consent of PCP. 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 Holders whose securities are being
sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders may
be given by Holders of at least a majority (by number of shares) of the
Registrable Securities being sold by such Holders pursuant to the Registration
Statement.
(d) NOTICES All notices, requests, consents and other communications
provided for or permitted hereunder shall be deemed to be sufficient if
contained in a written instrument and delivered by facsimile transmitted to such
party at the facsimile number set forth below (or such other facsimile number as
may hereafter be designated by the recipient to the sender), by
nationally-recognized overnight courier or first class registered or certified
mail, postage prepaid, in each case addressed to such party at the address set
forth below (or such other address as may hereafter be designated by the
addressee to the addressor):
(1) if to PCP or PCPMF:
c/o Prudential Capital Group
Xxxx Xxxxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Managing Director
Facsimile: (000) 000-0000
with copies to:
Xxxxxx Godward LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
19
(2) if to the Company:
Air Methods Corporation
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
with copies to:
Xxxxx Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx, Esq.
(3) if to any other Holder, addressed to such other Holder at such
address as such other Holder shall have specified to the Company
in writing from time to time or, if any such other Holder shall
not have so specified an address to the Company, then addressed
to such other Holder in care of the last holder of such Security
which shall have so specified an address to the Company.
All such notices, requests, consents and other communications shall be
deemed to have been duly given: when delivered, if delivered in person; three
Business Days after being deposited in the mail, postage prepaid, if sent by
first class registered or certified mail; one Business Day after being timely
delivered to a nationally-recognized overnight courier; and when receipt of
complete transmission is received by the addressee, if sent by facsimile.
(e) SUCCESSORS AND ASSIGNS Except for rights specific to PCP and
PCPMF, this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto, including the Holders;
provided, however, that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and except to the extent
such successor or assign holds Registrable Securities.
(f) COUNTERPARTS This Agreement may be executed in any number of
counterparts and by the parties hereto in separate 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.
(g) HEADINGS The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(H) GOVERNING LAW THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
20
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS SITTING IN MANHATTAN,
NEW YORK CITY, THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT.
(i) 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 best efforts to find and employ an 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.
(j) SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES Whenever the
consent or approval of Holders of a specified percentage of the Registrable
Securities (by number of shares) is required hereunder, Registrable Securities
held by the Company or its affiliates (as such term is defined in Rule 405 under
the Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) THIRD PARTY BENEFICIARIES Holders are intended third party
beneficiaries of this Agreement and this Agreement may be enforced by such
Persons.
(l) ENTIRE AGREEMENT This Agreement, together with the Purchase
Agreement and the other Transaction Documents (as defined in the Purchase
Agreement), is intended by the parties as a final and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein and any and all prior oral or written
agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between PCP and PCPMF, on the one
hand, and the Company, on the other hand, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
[signature page(s) to follow]
21
AIR METHODS CORPORATION
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: CEO
PRUDENTIAL CAPITAL PARTNERS, L.P.
By: Prudential Capital Group, L.P., General Partner
By: /s/ Xxxxxxx X. XxXxxxxxx, Xx.
--------------------------------
Vice President
PRUDENTIAL CAPITAL PARTNERS MANAGEMENT FUND, L.P.
By: Prudential Investment Management, Inc.,
General Partner
By: /s/ Xxxxxxx X. XxXxxxxxx, Xx.
--------------------------------
Vice President
22
