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Exhibit 10.15
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT")
made as of this 7 day of June, 2002 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 (collectively, the "WEXFORD
INVESTORS"), and DELTA AIR LINES, INC. ("DELTA" and, together with the
Wexford Investors, the "HOLDERS").
W I T N E S S E T H:
WHEREAS, the Company and the Wexford Investors are party to a
Registration Rights Agreement, dated as of May 15, 1998 (the "EXISTING
AGREEMENT");
WHEREAS, on the date hereof Delta and Chautauqua Airlines, Inc., a
subsidiary of the Company, are entering into a Delta Connection Agreement and
certain other agreements pursuant to which certain rights to acquire shares of
Common Stock (as defined below) of the Company will be granted to Delta; and
WHEREAS, the parties hereto desire to enter into this Agreement, which
amends and restates in its entirety the Existing Agreement, to promote the
interests of the Company and the interests of the Holders by establishing herein
certain terms and conditions upon which the Company will register the shares of
Common Stock held by each Holder.
NOW, THEREFORE, in consideration of the premises and the 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").
"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 Holder 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
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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.
"REGISTRATION EXPENSES" shall mean all expenses incurred by
the Company in compliance with Sections 4.1, 4.2 and 4.3 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 Holders, 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 REASONABLY 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
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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 4.1, 4.2 and 4.3), 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 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 5%
of the Registrable Securities, including any securities convertible
into Registrable Securities, a written request that the Company effect
any registration with respect to all or a part of the Registrable
Securities (each such request, a "DEMAND"), 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 Demand 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
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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 Demand 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
distribution specified in such notices from requesting Other Stockholders, the
number of Registrable Securities specified in such notices.
The number of Demands which may be made by each Holder shall be a
limited to one (1) Demand PLUS a number determined as follows: For each five
percent (5%) of the amount of the Company's outstanding Common Stock, including
any securities convertible into Common Stock, (determined on a fully-diluted
basis) held by the Holders on the date any registration statement covering the
initial public offering of the Common Stock of the Company shall become
effective (the "MEASUREMENT DATE"), the Holders will be entitled to one (1)
Demand. Each five percent (5%) threshold is referred to as a "MARKER AMOUNT".
For purposes of clarification, if the amount of the Company's outstanding Common
Stock (determined on a fully-diluted basis) held by the Holders on the
Measurement Date is equal to 13%, each Holder would be entitled to a total of
three (3) Demands. The determination of the number of Demands to which the
Holders are entitled shall be calculated only one (1) time as provided herein.
(b) 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 unreasonably 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 Holders 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
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advise the Holders 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) first, 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) second, 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)
third, 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. 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.
(c) 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 (b) 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.
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(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 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 (or any comparable or successor form), the Holders or
any of them shall have the right to request unlimited
registrations on Form S-3 (or any comparable or successor form).
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, and
remain qualified, 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.
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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;
(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
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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 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.
(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 (i) 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, (ii) any violation by the
Company or its agents of any rule or regulation promulgated under
the Securities Act applicable to the Company or its agents and
relating to action or inaction required by the Company in
connection with any registration hereunder, and (iii) any failure
to register or qualify the Registrable Securities in any state
where the Company or its agents have affirmatively undertaken or
agreed that the Company (the undertaking of any underwriter
chosen by the Company being attributed to the Company) will
undertake such registration or qualification on such Holder's
behalf 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
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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.
(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
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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 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
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(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, (ii) such time as the Registrable Securities owned by such
Holder are eligible for resale under Rule 144(k) (without regard to any
volume limitations) and (iii) the seventh anniversary of the date of the
closing of the Company's initial public offering on Form S-1.
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.
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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 Wexford Investor, to the following address,
Wexford Plaza
411 West Putnam Avenue
Greenwich, CT 06830
Attention: Jay Maymudes
Fax: (203) 862-7350
and
(b) if to Delta, to the following address,
Delta Air Lines, Inc.
1030 Delta Blvd.
Atlanta, Georgia 30320
Attention: Sr. Vice President - Finance,
Treasury and Corp. Dev.
Phone: (404) 714-1724
Fax: (404) 677-1182
with a copy to,
Delta Air Lines, Inc.
1030 Delta Blvd.
Atlanta, Georgia, 30320
Attention: Sr. Vice President and General
Counsel
Phone: (404) 715-2191
Fax: (404) 715-2233
and
(c) if to the Company, to the following address, or at such
other address as the Company shall have furnished to the
Holders,
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.
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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. AMENDMENT AND RESTATEMENT; ENTIRE AGREEMENT. This Agreement amends and
restates in its entirety the Existing 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, including, without limitation, the
Existing Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Registration Rights Agreement as of the date first above written.
REPUBLIC AIRWAYS HOLDINGS INC.
By: /s/ Robert H. Cooper
-----------------------------------------
Name: Robert H. Cooper
Title: EVP and CFO
IMPRIMIS INVESTORS, LLC
By: /s/ Arthur Amron
-----------------------------------------
Name: Arthur Amron
Title: Vice President and Assistant
Secretary
WEXFORD SPECTRUM FUND I, L.P.
By: /s/ Arthur Amron
-----------------------------------------
Name: Arthur Amron
Title: Vice President and Assistant
Secretary
WEXFORD OFFSHORE SPECTRUM FUND
By: /s/ Arthur Amron
-----------------------------------------
Name: Arthur Amron
Title: Vice President and Assistant
Secretary
WEXFORD PARTNERS INVESTMENT CO. LLC
By: /s/ Arthur Amron
-----------------------------------------
Name: Arthur Amron
Title: Vice President and Assistant
Secretary
WEXAIR LLC
By: /s/ Arthur Amron
-----------------------------------------
Name: Arthur Amron
Title: Vice President and Assistant
Secretary
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DELTA AIR LINES, INC.
By: /s/ Frederick Buttrell
-----------------------------------------
Name: Frederick Buttrell
Title: President and CEO,
Delta Connection, Inc.
15