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