EXHIBIT 10.76
INVESTOR REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as
of
November 10, 2006, by and among U.S. HELICOPTER CORPORATION, a
Delaware
corporation (the "COMPANY"), and the undersigned investors listed
on Schedule I
attached hereto (each, an "INVESTOR" and collectively, the
"INVESTORS").
WHEREAS:
A. In connection with the Securities Purchase Agreement by and
among
the parties hereto of even date herewith (the "SECURITIES PURCHASE
AGREEMENT"),
the Company has agreed, upon the terms and subject to the
conditions of the
Securities Purchase Agreement, to issue and sell to the Investors
secured
convertible debentures (the "CONVERTIBLE DEBENTURES") which shall
be convertible
into that number of shares of the Company's common stock, par value
$0.001 per
share (the "COMMON STOCK"), pursuant to the terms of the Securities
Purchase
Agreement for an aggregate purchase price of up to Two Million
Seven Hundred
Fifty Thousand Dollars ($2,750,000). Capitalized terms not defined
herein shall
have the meaning ascribed to them in the Securities Purchase
Agreement.
B. To induce the Investors to execute and deliver the
Securities
Purchase Agreement, the Company has agreed to provide certain
registration
rights under the Securities Act of 1933, as amended, and the rules
and
regulations thereunder, or any similar successor statute
(collectively, the
"SECURITIES ACT"), and applicable state securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable
consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Company and the
Investors hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following
meanings:
(a) "PERSON" means a corporation, a limited liability company,
an association, a partnership, an organization, a business, an
individual, a
governmental or political subdivision thereof or a governmental
agency.
(b) "REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing one or more
Registration
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Statements (as defined below) in compliance with the Securities Act
and pursuant
to Rule 415 under the Securities Act or any successor rule
providing for
offering securities on a continuous or delayed basis ("RULE 415"),
and the
declaration or ordering of effectiveness of such Registration
Statement(s) by
the United States Securities and Exchange Commission (the
"SEC").
(c) "REGISTRABLE SECURITIES" means the shares of Common Stock
issuable to the Investors upon conversion of the Convertible
Debentures pursuant
to the Securities Purchase Agreement and the Warrant Shares, as
this term is
defined in the Securities Purchase Agreement.
(d) "REGISTRATION STATEMENT" means a registration statement
under the Securities Act which covers the Registrable
Securities.
2. REGISTRATION.
(a) Subject to the terms and conditions of this Agreement, if
the Company shall receive a written request from the holders of a
majority of
the Registrable Securities then outstanding that the Company file a
registration
statement on Form S-1 or SB-2 (or, if the Company is then eligible,
on Form S-3)
under the Securities Act (the "REGISTRATION STATEMENT") for the
resale by the
Investors of the Registrable Securities, which includes at least
6,875,000
shares of Common Stock to be issued upon conversion of the
Convertible Debenture
and 2,000,000 Warrants Shares, then the Company shall, within
forty-five (45)
days (the "SCHEDULED FILING Deadline") of the receipt thereof, give
written
notice of such request to all holders of the Registrable
Securities. The Company
shall cause the Registration Statement to remain effective until
all of the
Registrable Securities have been sold. Prior to the filing of the
Registration
Statement with the SEC, the Company shall furnish a copy of the
Registration
Statement to the Investors for their review and comment. The
Investors shall
furnish comments on the Registration Statement to the Company
within twenty-four
(24) hours of the receipt thereof from the Company.
(b) EFFECTIVENESS OF THE REGISTRATION STATEMENT. The Company
shall use its best efforts (i) to have the Registration Statement
declared
effective by the SEC no later than one hundred twenty (120) days
from the date
filed (the "SCHEDULED EFFECTIVE DEADLINE") and (ii) to insure that
the
Registration Statement and any subsequent Registration Statement
remains in
effect until all of the Registrable Securities have been sold,
subject to the
terms and conditions of this Agreement, but not later than the
point in time
that Section 144(k) becomes available for resale of the
Registerable Securities.
(c) FAILURE TO FILE OR OBTAIN EFFECTIVENESS OF THE
REGISTRATION STATEMENT. In the event the Registration Statement is
not filed by
the Scheduled Filing Deadline or is not declared effective by the
SEC on or
before the Scheduled Effective Date, or if after the Registration
Statement has
been declared effective by the SEC, sales cannot be made pursuant
to the
Registration Statement (whether because of a failure to keep the
Registration
Statement effective, failure to disclose such information as is
necessary for
sales to be made pursuant to the Registration Statement, failure to
register
sufficient shares of Common Stock or otherwise) then as the agreed
upon relief
for the damages to any holder of Registrable Securities by reason
of any such
delay in or reduction of its ability to sell the underlying shares
of Common
Stock (which remedy shall be exclusive of any other remedies at law
or in equity
during the Initial Extension Period as defined herein, but not
exclusive
thereafter), the Company will pay as an extension fee and not as a
penalty, to
the holder, at the holder's option, either a cash amount or shares
of the
Company's Common Stock within three (3) business days, after demand
therefore,
equal to two percent (2%) of the principal balance of the
Convertible Debentures
as an extension fee (the "EXTENSION FEE") for (i) the initial sixty
(60) day
period after the Scheduled Filing Deadline or the Scheduled
Effective Deadline
as the case may be (the "INITIAL EXTENSION PERIOD") and for (ii)
each thirty
(30) day period after the Initial Extension Period. During the
Initial Extension
Period the Company shall not be deemed to be in breach or default
of this
Agreement provided the Company has made timely payment of the
Extension Fee.
Should the Company fail to make timely payment of any Extension
Fee(s) payable
or the Company shall be in default of this Agreement the Investor
shall not be
limited, prohibited or precluded from seeking any other remedy
available to it
under contract, at law or in equity.
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(d) EXTENSION FEE. The Company and the Investor hereto
acknowledge and agree that the sums payable under subsection 2(c)
above shall
constitute extension fees and not penalties. The parties agree with
regard to
each Extension Fee that (i) the amount of loss or damages likely to
be incurred
by Investor in connection with any failure by the Company to obtain
or maintain
the effectiveness of the Registration Statement is incapable or is
difficult to
precisely estimate, (ii) the amounts specified in such subsections
bear a
reasonable relationship to, and are not plainly or grossly
disproportionate to,
the probable loss likely to be incurred in connection with any
failure by the
Company to obtain or maintain the effectiveness of a Registration
Statement,
(iii) one of the reasons for the Company and the Investor reaching
an agreement
as to such amounts was the uncertainty and cost of litigation
regarding the
question of actual damages, and (iv) the Company and the Investor
are
sophisticated business parties and have been represented by
sophisticated and
able legal counsel and negotiated this Agreement at arm's
length.
Notwithstanding anything herein to the contrary, in no event shall
the Company
be obligated to pay more than $440,000 as an Extension Fee.
3. RELATED OBLIGATIONS.
(a) The Company shall keep the Registration Statement
effective pursuant to Rule 415 at all times through the earlier of
(i) the
Registrable Securities have been sold, or (ii) the date the
Registrable
Securities become eligible for sale without restriction under Rule
144(k)
promulgated under the Securities Act of 1933 (the "REGISTRATION
PERIOD"), which
Registration Statement (including any amendments or supplements
thereto and
prospectuses contained therein) shall not contain any untrue
statement of a
material fact or omit to state a material fact required to be
stated therein, or
necessary to make the statements therein, in light of the
circumstances in which
they were made, not misleading.
(b) The Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to
a
Registration Statement and the prospectus used in connection with
such
Registration Statement, which prospectus is to be filed pursuant to
Rule 424
promulgated under the Securities Act, as may be necessary to keep
such
Registration Statement effective at all times during the
Registration Period,
and, during such period, comply with the provisions of the
Securities Act with
respect to the disposition of all Registrable Securities of the
Company covered
by such Registration Statement until such time as all of such
Registrable
Securities shall have been disposed of in accordance with the
intended methods
of disposition by the seller or sellers thereof as set forth in
such
Registration Statement. In the case of amendments and supplements
to a
Registration Statement which are required to be filed pursuant to
this Agreement
(including pursuant to this Section 3(b)) by reason of the
Company's filing a
report on Form 10-KSB, Form 10-QSB or Form 8-K or any analogous
report under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"),
the Company
shall incorporate such report by reference into the Registration
Statement, if
applicable, or shall file such amendments or supplements with the
SEC on the
same day on which the Exchange Act report is filed which created
the requirement
for the Company to amend or supplement the Registration
Statement.
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(c) The Company shall furnish to each Investor whose
Registrable Securities are included in any Registration Statement,
without
charge, (i) at least one (1) copy of such Registration Statement as
declared
effective by the SEC and any amendment(s) thereto, including
financial
statements and schedules, all documents incorporated therein by
reference, all
exhibits and each preliminary prospectus, (ii) ten (10) copies of
the final
prospectus included in such Registration Statement and all
amendments and
supplements thereto (or such other number of copies as such
Investor may
reasonably request) and (iii) such other documents as such Investor
may
reasonably request from time to time in order to facilitate the
disposition of
the Registrable Securities owned by such Investor.
(d) The Company shall use its best efforts to (i) register and
qualify the Registrable Securities covered by a Registration
Statement under
such other securities or "blue sky" laws of such jurisdictions in
the United
States in which the manual exemption is available plus up to ten
(10) additional
states as designated by the Investor, (ii) prepare and file in
those
jurisdictions, such amendments (including post-effective
amendments) and
supplements to such registrations and qualifications as may be
necessary to
maintain the effectiveness thereof during the Registration Period,
(iii) take
such other actions as may be necessary to maintain such
registrations and
qualifications in effect at all times during the Registration
Period, and (iv)
take all other actions reasonably necessary or advisable to qualify
the
Registrable Securities for sale in such jurisdictions; provided,
however, that
the Company shall not be required in connection therewith or as a
condition
thereto to (w) make any change to its certificate of incorporation
or by-laws,
(x) qualify to do business in any jurisdiction where it would not
otherwise be
required to qualify but for this Section 3(d), (y) subject itself
to general
taxation in any such jurisdiction, or (z) file a general consent to
service of
process in any such jurisdiction. The Company shall promptly notify
each
Investor who holds Registrable Securities of the receipt by the
Company of any
notification with respect to the suspension of the registration or
qualification
of any of the Registrable Securities for sale under the securities
or "blue sky"
laws of any jurisdiction in the United States or its receipt of
actual notice of
the initiation or threat of any proceeding for such purpose.
(e) As promptly as practicable after becoming aware of such
event or development, the Company shall notify each Investor in
writing of the
happening of any event as a result of which the prospectus included
in a
Registration Statement, as then in effect, includes an untrue
statement of a
material fact or omission to state a material fact required to be
stated therein
or necessary to make the statements therein, in light of the
circumstances under
which they were made, not misleading (provided that in no event
shall such
notice contain any material, nonpublic information), and promptly
prepare a
supplement or amendment to such Registration Statement to correct
such untrue
statement or omission, and deliver ten (10) copies of such
supplement or
amendment to each Investor. The Company shall also promptly notify
each Investor
in writing (i) when a prospectus or any prospectus supplement or
post-effective
amendment has been filed, and when a Registration Statement or
any
post-effective amendment has become effective (notification of
such
effectiveness shall be delivered to each Investor by facsimile on
the same day
of such effectiveness), (ii) of any request by the SEC for
amendments or
supplements to a Registration Statement or related prospectus or
related
information, and (iii) of the Company's reasonable determination
that a
post-effective amendment to a Registration Statement would be
appropriate.
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(f) The Company shall use its best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of
a
Registration Statement, or the suspension of the qualification of
any of the
Registrable Securities for sale in any jurisdiction within the
United States of
America and, if such an order or suspension is issued, to obtain
the withdrawal
of such order or suspension at the earliest possible moment and to
notify each
Investor who holds Registrable Securities being sold of the
issuance of such
order and the resolution thereof or its receipt of actual notice of
the
initiation or threat of any proceeding for such purpose.
(g) At the reasonable request of any Investor, the Company
shall furnish to such Investor, on the date of the effectiveness of
the
Registration Statement and thereafter from time to time on such
dates as an
Investor may reasonably request (i) a letter, dated such date, from
the
Company's independent certified public accountants in form and
substance as is
customarily given by independent certified public accountants to
underwriters in
an underwritten public offering, and (ii) an opinion, dated as of
such date, of
counsel representing the Company for purposes of such Registration
Statement, in
form, scope and substance as is customarily given in an
underwritten public
offering, addressed to the Investors.
(h) Upon five (5) days prior written notice by the Investor,
which notice shall not be given more than one (1) time per calendar
quarter, the
Company shall make available for inspection by (i) any Investor and
(ii) one (1)
firm of accountants or other agents retained by the Investors at
the Investors'
expense (collectively, the "INSPECTORS") all pertinent financial
and other
records, and pertinent corporate documents and properties of the
Company
(collectively, the "RECORDS"), as shall be reasonably deemed
necessary by each
Inspector to verify the contents of the Registration Statement and
any
amendments or supplements thereto, and cause the Company's
officers, directors
and employees to supply all information which any Inspector may
reasonably
request; provided, however, that each Inspector shall agree, and
each Investor
hereby agrees, to hold in strict confidence and shall not make any
disclosure
(except to an Investor) or use any Record or other information
which the Company
determines in good faith to be confidential, and of which
determination the
Inspectors are so notified, unless (a) the disclosure of such
Records is
necessary to avoid or correct a misstatement or omission in any
Registration
Statement or is otherwise required under the Securities Act, (b)
the release of
such Records is ordered pursuant to a final, non-appealable
subpoena or order
from a court or government body of competent jurisdiction, or (c)
the
information in such Records has been made generally available to
the public
other than by disclosure in violation of this or any other
agreement of which
the Inspector and the Investor has knowledge. Each Investor agrees
that it
shall, upon learning that disclosure of such Records is sought in
or by a court
or governmental body of competent jurisdiction or through other
means, give
prompt notice to the Company and allow the Company, at its expense,
to undertake
appropriate action to prevent disclosure of, or to obtain a
protective order
for, the Records deemed confidential.
(i) The Company shall hold in confidence and not make any
disclosure of information concerning an Investor provided to the
Company unless
(i) disclosure of such information is necessary to comply with
federal or state
securities laws, (ii) the disclosure of such information is
necessary to avoid
or correct a misstatement or omission in any Registration
Statement, (iii) the
release of such information is ordered pursuant to a subpoena or
other final,
non-appealable order from a court or governmental body of
competent
jurisdiction, or (iv) such information has been made generally
available to the
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public other than by disclosure in violation of this Agreement or
any other
agreement. The Company agrees that it shall, upon learning that
disclosure of
such information concerning an Investor is sought in or by a court
or
governmental body of competent jurisdiction or through other means,
give prompt
written notice to such Investor and allow such Investor, at the
Investor's
expense, to undertake appropriat
