EXCHANGE AGREEMENT
EXCHANGE AGREEMENT, dated as of April 22, 1996 (the
"Agreement"), by and among Loral Space & Communications Ltd., a Bermuda company
which is the successor-in-interest to Loral Space & Communications, Inc., a
Delaware corporation ("SpaceCom"), Lockheed ▇▇▇▇▇▇ Corporation, a Maryland
corporation ("LMC"), and Loral Corporation, a New York corporation ("Loral").
R E C I T A L S:
WHEREAS, each of Loral, LMC, and LAC Acquisition Corporation,
a New York corporation ("LAC"), are parties to that certain Agreement and Plan
of Merger, dated as of January 7, 1996, as amended (the "Merger Agreement");
WHEREAS, Loral, LMC, SpaceCom and certain affiliates of
SpaceCom are parties to the Restructuring, Financing and Distribution Agreement
dated as of January 6, 1996, as amended (the "Distribution Agreement");
WHEREAS, concurrently with the consummation of the
Distribution (as defined in the Distribution Agreement), Loral and SpaceCom will
enter into the Stockholders Agreement (as defined in the Distribution Agreement;
for purposes of this Agreement, the "SpaceCom Stockholders Agreement");
WHEREAS, immediately following the Distribution, Loral will
own all of the issued and outstanding shares of Series A Non-Voting Convertible
Preferred Stock of SpaceCom (the "SpaceCom Preferred Shares"), which, subject to
certain conditions set forth in the Certificate of Designation of the SpaceCom
Preferred Shares and the SpaceCom Stockholders Agreement, are convertible into
shares of SpaceCom common stock, $.0l par value per share (the "SpaceCom Common
Stock"; collectively, the SpaceCom Preferred Shares and the SpaceCom Common
Stock are the "SpaceCom Securities");
WHEREAS, immediately following the Distribution, SpaceCom will
own all of the issued and outstanding common stock, S.01 par value per share
(the "SS/L Bermuda Common Stock"), of SS/L (Bermuda) Ltd., a Bermuda company
("SS/L Bermuda");
WHEREAS, immediately following the Distribution all of the
issued and outstanding shares of Series S Preferred Stock (as defined below) of
SS/L Bermuda will be owned by ▇▇▇▇▇▇ Brothers Capital Partners, II, L.P., ▇▇▇▇▇▇
Brothers Merchant Banking Portfolio Partnership, L.P., ▇▇▇▇▇▇ Brothers Offshore
Investment Partnership, L.P. and ▇▇▇▇▇▇ Brothers Offshore Investment
Partnership-Japan L.P. (collectively, the "▇▇▇▇▇▇ Partnerships");
WHEREAS, immediately following the Distribution, SpaceCom,
SS/L Bermuda and the ▇▇▇▇▇▇ Partnerships will be parties to the Second Amended
and Restated Agreement dated as of November 13, 1992, as amended as of April 22,
1996 (the "SS/L Bermuda Stockholders Agreement").
WHEREAS, pursuant to Sections 2.9, 2.10 and 5.4 of the SS/L
Bermuda Stockholders Agreement, the ▇▇▇▇▇▇ Partnerships have, under certain
circumstances and subject to
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certain conditions, the right to require SS/L to purchase from the ▇▇▇▇▇▇
Partnerships all of the Series S Preferred Stock;
WHEREAS, immediately following the Distribution, each of SS/L
Bermuda, Aerospatiale Societe Nationale Industrielle, Alcatel Espace,
Daimler-Benz Aerospace A.G. and Finmeccanica S.p.A. (collectively, the
"Strategic Partners") will own shares of common stock, $.10 par value per share
("SS/L Common Stock"), of Space Systems/Loral, Inc., a Delaware corporation
("SS/L");
WHEREAS, SpaceCom, SS/L Bermuda and SS/L intend to enter into
an agreement with the Strategic Partners to amend that certain Stockholders
Agreement, dated as of April 22, 1991, as amended November 2, 1992 (as amended
by such contemplated amendment, the "SS/L Stockholders Agreement");
WHEREAS, pursuant to Section 4.4 of the SS/L Stockholders
Agreement each of the Strategic Partners has, under certain circumstances and
subject to certain conditions, the right to require SS/L to purchase from the
Strategic Partner shares of SS/L Common Stock beneficially owned by the
Strategic Partner (the "Strategic Partner Put Rights");
WHEREAS, if SpaceCom acquires any of the ownership interests
of the ▇▇▇▇▇▇ Partnerships or the Strategic Partners in SS/L Bermuda or SS/L,
respectively, SpaceCom's direct or indirect ownership interest in SS/L will
increase;
WHEREAS, while each of the parties hereto believe that an
increase in the ownership by SpaceCom of SS/L would be entirely consistent with
all applicable law and policies of the Antitrust Authorities (as defined in
Section 2. 1 (a)), the parties have agreed to enter into this Agreement to
provide for any contingencies that may hereinafter arise;
NOW THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the sufficiency of which is hereby
acknowledged, LMC, Loral and SpaceCom agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. General. For convenience and brevity, certain
terms used in various parts of this Agreement are listed in alphabetical order
and defined or referred to below (such terms to be equally applicable to both
singular and plural forms of the terms defined or referred to):
"Change of Control" has, with respect to the ▇▇▇▇▇▇ Put
Rights, the meaning assigned to the term in the SS/L Bermuda Stockholders
Agreement and has, with respect to the Strategic Partner Put Rights, the meaning
assigned to that term in the SS/L Stockholders Agreement.
"Closing Market Price" for each day for any publicly traded
security means the last reported sales price regular way or, in case no such
sale takes place on such day, the average of the closing bid and asked prices
regular way, in either case on the principal national securities exchange on
which the shares of the publicly traded security are listed or admitted to
trading, or, if not listed or admitted to trading on any national securities
exchange, on the Nasdaq National Market or, if the
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shares of the publicly traded security are not listed or admitted to trading on
any national securities exchange or quoted on the Nasdaq National Market, the
average of the closing bid and asked prices as furnished by any New York Stock
Exchange member firm selected from time to time by LMC for such purpose.
"Distribution Date" has the meaning assigned to that term in the
Distribution Agreement.
"Exercise" means (i) the valid exercise by the ▇▇▇▇▇▇ Partnerships of
the ▇▇▇▇▇▇ Put Rights or by a Strategic Partner of the Strategic Partner Put
Rights for reasons unrelated to a Change of Control other than the Change of
Control resulting from the consummation of the Offer (as defined in the Merger
Agreement) and/or (ii) the repurchase of SS/L Securities from the ▇▇▇▇▇▇
Partnerships by SpaceCom, SS/L Bermuda or SS/L otherwise than pursuant to an
exercise of the ▇▇▇▇▇▇ Put Rights.
"Fair Market Value" means (i) with respect to any publicly traded
security, the average of the Closing Market Prices of such security for the 10
consecutive trading days ended immediately before the date of the Requirement
Notice, and (ii) with respect to a security not publicly traded, the fair market
value, as of the date of the Requirement Notice, determined as if the Company
whose security is being valued were to be sold in its entirety with a reasonable
amount of time available to negotiate and consummate such sale; provided, that
for purposes of clauses (i) and (ii) of this definition, the Fair Market Value
of SpaceCom Preferred Shares shall be deemed to be equal to the Fair Market
Value of SpaceCom Common Stock into which they are convertible.
"GTL" means Globalstar Telecommunications Limited, a company organized
under the laws of Bermuda.
"GTL Common Stock" means the common stock, $1.00 par value per share,
of GTL.
"▇▇▇▇▇▇ Put Rights" means the rights of the ▇▇▇▇▇▇ Partnerships to
require SpaceCom, SS/L, SS/L Bermuda or any affiliate of SpaceCom to purchase
SS/L Securities beneficially owned by the ▇▇▇▇▇▇ Partnerships pursuant to
Sections 2.9, 2.10 or 5.4 of the SS/L Bermuda Stockholders Agreement as in
effect on the date hereof or as such agreement may be amended from time to time
hereafter with respect to (i) the conditions precedent to the ▇▇▇▇▇▇
Partnerships' right to require the repurchase of the SS/L Securities, (ii) the
times at which such repurchase must occur and (iii) the number of shares of SS/L
Securities required to be sold in connection with the exercise of any such
rights.
"Ownership Increase" means any increase in the beneficial ownership of
equity securities of SS/L, or, as the context shall require, any binding
agreement (an "Ownership Increase Agreement") to enter into a transaction or
series of transactions that would result in such an increase.
"Requirement Notice" has the meaning set forth in Section 3.2 hereof.
"Series S Preferred Stock" means the shares of Series S Redeemable
Preferred Stock, par value $.0l per share, of SS/L Bermuda.
"SS/L Securities" means equity securities of either SS/L Bermuda or
SS/L.
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"Strategic Partner Put Rights" means the rights of a Strategic Partner
to require SpaceCom, SS/L, SS/L Bermuda or any affiliate of SpaceCom to purchase
SS/L Securities beneficially owned by the Strategic Partner pursuant to Section
4.4 of the SS/L Stockholders Agreement as in effect on the date hereof or as
such agreement may be amended from time to time hereafter with respect to (i)
the conditions precedent to the Strategic Partner's right to require the
repurchase of the SS/L Securities, (ii) the times at which such repurchase must
occur and (iii) the number of shares of SS/L Securities required to be sold in
connection with the exercise of any such rights.
"Transferred Shares" has the meaning set forth in Section 3.1(a)
hereof.
ARTICLE II.
ANTITRUST APPROVAL AND REVIEW
Section 2.1. Antitrust Approval.
(a) The parties acknowledge and agree that an Ownership
Increase could result in a requirement on the part of SS/L, SpaceCom and other
parties to abide by a waiting period imposed under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust improvements Act of 1976, as amended (the "HSR Act"), and to make
certain filings required thereunder, and could otherwise be subject to approval
by the relevant governmental or supragovemmental antitrust authorities of the
United States or the European Community (the "Antitrust Authorities"). Any such
approval with respect to an Ownership Increase resulting from an Exercise and
the lapse or early termination of the HSR Act waiting period with respect
thereto is hereinafter referred to as an "Approval".
(b) SpaceCom agrees that it shall not seek Approval unless it
shall have received the prior written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
(and/or such other counsel reasonably acceptable to LMC) that absent such
Approval, the Ownership Increase would constitute a violation of law (the
"Opinion").
Section 2.2. Antitrust Review.
(a) SpaceCom will give LMC prompt written notice of any
Ownership Increase resulting from an Exercise and a copy of any Opinion received
in connection therewith.
(b) Following delivery of the Opinion to LMC, LMC and SpaceCom
will (i) take promptly all actions necessary to make the filings required of
LMC, SpaceCom or any of their affiliates necessary to obtain the Approval, (ii)
comply at the earliest practicable date with any request from the Antitrust
Authorities for additional information or documentary material related to the
Ownership Increase, and (iii) cooperate in connection with any filing required
by the Antitrust Authorities in connection with the Approval and in connection
with resolving any investigation or other inquiry commenced by the Antitrust
Authorities concerning the Ownership Increase.
(c) In furtherance and not in limitation of the covenants of
LMC and SpaceCom contained in Section 2.2(b) hereof, LMC and SpaceCom shall each
use reasonable efforts to resolve such objections, if any, as may be asserted
with respect to the Ownership Increase. SpaceCom shall use its reasonable
efforts to obtain the Approval without the Approval being conditioned upon a
change in LMC's ownership interest in SpaceCom, including, without limitation,
SpaceCom's agreeing to reasonable alternative conditions or proposals of the
Antitrust Authorities not involving any change in
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LMC's ownership interest in SpaceCom; provided, that SpaceCom shall not be
required to take any action or agree to any alternative conditions or proposals
that would have a material adverse effect on SpaceCom. LMC will, and will cause
its subsidiaries, to use reasonable efforts to assist SpaceCom in obtaining the
Approval without the Approval being conditioned upon any change in LMC's
ownership interest in SpaceCom including, without limitation, agreeing to
reasonable alternative conditions or proposals of the Antitrust Authorities not
involving any reduction in LMC's ownership of SpaceCom Securities; provided that
LMC shall not be required to take any action, or agree to any alternative
conditions or proposals, that could, in the reasonable judgment of LMC, have a
material adverse effect on LMC's investment in SpaceCom.
ARTICLE III.
EXCHANGE
Section 3.1. Exchange.
(a) If, following an Ownership Increase resulting from an
Exercise and receipt of the Opinion, an Antitrust Authority requires as a
condition to the Approval that the indirect ownership interest of LMC in SS/L be
reduced below the indirect ownership interest that would otherwise result from
the Ownership Increase (the "Antitrust Requirement"), then LMC shall be required
to transfer to SpaceCom shares of SpaceCom Securities beneficially owned by LMC
as specified in Section 3.1(c) hereof in exchange for shares of GTL Common
Stock; provided, however, that no such transfer shall be required if the
transactions contemplated by an Ownership Increase Agreement are not completed.
(b) SpaceCom shall provide prompt written notice of the
Antitrust Requirement to LMC and shall include therein reasonable evidence of
the Antitrust Requirement (the "Requirement Notice").
(c) The number of shares of SpaceCom Securities to be
transferred by or on behalf of LMC (the "Transferred Shares") shall be the
minimum number of shares necessary to reduce LMC's indirect ownership interest
in SS/L to the maximum ownership interest therein permitted by the Antitrust
Authorities as a condition necessary to the Approval; it being understood that
nothing in this Agreement will require LMC to reduce its fully-diluted ownership
interest in SpaceCom below 20% unless, prior to such reduction, appropriate
modification of Section 1.4 of the SpaceCom Stockholders Agreement shall have
been made that preserves the economic benefits to Loral of the option contained
in such Section 1.4. The number of shares of GTL Common Stock to be delivered to
LMC in exchange for the Transferred Shares shall be a number of shares of GTL
Common Stock having a Fair Market Value equal to the Fair Market Value of the
Transferred Shares.
(d) Notwithstanding the provisions of Section 3.1(a) hereof,
SpaceCom shall not be required to deliver shares of GTL Common Stock to LMC as
required thereunder if an Antitrust Authority from which Approval is requested,
as a condition to the Approval, prohibits the exchange of GTL Common Stock for
the Transferred Shares. In such event, in lieu of transferring GTL Common Stock
to LMC in exchange for the Transferred Shares, SpaceCom shall pay LMC, upon
surrender and transfer of the Transferred Shares to SpaceCom, cash in an amount
equal to the greater of (i) the Fair Market Value of the Transferred Shares and
(ii) the original purchase price of the Transferred Shares, increased at the
rate of 10% per annum, compounded annually, from the date of the consummation of
the Offer (as defined in the Merger Agreement) through the date of the transfer
of the Transferred Shares to SpaceCom. The parties agreed that for the purposes
of this Section 3.1(d) the aggregate
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original purchase price of the SpaceCom Securities owned beneficially by LMC on
the Distribution Date is $344 million.
Section 3.2. Determination of Consideration. Following receipt
of the Requirement Notice by LMC, each of LMC and SpaceCom will use their
reasonable efforts to reach an agreement on the number of shares of GTL Common
Stock to be transferred, or the amount of cash to be paid, as the case may be,
pursuant to Section 3.1(c) hereof, to LMC in exchange for the Transferred
Shares. If, within 10 business days after the date of delivery of the
Requirement Notice, LMC and SpaceCom cannot agree on the number of shares of GTL
Common Stock or amount of cash, as the case may be, to be received by LMC in
consideration of the Transferred Shares pursuant to Section 3.1 hereof (the
"Consideration"), then the Consideration shall be determined by such nationally
recognized investment bank as LMC and SpaceCom shall jointly select (the
"Designated Investment Bank"). LMC and SpaceCom shall use their best efforts to
cause the determination of the Consideration by the Designated Investment Bank
to be completed in five business days if SpaceCom Securities and GTL Common
Stock are both publicly traded securities and otherwise in 60 days, in each
case, after the date of engagement of the Designated Investment Bank. The
determination of the Designated Investment Bank shall be final and binding on
the parties hereto. One-half of the fees and expenses of the Designated
Investment Bank shall be paid by each of LMC and SpaceCom.
Section 3.3. New Registration Rights. If the Consideration is
shares of GTL Common Stock, then on or before the date the Consideration is
received by LMC, SpaceCom shall cause GTL to enter into an agreement with LMC
and Loral providing for LMC and Loral to have registration rights with respect
to all of the shares of GTL Common Stock received in exchange for the
Transferred Shares, the terms of which shall be substantially identical to the
registration rights of Loral with respect to the SpaceCom Securities set forth
in Article III of the SpaceCom Stockholders Agreement; provided, that the
minimum number of shares and minimum value of shares of GTL Common Stock
required to be included in any registration shall be adjusted in direct
proportion to the difference, if any, in the market capitalization of GTL as
compared to the market capitalization of SpaceCom, on the date of the
Requirement Notice.
Section 3.4. Closing of Exchange. The closing with respect to
the exchange of the Transferred Shares for the Consideration pursuant to Article
III hereof shall be on a mutually determined closing date which shall be the
later of a date not more than 15 days after (i) the date on which LMC and
SpaceCom agree on the Consideration or, if applicable, the Designated Investment
Bank determines the Consideration and (ii) the consummation of the transactions
resulting in the Ownership Increase. The closing shall be held at 10:00 a.m.,
local time, at the principal office of SpaceCom, or at such other time or place
as LMC and SpaceCom mutually agree. On such closing date, LMC and, if
applicable, SpaceCom shall deliver (i) certificates representing the shares of
SpaceCom Securities and, if applicable. GTL Common Stock, respectively, which
shares shall be free and clear of any lien, claim or encumbrance, and in the
case of the GTL Common Stock, shall be validly issued, fully paid and
non-assessable, and (ii) such instruments of transfer and evidence of ownership
and authority as the other party may reasonably request. In the event the
Consideration is cash, then SpaceCom shall pay the Consideration to LMC by wire
transfer of immediately available funds no later than 2:00 p.m. on the closing
date to the account designated by LMC prior to such closing date.
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ARTICLE IV.
MISCELLANEOUS
Section 4.1. Entire Agreement. This Agreement, the
Distribution Agreement and the SpaceCom Stockholders Agreement (including the
schedules and exhibits and the agreements and other documents referred to
therein) constitute the entire agreement among the parties with respect to the
subject matter hereof and supersedes all other prior negotiations, commitments,
agreements and understandings, both written and oral, between the parties or any
of them with respect to the subject matter hereof
Section 4.2. Fees and Expenses. Except as otherwise provided
in the last sentence of Section 3.2 hereof, all reasonable costs and expenses
incurred by the parties hereto in connection with consummating such party's
obligations hereunder or otherwise shall be paid by SpaceCom; provided, however,
that upon the request of SpaceCom, LMC shall advise SpaceCom from time to time
of the extent of the activities of LMC's outside advisors in connection with LMC
satisfying its obligations under Section 2.2(b) hereof and provided further,
that LMC shall consider in good faith the reasonable requests of SpaceCom with
respect to reducing the costs and expenses being incurred by LMC in connection
therewith.
Section 4.3. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF
(EXCEPT IN THOSE CIRCUMSTANCES WHERE THE CORPORATE LAW OF THE COMPANY'S
JURISDICTION OF ORGANIZATION REQUIRES THE APPLICATION OF THE LAW OF THE
COMPANY'S JURISDICTION OF ORGANIZATION WITH RESPECT TO A PARTICULAR MATTER).
Section 4.4. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given upon (a) transmitter's
confirmation of a receipt of a facsimile transmission, (b) confirmed delivery by
a standard overnight carrier or when delivered by hand or (c) the expiration of
five Business Days after the day when mailed by certified or registered mail,
postage prepaid, addressed at the following addresses (or at such other address
for a party as shall be specified by like notice):
(i) If to LMC or Loral, to:
Lockheed ▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
General Counsel
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and to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
and to:
O'Melveny & ▇▇▇▇▇
One Citicorp Center
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(ii) If to SpaceCom, to:
Loral Space & Communications Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
One Citicorp Center
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (212) ▇▇▇- ▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Section 4.5. Successors and Assigns; Reclassifications; No
Third Party Beneficiaries. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any party hereto
(whether by operation of law or otherwise) without the prior written consent of
the other parties hereto (which consent may not be unreasonably withheld),
except that any party shall have the right, without the consent of any other
party hereto, to assign all or a portion of its rights, interests and
obligations hereunder to one or more direct or indirect subsidiaries, but no
such assignment of obligation shall relieve the assigning party from its
responsibility therefor. In the event of any recapitalization or
reclassification of any SpaceCom Securities, or any merger, consolidation or
other transaction with
8
like effect, the securities issued in replacement or exchange for such SpaceCom
Securities shall be deemed SpaceCom Securities hereunder. This Agreement shall
be binding upon and inure solely to the benefit of each party hereto, and
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
Section 4.6. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 4.7. Further Assurances. Each party hereto or person subject
hereto shall do and perform or cause to be done and performed all such further
acts and things and shall execute and deliver all such other agreements,
certificates, instruments and documents as any other party hereto or person
subject hereto may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
Section 4.8. Interpretation. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement. Unless otherwise
specified in this Agreement, all references in this Agreement to "days" shall be
deemed to be references to calendar days.
Section 4.9. Summary Proceeding. No dispute arising with respect to
this Agreement where the amount in controversy as to at least one party,
exclusive of interest and costs, exceeds One Million Dollars ($1,000,000) (a
"Summary Proceeding"), shall be litigated except in the Superior Court of the
State of Delaware (the "Delaware Superior Court") as a summary proceeding
pursuant to Rules 124-131 of the Delaware Superior Court, or any successor rules
(the "Summary Proceeding Rules"). Each of the parties hereto hereby irrevocably
and unconditionally (i) submits to the jurisdiction of the Delaware Superior
Court for any Summary Proceeding, (ii) agrees not to commence any Summary
Proceeding except in the Delaware Superior Court, (iii) waives, and agrees not
to plead or to make, any objection to the venue of any Summary Proceeding in the
Delaware Superior Court, (iv) waives, and agrees not to plead or to make, any
claim that the Delaware Superior Court lacks personal Jurisdiction over it, and
(iv) waives its right to remove any Summary Proceeding to the federal courts
except where such courts are vested with sole and exclusive jurisdiction by
statute.
Section 4.10. Specific Performance. Each of the parties hereto
acknowledges and agrees that in the event of any breach of this Agreement, each
non-breaching party would be irreparably and immediately harmed and could not be
made whole by monetary damages. It is accordingly agreed that the parties hereto
(a) will waive, in any action for specific performance, the defense of adequacy
of a remedy at law and (b) shall be entitled, in addition to any other remedy to
which they may be entitled at law or in equity, to compel specific performance
of this Agreement in any action instituted in any court referred to in Section
4.9 hereof.
-------------------------------------
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IN WITNESS WHEREOF, each of the parties has caused this
Exchange Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the day and year first above written.
LORAL SPACE & COMMUNICATIONS LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President &
General Counsel
LOCKHEED ▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President and
General Counsel
LORAL CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President &
General Counsel
S-1