8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): May 8, 2004

Kitty Hawk, Inc.

(Exact name of registrant as specified in its charter)

Delaware (State or other jurisdiction of incorporation)	0-25202 (Commission File Number)	75-2564006 (I.R.S. Employer Identification No.)
1515 West 20th Street P.O. Box 612787 DFW International Airport, Texas (Address of principal executive offices)		75261 (Zip Code)

Registrant’s telephone number, including area code: (972) 456-2200

Not Applicable
(Former name or former address, if changed since last report)

TABLE OF CONTENTS

	Item 5. Other Events
	Item 7. Financial Statements and Exhibits.
SIGNATURES
Registration Rights Agreement
Form of Voting Agreement

Item 5. Other Events

     As of May 8, 2004, Resurgence Asset Management, L.L.C., Everest Capital Limited and Stockton, LLC (collectively, the “Stockholders”) and Kitty Hawk, Inc. (“Kitty Hawk”) entered into a new Registration Rights Agreement that replaced the previous registration rights agreement among the Stockholders and Kitty Hawk. As of May 8, 2004, the Stockholders collectively owned 11,544,411 shares of common stock (or approximately 26.39% of the outstanding shares of common stock) and warrants to acquire 4,481,729 shares of common stock.

     Under the Registration Rights Agreement, Kitty Hawk granted the Stockholders one collective demand registration right. The demand registration right requires Kitty Hawk to file a shelf registration statement (the “Registration Statement”), pursuant to Rule 415 promulgated under the Securities Act of 1933, as amended (the “Act”), with the Securities and Exchange Commission (the “SEC”). The Registration Rights Agreement requires Kitty Hawk to use its commercially reasonable efforts to file the Registration Statement after a demand and to cause the SEC to declare the Registration Statement effective as soon as practicable thereafter. Kitty Hawk is also required to use its commercially reasonable efforts to cause the Registration Statement to remain effective until the earlier of (i) two years from the effective date of the Registration Statement (subject to extension for periods of time during which the Registration Statement is not available for resales), (ii) all securities offered under the Registration Statement are sold or (iii) all of the securities offered under the Registration Statement may be sold under Rule 144(k) under the Act. Kitty Hawk has generally agreed to pay all of the fees and expenses related to the Registration Statement, including the reasonable fees and expenses of one counsel for the Stockholders. In certain cases, Kitty Hawk may also add additional stockholders to the Registration Rights Agreement prior to the filing of the Registration Statement.

     Kitty Hawk also granted the Stockholders piggyback registration rights, which allow the Stockholders to participate in an offering conducted by Kitty Hawk, whether for Kitty Hawk’s own account or for the account of another stockholder (except for the registration of securities to be offered pursuant to an employee benefit plan on Form S-8, pursuant to a registration made on Form S-4 or any successor forms then in effect).

     The Registration Rights Agreement terminates on the earlier of (i) the termination of the effectiveness of the Registration Statement, (ii) the date on which all shares of common stock covered by the Registration Rights Agreement have been sold and (iii) the date on which all shares of common stock covered by the Registration Rights Agreement may be sold under Rule144(k) under the Act.

     At the same time, each of the Stockholders entered into a separate Voting Agreement with Kitty Hawk whereby each individually agreed to vote in favor of certain proposals that may be presented by Kitty Hawk’s board of directors (the “Board”) to Kitty Hawk’s stockholders for their approval. Among the proposals the Stockholders have agreed to vote in favor of are amendments to Kitty Hawk’s Second Amended and Restated Certificate of Incorporation, as amended (the “Certificate”), that would (i) classify the Board into three classes of directors, with each director serving a three-year term, and with one class being elected each year; (ii) permit directors to be removed from the Board only for cause; (iii) require the vote of two-thirds of the

stockholders to approve any stockholder proposal to amend certain provisions of Kitty Hawk’s Certificate or bylaws; (iv) permit stockholders to act only at special and annual meetings and not by written consent; (v) increase the number of authorized shares of common stock up to 100,000,000 shares and the number of authorized shares of preferred stock up to 10,000,000 shares; and (vi) cause section 203 of the Delaware General Corporation Law to apply to Kitty Hawk. In addition, each Stockholder has individually agreed to vote in favor of increasing the number of shares of common stock issuable under the Kitty Hawk 2003 Long Term Equity Incentive Plan by up to 500,000 shares effective June 30, 2005. Kitty Hawk’s Board has not decided which, if any, of these proposals will be submitted to Kitty Hawk’s stockholders for approval.

     The foregoing descriptions of the Registration Rights Agreement and each of the Voting Agreements are qualified in their entirety by reference to those agreements, copies of which are attached hereto as Exhibits 4.1 and 4.2, and each is incorporated herein by reference.

     This report contains forward-looking statements relating to future business expectations. Business plans may change as circumstances warrant. Actual results may differ materially as a result of factors over which the company has no control. Such factors include, but are not limited to: worldwide business and economic conditions; changes in our business strategy or development plans; product demand and the rate of growth in the air cargo industry; the financial costs and operating limitations imposed by the unionization of our workforce; successful negotiations of the limited changes allowed in the new collective bargaining agreement with its pilot group; the impact of competitors and competitive aircraft; the cost and availability of aircraft or replacement parts; the ability to attract and retain new and existing customers; the cost and availability of jet fuel; increased foreign political instability and acts of war or terrorism; normalized aircraft operating costs and reliability; and changes in government regulation and policies. Kitty Hawk undertakes no obligation to update or revise any forward-looking statements contained in this release for events or circumstances after the date on which such forward-looking statements are made. New factors emerge from time to time, and it is not possible for Kitty Hawk to predict all such factors.

Item 7. Financial Statements and Exhibits.

     (c) Exhibits.

Exhibit No.	Description
4.1	Registration Rights Agreement, dated as of May 8, 2004, by and among Kitty Hawk, Inc., Resurgence Asset Management, L.L.C., Everest Capital Limited and Stockton, LLC.
4.2	Form of Voting Agreement entered into by and between Kitty Hawk and each of the Stockholders individually.

*****

SIGNATURES

     Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

	KITTY HAWK, INC.
Date: May 8, 2004
	By:	/s/ Steven E. Markhoff
	Name:	Steven E. Markhoff
	Title:	Vice President Strategic Planning,
		General Counsel and Corporate Secretary

EX-4.1

EXHIBIT 4.1

REGISTRATION RIGHTS AGREEMENT

     This REGISTRATION RIGHTS AGREEMENT, dated as of May 8, 2004 (the “Agreement”), is by and among Kitty Hawk, Inc., a Delaware corporation (the “Company”), and the persons listed on the signature page hereto (the “Holders”).

WITNESSETH:

     WHEREAS, the Holders currently own shares of common stock, par value $0.000001 per share, of the Company (the “Common Stock”) or warrants convertible into shares of Common Stock, or both; and

     WHEREAS, the Holders have agreed to enter into separate Voting Agreements, each dated as of the date hereof, relating to each Holder’s agreement to vote its shares of Common Stock with regard to certain matters (the “Voting Agreement”), whether now owned or acquired during the term of the Voting Agreement; and

     WHEREAS, in consideration for each Holder’s agreement to enter into a Voting Agreement, the Company has agreed to grant certain registration rights to the Holders; and

     WHEREAS, the Company desires to enter into this Agreement to set forth the terms and conditions of the registration rights granted to the Holders;

     NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants, conditions and agreements hereinafter set forth and set forth in the Voting Agreement, and for other good and valid consideration, the parties agree as follows:

SECTION 1. DEFINITIONS

     Each reference herein to an agreement, document or instrument shall mean that agreement, document or instrument as from time to time amended, modified or supplemented in accordance with its terms, including in each case all exhibits, annexes and schedules to such agreement, document or instrument, all of which are incorporated by reference to such agreement, document or instrument.

     As used in this Agreement, the following capitalized terms shall have the meanings ascribed to them below:

     “Affiliates” means, with respect to a specified Person, a Person that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person.

     “Business Day” means any day other than a Saturday, a Sunday or a day on which banking institutions located in the State of New York are authorized or obligated by law or executive order to close.

     “Company Indemnitee” has the meaning set forth in Section 6(B).

     “Demand Registration” has the meaning set forth in Section 2(A).

     “Effective Date” means the date hereof.

     “Exchange Act” means the Securities Exchange Act of 1934, as amended.

     “Holder” means each of Resurgence Asset Management, L.L.C. (“Resurgence”), Everest Capital Limited (“Everest”), and Stockton, LLC (“Stockton”) and any of their respective successors and assigns and any other Holder executing this Agreement pursuant to the provisions of Section 11(A).

     “Holder Indemnitor” has the meaning set forth in Section 6(B).

     “Person” means any natural person, corporation, partnership, limited liability company, association, joint stock company, business trust or other legal entity.

     “Piggyback Registration” has the meaning set forth in Section 3(A).

     “Prospectus” means the prospectus included in any Registration Statement, as amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement or any other amendments and supplements to such prospectus, including without limitation any preliminary prospectus, any pre-effective or post-effective amendment and all material incorporated by reference in any prospectus.

     “Registrable Securities” means (x) shares of Common Stock currently owned by the Holders, (y) shares of Common Stock acquired by a Holder in exchange for a warrant currently owned by such Holder and (z) any securities issued or issuable to the Holders in respect of or in exchange for any of such shares of Common Stock referred to in clauses (x) and (y) by way of a stock dividend or other distribution, stock split, reverse stock split or other combination of shares, recapitalization, reclassification, merger, consolidation or exchange offer. As to any particular Registrable Securities, once issued such securities shall cease to be Registrable Securities when (i) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with such Registration Statement, (ii) such securities shall have been sold to the public pursuant to Rule 144 (or any successor provision) under the Securities Act, (iii) such securities shall have been otherwise transferred or exchanged and new certificates for such securities not bearing a legend restricting further transfer shall have been delivered by the Company or (iv) such securities shall have ceased to be outstanding.

     “Registration Expenses” has the meaning set forth in Section 5.

     “Registration Statement” means any registration statement of the Company which covers Registrable Securities pursuant to the provisions of this Agreement, all amendments and supplements to such registration statement, including post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement.

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     “Rule 144” shall mean Rule 144 promulgated under the Securities Act or any similar rule as may be in effect from time to time.

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

     “Section 3 Notice” has the meaning set forth in Section 3(A).

     “Securities Act” means the Securities Act of 1933, as amended.

SECTION 2. DEMAND REGISTRATION

     A. Request for Registration. Subject to the provisions of this Section 2, any Holder at any time during the term of this Agreement may make a written request for registration under the Securities Act, and pursuant to Rule 415 under the Securities Act or any successor rule providing for the offering of securities on a continuous or delayed basis, with respect to all or any part of such Holder’s Registrable Securities (a “Demand Registration”), which request shall specify the amount of Registrable Securities to be registered and the intended method or methods of disposition thereof; provided, however, the Company shall not be required to effect a Demand Registration unless the sale of the Registrable Securities proposed to be sold by the Holders will result in aggregate gross proceeds of at least $2.0 million. Promptly after receipt of such request, the Company shall send written notice of such request to all Holders from whom written notice has not been received and shall, subject to the provisions of this Section 2, include in such Demand Registration all Registrable Securities with respect to which the Company receives written requests (each request specifying the amount of Registrable Securities to be registered and the intended method or methods of disposition thereof) for inclusion therein within 30 days after the date on which the Company’s notice is sent. No later than 60 days after the end of such 30 day period, but subject to Section 2(C), the Company shall use its commercially reasonable efforts to file with the SEC a Registration Statement, registering all Registrable Securities requested to be included in such Demand Registration for disposition in accordance with the intended method or methods set forth in the written requests of the Holders. The Company shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective as soon as practicable after filing and to remain effective until the earlier of (i) two years following the date on which it was declared effective (subject to extension in the sole discretion of the Company), excluding all periods of time during which use of the Registration Statement has been suspended or the Holders have been restricted from selling Registrable Securities pursuant to the terms hereof, (ii) the date on which all of the Registrable Securities covered thereby are disposed of in accordance with the method or methods of disposition stated therein and (iii) the date on which all of the Registrable Securities covered thereby may be disposed of by the Holders thereof under Rule 144(k). Subject to Section 2(D), the Company may include in any Demand Registration additional shares of capital stock to be sold for the Company’s account pursuant to such Demand Registration.

     B. Number of Registrations. The Company shall not be required to effect more than one (1) Demand Registration pursuant to this Agreement.

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     C. Suspension of Registration. The Company shall have the right to (i) delay the filing or effectiveness of the Registration Statement for any Demand Registration, (ii) to require the Holders not to sell any Registrable Securities under any Registration Statement or (iii) to delay the preparation and filing of any supplement or post-effective amendment to the applicable Registration Statement or Prospectus or any document incorporated therein by reference, in each case during one or more periods aggregating not more than 60 days in each 12 month period if, in each such instance, (x) the Company would, in accordance with the advice of its counsel, be required to make public disclosure of information in the Prospectus or Registration Statement the public disclosure of which would materially and adversely affect any existing or prospective material business situation, transaction or negotiation involving the Company or otherwise materially and adversely affect the Company or (y) in the good faith judgment of the Company’s Board of Directors, there is a reasonable likelihood that effecting such Registration Statement at such time would adversely affect any existing or prospective material business situation, transaction or negotiation involving the Company or otherwise materially and adversely affect the Company; provided, however, that each Holder has received a certificate of the Company executed by its chief executive officer or the Chairman of the Board of Directors confirming (x) or (y) above.

     D. Priority. If the managing underwriter for a Demand Registration that involves an underwritten offering shall advise the Company that, in its opinion, the inclusion of the amount of securities to be sold for the Company’s account would (x) create a substantial risk that the proceeds or price per share that will be derived from such Demand Registration will be materially reduced or that the number of securities to be registered on such Demand Registration is too large to be reasonably sold or (y) materially and adversely effect such Demand Registration in any other respect, then the amount of securities to be sold for the Company’s account shall be reduced (and may be reduced to zero) in accordance with the managing underwriter’s recommendation. In the event of such reduction, the number of Registrable Securities included in such Demand Registration shall be determined by giving (i) first priority to the Registrable Securities owned by the Holders, allocated if necessary pro rata among all such Holders, and (ii) second priority to the securities sought to be included by the Company. In addition, any Holder may elect to withdraw its Registrable Securities from such Demand Registration upon prompt written notice to the Company of such withdrawal; provided, however, that such withdrawal election shall be irrevocable and, after making a withdrawal election, a Holder shall no longer have any right to include Registrable Securities in the Demand Registration. If any such withdrawal election is made, the number of Registrable Securities included in the Demand Registration shall be increased by the lesser of the amount of Registrable Securities withdrawn and the aggregate amount of Registrable Securities cut back pursuant to this Section 2(D), and in accordance with the priority provided by this Section 2(D).

     E. Interrupted Registration. No Demand Registration requested pursuant to this Section 2 shall be deemed to have been requested by any Holder of Registrable Securities for purposes of Section 2(B): (i) unless a Registration Statement with respect thereto has been declared effective by the SEC; provided, however, that if a Demand Registration is not effected after the Company has filed a Registration Statement with respect thereto solely by reason of the refusal of the requesting Holders to proceed therewith, a Demand Registration shall be deemed to have been effected by the Company at the request of such withdrawing Holders unless the withdrawing Holders shall have paid all reasonable Registration Expenses of the Company in

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connection with such Demand Registration, (ii) if after a Registration Statement has become effective, such Demand Registration is interfered with by any stop order, injunction or other order or requirement of the SEC for any reason other than a misrepresentation or an omission by the requesting Holders, (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such Demand Registration are not satisfied or waived by the managing underwriter, other than by reason of some wrongful act or omission, or act or omission in bad faith, by the requesting Holders or (iv) if such request has been withdrawn by the requesting Holders prior to the filing of the Registration Statement with the SEC and such Holders shall have paid all reasonable Registration Expenses of the Company in connection with such Demand Registration.

SECTION 3. PIGGYBACK REGISTRATIONS

     A. Right to Include Registrable Securities. If at any time after the Effective Date the Company proposes to register any of its equity securities under the Securities Act, whether or not for sale for its own account (other than a registration on Form S-4 or Form S-8, or any successor or similar forms), in a manner that would permit registration of Registrable Securities for sale to the public under the Securities Act (a “Piggyback Registration”), it will each such time promptly give prior written notice to all Holders: (i) of its intention to do so, (ii) of the registration form of the SEC that has been selected by the Company and (iii) of rights of Holders under this Section 3 (the “Section 3 Notice”). The Company will include in a Piggyback Registration all Registrable Securities with respect to which the Company has received a written request from the Holders for inclusion therein within 30 days after the Section 3 Notice is given by the Company; provided, however, that (i) if, at any time after giving a Section 3 Notice and prior to the effective date of the Registration Statement filed in connection with such Piggyback Registration, the Company shall determine for any reason that none of such equity securities shall be registered, the Company may, at its election, give written notice of such determination to all Holders who so requested to be included in such Piggyback Registration and, thereupon, shall be relieved of its obligation to register any Registrable Securities in connection with such abandoned Piggyback Registration and (ii) in case of a determination by the Company to delay registration of its equity securities, the Company shall be permitted to delay a Piggyback Registration for the same period as the delay in registering such other equity securities by the Company. No Piggyback Registration shall be deemed a Demand Registration for purposes of Section 2(B). Notwithstanding anything to the contrary in Section 2, provided that the securities offered by the Company are successfully registered within 90 days from the date a Section 3 Notice is given by the Company, no Holder shall have the right to require the Company to effect a Demand Registration of any Registrable Securities pursuant to Section 2 until the earlier of (A) the completion of the distribution of the securities offered and registered pursuant to a Section 3 Notice and (B) 90 days after the date each Registration Statement effected under this Section 3 is declared effective.

     B. Priority; Registration Form.

          (1) If the managing underwriter for a Piggyback Registration in which Registrable Securities are proposed to be included pursuant to this Section 3 that involves an underwritten offering shall advise the Company that, in its opinion, the inclusion of the amount of Registrable Securities to be sold for the account of Holders would (x) create a substantial risk that

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the proceeds or price per share that will be derived from such Piggyback Registration will be materially reduced or that the number of securities to be registered on such Piggyback Registration is too large to be reasonably sold or (y) materially and adversely affect such Piggyback Registration in any other respect, then the number of Registrable Securities to be sold for the account of such Holders shall be reduced (and may be reduced to zero) in accordance with the managing underwriter’s recommendation. In the event that the number of Registrable Securities to be included in any Piggyback Registration is reduced (but not to zero), the number of such Registrable Securities included in such Piggyback Registration shall be allocated pro rata among all requesting Holders and all other holders of Common Stock having the right to include their shares of Common Stock in such registration, on the basis of the relative number of shares of such Common Stock each such Holder or other holder has requested to be included in such Piggyback Registration. If, as a result of the proration provisions of this Section 3(B), any Holder shall not be entitled to include all Registrable Securities in a Piggyback Registration pursuant to this Section 3 that such Holder has requested be included, such Holder may elect to withdraw its Registrable Securities from the registration; provided, however, that such withdrawal election shall be irrevocable and, after making a withdrawal election, a Holder shall no longer have any right to include Registrable Securities in the Piggyback Registration as to which such withdrawal election was made. If any such withdrawal election is made, the number of Registrable Securities included in the Piggyback Registration shall be increased by the lesser of the amount of Registrable Securities withdrawn and the aggregate amount of Registrable Securities cut back pursuant to this Section 3(B)(1), and in accordance with the priority provided by this Section 3(B)(1).

          (2) If the Company is using a Form S-3 to effectuate a registration pursuant to this Section 3 or Section 2, but it would not be eligible to use such form for the number of Registrable Securities to be included at the request of other Holders, the Company may elect to not include such Registrable Securities in such registration.

     C. Merger, Consolidation, etc. Notwithstanding anything in this Section 3 to the contrary, Holders shall not have any right to include their Registrable Securities in any distribution or registration of equity securities by the Company, which is a result of a merger, consolidation, acquisition, exchange offer, recapitalization, other reorganization, dividend reinvestment plan, stock option plan or other employee benefit plan, or any similar transaction having the same effect.

SECTION 4. REGISTRATION PROCEDURES

     A. The Company to Use Commercially Reasonable Efforts. In connection with the Company’s registration obligations pursuant to Sections 2 and 3, the Company shall use its commercially reasonable efforts to effect such registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall:

          (1) prepare and file with the SEC a Registration Statement or Registration Statements relating to the applicable registration on any appropriate form under the Securities Act, and to cause such Registration Statements to become effective as soon as reasonably practicable and to remain continuously effective for the time period required by this Agreement

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to the extent permitted under the Securities Act or until the distribution contemplated in the Registration Statement is completed; provided, however, that as soon as reasonably practicable but in no event later than three Business Days before filing such Registration Statement, any related Prospectus or any amendment or supplement thereto, other than any amendment or supplement made solely as a result of incorporation by reference of documents filed with the SEC subsequent to the filing of such Registration Statement, the Company shall furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel selected as provided in Section 5(vi) and the underwriters, if any, copies of all such documents proposed to be filed, which Holders, counsel and underwriters shall be afforded a reasonable opportunity to review such documents and comment thereon;

          (2) prepare and file with the SEC, as promptly as reasonably practicable, such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period set forth in Section 2(A); and cause the Registration Statement and the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed in accordance with the Securities Act and any rules and regulations promulgated thereunder; and otherwise comply with the provisions of the Securities Act as may be necessary to facilitate the disposition of all Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of disposition by the selling Holders thereof set forth in such Registration Statement or such Prospectus or Prospectus supplement;

          (3) notify the selling Holders and the managing underwriters, if any, as promptly as reasonably practicable if at any time (A) any Prospectus, Registration Statement or amendment or supplement thereto is filed (other than any amendment or supplement made solely as a result of incorporation by reference of documents filed with the SEC subsequent to the filing of such Registration Statement), (B) any Registration Statement, or any post-effective amendment thereto, becomes effective, (C) the SEC requests any amendment or supplement to, or any additional information in respect of, any Registration Statement or Prospectus, (D) the SEC issues any stop order suspending the effectiveness of a Registration Statement or initiates any proceedings for that purpose, (E) the Company receives any notice that the qualification of any Registrable Securities for sale in any jurisdiction has been suspended or that any proceeding has been initiated for the purpose of suspending such qualification or (F) any event occurs which requires that any changes be made in such Registration Statement or any related Prospectus so that such Registration Statement or Prospectus will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that in the case of this subclause (F), such notice need only state that an event of such nature has occurred, without describing such event. The Company hereby agrees to promptly reimburse any selling Holders for any reasonable out-of-pocket losses and expenses incurred in connection with any uncompleted sale of any Registrable Securities in the event that the Company fails to timely notify such Holder that the Registration Statement then on file with the SEC is no longer effective;

          (4) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws in any jurisdiction in the United States, at the earliest reasonably practicable moment;

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          (5) if requested by the managing underwriters or the Holders of a majority of the Registrable Securities being sold in connection with an underwritten offering, incorporate into a Prospectus supplement or a post-effective amendment to the Registration Statement any information which the managing underwriters and the Holders of a majority of the Registrable Securities being sold in connection therewith reasonably agree is required to be included therein relating to such sale of Registrable Securities; and file such supplement or post-effective amendment as soon as practicable in accordance with the Securities Act and the rules and regulations promulgated thereunder;

          (6) furnish to each selling Holder and each managing underwriter, if any, one signed copy of the Registration Statement or Registration Statements and any post-effective amendment thereto, including all financial statements and schedules thereto, all documents incorporated therein by reference and all exhibits thereto (including exhibits incorporated by reference) as promptly as practicable after filing such documents with the SEC;

          (7) deliver to each selling Holder and each underwriter, if any, as many copies of the Prospectus or Prospectuses (including each preliminary Prospectus) and any amendment or supplement thereto as such selling Holder or underwriter, if any, may reasonably request; and consent to the use of such Prospectus or any amendment or supplement thereto by each such selling Holder and underwriter, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus, amendment or supplement;

          (8) prior to any public offering of Registrable Securities, (i) use its commercially reasonable efforts to register or qualify, or to cooperate with the selling Holders, the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions in the United States as may be requested by the Holders of a majority of the Registrable Securities included in such Registration Statement; (ii) use its commercially reasonable efforts to keep each such registration or qualification effective during the period set forth in Section 2(A) that the applicable Registration Statement is required to be kept effective; and (iii) do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by such Registration Statement; provided, however, that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not then so subject;

          (9) cooperate with the selling Holders and the underwriters, if any, in the preparation and delivery of certificates representing the Registrable Securities to be sold, such certificates to be in such denominations and registered in such names as such selling Holders or managing underwriters may request at least two Business Days prior to any sale of Registrable Securities represented by such certificates;

          (10) subject to Section 2(C), upon the occurrence of any event described in subclause (F) of clause (3) above, promptly prepare and file a supplement or post-effective amendment to the applicable Registration Statement or Prospectus or any document incorporated therein by reference, and any other required documents, so that such Registration Statement and Prospectus will not thereafter contain an untrue statement of a material fact or omit to state any

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material fact necessary to make the statements therein not misleading; and use its commercially reasonable efforts to cause such supplement or post-effective amendment to become effective as soon as practicable;

          (11) take all other actions in connection therewith as are reasonably necessary or desirable in order to facilitate the disposition of the Registrable Securities included in such Registration Statement and, in the case of an underwritten offering: (A) enter into an underwriting agreement in customary form with the managing underwriter (such agreement to contain standard and customary indemnities, representations, warranties and other agreements of or from the Company); (B) use its commercially reasonable efforts to obtain opinions of counsel to the Company (which, if reasonably acceptable to the underwriters, may be the Company’s inside counsel) addressed to the underwriters, such opinions to be in customary form; and (C) use its commercially reasonable efforts to obtain “comfort” letters from the Company’s independent certified public accountants addressed to the underwriters, such letters to be in customary form;

          (12) make available for inspection by any selling Holder of Registrable Securities, any underwriter participating in any disposition pursuant to such Registration Statement, and any attorney, accountant or other agent retained by any such selling Holder or underwriter all financial and other records, pertinent corporate documents and properties of the Company as shall be necessary to enable them to fulfill their due diligence responsibilities, and cause the Company’s officers, directors, employees, attorneys and independent accountants to supply all information reasonably requested by any such selling Holders, underwriters, attorneys, accountants or agents in connection with such Registration Statement as shall be necessary to enable them to fulfill their due diligence responsibilities; provided, however, that information which the Company determines, in good faith, to be confidential shall not be disclosed by such persons unless (x) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such Registration Statement, or (y) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each selling Holder of Registrable Securities agrees, on its own behalf and on behalf of all its underwriters, accountants, attorneys and agents, that the information obtained by it as a result of such inspections shall be kept confidential by it and not disclosed by or on behalf of it, and shall not be used by it as the basis for any market transactions in the securities of the Company, in each case unless and until such information is made generally available to the public other than by or on behalf of such selling Holder. Each selling Holder of Registrable Securities further agrees, on its own behalf and on behalf of all its underwriters, accountants, attorneys and agents, that it will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential;

          (13) use its commercially reasonable efforts to cause all Registrable Securities registered pursuant hereunder to be listed or quoted on each securities exchange or quotation medium on which similar securities by the Company are then listed, and in the event that the Company does not have any such securities, the Company will use its commercially reasonable efforts to cause all Registrable Securities registered pursuant hereunder to be listed or quoted on a securities exchange or quotation medium;

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          (14) provide a transfer agent and registrar for all Registrable Securities registered pursuant hereunder and a CUSIP number for all such Registrable Securities; and

          (15) take all such other actions not inconsistent with the terms of this Agreement as the Holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities.

     B. Holders’ Obligation to Furnish Information.

          (1) The Company may require each Holder of Registrable Securities as to which any registration is being effected under Section 2 or Section 3 herein to furnish to the Company (i) a standard selling stockholder questionnaire requesting information to determine compliance with all applicable securities laws and (ii) such information regarding (x) the intended method or methods of distribution of such Registrable Securities as the Company may from time to time reasonably request and (y) such other information about the Holder and its Affiliates as is required to be set forth in the Registration Statement or Prospectus.

          (2) No later than 7 business days prior to the date on which a Registration Statement is expected to become effective, each Holder shall furnish to the Company a list of the jurisdictions in which such Holder intends to sell Registrable Securities pursuant to such Registration Statement so that the Company may comply with any applicable securities laws of such jurisdictions. Further, Holder hereby covenants and agrees to cooperate with, and to use its commercially reasonable efforts to help, the Company in complying with each such jurisdictions securities laws.

     C. Suspension of Sales Pending Amendment of Prospectus. Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in subclauses (C)-(F) of subsection A(3) above, such Holder will suspend the disposition of any Registrable Securities covered by such Registration Statement or Prospectus until such Holder’s receipt of the copies of a supplemented or amended Prospectus or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, if so directed by the Company, such Holder will deliver to the Company all copies, other than permanent file copies, then in such Holder’s possession of any Prospectus covering such Registrable Securities.

SECTION 5. REGISTRATION EXPENSES

     All expenses incident to the Company’s performance of or compliance with its obligations under this Agreement, including without limitation all (i) registration and filing fees, (ii) fees and expenses of compliance with securities or blue sky laws, (iii) printing expenses, (iv) fees and disbursements of its counsel and its independent certified public accountants (including the expenses of any special audit or “comfort” letters required by or incident to such performance or compliance), (v) securities acts liability insurance (if the Company elects to obtain such insurance), (vi) reasonable fees and expenses of one counsel for the Holders of Registrable Securities covered by each Registration Statement, with such counsel to be selected by the Company on behalf of the Holders of Registrable Securities, subject to the approval of

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Holders of a majority of the Registrable Securities, which approval shall not be unreasonably withheld (all such expenses being herein referred to in clauses (i) through (vi) as “Registration Expenses”), and (vii) the expenses and fees for listing securities to be registered on each securities exchange on which similar securities by the Company are then listed shall, subject to Section 2(E), be borne by the Company; provided, however, that Registration Expenses shall not include any underwriting discounts, commissions or fees (including legal fees of underwriter’s counsel (if any)) attributable to the sale of the Registrable Securities.

SECTION 6. INDEMNIFICATION

     A. Indemnification by the Company. In the event of any registration of any securities of the Company under the Securities Act pursuant to Section 2 or 3, the Company shall indemnify and hold harmless each selling Holder of any Registrable Securities covered by such Registration Statement, its Affiliates, general and limited partners, members and shareholders and each of its and their directors, officers, managers, employees, attorneys, investment advisors and agents, each other Person who participates as an underwriter, if any, in the offering or sale of such securities and each other Person, if any, who controls such selling Holder or any such underwriter within the meaning of the Securities Act, against any and all losses, claims, damages or liabilities, joint or several, and expenses (including any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld) to which such selling Holder or other indemnified Person may become subject under the Securities Act, the Exchange Act, other applicable federal or state securities laws or any rule or regulation promulgated under either of them, or common law, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such securities were registered under the Securities Act or the omission or alleged omission to state therein 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, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary Prospectus, together with the documents incorporated by reference therein (as amended or supplemented if the Company shall have filed with the SEC any amendment thereof or supplement thereto), if used prior to the effective date of such Registration Statement, or contained in the Prospectus, together with the documents incorporated by reference therein (as amended or supplemented if the Company shall have filed with the SEC any amendment thereof or supplement thereto), or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (iii) any violation by the Company of the Securities Act, the Exchange Act, other applicable federal or state securities laws or any rule or regulation promulgated under either of them, or common law applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration, and the Company will reimburse such selling Holder and each other indemnified Person for any legal or any other expenses reasonably incurred by any of them in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided, however, that the Company shall not be liable to any such selling Holder or other indemnified Person in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in such Registration

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Statement or amendment thereof or supplement thereto or in any such preliminary, final or summary Prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such selling Holder or other indemnified Person, specifically for use in the preparation thereof; and provided, further, that the Company will not be liable to any Person who participates as an underwriter in any underwritten offering or sale of Registrable Securities, or to any Person who is a selling Holder in any offering or sale of Registrable Securities, or any other Person, if any, who controls such underwriter or selling Holder within the meaning of the Securities Act, under the indemnity agreement in this Section 6(A) with respect to any preliminary Prospectus or the final Prospectus (including any amended or supplemented preliminary or final Prospectus), as the case may be, to the extent that any such loss, claim, damage or liability of such underwriter, selling Holder or controlling Person results from the fact that such underwriter, selling Holder or controlling Person sold Registrable Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the final Prospectus as then amended or supplemented, whichever is most recent, if the Company has previously furnished copies thereof to such underwriter, selling Holder or controlling Person and such final Prospectus, as then amended or supplemented, has corrected any such misstatement or omission; and provided, further, that the Company shall not be liable to any Affiliate, general and limited partner, member and shareholder, director, officer, manager, employee, attorney, investment advisor or agent of any selling Holder under the indemnity agreement in this Section 6(A) if the Company is not liable to such selling Holder under this Section 6(A). Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Stockholder or other indemnified Person.

     B. Indemnification by the Sellers. In consideration of the Company’s including any Registrable Securities in any Registration Statement filed in accordance with Section 2 or 3, each prospective selling Holder (each, a “Holder Indemnitor”) of such Registrable Securities and any underwriter shall indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 6(A)) the Company and its directors, officers, employees, managers, attorneys, investment advisors and agents and each person controlling the Company within the meaning of the Securities Act (each, a “Company Indemnitee”) against any and all losses, claims, damages or liabilities, joint or several, and expenses (including any amounts paid in any settlement effected with such Holder Indemnitor’s consent, which consent shall not be unreasonably withheld) to which the Company Indemnitees may become subject under the Securities Act, the Exchange Act, other applicable federal or state securities laws or any rule or regulation promulgated under either of them, or common law, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise solely out of or are based solely upon any statement or alleged statement in or omission or alleged omission from such Registration Statement, any preliminary, final or summary Prospectus contained therein, or any amendment or supplement, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company or its representatives by or on behalf of such selling Holder or underwriter specifically for use in the preparation of such Registration Statement, preliminary, final or summary Prospectus or amendment or supplement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any of its directors, officers or controlling Persons. Notwithstanding the foregoing, no Holder’s indemnification obligation shall exceed the amount of proceeds received by it from the sale of Registrable Securities in the offering to which the losses, claims, damages or liabilities of the indemnified

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parties relate. The Company may require as a condition to its including Registrable Securities in any Registration Statement filed hereunder that the Holder thereof acknowledge its agreement to be bound by the provisions of this Agreement (including Section 6) applicable to it.

     C. Notices of Claims. Promptly after receipt by an indemnified party hereunder of written notice of the commencement of any action or proceeding with respect to which a claim for indemnification may be made pursuant to this Section 6, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the indemnifying party of the commencement of such action; provided, however, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under this Section 6, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein, and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party; provided, further, that if, in the indemnified party’s reasonable judgment, a conflict of interest between the indemnified party and the indemnifying party exists in respect of such claim, then such indemnified party shall have the right to participate in the defense of such claim and to employ one counsel at the indemnifying party’s expense to represent such indemnified party. No indemnified party will consent to entry of any judgment or enter into any settlement without the indemnifying party’s consent to such judgment or settlement, which shall not be unreasonably withheld.

     D. Contribution. If the indemnification provided for in this Section 6 is unavailable or insufficient to hold harmless an indemnified party under this Section 6, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in this Section 6 in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other hand in connection with statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statements or omission. The Company agrees, and the Holders (in consideration of the Company’s including any Registrable Securities in any Registration Statement filed in accordance with Section 2 or 3) shall be deemed to have agreed, that it would not be just and equitable if contributions pursuant to this Section 6(D) were to be determined by pro rata allocation or by any other method or allocation which does not take account of the equitable considerations referred to in the first two sentences of this Section 6(D). The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this Section 6(D) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim (which shall be limited as provided in Section 6(C) if the indemnifying party has assumed the defense of any such action in accordance with the provisions thereof) which is the subject of this Section 6(D). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not

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guilty of such fraudulent misrepresentation. Promptly after receipt by an indemnified party of notice of the commencement of any action against such party in respect of which a claim for contribution may be made against an indemnifying party under this Section 6(D), such indemnified party shall notify the indemnifying party in writing of the commencement thereof if the notice specified in Section 6(C) has not been given with respect to such action; provided, however, that the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise under this Section 6(D), except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. Notwithstanding anything in this Section 6(D) to the contrary, no indemnifying party (other than the Company) shall be required pursuant to this Section 6(D) to contribute any amount in excess of the proceeds received by such indemnifying party from the sale of Registrable Securities in the offering to which the losses, claims, damages or liabilities of the indemnified parties relate.

SECTION 7. RULE 144

     A. At all times following the Effective Date while its securities are traded on a national exchange or electronic quotation system, the Company shall provide and file such financial and other information concerning the Company as may from time to time be required by the SEC, so as to comply with all reporting requirements under the Exchange Act, and shall, upon request, state in writing that it has complied with all such requirements, and further agrees that, for so long as the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall comply in all respects with paragraph (c)(2) of Rule 144.

     B. Following the Effective Date the Company covenants that it will file the reports 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 any holder of Registrable Securities, make publicly available other information), and it will take such further action as any holder of Registrable Securities may reasonably request, all 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 under the Securities Act, as such Rule may be amended from time to time, or (ii) any similar rule or regulation hereafter adopted by the SEC. Upon the request of any holder of Registrable Securities, the Company will deliver to such holder a written statement as to whether it has complied with such requirements.

SECTION 8. UNDERWRITTEN REGISTRATIONS

     A. Selection of Underwriters. If any of the Registrable Securities covered by the Demand Registration are to be sold in an underwritten offering, the underwriter or underwriters and managing underwriter or managing underwriters that will administer the offering shall be selected by a majority of the Holders participating in such underwritten offering; provided, however, that such underwriters and managing underwriters shall be subject to the approval of the Company, which approval shall not be unreasonably withheld.

     B. Agreements of Selling Holders. No Holder shall sell any of its Registrable Securities in any underwritten offering pursuant to a registration hereunder unless such Holder

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agrees to sell such Registrable Securities on a basis provided in an underwriting agreement in customary form. No Holder shall sell any of its Registrable Securities in any offering, whether or not underwritten, pursuant to a registration hereunder unless such Holder completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, lock-ups and other documents required under the terms of such underwriting agreements or as reasonably requested by the Company.

SECTION 9. HOLDBACK AGREEMENTS

     A. Restrictions on Public Sales by Holders. To the extent not inconsistent with applicable law, each Holder that is timely notified in writing by the managing underwriter or underwriters shall not effect any public sale or distribution (including a sale pursuant to Rule 144) of any issue being registered in an underwritten offering (other than pursuant to an employee stock option, stock purchase, stock bonus or similar plan, or pursuant to a merger, an exchange offer or a transaction of the type specified in Rule 145(a) under the Securities Act), any securities of the Company similar to any such issue or any securities of the Company convertible into or exchangeable or exercisable for any such issue or any similar issue, during the 15 days prior to the effective date of the applicable Registration Statement, if such date is known, or during the period beginning on such effective date and ending on the earlier of (i) the completion of the distribution of such securities by the Company pursuant to such offering; (ii) 180 days after such effective date, except as part of such registration and (iii) the release of any such restrictions on any holder of securities of the Company who has specifically signed a similar agreement with the underwriter(s) of such offering; provided that such restrictions shall apply not more than once during any nine-month period and in no case shall such restrictions apply for an aggregate of more than 360 days after the effective date.

     B. Restrictions on Public Sales by the Company. If so requested by the managing underwriter or underwriters, the Company shall not effect any public sale or distribution of any issue of the same class or series as Registrable Securities being registered in an underwritten offering (other than pursuant to an employee stock option, stock purchase, stock bonus or similar plan, or pursuant to a merger, exchange offer or a transaction of the type specified in Rule 145(a) under the Securities Act), any securities of the Company similar to any such issue or any securities of the Company convertible into or exchangeable or exercisable for any such issue, during the 15 days prior to the effective date of the applicable Registration Statement, if such date is known, or during the period beginning on such effective date and ending on the earlier of (i) the completion of the distribution of such securities by the Company pursuant to such offering and (ii) 180 days after such effective date, except as part of such registration.

     C. Identification as Underwriter. In the event that any Holder is required by the SEC to be identified in the Registration Statement as an underwriter (the “Identified Holders”), the Company shall upon written request of such Identified Holder:

          (1) make such representations and warranties to such requesting Identified Holder, in form, substance and scope as are customarily made by issuers to underwriters in secondary offerings;

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          (2) cause to be delivered to such requesting Identified Holder, reasonable and customary opinions of independent counsel to the Company, on and dated as of the effective date of a Registration Statement, and within ninety (90) days following the end of each fiscal year thereafter, which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to such requesting Identified Holder and its counsel and covering, without limitation, such matters as the due authorization and issuance of the securities being registered and compliance with securities laws by the Company in connection with the authorization, issuance and registration thereof and other matters that are customarily given to underwriters in underwritten secondary offerings, addressed to such requesting Identified Holder and each underwriter, if any;

          (3) cause to be delivered, immediately prior to the effectiveness of a Registration Statement and within ninety (90) days following the end of each fiscal year during which the Company’s independent certified public accountants shall have reviewed the Company’s audited financial statements, a “comfort” letter from the Company’s independent certified public accountants addressed to such requesting Identified Holder stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent certified public accountants delivered in connection with secondary offerings; and each such letter shall be reasonably satisfactory to such requesting Identified Holder;

          (4) deliver such documents and certificates as may be reasonably requested by such requesting Identified Holder of the Registrable Securities being sold to evidence compliance with clause (1) above.

     The rights described in this Section 9(C) shall terminate and be of no further force or effect with respect to a particular Identified Holder on the date such Identified Holder is permitted to sell pursuant to Rule 144(k) all of the securities owned by such Identified Holder that are registered under the Registration Statement.

SECTION 10. HOLDERS’ REPRESENTATIONS AND WARRANTIES

     A. Transfer of Registrable Securities. Each of the Holders represents and warrants to the Company that such Holder has not transferred any of its rights under that certain Registration Rights Agreement, dated as of December 15, 2002, by and among the Company, Resurgence, Everest and Stockton (the “Original Registration Rights Agreement”), to any other Person.

SECTION 11. MISCELLANEOUS

     A. Amendments and Waivers. This Agreement may be amended, and waivers or consents to departures from the provisions hereof may be given, only by a written instrument duly executed, in the case of an amendment, by all of the parties hereto, or in the case of a waiver or consent, by the party against whom the waiver or consent, as the case may be, is to be effective; provided, however, that notwithstanding the foregoing, the Company may permit additional Holders to execute a counterpart of this Agreement prior to the filing of the

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Registration Statement, solely at the Company’s discretion; provided further, however, that in no event shall this Agreement cover the registration of a number of shares of Common Stock in excess of the number of shares of Common Stock subject to registration on behalf of the Holders under the Original Registration Rights Agreement (as adjusted for stock splits, stock dividends and other pro rata changes in capitalization).

     B. Successors, Assigns and Transferees. The rights under this Agreement may not be transferred or assigned by a Holder without the prior written consent of the Company, which may determine whether to provide such consent in its sole discretion. This Agreement shall be binding upon and shall inure to the benefit of the Company, the Holders and their respective successors and permitted assigns and transferees.

     C. Integration. This Agreement and the documents referred to herein or delivered pursuant hereto that form a part hereof contain the entire understanding of the Company and the Holders with respect to its subject matter. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein. This Agreement supersedes all prior agreements and understandings between the Company and the Holders with respect to its subject matter, including the Original Registration Rights Agreement, which shall terminate and be of no further force and effect upon the execution and delivery of this Agreement by the parties hereto. The Company represents to the Holders that it has not entered into any agreement which is inconsistent with this Agreement.

     D. Notices. All notices and other communications provided for hereunder shall be in writing and shall be sent by first class mail, telecopier or hand delivery:

     If to the Company, to:

Kitty Hawk, Inc.
P.O. Box 612787
1515 W. 20th Street
DFW International Airport, Texas 75261
Attention: Steven E. Markhoff
Fax: (972) 456-2449

     with a copy to:

Haynes and Boone, LLP
901 Main Street, Suite 3100
Dallas, Texas 75202-3789
Attention: Garrett A. DeVries, Esq.
Fax: (214) 200-0428

All such notices and communications shall be deemed to have been given or made (i) when delivered by hand, (ii) three Business Days after being deposited in the mail, postage prepaid or (iii) when telecopied, receipt acknowledged. The Company may change its address for receipt of notices by notice of such change given in the manner contemplated hereby to the Holders.

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     F. Descriptive Headings. The headings in this Agreement are for convenience of reference only and shall not limit, expand or otherwise affect the meaning of the terms contained herein.

     G. Severability. In the event that any one or more of the provisions hereof is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, it being intended that all rights, powers and privileges of the Company and the Holders shall be enforceable to the fullest extent permitted by law.

     H. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to the principles thereof relating to conflict of laws. Each party hereto hereby consents to the exclusive jurisdiction and venue of the state and federal courts located in the City and County of New York, New York in any action or proceeding arising hereunder and to service of process by certified mail, return receipt requested (which shall constitute “personal service”)

     I. Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Facsimile copies of original signatures shall have the same effect as the original.

     J. Term. This Agreement shall be terminated and be of no further force and effect upon the earlier of (i) the termination of the effectiveness, or the withdrawal of, the Registration Statement filed pursuant to Section 2(A) above; (ii) the date on which the Common Stock owned by the Holders on the date hereof has been sold, or (iii) the date on which the Common Stock owned by the Holders on the date hereof is eligible for resale under Rule 144(k) promulgated under the Securities Act.

[Remainder of page intentionally left blank.]

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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date set forth above.

KITTY HAWK, INC.
By:	/s/ Robert W. Zoller, Jr.
	Name:	Robert W. Zoller, Jr.
	Title:	President and Chief Executive Officer

HOLDERS RESURGENCE ASSET MANAGEMENT, L.L.C.
By:	/s/ Robert T. Symington
	Name:	Robert T. Symington
	Title:	Managing Director

EVEREST CAPITAL LIMITED on behalf of its and its affiliates managed funds and accents
By:	/s/ Eric Graham
	Name:	Eric Graham
	Title:	Principal

STOCKTON, LLC
By:	/s/ Paul E Singer
	Name:	Paul E Singer
	Title:	President

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EX-4.2

EXHIBIT 4.2

VOTING AGREEMENT

     THIS VOTING AGREEMENT (this “Agreement”), dated as of May 8, 2004, is made by and between Kitty Hawk, Inc., a Delaware corporation (the “Company”), and                     , a                                          (collectively with its affiliates, the “Stockholder”).

RECITALS:

     WHEREAS, concurrently herewith, the Company and the Stockholder are entering into a Registration Rights Agreement, dated as of the date hereof (the “Registration Rights Agreement”), which provides for the grant by the Company of certain registration rights to the Stockholder, upon the terms and subject to the conditions set forth therein; and

     WHEREAS, as of the date hereof, the Stockholder owns that number of shares of common stock, par value $0.000001 per share, of the Company (the “Common Stock”) and/or that number of warrants to purchase that number of shares of Common Stock (the “Warrants”) set forth opposite its name on Exhibit A hereto (such shares of Common Stock, together with any other shares of Common Stock acquired, whether upon exercise of the Warrants or otherwise, by the Stockholder after the date hereof and during the term of this Agreement, being collectively referred to herein as the “Subject Shares” of the Stockholder); and

     WHEREAS, as a condition to its willingness to enter into the Registration Rights Agreement, the Company has requested that the Stockholder enter into this Agreement.

     NOW, THEREFORE, to induce the Company to enter into, and in consideration of its entering into, the Registration Rights Agreement, and in consideration of the mutual promises and the representations, warranties, covenants and agreements contained herein, the parties hereto, intending to be legally bound, agree as follows:

     SECTION 1. Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to the Company as of the date hereof as follows:

          (a) Authority, Execution and Delivery; Enforceability. The Stockholder has full power and authority to enter into this Agreement and to perform the Stockholder’s obligations hereunder. This Agreement has been duly and validly authorized, executed and delivered by the Stockholder and constitutes the legal, valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms. No other action on the part of the Stockholder is necessary to authorize the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. The execution and delivery of this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby and compliance with the terms hereof will not, conflict with, or result in any violation of, or default (with or without due notice or lapse of time or both) under, (i) any contract to which the Stockholder is a party or by which the Stockholder or any of the Subject Shares of the Stockholder are bound or (ii) any order, rule, regulation or law applicable to the Stockholder or the Subject Shares of the Stockholder. No consent, approval, order or

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authorization of, action by or in respect of, or registration, declaration or filing with, any governmental authority is required to be obtained or made by or with respect to the Stockholder in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby.

          (b) The Subject Shares. The Stockholder is the sole beneficial owner of the Common Stock and the Warrants (if any) set forth opposite its name on Exhibit A attached hereto and has the sole right to vote such Subject Shares. Without limiting the generality of the foregoing, the Stockholder has not entered into any voting agreement (other than this Agreement) with any person or entity with respect to any of the Subject Shares, granted any person or entity any proxy (revocable or irrevocable) or power of attorney with respect to any of the Subject Shares, deposited any of the Subject Shares in a voting trust or entered into any arrangement or agreement with any person or entity limiting or affecting his legal power, authority or right to vote the Subject Shares on any matter.

          (c) Other Proxies. The Stockholder represents that no proxies have heretofore been given in respect of the Stockholder’s Subject Shares.

          (d) U.S. Citizen. The Stockholder represents and warrants that the information regarding whether the Stockholder and its affiliates are U.S. citizens as defined by 49 U.S.C. § 40102(a)(15) on Exhibit A is true and correct.

     SECTION 2. Covenants of the Stockholder. The Stockholder agrees as follows:

          (a) Prior to the termination of this Agreement and without in any way limiting the Stockholder’s right to vote its Subject Shares in its sole discretion with respect to any other matters, at every meeting of the stockholders of the Company called, and at every adjournment or postponement thereof, and on every action or approval by written consent of the stockholders of the Company, the Stockholder shall either appear at the meeting or otherwise cause the Subject Shares to be present thereat for purposes of establishing a quorum and, to the extent not voted by persons appointed as proxies, shall vote or consent (or cause to be voted or consented to) the Subject Shares in favor of any proposal or resolutions that would cause, or help to cause, the actions described on Exhibit B hereto (the “Proposals”), solely to the extent that the Company elects to submit any or all of the Proposals to a stockholder vote for approval.

          (b) At any meeting of stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder’s vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares against, or shall not consent to, any proposal that would in any manner impede, frustrate, prevent or nullify the Proposals.

          (c) Prior to the termination of this Agreement and except as otherwise permitted by this Agreement or prohibited by order of a court of competent jurisdiction, the Stockholder will not commit, and will not permit any entity controlled by the Stockholder to commit, any act that could restrict or otherwise affect its legal power, authority and right to vote

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all of the Subject Shares then owned of record or beneficially by it. Without limiting the generality of the foregoing, prior to the termination of this Agreement, the Stockholder will not, and will not permit any entity controlled by it, to enter into any voting agreement with any person or entity with respect to any of the Subject Shares, grant any person or entity any proxy (revocable or irrevocable) or power of attorney with respect to any of the Subject Shares (except in favor of the Proposals), deposit any of the Subject Shares in a voting trust or otherwise enter into any agreement or arrangement with any person or entity limiting or affecting the Stockholder’s legal power, authority or right to vote the Subject Shares in favor of the Proposals.

          (d) The Stockholder shall not sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, “Transfer”), consent to any Transfer of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, any Subject Shares (or any interest therein) to any person prior to June 8, 2004 (the “Termination Date”), without the prior written consent of the Company; provided, however, that nothing in this Section 2(d) shall prohibit the Stockholder from (x) selling, transferring, pledging, assigning or otherwise disposing of (including by gift) the Warrants (if any) to a third party, so long as such third party agrees in writing to be bound by the terms of this Agreement or (y) selling up to 430,000 shares of Common Stock pursuant to Rule 144 promulgated under the Securities Act of 1933, as amended; provided, further, that if the Company’s proxy statement related to the Proposals is reviewed by the staff of the Securities and Exchange Commission, the Termination Date can be extended by up to 30 days at the sole election of the Company to accommodate the setting of a new record date. Any such extension will be communicated to the Stockholder in writing prior to June 8, 2004.

     SECTION 3. Further Assurances. The Stockholder will, from time to time, execute and deliver, or cause to be executed and delivered, all such additional or further consents, documents and other instruments as the Company may reasonably request for the purpose of effectively carrying out the transactions contemplated by this Agreement.

     SECTION 4. Additional Matters.

          (a) The Stockholder agrees that this Agreement and the obligations hereunder shall attach to the Stockholder’s Subject Shares and shall be binding upon any person or entity to which legal or beneficial ownership of such Subject Shares shall pass, whether by operation of law or otherwise, including the Stockholder’s heirs, guardians, administrators or successors, and that each certificate representing such Subject Shares has been or will be inscribed with a legend to such effect.

          (b) The Stockholder agrees that the Stockholder will tender to the Company, within 10 business days after the date hereof (or, in the event Subject Shares are acquired subsequent to the date hereof within 10 business days after the date of such acquisition), any and all certificates representing the Stockholder’s Subject Shares in order that the Company may inscribe upon such certificates the legend in accordance with SECTION 4(a) hereof.

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          (c) The parties hereto agree that this Agreement is not a solicitation of a proxy as such terms are used in Section 14 of the Securities Exchange Act of 1934, as amended.

     SECTION 5. Termination. This Agreement shall terminate, and the provisions hereof shall be of no further force or effect, upon the earlier to occur of (i) September 1, 2004, (ii) the date that the Proposals described on Exhibit B hereto that the Company decides to submit for stockholder approval have been approved by the stockholders of the Company or (iii) the date on which the Stockholder does not own, either of record or beneficially, the Subject Shares. Nothing in this SECTION 5 shall relieve or otherwise limit the liability of any party for breach of this Agreement. Notwithstanding the foregoing, the Company may terminate this Agreement at any time upon written notice to the Stockholder.

     SECTION 6. General Provisions.

          (a) Expenses. Each of the parties hereto shall bear and pay all costs and expenses incurred by it or on its behalf in connection with the negotiation of this Agreement, including fees and expenses of its own financial consultants, investment bankers, accountants and counsel.

          (b) Amendments. This Agreement may not be amended except by an instrument in writing signed by each of the parties hereto.

          (c) Interpretation. When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Wherever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.

          (d) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile), all of which shall be considered one and the same agreement. This Agreement shall become effective against the Company when one or more counterparts have been signed by the Company and delivered to the Stockholder. This Agreement shall become effective against the Stockholder when one or more counterparts have been executed by the Stockholder and delivered to the Company. Each party need not sign the same counterpart.

          (e) Entire Agreement. This Agreement and the Registration Rights Agreement and the documents and instruments referenced herein constitute the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein or therein and supersede all prior agreements and understandings, both written and oral, among the parties with respect to such subject matter.

          (f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW THEREOF.

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     SECTION 7. Specific Enforcement. The parties agree that irreparable damage would occur and that the parties would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the courts of the State of Texas, County of Dallas or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of Texas, Dallas Division, this being in addition to any other remedy to which they are entitled at law or in equity. In addition, each of the parties hereto (i) consents to submit itself to the personal jurisdiction of such courts (and of the appropriate appellate courts) in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (iii) agrees that it will not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any other court.

     SECTION 8. Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by the Stockholder, on the one hand, without the prior written consent of the Company nor by the Company, on the other hand, without the prior written consent of the Stockholder, and any assignment without such consent shall be null and void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

     SECTION 9. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

(Signature page follows)

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     IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by its officer thereunto duly authorized and the Stockholder has signed this Agreement, all as of the date first written above.

KITTY HAWK, INC.

By:

Name:

Title:

By:

Name:

Title:

Exhibit A

(Please complete for each Stockholder and Each of its Affiliates)

			Is Beneficial Owner a U.S.
Beneficial			Citizens (as defined by
Owner Name	Common Stock	Warrants	49 U.S.C. § 40102(a)(15))?1
			Yes	No
			o	o
			Yes	No
			o	o
			Yes	No
			o	o
			Yes	No
			o	o
			Yes	No
			o	o
			Yes	No
			o	o
			Yes	No
			o	o
			Yes	No
			o	o

¹ Under 49 U.S.C. § 40102(a)(15), a “citizen of the United States” is:

(i)	an individual who is a citizen of the United States;
(ii)	a partnership each of whose partners is an individual who is a “citizen of the United States” as such term is defined in 49 U.S.C. § 40102(a)(15); or
(iii)	a corporation or association organized under the laws of the United States or a State, the District of Columbia, or a territory or possession of the United States, of which the president and at least two-thirds of the board of directors and other managing officers are “citizens of the United States” (as such term is defined in 49 U.S.C. § 40102(a)(15)), and in which at least 75 percent of the voting interest is owned or controlled by persons that are “citizens of the United States” (as such term defined in 49 U.S.C. § 40102(a)(15)).

Exhibit B

     Prior to the termination of this Agreement and without in any way limiting the Stockholder’s right to vote its Subject Shares in its sole discretion with respect to any other matters, at every meeting of the stockholders of the Company called, and at every adjournment or postponement thereof, and on every action or approval by written consent of the stockholders of the Company, the Stockholder shall appear at the meeting or otherwise cause the Subject Shares to be present thereat for purposes of establishing a quorum and, to the extent not voted by the persons appointed as proxies, shall vote or consent (or cause to be voted or consented to) the Subject Shares in favor of the following (solely to the extent that the Company elects to submit any or all of the following to a stockholder vote for approval):

1.	Classification of Directors:	Amendments to the Company’s Certificate of Incorporation (the “Charter”) and Bylaws (the “Bylaws”) to classify the Company’s Board of Directors (the “Board”) into three classes of directors, with each director serving a three-year term, and with one class being elected each year.
2.	Removal of Directors only for Cause and Definition of Cause:	Amendments to the Charter and the Bylaws to provide that directors of the Company may be removed by the stockholders only for cause. Amending the Charter to provide that “cause” for removal of a director will exist only if the director:
		(a) has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to direct appeal;
		(b) has been adjudged by a court of competent jurisdiction to be liable for gross negligence or misconduct in the performance of the duties of such director to the Company in connection with a matter of substantial importance to the Company, and such adjudication has become final and non-appealable; or
		(c) has missed six (6) consecutive meetings of the Board of Directors.
		The foregoing definition of cause may be changed in the sole discretion of the Board. Any such changes shall not affect the Stockholders’ covenant to vote in favor of this amendment.
3.	Amendments to Charter and Bylaws:	Amendments to the Charter to require that certain amendments to the Charter or Bylaws put to a stockholder vote must be approved by the vote of holders of at least 66 2/3% of the outstanding voting stock.

4.	Action by Written Consent:	Amendments to the Charter and Bylaws to permit stockholders to act only at annual or special meetings of stockholders and not by written consent.
5.	Increase Shares Under the Equity Incentive Plan:	An amendment to the Company’s equity incentive plan (“Plan”) to increase the number of shares of common stock issuable under the Plan by up to 500,000 effective June 30, 2005. The amendment would eliminate the current provisions limiting grants to those persons who received three-years worth of options pursuant to the initial grants under the Plan until September 30, 2005 or September 30, 2007, as applicable, subject to specified exceptions.
6.	Increase Capitalization:	An amendment to the Charter increasing the number of authorized shares common stock up to 100,000,000 and the number of authorized shares of preferred stock up to 10,000,000.
7.	Section 203 of DGCL:	An amendment to the Charter to make Section 203 of the Delaware General Corporation Law applicable to the Company.