Exhibit 10.26


 


STOCKHOLDERS AGREEMENT


 


This
Stockholders Agreement is made and entered into as of the [·] day of [·], 2010 (this “Agreement”), by and between Global Aviation Holdings, Inc.,
a Delaware corporation (including successors, the “Company”),
and MatlinPatterson ATA Holdings LLC, a Delaware limited liability company
(including successors, the “Investor”).


 


RECITALS


 


WHEREAS, Investor
holds a significant portion of the Company’s outstanding equity securities;


 


WHEREAS,
the Company is currently contemplating an IPO; and


 


WHEREAS,
the parties believe that it is in the best interests of the Company and its
stockholders to set forth their agreements on certain matters.


 


NOW,
THEREFORE, in consideration of the mutual covenants and obligations set forth
in this Agreement, and other good and valid consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:


 


1.                                      Definitions


 


1.1                               Definitions of Certain Terms


 


For
purposes of this Agreement, the following terms have the indicated meanings:


 


“Affiliate” means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under common
control with such first Person.  As used
in this definition, “control”
(including the terms “controlled by”
and “under common control with”) means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of a Person, whether through the ownership
of securities, partnership interests or by contract or otherwise.  Notwithstanding the foregoing, solely for
purposes of this Agreement, the directors and officers of the Company or any of
its Subsidiaries shall not, solely as a result of holding such office, be deemed
Affiliates of the Investor.  With respect
to the Investor, the term “Affiliate”
shall also include its general partner or investment manager or similar Person,
and any other entity with the same general partner or investment manager or
similar Persons.  For the avoidance of
doubt, no Person shall be deemed the Affiliate of any other Person merely by
virtue of holding an ownership interest of 10% or more in such Person, or
pursuant to any other presumption regarding “affiliate” status.


 


“beneficially own” has the meaning given such term in Rules 13d-3
and 13d-5 under the Exchange Act, except that for purposes of this Agreement
such Person or Group shall be deemed to have “beneficial
ownership” of all shares that any 


 


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such
Person or Group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time. 
The terms “beneficially owned”
and “beneficial owner” shall have meanings
correlative of the foregoing.  For the avoidance
of doubt, no shares of Voting Stock held by officers or directors of the
Company shall be deemed to be beneficially owned by the Investor or its
Affiliates, solely as a result of such officer or director holding such office.


 


“Board” means the board of directors of the Company.


 


“Business Day” means any day other than a Saturday, Sunday or
other day on which commercial banks in New York, New York are authorized or
required by applicable law to close.


 


“Bylaws” means the Amended and Restated Bylaws of the
Company, as amended from time-to-time, or similar governing document (or, with
respect to any successor, any similar governing document).


 


“Capital Stock” means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of the Company, including any Common
Stock or any preferred stock of the Company, but excluding any non-voting debt
securities convertible into such equity.


 


“Charter” means the Amended and Restated Certificate of
Incorporation of the Company, as amended from time-to-time (or, with respect to
any successor, any similar governing document).


 


“Common Stock” means the common stock of the Company, par
value $0.0001 per share.


 


“Company” is defined in the preamble to this Agreement.


 


“Confidential Information” is defined in Section 3.1.


 


“Demand Registration” is defined in Section 4.2.


 


“Exchange Act” means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations
promulgated thereunder, in each case as in effect from time to time.


 


“Governmental Authority” means any international,
supranational or national government, any state, provincial, local or other
political subdivision thereof, any entity, authority or body exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including any government authority, agency,
department, board, commission or instrumentality of the United States or a foreign
nation or jurisdiction, any State of the United States or any political
subdivision of any thereof, any court, tribunal or arbitrator, or any
self-regulatory organization.


 


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“Group” has the meaning given such term in Section 13(d)(3) and
Rule 13d-3 of the Exchange Act.


 


“Holdback Period” means, with respect to any registered
offering by the Company, (1) ninety (90) days after and during the ten (10) days
before, the effective date of the related Registration Statement or, in the
case of a takedown from a shelf registration statement, ninety (90) days after
the date of the prospectus supplement filed with the SEC in connection with
such takedown and during such prior period (not to exceed ten days) as the
Company has given reasonable written notice to the Holder or (2) such
shorter period as the Investor, the Company and the underwriter of such
offering, if any, shall agree.


 


“Holder” means any Person holding Registrable Securities.


 


“Holders’  Counsel” is
defined in Section 4.9.2.


 


“Independent Directors” mean those members of the Board who
are not Investor Directors.


 


“Investor” is defined in the preamble to this Agreement.


 


“Investor Director” is defined in Section 2.2.1.


 


“Investor Transaction” means any transaction between the
Company or its Subsidiaries on the one hand and the Investor or its Affiliates
on the other, in which the Investor or its Affiliates have a material  interest distinct from that of the other
holders of the Common Stock of the Company.


 


“IPO” shall mean the completion of a public offering of
the Company’s Common Stock pursuant to a Registration Statement on Form S-1.


 


“MatlinPatterson Entities” means MatlinPatterson Global
Advisers LLC and its Affiliates.


 


“Non-Management Independent Directors” mean those Independent
Directors who are not officers or employees of the Company or any of its
Subsidiaries.


 


“Notice” is defined in Section 6.1.1.


 


“Person” means any individual, corporation, partnership,
firm, joint venture, association, limited liability company, joint-stock
company, trust, unincorporated organization, Governmental Authority or other
legal entity.


 


“Piggyback Registration” is defined in Section 4.7.1.


 


“Registration Request” is defined in Section 4.2.


 


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“Registrable Securities” means (i) any and all shares of
Common Stock, including Common Stock issued or issuable pursuant to the
conversion, exercise or exchange of other securities, rights, options or
warrants, beneficially owned by the Investor, whether owned on the date hereof
or acquired hereafter, and (ii) any and all shares of Common Stock issued
or issuable with respect to the securities referred to in clause (i) by
way of stock dividend or a stock split or in connection with any combination of
shares, recapitalization, merger, consolidation or other reorganization;
provided that securities shall cease to be Registrable Securities when: (a) a
registration statement covering such Registrable Securities has been declared effective
under the Securities Act by the SEC and such Registrable Securities have been
disposed of pursuant to such effective registration statement, (b) with
respect to any Holder the entire amount of the Registrable Securities held by
such Holder may be sold in a single sale pursuant to Rule 144 (to the
extent that such shares represent less than 5% of the outstanding voting power
of the Voting Stock of the Company), (c) such Registrable Securities have
been sold in a sale pursuant to Rule 144, or (d) the Registrable
Securities are Transferred to a Person not entitled to the registration rights
granted by this Agreement.


 


“Registration Expenses” is defined in Section 4.9.1.


 


“Registration Statement” means the prospectus and other
documents filed with the SEC to effect a registration under the Securities Act.


 


“SEC” means the United States Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.


 


“Securities Act” means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations
promulgated thereunder, in each case as in effect from time to time.


 


“Subsidiary” means, with respect to any Person (the “parent”)
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent’s consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity of which securities or other ownership interests
representing 50% or more of the equity or 50% or more of the ordinary voting
power is or, in the case of a partnership, 50% or more of the general
partnership interests are, as of such date, owned, controlled or held by the
parent or one or more subsidiaries of the parent.


 


“Transfer” means any transfer, sale, assignment, donation,
option, pledge, lien, hypothecation or other disposition or encumbrance,
whether directly or indirectly, by operation of law or otherwise, or any
agreement to do any of the foregoing.


 


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“Voting Stock” means securities of any class of Capital Stock
of the Company entitling the holders thereof (whether at all times or only so
long as no senior class of stock has voting power by reason of any contingency)
to vote in the election of members of the Board.


 


1.2                               Headings; Table of Contents


 


Headings
and table of contents should be ignored in construing this Agreement.


 


1.3                               Singular, Plural, Gender


 


In
this Agreement, unless the context otherwise requires, references to one gender
include all genders and references to the singular include the plural and vice
versa.


 


1.4                               Interpretation


 


In
this Agreement, unless the context otherwise requires, any reference to “including”
or “in particular” shall be illustrative only and without limitation.


 


2.                                      Corporate Governance


 


2.1                               Size of Board.  Upon the IPO, the authorized number of
directors on the Board shall be seven, subject to increase or decrease by the
Board from time-to-time, in accordance with the Charter, the Bylaws and this
Agreement.


 


2.2                               Investor Representatives.


 


2.2.1                     From and after the IPO, so long as the Investor, together with its
Affiliates, owns total voting power of Voting Stock representing at least 10%
of the total voting power of Voting Stock (which for this purpose shall not
include voting stock that the Investor or its Affiliates have the right to
acquire), the Investor shall be entitled to designate such number of directors
(rounded up to the nearest whole person) to be nominated to serve on the Board
as would be proportionate to the total voting power of the Voting Stock
beneficially owed by the Investor, together with its Affiliates (each director
nominee designated by the Investor, an “Investor
Director”); provided that,
in the event that the Investor, together with its Affiliates, owns less than a
majority of the voting power of Voting Stock (which for this purpose shall not
include voting stock that the Investor or its Affiliates have the right to
acquire), (i) the Investor Directors shall be rounded down to the nearest
whole person, and (ii) the Board shall be composed of a majority of directors
who are not affiliated or associated with the Investor and who are not
executives or employees of the Company or its Subsidiaries.


 


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2.2.2                     From and after the closing of the IPO, the Company shall cause the
nomination of each Investor Director (to the extent that such Investor Director
would be up for election at such time) in connection with any subsequent proxy
statement or information statement pursuant to which the Company intends to
solicit stockholders with respect to the election of directors and to have the
Board recommend in connection with such subsequent proxy statement or
information statement that the stockholders of the Company vote for the
election of each Investor Director up for election at such time.  At least ninety calendar days prior to any
meeting of stockholders at which directors shall be elected, the Investor shall
provide the Company with a written questionnaire providing such information with
respect to the background and qualification of each Investor Director that
would be required to be disclosed to stockholders pursuant to the Bylaw
requirements for nominations to the Board. 
For the avoidance of doubt, the Company shall not be required to cause
an Investor Director to be nominated to the Board, unless, pursuant to Section 2.2.1
above, the Investor is entitled to nominate the number of Investor Directors
that will serve on the Board, assuming such Investor Director to be nominated
is elected.


 


2.2.3                     If prior to the end of the term of any member of the Board that is an
Investor Director, a vacancy in the office of such director shall occur by
reason of death, resignation, removal or disability, or for any other cause,
such vacancy shall be filled by the Board, at the direction of the Investor,
with another Investor Director, and the Investor shall have the right to
replace any Investor Director, at any time, with or without cause.


 


2.2.4                     The election and appointment of each Investor Director shall be subject
to all legal requirements and the Company’s reasonable governance standards
regarding service as a director of the Company and to the reasonable approval
of the Nominating and Corporate Governance Committee of the Board; provided
that the Company shall use reasonable efforts to seek such approval in a
reasonably prompt manner and in no event later than the next regularly
scheduled meeting of such committee following the delivery of notice from the
Investor to the Company designating an Investor Director.  Furthermore, no manager, member, partner,
employee, or consultant of or to any of the MatlinPatterson Entities shall be
excluded from serving as an Independent Director solely due to the fact that
such manager, member, partner, employee, or consultant is Affiliated or associated
with the MatlinPatterson Entities.


 


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2.2.5                     From and after the IPO, upon the Investor and its Affiliates ceasing to
beneficially own the percentage of the total voting power of Voting Stock
required to entitle the Investor to designate, pursuant to Section 2.2.1,
the number of Investor Directors then so designated, the Company may request
that the requisite number of Investor Directors then serving on the Board
resign as directors, and the Investor shall use reasonable efforts to cause
such Investor Directors to resign promptly from the Board, so that the number
of Investor Directors shall equal the number that the Investor is then-entitled
to be designated under Section 2.2.1. 
The Board, after considering any person nominated by the Investor to
fill such vacancy, shall have the right to fill any vacancy resulting therefor.


 


2.3                               Committees and Subsidiary Boards


 


2.3.1                     For so long as the Company constitutes a “Controlled Company” under the
applicable rules of the NASDAQ Global Select market and is otherwise
permitted by such rules and applicable law, each committee of the Board
(other than the Audit Committee or any committee of Independent Directors
formed to consider any Investor Transaction) shall contain such number of
Investor Directors so that the number of Investor Directors on such committee
shall be as nearly as possible proportional to the total number of Investor
Directors on the Board.


 


2.3.2                     Upon the written request of the Investor, the boards of any or all
Subsidiaries (and committees thereof, if any) of the Company shall contain at
least one (1) Investor Director.


 


2.4                               Preapproval.  Notwithstanding anything  to the contrary herein, any proposed Investor
Transaction must be pre-approved by a majority of the Non-Management
Independent Directors.


 


2.5                               Observer Rights.  For so
long as the Investor, together with its Affiliates, owns total voting power of
the Voting Stock representing at least 5% of the total voting power of Voting
Stock, the Company will allow a representative of the Investor to attend all
meetings of its Board in a nonvoting observer capacity and, in this respect,
shall give such representative copies of all notices, minutes, consents and
other materials that it provides to its directors; provided, however, that
(i)  such representative shall agree to hold in confidence and trust all
information so provided in accordance with Section 3 below, (ii) the
Board reserves the right to withhold any information and to exclude such
representative from any meeting or portion thereof if it determines in good
faith that access to such information or attendance at such meeting could
adversely affect the attorney-client privilege between the Company and its
counsel or would result in disclosure of trade secrets to such representative
that would be 


 


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materially injurious to the Company, and
(iii) such observer shall be excluded from all “executive sessions” of the
Board if any other persons who are not members of the Board, other than counsel
to the Company, are also excluded.  The
Investor’s representative may include any individual the Investor designates.


 


3.                                      Confidential Information


 


3.1                               The Investor covenants and agrees that it
shall keep all confidential information relating to the Company that it
receives in its capacity as either a stockholder of the Company or in
connection with its rights under this Agreement, and information received from
the Investor Directors and observers provided for in Section 2.5 (such
information, “Confidential Information”)
confidential, not use such information in any manner that is adverse to the
interests of the Company or its Subsidiaries, and not disclose such information
to any third party without the written consent of the Company unless the
Confidential Information is:


 


3.1.1                     already in possession of the public or becomes available to the public
other than through any act or omission of the Investor or its Affiliates in
violation of this Agreement;


 


3.1.2                     required to be disclosed under any applicable law or by any governmental
order, decree, regulation or rule or is requested by any Governmental
Authority having jurisdiction over the Investor or its Affiliates or in
connection with any legal proceedings, subject to compliance with the
provisions of Section 3.2;


 


3.1.3                     acquired independently from a third party that represented that it has
the right to disseminate such information at the time it is acquired by the
Investor or its Affiliates without restriction;


 


3.1.4                     disclosed in connection with the proposed or actual transfer by the
Investor of any of its Voting Stock or other equity interests in the Company;
provided that the transferee, acquirer or counterparty to such transaction is
bound by confidentiality provisions that are no less restrictive than this Section 3;
provided further that the Company shall promptly provide the Investor with any
information, including Confidential Information, and cooperate with the
Investor and perform all actions, to the extent reasonably requested by the
Investor;


 


3.1.5                     disclosed to the MatlinPatterson Entities, and any managers, directors,
officers and employees of the MatlinPatterson Entities, and who is informed of
the obligations under this Section 3;


 


3.1.6                     disclosed to the accountants, attorneys or other advisors of the
MatlinPatterson Entities who have a need to know such confidential 


 


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information
in connection with the Investor’s interest in the Company, including its ownership
of Capital Stock, and who is informed of the obligations under this Section 3;


 


3.1.7                     disclosed in connection with required or routine reporting to the
Investor’s potential or current investors, members, partners and lenders of
other financial or capital sources; provided that the transferee, acquirer or
counterparty to such transaction is bound by confidentiality provisions that
are no less restrictive than this Section 3;


 


3.1.8                     disclosed in connection with any proposed merger, sale of assets, business
combination, financing, or other similar transaction in which any of the
MatlinPatterson Entities may become a party; provided, that the counterparties
to such transaction or potential transaction are bound by confidentiality
provisions that are no less restrictive than this Section 3; or


 


3.1.9                     reasonably necessary for the Investor to perform any of its duties or
obligations hereunder.


 


3.2                               The Investor shall be responsible for ensuring
that Confidential Information disclosed pursuant to Sections 3.1.4 — 3.1.9 is
not used by the recipient in any manner adverse to the Company and is not
disclosed by such recipient and shall be liable for, and shall indemnify and
make whole the Company for any such misuse or further disclosure of
Confidential Information; provided that, the Investor shall have no such
responsibility or liability, and shall have no obligation to indemnify or make
whole the Company, for any such misuse or further disclosure of Confidential
Information disclosed by the Investor pursuant to Sections 3.1.4-3.1.9, if the
recipient thereof is at the time of receipt of such Confidential Information,
or at any time thereafter, obligated to keep Confidential Information
confidential pursuant to a separate agreement with the Company.


 


3.3                               In the event that the Investor is requested or
required (by deposition, interrogatory, request for information or documents in
legal proceedings, subpoena, civil investigative demand or other similar
process) pursuant to law, regulation or a listing agreement with a securities
exchange to disclose any of the Confidential Information, it shall provide the
Company with prompt written notice of any such request or requirement so that
the Company may (at the Company’s sole expense), if time permits, seek a
protective order or other appropriate remedy and/or waive compliance with the
provisions of this Agreement.  If, in the
absence of a protective order or other remedy or the receipt of a waiver by the
Company, the Investor is nonetheless legally compelled to disclose Confidential
Information to any tribunal or securities exchange, the Investor may, without
liability 


 


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hereunder, disclose to such tribunal or securities
exchange only that portion of the Confidential Information that it reasonably
believes is legally required to be disclosed; provided that the Investor
exercises its reasonable efforts to preserve the confidentiality of such
Confidential Information.


 


3.4                               Notwithstanding anything herein to the
contrary, under no circumstances shall the Investor or its Affiliates disclose
any Confidential Information to any direct, material competitors of the Company
or its Subsidiaries or subsidiaries or controlling affiliates of such
competitors, without the prior written consent of the Company (such consent not
to be unreasonably  withheld).


 


4.                                      Registration Rights


 


4.1                               Shelf Registration


 


If
requested by the Investor at any time following the first anniversary of the
IPO, the Company will use its commercially reasonable efforts to qualify for
registration on and to file, a registration statement on Form S-3 or any
comparable or successor form or forms or any similar short-form registration (“Short-Form Registration Statement”), and such Short-Form Registration
Statement will be a “shelf” registration statement providing for the
registration, and the sale on a continuous or delayed basis, of the Registrable
Securities pursuant to Rule 415.  In
no event shall the Company be obligated to effect any shelf registration
statement other than pursuant to a Short-Form Registration Statement.  Upon filing a Short-Form Registration
Statement, the Company will, if applicable, use its commercially reasonable
efforts to (i) cause such Short-Form Registration Statement to be
declared effective, and (ii) keep such Short-Form Registration
Statement effective with the SEC at all times. 
Any Short-Form Registration Statement shall be re-filed upon its
expiration, and the Company shall cooperate in any shelf take-down by amending
or supplementing the registration statement related to such Short-Form Registration
Statement as may be reasonably requested by a Holder or as otherwise required,
until the Holders who would require such registration to effect a sale of the
Registrable Securities no longer hold the Registrable Securities so registered;
provided that no Holder may be permitted to sell under such “shelf”
registration statement during such times as the trading window is not open for
Company senior management in accordance with the Company’s policies.  The Company will pay all Registration
Expenses incurred in connection with any Short-Form Registration
Statement.  The Company shall use its
commercially reasonable efforts to take such actions as are under its control
to not become an ineligible issuer (as defined in Rule 405 under the
Securities Act).


 


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4.2                               Demand Registration


 


At
any time following the expiration of any lock-up period relating to the IPO,
the Investor may request in writing that the Company effect the registration of
all or any part of the Registrable Securities held by the Holders on whose
behalf the Investor has made the request (a “Registration
Request”).  Promptly after its
receipt of any Registration Request but no later than ten (10) days after
receipt of such Registration Request, the Company will give written notice of
such request to the other Holders, and will use its commercially reasonable
efforts to register, in accordance with the provisions of this Agreement, all
Registrable Securities that have been requested to be registered in the
Registration Request or by the other Holders by written notice to the Company
given within fifteen (15) Business Days after the date the Company has given
such notice of the Registration Request; provided that, with respect to an
underwritten offering, the Company will not be required to effect a
registration pursuant to this Section 4.2 unless the value of Registrable
Securities included in the Registration Request is at least $50 million.  Any registration requested by the Investor
pursuant to this Section 4.2 is referred to in this Agreement as a “Demand Registration.”


 


4.3                               Limitations on Demand Registrations


 


The
Investor will be entitled to initiate no more than three Demand Registrations,
and the Company will not be obligated to effect more than one Demand
Registration in any six month period.  No
request for registration will count for the purposes of the limitations in this
Section 4.3 if (i) the Registration Statement relating to such
request is not declared effective within 180 days of the date such Registration
Statement is first filed with the SEC (other than solely by reason of the
participating Holders having refused to proceed or provide any required
information for inclusion therein) and the Investor withdraws the Registration
Request prior to such Registration Statement being declared effective, (ii) prior
to the sale of at least ninety percent (90%) of the Registrable Securities
included in the applicable registration relating to such request, such
Registration Statement is adversely affected by any stop order, injunction or
other order or requirement of the SEC or other Governmental Authority for any
reason and the Company fails to have such stop order, injunction or other order
or requirement removed, withdrawn or resolved to the Investor’s reasonable
satisfaction within thirty (30) days of the date of such order, or (iii) the
conditions to closing specified in the underwriting agreement entered into in
connection with the registration relating to such request are not satisfied
(other than as a result of a default or breach thereunder by the Investor or
other Holders).  Notwithstanding the
foregoing, the Company will pay all Registration Expenses in connection with
any request for registration pursuant to Section 4.2 regardless of whether
or not such request counts toward the limitation set forth above.


 


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4.4                               Restrictions on Demand Registrations


 


If
the filing, initial effectiveness or continued use of a Registration Statement
would require the Company to make a public disclosure of material non-public
information, which disclosure in the good faith judgment of the Board and
counsel to the Company (i) would be required to be made in any Registration
Statement so that such Registration Statement would not be materially
misleading, (ii) would not be required to be made at such time but for the
filing, effectiveness or continued use of such Registration Statement, and
(iii) would in the good faith judgment of the Board (A) reasonably be expected to adversely affect the Company or its
business if made at such time, or (B)
reasonably be excepted to interfere with the Company’s ability to effect a
planned or proposed acquisition, disposition, financing, reorganization,
recapitalization or similar transaction or (C)
otherwise require premature disclosure of material information that the Company
has a bona fide business purpose for preserving as confidential, then the
Company may upon giving prompt written notice of such determination of the
Board and counsel to the Company to the participants in such registration (each
of whom hereby agrees to maintain the confidentiality of all information
disclosed to such participants, provided that the Company shall not be required
to disclose the nature of the delay or other confidential information) delay
the filing or initial effectiveness of, or suspend use of, such Registration
Statement; provided, that the Company shall not be
permitted to do so (x) for more than sixty (60) days for a given occurrence of
such a circumstance or (y) more than two (2) times during any twelve-month
period.  In the event the Company
exercises its rights under the preceding sentence, the Holders agree to
suspend, promptly upon their receipt of the notice referred to above, their use
of any prospectus relating to such registration in connection with any sale or
offer to sell Registrable Securities.  If
the Company so postpones the filing of a prospectus or the effectiveness of a
Registration Statement, the Investor will be entitled to withdraw such request
and, if such request is promptly withdrawn, such registration request will not
count for the purposes of the limitation set forth in Section 4.3.  The Company will pay all Registration
Expenses incurred in connection with any such aborted registration or
prospectus.


 


4.5                               Selection of Underwriters


 


If
the Investor intends that the Registrable Securities covered by the
Registration Request shall be distributed by means of an underwritten offering,
the Investor will so advise the Company as a part of the Registration Request,
and the Company will include such information in the notice sent by the Company
to the Holders with respect to such Registration Request.  In such event, the lead underwriter to
administer the offering will be chosen by the Company in such offering, subject
to the prior written consent of the Investor, not to be unreasonably withheld
or delayed.  If the offering is
underwritten, the right of any Holder to registration pursuant to this Section
4 will be conditioned upon such 


 


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Holder’s
participation in such underwriting and the inclusion of such Holder’s
Registrable Securities in the underwriting, and each such Holder will (together
with the Company) enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting.  If any Holder disapproves of the terms of the
underwriting, such Holder may promptly elect to withdraw therefrom by written
notice to the Company, the managing underwriter and the Investor.


 


4.6                               Priority on Demand Registrations


 


4.6.1                     The Company will not include in any Demand Registration by means of an
underwritten offering pursuant to this Section 4 any securities that are not
Registrable Securities, without the prior written consent of the Investor.  If the managing underwriters advise the
Company that in their reasonable opinion the number of Registrable Securities
(and, if permitted hereunder, other securities requested to be included in such
offering) exceeds the number of securities that can be sold in such offering
without adversely affecting the marketability of the offering (including an
adverse effect on the per share offering price), the Company will include in
such offering only such number of securities that in the reasonable opinion of
such managing underwriters can be sold without adversely affecting the
marketability of the offering (including an adverse effect on the per share
offering price), which securities will be so included in the following order of
priority: (i) first, Registrable Securities of any Holder on whose behalf the
Investor has submitted a Registration Request, including the Investor, (ii)
second, Registrable Securities of any other Holder who has delivered written
requests for registration pursuant to Section 4.2, pro rata on the basis of the
aggregate number of Registrable Securities owned by each such Person, and (iii)
third, any other securities of the Company that have been requested to be so
included, subject to the terms of this Agreement.


 


4.6.2                     Notwithstanding the foregoing, the Company shall not be obligated to take
any action pursuant to this Section 4 if the Company, within ten (10) days of
the receipt of the request of the Investor, gives notice of its bona fide intention to effect the filing of a registration
statement or prospectus supplement to a shelf registration statement with the
SEC within forty five (45) days of receipt of such request (other than with
respect to a registration statement relating to a Rule 145 transaction, an
offering solely to employees, or any other registration which is not
appropriate for the registration of Registrable Securities).


 


13

















 


4.7                               Piggyback Registrations


 


4.7.1                     Whenever the Company proposes to register any of its Common Stock in
connection with a public offering of such securities solely for cash, other
than a registration pursuant to Section 4.2 or on Form S-4 or Form S-8 (or
successor form), and the registration form to be filed may be used for the
registration or qualification for distribution of Registrable Securities, the
Company will give prompt written notice to the Holders of its intention to
effect such a registration (but in no event less than ten (10) days prior to
the anticipated filing date) and, subject to Section 4.7.3, will include in
such registration all Registrable Securities with respect to which the Company
has received written requests for inclusion therein within ten (10) days after
the date of the Company’s notice (a “Piggyback
Registration”).  Any such Holder that has made such a written
request may withdraw its Registrable Securities from such Piggyback
Registration by giving prompt written notice to the Company and the managing
underwriter, if any, on or before the fifth (5th) Business Day prior to the
planned effective date of such Piggyback Registration.  The Company may terminate or withdraw any
registration under this Section 4.7.1 prior to the effectiveness of such
registration, whether or not the Holders have elected to include Registrable
Securities in such registration.


 


4.7.2                     If the registration referred to in Section 4.7.1 is proposed to be
underwritten, the Company will so advise the Holders as a part of the written
notice given pursuant to Section 4.7.1. 
In such event, the right of the Holders to registration pursuant to this
Section 4.7 will be conditioned upon such Holder’s participation in such
underwriting and the inclusion of such Holder’s Registrable Securities in the
underwriting, and each such person will (together with the Company and the
other Persons distributing their securities through such underwriting) enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company.  If any participating Holder disapproves of
the terms of the underwriting, such Person may promptly elect to withdraw
therefrom by written notice to the Company and the managing underwriter.


 


4.7.3                     If a Piggyback Registration relates to an underwritten offering, and the
managing underwriters advise the Company that in their reasonable opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold without adversely affecting the marketability of such
offering (including an adverse effect on the per share offering price), the
Company will include in such registration or prospectus only such number of
securities that in the reasonable opinion of such underwriters can be sold
without adversely affecting the marketability of the offering (including an
adverse effect on the per 


 


14

















 


share
offering price), which securities will be so included in the following order of
priority: (i) first, the securities the Company proposes to sell, (ii) second,
Registrable Securities of the Investor to the extent it has requested registration
of Registrable Securities pursuant to Section 4.7.1, (iii) third, Registrable
Securities of the other Holders who have requested registration of Registrable
Securities pursuant to Section 4.7.1, pro rata on the
basis of the aggregate number of such securities or shares owned by each such
Holder, and (iv) fourth, any other securities of the Company that have been
requested to be so included.


 


4.8                               Registration Procedures


 


Subject
to Section 4.3, whenever the Holders have requested that any Registrable
Securities be registered pursuant to Section 41. or Section 4.2 of this
Agreement, the Company will use its commercially reasonable efforts to effect
the registration and sale of such commercially Registrable Securities as soon
as reasonably practicable in accordance with the intended method of disposition
thereof and pursuant thereto.  The
Company shall use its commercially reasonable efforts to as expeditiously as
possible:


 


4.8.1                     prepare and file with the SEC a Registration Statement with respect to such
Registrable Securities, make all required filings with the Financial Industry
Regulatory Authority and thereafter use its reasonable best efforts to cause
such Registration Statement to become effective as soon as reasonably
practicable and to remain effective as provided herein; provided that within a
reasonable time before filing a Registration Statement or any amendments or
supplements thereto, the Company will, at the Company’s expense, furnish or
otherwise make available to the Holders’ Counsel copies of all such documents
proposed to be filed and such other documents reasonably requested by such
counsel, which documents will be subject to review and reasonable comment of
such counsel at the Company’s expense, including any comment letter from the SEC
with respect to such filing or the documents incorporated by reference therein,
and if requested by such counsel, provide such counsel reasonable opportunity
to participate in the preparation of such Registration Statement and such other
opportunities to conduct a reasonable investigation within the meaning of the
Securities Act, including reasonable access to the Company’s financial books
and records, officers, accountants and other advisors;


 


4.8.2                     prepare and file with the SEC such amendments and supplements to such
Registration Statement as may be necessary to keep such Registration Statement
effective for a period of either (A) not
less 


 


15

















 


than
(i) six (6) months, (ii) if such Registration Statement relates to an
underwritten offering, such longer period as, based upon the opinion of counsel
for the underwriters, a prospectus is required by law to be delivered in
connection with sales of Registrable Securities by an underwriter or dealer or
(iii) continuously in the case of shelf registration statements and any shelf
registration statement shall be re-filed upon its expiration (or in each case
such shorter period ending on the date that the securities covered by such
shelf registration statement cease to constitute Registrable Securities) or (B) such shorter period as will terminate when
all of the securities covered by such Registration Statement have been disposed
of in accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such Registration Statement (but in any event not
before the expiration of any longer period required under the Securities Act),
and cause the related prospectus to be supplemented by any prospectus
supplement as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of the securities covered by such
Registration Statement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act;


 


4.8.3                     furnish to each participating Holder, and each managing underwriter, if
any, such number of copies, without charge, of such Registration Statement,
each amendment and supplement thereto, including each preliminary prospectus,
final prospectus, any other prospectus (including any prospectus filed under
Rule 424, Rule 430A or Rule 430B under the Securities Act and any “issuer free
writing prospectus” as such term is defined under Rule 433 promulgated under
the Securities Act), all exhibits and other documents filed therewith and such
other documents as such Holder or such managing underwriter may reasonably
request including in order to facilitate the disposition of the Registrable
Securities owned by such Holder, and upon request a copy of any and all transmittal
letters or other correspondence to or received from, the SEC or any other
Governmental Authority relating to such offer;


 


4.8.4                     register or qualify (or exempt from registration or qualification) such
Registrable Securities, and keep such registration or qualification (or
exemption therefrom) effective, under such other securities or blue sky laws of
such United States jurisdictions as any participating Holder reasonably
requests and do any and all other acts and things that may be reasonably necessary
or reasonably advisable to enable such Holder to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such Holder
(provided, that the Company will not be required to (i) qualify 


 


16

















 


generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subsection, (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any such
jurisdiction);


 


4.8.5                     notify each participating Holder, the Holders’ Counsel and the managing
underwriter(s), if any, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery that, or upon
the discovery of the happening of any event that makes any statement made in
the Registration Statement or related prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in such Registration
Statement, prospectus or documents and, as soon as reasonably practicable (but
subject to the delay provisions of Section 4.4), prepare and furnish to such
Holder a reasonable number of copies of a supplement or amendment to such
prospectus so that, in the case of the Registration Statement, it will not
contain any untrue statement of material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
not misleading, and that in the case of any prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statement therein, in light of the circumstances
in which they were made, not misleading;


 


4.8.6                     notify each participating Holder, the Holders’ Counsel and the managing
underwriter(s), if any, (i) when such Registration Statement or the prospectus
or any prospectus supplement or post-effective amendment has been filed and,
with respect to such Registration Statement or any post-effective amendment,
when the same has become effective, (ii) of any request by the SEC for
amendments or supplements to such Registration Statement or to amend or to
supplement such prospectus or for additional information, (iii) of the issuance
by the SEC of any stop order suspending the effectiveness of such Registration
Statement or the initiation of any proceedings for any of such purposes, (iv)
if at any time the representations and warranties of the Company contained in
any underwriting agreement contemplated by Section 4.8.11 below cease to be
true and correct in any material respect, and (v) of the receipt by the Company
of any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation or threatening of any proceeding for such
purpose;


 


4.8.7                     upon the occurrence of an event contemplated in Section 4.8.5 or in
Section 4.8.6(ii), 4.8.6(iii), 4.8.6(iv) or 4.8.6(v) (but subject to the 


 


17

















 


delay
provisions of Section 4.4), prepare a supplement or amendment to the
Registration Statement or supplement to the related prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that such prospectus as thereafter delivered to the
participating Holders will not contain an untrue statement of a material fact
or omit to state any fact necessary to make the statements therein not
misleading in the light of the circumstances under which they were made;


 


4.8.8                     cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed or,
if no similar securities issued by the Company are then listed on any
securities exchange, or use its commercially reasonable efforts to cause all
such Registrable Securities to be listed on the New York Stock Exchange or the
NASDAQ Stock Market, as determined by the Company;


 


4.8.9                     provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such Registration Statement;


 


4.8.10              enter
into such customary agreements (including underwriting agreements and, subject
to Section 4.12, lock-up agreements in customary form, and including provisions
with respect to indemnification and contribution in customary form; provided
that any obligation to indemnify any Person pursuant to any agreement, including
any underwriting agreement or other arrangement, shall be several, not joint
and several, among such Holders selling Registrable Shares, and such liability
shall be limited to the net amount received by such Holder from the sale of
his, her or its Registrable Shares pursuant to such registration (which amounts
shall include the amount of cash or the fair market value of any assets,
including shares of the Common Stock, received in exchange for the sale or
exchange of such Registrable Shares or that are the subject of a distribution)
and the relative liability of each such Holder shall be in proportion to the
such net amounts) and take all such other customary actions as the
participating Holders or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such Registrable Securities
(including, making members of management and executives of the Company
available to participate in “road show,” similar sales events and other
marketing activities; provided that the Company shall not be required to make
members of management and executives of the Company so available for more than
five consecutive days or more than 10 days in any 365 day period);


 


18

















 


4.8.11              in
connection with any underwritten offering, make such representations and
warranties to the participating Holders and the managing underwriter(s), if
any, with respect to the business of the Company and the Company Subsidiaries,
and the Registration Statement, prospectus, and documents incorporated or
deemed to be incorporated by reference therein, in each case, in form,
substance and scope as are customarily made by the issuer in underwritten
offerings, and, if true, make customary confirmations of the same if and when requested;


 


4.8.12              if
requested by any participating Holder, or the managing underwriter(s), if any,
promptly include in a prospectus supplement or amendment such information as
the Holder or managing underwriter(s), if any, may reasonably request in order
to permit the intended method of distribution of such securities and make all
required filings of such prospectus supplement or such amendment as soon as
reasonably practicable after the Company has received such request;


 


4.8.13              in
the case of certificated Registrable Securities, cooperate with the
participating Holders and the managing underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates (not bearing any legends)
representing Registrable Securities to be sold after receiving written
representations from each Holder that that the Registrable Securities
represented by the certificates so delivered by such Holder will be transferred
in accordance with the Registration Statement, and enable such Registrable
Securities to be in such denominations and registered in such names as the
Holders or managing underwriters, if any, may request at least two business
days prior to any sale of Registrable Securities;


 


4.8.14              make
promptly available for inspection by any participating Holders and the Holders’
Counsel, any underwriter participating in any disposition pursuant to such
Registration Statement and any attorney, accountant or other agent retained by
any such Holder or underwriter, to the extent reasonably requested and solely
for conducting customary due diligence, all financial and other records,
pertinent corporate documents and documents relating to the business of the
Company, and cause the Company’s officers, directors, employees and independent
accountants to supply all information reasonably requested by any such Holder,
underwriter, attorney, accountant or agent in connection with such Registration
Statement, provided that it shall be a condition to such inspection and receipt
of such information that the inspecting person (i) enter into a confidentiality
agreement in form and substance reasonably satisfactory to the Company and (ii)
agree to minimize the 


 


19

















 


disruption
to the Company’s business in connection with the foregoing;


 


4.8.15              otherwise
use its reasonable best efforts to comply with all applicable rules and
regulations of the SEC and any applicable national securities exchange;


 


4.8.16              timely
provide to its security holders earning statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;


 


4.8.17              in
the event of the issuance of any stop order suspending the effectiveness of a
Registration Statement, or of any order suspending or preventing the use of any
related prospectus or ceasing trading of any securities included in such
Registration Statement for sale in any jurisdiction, use every commercially
reasonable effort to promptly obtain the withdrawal of such order;


 


4.8.18              obtain
one or more comfort letters, addressed to the underwriters, if any, dated the
effective date of such Registration Statement and the date of the closing under
the underwriting agreement for such offering, signed by the Company’s
independent public accountants (and if necessary, any other independent certified
public accountants of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement) in customary form and covering such matters of the type
customarily covered by comfort letters as such underwriters shall reasonably
request;


 


4.8.19              provide
legal opinions of the Company’s counsel, addressed to the underwriters, if any,
dated the date of the closing under the underwriting agreement, with respect to
the Registration Statement, each amendment and supplement thereto (including
the preliminary prospectus) and such other documents relating thereto as the
underwriter shall reasonably request in customary form and covering such
matters of the type customarily covered by legal opinions of such nature; and


 


4.8.20              obtain
any required regulatory approval necessary for the Holders to sell its
Registrable Securities in an offering.


 


4.8.21              As
a condition to registering Registrable Securities, the Company may require each
Holder as to which any registration is being effected to furnish the Company
with such information regarding such Person and pertinent to the disclosure
requirements relating to the registration and the distribution of such
securities as the Company may from time to time reasonably request in writing.


 


20

















 


4.9                               Registration Expenses


 


4.9.1                     Except as otherwise provided in this Agreement, all expenses incidental
to the Company’s performance of or compliance with this Agreement, including
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, word processing, duplicating and printing
expenses, messenger, telephone and delivery expenses, expenses incurred in
connection with any road show, and fees and disbursements of counsel for the
Company and all independent certified public accountants and other persons
retained by the Company (all such expenses, “Registration
Expenses”), will be borne by the Company.  The Company will, in any event, pay its
internal expenses (including all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit or quarterly review, the expenses of any liability insurance and the expenses
and fees for listing the securities to be registered on each securities
exchange on which they are required to be listed hereunder.  The Holders of the securities so registered
shall pay all underwriting discounts, selling commissions and transfer taxes
applicable to the sale of Registrable Securities hereunder and any other
Registration Expenses required by law to be paid by a selling holder pro rata
on the basis of the amount of proceeds from the sale of their shares so
registered.


 


4.9.2                     In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse the Holders participating in such
registration for the reasonable fees and disbursements of one counsel (“Holders’ Counsel”).


 


4.10                        Participation in Underwritten Registrations


 


4.10.1              No
Holder may participate in any registration hereunder that is underwritten
unless such Holder (i) agrees to sell its Registrable Securities on the basis
provided in the underwriting arrangements in customary form, entered into
pursuant to this Agreement (including pursuant to the terms of any
over-allotment or “green shoe” option requested by the managing underwriter(s),
provided, that no such Holder will be required to sell more than the number of
Registrable Securities that such Holder has requested the Company to include in
any registration), (ii) completes and executes all questionnaires, powers of
attorney, indemnities (subject to Section 4.8.10 above), underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements, provided, that
such Holder shall not be required to make any representations or warranties
other than those related to title and ownership of shares and as to the 


 


21

















 


accuracy
and completeness of statements made in a Registration Statement, prospectus,
offering circular, or other document in reliance upon and in conformity with
written information furnished to the Company or the managing underwriter(s) by
such Holder, and (iii) cooperates with the Company’s reasonable requests in
connection with such registration or qualification (it being understood that
the Company’s failure to perform its obligations hereunder, which failure is
caused by such Holder’s failure to cooperate with such reasonable requests,
will not constitute a breach by the Company of this Agreement).  Notwithstanding the foregoing, the liability
of any Holder participating in such an underwritten registration shall be
limited to an amount equal to the amount of gross proceeds attributable to the
sale of such Person’s Registrable Securities, including cash or the fair market
value of any assets received in exchange or the subject of a distribution.


 


4.10.2              Each
Holder that is participating in any registration hereunder agrees that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in Section 4.4, 4.8.5 and 4.8.6, such Holder will forthwith
discontinue the disposition of its Registrable Securities pursuant to the Registration
Statement until such Holder receives copies of a supplemented or amended
prospectus as contemplated by such Section 4.8.5, 4.8.6 and 4.8.7.  In the event the Company gives any such
notice, the applicable time period mentioned in Section 4.8.2 during which a
Registration Statement is to remain effective will be extended by the number of
days during the period from and including the date of the giving of such notice
pursuant to this Section 4.10.2 to and including the date when each Holder of a
Registrable Security covered by such Registration Statement will have received
the copies of the supplemented or amended prospectus contemplated by Section
4.8.5, 4.8.6 and 4.8.7.


 


4.11                        Rule 144


 


The Company will use its
reasonable best efforts to timely file all reports and other documents required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of a Holder, make
publicly available such information as necessary to permit sales pursuant to
Rule 144 or Regulation S under the Securities Act), and it will take such
further action as any Holder may reasonably request, to the extent required
from time to time to enable such Holder to sell shares of Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 or Regulation S under the Securities
Act, as such rules may be amended from time to time, or (ii) any similar rule
or regulation


 


22














 


hereafter adopted by the
SEC.  Upon the reasonable request of any
Holder, the Company will deliver to such Holder a written statement, certified
by the Company’s Chief Financial Officer, as to whether it has complied with
such information requirements, and, if not, the specifics thereof.


 


4.12                        Holdback


 


In consideration for the
Company agreeing to its obligations under this Agreement, the Investor (and any
transferee) agrees in connection with any registration of the Company’s
securities (whether or not such Person is participating in such registration)
upon the request of the Company and the underwriters managing any underwritten
offering of the Company’s securities, not to effect (other than pursuant to
such registration) any public sale or distribution of Registrable Securities,
including any sale pursuant to Rule 144 or Rule 144A, or make any
short sale of, loan, grant any option for the purchase of, or otherwise dispose
of or Transfer any Registrable Securities, any other equity securities of the
Company or any securities convertible into or exchangeable or exercisable for
any equity securities of the Company without the prior written consent of the
Company or such underwriters, as the case may be, during the Holdback Period;
provided, that nothing herein will prevent any such Holder that is a
partnership or corporation from making a distribution of Registrable Securities
to the partners or shareholders thereof or a transfer to an Affiliate that is
otherwise in compliance with applicable securities laws, so long as such
distributees or transferees agree to be bound by the restrictions set forth in
this Section 4.12.  With respect to
such underwritten offering of Registrable Securities covered by a registration
pursuant to Section 4.2, the Company further agrees not to effect (other
than pursuant to such registration or pursuant to a Special Registration) any
public sale or distribution, or to file any Registration Statement (other than
such registration or a Special Registration) covering any of its equity securities,
or any securities convertible into or exchangeable or exercisable for such
securities, during the Holdback Period with respect to such underwritten
offering, if required by the managing underwriter.


 


5.                                       Additional Investor Rights.  For so long as the Investor, together with
its Affiliates, owns total voting power of the Voting Stock representing at
least 5% of the total voting power of Voting Stock and such contractual
management rights are necessary to satisfy the requirements of management rights
for purposes of qualifying its investment in the Company as a “venture capital
investment” for purposes of the United States Department of Labor Regulations
§2510.3-101 (the “Regulations”), the Investor shall be entitled to the
following contractual management rights:


 


5.1                               Financial Statements and Other Information.  The
Company shall deliver to the Fund:


 


23

















 


5.1.1                     As soon as available and in any event within 45 days after the end of
each of the first three quarters of each fiscal year of the Company,
consolidated balance sheets for the Company and its Subsidiaries as of the end
of such period, and consolidated statements of income and cash flows of the
Company and its Subsidiaries for the period then ended prepared in conformity
with generally accepted accounting principles in the United States applied on a
consistent basis, except as otherwise noted therein, and subject to the absence
of footnotes and to year-end adjustments;


 


5.1.2                     As soon as available and in any event within 120 days after the end of
each fiscal year of the Company, a consolidated balance sheet of the Company
and its Subsidiaries as of the end of such year, and consolidated statements of
income and cash flows of the Company and its Subsidiaries for the year then
ended prepared in conformity with generally accepted accounting principles in
the United States applied on a consistent basis, except as otherwise noted
therein, together with an auditor’s report thereon of a firm of established
national reputation; and


 


5.1.3                     To the extent the Company is required by law or pursuant to the terms of
any outstanding indebtedness of the Company to prepare such reports, any annual
reports, quarterly reports and other periodic reports pursuant to Section 13
or 15(d) of the Exchange Act actually prepared by the Company as soon as
possible.


 


5.2                               Inspection and Access.  The
Company and its Subsidiaries shall provide to the Investor, true and correct
copies of all documents, reports, financial data and other information as the
Investor may reasonably request. 
Additionally, the Company shall permit any authorized representatives
designated by the Investor to visit and inspect any of the properties of the
Company and its Subsidiaries or any of its Subsidiaries, including its and
their books of account, and to discuss its and their affairs, finances and
accounts with its and their officers, all at such times as the Investor may
reasonably request.


 


5.3                               Right of Consultation.  Representatives of the Investor shall have
the right to consult with and advise the management of the Company and its
Subsidiaries, upon reasonable notice at reasonable times from time to time, on
all matters relating to the operation of the Company and its Subsidiaries.


 


5.4                               In the event that the Investor determines that
the foregoing rights are not sufficient to satisfy the requirements of
management rights for purposes of qualifying its investment in the Company as a
“venture capital investment” for purposes of the Regulations, the Company and
the Investor shall


 


24

















 


reasonably cooperate in good faith to agree upon
mutually satisfactory management rights that satisfy the Regulations.


 


5.5                               All rights granted to the Investor in this Section 5
are in addition to the rights provided to the Investor in its capacity as a
holder of Capital Stock and nothing herein shall be construed to limit,
restrict or impair any claim, right or privilege available, or granted, to the
Investor pursuant to this Agreement or any other contractual arrangements with
the Company.


 


6.                                      Miscellaneous


 


6.1                               Notices


 


6.1.1                     Any notice or other communication in connection with this Agreement
(each, a “Notice”) shall be:


 


(a)                                  in writing in English;


 


(b)                                  delivered by hand, fax, registered post or by courier using an
internationally recognized courier company.


 


6.1.2                     Notices to the Company shall be sent to at the following address, or such
other person or address as the Company may notify to the Investor from time to
time:


 


Global Aviation Holdings, Inc.


101
World Drive


Peachtree
City, Georgia 30269


(770)
632-8000


Attention:
Mark McMillin


 


with
a copy to:


 


Bryan
Cave LLP


One
Atlantic Center


Fourteenth
Floor


1201
W. Peachtree St., N.W.


Atlanta,
GA 30309


Tel:
(404) 572-6600


Fax:
(404) 572-6999


Attention:
Thomas R. McNeill


 


6.1.3                     Notices to the Investor shall be sent to at the following address, or
such other person or address as the Investor may notify to the Company from
time to time:


 


MatlinPatterson ATA Holdings LLC


c/o
MatlinPatterson Global Advisers LLC


 


25

















 


Madison
Avenue


35th
Floor


New
York, New York 10022-4213


Phone:  (212) 655-9500


Fax:  (212) 651-4011


Attention:  General Counsel


 


with
a copy to:


 


Bracewell &
Giuliani LLP


1251
Avenue of the Americas


New
York, NY 10036


Tel:  (212) 508-6100


Fax:  (212) 508-6101


Attention:  Robb Tretter


 


6.1.4                     Notices shall be effective upon receipt and shall be deemed to have been
received:


 


(a)                                  at the time of delivery, if delivered by hand, registered post or
courier; and


 


(b)                                  at the expiration of two hours after completion of the transmission, if
sent by facsimile, provided that if a Notice would become effective under the
above provisions after 5.30 p.m.  on
any Business Day, then it shall be deemed instead to become effective at 9.30 a.m.  on the next Business Day.  References in this Agreement to time are to
local time at the location of the addressee as set out in the Notice.


 


Subject
to the foregoing provisions of this Section 6.1, in proving service of a
Notice, it shall be sufficient to prove that the envelope containing such
Notice was properly addressed and delivered by hand, registered post or courier
to the relevant address pursuant to the above provisions or that the facsimile
transmission report (call back verification) states that the communication was
properly sent.


 


6.2                               Termination


 


This
Agreement shall be effective as of the date hereof and shall terminate with
respect to all provisions (other than Section 5 and Section 6),
unless otherwise provided herein, on the date on which the Investor and it
Affiliates cease to beneficially own, in the aggregate, at least ten percent
(10%) of the voting power of Voting Stock. 
The provisions of Section 4 shall terminate earlier, if on or
before such date, there ceases to be any Registrable Shares outstanding.


 


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6.3                               Governing Law


 


This
Agreement and the rights and obligations of the parties hereunder and the
Persons subject hereto shall be governed by and construed and interpreted in
accordance with the laws of the State of Delaware, without giving effect to
conflicts of laws rules that would require or permit the application of
the laws of another jurisdiction.


 


6.4                               Submission to Jurisdiction


 


Each
Party to this Agreement hereby irrevocably submits to the exclusive
jurisdiction of the courts of the state of Delaware and the federal courts of
the United States of America located in the state of Delaware solely in respect
of the interpretation and enforcement of the provisions of this agreement and
in respect of the transactions contemplated hereby.  Each Party irrevocably agrees that all claims
in respect of the interpretation and enforcement of the provisions of this
agreement and in respect of the transactions contemplated hereby, or with
respect to any such action or proceeding, shall be heard and determined in such
a Delaware state or federal court, and that such jurisdiction of such courts
with respect thereto shall be exclusive, except solely to the extent that all
such courts shall lawfully decline to exercise such jurisdiction.  Each Party hereby waives, and agrees not to
assert, as a defense in any action, suit or proceeding for the interpretation
or enforcement hereof or in respect of any such transaction, that it is not
subject to such jurisdiction.  Each Party
hereby waives, and agrees not to assert, to the maximum extent permitted by
law, as a defense in any action, suit or proceeding for the interpretation or
enforcement hereof or in respect of any such transaction, that such action,
suit or proceeding may not be brought or is not maintainable in such courts or
that the venue thereof may not be appropriate or that this agreement may not be
enforced in or by such courts.  Each
Party consents to and grants any such court jurisdiction over the person of
such parties in connection with, and over the subject matter of, any such
dispute and agrees, to the maximum extent permitted by law, that mailing of
process or other papers in connection with any such action or proceeding in the
manner provided in Section 6.1 or in such other manner as may be permitted
by law, shall be valid and sufficient service thereof.


 


6.5                               Waiver of Jury Trial


 


Each
Party to this Agreement acknowledges and agrees that any controversy that may
arise under this agreement is likely to involve complicated and difficult
issues, and therefore each such Party hereby irrevocably and unconditionally
waives any right such party may have to a trial by jury in respect of any
litigation directly or indirectly arising out of or relating to this agreement,
or the breach, termination or validity of this agreement, or the transactions
contemplated by this Agreement.  Each
such Party certifies and acknowledges that (a) no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to


 


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enforce
the foregoing waiver, (b) each such Party understands and has considered
the implications of this waiver, (c) each such Party makes this waiver
voluntarily and (d) each such Party has been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications in this
Section 6.5.


 


6.6                               Severability


 


If
any provision of this Agreement is held by a court of competent jurisdiction to
be invalid or unenforceable in any jurisdiction, such holding shall not affect
the validity or enforceability of the remainder of this Agreement in such jurisdiction
or the validity or enforceability of this Agreement, including such provision,
in any other jurisdiction, and such provision shall be revised or modified to
the minimum degree necessary to render it valid and enforceable.


 


6.7                               Remedies


 


The
Company and the Investor agree that money damages or other remedy at law would
not be a sufficient or adequate remedy for any breach or violation of, or a
default under, this Agreement (other than under Section 4) by them
and that, in addition to all other remedies available to them, each of them
shall be entitled to an injunction restraining such breach, violation or
default or threatened breach, violation or default and to any other equitable
relief, including without limitation specific performance, without bond or
other security being required.


 


6.8                               Entire Agreement


 


This
Agreement constitutes the entire agreement and understanding of the parties
hereto with respect to the matters referred to herein and supersede all prior
agreements, understandings or representations, written or oral, and all
contemporaneous oral agreements, understandings or representations, in each
case among the parties with respect to such matters.


 


6.9                               Amendment and Waiver


 


No
amendment, alteration or modification of this Agreement or waiver of any
provision of this Agreement shall be effective against the Company, the
Investor or any Holder unless such amendment, alteration, modification or
waiver is approved in writing by the Company and the Investor.  The failure of any party to enforce any
provision of this Agreement shall not be construed as a waiver of such
provision and shall not affect the right of such party thereafter to enforce
each provision of this Agreement in accordance with its terms.  The Company shall give notice of any
amendment or termination hereof in accordance with this Section 6.9 to the
Holders, other than the Investor, of which it is aware, provided, that such
amendment or termination shall be binding on such Holders whether or not such
notice is provided or received.


 


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6.10                        Successors and Assigns


 


This
Agreement shall be binding upon and inure to the benefit of the successors and
permitted assigns of the parties hereto. 
Neither party shall assign any or all of its rights or obligations under
this Agreement without the consent of the other party; provided that the
Investor may assign its rights and obligations to any of its Affiliates without
the consent of the Company; provided further, that registration rights set
forth in Section 4 may be assigned (together with all related
obligations), without the consent of the Company, to any permitted direct or
indirect transferee of the Investor who after such Transfer shall own total
voting power of Voting Stock representing at least ten percent (10%) of the
total voting power of Voting Stock, some or all of which shall be Registrable
Securities, and who agrees in writing (in a form reasonably satisfactory to the
Company) to be subject to and bound by all the terms and conditions of Section 4
and this Section 6.  The rights or
benefits of successors and permitted assigns of Investor under this Agreement
are subject to Investor, together with its Affiliates, owning total voting
power of Voting Stock representing at least ten percent (10%) of the total
voting power of Voting Stock.


 


6.11                        No Third-Party Beneficiaries


 


Except
as set forth in Section 6.10, nothing in this Agreement is intended to or
shall confer any rights or benefits upon any person other than the parties
hereto.


 


6.12        Counterparts


 


This
Agreement may be executed in any number of counterparts (including by facsimile
or other electronic transmission), each of which shall be an original and all
of which taken together shall constitute one and the same agreement.


 


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In
Witness Whereof, the parties have executed this Agreement as of the
date first above written.


 


	
  Global
  Aviation Holdings, Inc.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MatlinPatterson ATA Holdings
  LLC

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


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