REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
made and entered into as of July 2, 1997, by and among
Atlantic Coast Airlines, Inc., a Delaware corporation (the
"Company"), Alex. Brown & Sons Incorporated and The Robinson
Humphrey Company, Inc. (collectively, the "Initial
Purchasers") pursuant to the Purchase Agreement dated as of
June 27, 1997 (the "Purchase Agreement"), between the
Company and the Initial Purchasers. In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide the registration rights set
forth in this Agreement. The execution of this Agreement is
a condition to the closing under the Purchase Agreement.
The Company agrees with the Initial Purchasers, (i) for
their benefit as Initial Purchasers and (ii) for the benefit
of the holders from time to time of the Notes (including the
Initial Purchasers) and the holders from time to time of the
Common Stock issued upon conversion of the Notes (each of
the foregoing a "Holder" and together the "Holders"), as
follows:
1. Definitions. Capitalized terms used herein
without definition shall have their respective meanings set
forth in the Purchase Agreement. As used in this Agreement,
the following terms shall have the following meanings:
Affiliate: "Affiliate" means, with respect to any
specified person, (i) any other person directly or
indirectly controlling or controlled by, or under direct or
indirect common control with, such specified person or (ii)
any officer or director of such other person. For purposes
of this definition, the term "control" (including the terms
"controlling," "controlled by" and "under common control
with") of a person means the possession direct or indirect,
of the power (whether or not exercised) to direct or cause
the direction of the management and policies of a person,
whether through the ownership of voting securities, by
contract, or otherwise.
Business Day: Each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking
institutions in the City of New York are authorized or
obligated by law or executive order to close.
Common Stock: The shares of common stock, $.02 par
value, of the Company and any other shares of common stock
as may constitute "Common Stock" for purposes of the
Indenture, in each case, as issuable or issued upon
conversion of the Notes.
Damages Accrual Period: See Section 2(d) hereof.
Damages Payment Date: Each of the semi-annual interest
payment dates provided in the Indenture, whether or not
Liquidated Damages are payable on such date.
Effectiveness Period: The period commencing with the
date hereof and ending on the earlier of the date that is
two years after the latest date of original issuance of the
Notes and the date that all Registrable Securities have
ceased to be Registrable Securities.
Effectiveness Target Date: See Section 2(a) hereof.
Event. See Section 2(d) hereof.
Event Date: See Section 2(d) hereof.
Exchange Act: The Securities Exchange Act of 1934,
as amended, and the rules and regulations of
the
SEC promulgated thereunder.
Filing Date: See Section 2(a) hereof.
Holder: See the second paragraph of this Agreement.
Indenture: The Indenture, dated as of July 2,
1997, between the Company and First Union National
Bank of Virginia, as trustee, pursuant to which the
Notes are being issued, as amended or supplemented
from time to time in accordance with the terms
thereof.
Initial Purchasers: See the first paragraph of
this Agreement.
Initial Shelf Registration: See Section 2(a) hereof.
Liquidated Damages: See Section 2(d) hereof.
Losses: See Section 5 hereof.
Majority of Registrable Securities: A majority of
the then outstanding aggregate principal amount of
Registrable Securities.
For purposes of this calculation, Registrable
Securities which have been converted into shares of
Common Stock shall be deemed to bear the principal
amount at which such Registrable Securities were
converted.
Managing Underwriters: The investment banking firm
or firms that shall manage or co-manage an
Underwritten Offering.
Notes: The 7% Convertible Subordinated Notes due
2004 of the Company being issued and sold pursuant
to the Purchase Agreement and the Indenture.
Prospectus: The prospectus included in
any Registration Statement (including, without
limitation, a prospectus that discloses 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 amendment or
prospectus supplement, including post-effective
amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such
Prospectus.
Purchase Agreement: See the first paragraph of
this Agreement.
Record Holder: (i) with respect to any Damages
Payment Date relating to the Notes, each Person who is
a registered holder of such Notes on the record date
with respect to the interest payment date under the
Indenture on which such Damages Payment Date shall
occur and (ii) with respect to any Damages Payment
Date relating to the Common Stock, each Person who is a
registered holder of such Common Stock 15 days prior
to such Damages Payment Date.
Registrable Securities: Each Note and each share
of
Common Stock into which the Notes are convertible
or converted upon original issuance thereof, and at all
times subsequent thereto, and any Common Stock issued
with respect thereto upon any stock dividend, split or
similar event, until, in the case of any such Note
or share of Common Stock, (i) it is effectively
registered under the Securities Act and disposed of
in accordance with the Registration Statement
covering it, (ii) it is salable by the holder
thereof pursuant to Rule 144(k) or (iii) it is sold to
the public pursuant to Rule 144, and, as a result of
the event or circumstance described in any of the
foregoing clauses (i) through (iii), the legends with
respect to transfer restrictions required under the
Indenture (other than any such legends required solely
as the consequences or the fact that the Registrable
Securities are owned by, or were previously owned
by, the Company or an Affiliate of the Company) are
removed or removable in accordance with the terms of
the Indenture.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement
of the Company which covers any of the Registrable
Securities 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 under the Securities Act, as
such Rule may be amended from time to time, or any
similar rule or regulations hereafter adopted by the
SEC.
Rule 144A: Rule 144A 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 promulgated
by the SEC thereunder.
Selling Holder: A Holder offering to sell
Registrable Securities.
Shelf Registration: See Section 2(a) hereof.
Special Counsel: Piper & Marbury L.L.P., or such
other successor counsel as shall be specified by the
Holders of a majority of the Registrable
Securities, the fees and
expenses of which will be paid by the Company pursuant
to Section 5 hereof.
Subsequent Shelf Registration: See Section
2(b) hereof.
Suspension Period: See Section 2(c).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The Trustee under the Indenture.
Underwritten Registration or Underwritten Offering:
A registration in which the Registrable Securities are
sold by
Holders thereof to an underwriter for reoffering to
the public.
2. Shelf Registration.
(a) The Company shall prepare and file with
the SEC, as soon as practicable but in any event on or
prior to the date 90 days following the latest date
of original issuance of the Notes (the "Filing
Date"), a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 of
the Securities Act (a "Shelf Registration")
registering the resale from time to time by Holders
thereof of all of the Registrable Securities (the
"Initial Shelf Registration"). The Initial
Shelf Registration shall be on an appropriate SEC
Registration Statement form permitting registration of
such Registrable Securities for resale by such
Holders in the manner or manners designated by them
(including, without limitation, one or more
Underwritten Offerings). The Company shall use its best
efforts to cause the Initial Shelf Registration to be
declared effective under the Securities Act as soon as
practicable but in any event on or prior to the date
120 days following the Filing Date (the "Effectiveness
Target Date"), and shall use its best efforts to keep
the Initial Shelf Registration continuously
effective under the Securities Act, subject to the
provisions of Section 2(c), until the earlier of the
expiration of the Effectiveness Period or the date
a Subsequent Shelf Registration (as defined below)
covering all of the Registrable Securities has been
declared effective under the Securities Act. Subject
to the right of the Company to have the Initial
Shelf Registration not be effective, or not to be
updated, amended or supplemented, for periods of time
set forth in Section 2(c), the Company further agrees
to use its best efforts to prevent the happening of
any event that would cause the Initial Shelf
Registration to contain a material misstatement or
omission or to be not effective and usable for resale
of the Registrable Securities during the Effective
Period.
(b) If the Initial Shelf Registration or
any
subsequent Shelf Registration ceases to be effective for
any reason as a result of the issuance of a stop order
by the SEC at any time during the Effectiveness Period,
the Company shall use its best efforts to obtain the
prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within
30 days of such cessation of effectiveness amend
the Shelf Registration in a manner reasonably
expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an
additional Shelf Registration covering all of
the Registrable Securities (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration
is filed, the Company shall use its best efforts
to cause the Subsequent Shelf Registration to be
declared effective as soon as practicable after such
filing and to keep such Registration Statement
continuously effective until the end of the
Effectiveness Period.
(c) In the event (A) of the happening of
any
event of the kind described in Section 3(c)(ii),
3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi) hereof or (B)
that, in the good faith judgment of the Company, it
is advisable to suspend the use of the Prospectus for
a discrete period of time due to pending material
corporate developments or similar material events
that have not yet been publicly
disclosed and as to which the Company believes
public disclosure will be prejudicial to the Company,
the Company shall deliver a certificate in writing,
signed by an authorized executive officer of the
Company, to the Special Counsel, the
Initial Purchasers and the
Managing
Underwriters, if any, to the effect of the foregoing
and thereafter the use of the Prospectus shall be
suspended, and the Company, subject to the terms of
this Section 2(c), shall
thereafter not be required to maintain the
effectiveness or update the Shelf Registration. The
Company will use its best efforts to ensure that the
use of the Prospectus may be resumed as soon as
practicable, in the case of suspension under Section
2(c)(A), and, in the case of a pending development or
event referred to in Section 2(c)(B) hereof, as soon
as, in the good faith-judgment of the Company, public
disclosure of such material corporate development or
similar material event would not have a material
adverse effect on the Company. Notwithstanding the
foregoing, the Company shall not under any circumstances
be entitled to exercise its right under this Section
2(c) to suspend the use of the Prospectus (whether as
a result of events referred to in Section 2(c)(A)
hereof or as a result of the pending development or
event referred to in Section 2(c)(B) hereof) more than
one (1) time in any three (3) month period, and
the periods in which the use of the Prospectus is
suspended shall not exceed 15 days in any three-month
period (a "Suspension Period").
(d) The parties hereto agree that the
Holders of Registrable Securities will suffer damages,
and that it would not be feasible to ascertain the
extent of such damages with precision, if (i)
the
Initial Shelf Registration has not been filed on or
prior to the Filing Date, (ii) the Initial Shelf
Registration has not been declared effective by the
Effectiveness Target Date, (iii) prior to the end of
the Effectiveness Period, the SEC shall have issued a
stop order suspending the effectiveness of the Shelf
Registration or proceedings have been initiated with
respect to the Shelf Registration under Section 8(d) or
8(e) of the Securities Act, (iv) the aggregate number
of days in any one Suspension Period exceeds the
period permitted pursuant to Section 2(c) hereof or
(v) the number of Suspension Periods exceeds the
number permitted pursuant to Section 2(c) hereof (each
of the events of a type described in any of the
foregoing clauses (i) through (v) are individually
referred to herein as an "Event," and the Filing
Date in the case of clause (i), the Effectiveness
Target Date in the case of clause (ii), the date on
which the effectiveness of the
Shelf Registration has been suspended or
proceedings with respect to the Shelf Registration
under Section 8(d) or 8(e) of the Securities Act have
been commenced in the case of clause (iii), the date
on
which the duration of a Suspension Period exceeds the
period permitted by Section 2(c) hereof in the case of
clause (iv), and the date of the commencement of
a Suspension Period that causes the limit on the
number of Suspension Periods under Section 2(c) hereof
to be exceeded in the case of clause (v), being
referred to herein as an "Event Date").
Notwithstanding the foregoing, the parties hereto
agree that an Event shall be deemed not to have
occurred to the extent the parties mutually agree that
the direct, proximate cause of said Event was the act or
failure to act of one or more Holders, the Initial
Purchasers or the Managing Underwriters. Events shall
be deemed to continue until the date of the termination
of such Event, which shall be the following dates with
respect to the respective types of Events: the date
the Initial Registration Statement is filed in the
case of an Event of the type described in clause (i),
the date the Initial Shelf Registration is declared
effective in the case of clause (ii), the date that all
stop orders suspending effectiveness of the Shelf
Registration have been removed and the proceedings
initiated with respect to the Shelf Registration under
Section 8(d) or 8(e) or the Securities Act have
terminated, as the case may be, in the case of Events
of the types described in clause (iii), termination of
the Suspension Period which caused the aggregate number
of days in any one Suspension Period to exceed the
number permitted by Section 2(c) to be exceeded in the
case of Events of the types described in clause (iv),
and termination of the Suspension Periods, the
commencement of which caused the number of Suspension
Periods permitted by Section 2(d) to be exceeded in the
case of Events of the type described in clause (v).
Accordingly, upon the occurrence of any Event and
until such time as there are no Events which have
occurred and are continuing (a "'Damages Accrual
Period"), commencing on the Event Date on which such
Damages Accrual Period began, the Company agrees to
pay, as liquidated damages, and not as a penalty, an
additional amount (the "Liquidated Damages"): (i) to
each holder of Notes that are Registrable Securities,
accruing at a rate equal to one-half of one percent
per annum (50 basis points) on the aggregate principal
amount of Notes that are Registrable Securities held
by such Holder and (ii) to each holder of shares of
Common Stock that are Registrable Securities, accruing
at a rate equal to one-half of one percent per annum
(50 basis points) calculated on an amount equal to
the product of (x) the then-applicable Conversion
Price (as defined in the Indenture), times (y) the
number of shares of Common Stock that are Registrable
Securities held by such holder. Notwithstanding
the
foregoing, no Liquidated Damages shall accrue as to
any Registrable Securities from and after the earlier of
(x) the date such securities are no longer Registrable
Securities, and (y) the expiration of the
Effectiveness Period. The
rate of accrual of the Liquidated Damages with respect
to any period shall not exceed the rate provided for
in this paragraph notwithstanding the occurrence
of multiple concurrent Events.
The Company shall pay the Liquidated Damages due on
any Notes or Common Stock by depositing with the
Trustee under the Indenture, in trust, for the benefit
of the
holders of Notes or Common Stock, as the case may be,
entitled thereto, at least one Business Day prior to
the applicable Damages Payment Date, sums sufficient
to pay the Liquidated Damages accrued or accruing since
the last preceding Damages Payment Date through such
Damages Payment Date. The Liquidated Damages shall
be paid by the Company to the Record Holders on each
Damages Payment Date by wire transfer of immediately
available funds to the account specified by them or
by mailing checks to their registered addresses as they
appear in the Note register (as defined in the
Indenture), in the case of the Notes, and in the
register of the Company for the Common Stock, in the
case of the Common Stock, if no such accounts have
been specified on or before the Damage Payment Date;
provided, however, that any Liquidated Damages accrued
with respect to any Note or portion thereof called for
redemption on a redemption date, or repurchased in
connection with a Change in Control (as defined in
the Indenture) on a repurchase date, or converted into
Common Stock on a conversion date prior to the
Damages Payment
Date, shall, in any such event, be paid instead to
the holder who submitted such Note or portion
thereof for redemption, repurchase or conversion on
the applicable redemption date, repurchase date or
conversion date, as the case may be, on such date
(or promptly following the conversion date, in the
case of conversion of a Note). If a holder of a Note
submits a Note for conversion during the period
between a record date for the payment of Liquidated
Damages and the related Damages Payment Date,
Liquidated Damages for the period from the conversion
date through the next succeeding Damages Payment Date
shall accrue and be payable to the holder of Common
Stock received on conversion on the next succeeding
Damages Payment Date, notwithstanding that such holder
was not a Record Holder with respect to such Damages
Payment Date. The Trustee shall be entitled, on
behalf of the Holders of Notes and Common Stock to seek
any available remedy for the enforcement of this
Agreement, including for the payment of such
Liquidated Damages. Nothing shall preclude a Holder of
Registrable Securities from pursuing or obtaining
specific performance or other equitable relief with
respect to this Agreement.
All of the Company's obligations set forth in
this Section 2(d) which are outstanding with
respect to any Registrable Securities at the time such
security ceases to be a Registrable Security shall
survive until such time as all such obligations with
respect to such security have been satisfied in full
(notwithstanding termination of the
Agreement pursuant to Section 7(o)).
The parties hereto agree that the Liquidated
Damages provided for in this Section 2(d) constitute
a reasonable estimate of the damages that may be
incurred by holders of Registrable Securities (other
than the Initial Purchasers) by reason of the
failure of the Shelf Registration to be filed or
declared effective or unavailable (absolutely or as a
practical matter) for effecting resales of
Registrable Securities, as the case may be, in
accordance with the provisions hereof.
3. Registration Procedures. In connection with
the
Company's registration obligations under Section 2
hereof, the Company shall effect such registrations to
permit the sale of the Registrable Securities in
accordance with the intended method or methods of
disposition thereof, and pursuant thereto the
Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a
Registration Statement or Registration Statements on any
appropriate form under the Securities Act available
for the sale of the Registrable Securities by the
Holders thereof in accordance with the intended method
or methods of distribution thereof and shall include all
required financial statements, and use its best
efforts to cause each such Registration Statement to
become effective and remain effective as provided
herein; provided, that before filing, any
such
Registration Statement or Prospectus or any amendments
or supplements thereto the Company shall furnish
within a reasonable time period to each Selling Holder
(if requested by such Selling Holder), the Initial
Purchasers, the Special Counsel and the Managing
Underwriters of such offering, if any, copies of all
such documents proposed to be filed, which documents
will be subject to the review of each Selling Holder
(if requested by such Selling Holder), the Initial
Purchasers, the Special Counsel and such Managing
Underwriters, and the Company shall not file any such
Registration Statement or
amendment thereto or any Prospectus or any
supplement thereto to which
the Holders of a majority of the
Registrable Securities covered by such
Registration
Statement, the Initial Purchasers or the Special
Counsel shall reasonably object in writing within five
Business Days after the receipt thereof. In addition,
the Company shall use its best efforts to reflect
in each such document referenced in this paragraph
so filed with the SEC such comments as the Initial
Purchasers, Special Counsel and the Managing
Underwriters, if any, may propose.
(b) Subject to Section 2(c), prepare and
file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be
necessary to keep such Registration Statement
continuously effective for the applicable period
specified in Section 2; cause the related Prospectus
to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant
to Rule 424 (or any similar provisions then in force)
under the Securities Act and comply with the
provisions of the Securities Act with respect to
the disposition of all securities covered by such
Registration Statement during the applicable period in
accordance with the intended methods or disposition
by the sellers thereof set forth in such
Registration Statement as so amended or such Prospectus
as
so supplemented. The Company shall ensure that (i)
any Shelf Registration and any amendment thereto
and any
Prospectus forming a part thereof and any amendment
or
supplement thereto complies in all material respects
with the Act and the rules and regulations thereunder,
(ii) any Shelf Registration and any amendment thereto
does not, when it becomes
effective, contain an untrue statement of a
material fact or omit to state a material fact required
to
be stated therein or necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading and (iii) any
Prospectus forming part of any Shelf Registration,
and any amendment or supplement to such Prospectus,
does not include an untrue statement or a material fact
or omit to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(c) Notify the Holders, the Initial
Purchasers, the Special Counsel and the Managing
Underwriters, if any, promptly, and (if requested by
any such person) confirm such notice in writing, (i)
when a Prospectus, any Prospectus supplement,
a Registration Statement or a post-effective
amendment to a Registration Statement has been filed
with the SEC, and, with respect to a Registration
Statement or
any post-effective amendment, when the same has
become effective; (ii) of any request by the SEC or
any other federal or state
governmental authority for amendments or
supplements to a Registration Statement or
related
Prospectus or for additional information, (iii) of
the issuance by the SEC or any other federal or
state
governmental authority of any stop order suspending
the effectiveness of a Registration Statement or the
initiation or threatening of any proceedings for that
purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the
qualification or exemption from qualification of any
of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any
proceedings
for such purpose, (v) of the existence of any
fact or happening of any event which makes any statement
of
a material fact in such Registration Statement or
related
Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue or which
would require the making of any changes in the
Registration Statement or Prospectus in order 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
they were made, not misleading, and (vi) of the
Company's determination that a post-effective
amendment to a Registration Statement would be
appropriate.
(d) Use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of
a Registration Statement, or the lifting of any
suspension of the
qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment.
(e) If requested by the Initial Purchasers or
the Managing Underwriters, if any, or the Holders of a
Majority of the Registrable Securities being sold,
(i) promptly incorporate in a Prospectus supplement
or post-effective amendment to Registration Statement
such information as the Initial
Purchaser, the Special Counsel, the
Managing
Underwriters, if any, or such Holders and the Company
agree should be included therein, and (ii) make all
required filings of such Prospectus supplement or such
post-effective amendment as soon as practicable after
the Company has received notification of the
matters proposed to
be
incorporated in such Prospectus supplement or post
effective amendment.
(f) Furnish to each Selling Holder (if
requested by such Selling Holder), the Special
Counsel, the Initial Purchasers, and each Managing
Underwriter, if any, without charge, at least one
conformed copy of the Registration Statement or
Statements and any amendment thereto, including
financial statements but excluding schedules, all
documents incorporated or deemed to be incorporated
therein
by
reference and all exhibits.
(g) Deliver to each Selling Holder, the
Special Counsel,
the Initial Purchasers and each
Managing
Underwriter, if any, in connection with any offering
of Registrable Securities, without charge, as many
copies of the Prospectus or Prospectuses relating to
such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement
thereto as such persons
may reasonably request; and the Company hereby consents
to the use of such Prospectus or each amendment or
supplement thereto by each of the Selling Holders
of Registrable Securities and the Underwriters, if any,
in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any
amendment or supplement thereto.
(h) Prior to any public offering of
Registrable Securities, to register or qualify or
cooperate with the Selling Holders, the Managing
Underwriters, if any, and the Special Counsel in
connection with the registration or qualification
(or exemption from such registration
or
qualification) of such Registrable Securities for offer
and
sale under the securities or Blue Sky laws of
such
jurisdictions within the United States as any Selling
Holder or Managing Underwriter reasonably requests in
writing, 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 necessary or
advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by
the applicable Registration Statement, provided, that
the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it
is not then so qualified (ii) take any action that would
subject it to general service of process in suits or
to taxation in any such jurisdiction where it is not
then so subject.
(i) Cause the Registrable Securities covered
by the applicable Registration Statement to be
registered with or approved by such other governmental
agencies in addition to the SEC or authorities within
the United States as may be necessary to enable the
Selling Holder or Holders thereof or the Managing
Underwriters, if any, to consummate the disposition
of such Registrable Securities.
(j) During the Effectiveness Period (subject
to the provisions of Section 2(c)), immediately
upon the existence of any fact or the occurrence of any
event as a result of which a Registration Statement
shall contain any untrue statement of a material fact
or omit to state any material fact required to be
stated therein or necessary to make the statements
therein, in light of the circumstances under which they
were made, not misleading, or a Prospectus shall
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
they were made, not misleading, promptly prepare and
file a posteffective amendment to each Registration
Statement or a supplement to the related Prospectus or
any document incorporated therein by reference or file
any other required document (such as a Current Report
on Form 8K) that would be incorporated by reference
into the Registration Statement so that the
Registration Statement shall not contain any
untrue statement or a material fact or 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, and so that
the Prospectus will not contain any untrue
statement of a material fact or omit to state any
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 they were made,
not misleading, as thereafter delivered to the
purchasers of the Registrable Securities being sold
thereunder, and in the case
of a posteffective amendment to a Registration
Statement use its best efforts to cause it to
become effective as soon as practicable.
(k) Enter into such agreements (including, in
the event of an Underwritten Offering, an underwriting
agreement in form, scope and substance as is customary
in Underwritten Offerings) and take all such other
actions in connection therewith (including, in the
event of an the Underwritten Offering, those
reasonably requested
by the Managing
Underwriters, if any, or the Holders of a Majority of
the Registrable Securities being sold) in order to
expedite or
facilitate the disposition of such Registrable
Securities and in such connection, whether or not
an underwriting agreement is entered into, and if the
registration is
an underwritten registration, (i) make such
representations and warranties to the Holders of such
Registrable Securities and the underwriters with respect
to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated
by reference, if any, in each case, in form, substance
and scope as are customarily made by issuers
to underwriters in underwritten offerings and confirm
the same if and when requested; (ii) use its
reasonable efforts to
obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory
to the Managing Underwriters, if any, Special Counsel
and the Holders of a majority of the Registrable
Securities being sold) addressed to each of the
underwriters covering the matters customarily covered in
opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such
Special Counsel and Managing Underwriters; (iii) use
its reasonable efforts to obtain "cold comfort"
letters and updates thereof from the independent
certified public accountants of the Company (and, if
necessary, any other certified public accountants of
any subsidiary of the Company or any business
acquired or to be acquired by the Company for which
financial statements and financial data are, or are
required to be, included in the Registration
Statement), addressed to each of the Managing
Underwriters, if any, such letters to be in customary
form and covering matters of the type customarily
covered in "cold comfort" letters in connection with
Underwritten Offerings, and (iv) deliver such documents
and certificates as may be reasonably requested by the
Holders of a majority of the Registrable Securities
being sold, the Special Counsel and the Managing
Underwriters, if any, to evidence the continued validity
of the representations and warranties of the Company
and its subsidiaries made pursuant to clause (i)
above and to
evidence compliance with any customary conditions
contained in the underwriting agreement or other
agreement entered into by the Company. The above
shall be done at each closing under such
underwriting or similar agreement as and to the extent
required thereunder.
(1) Make available for inspection by
a
representative of the Holders of Registrable
Securities being sold, any Managing Underwriter
participating in any disposition of Registrable
Securities, if any, and any attorney or accountant
retained by such Selling Holders
or underwriter, financial and other records,
pertinent
corporate documents and properties of the Company and
its subsidiaries, and cause the executive officers,
directors and employees of the Company and its
subsidiaries to supply all information reasonably
requested by any such
representative, Managing Underwriter, attorney or
accountant in connection with such disposition;
provided, however, that any information that is
reasonable and in good faith designated by the
Company in writing as confidential at the time of
delivery of such information shall be
kept confidential by such persons, unless (i) disclosure
of such information is required by court or
administrative order or
is necessary to respond to inquiries of
regulatory authorities, (ii) disclosure of such
information is required by law (including any
disclosure requirements pursuant
to federal securities laws in connection with the filing
of any Registration Statement or the use of any
prospectus referred
to in this Agreement), (iii) such information
becomes generally available to the public other than as
a result of disclosure
or failure to safeguard by any such person or
(iv) such information becomes available to any such
person from a source other than the Company and such
source is not bound by a confidentiality agreement.
(m) Comply with all applicable rules
and
regulations of the SEC in all material respects and
make generally
available to its securityholders earnings
statements (which need not be audited) 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 firm commitment
or
best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration
Statement, which statements shall cover said 12-month
periods.
(n) Cooperate with the Selling Holders
of Registrable Securities, the Initial Purchasers, the
Special Counsel and the Managing Underwriters, if any,
to facilitate the timely preparation and delivery
of
certificates representing Registrable Securities to
be sold and not bearing any restrictive legends; and
enable such Registrable Securities
to be in such denominations and registered in
such names as the Holders may request.
(o) Not later than the effectiveness date of
any Registration Statement hereunder, provide a CUSIP
number for the Registrable Securities registered
under such Registration Statement, and provide the
Trustee under the Indenture and the transfer agent
for the Common Stock with printed certificates for the
Registrable Securities which are in a form eligible
for deposit with The Depository Trust Company.
(p) Cause all shares of Common Stock covered
by the Registration Statement to be listed on, each
securities exchange or quotation system on which the
Company's Common Stock is then listed or quoted no
later than the date the Registration Statement is
declared effective, and,
in
connection therewith, to the extent applicable, to make
such findings under the Exchange Act (e.g., the
filing of a Registration Statement on Form 8-A) and to
have such filings declared effective thereunder.
(q) Cooperate and assist in any filing
required to be made with the National Association
of Securities Dealers, Inc.
(r) Cause the Indenture to be qualified under
the TIA, and,
in connection therewith, cooperate with the
Trustee and the Holders, the Initial Purchasers, the
Special Counsel and the Managing Underwriters, if any,
to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and
use its best efforts to cause the Trustee to execute
all documents as may be required to effect such
changes and all other forms and documents required
to be filed with the SEC to enable such Indenture
to be so qualified in a timely manner.
The Company may require each Holder of securities
to be sold pursuant to any Registration Statement to
furnish to the Company such information regarding the
Holder and the distribution of such securities as the
Company may from time to time
reasonably require for inclusion in
such
Registration Statement. Any Holder who fails to
provide such information shall not be entitled to
use the
Prospectus.
4. Registration Expenses. All fees and
expenses
incident to the Company's obligations under this
Agreement shall be
borne by the Company whether or not any of the
Registration Statements become effective. Such fees
and expenses
shall include, without limitation,
(i) all
registration and filing fees (including, without
limitation, fees and
expenses with respect to filings required to be
made with the National Association of Securities
Dealers, Inc.),
(ii) printing expenses (including, without
limitation, expenses of printing
certificates for
Registrable Securities in a form eligible for
deposit with The Depository Trust Company and of
printing Prospectuses if the printing of
Prospectuses is
requested by the Special Counsel, the Initial
Purchasers, the Managing Underwriters or the holders
of a Majority of the Registrable Securities included in
any Registration Statement), (iii) reasonable fees and
disbursements of counsel for the Company and the
Special Counsel in connection with the Shelf
Registration (provided that the Company shall not be
liable for the fees and expenses of more than one
separate firm for all parties (other than the Company)
participating in any transaction hereunder),
and (iv) fees and disbursements of
all independent certified public accountants referred
to in Section 3(k)(iii) hereof (including the
expenses of any special audit and "cold comfort"
letters required by or incident to such
performance). In addition, the Company shall pay the
fees and expenses incurred in connection with the
listing or quotation of the securities to be registered
on any securities exchange or quotations system on
which similar securities issued by the Company are then
listed and the fees and expenses of any
person, including special
experts, retained by the Company.
5. Indemnification.
(a) Indemnification by the Company. The
Company shall indemnify and hold harmless each
Holder, the
directors, officers, employees and agents of each
such Holder and each person, if any, who controls any
such Holder (within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act)
from and against all losses, liabilities, damages and
expenses (including without limitation, any legal or
other expenses reasonably incurred in connection with
defending or investigating any such action or claim)
(collectively, "Losses"), arising out of or based upon
any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or
Prospectus or in any amendment or supplement thereto, or
arising out of or based upon 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, in light of the
circumstances under which they were made, except
insofar as such Losses arise out of or are based upon
the information relating to any Holder furnished
to the Company in writing by any Holder expressly
for use therein. The Company shall also indemnify
each underwriter, their officers and directors, and
each person who controls such person (within the
meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act
to
the same extent and with the same limitations as
provided above with respect to the indemnification of
the Holders or
Registrable Securities.
(b) Indemnification by Holder of
Registrable Securities. Each Holder, agrees severally
and not jointly to indemnify and hold harmless the
Company, its directors, its officers who sign a
Registration Statement and each person, if any, who
controls the Company (within the meaning of either
Section 15 of the Securities Act or Section 20 of the
Exchange Act), from and against all losses arising out
of or based upon any untrue statement of a material
fact contained in any Registration Statement,
Prospectus or
arising out of or based upon any omission of a 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, to the extent,
but only to the extent, that such untrue statement or
omission is contained in any information relating to
such Holder so
furnished in writing by such Holder to the Company
expressly for use in such Registration Statement or
Prospectus. In no event shall the liability of
any Selling Holder
of
Registrable Securities hereunder be greater in amount
than the dollar amount of the proceeds received by
such Holder upon the sale of the Registrable Securities
giving rise to
such indemnification obligation.
(c) Conduct of Indemnification Proceedings.
In
case any proceeding (including any
governmental
investigation) shall be instituted involving any person
in
respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such
person (the
"indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the
"indemnifying party") in writing, but failure so to
notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a
result thereof. The indemnifying party, upon request
of the indemnified party, shall retain counsel
satisfactory to the indemnified party to represent
the indemnified party and any others the indemnifying
party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any
indemnified party 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 party
unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention to
such counsel (ii) the named parties to any such
proceeding (including any impleaded parties) include
both
the
indemnifying party and the indemnified party
and
representation of both parties by the same counsel would
be
inappropriate due to actual or potential differing
interests between them, or (iii) the indemnifying party
shall not have employed counsel satisfactory to the
indemnified party
to
represent the indemnified party within a reasonable
time after notice of commencement of the action.
It is
understood that the indemnifying party shall not, in
respect of the legal expenses or any indemnified party
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 parties under Section 5(a) or
5(b)
hereof who are parties to such proceeding or
proceedings, and that all such fees and expenses shall
be reimbursed as
they are incurred. The indemnifying party 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,
the
indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason
of such
settlement or judgment. Notwithstanding the
foregoing
sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as
contemplated by
the second and third sentences of this paragraph,
such indemnifying party agrees that it shall be liable
for any
settlements of any proceeding effected without its
written
consent if (i) such settlement is entered into more than
45
days after receipt by such indemnifying party of
the
aforesaid request and (ii) such indemnifying party shall
not have reimbursed the indemnified party in
accordance with such request prior to the date of
such settlement. No
indemnifying party shall, without the Prior written
consent
of the indemnified party, effect any settlement of
any
pending or threatened proceeding in respect of which
any indemnified party is or could have been a
party and indemnity could have
been sought hereunder by
such indemnified party, unless such settlement
includes an
unconditional release of such indemnified party from
all liability on claims that are the subject matter
of such
proceeding.
(d) Contribution. If the
indemnification provided for in this Section 5 is
unavailable to an
indemnified party under Section 5(a) or 5(b) hereof
in
respect of any Losses or is insufficient to hold
such indemnified party
harmless, then each applicable
indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid
or payable by
such indemnified party as a result of such Losses, (i)
in
such proportion as is appropriate to reflect the
relative
benefits received by the indemnifying party or parties
on
the one hand and the indemnified party or parties an
the
other hand or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party
or parties on the other
hand in
connection with the statements or omissions that
resulted in such Losses, as well as any other
relevant equitable considerations. Benefits received by
the Company shall be
deemed to be equal to the total net proceeds
from the initial placement of the Notes pursuant
to the Purchase
Agreement. Benefits received by the Initial
Purchasers
shall be deemed to be equal to the total purchase
discounts and commissions received by them pursuant
to the Purchase
Agreement and benefits received by any other Holders
shall be deemed to be equal to the value of
receiving Notes registered under the Securities
Act. Benefits received by
any underwriter shall be deemed to be equal to the
total underwriting discounts and commissions, as set
forth on the cover page of the Prospectus forming
a part of the
Registration Statement which resulted in such Losses.
The
relative fault of the Holders on the one hand and
the
Company on the other hand 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 Holders or by the Company
and the parties' relative intent, knowledge, access
to information and
opportunity to correct or prevent such statement
or
omission. The Holders' respective obligations to
contribute pursuant to this paragraph are several in
proportion to the respective number of Registrable
Securities they have sold pursuant to a Registration
Statement, and not joint.
The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section
5(d) were determined by pro rata allocation or by any
other method or allocation that does not take into
account the
equitable
considerations referred to in the immediately
preceding
paragraph. The amount paid or payable by an
indemnified party as a result of the Losses
referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations
set forth above, any legal
or
other expenses reasonably incurred by such indemnified
party in connection with investigating or defending
any such
action or claim. Notwithstanding this Section 5(d),
an
indemnifying party that is a Selling Holder of
Registrable Securities shall not be required to
contribute any amount in excess of the amount by which
the total price at which the Registrable Securities sold
by such indemnifying party and distributed to the
public were offered to the public exceeds the amount of
any damages which such indemnifying party has otherwise
been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged
omission.
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.
The indemnity, contribution and expense
reimbursement obligations of the Company hereunder shall
be in addition to any liability the Company may
otherwise have hereunder, under the Purchase Agreement
or otherwise.
The indemnity and contribution provisions contained
in this Section 5 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 the Company, its officers or directors or
any person controlling the Company and (iii) the sale
of any Registrable Securities by any Holder.
6. Information Requirements.
(a) The Company shall file the reports
required to be filed by it under the Securities Act and
the Exchange Act, and if at any time the Company is not
required to file such reports, it will, upon the
request of any Holder of Registrable Securities,
make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 and
Rule 144A under the Securities Act. The
Company further covenants that it will cooperate with
any
Holder of Registrable Securities and take such
further reasonable action as any Holder of Registrable
Securities may reasonably request (including,
without limitation, making such reasonable
representations as any such Holder may reasonably
request), all to the extent required from time to
enable such Holder to sell Registrable Securities
without registration under the Securities Act within
the
limitation of the exemptions provided by Rule 144 and
Rule 144A under the Securities Act. Notwithstanding
the
foregoing, nothing in this Section 6 shall be deemed
to require the Company to register any of its securities
under any section of the Exchange Act.
(b) The Company shall file the reports
required to be filed by it under the Exchange Act and
shall comply with all other requirements set forth in
the instructions to the appropriate SEC Registration
Statement form permitting registration of the
Registrable Securities for resale by the Holders thereof
in the manner or manners designated by them.
7. Miscellaneous.
(a) Remedies. In the event of a breach by
the Company of its obligations under this Agreement, 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 or a breach by it of any of the
provisions of this Agreement and hereby further agrees
that, in the event of any action for specific
performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company
has not entered, as of the date hereof and shall not,
on or after the date of this Agreement, enter into any
agreement with respect to its securities which
conflicts with the rights granted to the Holders of
Registrable Securities in this Agreement. The Company
represents and warrants that the rights granted to the
Holders of Registrable Securities hereunder do not in any
way conflict with the rights granted to the holders of
the Company's securities under any other agreements.
(c) 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 a Majority of the then
outstanding Registrable Securities. Notwithstanding the
foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates
exclusively to the rights of holders of Registrable
Securities whose securities are being sold pursuant to
a Registration Statement and that does not directly
or indirectly affect the rights of other Holders of
Registrable Securities may be given by Holders of at
least a majority of the Registrable Securities being
sold by such Holders; provided, that the provisions of
this sentence may not
be amended, modified, or supplemented except
in
accordance with the provisions of the immediately
preceding sentence.
(d) Notices. All notices and
other communications provided for or permitted hereunder
shall be made in writing and shall be deemed given (i)
when made, if made by hand delivery, (ii) upon
confirmation, if made by telecopier or (iii) one
business day after being deposited with a reputable
nextday courier, postage prepaid, to the parties as
follows:
(x) if to a holder of
Registrable Securities, at the most current address given
by such holder to the Company in accordance with the
provisions of Section 7(e):
(y) if to the Company, to:
Atlantic Coast Airlines, Inc.
515-A Shaw Road
Dulles, Virginia 20166
Attention: Kerry B.
Skeen Telecopy No.:
(703) 9256294
with a copy to:
Gibson, Dunn & Crutcher
LLP 1050 Connecticut
Avenue, N.W. Washington,
D.C. 20036 Attention:
Ronald O. Mueller
Telecopy No.: (202) 467-
0539
and
(z) if to the Special Counsel
to:
Piper & Marbury L.L.P.
36 South Charles Street Baltimore,
Maryland 21201 Attention: Stephen
A. Riddick Telecopy No.: (410) 576-
1763
or to such other address as such person may have
furnished to the other persons identified in this
Section 7(d) in writing in accordance herewith.
Copies of all notices, demands or other
communications shall be concurrently delivered by the
Person given the same to the Trustee under the
Indenture at the address specified in the Indenture.
(e) Owner of Registrable Securities. The
Company will maintain, or will cause its registrar
and transfer agent to maintain, a register with
respect to the
Registrable Securities in which all transfers of
Registrable Securities of which the Company has
received notice will be recorded. The Company may
deem and treat the person in whose name
Registrable Securities are registered in such
register of the Company as the owner thereof for
all purposes, including, without limitation, the
giving of notices under this Agreement.
(f) Approval of Holders. Whenever the
consent or approval of Holders of a specified
percentage of Registrable Securities is required
hereunder, Registrable Securities held by the
Company or its affiliates (as such term is defined
in Rule 405 under the Securities Act) (other than the
Initial Purchasers or subsequent holders of Registrable
Securities if such subsequent holders are deemed to be
such affiliates solely by reason of their holdings
of such Registrable Securities) shall not be counted
in determining whether such consent or approval was
given by the Holders of such required percentage.
(g) Successors and Assigns. Any person
who purchases any Registrable Securities from an
Initial Purchaser shall be deemed, for purposes of this
Agreement to
be an assignee of such Initial Purchaser. The
Agreement shall inure to the benefit of and be
binding upon the successors
and assigns of each of the parties and shall
inure to the benefit of and be binding upon each
holder
of any Registrable Securities.
(h) 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 original and all of which taken together
shall constitute one and the same agreement.
(i) Headings. The headings in this
Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning
hereof.
(j) Governing Law. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE COMMONWEALTH OF VIRGINIA, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE COMMONWEALTH
OF VIRGINIA WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS.
(k) Severability. If any term,
provision, covenant or restriction of this Agreement
is held 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 thereby, 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 which may be hereafter declared
invalid, illegal, void or unenforceable.
(l) Entire Agreement. This Agreement is
intended by the parties as a final expression of their
agreement and is intended to be a complete and
exclusive statement of the agreement and understanding
of the parties hereto in respect of the subject matter
contained herein. Except as provided in the Purchase
Agreement and the Indenture, there are no
restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein, with
respect to the registration rights granted by the
Company with respect to the securities sold pursuant
to the Purchase Agreement and the Indenture. This
Agreement supersedes all prior agreements and
understandings among the parties with respect to such
subject matter.
(m) Attorneys' Fees. In any action or
proceeding brought to enforce any provision of this
Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing
party, as determined by the court, shall be
entitled to recover reasonable attorneys' fees in
addition to any other available remedy.
(n) Further Assurances. Each of the
parties hereto shall use all reasonable efforts to
take,
or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary,
proper or advisable under applicable
law, and execute and deliver such documents and
other papers, as may be required to carry out the provisions
of this Agreement and the other documents contemplated
hereby and consummate the make effective the transactions
contemplated hereby.
(o) Termination. This Agreement and the
obligations of the parties hereunder shall terminate upon
the end of the Effectiveness Period, except for any
liabilities or obligations under Sections 2(d), 4 or 5
hereof, each of which shall remain in effect in accordance
with their terms.
IN WITNESS WHEREOF, the parties have executed
this Registration Rights Agreement as of the date first
written above.
ATLANTIC COAST AIRLINES,
INC.
By:_____________________
____ Name: Kerry B.
Skeen Title:President
and
Chief Executive
Officer
Accepted as of the date first above written:
ALEX. BROWN & SONS INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, INC.
By: Alex. Brown & Sons Incorporated
By:______________________________________
Authorized Signatory