REGISTRATION RIGHTS AGREEMENT Dated as of November 30, 2006 By SATÉLITES MEXICANOS, S.A. de C.V. for the benefit of CERTAIN HOLDERS OF BENEFICIAL INTERESTS IN THE IRREVOCABLE ADMINISTRATIVE TRUST AGREEMENT NO. F/0 589, DATED NOVEMBER 28, 2006
Dated as of November 30, 2006
By
SATÉLITES
MEXICANOS, S.A. de C.V.
for the benefit of
CERTAIN HOLDERS OF
BENEFICIAL INTERESTS IN THE IRREVOCABLE ADMINISTRATIVE TRUST
AGREEMENT NO. F/0 589, DATED NOVEMBER 28, 2006
AGREEMENT NO. F/0 589, DATED NOVEMBER 28, 2006
This Registration Rights Agreement (this “Agreement”) is dated as of November 30, 2006, by
SATÉLITES MEXICANOS, S.A. de C.V., a corporation (sociedad
anónima) duly organized and existing
under the laws of the United Mexican States (the “Company”), for the benefit of each of the Holders
of the Registrable Securities (as such terms are defined below).
RECITALS
WHEREAS, pursuant to the First Amended Chapter 11 Plan of Reorganization of the Company (the
“Chapter 11 Plan”), dated as of September 8, 2006, and the Order of the United States Bankruptcy
Court, Southern District of New York, confirming the Chapter 11 Plan, dated as of October 26, 2006,
the Company has issued the Underlying Satmex Shares (as defined below) to Deutsche ▇▇▇▇ ▇▇▇▇▇▇,
S.A., Institutiòn de Banca Múltiple, Division Fiduciaria, as the Equity Trust Trustee (as defined
below) under the Equity Trust Agreement (as defined below), for the benefit of (among others) the
Holders;
WHEREAS, the Agent (as defined below) has executed and delivered an Accession Instrument, pursuant
to which the Agent has become a party to the Equity Trust Agreement as a settlor and beneficiary
thereunder, as agent for (among others) the Holders;
WHEREAS, pursuant to the Equity Trust Agreement, the Equity Trust Trustee has issued one or more
global trust certificates (the “Global Trust Certificate”) representing the Trust Interests, in the
name of Cede & Co., as nominee for The Depository Trust Company (“DTC”), and has delivered the
Global Trust Certificate to the Agent as custodian thereof; and
WHEREAS, the Registrable Securities herein consist of all or a portion of the Trust Interests;
NOW, THEREFORE, in consideration of the mutual promises, covenants, agreements and conditions set
forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound, the parties agree as follows:
ARTICLE I.
Section 1. Definitions. For purposes of this Agreement:
“Additional Participant” shall have the meaning assigned to it in Section 2(c)(ii)
hereof.
“Additional Securities” shall have the meaning assigned to it in Section 2(c)(ii) hereof.
“Additional Underlying Satmex Shares” means any shares of the corporate capital of the Company
issued to or received by the Equity Trust Trustee in respect of the Underlying Satmex Shares,
whether by dividend, distribution, split, recapitalization, or pursuant to subscription.
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“Affiliate” means, with respect to any Person, (i) any other Person of which securities or
other ownership interests representing more than 50% of the voting interests are, at the time such
determination is being made, owned, Controlled or held, directly or indirectly, by such Person or
(ii) any other Person which, at the time such determination is being made, is Controlling,
Controlled by or under common Control with, such Person including, without limitation, any venture
capital fund now or hereafter existing that is Controlled by, or under common Control with, one or
more of the same general partners or managing members as such Person or shares the same management
company with such Person. As used herein, “Control”, whether used as a noun or verb, refers to the
possession, directly or indirectly, of the power to direct, or cause the direction of, the
management or policies of a Person, whether through the ownership of voting securities or
otherwise.
“Agent” means The Bank of New York and any successor as agent under the Equity Trust Agreement.
“Assumed Value” means (i) $150,000,000 (being the assumed value of the Underlying Satmex Shares
solely for purposes of Section 3 hereof), multiplied by (ii) a fraction, the numerator of
which is the aggregate number of Underlying Satmex Shares corresponding to the Registrable
Securities included or required to be included in a Registration Statement and the denominator of
which is the aggregate number of Underlying Satmex Shares.
“Bankruptcy
Code” means title 11, United States Code, as amended
from time to time
“Board” means the board of directors of the Company.
“Chapter 11 Plan” shall have the meaning assigned to it in the Recitals.
“Claim” shall have the meaning assigned to it in Section 6(a) hereof.
“Common Stock” means shares of the corporate capital of the Company.
“Company
Indemnified Parties” shall have the meaning assigned to
it in Section 6(b) hereof.
“Delay Fee” shall have the meaning assigned to it in Section 3(a) hereof.
“Delay
Fee Payment Date” shall have the meaning assigned to it
in Section 3(b) hereof.
“Demand Request” shall have the meaning assigned to it in Section 2(a) hereof.
“DTC” shall have the meaning assigned to it in the Recitals.
“Equity
Trust” means the trust established pursuant to the
Equity Trust Agreement.
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“Equity Trust Agreement” means the Irrevocable Administrative Trust Agreement No. F/0 589,
dated November 28, 2006 entered into by and between the Company, the Equity Trust Trustee, and the
other settlors and beneficiaries party thereto, as the same may be amended from time to time.
“Equity
Trust Trustee” means Deutsche ▇▇▇▇ ▇▇▇▇▇▇, S.A.,
Institutiòn de Banca Mùltiple, Division
Fiduciaria and any successor as the trustee under the Equity Trust Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended or any successor federal
statute in effect, and the rules and regulations of the SEC promulgated thereunder, all as the same
may be in effect from time to time.
“First Priority Notes” means the Company’s First Priority Senior Secured Notes due 2011, issued or
to be issued pursuant to the terms of the First Priority Senior Secured Notes Indenture, to the
extent such notes are subject to the exercise of piggyback rights under the First Priority Note
Registration Rights Agreement.
“First Priority Notes Registration Rights Agreement” means that certain Agreement of even date
herewith by the Company for the benefit of certain holders of First Priority Notes.
“First Priority Senior Secured Note Indenture” means the Indenture, dated as of November 30, 2006,
by and between the Company, as issuer, each of the guarantors named therein, and HSBC Bank USA,
National Association, as trustee, pursuant to which the First Priority Notes are being issued, as
amended, modified and/or supplemented from time to time in accordance with the terms thereof.
“Global Trust Certificate” shall have the meaning assigned to it in the Recitals.
“Holder” or “Holders” means a Person that (i) (A) together with its Affiliates, as of the date
hereof, is the beneficial owner of Registrable Securities that, directly or indirectly, represent
five percent (5%) or more of the Common Stock and is identified on Exhibit A attached
hereto or (B) at any time is a beneficial owner of Registrable Securities and has an officer or
employee that serves as, or such Person otherwise designates, a director or officer of the Company,
and (ii) at the time of giving a Demand Request or Participation Request hereunder, determines, in
the exercise of its reasonable discretion, that such Person (or such Person and/or its Affiliates)
cannot transfer such Registrable Securities without registration under the Securities Act (without
regard to whether an exemption from registration is available, other than pursuant to an exemption
under section 1145 of the Bankruptcy Code), together with any permitted transferee of such Person
under Section 9 hereof; provided, that, Schedule A shall be deemed to be updated
with the information provided in connection with a permitted transfer under Section 9.
“Holder Indemnified Parties” shall have the meaning assigned to it in Section 6(a) hereof.
“Indemnified Party” shall have the meaning assigned to it in Section 6(c) hereof.
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“Indemnifying
Party” shall have the meaning assigned to it in Section 6(c) hereof.
“Inspector” shall have the meaning assigned to it in Section 4(a)(ii) hereof.
“Losses”
shall have the meaning assigned to it in Section 6(a) hereof.
“Majority in Interest of the Participating Holders” shall have the meaning assigned to it in
Section 2(c)(i) hereof.
“NASD” means the National Association of Securities Dealers, Inc.
“Noteholder Registration Rights Agreement” means that certain agreement of even date herewith by
the Company for the benefit of certain holders of Second Priority Notes.
“Participating Holders” means Holders participating, or electing to participate, in an offering of
Registrable Securities pursuant to this Agreement.
“Participation Request” shall have the meaning assigned to it in Section 2(a)(i).
“Person” means any individual, firm, corporation, company, partnership, trust, incorporated or
unincorporated association, limited liability company, joint venture, joint stock company,
government (or an agency or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of any such entity.
“Prospectus” means the prospectus included in any Registration Statement.
“Registrable Securities” means each Trust Interest; provided, however, that Trust Interests
considered to be Registrable Securities shall cease to be Registrable Securities (A) upon the sale
thereof pursuant to an effective registration statement, (B) upon the sale thereof pursuant to Rule
144 (or successor rule) under the Securities Act, (C) when such securities cease to be outstanding
or (D) in a private transaction where the transferor’s rights under this Agreement are not
assigned, or are improperly assigned, pursuant to the terms and conditions of this Agreement
provided, further, solely for purposes of Section 2(c)(ii), the term Registrable
Securities shall also include each First Priority Note and Second Priority Note.
“Registration
Default” shall have the meaning assigned to it in Section 3(a) hereof.
“Registration Expenses” mean all reasonable and documented expenses (other than any underwriting
discounts and commissions) arising from or incident to the performance hereof, or compliance
herewith, including, without limitation, (i) SEC, stock exchange, NASD and other registration and
filing fees, (ii) all fees and expenses incurred in connection with complying with any securities
or blue sky laws (including, without limitation, fees, charges and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) the fees, charges and disbursements of counsel to the Company
and of its independent public accountants and any other accounting and legal fees, charges and
expenses incurred by the Company (including,
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without limitation, any expenses arising from any special audits or “comfort letters” required in
connection with or incident to any registration), (v) the fees, charges and disbursements of any
advisors or special experts retained by the Company in connection with any registration pursuant to
the terms of this Agreement, (vi) all internal expenses of the Company (including, without
limitation, all salaries and expenses of its officers and employees performing legal or accounting
duties), (vii) the fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange or Nasdaq and (viii) Securities Act liability insurance (if
the Company elects to obtain such insurance), regardless of whether any Registration Statement
filed in connection with such registration is declared or otherwise becomes effective.
“Registration Expenses” shall also include fees, charges and disbursements of one (1) firm of U.S.
counsel to all of the Participating Holders and one (1) firm of Mexican counsel to all of the
Participating Holders; provided, however, that the Registration Expenses shall be in the
maximum amount of (a) $75,000 for fees and expenses incurred in connection with complying with blue
sky laws and (b) $125,000 for printing expenses.
“Registration Statement” means any registration statement of the Company or, if applicable, the
Equity Trust Trustee, filed with the SEC on the appropriate form pursuant to the Securities Act,
including without limitation, Form F-l (or Form F-3, if such form may be utilized by the Company),
which covers or may be required in connection with the registration of the Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all materials incorporated by reference therein.
“Requesting
Holders” shall have the meaning assigned to it in Section 2(a) hereof.
“Request Notice” shall have the meaning assigned to it in Section 2(a) hereof.
“SEC” or “Commission” means the United States Securities and Exchange Commission.
“Second Priority Notes” means the Second Priority Senior Secured Notes due 2013 issued by the
Company pursuant to the terms of the Second Priority Senior Secured Note Indenture.
“Second Priority Senior Secured Note Indenture” means the Indenture, dated as of November 30, 2006,
by and between the Company, as issuer, each of the guarantors named therein, and ▇▇▇▇▇ Fargo Bank,
National Association, as trustee, pursuant to which the Second Priority Notes are being issued, as
amended, modified and/or supplemented from time to time in accordance with the terms thereof.
“Securities Act” means the Securities Act of 1933, as amended, or any successor federal statute and
the rules and regulations of the Commission promulgated thereunder, as the same may be in effect
from time to time.
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“Selling Expenses” shall mean the underwriting fees, discounts, selling commissions and stock
transfer taxes applicable to all Registrable Securities registered by the Participating Holders.
“Series B Common Stock” means the Class II, Series B shares of the corporate capital of the
Company.
“Series N Common Stock” means the neutral investment Class II, Series N shares of the corporate
capital of the Company.
“Suspension
Period” shall have the meaning assigned to it in Section 2(d)(iv) hereof.
“Trust Interests” shall mean the beneficial interests in the Equity Trust evidenced by the Global
Trust Certificate that initially correspond to the Underlying Satmex Shares and, thereafter, to any
Additional Underlying Satmex Shares.
“Underlying Satmex Shares” means 7,166,667 shares of Class II, Series B shares and 29,395,833
shares of Class II, Series N shares, together with any additional shares that may from time to time
be represented by the Global Trust Certificate.
“Valid
Business Reason” shall have the meaning assigned to it in Section 2(d)(i) hereof.
Section 2.
Demand Registration.
(a) Request by Holders. If the Company receives at any time after the date that is
the six (6) month anniversary of the date of this Agreement a written request from Holders (the
“Requesting Holders”) that the Company register Registrable Securities held by such Requesting
Holders (a “Demand Request”), then the Company shall, within ten (10) days after receipt of such
Demand Request, give written notice of such request (“Request Notice”) to (A) all Holders, (B) the
Agent and (C) all Holders as defined in the Noteholder Registration Rights Agreement. Each Demand
Request shall (x) specify the number of the Registrable Securities that the Requesting Holders
intend to sell or dispose of, and (y) state the intended method or methods of sale or disposition
of such Registrable Securities. Following receipt of a Demand Request, the Company shall:
(i) cause to be filed or, if permitted by the Securities Act, confidentially submitted, within
sixty (60) days of the date of delivery to the Company of the first Demand Request and within
thirty (30) days of the date of delivery to the Company of any
second or third Demand Request (subject to Section 2(d)(ii) hereof), a Registration
Statement covering such Registrable Securities which the Company has been so requested to register
by the Requesting Holders and other Holders of Registrable Securities who request to the Company
that their Registrable Securities be registered within ten (10) days after such Request Notice is
deemed given to such Holders in accordance with Section 12 hereof (a “Participation
Request”), providing for the registration under the Securities Act of such Registrable Securities
to the extent necessary
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to permit the disposition of such Registrable Securities in accordance with the intended method of
distribution specified in such Demand Request;
(ii) use commercially reasonable efforts to have such Registration Statement declared or otherwise
become effective by the SEC as soon as practicable thereafter; and
(iii) to the extent required under the Securities Act, permit the Equity Trust Trustee and/or the
Agent to be co-registrants with respect to any such Registration Statement.
(b) Effective Registration Statement. A registration requested pursuant hereto shall
not be deemed to have been effected and the respective Demand Request shall be deemed to have not
been made for purposes of Section 2(d)(ii):
(i) unless a Registration Statement with respect to the Demand Request has become effective and
remained effective in compliance with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such Registration Statement until such time as
all of such Registrable Securities have been disposed of in accordance with the intended methods of
disposition by the Holders thereof set forth in such Registration Statement; provided that such
Registration Statement shall not be required to remain effective for more than seventy-five (75)
days; and
(ii) if, after it has become effective, such registration is interfered with by any stop order,
injunction or other order or requirement of the SEC or other governmental agency or court for any
reason and has not thereafter become effective, or if the offering of Registrable Securities is not
consummated for any reason.
(c) Selection of Underwriters; Priority for Demand Registrations.
(i) In the event that the Requesting Holders intend to distribute the Registrable Securities
covered by the Demand Request by means of an underwriting, they shall so advise the Company as part
of the Demand Request and the Company shall include such information in the Request Notice. The
managing underwriter for such underwriting shall be one or more reputable nationally recognized
investment banks selected by Participating Holders owning a majority of the Registrable Securities
included in such Registration Statement (a “Majority in Interest of the Participating Holders”)
subject to the approval of the Company, which approval shall not be unreasonably withheld, delayed
or conditioned. In such event, the right of any Holder to include such Holder’s Registrable
Securities in such registration shall be conditioned upon such Holder’s participation in such
underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the
extent provided in this Section 2(c). All Holders proposing to distribute their securities
through such underwriting shall enter into an underwriting agreement in customary form with the
underwriter(s) selected for such underwriting.
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(ii) Notwithstanding any other provision hereof, if the managing underwriter of an
underwritten public offering determines and advises the Participating Holders and the Company in
writing that the inclusion of all securities proposed to be included by the Company and any other
holders of Company securities requesting inclusion of their securities in the underwritten public
offering other than the Participating Holders would adversely interfere with the successful
marketing of the Registrable Securities,
then the Company and the other holders of Company securities shall not be permitted to include any
securities in excess of the amount, if any, of securities which the managing underwriter of such
underwritten public offering shall reasonably and in good faith agree in writing to include in such
public offering in addition to the amount of Registrable Securities to be registered for accounts
of the Participating Holders. If the managing underwriter concludes that less than all of the
Registrable Securities which the Participating Holders propose to include in the offering can be
successfully sold in the offering, the managing underwriter will be obligated to include in such
Registration Statement, in the following order of priority: first, as to each Participating Holder
of Registrable Securities, only that portion of the Registrable Securities such Participating
Holder has requested be registered equal to the ratio which such Participating Holder’s requested
Registrable Securities bears to the total number of Registrable Securities requested to be included
in such Registration Statement by all Participating Holders who have requested that their
Registrable Securities be included in such Registration Statement; and second, as to each holder
(each, an “Additional Participant”) of any other securities included in such Registration Statement
(the “Additional Securities”), only that portion of the Additional Securities such Additional
Participant has requested be registered equal to the ratio which such Additional Participant’s
requested Additional Securities bears to the total number of such Additional Securities requested
to be included in such Registration Statement by all Additional Participants who have requested
that their Additional Securities be included in such Registration Statement.
(d) Limitations on Demand Registrations.
(i) The Company may delay making a filing of a Registration Statement or taking action in
connection therewith by not more than sixty (60) days after receipt of the Demand Request if the
Company provides a written certificate signed by the Chief Executive Officer and Chief Financial
Officer of the Company to the Holders, prior to the time it would otherwise have been required to
file or confidentially submit such Registration Statement or take such action pursuant to this
Section 2, stating that the Board has determined in good faith that if such Registration
Statement (or an amendment thereto) were filed or confidentially submitted and such Registration
Statement (or amendment) were to become effective, or remain effective for the time otherwise
required for such Registration Statement to remain effective, then such action either would (A)
materially adversely affect a significant financing, acquisition, disposition, merger or other
material transaction, (B) require pursuant to applicable law premature disclosure of material
information that the Company has a bona fide business purpose for preserving as confidential or (C)
render the Company unable to comply with requirements under the Securities Act or the Exchange Act
(each, a “Valid Business
8
Reason”) and that it is therefore beneficial to defer the filing or confidential submission of the
Registration Statement; provided, however, that such right to delay a Demand Request shall
be exercised by the Company not more than three (3) times in any twelve (12) month period and the
Company shall only have the right to delay a Demand Request so long as such Valid Business Reason
exists, and during such time the Company may not file a Registration Statement for securities to be
issued and sold for its own account or for that of anyone else; provided, further, that the
Company may, in the event it exercises such right more than one (1) time in accordance with the
immediately preceding proviso, delay making a filing of a Registration Statement or taking action
in connection therewith for a maximum aggregate of ninety (90) days in any twelve (12) month
period.
(ii) The Company shall only be obligated to effect three (3) Demand Requests pursuant to this
Section 2. For purposes of this
Section 2(d)(ii), any Demand Request made pursuant
to Section 2 of the Noteholder Registration Rights Agreement shall be deemed to be a Demand
Request made pursuant to this Agreement (and shall reduce the number of Demand Requests that may be
made hereunder), provided, that (i) the Company shall give a notice to all Holders herein
of the right to participate in any
registration to be made under the Noteholder Registration Rights Agreement (with respect to the
Registrable Securities herein) on the same terms as contained herein as are applicable to any
Holder giving a Participation Request herein, (ii) the offering of the Registrable Securities to be
registered pursuant to such Participation Request by the Holders is registered pursuant to such
Registration Statement, and (iii) such registration is deemed effected in accordance with
Section 2(b) herein.
(iii) The Company shall not be obligated to effect a registration and shall not effect a
registration pursuant to a Demand Request unless the aggregate gross offering proceeds of all
Registrable Securities to be included in such Registration Statement is reasonably expected to be
(x) at least $15,000,000 or (y) such lesser amount that represents at least seventy-five percent
(75%) of the aggregate number of all Registrable Securities.
(iv) Notwithstanding the foregoing, the Company may suspend the use of a Prospectus if the Company
provides written notice to all Participating Holders stating that the Board has determined in good
faith that a Valid Business Reason exists to suspend the use of such Prospectus or during any
period prior to the amendment or supplement of a Prospectus if such Prospectus is required to be
amended or supplemented in accordance with Section 4(a)(vii). Upon receipt of such notice,
each such Participating Holder shall immediately discontinue any sales of Registrable Securities
pursuant to such Prospectus until such Participating Holder has received copies of a supplemented
or amended Prospectus or until such Participating Holder is advised in writing by the Company that
the then current Prospectus may be used and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in such Prospectus.
Notwithstanding anything to the contrary herein, the Company shall not be entitled to suspend use
of the Prospectus under this Section 2(d)(iv) for more than an aggregate of seventy-five
(75) days in any 365 day period and no single suspension shall be longer than forty-five (45) days
(the “Suspension Period’’’).
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(e) Cancellation of Registration. A Majority in Interest of the Participating Holders shall
have the right to cancel a proposed registration of Registrable Securities pursuant to this
Section 2 when:
(i) in their discretion, market conditions are so unfavorable as to be seriously detrimental to an
offering pursuant to such registration; or
(ii) the request for cancellation is based upon material adverse information relating to the
Company that is different from the information known to the Requesting Holders at the time of the
Demand Request.
Subject to Section 5 hereof, any registration so cancelled shall not be counted as one of
the three (3) Demand Requests pursuant to
Section 2(d)(ii) and notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the expenses of the Participating Holders incurred in connection with the registration prior to the time of cancellation.
Section 2(d)(ii) and notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the expenses of the Participating Holders incurred in connection with the registration prior to the time of cancellation.
Section 3.
Delay Fee.
(a) The Company
agrees that the Holders will suffer damages if the Company fails to fulfill
its obligations under Section 2 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly:
(i) if the Company fails to file a Registration Statement with the Commission within the number of
days required by Section 2(a)(i) hereof (subject to Section 2(d)(i) hereof); or
(ii) if, after a Registration Statement is declared or otherwise becomes effective, it thereafter
ceases to be effective or usable for any reason, including, but not limited to,
the events described in Sections 4(a)(v) through
4(a)(vii) hereof (other than in connection
with a Suspension Period);
(each such
event referred to in the preceding clauses (i) and (ii), a
“Registration Default”), then
the Company will pay a delay fee (the “Delay Fee”)
on the Registrable Securities calculated for the
period from and including the date on which any such Registration Default shall occur to but
excluding the date on which all Registration Defaults have been cured. The Delay Fee shall be
calculated as a percentage of the Assumed Value, and the percentage rate will be .25% per annum for
the first thirty (30) day period immediately following the occurrence of a Registration Default,
and such rate will increase by an additional .25% per annum for each thirty (30) day period
thereafter until all Registration Defaults have been cured, provided that the maximum Delay
Fee rate shall be 1.00% per annum from and including the date on which any such Registration
Default shall occur to but excluding the earlier of (1) the date on which all Registration Defaults
have been cured or (2) the date on which all the Registrable Securities included or required to be
included in such Registration Statement cease to be Registrable Securities. Such Delay Fee will be
in addition to any other amounts payable from time to time with respect to the Registrable
Securities. If, after the cure of all Registration Defaults then in effect, there is a subsequent
Registration Default, the Delay Fee rate for such subsequent Registration Default shall initially
be 0.50% regardless of the rate in effect with respect to any
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prior Registration Default at the time of cure of such Registration Default. Notwithstanding the
foregoing, the amount of Delay Fee payable shall not increase because more than one Registration
Default has occurred and is pending.
(b) So long as Registrable Securities remain outstanding, the Company shall notify the
Participating Holders within ten (10) days after each and every date on which a Registration
Default occurs. Any Delay Fee will be payable by the Company in cash and be paid on the last day
(and if such day is not a business day, then on the next succeeding business day) of each February,
May, August and November (each, a “Delay Fee Payment Date”), commencing with the first such date
occurring after any such Delay Fee commences to accrue, to Participating Holders with respect to
Registrable Securities included or required to be included in such Registration Statement. The
amount of Delay Fee for Registrable Securities will be determined by multiplying the applicable
Delay Fee rate by the Assumed Value on the Delay Fee Payment Date following such Registration
Default in the case of the first such payment of a Delay Fee (and thereafter at the next succeeding
Delay Fee Payment Date until the cure of such Registration Default), and then multiplying such
figure by a fraction, the numerator of which is the number of days such Delay Fee rate was
applicable during such period determined on the basis of a 360-day year comprised of twelve thirty
(30) day months (and, in the case of a partial month, the actual number of days elapsed), and the
denominator of which is 360. The total amount of all Delay Fees that the Company shall be obligated
to pay under this Agreement, regardless of the number of Demand Requests or the number and duration
of the Registration Defaults, shall be limited to $1,500,000.
Section 4.
Registration Procedures, (a) Obligations of the Company. Whenever
registration of Registrable Securities is required pursuant to this Agreement, the Company shall
use commercially reasonable efforts to effect the registration and sale of such Registrable
Securities in accordance with the intended method of distribution thereof as promptly as possible,
and in connection with any such request, the Company shall:
(i) Preparation of Registration Statement; Effectiveness. Prepare and file with the SEC (in any
event not later than the number of days set forth in Section 2(a)(i) hereof (subject to the
provisions of Section 2(d)(i) hereof)) a Registration Statement, pursuant to which such
offering may be made in accordance with the intended method of distribution thereof (except that
the Registration Statement shall contain such information as may reasonably be requested for
marketing or other purposes by the
managing underwriter), and use commercially reasonable efforts to cause any registration required
hereunder to become effective as soon as practicable after the initial filing thereof and remain
effective for a period of not less than seventy-five (75) days (or such shorter period in which all
Registrable Securities have been sold in accordance with the methods of distribution set forth in
the Registration Statement);
(ii) Participation in Preparation. Provide any Participating Holder, any underwriter participating
in any disposition pursuant to a Registration Statement, and any attorney, accountant or other
agent retained by any Participating Holder or underwriter (each, an “Inspector” and, collectively,
the “Inspectors”), the opportunity to participate (including, but not limited to, reviewing,
commenting on and attending all
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meetings) in the preparation of such Registration Statement, each Prospectus included therein or
filed with the SEC and each amendment or supplement thereto;
(iii) Due Diligence. For a reasonable period prior to the filing of any Registration Statement
pursuant to this Agreement, make available for inspection and copying by the Inspectors such
financial and other information and books and records, pertinent corporate documents and properties
of the Company and its subsidiaries and cause the officers, directors, employees, counsel and
independent certified public accountants of the Company and its subsidiaries to respond to such
inquiries and to supply all information reasonably requested by any such Inspector in connection
with such Registration Statement, as shall be reasonably necessary, in the judgment of the
Inspectors, to conduct a reasonable investigation within the meaning of the Securities Act;
provided, that, the Company may require each Inspector to sign a confidentiality agreement
prior to providing access to such information;
(iv) General Notifications. Promptly notify in writing the Participating Holders, the sales or
placement agent, if any, therefor and the managing underwriter of the securities being sold, (A)
when such Registration Statement or the Prospectus included therein or any Prospectus amendment or
supplement or post-effective amendment has been filed, and, with respect to any such Registration
Statement or any post-effective amendment, when the same has become effective, (B) when the SEC
notifies the Company whether there will be a “review” of such Registration Statement and (C) of any
written comments by the SEC and by the blue sky or securities commissioner or regulator of any
state with respect thereto or (D) of any request by the SEC for any amendments or supplements to
such Registration Statement or the Prospectus or for additional information;
(v) 10b-5 Notification. Promptly notify in writing the Participating Holders, the sales or
placement agent, if any, therefor and the managing underwriter of the securities being sold
pursuant to any Registration Statement at any time when a Prospectus relating thereto is required
to be delivered under the Securities Act upon discovery that, or upon the happening of any event as
a result of which, any Prospectus included in such Registration Statement (or amendment or
supplement thereto) contains an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made, and the Company shall promptly prepare a
supplement or amendment to such Prospectus and file it with the SEC (in any event no later than ten
(10) days following notice of the occurrence of such event to each Participating Holder, the sales
or placement agent and the managing underwriter (subject to Section 2(d)(iv) hereof)) so
that after delivery of such Prospectus, as so amended or supplemented, to the purchasers of such
Registrable Securities, such Prospectus, as so amended or supplemented, shall not contain an untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the circumstances under which
they were made;
(vi) Notification of Stop Orders; Suspensions of Qualifications and Exemptions.
Promptly notify in writing the Participating Holders, the sales or placement
12
agent, if any, therefor and the managing underwriter of the securities being sold of the issuance
by the SEC of (A) any stop order issued or threatened to be issued by the SEC or (B) any
notification with respect to the suspension of the qualification or exemption from qualification of
any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose and the Company agrees to use commercially reasonable efforts to
(x) prevent the issuance of any such stop order, and in the event of such issuance, to obtain the
withdrawal of any such stop order and (y) obtain the withdrawal of any order suspending or
preventing the use of any related Prospectus or suspending the qualification of any Registrable
Securities included in such Registration Statement for sale in any jurisdiction at the earliest
practicable date;
(vii) Amendments and Supplements; Acceleration. (A) Prepare and file with the SEC such amendments
and supplements to each Registration Statement as may be necessary to comply with the provisions of
the Securities Act, including post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective for the applicable time period
required hereunder and if applicable, file any Registration Statements pursuant to Rule 462(b)
under the Securities Act; (B) cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act; (C) comply with the provisions of
the Securities Act and the Exchange Act with respect to the disposition of all securities covered
by such Registration Statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement as so amended or in
such Prospectus as so supplemented; and (D) if a Majority in
Interest of the Requesting Holders so
request, request acceleration of effectiveness of the Registration Statement from the SEC and any
post-effective amendments thereto, if any are filed; provided, however, that at the time of
such request, the Company does not in good faith believe that it is necessary to amend further the
Registration Statement in order to comply with the provisions of this subparagraph; and,
provided, further, if the Company wishes to further amend the Registration Statement prior
to requesting acceleration, it shall use commercially reasonable efforts to so amend as
promptly as practicable prior to requesting acceleration.
(viii) Copies. Furnish as promptly as practicable to each Participating Holder and Inspector prior
to filing a Registration Statement or any supplement or amendment thereto, copies of such
Registration Statement, supplement or amendment as it is proposed to be filed, and after such
filing such number of copies of such Registration Statement, each amendment and supplement thereto
(in each case including all exhibits thereto), the Prospectus included in such Registration
Statement (including each preliminary Prospectus) and such other documents as each such
Participating Holder or underwriter may reasonably request in order to facilitate the disposition
of the Registrable Securities owned by such Participating Holder;
(ix) Blue Sky. Use commercially reasonable efforts to, prior to any public offering of the
Registrable Securities, register or qualify (or seek an exemption from registration or
qualifications) such Registrable Securities under such other securities
13
or blue sky laws of such jurisdictions as any Participating Holder or underwriter may request, and
to continue such qualification in effect in each such jurisdiction for as long as is permissible
pursuant to the laws of such jurisdiction, or for as long as a Participating Holder or underwriter
requests or until all of such Registrable Securities are sold, whichever is shortest, and do any
and all other acts and things which may be reasonably necessary or advisable to enable any
Participating Holder to consummate the disposition in such jurisdictions of the Registrable
Securities; provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a general consent of
process in any such
states or jurisdictions or subject itself to material taxation in any such state or jurisdiction,
but for this subparagraph;
(x) Other Approvals. Use commercially reasonable efforts to obtain all other approvals, consents,
exemptions or authorizations from such governmental agencies or authorities as may be necessary to
enable the Participating Holders and underwriters to consummate the disposition of Registrable
Securities;
(xi) Agreements. Enter into and perform customary agreements (including any underwriting agreements
in customary form), and take such other actions as may be reasonably required in order to expedite
or facilitate the disposition of Registrable Securities;
(xii) “Cold Comfort” Letter. Obtain a “cold comfort” letter from the Company’s independent public
accountants in customary form and covering such matters of the type customarily covered by “cold
comfort” letters as the managing underwriter may reasonably request, and reasonably satisfactory to
a Majority in Interest of the Participating Holders;
(xiii) Legal Opinion. Furnish, at the request of any underwriter of Registrable Securities on the
date such securities are delivered to the underwriters for sale pursuant to such registration, an
opinion, dated such date, of counsel representing the Company for the purposes of such
registration, addressed to the Holders, and the placement agent or sales agent, if any, thereof and
the underwriters, if any, thereof, covering such legal matters with respect to the registration in
respect of which such opinion is being given as such underwriter may reasonably request and as are
customarily included in such opinions, and reasonably satisfactory to a Majority in Interest of the
Participating Holders;
(xiv) SEC Compliance, Earnings Statement. Use commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC and make available to its shareholders, as soon as
reasonably practicable, but no later than fifteen (15) months after the effective date of any
Registration Statement, an earnings statement covering a period of twelve (12) months beginning
after the effective date of such Registration Statement, in a manner which satisfies the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder;
14
(xv) Certificates, Closing. Provide officers’ certificates and other customary closing documents;
(xvi) NASD. Cooperate with each Participating Holder and each underwriter participating in the
disposition of such Registrable Securities and underwriters’ counsel in connection with any filings
required to be made with the NASD;
(xvii) Transfer Agent, Registrar and CUSIP. Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereto and a CUSIP number for all such Registrable
Securities, in each case, no later than the effective date of such registration; and
(xviii) Commercially Reasonable Efforts. Use commercially reasonable efforts to take all other
actions necessary to effect the registration of the Registrable Securities contemplated hereby.
(b) Holder Information. The Company may require each Participating Holder as to which
any registration of such Holder’s Registrable Securities is being effected to furnish to the
Company such information regarding such Participating Holder and such Participating Holder’s method
of distribution of such Registrable Securities as the Company may from time to time reasonably
request in writing. If a Participating Holder refuses to provide the Company with any of such
information on the grounds that it is not necessary to include such information in the Registration
Statement, the
Company may exclude such Participating Holder’s Registrable Securities from the Registration
Statement if the Company provides such Participating Holder with an opinion of counsel to the
effect that such information must be included in the Registration Statement and such Participating
Holder continues thereafter to withhold such information. The exclusion of a Participating Holder’s
Registrable Securities shall not affect the registration of the other Registrable Securities to be
included in the Registration Statement.
(c) Notice to Discontinue. Each Participating Holder whose Registrable Securities
are covered by a Registration Statement filed pursuant to this Agreement agrees that, upon receipt
of written notice from the Company of the happening of any event of the kind described in
Section 4(a)(v), such Participating Holder shall forthwith discontinue the disposition of
Registrable Securities until such Participating Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 4(a)(v) or until it is advised
in writing by the Company that the use of the Prospectus may be resumed and has received copies of
any additional or supplemental filings which are incorporated by reference into the Prospectus,
and, if so directed by the Company in the case of an event described in Section 4(a)(v),
such Participating Holder shall deliver to the Company (at the Company’s expense) all copies, other
than permanent file copies then in such Participating Holder’s possession, of the Prospectus
covering such Registrable Securities which is current at the time of receipt of such notice. If
the Company shall give any such notice, the Company shall extend the period during which such
Registration Statement is to be maintained effective by the number of days during the period from
and including the date of the giving of such notice pursuant to Section 4(a)(v) to and
including the date when the Participating Holder shall have received the copies of the supplemented
or amended Prospectus contemplated by, and meeting the requirements of, Section 4(a)(v).
15
Section 5.
Registration Expenses. Except as otherwise provided herein, all Registration
Expenses shall be borne by the Company; provided,
however, that, unless Holders owning a
majority of the Second Priority Notes then outstanding agree to forfeit their right to one (1)
Demand Request, the Company shall not be required to pay for any Registration Expenses of any
registration commenced as a result of a Demand Request that is subsequently withdrawn or canceled
by at least a Majority in Interest of the Participating Holders, in which case the Participating
Holders shall bear such Registration Expenses pro rata on the basis of the number of Registrable
Securities proposed to be registered for their respective accounts;
and, provided further, however, if a withdrawal or cancellation of the registration is pursuant to
Section 2(e)(ii), then the Participating Holders shall not be required to pay any Registration Expenses in connection with such registration and shall not forfeit their right to one (1) Demand Request and shall retain their rights pursuant to Section 2. All Selling Expenses relating to Registrable Securities registered shall be borne by the Participating Holders of such Registrable Securities pro rata on the basis of the number of Registrable Securities so registered.
Section 2(e)(ii), then the Participating Holders shall not be required to pay any Registration Expenses in connection with such registration and shall not forfeit their right to one (1) Demand Request and shall retain their rights pursuant to Section 2. All Selling Expenses relating to Registrable Securities registered shall be borne by the Participating Holders of such Registrable Securities pro rata on the basis of the number of Registrable Securities so registered.
Section 6.
Indemnification.
(a)
Indemnification by the Company. In the event any Registrable Securities are
included in a Registration Statement, the Company will indemnify and hold harmless to the fullest
extent permitted by law each Holder, the Equity Trust Trustee and the Agent, each of their
respective directors, officers, employees, advisors, agents, stockholders, members, general
partners and limited partners (and the directors, officers, employees, advisors, agents,
stockholders, members, general partners and limited partners thereof), their respective Affiliates
and each Person who controls (within the meaning of the Securities Act or the Exchange Act) any of
such Persons (collectively, “Holder Indemnified Parties”) from and against any and all losses,
claims, damages, expenses (including, without limitation, reasonable costs of investigation and
fees, disbursements and other charges of counsel, any amounts paid in settlement effected with the
Company’s consent, which consent shall not be
unreasonably withheld or delayed, and any costs incurred in enforcing the Company’s indemnification
obligations hereunder) or other liabilities (collectively,
“Losses”) to which any such Holder
Indemnified Party may become subject under the Securities Act, the Exchange Act, any other federal,
state or foreign law or any rule or regulation promulgated thereunder, or under any common law or
otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in
respect thereof) are resulting from or arising out of or based upon (i) any untrue, or alleged
untrue, statement of a material fact contained in any Registration Statement, including any
Prospectus or preliminary Prospectus contained therein or any amendments or supplements thereto, or
any document incorporated by reference in any of the foregoing or resulting from or arising out of
or based upon any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a Prospectus, in light
of the circumstances under which they were made), not misleading or (ii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any other federal law, any state
or foreign securities law, or any rule or regulation promulgated under any of the foregoing laws,
relating to the offer or sale of the Registrable Securities, and in any such case the Company will
promptly reimburse each such Holder Indemnified Party for any legal and any other Losses reasonably
incurred in connection with investigating, preparing or defending any such claim, loss, damage,
liability, action or
16
investigation
or proceeding (collectively, a “Claim”); provided, however, that the Company
shall not be liable to any Company Indemnified Party for any Losses that arise out of or are based
upon (x) written information provided by a Holder Indemnified Party expressly for use in the
Registration Statement or (y) sales of Registrable Securities by a Holder Indemnified Party to a
person to whom there was not sent or given, at or before the written confirmation of such sale, a
copy of the Prospectus (excluding documents incorporated by reference) or the Prospectus as then
amended or supplemented (excluding documents incorporated by reference) if the Company has
previously furnished in a timely manner a reasonable number of copies thereof to such Holder
Indemnified Party in compliance with this Agreement and the Losses of such Holder Indemnified Party
results from an untrue statement or omission of a material fact contained in such preliminary
Prospectus which was corrected in the Prospectus (or the Prospectus as then amended or
supplemented). Such indemnity obligation shall remain in full force and effect regardless of any
investigation made by or on behalf of the Holder Indemnified Parties and shall survive the transfer
of Registrable Securities by such Holder Indemnified Parties.
(b) Indemnification by Holders. In connection with any proposed registration in which
a Holder is participating pursuant to this Agreement, each such Holder agrees, severally and not
jointly, to indemnify and hold harmless the Company, any underwriter retained by the Company and
their respective directors, officers, partners, employees, advisors, agents, stockholders,
members, general partners and limited partners, and their respective Affiliates, and each Person
who controls (within the meaning of the Securities Act or the Exchange Act) any of such Persons
(collectively, “Company Indemnified Parties”) to the same extent as the foregoing indemnity from
the Company to the Holders as set forth in Section 6(a) (subject to the exceptions set
forth in the foregoing indemnity, the proviso to this sentence and applicable law), but only with
respect to any information furnished in writing by such Holder expressly for use in the
Registration Statement; provided, however, that the liability of any Holder under this
Section 6(b) shall be limited to the amount of the net proceeds received by such Holder in
the offering giving rise to such liability. Such indemnity obligation shall remain in full force
and effect regardless of any investigation made by or on behalf of the Company Indemnified Parties
and shall survive the transfer of Registrable Securities by such Holder.
(c)
Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder (the “Indemnified Party”) agrees to give prompt written notice to the
indemnifying party (the “Indemnifying Party”) after the receipt by the Indemnified Party of any
written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for which the Indemnified Party
intends to claim indemnification or contribution pursuant to this
Agreement; provided, however, that, the failure so to notify the Indemnifying Party shall not relieve the
Indemnifying Party of any liability that it may have to the Indemnified Party hereunder unless and
to the extent such Indemnifying Party is materially prejudiced by such failure. If notice of
commencement of any such action is given to the Indemnifying Party as above provided, the
Indemnifying Party shall be entitled to participate in and, to the extent it may wish, jointly with
any other Indemnifying Party similarly notified, to assume the defense of such action at its own
expense, with counsel chosen by it and reasonably satisfactory to such Indemnified Party. The
Indemnified Party shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the
Indemnified Party unless (i) the Indemnifying
17
Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such
action with counsel satisfactory to the Indemnified Party in its reasonable judgment or (iii) the
Indemnified Party reasonably believes that the joint representation of the Indemnified Party and
any other party in such proceeding (including but not limited to the Indemnifying Party) would be
inappropriate due to actual or potential differing interests between such Indemnified Party and the
other party represented by the same counsel. In the case of clause (ii) above and (iii) above, the
Indemnifying Party shall not have the right to assume the defense of such action on behalf of such
Indemnified Party. No Indemnifying Party shall be liable for any settlement entered into without
its written consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall,
without the written consent of the Indemnified Party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder (whether or not the
Indemnified Party is an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (A) includes an unconditional release of the Indemnified Party from all
liability arising out of such action or claim and (B) 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. The
rights afforded to any Indemnified Party hereunder shall be in addition to any rights that such
Indemnified Party may have at common law, by separate agreement or otherwise.
(d) Contribution. If the indemnification provided for in this Section 6 from the
Indemnifying Party is unavailable or insufficient to hold harmless an Indemnified Party in respect
of any Losses referred to herein, then the Indemnifying Party, in lieu of indemnifying the
Indemnified Party, shall contribute to the amount paid or payable by the Indemnified Party as a
result of such Losses in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party and the Indemnified Party, as well as any other relevant equitable
considerations. The relative faults of the Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact, was made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the Indemnifying Party’s and Indemnified Party’s relative intent, knowledge,
access to information and opportunity to correct or prevent such
action; provided, however,
that the liability of any Holder under this Section 6(d) shall be limited to the amount of
the net proceeds received by such Holder in the offering giving rise to such liability. The amount
paid or payable by a party as a result of the Losses or other liabilities referred to above shall
be deemed to include, subject to the limitations set forth in
Section 6(a), Section 6(b)
and Section 6(c), any legal or other fees, charges or expenses reasonably incurred by such
party in connection with any investigation or proceeding. The parties hereto agree that it would
not be just and equitable if contribution pursuant to this Section 6(d) were determined by
pro rata allocation or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution pursuant to this Section 6(d) from
any Person who was not guilty of such fraudulent misrepresentation.
18
(e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and
contribution contained in an underwriting agreement entered into in connection with an underwritten
public offering are in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) Unless otherwise superceded by an underwriting agreement entered into in connection with
an underwritten public offering, the obligations of the Company and Holders under this Section
6 shall survive the completion of any offering of Registrable Securities pursuant to a
registration statement under this Section 6, and shall survive the termination of this
Agreement.
Section 7.
Rule 144 and Rule 144A; Other
Exemptions. With a view to making available to the
Holders the benefits of Rule 144 and Rule 144A promulgated under the Securities Act and other rules
and regulations of the SEC that may at any time permit a Holder to sell securities of the Company
to the public without registration, the Company covenants that it will (i) file in a timely manner
all reports and other documents required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder and (ii) take such further
action as each Holder may reasonably request (including, but not limited to, providing any
information necessary to comply with Rule 144 and Rule 144A, if available with respect to resales
of the Registrable Securities under the Securities Act), at all times from and after the date that
is sixty (60) days after the date of this Agreement, all to the extent required from time to time
to enable such Holder to sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (x) Rule 144 and Rule 144A (if available with
respect to resales of the Registrable Securities) under the Securities Act, as such rules may be
amended from time to time or (y) any other rules or regulations now existing or hereafter adopted
by the SEC. Upon the written request of a Holder, the Company shall deliver to the Holder a written
statement as to whether it has complied with such requirements. The Company will use commercially
reasonable efforts to assist a Holder in facilitating private sales of Registrable Securities by,
among other things, providing officers’ certificates and other customary closing documents
reasonably requested by a Holder.
Section 8.
Certain Limitations On Registration Rights. No Holder may participate in any
Registration Statement hereunder involving an underwritten public offering unless such Holder
completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, and other documents reasonably required under the terms of the underwriting
arrangements made in connection with such Registration Statement and agrees to sell such Holder’s
Registrable Securities on the basis provided in any underwriting agreement approved by the Holder
or Holders entitled hereunder to approve such arrangements;
provided, however, that no such
Holder shall be required to make any representations or warranties to the Company or the
underwriters in connection with any such registration other than representations and warranties as
to (i) such Holder’s ownership of its Registrable Securities to be sold or transferred, (ii) such
Holder’s power and authority to effect such transfer and (iii) such matters pertaining to
compliance with securities laws as may be reasonably requested. Such Holders of Registrable
Securities to be sold by such underwriters may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of the Company to and for
the benefit of such underwriters, shall also be made to and for the benefit of such Holders
19
and that any or all of the conditions precedent to the obligations of the underwriters under the
underwriting agreement be conditions precedent to the obligations of the Holders.
Section 9.
Transfer of Registration Rights. The rights of a Holder hereunder may
be transferred or assigned in connection with a transfer of Registrable Securities to (i) any
Affiliate of a Holder, (ii) any subsidiary, parent, general partner, limited partner, stockholder
or member of a Holder and any retired general partner or retired managing member of a Holder, (iii)
any family member or trust for the benefit of any Holder or (iv) any transferee who, after such
transfer, continues to hold Registrable Securities. Notwithstanding the foregoing, such rights may
only be transferred or assigned provided that all of the following additional conditions are
satisfied: (a) such transfer or assignment is effected in accordance with applicable securities
laws and (b) the Company is given written notice by such Holder of such transfer or assignment,
stating the name and address of the transferee or assignee and identifying the Registrable
Securities with respect to which such rights are being transferred or assigned.
Section 10. Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties in respect of the subject matter hereof and supersedes all prior
understandings, agreements or representations by or among the parties, written or oral, to the
extent they relate in any way to the subject matter hereof.
Section 11. Assignment; Binding Effect. No party may assign either this Agreement or any of
its rights, interests or obligations hereunder without the prior written approval of the other
parties provided, however, that without the consent of any other party hereto the rights of
a Holder hereunder are assignable to any other Holder. All of the terms, agreements, covenants,
representations, warranties and conditions of this Agreement are binding upon, and inure to the
benefit of and are enforceable by, the parties and their respective successors and permitted
assigns.
Section 12. Notices. All notices, requests, demands, claims and other communications
hereunder shall be in writing and shall be (a) transmitted by hand delivery, (b) mailed by first
class, registered or certified mail, postage prepaid, (c) transmitted by overnight courier or (d)
transmitted by telecopy, and in each case, if to the Company, at the address set forth below:
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ #86 | ||
| Col. Lomas ▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Telephone: (52) (▇▇) ▇▇▇▇-▇▇▇▇ | ||
| Facsimile: (52) (▇▇) ▇▇▇▇-▇▇▇▇ | ||
| Attention: General Counsel |
20
with a copy (which shall not constitute notice) to:
| Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP | ||||
| ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||||
| Telephone: | (▇▇▇) ▇▇▇-▇▇▇▇ | |||
| Facsimile: | (▇▇▇) ▇▇▇-▇▇▇▇ | |||
| Attention: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. | |||
| ▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. | ||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq. | ||||
| if to a Holder, to the address set forth on Schedule A attached to this Agreement, with a copy (which shall not constitute notice) to: | ||||
| Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇ LLP | ||||
| ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||||
| Telephone: | (▇▇▇) ▇▇▇-▇▇▇▇ | |||
| Facsimile: | (▇▇▇) ▇▇▇-▇▇▇▇ | |||
| Attention: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. | |||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq. | ||||
| if to the Agent, to: | ||||
| The Bank of New York | ||||
| ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ | ||||
| ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||||
| Telephone: | ||||
| Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/5803 | ||||
| Attention: Global Finance Americas | ||||
Notices mailed or transmitted in accordance with the foregoing shall be deemed to have been given
upon receipt. Notices may be given by United States of America counsel to the party hereto.
Section 13. Specific Performance; Remedies. Each party acknowledges and agrees that the
other parties would be damaged irreparably if any provision of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. Accordingly, the parties will be
entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement
and to enforce specifically this Agreement and its provisions in any action or proceeding
instituted in any state or federal court sitting in the State of New York having jurisdiction over
the parties and the matter, in addition to any other remedy to which they may be entitled, at law
or in equity. Except as expressly provided herein, the rights, obligations and remedies created by
this Agreement are cumulative and in addition to any other rights,
21
obligations or remedies otherwise available at law or in equity. Except as expressly provided
herein, nothing herein will be considered an election of remedies.
Section 14. Submission to Jurisdiction; Waiver of Jury Trial.
(a)
Submission to Jurisdiction. Any action, suit or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection with, this Agreement or
the transactions contemplated hereby must be brought in any federal court located in the State of
New York or any New York state court, and each party consents to the exclusive jurisdiction and
venue of such courts (and of the appropriate appellate courts therefrom) in any such action, suit
or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it
may now or hereafter have to the laying of the venue of any such, action, suit or proceeding in any
such court or that any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum. Process in any such action, suit or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing, service of process on such party as provided in Section 14(c) shall
be deemed effective service of process on such party.
(b) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY DISPUTE THAT MAY ARISE
OUT OF OR RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE SUCH PARTY HEREBY EXPRESSLY WAIVES ITS RIGHT TO JURY TRIAL OF ANY DISPUTE BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY
DEALINGS AMONG THEM RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. THE SCOPE OF THIS WAIVER IS
INTENDED TO ENCOMPASS ANY AND ALL ACTIONS, SUITS AND PROCEEDINGS THAT RELATE TO THE
SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH
PARTY REPRESENTS THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii)SUCH
PARTY UNDERSTANDS AND WITH THE ADVICE OF COUNSEL HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (iii) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) SUCH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND REPRESENTATIONS IN THIS
SECTION 14(b).
(c)
Service of Process. By the execution and delivery of this Agreement, the Company
hereby appoints CT Corporation System as its authorized agent upon which process may be served in
any legal action or proceeding which may be instituted in any federal or state court in the Borough
of Manhattan, The City of New York, arising out of or relating to this Agreement. Service of
process upon such agent at the office of such agent at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and written notice of said service to the Company at its address set forth in
Section 12 hereof, shall be deemed in every respect effective service of process upon the
Company in any such legal action or proceeding. Such appointment
22
shall be irrevocable so long as the Holders shall have any rights pursuant to the terms thereof or
of this Agreement until the appointment of a successor by the Company and such successor’s
acceptance of such appointment. The Company further agrees to take any and all actions, including
the execution and filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of such agent or successor.
Section 15.
Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York, without giving effect to any choice of law principles.
Section 16.
Headings. The article and section headings contained in this Agreement are
inserted for convenience only and will not affect in any way the meaning or interpretation of this
Agreement.
Section 17.
Amendments. An amendment or modification to any provision of this Agreement
will require the written consent of the Company and the holders of at least 66 2/3% of the
Registrable Securities then outstanding.
Section 18.
Extensions; Waivers. Any party may, for itself only, (a) extend the time for
the performance of any of the obligations of any other party under this Agreement, (b) waive any
inaccuracies in the representations and warranties of any other party contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the agreements or
conditions for the benefit of such party contained herein. Any such extension or waiver will be
valid only if set forth in a writing signed by the party to be bound thereby. No waiver by any
party of any default, misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation
or breach of warranty or covenant hereunder or affect in any way any rights arising because of any
prior or subsequent such occurrence. Neither the failure nor any delay on the part of any party to
exercise any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy preclude any other or further exercise of the
same or of any other right or remedy.
Section 19.
Severability. The provisions of this Agreement will be deemed severable and the
invalidity or unenforceability of any provision will not affect the validity or enforceability of
the other provisions hereof; provided, that if any provision of this Agreement, as applied
to any party or to any circumstance, is judicially determined not to be enforceable in accordance
with its terms, the parties agree that the court
judicially making such determination may modify the provision in a manner consistent with its
objectives such that it is enforceable, and/or to delete specific words or phrases, and in its
modified form, such provision will then be enforceable and will be enforced.
Section 20.
Counterparts; Effectiveness. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which together will constitute
one and the same instrument. This Agreement will become effective when one or more counterparts
have been signed by each of the parties and delivered to the other parties. For purposes of
determining whether a party has signed this Agreement or any document contemplated hereby or any
amendment or waiver hereof, only a handwritten original signature
23
on a paper document or a facsimile copy of such a handwritten original signature shall constitute a
signature, notwithstanding any law relating to or enabling the creation, execution or delivery of
any contract or signature by electronic means.
Section 21.
Construction. This Agreement has been freely and fairly negotiated among the
parties. If an ambiguity or question of intent or interpretation arises, this Agreement will be
construed as if drafted jointly by the parties and no presumption or burden of proof will arise
favoring or disfavoring any party because of the authorship of any provision of this Agreement. Any
reference to any law will be deemed also to refer to such law as amended and all rules and
regulations promulgated thereunder, unless the context requires otherwise. The words “include,”
“includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in
masculine, feminine, and neuter genders will be construed to include any other gender, and words in
the singular form will be construed to include the plural and vice versa, unless the context
otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and
words of similar import refer to this Agreement as a whole and not to any particular subdivision
unless expressly so limited. The parties intend that each representation, warranty, and covenant
contained herein will have independent significance. If any party has breached any covenant
contained herein in any respect, the fact that there exists another covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the party has not breached
will not detract from or mitigate the fact that the party is in breach of the first covenant.
Section 22.
Attorneys’ Fees. If any dispute among any parties arises in connection with
this Agreement, the prevailing party in the resolution of such dispute in any action or proceeding
will be entitled to an order awarding full recovery of reasonable attorneys’ fees and expenses,
costs and expenses (including experts’ fees and expenses and the costs of enforcing this
Section 22) incurred in connection therewith, including court costs, from the
non-prevailing party.
Section 23.
Third Party Beneficiaries. The Company acknowledges and agrees that the Holders
are third party beneficiaries of this Agreement and, as such, each Holder is entitled to all of the
benefits provided to the Holders hereunder and may enforce the terms of this Agreement. Upon any
Holder giving a Demand Request or Participation Request, such Holder shall execute an instrument of
accession in form reasonable satisfactory to the Company acknowledging that such Holder is bound by
the terms and provisions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has executed this Registration Rights Agreement for the
benefit of the Holders as of the date first above written.
| SATÉLITES MEXICANOS, S.A. DE C.V. | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Addario
|
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| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Addario
|
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| ▇▇▇▇▇▇▇ ▇▇▇▇▇ #86 | ||||||
| Col. Lomas ▇▇ ▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
| Telephone: (52) (▇▇) ▇▇▇▇-▇▇▇▇ | ||||||
| Facsimile: (52) (▇▇) ▇▇▇▇-▇▇▇▇ | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
|
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| Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: General Counsel |
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| ▇▇▇▇▇▇▇ ▇▇▇▇▇ #86 | ||||||
| Col. Lomas ▇▇ ▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
| Telephone: (52) (▇▇) ▇▇▇▇-▇▇▇▇ | ||||||
| Facsimile: (52) (▇▇) ▇▇▇▇-▇▇▇▇ | ||||||
Signature page to Equity Trust Registration Rights Agreement
Schedule A
Holders