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Exhibit 10.61
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") made as of this 15th
day of May, 1998 by and among REPUBLIC AIRWAYS HOLDINGS INC., a Delaware
corporation (the "COMPANY"), IMPRIMIS INVESTORS, LLC, WEXFORD SPECTRUM FUND I,
L.P., WEXFORD OFFSHORE SPECTRUM FUND, WEXFORD PARTNERS INVESTMENT CO. LLC, and
WEXAIR LLC (each, an "INVESTOR", and together, the "INVESTORS").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to promote the interests of the
Company and the interests of the Investors by establishing herein certain terms
and conditions upon which the Company will register the shares of Common Stock
held by each Investor.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. CERTAIN DEFINITIONS. As used herein, the following terms shall have
the following respective meanings:
"COMMON STOCK" shall mean the common stock, par value $.001 per
share, of the Company.
"COMMISSION" shall mean the Securities and Exchange Commission or
any other Federal agency at the time administering the Securities Act of 1933,
as amended (the "SECURITIES ACT").
"HOLDER" shall mean any Investor (together referred to as
"HOLDERS").
"RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear or bearing the legend set forth in Section 2 hereof.
"REGISTRABLE SECURITIES" shall mean (i) the Common Stock held by
each Investor and (ii) Common Stock issued to the Holders upon any stock split,
stock dividend, merger, consolidation, recapitalization or similar event,
excluding all such shares which (x) have been registered under the Securities
Act and disposed of in accordance with the registration statement covering them,
(y) have been publicly sold pursuant to Rule 144 (or any successor rule) under
the Securities Act or (z) are eligible for sale without restriction under Rule
144(k) (or any successor rule) under the Securities Act.
The terms "REGISTER", "REGISTERED" and "REGISTRATION" shall refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
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"REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in compliance with Sections 4, 5 and 6 hereof, including, without
limitation, all registration, qualification and filing fees, exchange listing
fees, printing expenses, escrow fees, fees and disbursements of counsel for the
Company and one counsel for the Investors, blue sky fees and expenses, and the
expense of any special audits incident to or required by any such registration.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for the Holders.
2. RESTRICTIVE LEGEND. Each certificate representing the Common Stock
or any other securities issued upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event shall (unless
otherwise permitted or unless the securities evidenced by such certificate
shall have been registered under the Securities Act) be stamped or otherwise
imprinted with a legend in substantially the following form (in addition to
any legend required under applicable state securities laws):
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. NO TRANSFER
OF SAID SECURITIES SHALL BE PERMITTED IN THE ABSENCE OF (I) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE
LAWS COVERING THE SHARES PROPOSED TO BE TRANSFERRED OR (II) AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSFER WILL NOT
REQUIRE COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE ACT AND OF
ANY APPLICABLE STATE LAWS.
Upon request of a holder of such a certificate, the Company shall
remove the foregoing legend from the certificate or issue to such holder a new
certificate therefor free of any transfer legend, if (x) with such request, the
Company shall have received either an opinion referred to in Section 3 to the
effect that any transfer by such holder of the securities evidenced by such
certificate will not violate the Securities Act and applicable state securities
laws, (y) in accordance with paragraph (k) of Rule 144, such holder is not and
has not during the last three months been an affiliate of the Company and such
holder has held the securities represented by such certificate for a period of
at least two years. The Company will use its reasonable best efforts to assist
any holder in complying with the provisions of this Section 2 for removal of the
legend set forth above.
3. NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in
all respects with the provisions of this Agreement. Prior to any proposed
transfer of any Restricted Securities (other than under circumstances
described in Sections 4, 5 and 6 hereof), the holder thereof shall give
written notice to the Company of such holder's intention to effect such
transfer. Each such notice shall describe the manner and circumstances of
the proposed transfer in
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sufficient detail, and shall be accompanied (except in transactions in
compliance with Rule 144) by a written opinion of legal counsel who shall be
reasonably satisfactory to the Company, addressed to the Company and
reasonably satisfactory in form and substance to the Company's counsel, to
the effect that the proposed transfer of the Restricted Securities may be
effected without registration under the Securities Act and applicable state
securities laws whereupon the holder of such Restricted Securities, shall be
entitled to transfer such Restricted Securities in accordance with the terms
of the notice delivered by the holder to the Company. Each certificate
evidencing the Restricted Securities transferred as above provided shall
bear the appropriate restrictive legend set forth above unless the opinion
of counsel referred to above is to the further effect that no such legend is
required in order to establish compliance with any provisions of the
Securities Act or applicable state securities laws.
4. REGISTRATION RIGHTS.
4.1 (a) REQUEST FOR REGISTRATION. If, at any time following the
180th day after any registration statement covering an initial public
offering of the Common Stock of the Company shall have become effective,
the Company shall receive from a Holder or Holders owning in excess of
10% of the Registrable Securities a written request that the Company
effect any registration with respect to all or a part of the Registrable
Securities, the Company will, as soon as practicable, but in any event no
later than ninety (90) days after receipt of such request, use its
reasonable best efforts to effect such registration (including, without
limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualification under applicable blue sky or other
state securities laws (except that the Company shall not be required to
qualify the offering under the blue sky laws of any jurisdiction in which
the Company would be required to execute a general consent to service of
process unless the Company is already subject to service in such
jurisdiction) and appropriate compliance with applicable regulations
issued under the Securities Act) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of
such Registrable Securities as are specified in such request. The Company
shall file a registration statement covering the Registrable Securities
so requested to be registered as soon as practicable after receipt of the
request.
The registration statement filed pursuant to the request of such Holder
may, subject to the provisions of Section 4.1(b) below, include other securities
of the Company which are held by officers or directors of the Company or which
are held by persons who, by virtue of agreements with the Company now or
hereinafter in effect are entitled to include their securities in any such
registration (collectively, "OTHER STOCKHOLDERS") and may include securities of
the Company being sold for the account of the Company. The Company shall
promptly give notice of any registration proposed under this Section 4.1 to such
Other Stockholders.
Following receipt of any notice under this Section 4.1, the Company
shall immediately notify all Other Stockholders from whom notice has not been
received and such Other Stockholders shall have 30 days from receipt of such
notice from the Company to notify the Company of their desire to participate in
the registration. The Company shall use its reasonable best efforts to register
under the Securities Act, for public sale in accordance with the method of
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distribution specified in such notices from requesting Other Stockholders, the
number of Registrable Securities specified in such notices.
(a) UNDERWRITING. If a Holder intends to distribute the
Registrable Securities covered by its request by means of an
underwriting, it shall so advise the Company as a part of its request
made pursuant to Section 4.1(a) above and the Company shall include any
information that it shall have received as to the nature of the
underwriting in the written notice of the Company referred to in
Section 4.1(a) above, including the name of the underwriter or
representative thereof selected for such underwriting. A Holder may
elect to include in such underwriting all or a part of the Registrable
Securities held by it. Any underwriter selected by such Holder shall be
subject to the Company's consent (which consent shall not be
unreasonable withheld).
If the Company wishes to include in any registration pursuant to
Section 4.1 securities being sold for its own account, or if the Other
Stockholders shall request inclusion in any registration pursuant to Section
4.1, the Company may offer to include the securities of the Company and such
Other Stockholders in the underwriting and (in the case of Other Shareholders)
may condition such offer on their acceptance of the further applicable
provisions of this Agreement. The Company shall (together with the Holder and
Other Stockholders proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or representative of the underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 4.1, if the
representative of the underwriters advises the Company in writing that, in its
opinion, marketing factors require a limitation on the number of shares to be
underwritten, the Company shall so advise the Holder and the number of shares of
Registrable Securities and other securities that may be included in the
registration and underwriting shall be allocated in the following manner: (i)
the securities being sold for the account of the Company shall be excluded from
such registration and underwriting to the extent required by such limitation
(ii) if a limitation on the number of shares is still required, the securities
held by the Other Stockholders of the Company shall be excluded from such
registration and underwriting to the extent required by such limitation in
proportion, as nearly practicable, to the respective amounts of securities
requested to be registered by such Other Stockholders or otherwise as their
rights may appear and (iii) if a limitation on the number of shares is still
required, the securities held by the Holders of the Company shall be excluded
from such registration and underwriting to the extent required by such
limitation in proportion, as nearly practicable, to the respective amounts of
securities requested to be registered by the Holders or otherwise as their
rights may appear. If the Company or a Holder or any Other Stockholder who has
requested inclusion in such registration as provided above disapproves of the
terms of the underwriting, such person may elect to withdraw therefrom by
written notice to the Company. The securities so withdrawn shall also be
withdrawn from registration. If, pursuant to this paragraph, any of the
securities being sold for the account of such Holder are to be excluded from
such registration and underwriting, such Holder may withdraw its request for
such registration or underwriting and such request will not be counted as the
registration permitted under Section 4.1 of this Agreement, or such Holder may
have such securities registered as a non-underwritten "shelf" registration
pursuant to Rule 415.
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(b) The Company shall have the right to defer the request of a
Holder to effect a registration for up to sixty (60) calendar days if,
in the Company's judgment reasonably set forth in writing and delivered
to the Holders, effecting a registration would not be in the Company's
best interest.
4.2 COMPANY REGISTRATION.
(a) If at any time following the 180th day after any
registration statement covering an initial public offering of the
Common Stock of the Company shall have become effective, the Company
shall register any of its securities either for its own account or the
account of a security holder or holders exercising their respective
demand registration rights, other than a registration relating solely
to employee benefit plans, a registration relating solely to a
Commission Rule 145 transaction (covering mergers, acquisitions and
corporate reorganizations) or a registration on any registration form
which does not permit secondary sales, the Company will:
(b) within ten (10) days of such determination give to the
Holders and the Other Stockholders written notice thereof; and
(c) include in such registration and in any underwriting
involved therein, all the Registrable Securities specified in a written
request or requests, made by a Holder or an Other Stockholder within
twenty (20) days after receipt of the written notice from the Company
described (a) above, except as set forth in Section 4.2(d) below. Such
written request may specify all or a part of such Holder's or Other
Stockholder's Registrable Securities.
(d) UNDERWRITING. If the registration of which the Company
gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holders and the Other
Stockholders by written notice. The Holders and the Other Stockholders
shall (together with the Company, if distributing its securities for
its own account through such underwriting) enter into an underwriting
agreement in customary form with the underwriter or underwriters
selected by the Company. Notwithstanding any other provision of this
Section 4.2, if the representative of the underwriters advises the
Company in writing that, in its opinion, marketing factors require a
limitation on the number of shares to be underwritten, the Company
shall so advise the Holders and the Other Stockholders, and the number
of shares that may be included in the registration and underwriting
shall be allocated first to the Company for securities being sold for
its account and then in the following manner: (i) the securities
requested to be registered by officers or directors of the Company
shall be excluded from such registration and underwriting to the extent
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required by such limitation in proportion, as nearly as practicable, to
the respective amounts of securities requested to be registered by such
officers and directors and (ii) if a limitation on the number of shares
is still required, the securities being sold for the accounts of the
Holders and the Other Stockholders shall be excluded from such
registration and underwriting to the extent required by such limitation
in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities which the Holders and such Other Stockholders
had requested to be included in such registration or otherwise as their
rights may appear. If a Holder or any Other Stockholder who has
requested inclusion in such registration as provided above disapproves
of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company and the underwriter.
4.3 SUBSEQUENT DEMANDS AND REGISTRATION ON FORM S-3.
(a) In addition to the rights contained in the foregoing
provisions of this Section 4, upon the Company qualifying for the use
of Form S-3, the Holders or any of them shall have the right to request
unlimited registrations on Form S-3. Such requests shall be in writing,
shall state the number of shares of Registrable Securities to be
disposed of and the intended methods of disposition of such shares by
the Holders.
(b) The Company shall use its reasonable best efforts to
qualify for registration on Form S-3 or any comparable or successor
form.
4.4 EXPENSES OF REGISTRATION.
The Company shall bear all Registration Expenses and each Holder shall
bear its own Selling Expenses relating to the securities being included by such
Holder in the registration incurred in connection with any registration,
qualification or compliance pursuant to the provisions of Section 4.1 or 4.2.
4.5 REGISTRATION PROCEDURES. In the case of the registration effected
by the Company pursuant to this Agreement, the Company will keep the Holders
advised in writing as to the initiation of the registration and as to the
completion thereof. At its expense, the Company will:
(a) Keep such registration effective for a period of one
hundred twenty (120) days or until the Holders have completed the
distribution described in the registration statement relating thereto,
whichever first occurs; PROVIDED, HOWEVER, that in the case of any
registration of Registrable Securities on Form S-3 which are intended
to be offered on a continuous or delayed basis, such 120-day period
shall be extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold;
(b) Prepare and file with the Commission 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 Securities Act with respect to the
disposition of securities covered by such registration statement;
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(c) Furnish one registration statement and such number of
prospectuses and other documents incident thereto, including any term
sheet or any amendment of or supplement to the prospectus, as a Holder
from time to time may reasonably request;
(d) Notify the Holders, at their addresses as set forth in the
Company's books and records at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or incomplete in the light of the circumstances then
existing, and at the request of a Holder, prepare and furnish to such
seller a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter delivered
to the purchaser of such shares, such prospectus shall not include 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 not misleading or incomplete in the light of the circumstances
then existing;
(e) Cause all such Registrable Securities to be listed on
each, if any, securities exchange on which similar securities issued by
the Company are then listed;
(f) Provide a transfer agent and registrar for all Registrable
Securities and a CUSIP number for all such Registrable Securities, in
each case not later than the effective date of such registration;
(g) Make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant
to such registration statement, and any attorney or accountant retained
by any such seller or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause
the Company's officers and directors to supply all information
reasonably requested by any such seller, underwriter, attorney or
accountant in connection with such registration statement; PROVIDED,
HOWEVER, that such seller, underwriter, attorney or accountant shall
agree in writing to hold in confidence and trust all information so
provided;
(h) Furnish to each Holder a signed counterpart, addressed to
such Holder, of an opinion of counsel for the Company, dated the
effective date of the registration statement, and in the case of any
underwritten public offering obtain "comfort" letters signed by the
Company's independent public accountants who have examined and reported
on the Company's financial statements included in the registration
statement, to the extent permitted by the standards of the AICPA or
other relevant authorities.
5. INDEMNIFICATION.
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(a) The Company will indemnify each Holder, each of its
officers, directors and partners, and each person controlling the
Holder, with respect to which registration, qualification or compliance
has been effected pursuant to Section 4 hereof, and each underwriter,
if any, and each person who controls any underwriter, against all
claims, losses, damages and liabilities (or actions, proceedings or
settlements in respect thereof) arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in
any prospectus or other document (including any related registration
statement) incident to any such registration, qualification or
compliance, or based on 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, and will reimburse the
Holder, each of its officers, directors and partners, and each person
controlling the Holder, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses as
they are reasonably incurred in connection with investigating and
defending any such claim, loss, damage, liability or action; PROVIDED
that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is
based on any untrue statement or omission based upon written
information furnished to the Company by the Holder or such underwriter
specifically for use therein or to the extent due to the failure of the
Holder or such underwriter to provide an updated prospectus or other
document to a purchaser at a time when the Company has informed the
Holder or such underwriter of a material misstatement or omission in a
prospectus or other document and has provided updated prospectuses or
other documents correcting such misstatement or omission or the Holder
actually knew of such untrue statement or omission.
(b) Each Holder will indemnify the Company, each of its
directors and officers and each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of the
Securities Act and the rules and regulations thereunder, against all
claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration
statement, prospectus or other document, or 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, and
will reimburse the Company and its directors, officers, partners,
persons, underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each
case to the extent, but only to the extent, that such untrue statement
(or alleged untrue statement) or omission (or alleged omission) is made
in such registration statement, prospectus or other document in
reliance upon and in conformity with written information furnished to
the Company by such Holder and stated to be specifically for use
therein; PROVIDED, HOWEVER, that the obligations of such Holder
hereunder shall be limited to an amount equal to the proceeds to the
Holder of securities sold as contemplated herein.
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(c) Each party entitled to indemnification under this Section
5 (the "INDEMNIFIED PARTY") shall give notice in writing to the party
required to provide indemnification (the "INDEMNIFYING PARTY") promptly
after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party
to assume the defense of any such claim or any litigation resulting
therefrom, PROVIDED that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may
participate in such defense at such Indemnified Party's expense. No
Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation
without the prior written consent of the Indemnifying Party. Each
Indemnified Party shall furnish such information regarding itself or
the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with
defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 5 is
unavailable to an Indemnified Party in respect of any losses, claims,
damages or liabilities referred to therein, then each 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, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Company on the one
hand and the stockholders offering securities in the offering (the
"SELLING STOCKHOLDERS") on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the Holder on the
other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company or by the Holder and the parties' relevant
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Holders agree
that it would not be just and equitable if contribution pursuant to
this Section 5(d) were based solely upon the number of entities from
whom contribution was requested or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this Section 5(d). The amount paid or payable by an
Indemnified Party as a result of the losses, claims, damages and
liabilities referred to above in this Section 5(d) shall be deemed to
include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any
such action or claim, subject to the provisions of Section 5(d) hereof.
Notwithstanding the provisions of this Section 5(d), neither Holder
shall be required to contribute any
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amount or make any other payments under this Agreement which in the
aggregate exceed the net proceeds received by such Holder. No person
guilty of fraudulent misrepresentation (within the meaning of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
6. INFORMATION BY HOLDER. Each Holder shall furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
as the Company may request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Agreement.
7. RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may permit the sale of the
Restricted Securities to the public without registration, the Company agrees to:
(a) use its reasonable best efforts to make and keep public
information available as those terms are understood and defined in Rule
144 under the Securities Act at all times;
(b) use its reasonable best efforts to file with the
Commission in a timely manner all reports and other documents required
of the Company under the Securities Act and the Exchange Act; and
(c) so long as any Holder owns any Restricted Securities,
furnish to such Holder or Holders forthwith upon request a written
statement by the Company as to its compliance with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange
Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed as such Holder
or Holders may reasonably request in availing itself of any rule or
regulation of the Commission allowing such Holder or Holders to sell
any such securities without registration.
8. TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register the Registrable Securities held by the Holders under
Section 4 may be transferred or assigned, PROVIDED that the Company is given
written notice at the time of or within a reasonable time after said transfer or
assignment, stating the name and address of said transferee or assignee and
identifying the Registrable Securities with respect to which such registration
rights are being transferred or assigned, and PROVIDED FURTHER that the
transferee or assignee of such rights assumes the obligations of a Holder under
this Agreement.
9. TERMINATION. The provisions of Sections 4.1, 4.2 and 4.3 of this
Agreement shall terminate at the latest to occur of (i) the date on which the
Registrable Securities total less than 5% of the outstanding Common Stock of the
Company, and (ii) the seventh anniversary of the date of the closing of the
Company's initial public offering on Form S-1.
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10. AMENDMENT; WAIVER. No amendment, alteration or modification of this
Agreement shall be valid unless in each instance such amendment, alteration or
modification is expressed in a written instrument executed by each Holder (so
long as a Holder is a holder of Registrable Securities) and the Company. No
waiver of any provision of this Agreement shall be valid unless it is expressed
in a written instrument duly executed by the party or parties making such
waiver. The failure of any party to insist, in any one or more instances, on
performance of any of the terms and conditions of this Agreement shall not be
construed as a waiver or relinquishment of any rights granted hereunder or of
the future performance of any such term, covenant or condition but the
obligation of any party with respect thereto shall continue in full force and
effect.
11. SPECIFIC PERFORMANCE. The parties hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
by reason of a failure to perform any of the obligations under this Agreement.
Therefore, all parties hereto shall have the right to specific performance of
the obligations of the other parties under this Agreement, and if any party
hereto shall institute an action or proceeding to enforce the provisions hereof,
any person (including the Company) against whom such action or proceeding is
brought hereby waives the claim or defense therein that such party has an
adequate remedy at law, and such person shall not urge in any such action or
proceeding the claim or defense that such remedy at law exists.
12. NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by first-class mail, postage
prepaid, or transmitted by facsimile or delivered by nationally recognized
overnight courier, addressed:
(a) if to a Holder, to the following address,
Wexford Plaza
411 West Putnam Avenue
Greenwich, CT 06830
Attention: Jay Maymudes
Fax: (203) 862-7350
and:
(b) if to the Company, to the following address, or at such
other address as the Company shall have furnished to the Holders,
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Republic Airways Holdings Inc.
2500 S. High School Road,
Suite 160
Indianapolis, IN 46241
Attention: Bryan K. Bedford
Phone: (317) 484-6000
Fax: (317) 484-4747
Alternatively, to such other address as a party hereto supplies to each
other party in writing.
13. SUCCESSORS AND ASSIGNS. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective permitted transferees, successors and assigns of the parties
hereto, whether so expressed or not.
14. GOVERNING LAW. This Agreement is to be governed by and interpreted
under the laws of the State of Delaware without giving effect to the principles
of conflicts of laws thereof.
15. TITLES AND SUBTITLES. The titles of the sections of this Agreement
are for the convenience of reference only and are not to be considered in
construing this Agreement.
16. SEVERABILITY. The invalidity or unenforceability of any provisions
of this Agreement shall not be deemed to affect the validity or enforceability
of any other provision of this Agreement.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
18. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with respect to the subject
matter hereof and supersedes all previous agreements, arrangements and
understandings, whether written or oral, with respect to the subject matter
hereof.
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<Page>
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first above written.
REPUBLIC AIRWAYS HOLDINGS INC.
By:
----------------------------------------
Name:
Title:
IMPRIMIS INVESTORS, LLC
By:
----------------------------------------
Name:
Title:
WEXFORD SPECTRUM FUND I, L.P.
By:
----------------------------------------
Name:
Title:
WEXFORD OFFSHORE SPECTRUM FUND
By:
----------------------------------------
Name:
Title:
WEXFORD PARTNERS INVESTMENT CO. LLC
By:
----------------------------------------
Name:
Title:
WEXAIR LLC
By:
----------------------------------------
Name:
Title:
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