13
REGISTRATION RIGHTS
AGREEMENT
By and Between
THE FAIRCHILD
CORPORATION
And
BANNER
AEROSPACE, INC.
Dated as
of July 7, 1998
REGISTRATION RIGHTS
AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of July 7, 1998, by and between The Fairchild
Corporation, a Delaware corporation (the "Company") and Banner
Aerospace, Inc., a Delaware corporation ("Banner").
R E C I T A L S:
On July 7, 1998, Banner announced its intention to purchase
up to 2.5 million shares of Class A Common Stock of the Company
through open market purchases (the "Subject Shares").
In connection therewith, the Company has agreed to grant
demand registration rights agreement in favor of Banner for the
registration and sale of such shares.
NOW, THEREFORE, the parties to this Agreement agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions.
"Affiliate" shall have the meaning given to such term in
Rule 12b-2 promulgated under the Exchange Act.
"Commission" shall mean the Securities and Exchange
Commission.
"Common Stock" shall mean the shares of Class A Common
Stock, $.10 par value, of the Company.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and all rules and regulations promulgated
thereunder.
"Holder" shall mean Banner or any Permitted Transferee of
Registrable Common Stock. There may be more than one Holder at
any time.
"NASDAQ" shall mean the National Association of Securities
Dealers Automated Quotation System.
"Person" shall mean any individual, group, partnership,
corporation, trust, joint stock company, unincorporated
organization, joint venture or other entity of whatever nature.
"Registration Statement" shall mean a registration statement
relating to the Common Stock on such form as counsel to the
Company deems appropriate to be filed with the Commission, as
such registration statement may be amended from time to time.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and all rules and regulations promulgated thereunder.
"Subject Shares" shall have the meaning ascribed in the
Recitals hereof.
1.2 Permitted Transferees. "Permitted Transferees" shall
mean any subsidiary of Banner to whom Banner has (a) transferred
five percent (5%) or more of the aggregate Subject Shares and (b)
assigned its registrations rights under this Agreement. In the
event that Banner transfers the requisite percentage of Subject
Shares and assigns its registration rights under this Agreement,
it shall be a condition precedent to such transfer and assignment
that Banner give prior written notice thereof to the Company.
1.3 Registrable Common Stock. "Registrable Common Stock"
means the Subject Shares held by Banner or its Permitted
Transferees (as the case may be), until such time as the Common
Stock ceases to be registrable as provided in Section 2.2 of this
Agreement.
1.4 Registration Expenses. "Registration Expenses" shall
mean any and all expenses reasonably attributable to the
registration of the Registrable Common Stock, including, without
limitation, the following expenses: (a) all filing fees; (b) all
fees and expenses of complying with securities or blue sky laws
(including reasonable fees and disbursements of counsel for the
underwriters in connection with blue sky qualification of the
Registrable Common Stock); (c) all fees and expenses incurred in
connection with the listing of the Registrable Common Stock on
any securities exchange or other market (including, but not
limited to, NASDAQ) pursuant to Section 3.4(j) of this Agreement
and all fees of the National Association of Securities Dealers;
(d) the fees and disbursements of counsel retained by the Company
in connection with each such registration or listing on a stock
exchange and of its independent public accountants; (e) the fees
and disbursements of counsel retained by Holder and any
underwriter; (f) all commissions, fees and disbursements of
underwriters; (g) all underwriting discounts and commissions
applicable to the Registrable Common Stock; (h) all printing
expenses; and (i) all other out-of-pocket expenses of the Company
incurred in connection with the registration of the Registrable
Common Stock.
ARTICLE II
SECURITIES SUBJECT TO THIS AGREEMENT
2.1 Securities Subject to this Agreement. The securities
entitled to the benefits of this Agreement are shares of the
Registrable Common Stock.
2.2 Termination of Entitlement. For purposes of this
Agreement, the Subject Shares will cease to be Registrable Common
Stock when: (a) a Registration Statement with respect to the
sale of the Subject Shares shall have become effective under the
Securities Act and the Subject Shares shall have been transferred
pursuant to such Registration Statement; (b) the Subject Shares
shall have been transferred pursuant to Rule 144 (or any
successor provisions) under the Securities Act; (c) certificates
for the Subject Shares not bearing a legend restricting transfer
thereof under the Securities Act shall have been delivered by the
Company and, in the opinion of counsel for the Company, transfer
of such shares may be made without registration or qualification
under the Securities Act; or (d) the Subject Shares shall have
ceased to be outstanding.
ARTICLE III
REGISTRATION RIGHTS
3.1 Demand Registration.
(a) Request for Registration. At any time, a Holder
of Registrable Common Stock may make a written request for
registration under the Securities Act of all or part of its
Registrable Common Stock (a "Demand Registration"). Except
as set forth below, there shall be no limit on the number of
Demand Registrations that may be requested by Banner or its
Permitted Transferees, as the case may be.
Such requests for a Demand Registration will specify
the aggregate number of shares proposed to be sold and will
also specify the intended method of disposition thereof.
The Company will use its best efforts to effect such
registration; provided, however, that the Company shall not
be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this
Agreement: (i) within sixty (60) days immediately following
the effective date of a Registration Statement pertaining to
a public offering of securities of the Company (other than a
registration relating solely to employee benefit plans);
(ii) if at the time of the request to register the Holder's
Registrable Common Stock, the Company gives notice within
thirty (30) days of such request that it intends to initiate
within sixty (60) days thereafter a registered public
offering (other than a registration relating solely to
employee benefit plans); or (iii) if at the time of the
request, the Holder could sell all of the Registrable Common
Stock requested to be registered under Rule 144 during the
three-month period following such request, or if, in the
opinion of counsel for the Company reasonably satisfactory
to the Holder, the proposed sale of its Registrable Common
Stock is otherwise exempt from registration under the
Securities Act.
(b) Effective Registration and Expenses. A
Registration Statement will not count as a Demand
Registration until it has become effective. Except as set
forth below in Section 3.1(d), in any registration initiated
as a Demand Registration, Banner or its Permitted
Transferee, as the case may be, will pay or cause to be paid
all Registration Expenses in connection therewith, whether
or not the Registration Statement becomes effective.
(c) Underwriting. If the Holder intends to distribute
the Registrable Common Stock covered by its request by means
of an underwritten offering, it shall so advise the Company
as a part of its request made pursuant to Section 3.1(a).
The Holder of the Registrable Common Stock to be registered
thereunder may select and obtain the investment banker or
investment bankers and manager or managers that will
administer the offering; provided, however, that such
investment bankers and managers must be reasonably
satisfactory to the Company.
(d) Priority on Demand Registration. If the
Underwriter does not limit the number of Registrable Common
Stock to be underwritten in a Demand Registration, the
Company may include securities for its own account or the
account of others in such registration if the underwriters
so agree and if the number of Registrable Common Stock which
would otherwise have been included in such registration and
underwriting will not thereby be limited. In the event that
the Company elects to include securities for its own account
or the account of others pursuant to this Section 3.1(d),
then notwithstanding anything to the contrary, the Company
will pay or cause to be paid, the pro rata portion of: (i)
any filing fees for such securities to be registered by the
Company; (ii) underwriting discounts and commissions
applicable to the Company's securities; and (iii) any
additional incremental costs, including without limitation,
printing expenses attributable to the offer, sale and
registration of the Company's securities in such Demand
Registration.
3.2 Piggy-Back Registration.
(a) If at any time or from time to time during the
five-year period commencing from the date of this Agreement,
the Company proposes to file a Registration Statement under
the Securities Act with respect to an offering for its own
account or for the account of others of any class of equity
security (other than a registration relating solely to
employee benefit plans or a registration on any registration
form which dos not include substantially the same
information as would be required to be included in a
Registration Statement covering the sale of Registrable
Common Stock), then the Company shall in each case give
written notice of such proposed filing to the Holder of
Registrable Common Stock at least sixty (60) days before the
anticipated filing date (the "Piggy-Back Registration
Notice"), and such notice shall offer the Holder the
opportunity to register such Registrable Common Stock as
such Holder may request in writing to the Company within
twenty (20) days after the date of the Piggy-Back
Registration Notice (a "Piggy-Back Registration").
(b) Underwriting. If the registration of which the
Company gives notice is for a registered public offering
involving an underwriting, the Company shall so advise the
Holder as part of the Piggy-Back Registration Notice. The
Company shall have the right to select and obtain the
services of the investment banker or investment bankers and
manager or managers that will administer the offering. The
right of a Holder to registration shall be conditioned upon
such Holder's participating in such underwriting and the
inclusion of such Holder's Registrable Common Stock in the
underwriting to the extent provided herein.
(c) Subject to the provisions of Section 3.2(d), the
Company shall use its best efforts to cause the managing
underwriter or underwriters of a proposed underwritten
offering to commit to the Holder of Registrable Common Stock
who has requested within twenty (20) days of receipt of the
Company's notice to be included in the registration for such
offering (the "Requesting Holder") to include such
Registrable Common Stock in such offering on the same terms
and conditions as any similar securities of the Company
included therein; provided, however, that the Company shall
not be required to effect any such registration for any
Holder if at the time of the request such Holder could sell
all of the Registrable Common Stock specified in its request
under Rule 144, or in any other transaction that is exempt
from registration under the Securities Act, during the three-
month period following such request.
(d) Priority on Piggy-Back Registration.
Notwithstanding any other division of this Section 3.2, if
the underwriter for the Company determines that market
factors require a limitation of the number of shares to be
underwritten, the underwriter may exclude some or all
Registrable Common Stock from such registration and
underwriting. The Company shall so advise the Holder and
the number of shares of Registrable Common Stock to be
offered by the Holder pursuant to the Piggy-Back
Registration will be reduced to the extent necessary to
reduce the total number of shares of Common Stock to be
included in such offering to the number recommended by the
underwriter(s).
(e) Expenses. In connection with a Piggy-Back
Registration, the Company will pay all of the Registration
Expenses, except for the pro rata portion of: (i) any filing
fees attributable to the Holder's Registrable Common Stock;
(ii) underwriting discounts and commissions applicable to
the Holder's Registrable Common Stock; and (iii) any
additional incremental costs, including, without limitation,
printing expenses attributable to the offer, sale and
registration of the Holder's Registrable Common Stock in
such Piggy-Back Registration.
3.3 Holdback Agreements.
(a) Registrations on Public Sale or Distribution. To
the extent not inconsistent with applicable law, the Holder
agrees not to effect any public sale or distribution of
Registrable Common Stock, including a sale pursuant to Rule
144 under the Securities Act during the sixty (60) day
period prior to, and during the ninety (90) day period
beginning on, the effective date of a Registration Statement
in which shares of its Registrable Common Stock are
registered (except as part of such registration), if and to
the extent requested by the Company or by the underwriter(s)
in the case of an underwritten public offering.
(b) Stop Orders; Suspension of Effectiveness. If, in
the case of either a Demand Registration or a Piggy-Back
Registration, a stop order is imposed or if for any other
reason the effectiveness of either a Demand Registration or
Piggy-Back Registration is suspended, then the Holder agrees
to stop distribution of its Common Stock thereunder
immediately upon written notice thereof from the Company.
3.4 Registration Procedures. Whenever the Holder has
requested that any Registrable Common Stock be registered
pursuant to this Agreement, the Company will use its best efforts
to effect the registration of such Registrable Common Stock in
accordance with the intended method of distribution therefore as
quickly as is reasonably practicable, and in connection with any
such request, the Company will:
(a) in connection with a request pursuant to Section
3.1, prepare and file with the Commission, not later than
ninety (90) days after receipt of a request to file a
Registration Statement with respect to Registrable Common
Stock, a Registration Statement on any form for which the
Company then qualifies and which counsel for the Company
shall deem appropriate and which form shall be available for
the registration of such Registrable Common Stock in
accordance with the intended method of distribution thereof,
and use its best efforts to cause such Registration
Statement to become effective; provided that if the Company
shall furnish to the Holder certified resolutions signed by
the Chief Executive Officer of the Company stating that in
the good faith judgement of the Board of Directors it would
be significantly disadvantageous to the Company and its
stockholders for such a Registration Statement to be filed
on or before the date filing would be required, the Company
shall have an additional period of not more than sixty (60)
days within which to file such Registration Statement;
(b) in connection with a registration pursuant to
Section 3.1, prepare and file with the Commission such
amendments and supplements to such Registration Statement
and the prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective for
a period of not less than one hundred eighty (180) days or
such shorter period which will terminate when all
Registrable Common Stock covered by such Registration
Statement have been sold (but not before the expiration of
the ninety (90) day period referred to in Section 4(3) of
the Act and Rule 174 thereunder, if applicable), and comply
with the provisions of the Securities Act with respect to
the disposition of all Registrable Common Stock covered by
such Registration Statement during such period in accordance
with the intended methods of disposition by the Holders set
forth in such Registration Statement;
(c) furnish to each seller of Registrable Common
Stock, prior to filing a Registration Statement, copies of
such Registration Statement as proposed to be filed, and
thereafter such number of copies of such Registration
Statement, each amendment and supplement thereto (in each
case including all exhibits thereto), the prospectus
included in such Registration Statement (including each
preliminary prospectus) and such other documents as such
seller may reasonably request in order to facilitate the
disposition of the Registrable Common Stock owned by such
seller;
(d) use its best efforts to register or qualify such
Registrable Common Stock under such other securities or blue
sky laws of such jurisdiction as any seller reasonably
requests and do any and all other acts and things which may
be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdiction of the
Registrable Common Stock owned by such seller; provided,
that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this paragraph
(d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process
in any such jurisdiction;
(e) notify each seller of the Registrable Common
Stock, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus
included in such Registration Statement contains an untrue
statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein misleading. The Company will prepare a
supplement or amendment to such prospectus as may be
appropriate and use its best efforts to cause such
supplement or amendment to become effective so that, as
thereafter delivered to the purchasers of such Registrable
Common Stock, such prospectus will not contain an untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(f) enter into customary agreements (including an
underwriting agreement in customary form) and take such
other actions as are reasonably required in order to
expedite or facilitate the disposition of such Registrable
Common Stock;
(g) make available for inspection by any seller of
Registrable Common Stock, any underwriter participating in
any disposition pursuant to such Registration Statement, and
any attorney, accountant or other agent retained by any such
seller or underwriter (collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records")
as shall be reasonably necessary to enable them to exercise
their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information
reasonably requested by any such Inspectors in connection
with such Registration Statement. Records which the Company
determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of
such records is necessary to avoid or correct a misstatement
or omission in the Registration Statement or (ii) the
release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction. Each
seller of Registrable Common Stock agrees that it will, upon
learning that disclosure of such Records is sought in a
court of competent jurisdiction, give notice to the Company
and allow the Company, at the Company's expense, to
undertake appropriate action to prevent disclosure of the
Records deemed confidential.
(h) in the event such sale is pursuant to an
underwritten offering, use its best efforts to obtain (i) a
"cold comfort" letter from the Company's independent public
accountants in customary form and covering such matters of
the type customarily covered by "cold comfort" letters as
the Holder or the managing underwriter reasonably request
and (ii) an opinion or opinions of counsel for the Company
in customary form;
(i) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably
practicable, an earnings statement covering a period of
twelve (12) months, beginning within three months after the
effective date of the Registrable Statement, which earning
statement shall satisfy the provisions of Section 11(a) of
the Securities Act; and
(j) cause all such Registrable Common Stock to be
listed on each securities exchange or market on which
similar securities issued by the Company are then listed,
provided that the applicable listing requirements are
satisfied.
The Company may require each seller of Registrable Common
Stock as to which any registration is being effected to furnish
to the Company such information regarding the distribution of
such securities as the Company may from time to time reasonably
request in writing.
The Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in
Section 3.4(e) hereof, such Holder will forthwith discontinue
disposition of Registrable Common Stock pursuant to the
Registration Statement covering such Registrable Common Stock
until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3.4(e) hereof, and, if
so directed by the Company such Holder will deliver to the
Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the
prospectus covering such Registrable Common Stock at the time of
receipt of such notice.
3.5 Indemnification and Contribution.
(a) Indemnification by the Company. The Company
agrees to indemnify, to the extent permitted by law, the
Holder, its officers, directors and agents and each Person
who controls such Holder (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act)
from and against any losses, claims, damages, liabilities
and expenses resulting from any untrue statement of material
fact contained in any Registration Statement, prospectus or
preliminary prospectus or any omission of a material fact
required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in the
light of the circumstances under which they were made) not
misleading, except insofar as the same are caused by or
contained in any information or affidavit with respect to
such Holder furnished in writing to the Company by, or on
behalf of, such Holder, expressly for inclusion in any
Registration Statement or prospectus.
(b) Indemnification by Holder. In connection with any
Registration Statement in which the Holder is participating,
such Holder will furnish to the Company in writing such
information and affidavits with respect to such Holder as
the Company reasonably requests for use in connection with
any such Registration Statement or prospectus and agrees to
indemnify, to the extent permitted by law, the Company, its
directors and officers and each Person who controls the
Company (within the meaning of Section 14 of the Securities
Act or Section 20 of the Exchange Act) from and against any
losses, claims, damages, liabilities and expenses resulting
from any untrue statement of a material fact or any omission
or a material fact required to be stated in the Registration
Statement or preliminary, final or summary prospectus or any
amendment thereof or supplement thereto, or necessary to
make the statements therein (in the case of a preliminary,
final or summary prospectus, in the light of the
circumstances under which they were made) not misleading to
the extent, but only to the extent, that such untrue
statement or omission is contained in any information or
affidavit with respect to such Holder so furnished in
writing by, or on behalf of, such Holder expressly for
inclusion in any Registration Statement or prospectus.
(c) Conduct of Indemnification Proceedings. Any
person entitled to indemnification hereunder agrees promptly
to give written notice to the indemnifying party after the
receipt of such person of any written notice of the
commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which
such person will claim indemnification or contribution
pursuant to this Agreement and, unless in the reasonable
judgment of such indemnified party a conflict of interest
may exist between such indemnified party and the
indemnifying party with respect to such claim, permit the
indemnifying party to participate in and assume the defense
of such claim with counsel reasonably satisfactory to such
indemnified party. If the indemnifying party is not
entitled to, or elects not to, assume the defense of a
claim, it will not be obligated to pay the fees and expenses
of more than one counsel with respect to such claim, unless
in the reasonable judgment of such indemnified party a
conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect
to such claim, in which event the indemnifying party shall
be obligated to pay the reasonable fees and expenses of such
additional counsel or counsels. The indemnifying party will
not be subject to any liability for any settlement made
without its consent, which consent shall not be unreasonably
withheld.
(d) Contribution. If the indemnification provided for
in this Section 3.5 from the indemnifying party is
unavailable to an indemnified party hereunder in respect to
any losses, claims, damages, liabilities or expenses
referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable to such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in
such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in such losses
claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative fault
of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission
to state a material fact, has been made by, or related to
information supplied by, such indemnifying party and
indemnified parties, and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed
to include, subject to the limitations set forth in Section
3.5(c), any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation
or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 3.5(d)
were determined by pro rata allocation or by any other
method of allocation which does not take account of the
equitable considerations referred to in the immediately
preceding paragraph. 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.
3.6 Participation in Underwritten Registrations. The
Holder may not participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell its Registrable
Common Stock on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to
approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the
terms of such underwriting arrangements.
3.7 Rule 144. The Company covenants that it will file the
reports required to be filed by it under the Exchange Act and the
rules and regulations adopted by the Commission thereunder; and
it will 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 Common Stock without registration
under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144, or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any
Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
ARTICLE IV
MISCELLANEOUS
4.1 Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its securities
which is inconsistent with this Agreement. The Company has not
previously entered into any agreement with respect to any of its
securities granting any registration rights to any person.
4.2 Amendments and Waivers. Except as otherwise provided
herein, 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 unless the Company
has obtained the written consent of Holders of at least a
majority of the Registrable Common Stock which are then
outstanding affected by such amendment, modification, supplement,
waiver or departure.
4.3 Notices. All notices, requests, demands and other
communications under this Agreement must be in writing and will
be deemed duly given, unless otherwise expressly indicated to the
contrary, (i) when personally delivered, (ii) upon receipt of a
telephonic facsimile transmission with confirmed telephonic
transmission answer back, (iii) three (3) days after having been
deposited in the United States Mail, certified or registered,
return receipt required, postage prepaid, or (iv) business day
after having been dispatched by a nationally recognized overnight
courier service, addressed to the parties or their permitted
assigns at the following addresses (or at such other address or
number as is given in writing by any of the parties to the
others) as follows:
If to the Company: The Fairchild Corporation
45025 Aviation Drive
Suite 400
Dulles, VA 20166-7516
Attn: Senior Vice President
If to Banner: Banner Aerospace, Inc.
45025 Aviation Drive
Suite 300
Dulles, VA 20166-7556
Attn: Senior Vice President
4.4 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and permitted assigns.
4.5 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.
4.6 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
4.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
4.8 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability
of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges
of the parties to this Agreement shall be enforceable to the
fullest extent permitted by law.
4.9 Entire Agreement. This Agreement constitutes the
entire agreement with respect to the subject matter hereof and
supersedes all prior written and oral agreements with respect
thereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
THE FAIRCHILD CORPORATION
By: Donald E. Miller, Sr. Vice
President
BANNER AEROSPACE, INC.
By: Eugene W. Juris, Vice
President and CFO