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EXHIBIT 10.24
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"AGREEMENT") which shall be effective as of February 21, 1997, is made and
entered into by and among First Aviation Services Inc., a Delaware corporation
(the "COMPANY"), and FAS Inc., a Delaware corporation (the "INVESTOR").
RECITALS
WHEREAS, the Investor is a substantial shareholder of the Company;
and
WHEREAS, the Company contemplates conducting an initial public
offering and in connection therewith, the Investor desires to have future
registration rights covering the "REGISTRABLE SECURITIES" (as such term is
defined in Section 1) of the Investor;
WHEREAS, the Company and the Investor entered into that certain
Registration Rights Agreement, dated as of December 20, 1996 (the "Initial
Registration Rights Agreement"), pursuant to which the Investor was granted
certain registration rights, and the parties now wish to amend and restate in
its entirety the Initial Registration Rights Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements herein contained, the parties, intending to be
legally bound, hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) the term "BONA FIDE PUBLIC OFFERING" means an
underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended ("1933 ACT"),
covering the offer and sale of Common Stock of the Company in which
aggregate proceeds to the Company and the Investor exceed $10,000,000;
(b) the term "COMMON STOCK" means the Company's
authorized voting common stock, $.01 par value, and any class of
securities issued in exchange for the Common Stock or into which the
Common Stock is converted;
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(c) the term "HOLDER" means any person owning of
record Registrable Securities or any permitted assignee thereof in
accordance with Section 11 hereof;
(d) the term "INITIATING HOLDERS" means the Holders
of 10% or more of the Registrable Securities then outstanding;
(e) the term "REGISTRABLE SECURITIES" means: (i) the
551,000 shares of Common Stock of the Company owned by the Investor as
of the date hereof, and (ii) any Common Stock of the Company issued as
(or issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, such Common
Stock, excluding in all cases, however, any shares of Common Stock that
are sold by a Holder in a transaction in which its rights under this
Agreement are not assigned;
(f) the term "REGISTRATION EXPENSES" means all
reasonable fees and disbursements of one counsel to the Holders
(selected by those holding a majority of the shares being registered)
and all expenses incurred by the Company in complying with Sections 2,
3 and 14 hereof, including, without limitation, all registration and
filing fees, underwriters' expense allowances, printing expenses, fees
and disbursements of counsel for the Company, blue sky fees and
expenses, and the expense of any special audits incident to or required
by any such registration (but not including the compensation of regular
employees of the Company which shall be paid in any event by the
Company);
(g) the terms "REGISTER," "REGISTERED" and
"REGISTRATION" refer to a registration effected by preparing and filing
a registration statement or similar document in compliance with 1933
Act, and the declaration or ordering of the effectiveness of such
registration statement or document by the Securities and Exchange
Commission;
(h) the term "SELLING EXPENSES" means all
underwriting discounts and selling commissions applicable to the sale
of Registrable Securities and the fees and disbursements of any
counsel, other than the primary counsel to the Holders, engaged by the
Holders; and
(i) the number of shares of Registrable Securities
"THEN OUTSTANDING" shall be the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock which
upon issuance of
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then exercisable or convertible securities will be, Registrable
Securities.
2. DEMAND REGISTRATION RIGHTS.
(a) If the Company shall receive, at any time more
than 180 days after the consummation of the Company's initial bona fide
public offering, a written request from the Initiating Holders with
respect to the Registrable Securities, that the Company file a
registration statement under the 1933 Act covering the registration of
at least 5% of the Registrable Securities then outstanding (or any
lesser percentage if the anticipated aggregate offering price, net of
underwriting discounts and commissions, would exceed $5,000,000, the
Company shall promptly give written notice of such request (together
with a list of the jurisdictions in which the Initiating Holders intend
to attempt to qualify such securities under applicable state securities
laws) to all Holders and shall as soon as practicable, subject to the
limitations of this Section 2, effect the registration under the 1933
Act of all such Registrable Securities which the Initiating Holders
request to be registered, together with all of the Registrable
Securities of any other Holder or Holders who so request by notice to
the Company which is given within 30 days after the notice from the
Company described above. Notwithstanding the foregoing, if the Company
shall furnish to the Initiating Holders a certificate signed by the
Chief Financial Officer of the Company stating that in the good faith
judgment of the Board of Directors it would be seriously detrimental to
the Company for a registration statement to be filed in the near future
(based on the disclosure of non-public information material to the
Company that would be required by such registration statement), then
the Company's obligation to use its best efforts to file a registration
statement shall be deferred for a period not to exceed 60 days;
provided, however, that the Company shall not obtain such a deferral
more than once in any 12-month period.
(b) If the Initiating Holders intend to distribute
the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their
request made pursuant to this Section 2 and the Company shall include
such information in the written notice referred to in Section 2(a). In
such event, the right of any Holder to include its Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
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Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders, by the
underwriter, by the Company, and by such Holder) to the extent provided
herein.
(c) All Holders proposing to distribute their
securities through such underwriting (together with the Company as
provided in Section 4(e)) shall enter into an underwriting agreement in
customary form with the representative of the underwriter or
underwriters selected for such underwriting by a majority in interest
of the Initiating Holders and reasonably acceptable to the Company.
Notwithstanding any other provisions of this Section 2, if the
underwriter advises the Company in writing that marketing factors
require a limitation of the number of shares to be underwritten, the
Company shall so advise all Holders of Registrable Securities, and the
number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all Holders
thereof pro rata based on the number of shares for which registration
was requested. No Registrable Securities excluded from the underwriting
by reason of the underwriter's marketing limitation shall be included
in such registration. If any Holder of Registrable Securities
disapproves of the terms of the underwriting, such person may elect to
withdraw therefrom by written notice to the Company, the underwriter
and, unless otherwise provided, the Initiating Holders. The securities
so withdrawn shall also be withdrawn from registration. If the
underwriter has not limited the number of Registrable Securities to be
underwritten, the Company may include its securities for its own
account in such registration if the underwriter so agrees and if the
number of Registrable Securities which would otherwise have been
included in such registration and underwriting will not thereby be
limited.
(d) The Company is obligated to effect only four
demand registrations for the Holders pursuant to this Section 2.
3. PIGGY-BACK REGISTRATION RIGHTS. If, at any time the Company
proposes to register (including for this purpose a registration effected by the
Company for shareholders other than the Holders) any of its securities under the
1933 Act in connection with the public offering of such securities solely for
cash (other than a registration form relating to: (a) the Company's initial bona
fide public offering; (b) a registration of a stock option, stock purchase or
compensation or incentive plan or of stock issued or issuable pursuant to any
such plan, or a dividend
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investment plan; (c) a registration of securities proposed to be issued in
exchange for securities or assets of or in connection with a merger or
consolidation with, another corporation; or (d) a registration of securities
proposed to be issued in exchange for other securities of the Company), the
Company shall, each such time, promptly give each Holder written notice of such
registration together with a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under applicable state securities
laws. Upon the written request of any Holder given within 30 days after receipt
of such written notice from the Company in accordance with Section 18, the
Company shall, subject to the provisions of Section 7 (in the case of an
underwritten offering), cause to be registered under the 1933 Act all of the
Registrable Securities that each such Holder has requested to be registered.
4. OBLIGATIONS OF THE COMPANY. Whenever required under this
Agreement to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Securities and Exchange
Commission ("SEC") a registration statement with respect to such
Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of
the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to 180
days;
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to
comply with the provisions of the 1933 Act with respect to the
disposition of all securities covered by such registration statement;
(c) Furnish to the Holders such numbers of copies of
a prospectus, including a preliminary prospectus, in conformity with
the requirements of the 1933 Act, and such other documents as they may
reasonably request in order to facilitate the disposition of
Registrable Securities owned by them;
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under the securities
laws of such jurisdictions as the Company believes shall be reasonably
appropriate for the distribution of the securities covered by the
registration statement and such jurisdictions as the Holders
participating in the offering
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shall reasonably request, provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify
to do business or to file a general consent to service of process in
any such jurisdiction; and
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement
with terms generally satisfactory to the managing underwriter of such
offering. Each Holder participating in such underwriting shall also
enter into and perform its obligations under such an agreement.
5. FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Agreement
that the selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Securities. In that connection, each selling Holder shall
be required to represent to the Company that all such information which is given
is both complete and accurate in all material respects.
6. EXPENSES OF REGISTRATION. All Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to this Agreement shall be borne by the Company, and all Selling
Expenses shall be borne by the Holders of the securities so registered pro rata
on the basis of the number of shares so registered.
7. UNDERWRITING REQUIREMENTS. The right of any Holder to
"piggyback" in an underwritten public offering of the Company's securities
pursuant to Section 3 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and any other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for underwriting by the Company.
Notwithstanding any other provision of Section 3 and this Section 7, if the
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the underwriter may exclude some or all of the
Registrable Securities from such registration and underwriting, provided, that
the Holders are allowed to participate in the offering in the same proportion
(based on the total number of securities requested to be registered) as any
other shareholder or
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warrant holder of the Company existing as of the date of this Agreement
participating in the offering. Any reduction in the number of Registrable
Securities included in such registration shall be borne equally by the Holders
as a group pro rata based on the number of shares for which registration was
requested. If any Holder disapproves of the terms of any such underwriting, it
may elect to withdraw therefrom by written notice to the Company and the
underwriter. Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
8. DELAY OF REGISTRATION. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Agreement.
9. INDEMNIFICATION. If any Registrable Securities are included
in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the officers, directors,
partners and representatives of each Holder, any underwriter (as
defined in the 1933 Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the 1933 Act
or the Securities Exchange Act of 1934, as amended (the "1934 ACT"),
against any losses, claims, damages, or liabilities (joint or several)
to which they or any of them may become subject under the 1933 Act, the
1934 Act or any other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise
from or are based upon any of the following statements, omissions or
violations (collectively a "VIOLATION") (i) any untrue statement or
alleged untrue statement of a material fact contained in any
registration statement filed by the Company with the SEC and by which
Registrable Securities are registered for sale under the 1933 Act,
including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto; (ii) the omission or
alleged omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading; or
(iii) any violation or alleged violation by the Company of the 1933
Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the 1933 Act, the 1934 Act or any state securities
law; and the Company will reimburse each such Holder, officer, director
or partner, underwriter or controlling person for any
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legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in
this Section 9 shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability, or action to the
extent that it arises from or is based upon a violation which occurs in
reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such
Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling
Holder will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration
statement, each person, if any, who controls the Company within the
meaning of the 1933 Act, any underwriter (within the meaning of the
1933 Act) for the Company, any person who controls such underwriter,
any other Holder selling securities in such registration statement or
any of its directors or officers or any person who controls such Holder
against any losses, claims, damages or liabilities (joint or several)
to which the Company or any such director, officer, controlling person,
or underwriter or other such Holder or director, officer or controlling
person may become subject, under the 1933 Act, the 1934 Act or any
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereto) arise from or are based
upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in
connection with such registration; and each such Holder will reimburse
any legal or other expenses reasonably incurred by the Company or any
such director, officer, controlling person, underwriter or controlling
person, other Holder, officer, director or controlling person in
connection with investigation or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity
agreement contained in this Section 9 shall not apply to amounts paid
in settlement of any such loss, claim damage, liability or action if
such settlement is effected without the consent of the Holder which
consent shall not be unreasonably withheld; provided, that in no event
shall any indemnity under this Section 9(b) exceed the gross proceeds
from the offering received by the Holder.
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(c) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for
in this Section 9 is applicable but for any reason is held to be
unavailable from the Company or any Holder, the Company and the Holders
participating in the registration shall contribute to the aggregate
losses, claims, damages and liabilities (including any investigation,
legal and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims
asserted) to which the Company and the participating Holders may be
subject in such proportion so that the participating Holders are
responsible for that portion of the foregoing amount represented by the
ratio of the proceeds received by the participating Holders in the
offering to the total proceeds received from the offering by the
Company and all selling shareholders (other than participating Holders)
and the Company shall be responsible for the portion represented by the
ratio of proceeds received by the Company to the total proceeds
received by the Company and all selling shareholders (other than
participating Holders); provided, however, that 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. For purposes
of this Section 9(c), each person, if any, who controls the Company or
any Holder within the meaning of the Securities Act, each officer of
the Company who shall have signed the registration statement and each
director of the Company shall have the same rights to contribution as
the Company.
(d) No settlement shall be effected without the prior
written consent of the Holders participating in a registration unless
(i) the obligations of the Company for indemnification or contribution
pursuant to this Agreement survive and are not extinguished by reason
of the settlement and remain in full force and effect under applicable
federal and state laws, rules, regulations and orders or (ii) all
claims and actions against the participating Holders and each person
who controls a participating holder within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act are extinguished
by the settlement and the indemnifying party obtains a full release of
all claims and actions against the participating Holders and each such
control person, which release shall be to the reasonable satisfaction
of the participating Holders.
(e) Promptly after receipt by an indemnified party
under this Section 9 of notice of the commence-
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ment of any action (including any governmental action), such
indemnified party will, if a claim in respect thereof is to be made
against any indemnifying party under this Section 9, notify the
indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof
with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be, in the reasonable judgment
of counsel to the indemnified party, inappropriate due to actual or
potential differing interests between such indemnified party and any
other party represented by such counsel in such proceeding. The failure
to notify an indemnifying party within a reasonable time of the
commencement of any such action, to the extent prejudicial to its
ability to defend such action, shall relieve such indemnifying party of
any liability to the indemnified party under this Section 9, but the
omission so to notify the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than
under this Section 9.
(f) The obligations of the Company and the Holders
under this Section 9 shall survive through the completion of any
offering of Registrable Securities in a registration statement made
under the terms of this Agreement and otherwise.
10. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view
toward making available to the Holders the benefits of Rule 144 promulgated
under the 1933 Act and any other rule or regulation of the SEC that may at any
time permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) use its best efforts to make and keep public
information available, as those terms are understood and defined in SEC
Rule 144, at all times beginning 90 days after the effective date of
the first underwritten public offering of equity securities of the
Company;
(b) use its best efforts to file with the SEC in a
timely manner all reports and other documents
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required of the Company under the 1933 Act and the 1934 Act;
(c) furnish to any Holder so long as the Holder owns
any Registrable Securities, forthwith upon request: (i) a written
statement by the Company that it has complied with the reporting
requirements of Rule 144 (at any time beginning 90 days after the
effective date of the first underwritten public offering of equity
securities of the Company), the 1933 Act and the 1934 Act (at any time
after it has become subject to such reporting requirements) or that it
qualifies as a Registrant where securities may be resold pursuant to
Form S-3 (at any time after it so qualifies); (ii) a copy of the most
recent annual or quarterly report of the Company and all other reports
and documents filed by the Company with the SEC; and (iii) such other
information as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC which permits the selling of any such
securities without registration; and
(d) take such action, including the voluntary
registration of its common stock under Section 12 of the 1934 Act, as
is necessary to enable the Holders to use Form S-3 for the sale of
their Registrable Securities, such action to be taken as soon as
practicable after the end of the fiscal year in which the first
registration statement filed by the Company for the offering of its
equity securities to the general public is declared effective.
11. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be
assigned by a Holder to a transferee or assignee of such securities to the
extent such transferee or assignee acquires at least 10% of the shares (as
presently constituted) of Registrable Securities held by the transferor provided
the Company is, within a reasonable time after such transfer, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned;
provided, however, that no such assignment shall be effective if, immediately
following the transfer, the transferee is free to dispose of all of such
securities without regard to any restrictions imposed under the 1933 Act
(including, without limitation, the volume limitations of Rule 144 promulgated
under the 1933 Act).
12. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the
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Holders of at least a majority of the then outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would: (a) allow such holder or prospective holder to
include such securities in any registration filed under Section 2 hereof if such
inclusion would adversely affect the rights of any Holder of Registrable
Securities hereunder; or (b) permit such holder or prospective holder to require
the Company to initiate any registration of any securities of the Company prior
to the earliest date upon which the Holders may demand registration pursuant to
Section 2.
13. "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees
that it shall not, to the extent requested by the Company and an underwriter of
Common Stock (or other securities) of the Company, sell or otherwise transfer or
dispose of any Registrable Securities in a market transaction during the 180-day
period following the effective date of a registration statement of the Company
filed under the 1933 Act; provided, however, that:
(a) such agreement shall be applicable only to the
first such registration statement of the Company which covers
securities to be sold on its behalf to the public in an underwritten
offering and to any registration in which any of the Holders of
Registrable Securities have rights to participate under the terms of
this Agreement (provided that such agreement shall not apply to any
shares which are included in any such registration); and
(b) all officers, directors and significant
shareholders (i.e., those shareholders who beneficially own greater
than 5% of the Company's outstanding stock) of the Company and all
other persons with registration rights (whether or not pursuant to this
agreement) enter into similar agreements.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such 180-day period.
14. FORM S-3 REGISTRATION. In case the Company shall receive
request or requests from the Initiating Holders that the Company effect a
registration on Form S-3 (or any similar successor form) and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, the Company will:
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(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other
Holders; and
(b) as soon as practicable, effect such registration
and all such qualifications and compliance as may be so requested and
as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are
specified in such request, together with all or such portion of the
Registrable Securities of any other Holder or Holders joining in such
as are specified in a written request given within 15 days after
receipt of such written notice from the Company; provided, however,
that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 14:
(i) if the Company is not qualified as a registrant entitled to use
Form S-3 (or the applicable successor form); or (ii) if the Holders,
together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and any other securities at an aggregate price to the public
of less than $300,000; or (iii) if the Company has, within the 12-month
period preceding the date of such request, already effected two
registrations on Form S-3 (or applicable successor form) for the
Holders pursuant to this Section 14; or (iv) in any particular
jurisdiction in which the Company would be required to qualify to do
business or to execute a general consent to service of process in
effecting such registration, qualification or compliance.
Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Initiating Holders. Registrations effected pursuant
to this Section 14 shall not be counted as demands for registration effected
pursuant to Section 2.
15. ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
will not take any action with respect to the Registrable Securities which would
adversely affect the ability of the Holders of Registrable Securities to include
such Registrable Securities in a registration undertaken pursuant to this
Agreement or which would adversely affect the marketability of such Registrable
Securities in any such registration, except when such adjustments are otherwise
required by law, including disclosure obligations under federal securities laws.
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16. REMEDIES. Each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy of law would be adequate.
17. AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of at least a majority of the then outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof with respect to a matter which relates exclusively to the
rights of Holders of Registrable Securities whose securities are being sold
pursuant to a registration statement and which does not directly or indirectly
affect the rights of other holders of Registrable Securities may be given by the
holders of a majority of the Registrable Securities being sold; provided,
however, that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
18. NOTICES. All notices, demands and requests required by
this Agreement shall be in writing and shall be deemed to have been given for
all purposes (a) upon personal delivery, (b) one business day after being sent,
when sent by professional overnight courier service from and to locations within
the continental United States, or (c) five days after posting when sent by
registered or certified mail (return receipt requested), addressed to the
Company or an Investor at his, her or its address set forth on the signature
pages hereof. Any party hereto may from time to time by notice in writing served
upon the others as provided herein, designate a different mailing address or a
different person to which such notices or demands are thereafter to be addressed
or delivered.
19. SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties, including, without limitation and
without the need for an express assignment, subsequent holders of Registrable
Securities to which the registration rights granted by this Agreement have been
assigned as permitted herein.
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20. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which shall be deemed to be an original, and when
executed, separately or together, shall constitute a single original instrument,
effective in the same manner as if the parties hereto had executed one and the
same instrument.
21. CAPTIONS. Captions are provided herein for convenience
only and they are not to serve as a basis for interpretation or construction of
this Agreement, nor as evidence of the intention of the parties hereto.
22. CROSS-REFERENCES. All cross-references in this Agreement,
unless specifically directed to another agreement or document, refer to
provisions within this Agreement.
23. GOVERNING LAW. This Agreement shall be governed by,
interpreted under, and construed and enforced in accordance with the internal
laws, and not the laws pertaining to conflicts or choice of laws, of the State
of Delaware applicable to agreements made and to be performed wholly within the
State of Delaware.
24. SEVERABILITY. The provisions of this Agreement are
severable. The invalidity, in whole or in part, of any provision of this
Agreement shall not affect the validity or enforceability of any other of its
provisions. If one or more provisions hereof shall be declared invalid or
unenforceable, the remaining provisions shall remain in full force and effect
and shall be construed in the broadest possible manner to effectuate the
purposes hereof. The parties further agree to replace such void or unenforceable
provisions of this Agreement with valid and enforceable provisions which will
achieve, to the extent possible, the economic, business and other purposes of
the void or unenforceable provisions.
25. ENTIRE AGREEMENT. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersedes all prior written and oral agreements, understandings,
commitments and practices between the parties, including the Initial
Registration Rights Agreement and all other prior agreements with respect to
registration rights.
26. ATTORNEYS' FEES.
(a) In the event any party to this Agreement
initiates any action, suit, motion, application or other proceeding
which concerns the interpretation or enforcement of this Agreement, the
prevailing party in such action, suit, motion, application or
proceeding,
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or judgment creditor, shall be entitled to recover its costs and
attorneys' fees from the non-prevailing party or judgment debtor,
including costs and fees on appeal, if any.
(b) Attorneys' fees and costs incurred by a
prevailing party in enforcing and collecting a judgment resulting from
a suit concerning this Agreement are also recoverable from the judgment
debtor as a separate item of recovery. Such post-judgment attorneys'
fees are a separate and distinct item of recovery, severable from all
other provisions of this Agreement, including the right to prejudgment
attorneys' fees as provided above in this Agreement, and this provision
shall survive any judgment and not be deemed merged into any judgment.
27. CONSIDERATION FOR APPROVALS OR WAIVERS. No consideration
shall be paid to any Holder to obtain such Holder's approval for or waiver of
any amendment of this Agreement or any matter requiring the approval or consent
of the Holders hereunder unless such consideration is also offered to all
Holders, pro rata based upon the number of Registerable Securities held by the
Holders.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amended and Restated Registration Rights Agreement with the intent and agreement
that the same shall be effective as of the day and year first above written.
THE COMPANY:
FIRST AVIATION SERVICES INC.,
a Delaware corporation
By: /s/ MICHAEL C. CULVER
--------------------------------
Name: Michael C. Culver
Title: Chief Executive Officer
Address:
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THE INVESTOR:
FAS INC.,
a Delaware corporation
By: /s/ AARON HOLLANDER
--------------------------------
Name: Aaron Hollander
Title:
Address:
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