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ORBITAL SCIENCES CORPORATION
(a Delaware corporation)
2,750,000 Shares of Common Stock
PURCHASE AGREEMENT
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Dated: April [14], 1998
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TABLE OF CONTENTS
PURCHASE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Representations and Warranties by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(i) Compliance with Registration Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(ii) Incorporated Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(iii) Independent Accountants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(iv) Financial Statements and Internal Accounting Controls . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(v) No Material Adverse Change in Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(vi) Good Standing of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(vii) Good Standing of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(viii) Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(ix) Authorization of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(x) Authorization and Description of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(xi) Absence of Defaults and Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(xii) Absence of Labor Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(xiii) Absence of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(xiv) Accuracy of Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(xv) Possession of Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(xvi) Absence of Further Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(xvii) Possession of Licenses and Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(xviii) Title to Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(xix) Compliance with Cuba Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(xx) Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(xxi) Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(xxii) Dividends and Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(xxiii) Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(xxiv) Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(xxv) ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(b) Officer's Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2. Sale and Delivery to Underwriters; Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(a) Initial Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(b) Option Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(c) Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(d) Denominations; Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3. Covenants of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(a) Compliance with Securities Regulations and Commission Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(b) Filing of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(c) Delivery of Registration Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(d) Delivery of Prospectuses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(e) Continued Compliance with Securities Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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(f) Blue Sky Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(g) Rule 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(h) Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(i) Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(j) Restriction on Sale of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(k) Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(a) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(b) Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5. Conditions of Underwriters' Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(a) Effectiveness of Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(b) Opinion of Counsel for Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(c) Opinion of Counsel for Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(d) Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(e) Accountant's Comfort Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(f) Bring-down Comfort Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(g) Approval of Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(h) No Objection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(i) Lock-up Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(j) Conditions to Purchase of Option Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(k) Additional Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(l) Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(a) Indemnification of Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(b) Indemnification of Company, Directors and Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(c) Actions against Parties; Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(d) Settlement without Consent if Failure to Reimburse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7. Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 8. Representations, Warranties and Agreements to Survive Delivery . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 9. Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(a) Termination; General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(b) Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 10. Default by One or More of the Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 11. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 12. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 13 GOVERNING LAW AND TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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SECTION 14. Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SCHEDULES
Schedule A - List of Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Sch A-1
Schedule B - Pricing Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Sch B-1
Schedule C - List of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Sch C-1
Schedule D - List of Persons subject to Lock-up . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Sch D-1
EXHIBITS
Exhibit A-1 - Form of Opinion of Company's Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A-1
Exhibit A-2 - Form of Opinion of Company's Canadian Counsel . . . . . . . . . . . . . . . . . . . . . . . . .A-2
Exhibit A-3 - Form of Opinion of Company's FCC counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . .A-3
Exhibit A-4 - Form of Opinion of ORBCOMM's Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A-4
Exhibit A-5 - Form of Opinion of ORBIMAGE's Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A-5
Exhibit A-6 - Form of Opinion of Company's Internal Counsel . . . . . . . . . . . . . . . . . . . . . . . . .A-6
Exhibit B - Form of Lock-up Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .B-1
ANNEX
Annex A - Form of Accountants' Comfort Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . Annex A-1
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ORBITAL SCIENCES CORPORATION
(a Delaware corporation)
2,750,000 Shares of Common Stock
(Par Value $0.01 Per Share)
PURCHASE AGREEMENT
April [14], 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ & CO.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
as Representative(s) of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Orbital Sciences Corporation, a Delaware corporation (the "Company"),
confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other Underwriters named
in Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇. ▇. ▇▇▇▇▇▇ & Co., ▇.▇. ▇▇▇▇▇▇ Securities
Inc., and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. are acting as
representative(s) (in such capacity, the "Representative(s)"), with respect to
the issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of shares of Common Stock,
par value $0.01 per share, of the Company ("Common Stock") set forth in said
Schedule A, and with respect to the grant by the Company to the Underwriters,
acting severally and not jointly, of the option described in Section 2(b)
hereof to purchase all or any part of 412,500 additional shares of Common Stock
to cover over-allotments, if any. The aforesaid 2,750,000 shares of Common
Stock (the "Initial Securities") to be purchased by the Underwriters and all or
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any part of the 412,500 shares of Common Stock subject to the option described
in Section 2(b) hereof (the "Option Securities") are hereinafter called,
collectively, the "Securities".
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representative(s) deem(s) advisable
after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-48679) covering the
registration of the Securities under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will
either (i) prepare and file a prospectus in accordance with the provisions of
Rule 430A ("Rule 430A") of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations or (ii) if the Company has elected to rely
upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term
sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and Rule
424(b). The information included in such prospectus or in such Term Sheet, as
the case may be, that was omitted from such registration statement at the time
it became effective but that is deemed to be part of such registration
statement at the time it became effective (a) pursuant to paragraph (b) of Rule
430A is referred to as "Rule 430A Information" or (b) pursuant to paragraph (d)
of Rule 434 is referred to as "Rule 434 Information." Each prospectus used
before such registration statement became effective, and any prospectus that
omitted, as applicable, the Rule 430A Information or the Rule 434 Information,
that was used after such effectiveness and prior to the execution and delivery
of this Agreement, is herein called a "preliminary prospectus." Such
registration statement, including the exhibits thereto, schedules thereto, if
any, and the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, at the time it became effective and including the
Rule 430A Information and the Rule 434 Information, as applicable, is herein
called the "Registration Statement." Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final
prospectus, including the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the
Underwriters for use in connection with the offering of the Securities is
herein called the "Prospectus." If Rule 434 is relied on, the term
"Prospectus" shall refer to the preliminary prospectus dated March 26, 1998
together with the Term Sheet and all references in this Agreement to the date
of the Prospectus shall mean the date of the Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is
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incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments
and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at
the time the Prospectus or any such amendment or supplement was issued
and at the Closing Time (and, if any Option Securities are purchased,
at the Date of Delivery), included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Company will comply with the requirements of Rule 434.
The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through ▇▇▇▇▇▇▇
▇▇▇▇▇ expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
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Regulations and each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was substantially
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated
or deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations"),
and, when read together with the other information in the Prospectus,
at the time the Registration Statement became effective, at the time
the Prospectus was issued and at the Closing Time (and if any Option
Securities are purchased, at the Date of Delivery), did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) Independent Accountants. The accountants who
certified the financial statements and supporting schedules included
in the Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements and Internal Accounting
Controls. The financial statements included in the Registration
Statement and the Prospectus, together with the related schedules and
notes, present fairly the financial condition of the Company and its
consolidated subsidiaries and ORBCOMM Global, L.P. ("ORBCOMM"), as the
case may be, at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its
consolidated subsidiaries and ORBCOMM, as the case may be, for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved (except
as otherwise noted therein). The supporting schedules, if any,
included in the Registration Statement present fairly in accordance
with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that (w) transactions are executed in accordance with
management's general or specific authorizations; (x) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP, as applicable, and to maintain asset
accountability; (y) access to assets is permitted only in accordance
with management's general or specific authorization; and (z) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as
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otherwise stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, its subsidiaries, ORBCOMM and Orbital
Imaging Corporation ("ORBIMAGE"), considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries, considered as one
enterprise, and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each subsidiary of the Company
and, to the Company's actual knowledge, each of ORBCOMM and ORBIMAGE has been
duly organized and is validly existing as a corporation or partnership, as the
case may be, in good standing under the laws of the jurisdiction of its
incorporation or organization, as the case may be, has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and is duly qualified as a foreign corporation
or partnership to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect; except as otherwise disclosed in the Prospectus, all of the
issued and outstanding capital stock or partnership interests, as the case may
be, of each of the Company's subsidiaries has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company to the
extent set forth on Schedule C, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except that ten percent (10%) of the capital stock of Magellan
Corporation is currently in escrow, having been pledged in connection with the
merger by such subsidiary with Ashtech Inc.; all of the issued and outstanding
capital stock or partnership interests of ORBIMAGE and ORBCOMM, respectively,
which is identified on Schedule C as being owned by the Company, has been duly
authorized and validly issued, is fully paid and non-assessable and is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock or partnership interests, as the case may
be, of any of the Company's subsidiaries or, to the actual knowledge of the
Company, ORBCOMM or ORBIMAGE was issued in violation of the preemptive or
similar rights of any securityholder of such subsidiary, ORBCOMM or
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ORBIMAGE, as the case may be. The only subsidiaries of the Company are (a) the
subsidiaries listed on Schedule C hereto and (b) certain other subsidiaries
which, considered in the aggregate as a single subsidiary, do not constitute a
"significant subsidiary" as defined in Rule 1.02 of Regulation S-X.
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the column
entitled "Historical" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectus or the
Registration Statement or pursuant to the exercise of convertible securities or
options referred to in the Prospectus or the Registration Statement). The
shares of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation of or
subject to the preemptive or other similar rights of any securityholder of the
Company.
(ix) Authorization of Agreement. The execution and delivery of
this Agreement has been duly authorized by the Company.
(x) Authorization and Description of Securities. The Securities
have been duly authorized for issuance and sale to the Underwriters pursuant to
this Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued, fully paid and non-assessable; the Common Stock conforms to all
statements relating thereto contained in the Prospectus and such description
conforms to the rights set forth in the instruments defining the same; no
holder of the Securities will be subject to personal liability by reason of
being such a holder; and the issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries nor, to the Company's actual knowledge, ORBIMAGE is in
violation of its charter or by laws or other organizational documents or in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to which
the Company or any of its subsidiaries or , to the Company's actual knowledge,
ORBIMAGE is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary or, to the Company's
actual knowledge, ORBIMAGE is subject (collectively, "Agreements and
Instruments"), except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein and in the
Registration Statement (including the issuance and sale of the Securities and
the use of the proceeds from the sale of the Securities as described in the
Prospectus under the caption "Use of Proceeds") and compliance by the Company
with its obligations hereunder have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or
default or Repayment
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Event (as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any
subsidiary or, to the Company's actual knowledge, ORBIMAGE pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions of the
charter or other organizational documents or by-laws of the Company or any
subsidiary or ORBIMAGE or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government instrumentality,
court or arbitrator, domestic or foreign, having jurisdiction over the Company
or any subsidiary or, to the Company's actual knowledge, ORBIMAGE or any of
their assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company, any subsidiary or, to the
Company's actual knowledge, ORBIMAGE.
(xii) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any subsidiary or, to the Company's actual knowledge, ORBCOMM
or ORBIMAGE exists or, to the knowledge of the Company, is threatened or
imminent that could have a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against the Company, any subsidiary or, to the Company's actual
knowledge, ORBCOMM or ORBIMAGE, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the properties or
assets thereof or the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations hereunder.
(xiv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(xv) Possession of Intellectual Property. The Company and its
subsidiaries and, to the Company's actual knowledge, ORBIMAGE own or possess,
or can acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and neither the Company nor any of its
subsidiaries nor, to the Company's actual knowledge, ORBIMAGE has received any
notice or is otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any
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Intellectual Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company, any of its subsidiaries or ORBIMAGE therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification
or decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Securities hereunder or
the consummation of the transactions contemplated by this Agreement, except
such as have been already obtained or as may be required under the 1933 Act or
the 1933 Act Regulations or state securities laws.
(xvii) Possession of Licenses and Permits. Except as disclosed in
the Registration Statement and Prospectus, the Company, its subsidiaries and,
to the Company's actual knowledge, ORBCOMM and ORBIMAGE possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company, its subsidiaries and, to the Company's actual
knowledge, ORBCOMM and ORBIMAGE are in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material Adverse
Effect; and neither the Company nor any of its subsidiaries nor, to the
Company's actual knowledge, ORBCOMM or ORBIMAGE has received any notice of
proceedings relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries and, to
the Company's actual knowledge, each of ORBCOMM and ORBIMAGE have good and
marketable title to all real property owned by the Company, its subsidiaries,
ORBCOMM and ORBIMAGE, and, with respect to the Company, its subsidiaries and
ORBIMAGE, marketable title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described in
the Prospectus or (b) do not, singly or in the aggregate, materially affect the
value of such property and do not interfere with the use made and proposed to
be made of such property by the Company or such subsidiary or ORBCOMM or
ORBIMAGE, as the case may be; and all of the leases and subleases material to
the business of the Company, any such subsidiary or, to the Company's actual
knowledge, ORBCOMM or ORBIMAGE, and under which the Company, any of its
subsidiaries or ORBCOMM or ORBIMAGE, as the case may be, holds properties
described in the Prospectus, are in full force and effect,
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and neither the Company nor any subsidiary nor, to the Company's actual
knowledge, ORBCOMM or ORBIMAGE has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the Company or any
subsidiary or ORBCOMM or ORBIMAGE under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company, such
subsidiary, ORBCOMM or ORBIMAGE to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xix) Compliance with Cuba Act. The Company has complied with, and
is and will be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section 517.075
of the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
(xx) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be, an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xxi) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its subsidiaries
nor, to the Company's actual knowledge, ORBCOMM or ORBIMAGE is in violation of
any federal, state, local or foreign statute, law, rule, regulation, ordinance,
code or policy, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products ("collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries and, to the
Company's actual knowledge, ORBIMAGE have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, except for any failure to receive required
permits, authorizations or approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals which would not, singly or in
the aggregate, have a Material Adverse Effect, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company, any of its subsidiaries or, to the Company's actual knowledge,
ORBIMAGE and (D) there are no events or circumstances that might reasonably be
expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or agency,
against or affecting the Company, any of its subsidiaries or, to the Company's
actual knowledge, ORBIMAGE relating to Hazardous Materials or any Environmental
Laws.
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(xxii) Dividends and Distributions. No subsidiary of the Company is
currently prohibited, directly or indirectly, from paying any dividends to the
Company, making any other distribution on such subsidiary's capital stock,
repaying to the Company any loans or advances to such subsidiary from the
Company or transferring any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company, except that Orbital
Communications Corporation, ORBCOMM USA, L.P., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and
Associates Ltd., ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Technologies Ltd. and Magellan Corporation
are subject to restrictions under their respective credit or loan agreements
with respect to the foregoing, and the Company is currently prohibited,
directly or indirectly, from paying any dividends or making any other
distribution on its capital stock under the Credit Facility (as defined in the
Prospectus).
(xxiii) Taxes. The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not result in
a Material Adverse Effect) and has paid all taxes required to be paid by it and
any other assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as described in or
contemplated by the Prospectus.
(xxiv) Insurance. The Company, each of its subsidiaries and, to the
Company's actual knowledge, each of ORBCOMM and ORBIMAGE, are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which
they are engaged; neither the Company nor any such subsidiary nor, to the
Company's actual knowledge, ORBCOMM or ORBIMAGE has been refused any insurance
coverage sought or applied for; and neither the Company nor any such subsidiary
nor, to the Company's actual knowledge, ORBCOMM or ORBIMAGE has any reason to
believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not
have a Material Adverse Effect, except as described in or contemplated by the
Prospectus.
(xxv) ERISA. The Company, each of its subsidiaries and, to the
Company's actual knowledge, ORBCOMM and ORBIMAGE are each in compliance in all
material respects with all presently applicable provisions of ERISA; no
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company would have any
liability; the Company has not incurred and does not expect to incur liability
under (x) Title IV of ERISA with respect to termination of, or withdrawal from,
any "pension plan" or (y) Sections 412 or 4971 of the Code; and each "pension
plan" for which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification.
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(b) Officer's Certificates. Any certificate signed by any officer
of the Company or any of its subsidiaries delivered to the Representative(s) or
to counsel for the Underwriters shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional
412,500 shares of Common Stock at the price per share set forth in Schedule B,
less an amount per share equal to any dividends or distributions declared by
the Company and payable on the Initial Securities but not payable on the Option
Securities. The option hereby granted will expire 30 days after the date
hereof and may be exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Representative(s) to the Company setting forth the number of Option Securities
as to which the several Underwriters are then exercising the option and the
time and date of payment and delivery for such Option Securities. Any such
time and date of delivery (a "Date of Delivery") shall be determined by the
Representative(s), but shall not be later than seven full business days after
the exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of
the Option Securities, each of the Underwriters, acting severally and not
jointly, will purchase that proportion of the total number of Option Securities
then being purchased which the number of Initial Securities set forth in
Schedule A opposite the name of such Underwriter bears to the total number of
Initial Securities, subject in each case to such adjustments as the
Representative(s) in their discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇, or at such other place as shall be agreed upon by the
Representative(s) and the Company, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representative(s) and the
Company (such time and date of payment and delivery being herein called
"Closing Time").
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In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Representative(s) and the Company, on each Date of Delivery as specified in the
notice from the Representative(s) to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
to the Representative(s) for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representative(s), for its account, to
accept delivery of, receipt for, and make payment of the purchase price for,
the Initial Securities and the Option Securities, if any, which it has agreed
to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations
and registered in such names as the Representative(s) may request in writing at
least one full business day before the Closing Time or the relevant Date of
Delivery, as the case may be. The certificates for the Initial Securities and
the Option Securities, if any, will be made available for examination and
packaging by the Representative(s) in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with
each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify
the Representative(s) immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly
effect the filings necessary pursuant to Rule 424(b) and will take
such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was
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not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the
Representative(s) notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to
the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise,
will furnish the Representative(s) with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Representative(s)
or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Representative(s) and counsel for the
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representative(s), without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without exhibits)
for each of the Underwriters. The copies of the Registration Statement and
each amendment thereto furnished to the Underwriters will be substantially
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be substantially
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If at any
time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not
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include any untrue statements of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of such counsel, at any such time
to amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use reasonable
efforts, in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions as the Representative(s) may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any
Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect and
maintain the quotation of the Securities on the Nasdaq National Market or any
other national securities exchange and will file with the Nasdaq National
Market or such other national securities exchange, as the case may be, all
documents and notices required by the Nasdaq National Market or such other
national securities exchange, as the case may be.
(j) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectus, the Company will not, without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or
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warrant to purchase or otherwise transfer or dispose of any share of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under
the 1933 Act with respect to any of the foregoing or (ii) enter into
any swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of
ownership of the Common Stock, whether any such swap or transaction
described in clause (i) or (ii) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Securities to be sold
hereunder, (B) any shares of Common Stock issued by the Company upon
the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the Prospectus, (C)
any shares of Common Stock issued or options to purchase Common Stock
granted pursuant to existing employee benefit plans (as such are
intended to be amended as described in the Registration Statement and
the incorporated documents thereto) of the Company referred to in the
Prospectus or (D) any shares of Common Stock issued pursuant to any
non-employee director stock plan or dividend reinvestment plan.
(k) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required
by the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company
will pay all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to
the Underwriters, including any stock or other transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the Securities to
the Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectus and any amendments or supplements thereto, (vii)
the preparation, printing and delivery to the Underwriters of copies of the
Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of any
transfer agent or registrar for the Securities, (ix) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Securities and (x) the fees
and expenses incurred in connection with the inclusion of the Securities in the
Nasdaq National Market.
(b) Termination of Agreement. If this Agreement is terminated by
the Representative(s) in accordance with the provisions of Section 5(l) or
Section 9(a)(i) hereof, the
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Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the several Underwriters hereunder are subject to the accuracy
of the representations and warranties of the Company contained in Section 1
hereof or in certificates of any officer of the Company or any subsidiary of
the Company delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The
Registration Statement, including any Rule 462(b) Registration
Statement, has become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing the Rule 430A Information shall have been filed
with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of
Rule 430A) or, if the Company has elected to rely upon Rule 434, a
Term Sheet shall have been filed with the Commission in accordance
with Rule 424(b).
(b) Opinions of Counsel for Company. At Closing Time, the
Representative(s) shall have received the favorable opinions, dated as
of Closing Time, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Company;
Farris, Vaughn, ▇▇▇▇▇ & ▇▇▇▇▇▇, Canadian counsel for the Company;
Halprin, Temple, ▇▇▇▇▇▇▇ & Surgrue, special Federal Communications
Commission counsel for the Company; internal counsel to ORBCOMM;
internal counsel to ORBIMAGE; and internal counsel to the Company, each
in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters to the effect set forth in or in the form of
Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and
Exhibit A-6 hereto, respectively, and to such further effect as counsel
to the Underwriters may reasonably request. In giving such opinion,
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. may rely, as to all matters governed by the laws
of jurisdictions other than the law of the State of New York, the
federal law of the United States, the General Corporation Law of the
State of Delaware, the Delaware Revised Uniform Limited Partnership
Act, as amended, and the Virginia Stock Corporation Act, as amended,
upon the opinions of counsel satisfactory to the Representative(s).
All such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(c) Opinion of Counsel for Underwriters. At Closing
Time, the Representative(s) shall have received the favorable opinion,
dated as of Closing Time, of
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Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
with respect to the matters set forth in the first (except with respect to the
incorporation of the Company and the corporate power and authority of the
Company to own, lease and operate its current properties and to conduct its
business as described in the Prospectus), [tenth] (solely as to the due
authorization, execution and delivery of the Purchase Agreement by the
Company), [eleventh] (except with respect to the personal liability of any
holder of the Securities and compliance of the form of certificate used to
evidence the Securities with requirements of Delaware corporate law and the
Company's certificate of incorporation and by-laws), [fourteenth] (solely as to
the information in the Prospectus under "Description of Capital Stock") and
clause (i) of the [penultimate] paragraph of Exhibit A-1 hereto. In giving
such opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law of
the United States and the General Corporation Law of the State of Delaware,
upon the opinions of counsel satisfactory to the Representative(s). Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, its subsidiaries, ORBCOMM and ORBIMAGE
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representative(s) shall have received a certificate of the
President or a Vice President of the Company and of the chief financial or
chief accounting officer of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to Closing Time, and (iv)
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending or are contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representative(s) shall have received from KPMG Peat
Marwick LLP a letter dated such date, in form and substance satisfactory to the
Representative(s), together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
(including with respect to ORBCOMM) contained in the Registration Statement and
the Prospectus.
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(f) Bring-down Comfort Letter. At Closing Time, the
Representative(s) shall have received from KPMG Peat Marwick LLP a letter,
dated as of Closing Time, to the effect that they reaffirm the statements made
in the letter furnished pursuant to subsection (e) of this Section, except that
the specified date referred to shall be a date not more than three business
days prior to Closing Time.
(g) Approval of Listing. At Closing Time, the Securities shall
have been approved for inclusion in the Nasdaq National Market, subject only to
official notice of issuance.
(h) No Objection. The NASD shall have confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(i) Lock-up Agreements. At Closing Time, the Representative(s)
shall have received an agreement substantially in the form of Exhibit B hereto
signed by the persons listed on Schedule D hereto.
(j) Conditions to Purchase of Option Securities. In the event
that the Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any subsidiary of the Company
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Representative(s) shall have received:
(i) Officers' Certificate. A certificate, dated such
Date of Delivery, of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(d) hereof remains true and correct as of such Date of
Delivery.
(ii) Opinions of Counsel for Company. The favorable
opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Company; Farris,
Vaughn, ▇▇▇▇▇ & ▇▇▇▇▇▇, Canadian counsel for the Company; Halprin,
Temple, ▇▇▇▇▇▇▇ & Surgrue, special Federal Communications Commission
counsel for the Company; internal counsel for ORBCOMM; and internal
counsel to ORBIMAGE, each in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinions required by Section 5(b)
hereof.
(iii) Opinion of Counsel for Underwriters. The favorable
opinion of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(c) hereof.
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(iv) Bring-down Comfort Letter. A letter from
KPMG Peat Marwick LLP, in form and substance satisfactory
to the Representative(s) and dated such Date of Delivery,
substantially in the same form and substance as the letter
furnished to the Representative(s) pursuant to Section 5(f)
hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(k) Additional Documents. At Closing Time and at each
Date of Delivery, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to the
Representative(s) and counsel for the Underwriters.
(l) Termination of Agreement. If any condition
specified in this Section shall not have been fulfilled when and as
required to be fulfilled, this Agreement, or, in the case of any
condition to the purchase of Option Securities, on a Date of Delivery
which is after the Closing Time, the obligations of the several
Underwriters to purchase the relevant Option Securities, may be
terminated by the Representative(s) by notice to the Company at any
time at or prior to Closing Time or such Date of Delivery, as the case
may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in
full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
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threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by
▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and provided, further, that
the Company will not be liable to an Underwriter with respect to any preliminary
prospectus to the extent that the Company shall sustain the burden of proving
that any such loss, liability, claim, damage or expense resulted from the fact
that such Underwriter, in contravention of a requirement of this Agreement or
applicable law, sold Securities to a person to whom such Underwriter failed to
send or give, at or prior to the Closing Time, a copy of the Prospectus as then
amended or supplemented if the Company has previously furnished copies thereof
in accordance with Section 3(d) hereof (sufficiently in advance of the Closing
Time to allow for distribution by the Closing Time) to the Underwriters and the
loss, liability, claim, damage or expense of such Underwriter resulted from an
untrue statement or omission of a material fact contained in or omitted from the
preliminary prospectus which was corrected in the Prospectus as, if applicable,
amended or supplemented prior to the Closing Time and such Prospectus was
required by law to be delivered at or prior to the written confirmation of sale
to such person.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
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(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement without Consent if Failure to Reimburse. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein; then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the
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Company on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions, which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters,
in each case as set forth on the cover of the Prospectus, or, if Rule 434 is
used, the corresponding location on the Term Sheet, bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The Underwriters'
respective obligations
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to contribute pursuant to this Section 7 are several in proportion to the
number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative(s) may
terminate this Agreement, by notice to the Company, at any time at or
prior to Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, its subsidiaries, ORBCOMM
and ORBIMAGE, considered as one enterprise, whether or not arising in
the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States
or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of
which is such as to make it, in the judgment of the Representative(s),
impracticable to market the Securities or to enforce contracts for the
sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or
the Nasdaq National Market, or if trading generally on the American
Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order
of the Commission, the National Association of Securities Dealers, Inc.
or any other governmental authority, or (iv) if a banking moratorium
has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated
pursuant to this Section, such termination shall be without liability of
any party to any other party except as provided in Section 4 hereof, and
provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at Closing Time or a Date of Delivery to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representative(s) shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the
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terms herein set forth; if, however, the Representative(s) shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed
10% of the number of Securities to be purchased on such date, each of
the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of
the number of Securities to be purchased on such date, this Agreement
or, with respect to any Date of Delivery which occurs after the
Closing Time, the obligation of the Underwriters to purchase and of
the Company to sell the Option Securities to be purchased and sold on
such Date of Delivery shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the
obligation of the Underwriters to purchase and the Company to sell the relevant
Option Securities, as the case may be, either the Representative(s) or the
Company shall have the right to postpone the Closing Time or the relevant Date
of Delivery, as the case may be, for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriters shall be directed to the Representative(s) at North Tower,
World Financial Center, New York, New York 10281-1201, attention of ▇▇▇▇▇▇
▇▇▇▇▇▇; and notices to the Company shall be directed to it at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of Legal Department.
SECTION 12. Parties. This Agreement shall each inure to the
benefit of and be binding upon the Underwriters and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No
24
29
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13 GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
25
30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
ORBITAL SCIENCES CORPORATION
By
--------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇.▇. ▇▇▇▇▇▇ & CO.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By
----------------------------------------------
Authorized Signatory
For themselves and as Representative(s) of the other Underwriters named in
Schedule A hereto.
26
31
SCHEDULE A
Name of Underwriter Number of
------------------- Initial
Securities
----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
▇.▇. ▇▇▇▇▇▇ Securities Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated . . . . . . . . . . . . . . . . . . . . . . . . .
-----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,750,000
=========
Schedule A-1
32
SCHEDULE B
ORBITAL SCIENCES CORPORATION
2,750,000 Shares of Common Stock
(Par Value $0.01 Per Share)
The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $ .
The purchase price per share for the Securities to be paid by the
several Underwriters shall be $ , being an amount equal to the initial
public offering price set forth above less $ per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial Securities but not payable on the Option
Securities.
Schedule B-1
33
SCHEDULE C
Percentage Direct
or Indirect Orbital
Ownership Interest*
-------------------
Orbital Communications Corporation, a Delaware corporation 98.9/83.8%**
ORBCOMM USA, L.P., a Delaware limited partnership 51.0/42.7
Orbital Services Corporation, a Delaware corporation 100.0
Magellan DIS, Inc., a Delaware corporation 67.5/57.9**
Magellan Corporation, a Delaware corporation, doing business as
Magellan Systems Corporation 67.5/57.9**
Magellan Sistemas de Mexico, a Mexican corporation 67.5/57.9**
Magellan Foreign Sales Corp., a Barbados corporation 67.5/57.9**
Ashtech A/O, a Russian company 67.5/57.9**
Ashtech Europe Limited, a United Kingdom company 67.5/57.9**
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Holdings Inc., a Canadian corporation 100.0
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and Associates Ltd., a Canadian corporation 100.0
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Technologies Ltd., a British Columbia corporation 100.0
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Pty Ltd., an Australian corporation 100.0
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Technologies Inc., a Delaware corporation 100.0
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Limited, a United Kingdom corporation 100.0
MDA Services Ltd., a Canadian corporation 100.0
Triathlon Mapping Corporation, a British Columbia corporation 100.0
Earth Observation Sciences Ltd., a United Kingdom corporation 100.0
Iotek, Inc., a Nova Scotia corporation 100.0
▇▇▇▇ Mapping Group Inc., a Washington corporation 100.0
Orbital Commercial Systems, Inc., a Virginia corporation 100.0
Orbital International, Inc., a Virginia corporation 100.0
Orbital International Services, Inc., a Virginia corporation 100.0
Orbital International Asia, Ltd., a British West Indies corporation 100.0
Engineering Technologies, Inc., a Virginia corporation 100.0
Orbital Space Systems, Inc., a Virginia corporation 100.0
--------------------
* Percentage ownership as it applies to ORBCOMM (as defined in this
Agreement): 49.5/41.9; ORBIMAGE (as defined in this Agreement): 63/58;
(which entities are not deemed subsidiaries for purposes of this
Agreement).
** Fully diluted basis
Schedule C-1
34
SCHEDULE D(1)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
(1) List is subject to review by Representatives.
Schedule D-1
35
Exhibit A-1
FORM OF OPINION OF ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Exhibit A-1-1
36
April ___, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇ ▇▇▇▇▇▇ & CO.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
This firm has acted as counsel to Orbital Sciences
Corporation, a Delaware corporation (the "Company"), in connection with the
issuance and sale by the Company of certain shares of Common Stock, par value of
$0.01 per share (the "Shares"), pursuant to the terms of the Purchase Agreement
dated April __, 1998 (the "Purchase Agreement") among each of you and the
Company. This opinion letter is furnished to you pursuant to the requirements
set forth in Section 5(b) of the Purchase Agreement in connection with the
Closing thereunder on the date hereof. All capitalized terms used herein shall
have the meanings set forth in the Purchase Agreement, unless otherwise defined
herein.
For purposes of the opinions expressed in this letter, which
are set forth in Paragraphs (a) through (p) below (the "Opinions"), we have
examined copies of the following documents:
1. Executed copy of the Purchase Agreement.
2. The Registration Statement on Form S-3 (No.
333-48679), as amended by Amendment Nos. 1 and 2
thereto (the "Registration Statement").
37
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 2
3. The final Prospectus dated April __, 1998, as filed
pursuant to Rule 424(b)(_) under the Securities Act
(the "Prospectus").
4. Memorandum to file regarding telephonic confirmation
from the staff of the Securities and Exchange
Commission (the "Commission") of the effectiveness of
the Registration Statement.
5. A copy of the specimen certificate for the Shares to
be issued pursuant to the Purchase Agreement.
6. The Restated Certificate of Incorporation of the
Company, as amended, as certified by the Secretary of
State of the State of Delaware on April 7, 1998 and
as certified by an Assistant Secretary of the Company
on the date hereof as being complete, accurate and in
effect (the "Company's Certificate of
Incorporation").
7. The Bylaws of the Company, as amended, as certified
by an Assistant Secretary of the Company on the date
hereof as being complete, accurate and in effect.
8. A certificate of good standing of the Company issued
by the Secretary of State of the State of Delaware on
the date hereof.
9. Foreign qualification certificates of the Company
issued by the Virginia State Corporation Commission,
the Maryland State Department of Assessments and
Taxation and the Secretaries of State of the States
of Alabama, Arizona, California, Florida, New Mexico
and West Virginia, dated April 7, 1998, April 8, 1998
or April 9, 1998, as applicable.
10. Certain resolutions of the Board of Directors of the
Company adopted at a meeting held on March 24, 1998
and resolutions of
38
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 3
the Pricing Committee of the Board of Directors
adopted at a meeting held on April___, 1998, in each
case as certified by an Assistant Secretary of the
Company on the date hereof as being complete,
accurate and in effect, relating to authorization of
the Purchase Agreement and arrangements in connection
therewith.
11. Certain resolutions of the Board of Directors of the
Company relating to prior stock issuances, as
certified by an Assistant Secretary of the Company on
the date hereof as being complete, accurate and in
effect.
12. The Amended and Restated Certificate of Incorporation
of Magellan Corporation ("Magellan"), as amended, as
certified by the Secretary of State of the State of
Delaware on April 7, 1998 and as certified by an
Assistant Secretary of Magellan on the date hereof as
being complete, accurate and in effect.
13. The Bylaws of Magellan, as certified by an Assistant
Secretary of Magellan on the date hereof as being
complete, accurate and in effect.
14. A certificate of good standing of Magellan issued by
the Secretary of State of the State of Delaware on
the date hereof.
15. A foreign qualification certificate of Magellan
(doing business as Magellan Systems Corporation)
issued by the Secretary of State of the State of
California dated April 7, 1998.
16. Certain resolutions of the Board of Directors of
Magellan relating to prior stock issuances and the
stock record books of Magellan, as certified by an
Assistant Secretary of Magellan on the date hereof as
being complete, accurate and in effect.
39
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 4
17. The Corrected Certificate of Incorporation of
Magellan DIS, Inc. ("Magellan DIS"), as certified by
the Secretary of State of the State of Delaware on
April 7, 1998 and as certified by the Secretary of
Magellan DIS on the date hereof as being complete,
accurate and in effect.
18. The Bylaws of Magellan DIS, as certified by an
Assistant Secretary of Magellan DIS on the date
hereof as being complete, accurate and in effect.
19. A certificate of good standing of Magellan DIS issued
by the Secretary of State of the State of Delaware on
the date hereof.
20. Foreign qualification certificates of Magellan DIS
issued by the Secretaries of State of the States of
Michigan and Texas, each dated April 7, 1998.
21. Certain resolutions of the Board of Directors of
Magellan DIS relating to prior stock issuances and
the stock record books of Magellan DIS, as certified
by an Assistant Secretary of Magellan DIS on the date
hereof as being complete, accurate and in effect.
22. The Certificate of Incorporation of Orbital
Communications Corporation ("OCC"), as amended, as
certified by the Secretary of State of the State of
Delaware on April 7, 1998 and as certified by an
Assistant Secretary of OCC on the date hereof as
being complete, accurate and in effect.
23. The Bylaws of OCC, as certified by an Assistant
Secretary of OCC on the date hereof as being
complete, accurate and in effect.
24. A certificate of good standing of OCC issued by the
Secretary of State of the State of Delaware on the
date hereof.
40
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 5
25. Foreign qualification certificates of OCC issued by
the Virginia State Corporation Commission and the
Secretary of State of the State of Arizona, dated
April , 1998 and April 7, 1998, respectively.
26. Certain resolutions of the Board of Directors of OCC
relating to prior stock issuances and the stock
record books of OCC, as certified by an Assistant
Secretary of OCC on the date hereof as being
complete, accurate and in effect.
27. The Certificate of Limited Partnership of ORBCOMM
USA, L.P. ("ORBCOMM USA"), as amended, as certified
by the Secretary of State of the State of Delaware on
April 7, 1998 and as certified by an Assistant
Secretary of OCC, as a general partner of ORBCOMM
Global, L.P. ("ORBCOMM Global"), which is a general
partner of ORBCOMM USA, on the date hereof as being
complete, accurate and in effect.
28. The Restated Agreement of Limited Partnership of
ORBCOMM USA (the "ORBCOMM Partnership Agreement"), as
certified by an Assistant Secretary of OCC, as a
general partner of ORBCOMM Global, on the date hereof
as being complete, accurate and in effect.
29. A certificate of good standing of ORBCOMM USA issued
by the Secretary of State of the State of Delaware on
the date hereof.
30. A foreign qualification certificate of ORBCOMM USA
issued by the Virginia State Corporation Commission
dated April 8, 1998.
31. The Articles of Incorporation of Engineering
Technologies, Inc. ("Engineering Technologies"), as
amended, as certified by the Virginia State
Corporation Commission on April 8, 1998 and as
41
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 6
certified by an Assistant Secretary of Engineering
Technologies on the date hereof as being complete,
accurate and in effect.
32. The Bylaws of Engineering Technologies, as certified
by an Assistant Secretary of Engineering Technologies
on the date hereof as being complete, accurate and in
effect.
33. A certificate of good standing of Engineering
Technologies issued by the Virginia State Corporation
Commission dated April 8, 1998 and telephonic
confirmation of such good standing received on the
date hereof.
34. Certain resolutions of the Board of Directors of
Engineering Technologies relating to prior stock
issuances and the stock record books of Engineering
Technologies, as certified by an Assistant Secretary
of Engineering Technologies on the date hereof as
being complete, accurate and in effect.
35. The Articles of Incorporation of Orbital Space
Systems, Inc. ("OSS"), as amended, as certified by
the Virginia State Corporation Commission on April 8,
1998 and as certified by an Assistant Secretary of
OSS on the date hereof as being complete, accurate
and in effect.
36. The Bylaws of OSS, as certified by an Assistant
Secretary of OSS on the date hereof as being
complete, accurate and in effect.
37. A certificate of good standing of OSS issued by the
Virginia State Corporation Commission dated April 8,
1998 and telephonic confirmation of such good
standing received on the date hereof.
38. Certain resolutions of the Board of Directors of OSS
relating to prior stock issuances and the stock
record books of OSS, as
42
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 7
certified by an Assistant Secretary of OSS on the
date hereof as being complete, accurate and in
effect.
39. The Articles of Incorporation of Orbital Commercial
Systems, Inc. ("OCS"), as amended, as certified by
the Virginia State Corporation Commission on April 8,
1998 and as certified by an Assistant Secretary of
OCS on the date hereof as being complete, accurate
and in effect.
40. The Bylaws of OCS, as certified by the Secretary of
OCS on the date hereof as being complete, accurate
and in effect.
41. A certificate of good standing of OCS issued by the
Virginia State Corporation Commission dated April 8,
1998 and telephonic confirmation of such good
standing received on the date hereof.
42. Certain resolutions of the Board of Directors of OCS
relating to prior stock issuances and the stock
record books of OCS, as certified by an Assistant
Secretary of OCS on the date hereof as being
complete, accurate and in effect.
43. The Articles of Incorporation of Orbital
International, Inc. ("Orbital International"), as
amended, as certified by the Virginia State
Corporation Commission on April 8, 1998 and as
certified by an Assistant Secretary of Orbital
International on the date hereof as being complete,
accurate and in effect.
44. The Bylaws of Orbital International, as certified by
an Assistant Secretary of Orbital International on
the date hereof as being complete, accurate and in
effect.
45. A certificate of good standing of Orbital
International issued by the Virginia State
Corporation Commission dated April 8, 1998
43
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 8
and telephonic confirmation of such good standing
received on the date hereof.
46. Certain resolutions of the Board of Directors of
Orbital International relating to prior stock
issuances and the stock record books of Orbital
International, as certified by an Assistant Secretary
of Orbital International on the date hereof as being
complete, accurate and in effect.
47. The Articles of Incorporation of Orbital
International Services, Inc. ("International
Services"), as amended, as certified by the Virginia
State Corporation Commission on April 8, 1998 and as
certified by an Assistant Secretary of International
Services on the date hereof as being complete,
accurate and in effect.
48. The Bylaws of International Services, as certified by
an Assistant Secretary of International Services on
the date hereof as being complete, accurate and in
effect.
49. A certificate of good standing of International
Services issued by the Virginia State Corporation
Commission dated April 8, 1998 and telephonic
confirmation of such good standing received on the
date hereof.
50. Certain resolutions of the Board of Directors of
International Services relating to prior stock
issuances and the stock record books of International
Services, as certified by an Assistant Secretary of
International Services on the date hereof as being
complete, accurate and in effect.
51. The Certificate of Limited Partnership of ORBCOMM
Global, as amended, as certified by the Secretary of
State of the State of Delaware on April 7, 1998 and
as certified by the Secretary of
44
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 9
OCC, as a general partner of ORBCOMM Global, on the
date hereof as being complete, accurate and in
effect.
52. The Restated Agreement of Limited Partnership of
ORBCOMM Global, as amended, as certified by the
Secretary of OCC, as a general partner of ORBCOMM
Global, on the date hereof as being complete,
accurate and in effect.
53. The Amended and Restated Certificate of Incorporation
of Orbital Imaging Corporation ("ORBIMAGE"), as
certified by the Secretary of State of the State of
Delaware on April 7, 1998 and as certified by the
Secretary of ORBIMAGE on the date hereof as being
complete, accurate and in effect.
54. The Amended and Restated Bylaws of ORBIMAGE, as
certified by the Secretary of ORBIMAGE on the date
hereof as being complete, accurate and in effect.
55. The [Articles of Arrangement] of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Holdings Inc. ("MD Holdings"), as certified by the
[Secretary] of MD Holdings on the date hereof as
being complete, accurate and in effect.
56. The Bylaws of MD Holdings, as certified by the
[Secretary] of MD Holdings on the date hereof as
being complete, accurate and in effect.
57. The [Articles of Incorporation] of ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ and Associates Ltd. ("MDA"), as certified
by the [Secretary] of MDA on the date hereof as being
complete, accurate and in effect.
58. The Bylaws of MDA, as certified by the [Secretary] of
MDA on the date hereof as being complete, accurate
and in effect.
45
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 10
59. Certain agreements and contracts to which the
Company, any of the Subsidiaries (as hereinafter
defined), MD Holdings or MDA is a party filed as an
exhibit to the Company's Annual Report on Form 10-K
for the Fiscal Year Ended December 31, 1997
(collectively, the "Material Contracts").
60. A certificate of an Assistant Secretary of the
Company, dated as of the date hereof, as to the
incumbency and signatures of certain officers of the
Company.
61. A certificate of certain officers of the Company,
dated as of the date hereof, as to certain facts
relating to the Company and the Subsidiaries.
62. A certificate of certain officers of MD Holdings and
MDA as to certain facts relating to MD Holdings and
MDA.
Magellan, Magellan DIS, OCC, ORBCOMM USA, Engineering
Technologies, OSS, OCS, Orbital International and International Services are
sometimes hereinafter referred to collectively as the "Subsidiaries."
For purposes of rendering the Opinions, we have not, except as
specifically identified above, made any independent review or investigation of
factual or other matters, including the organization, existence, good standing,
assets, business or affairs of the Company, any of the Subsidiaries, MD Holdings
or MDA. In our examination of the Purchase Agreement and the aforesaid
certificates, records, documents and agreements, we have assumed the genuineness
of all signatures (other than those on behalf of the Company on the Purchase
Agreement), the legal capacity of all natural persons, the authenticity of all
original documents and the conformity to authentic original documents of all
documents submitted to us as copies (including telecopies). We also have assumed
the authenticity, accuracy and completeness of the foregoing certifications (of
public officials, governmental agencies and departments, corporate officers and
individuals) and statements of fact, on which we are relying, and have made no
independent investigations thereof.
46
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 11
In rendering the Opinions we have relied as to factual matters, without
independent investigation, upon the representations, warranties and
certifications made by the Company in or pursuant to the Purchase Agreement and
upon the officers' certificates identified in Paragraphs 60, 61 and 62 above.
The Opinions are given in the context of the foregoing.
As used in this opinion letter, the phrase "to our knowledge"
means the actual knowledge (that is, the conscious awareness of facts or other
information) of lawyers in the firm who have given substantive legal attention
to representing the Company in connection with corporate law matters.
Nothing herein shall be construed to cause us to be considered
"experts" within the meaning of Section 11 of the Securities Act of 1933, as
amended.
The Opinions are based as to matters of law solely on
applicable provisions of (i) federal securities statutes and regulations, (ii)
the General Corporation Law of the State of Delaware, as amended (the "Delaware
Corporation Law"), (iii) the Delaware Revised Uniform Limited Partnership Act,
as amended (the "Delaware Limited Partnership Act"), (iv) the Virginia Stock
Corporation Act, as amended (the "Virginia Corporation Act") and (v) New York
law (but not including any statutes, ordinances, administrative decisions, rules
or regulations of any political subdivision of the State of New York), and we
express no opinion as to any other laws, statutes, ordinances, rules or
regulations (such as state securities or "blue sky" laws or federal or state
communications laws); it being understood that, with respect to clauses (i) and
(v) above, the Opinions are based upon our review of those laws, statutes and
regulations that, in our experience, are normally applicable to the transactions
contemplated in the Purchase Agreement. The Opinions expressed in Paragraphs (b)
and (d) below as to the authorization of the Company and certain of the
Subsidiaries to transact business as foreign corporations or limited
partnerships, as the case may be, in any jurisdiction other than the
Commonwealth of Virginia are based solely upon a review of the certificates
issued by governmental officials referred to in such Paragraphs. We note that
MDA and MD Holdings are Canadian corporations and, for purposes of the Opinions
47
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 12
regarding MDA and MD Holdings, we have assumed that the relevant laws of Canada
are the same in substance as the Delaware Corporation Law.
Based upon, subject to and limited by the foregoing, we are of
the opinion that:
(a) The Company was incorporated, and is validly existing and
in good standing under the laws of the State of Delaware. The Company has the
corporate power and corporate authority to own, lease and operate its current
properties and to conduct its business as described in the Prospectus.
(b) The Company is authorized to transact business as a
foreign corporation in the Commonwealth of Virginia and the States of Maryland,
Alabama, Arizona, California, Florida, New Mexico and West Virginia as of the
respective dates of the certificates specified in Paragraph 9 above and is in
good standing as of such dates to the extent so stated in such certificates.
(c) The authorized capital stock of the Company, as of
December 31, 1997, was as set forth under the caption "Capitalization" in the
Prospectus. All shares of Common Stock shown as issued and outstanding under
such caption have been duly authorized and are validly issued, fully paid and
nonassessable, and were not issued in violation of (i) any preemptive rights
under the Company's Certificate of Incorporation or the Delaware Corporation Law
or (ii) to our knowledge, similar contractual rights.
(d) Each of Magellan, Magellan DIS and OCC was incorporated,
and is validly existing and in good standing under the laws of the State of
Delaware, and has the corporate power and corporate authority to own, lease and
operate its current properties and to conduct its business as described in the
Prospectus. Each of Magellan, Magellan DIS and OCC is authorized to transact
business as a foreign corporation in each jurisdiction identified in Paragraphs
15, 20 and 25 above, respectively, as of the respective dates of the
certificates specified in such Paragraphs and is in good standing as of such
dates to the extent so stated in such certificates.
48
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 13
(e) All of the outstanding shares of capital stock of each of
Magellan, Magellan DIS and OCC (i) have been duly authorized and are validly
issued, fully paid and nonassessable, and (ii) to our knowledge, were not issued
in violation of any preemptive rights under such Subsidiary's certificate of
incorporation or under the Delaware Corporation Law or in violation of any
similar contractual rights.
(f) Each of Engineering Technologies, OSS, OCS, Orbital
International and International Services was incorporated, and is validly
existing and in good standing under the laws of the Commonwealth of Virginia,
and has the corporate power and corporate authority to own, lease and operate
its current properties and to conduct its business as described in the
Prospectus.
(g) All of the outstanding shares of capital stock of each of
Engineering Technologies, OSS, OCS, Orbital International and International
Services (i) have been duly authorized and are validly issued, fully paid and
nonassessable, and (ii) to our knowledge, were not issued in violation of any
preemptive rights under such Subsidiary's articles of incorporation or under the
Virginia Corporation Act or in violation of any similar contractual rights.
(h) ORBCOMM USA is a limited partnership formed, validly
existing and in good standing under the laws of the State of Delaware, and has
the limited partnership power and limited partnership authority to own, lease
and operate its current properties and to conduct its business as described in
the Prospectus. ORBCOMM USA is authorized to transact business as a foreign
limited partnership in the Commonwealth of Virginia as of the date of the
certificate specified in Paragraph 30 above. The partnership interests of OCC
and ORBCOMM Global in ORBCOMM USA have been authorized for issuance, are validly
issued and are fully paid.
(i) The Company has the corporate power and corporate
authority to execute and deliver the Purchase Agreement and to perform its
obligations thereunder. The Purchase Agreement has been duly authorized,
executed, and delivered on behalf of the Company.
49
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 14
(j) The Shares have been duly authorized and, when issued in
accordance with the provisions of the Purchase Agreement, will be validly
issued, fully paid and non-assessable. No holder of outstanding shares of Common
Stock of the Company has any preemptive right under the Delaware Corporation Law
or under the Company's Certificate of Incorporation or Bylaws or, to our
knowledge, any contractual right, to subscribe for any of the Shares. Under
Section 102(b) of the Delaware Corporation Law, no holder of the Shares is
subject to personal liability for the payment of the Company's debts except by
reason of such holder's own conduct or acts. The form of certificate used to
evidence the Shares complies in all material respects with any applicable
requirements of the Delaware Corporation Law and the Company's Certificate of
Incorporation and Bylaws.
(k) The Registration Statement has been declared effective
under the Securities Act, the required filings of the Prospectus pursuant to
Rule 424(b) promulgated pursuant to the 1933 Act have been made in the manner
and within the time period required by Rule 424(b) and, to our knowledge, no
stop order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are threatened by the Commission.
(l) The Registration Statement and the Prospectus, excluding
the documents incorporated by reference therein, as of their respective
effective or issue dates (except for the financial statements and supporting
schedules included therein or omitted therefrom, as to which we express no
opinion), complied as to form in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations. The documents incorporated by
reference in the Prospectus (except for the financial statements and supporting
schedules included therein or omitted therefrom, as to which we express no
opinion), when they were filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations.
(m) The information in the Prospectus under the caption
"Description of Capital Stock," to the extent that such information constitutes
matters of law or legal conclusions, has been reviewed by us, and is correct in
all
50
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 15
material respects. The Common Stock conforms in all material respects to the
description thereof set forth in the Prospectus under the caption "Description
of Capital Stock -- Common Stock."
(n) The execution, delivery and performance as of the date
hereof by the Company of the Purchase Agreement and the consummation of the
transactions contemplated in the Purchase Agreement, including the issuance and
sale of the Shares and the use of the proceeds from the sale of the Shares as
described in the Prospectus under the caption "Use of Proceeds," do not (i)
violate the Company's Certificate of Incorporation or its Bylaws, the
certificates or articles of incorporation, bylaws, certificate of limited
partnership or limited partnership agreement, as applicable, of any of the
Subsidiaries, ORBIMAGE's certificate of incorporation, ORBIMAGE's bylaws,
ORBCOMM Global's certificate of limited partnership, ORBCOMM Global's limited
partnership agreement, MDA's [articles of incorporation] or bylaws, MD Holdings'
[articles of arrangement] or bylaws, or the Delaware Corporation Law, the
Delaware Limited Partnership Act or the Virginia Corporation Act, as applicable,
(ii) to our knowledge, violate any order, judgment, decree or arbitration award
binding upon the Company, any of the Subsidiaries, MDA or MD Holdings, (iii)
whether with or without the giving of notice or lapse of time or both, breach or
constitute a default or a Repayment Event under any Material Contract or (iv)
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company, any of the Subsidiaries, MDA or MD Holdings
pursuant to any Material Contract. No approval or consent of, or registration or
filing with, any federal (except as to (i) federal securities laws, as to which
we express no opinion in this Paragraph and (ii) federal communications laws),
Delaware, Virginia or New York governmental agency is required to be obtained or
made by the Company in connection with the execution, delivery and performance
as of the date hereof by the Company of the Purchase Agreement.
(o) The Company is not, and immediately after giving effect to
the issuance and sale of the Shares (assuming the application of the proceeds
therefrom in accordance with the statements in the Registration Statement and
Prospectus under the caption "Use of Proceeds") will not be, required to be
registered as an "investment company" under the 1940 Act.
51
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 16
(p) To our knowledge, the Company or a Subsidiary owns of
record the interests in the Subsidiaries, ORBIMAGE and ORBCOMM Global set forth
on Schedule C to the Purchase Agreement free and clear of security interests,
claims, liens or similar encumbrances. To our knowledge, the shares of MD
Holdings owned of record by the Company as set forth on such Schedule C are free
and clear of security interests, claims, liens or similar encumbrances.
* * * * *
During the course of the preparation of the Registration
Statement, we participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants of the Company and with you and your representatives. While we have
not undertaken to determine independently, and we do not assume any
responsibility for, the accuracy, completeness, or fairness of the statements in
the Registration Statement or Prospectus (except to the extent set forth in
Paragraph (m) above), we may state on the basis of these conferences and our
activities as counsel to the Company in connection with the Registration
Statement that no facts have come to our attention which cause us to believe
that (i) the Registration Statement, at the time it became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus, as of its date or the date
hereof, contained or contains an untrue statement of material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, (ii) there are any legal or governmental proceedings pending or
threatened against the Company or any of the Subsidiaries that are required to
be disclosed in the Registration Statement or the Prospectus, other than those
disclosed therein, or (iii) there are any contracts or documents of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not described or
referred to therein or so filed;
52
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇ ▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
April __, 1998
Page 17
provided that in making the foregoing statements (which shall not constitute an
opinion), we are not expressing any views as to the financial statements and
supporting schedules and other financial information and data included in or
omitted from the Registration Statement or the Prospectus and provided further,
that any statement contained in any documents incorporated by reference in the
Registration Statement or the Prospectus shall be deemed to be modified or
superseded to the extent that a statement contained in the Registration
Statement or the Prospectus, as the case may be, modifies or supersedes such
statement. Any statement as modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of the Registration Statement
or the Prospectus.
* * * * *
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion letter
has been prepared solely for your use in connection with the Closing under the
Purchase Agreement on the date hereof, and should not be quoted in whole or in
part or otherwise be referred to, nor be filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this firm.
Very truly yours,
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
53
Exhibit A-2
FORM OF OPINION OF FARRIS, VAUGHN, ▇▇▇▇▇ & ▇▇▇▇▇▇
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Each of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and Associates Ltd. ("MDA") and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Holdings Inc. ("MDHoldings") is a corporation duly
organized and validly existing under the laws of Canada, and is in good
standing with respect to the filing of annual returns and financial statements
under the Canadian Business Corporations Act and is duly qualified as a foreign
corporation to transact business and is in good standing in each Canadian
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect. Each of MDA and MDHoldings has all necessary corporate power
and authority to own, lease and operate its properties and to carry on its
business as described in the Prospectus.
All of the issued and outstanding capital stock of each of MDA and
MDHoldings has been duly authorized and validly issued, is fully paid and
non-assessable.(1)
------------------------------
(1) Please note that the revisions to the form of Canadian counsel's
opinion letter reflected on this blackline are subject to agreement
that the removed opinions will be delivered, with respect to MDA and
MDHoldings, by the Company's internal counsel or ▇▇▇▇▇ & ▇▇▇▇▇▇▇.
Exhibit A-2-1
54
Exhibit A-3
FORM OF OPINION OF HALPRIN, TEMPLE, ▇▇▇▇▇▇▇ & SURGRUE
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
The information in the Prospectus under "Business--Regulation" and in
the Company's annual report on Form 10-K filed with the Commission on March 26,
1998 under "Business--Regulation", to the extent that it constitutes matters of
law, summaries of legal matters or legal proceedings, or legal conclusions, has
been reviewed by us and is correct in all material respects.
All descriptions in the Registration Statement of the status of
regulatory and licensing matters are accurate in all material respects.
Exhibit A-3-1
55
Exhibit A-4
FORM OF OPINION OF INTERNAL COUNSEL FOR ORBCOMM GLOBAL L.P.
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
ORBCOMM has been duly organized and is validly existing as a limited
partnership in good standing under the laws of the State of Delaware, has
limited partnership power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign limited partnership to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect.
All of the partnership interests in ORBCOMM (i) have been duly
authorized and validly issued, are fully paid and nonassessable and (ii) to our
knowledge, are owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity (except as disclosed in
the Prospectus) and were not issued in violation of the preemptive or similar
rights of any partner in ORBCOMM.
To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which ORBCOMM is a
party, or to which the property of ORBCOMM is subject, before or brought by any
court or governmental agency or body, domestic or foreign, which might
reasonably be expected to result, singly or in the aggregate, in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets of ORBCOMM or the consummation of the
transactions contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder.
To the best of my knowledge, ORBCOMM is not in violation of its
charter or by-laws and no default by ORBCOMM exists in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement.
Exhibit A-4-1
56
Exhibit A-5
FORM OF OPINION OF INTERNAL COUNSEL FOR ORBITAL IMAGING CORPORATION
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
ORBIMAGE has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect. ORBIMAGE has corporate power and
corporate authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus.
All of the issued and outstanding capital stock of ORBIMAGE (i) has
been duly authorized and validly issued, is fully paid and non-assessable and
(ii) to our knowledge, is owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity (except as
disclosed in the Prospectus), and was not issued in violation of the preemptive
or similar rights of any securityholder of ORBIMAGE.
To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which ORBIMAGE is a
party, or to which the property of ORBIMAGE is subject, before or brought by
any court or governmental agency or body, domestic or foreign, which might
reasonably be expected to result, singly or in the aggregate, in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets of ORBIMAGE or the consummation of
the transactions contemplated in the Purchase Agreement or the performance by
the Company of its obligations thereunder.
To the best of my knowledge, ORBIMAGE is not in violation of its
charter or by-laws and no default by ORBIMAGE exists in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement.
Exhibit A-5-1
57
Exhibit A-6
FORM OF OPINION OF INTERNAL COUNSEL FOR THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
To the best of our knowledge, neither the Company nor any subsidiary is
in violation of its charter or by-laws and no default by the Company or any
subsidiary exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described in the Registration Statement or the Prospectus or
filed or incorporated by reference as an exhibit to the Registration Statement.
Exhibit A-5-1
58
FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS PURSUANT TO
SECTION 5(I)
Exhibit B
April [14], 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
▇.▇. ▇▇▇▇▇▇ & CO.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
as Representative(s) of the several Underwriters
to be named in the within-mentioned
Purchase Agreement
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Proposed Public Offering by Orbital Sciences Corporation
Dear Sirs:
The undersigned, a stockholder and an officer and/or director of
Orbital Sciences Corporation, a Delaware corporation (the "Company"),
understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇. ▇. ▇▇▇▇▇▇ & Co., ▇.▇. ▇▇▇▇▇▇ Securities Inc.
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. propose to enter into a
Purchase Agreement (the "Purchase Agreement") with the Company providing for
the public offering of shares (the "Securities") of the Company's common stock,
par value $0.01 per share (the "Common Stock"). In recognition of the benefit
that such an offering will confer upon the undersigned as a stockholder and an
officer and/or director of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the undersigned agrees with each underwriter to be named in the Purchase
Agreement that, during a period of 90 days from the date of the Purchase
Agreement (the "Lock-Up Period"), the undersigned will not, without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant for the sale of,
or otherwise dispose of or transfer any shares of the Company's Common Stock or
any securities convertible into or exchangeable or exercisable for Common Stock
(collectively, "Transfer"), whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires
the power of
Exhibit B-1
59
disposition, or file any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction is to be settled by delivery
of Common Stock or other securities, in cash or otherwise; provided, however,
that nothing contained in this letter will prohibit the Transfer by the
undersigned of up to 10,000 shares of Common Stock during the Lock-Up Period or
the Transfer of any stock options (and underlying shares of Common Stock) that
expire during the Lock-Up Period.
Very truly yours,
Signature:
----------------------
Print Name:
----------------------
Exhibit B-2
60
Annex A
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)
We are independent certified public accountants with respect to the Company and
ORBCOMM within the meaning of the 1933 Act and the applicable published 1933
Act Regulations.
(i) in our opinion, the audited financial statements and
the related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the minutes of all meetings of the stockholders and
directors of the Company and the audit and finance, strategy and
technology and human resources and nominating Committees of the
Company's Board of Directors, inquiries of certain officials of the
Company responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to our attention that caused us to believe that:
(A) at a specified date not more than five days
prior to the date of this Agreement, there was any change
in the capital stock of the Company and its subsidiaries
or any decrease in the net current assets or
stockholders' equity of the Company or any increase in
the long-term debt of the Company and its subsidiaries,
in each case as compared with amounts shown in the latest
balance sheet included in the Registration Statement,
except in each case for changes, decreases or increases
that the Registration Statement discloses have occurred
or may occur; or
(B) for the period from January 1, 1998 to a
specified date not more than five days prior to the date
of this Agreement, there was any decrease in the
Company's revenues, operating income, gross profit, net
income before income taxes or in the total or per share
amounts of income before extraordinary items or net
income, in each case as compared with the comparable
period in the preceding year, except in each case for any
decreases that the Registration Statement discloses have
occurred or may occur;
(iii) based upon the procedures set forth in clause (ii)
above and a reading of the "Selected Consolidated Financial Data" included in
the Registration Statement and a reading of the financial statements from which
such data were derived, nothing came to our attention that caused us to believe
that the "Selected Consolidated Financial Data" included in the Registration
Statement do not comply as to form in all material respects with the disclosure
requirements of Item 301 of Regulation S-K of the 1933 Act, that the amounts
included in the "Selected Consolidated Financial Data" are not in agreement
with the corresponding amounts in the audited consolidated financial statements
for the respective periods or that the financial statements not included in the
Registration
Annex A-1
61
Statement from which certain of such data were derived are not in conformity
with generally accepted accounting principles;
(iv) we have compared the information in the Registration
Statement under selected captions with the disclosure requirements of
Regulation S-K of the 1933 Act and, on the basis of limited procedures
specified herein, nothing came to our attention that caused us to believe that
this information does not comply as to form in all material respects with the
disclosure requirements of Items 302, 402 and 503(d), respectively, of
Regulation S-K; and
(v) in addition to the procedures referred to in clause
(ii) above, we have performed other procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information appearing in the Registration Statement or incorporated by
reference therein, which are specified herein, and have compared certain of
such items with, and have found such items to be in agreement with, the
accounting and financial records of the Company.
Annex A-2