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EXHIBIT 9
EXHIBIT 2.2
VOTING AND EXCHANGE TRUST AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 17th day November, 1995.
B E T W E E N:
ORBITAL SCIENCES CORPORATION,
a corporation existing under the laws of
the State of Delaware,
(hereinafter referred to as "Orbital"),
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ HOLDINGS INC.,
(FORMERLY KNOWN AS 3173623 CANADA INC.)
a corporation existing under the laws of Canada,
(hereinafter referred to as "Corporation"),
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STATE STREET BANK AND TRUST COMPANY,
a trust company existing under the laws of the
Commonwealth of Massachusetts,
(hereinafter referred to as "Trustee").
WHEREAS pursuant to a combination agreement dated as of August
31, 1995 (the "Combination Agreement"), by and between Orbital, the Corporation
and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and Associates Ltd. ("MDA"), the parties agreed that
on the Effective Date (as defined in the Combination Agreement), Orbital and
the Corporation would execute and deliver a Voting and Exchange Trust Agreement
containing the terms and conditions set forth in Exhibit 2.2 to the Combination
Agreement together with such other terms and conditions as may be agreed to by
the parties to the Combination Agreement acting reasonably;
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AND WHEREAS pursuant to an arrangement (the "Arrangement")
effected by articles of arrangement dated November 17 , 1995 filed pursuant
to the Canada Business Corporations Act, each issued and outstanding common
share of MDA (an "MDA Common Share") was exchanged directly or indirectly for
0.3607 of an issued and outstanding Exchangeable Non-Voting Share of the
Corporation (the "Exchangeable Shares");
AND WHEREAS the aforesaid articles of arrangement set forth the
rights, privileges, restrictions and conditions (collectively the "Exchangeable
Share Provisions") attaching to the Exchangeable Shares;
AND WHEREAS Orbital is to provide voting rights in Orbital to
each holder (other than Orbital and its Affiliates) from time to time of
Exchangeable Shares, such voting rights per Exchangeable Share to be equivalent
to the voting rights per share of the common stock, par value U.S. $.01 per
share, of Orbital (the "Orbital Common Shares");
AND WHEREAS Orbital is to grant to and in favour of the holders
(other than Orbital and its Affiliates) from time to time of Exchangeable
Shares the right, in the circumstances set forth herein, to require Orbital to
purchase from each such holder all or any part of the Exchangeable Shares held
by the holder;
AND WHEREAS the parties desire to make appropriate provision and
to establish a procedure whereby voting rights in Orbital shall be exercisable
by holders (other than Orbital and its Affiliates) from time to time of
Exchangeable Shares by and through the Trustee, which will hold legal title to
one share of Orbital Special Voting Preferred Stock, U.S. $.01 par value (the
"Orbital Special Voting Stock"), to which voting rights attach for the benefit
of such holders and whereby the rights to require Orbital to purchase
Exchangeable Shares from the holders thereof shall be exercisable by such
holders from time to time of Exchangeable Shares by and through the Trustee,
which will hold legal title to such rights for the benefit of such holders;
AND WHEREAS these recitals and any statements of fact in this
Agreement are made by Orbital and the Corporation and not by the Trustee and
the Trustee in no way warrants the accuracy thereof and shall have no liability
therefor;
NOW THEREFORE in consideration of the respective covenants and
agreements provided in this Agreement and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties agree as follows:
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ARTICLE 1
DEFINITIONS AND INTERPRETATION
.1 DEFINITIONS. In this Agreement, the following terms shall have
the following meanings:
"AFFILIATE" of any person means any other person directly or
indirectly controlling, controlled by, or under common control of, that person.
For the purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling", "controlled by" and "under common control
of"), as applied to any person, means the possession by another person,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that first mentioned person, whether through the
ownership of voting securities, by contract or otherwise.
"ARRANGEMENT" has the meaning ascribed thereto in the recitals
hereto.
"AUTOMATIC EXCHANGE RIGHTS" means the benefit of the obligation
of Orbital to effect the automatic exchange of shares of Orbital Common Shares
for Exchangeable Shares pursuant to subsection 5.12(c) hereof.
"BOARD OF DIRECTORS" means the Board of Directors of the
Corporation.
"BUSINESS DAY" means a day other than a Saturday, a Sunday or a
day when banks are not open for business in one or both of Vancouver, British
Columbia and the Commonwealth of Virginia.
"CALL RIGHTS" means collectively the Liquidation Call Right, the
Redemption Call Right and the Retraction Call Right.
"CANADIAN DOLLAR EQUIVALENT" means in respect of an amount
expressed in a foreign currency (the "Foreign Currency Amount") at any date the
product obtained by multiplying (a) the Foreign Currency Amount by (b) the noon
spot exchange rate on such date for such foreign currency expressed in Canadian
dollars as reported by the Bank of Canada or, in the event such spot exchange
rate is not available, such exchange rate on such date for such foreign
currency expressed in Canadian dollars as may be deemed by the Board of
Directors to be appropriate for such purpose.
"CBCA" means the Canada Business Corporations Act, as amended;
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"CURRENT MARKET PRICE" means, in respect of Orbital Common
Shares on any date, the Canadian Dollar Equivalent of the closing sale price of
Orbital Common Shares on such date (or, if no trades of any Orbital Common
Shares occurred on such date, on the last trading day prior thereto on which
such trades occurred) reported on the NASDAQ National Market System, or, if
the Orbital Common Shares are not then quoted on the NASDAQ National Market
System, on such other stock exchange or automated quotation system on which the
Orbital Common Shares are listed or quoted, as the case may be, as may be
selected by the Board of Directors for such purpose; provided, however, that if
in the opinion of the Board of Directors the public distribution or trading
activity of Orbital Common Shares during such period does not create a market
that reflects the fair market value of Orbital Common Shares, then the Current
Market Price of Orbital Common Shares shall be determined by the Board of
Directors based upon the advice of such qualified independent financial
advisors as the Board of Directors may deem to be appropriate, and provided
further that any such selection, opinion or determination by the Board of
Directors shall be conclusive and binding.
"CURRENT ORBITAL COMMON SHARE EQUIVALENT" has the meaning
ascribed thereto in the Exchangeable Share Provisions.
"DEFAULT EVENT" means any failure, other than by reason of an
Insolvency Event, of the Corporation to perform any of its obligations pursuant
to the Exchangeable Share Provisions, including without limitation its
obligation to redeem any Retracted Shares.
"EXCHANGE RIGHT" has the meaning ascribed thereto in section 5.1
hereof.
"EXCHANGEABLE SHARE PROVISIONS" has the meaning ascribed thereto
in the recitals hereto.
"EXCHANGEABLE SHARES" has the meaning ascribed thereto in the
recitals hereto.
"HOLDER VOTES" has the meaning ascribed thereto in section 4.2
hereof.
"HOLDERS" means the registered holders from time to time of
Exchangeable Shares, other than Orbital and its Affiliates.
"INSOLVENCY EVENT" means the institution by the Corporation of
any proceeding to be adjudicated a bankrupt or insolvent or to be dissolved or
wound up, or the consent of the Corporation to the institution of bankruptcy,
insolvency, dissolution
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or winding up proceedings against it, or the filing of a petition, answer or
consent seeking dissolution or winding up under any bankruptcy, insolvency or
analogous laws, including without limitation the Companies Creditors'
Arrangement Act (Canada) and the Bankruptcy and Insolvency Act (Canada), and
the failure by the Corporation to contest in good faith any such proceedings
commenced in respect of the Corporation within 15 days of becoming aware
thereof, or the consent by the Corporation to the filing of any such petition
or to the appointment of a receiver, or the making by the Corporation of a
general assignment for the benefit of creditors, or the admission in writing by
the Corporation of its inability to pay its debts generally as they become due,
or the Corporation not being permitted, pursuant to solvency requirements of
applicable law, to redeem any Retracted Shares pursuant to section 5.6 of the
Exchangeable Share Provisions.
"LIEN" has the meaning ascribed thereto in the Plan of
Arrangement.
"LIQUIDATION CALL RIGHT" has the meaning ascribed thereto in the
Plan of Arrangement.
"LIQUIDATION EVENT" has the meaning ascribed thereto in
subsection 5.12(a) hereof.
"LIQUIDATION EVENT EFFECTIVE DATE" has the meaning ascribed
thereto in subsection 5.12(c) hereof.
"LIST" has the meaning ascribed thereto in section 4.6 hereof.
"OFFICER'S CERTIFICATE" means, with respect to Orbital or the
Corporation, as the case may be, a certificate signed by any one of the
Chairman of the Board, the President, any Vice-President or any other senior
officer of Orbital or the Corporation, as the case may be.
"ORBITAL COMMON SHARES" has the meaning ascribed thereto in the
recitals hereto.
"ORBITAL CONSENT" has the meaning ascribed thereto in section
4.2 hereof.
"ORBITAL MEETING" has the meaning ascribed thereto in section
4.2 hereof.
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"ORBITAL SPECIAL VOTING STOCK" has the meaning ascribed thereto
in the recitals hereto.
"ORBITAL SUCCESSOR" has the meaning ascribed thereto in
subsection 10.1(a) hereof.
"PERSON" includes an individual, partnership, corporation,
company, unincorporated syndicate or organization, trust, trustee, executor,
administrator and other legal representative.
"PLAN OF ARRANGEMENT" means the plan of arrangement of the
Corporation providing for the Arrangement.
"REDEMPTION CALL RIGHT" has the meaning ascribed thereto in the
Plan of Arrangement.
"RETRACTED SHARES" HAS the meaning ascribed thereto in section
5.7 hereof.
"RETRACTION CALL RIGHT" has the meaning ascribed thereto in the
Plan of Arrangement.
"SUPPORT AGREEMENT" means that certain support agreement made as
of even date herewith between the Corporation and Orbital.
"TRUST" means the trust created by this Agreement.
"TRUST ESTATE" means the Voting Share, any other securities, the
Exchange Right, the Automatic Exchange Rights and any money or other property
that may be held by the Trustee from time to time pursuant to this Agreement.
"VOTING RIGHTS" means the voting rights attached to the Voting
Share.
"VOTING SHARE" means the one share of Orbital Special Voting
Stock, issued by Orbital to and deposited with the Trustee, which entitles the
holder of record to a number of votes at meetings of holders of Orbital Common
Shares equal to the number of Exchangeable Shares outstanding from time to
time, other than Exchangeable Shares held by Orbital and its Affiliates,
multiplied by the Current Orbital Common Share Equivalent at the relevant time.
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.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC. The division of this
Agreement into articles, sections and paragraphs and the insertion of headings
are for convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
.3 NUMBER, GENDER, ETC. Words importing the singular number only shall
include the plural and vice versa. Words importing the use of any gender shall
include all genders.
.4 DATE FOR ANY ACTION. If any date on which any action is required to
be taken under this Agreement is not a Business Day, such action shall be
required to be taken on the next succeeding Business Day.
.5 WITHHOLDING OF TAX. All amounts required to be paid, deposited or
delivered hereunder shall be paid, deposited or delivered after deduction of
any amount required by applicable law to be deducted or withheld on account of
tax and the deduction of such amounts and remittance to the applicable tax
authorities shall, to the extent thereof, satisfy such requirement to pay,
deposit or deliver hereunder. The Trustee shall have no obligation or
liability to pay, deposit, deliver or to deduct any amount required by
applicable law to be deducted or withheld on account of tax or to remit the
same to applicable tax authorities.
ARTICLE 2
PURPOSE OF AGREEMENT
.1 ESTABLISHMENT OF TRUST. The purpose of this Agreement is to create
the Trust for the benefit of the Holders, as herein provided. The Trustee will
hold the Voting Share in trust in order to enable the Trustee to exercise the
Voting Rights and will hold the Exchange Right and the Automatic Exchange
Rights in trust in order to enable the Trustee to exercise such rights, in each
case as trustee for and on behalf of the Holders as provided in this Agreement.
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ARTICLE 3
VOTING SHARE
.1 ISSUE AND OWNERSHIP OF THE VOTING SHARE. In consideration of the
granting of the Call Rights to Orbital, Orbital hereby issues to and deposits
with the Trustee the Voting Share to be hereafter held of record by the Trustee
as trustee for and on behalf of, and for the use and benefit of, the Holders
and in accordance with the provisions of this Agreement. Orbital hereby
acknowledges receipt from the Trustee as trustee for and on behalf of the
Holders of good and valuable consideration (and the adequacy thereof) for the
issuance of the Voting Share by Orbital to the Trustee. During the term of the
Trust and subject to the terms and conditions of this Agreement, the Trustee
shall possess and be vested with full legal ownership of the Voting Share and
shall be entitled to exercise all of the rights and powers of an owner with
respect to the Voting Share, provided that the Trustee shall:
(a) hold the Voting Share and the legal title thereto as trustee
solely for the use and benefit of the Holders in accordance with
the provisions of this Agreement; and
(b) except as specifically authorized by this Agreement, have no
power or authority to sell, transfer, vote or otherwise deal in
or with the Voting Share and the Voting Share shall not be used
or disposed of by the Trustee for any purpose other than the
purposes for which this Trust is created pursuant to this
Agreement.
.2 LEGENDED SHARE CERTIFICATES. The Corporation shall cause each
certificate representing Exchangeable Shares to bear an appropriate legend
notifying the Holders of their right to instruct the Trustee with respect to
the exercise of the Voting Rights with respect to the Exchangeable Shares held
by Holders, which Voting Rights attach solely to the Voting Share.
.3 SAFE KEEPING OF CERTIFICATE. The certificate representing the Voting
Share shall at all times be held by the Trustee in the Commonwealth of
Massachusetts.
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ARTICLE 4
VOTING RIGHTS
.1 VOTING RIGHTS. The Trustee, as the holder of record of the Voting
Share, shall be entitled to all of the Voting Rights in accordance with the
instructions of the Holders, subject to section 6.15 hereof, including the
right to consent to or to vote in person or by proxy the Voting Share, on any
matter, question or proposition whatsoever that may properly come before the
stockholders of Orbital for their vote at an Orbital Meeting or in connection
with an Orbital Consent. The Voting Rights shall be and remain vested in and,
subject to section 6.15 hereof, be exercised by the Trustee in accordance with
the instructions of the Holders. Subject to section 6.15 hereof, the Trustee
shall exercise the Voting Rights only on the basis of instructions received
pursuant to this Article 4 from Holders entitled to instruct the Trustee as to
the voting thereof at the time at which an Orbital Consent is sought or an
Orbital Meeting is held. To the extent that no instructions are received from
a Holder with respect to the Voting Rights to which such Holder is entitled,
the Trustee shall not exercise or permit the exercise of such Holder's Voting
Rights.
.2 NUMBER OF VOTES. With respect to all meetings of stockholders of
Orbital at which holders of Orbital Common Shares are entitled to vote (an
"Orbital Meeting") and with respect to all written consents sought from the
holders of Orbital Common Shares (an "Orbital Consent"), each Holder shall be
entitled to instruct the Trustee to cast and exercise, in the manner
instructed, such number of votes comprised in the Voting Rights as is equal to
the Current Orbital Common Share Equivalent on the record date established by
Orbital or by applicable law for such Orbital Meeting or Orbital Consent, as
the case may be, for each Exchangeable Share owned of record by such Holder on
such record date (the "Holder Votes") in respect of each matter, question or
proposition to be voted on at such Orbital Meeting or to be consented to in
connection with such Orbital Consent.
.3 MAILINGS TO SHAREHOLDERS. With respect to each Orbital Meeting and
Orbital Consent, the Trustee shall mail or cause to be mailed (or otherwise
communicate in the same manner as Orbital utilizes in communications to holders
of Orbital Common Shares) to each of the Holders named in the List on the same
day as the initial mailing of notice (or other communication) with respect
thereto is given by Orbital or any third party to Orbital's stockholders:
(a) a copy of such notice, together with any proxy or information
statement and related materials to be provided to stockholders
of Orbital;
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(b)a statement that such Holder is entitled to instruct the Trustee as to the
exercise of the Holder Votes with respect to such Orbital
Meeting or Orbital Consent, as the case may be, or, as set forth
in section 4.7 hereof, to attend such Orbital Meeting and to
exercise personally the Holder Votes thereat;
(c)a statement as to the manner in which such instructions may be given to the
Trustee, including an express indication that instructions may
be given to the Trustee to give:
(i) a proxy to such Holder or his designee to exercise personally
the Holder Votes; or
(ii) a proxy to a designated agent or other representative of the
management of Orbital to exercise such Holder Votes;
(d)a statement that if no such instructions are received from the Holder, the
Holder Votes to which such Holder is entitled will not be
exercised;
(e)a form of direction whereby the Holder may direct and instruct the Trustee
as contemplated herein (which form shall follow as closely as
practicable Orbital's form of proxy); and
(f)a statement of (i) the time and date by which such instructions must be
received by the Trustee in order to be binding upon it, which in
the case of an Orbital Meeting shall not be earlier than the
close of business on the second Business Day prior to such
meeting, and (ii) the method for revoking or amending such
instructions.
For the purpose of determining Holder Votes to which a Holder is entitled in
respect of any such Orbital Meeting or Orbital Consent, the number of
Exchangeable Shares owned of record by the Holder shall be determined at the
close of business on the record date established by Orbital or by applicable
law for purposes of determining stockholders entitled to vote at such Orbital
Meeting or to give written consent in connection with such Orbital Consent.
Orbital shall notify the Trustee of any decision of the board of directors of
Orbital with respect to the calling of any such Orbital Meeting or the seeking
by Orbital of any such Orbital Consent and shall provide all necessary
information and materials to the Trustee in each case promptly and in
sufficient time to enable the Trustee to perform its obligations contemplated
by this section 4.3 and in any event not later than two Business Days after
such decision has been made or such information and materials are available, as
the case may be.
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.4 COPIES OF STOCKHOLDER INFORMATION. Orbital shall deliver to the
Trustee copies of all proxy materials (including notices of Orbital Meetings
but excluding proxies to vote Orbital Common Shares), information statements,
reports (including without limitation all interim and annual financial
statements) and other written communications that are to be distributed by
Orbital from time to time to holders of Orbital Common Shares in sufficient
quantities and in sufficient time so as to enable the Trustee to send those
materials to each Holder at the same time as such materials are first sent to
holders of Orbital Common Shares. The Trustee shall mail or otherwise send to
each Holder, at the expense of Orbital, copies of all such materials (and all
materials specifically directed to the Holders or to the Trustee for the
benefit of the Holders by Orbital) received by the Trustee from Orbital at the
same time as such materials are first sent to holders of Orbital Common Shares.
The Trustee shall keep copies of all such materials available for inspection by
any Holder at the Trustee's principal office.
.5 OTHER MATERIALS. Immediately after receipt by Orbital or any
stockholder of Orbital of any material sent or given generally to the holders
of Orbital Common Shares by or on behalf of a third party, including without
limitation dissident proxy and information circulars (and related information
and material) and tender and exchange offer circulars (and related information
and material), Orbital shall use all commercially reasonable efforts to obtain
and deliver to the Trustee copies thereof in sufficient quantities so as to
enable the Trustee to forward such material (unless the same has been provided
directly to Holders by such third party) to each Holder as soon as possible
thereafter. As soon as practicable after receipt thereof, the Trustee shall
mail or otherwise send to each Holder, at the expense of Orbital, copies of all
such materials received by the Trustee from Orbital. The Trustee shall also
keep copies of all such materials available for inspection by any Holder at the
Trustee's principal office.
.6 LIST OF PERSONS ENTITLED TO VOTE. The Corporation shall, (a) prior
to each annual, general and special Orbital Meeting or the seeking of any
Orbital Consent and (b) forthwith upon each request made at any time by the
Trustee in writing, prepare or cause to be prepared a list (a "List") of the
names and addresses of the Holders arranged in alphabetical order and showing
the number of Exchangeable Shares held of record by each such Holder, in each
case at the close of business on the date specified by the Trustee in such
request or, in the case of a List prepared in connection with an Orbital
Meeting or an Orbital Consent, at the close of business on the record date
established by Orbital or pursuant to applicable law for determining the
holders of Orbital Common Shares entitled to receive notice of and/or to vote
at such Orbital Meeting or to give consent in connection with such Orbital
Consent. Each such List shall be delivered to the Trustee promptly after
receipt by the Corporation of such request or the record date for such meeting
or seeking of consent, as the case may be,
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and in any event within sufficient time as to enable the Trustee to perform its
obligations under this Agreement. Orbital agrees to give the Corporation
notice (with a copy to the Trustee) of the calling of any Orbital Meeting or
the seeking of any Orbital Consent, together with the record dates therefor,
sufficiently prior to the date of the calling of such meeting or seeking of
such consent so as to enable the Corporation to perform its obligations under
this section 4.6.
.7 ENTITLEMENT TO DIRECT VOTES. Any Holder named in a List prepared in
connection with any Orbital Meeting or any Orbital Consent shall be entitled
(a) to instruct the Trustee in the manner described in section 4.3 hereof with
respect to the exercise of the Holder Votes to which such Holder is entitled or
(b) to attend such meeting and personally to exercise thereat (or to exercise
with respect to any written consent), as the proxy of the Trustee, the Holder
Votes to which such Holder is entitled.
.8 VOTING BY TRUSTEE, AND ATTENDANCE OF TRUSTEE REPRESENTATIVE, AT
MEETING.
(a) In connection with each Orbital Meeting and Orbital Consent, the
Trustee shall exercise, either in person or by proxy, in
accordance with the instructions received from a Holder pursuant
to section 4.3 hereof, the Holder Votes as to which such Holder
is entitled to direct the vote (or any lesser number thereof as
may be set forth in the instructions); provided, however, that
such written instructions are received by the Trustee from the
Holder prior to the time and date fixed by it for receipt of
such instructions in the notice given by the Trustee to the
Holder pursuant to section 4.3 hereof.
(b)The Trustee shall cause such representatives as are empowered by it to sign
and deliver, on behalf of the Trustee, proxies for Voting Rights
to attend each Orbital Meeting. Upon submission by a Holder (or
its designee) of identification satisfactory to the Trustee's
representatives, and at the Holder's request, such
representatives shall sign and deliver to such Holder (or its
designee) a proxy to exercise personally the Holder Votes as to
which such Holder is otherwise entitled hereunder to direct the
vote, if such Holder either (i) has not previously given the
Trustee instructions pursuant to section 4.3 hereof in respect
of such meeting, or (ii) submits to the Trustee's
representatives written revocation of any such previous
instructions. At such meeting, the Holder exercising such
Holder Votes shall have the same rights as the Trustee to speak
at the meeting in respect of any matter, question or
proposition, to vote by way of ballot at the meeting in respect
of any matter, question or proposition and to vote
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at such meeting by way of a show of hands in respect of any
matter, question or proposition.
.9 DISTRIBUTION OF WRITTEN MATERIALS. Any written materials to be
distributed by the Trustee to the Holders pursuant to this Agreement shall be
delivered or sent by mail (or otherwise communicated in the same manner as
Orbital utilizes in communications to holders of Orbital Common Shares) to each
Holder at its address as shown on the books of the Corporation. The
Corporation shall provide or cause to be provided to the Trustee for this
purpose, on a timely basis and without charge or other expense:
(a) a List; and
(b) upon the request of the Trustee, mailing labels to enable the Trustee
to carry out its duties under this Agreement.
.10 TERMINATION OF VOTING RIGHTS. Except with respect to an Orbital
Meeting or Orbital Consent for which the record date has occurred, all of the
rights of a Holder with respect to the Holder Votes exercisable in respect of
the Exchangeable Shares held by such Holder, including the right to instruct
the Trustee as to the voting of or to vote personally such Holder Votes, shall
be deemed to be surrendered by the Holder to Orbital and such Holder Votes and
the Voting Rights represented thereby shall cease, unless Orbital shall not
have delivered the requisite Orbital Common Shares issuable in exchange
therefor directly to the Holder or otherwise pursuant to the Holder's
instruction or to the Trustee for delivery to the Holders, immediately upon the
delivery by such Holder to the Trustee of the certificates representing such
Exchangeable Shares in connection with the exercise by the Holder of the
Exchange Right or the occurrence of the automatic exchange pursuant to the
Automatic Exchange Rights (it being acknowledged that the Trustee is not
obligated to procure delivery of certificates representing Exchangeable Shares
in either of such events) or upon the redemption of Exchangeable Shares
pursuant to Article 5 or Article 6 of the Exchangeable Share Provisions, or
upon the effective date of the liquidation, dissolution or winding-up of the
Corporation pursuant to Article 4 of the Exchangeable Share Provisions, or upon
the purchase of Exchangeable Shares from the holder thereof by Orbital pursuant
to the exercise by Orbital of the Retraction Call Right, the Redemption Call
Right or the Liquidation Call Right.
.11 ISSUE OF ADDITIONAL SHARES. During the term of this Agreement,
Orbital will not issue or commit to issue any shares of Orbital Special Voting
Stock, in addition to the Voting Share.
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ARTICLE 5
EXCHANGE RIGHT AND AUTOMATIC EXCHANGE
.1 GRANT AND OWNERSHIP OF THE EXCHANGE RIGHT. In consideration of the
granting of the Call Rights to Orbital, Orbital hereby grants to the Trustee as
trustee for and on behalf of, and for the use and benefit of, the Holders (a)
the right (the "Exchange Right"), upon the occurrence and during the
continuance of an Insolvency Event or Default Event, to require Orbital to
purchase from each Holder all or any part of the Exchangeable Shares held by
such Holder and (b) the Automatic Exchange Rights, all in accordance with the
provisions of this Agreement. Orbital hereby acknowledges receipt from the
Trustee as trustee for and on behalf of the Holders of good and valuable
consideration (and the adequacy thereof) for the grant of the Exchange Right
and the Automatic Exchange Rights by Orbital to the Trustee. During the term
of the Trust and subject to the terms and conditions of this Agreement, the
Trustee shall possess and be vested with full legal ownership of the Exchange
Right and the Automatic Exchange Rights and shall be entitled to exercise all
of the rights and powers of an owner with respect to the Exchange Right and the
Automatic Exchange Rights, provided that the Trustee shall:
(a) hold the Exchange Right and the Automatic Exchange Rights and
the legal title thereto as trustee solely for the use and
benefit of the Holders in accordance with the provisions of this
Agreement; and
(b) except as specifically authorized by this Agreement, have no
power or authority to exercise or otherwise deal in or with the
Exchange Right or the Automatic Exchange Rights, and the Trustee
shall not exercise any such rights for any purpose other than
the purposes for which this Trust is created pursuant to this
Agreement.
.2 LEGENDED SHARE CERTIFICATES. The Corporation shall cause each
certificate representing Exchangeable Shares to bear an appropriate legend
notifying the Holders of:
(a)their right to instruct the Trustee with respect to the exercise of the
Exchange Right in respect of the Exchangeable Shares held by a
Holder; and
(b)the Automatic Exchange Rights.
.3 GENERAL EXERCISE OF EXCHANGE RIGHT. The Exchange Right shall be
and remain vested in and exercisable by the Trustee. Subject to section 6.15
hereof, the
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Trustee shall exercise the Exchange Right only on the basis of instructions
received pursuant to this Article 5 from Holders entitled to instruct the
Trustee as to the exercise thereof. To the extent that no instructions are
received from a Holder with respect to the Exchange Right, the Trustee shall
not exercise or permit the exercise of the Exchange Right as to that Holder.
.4 PURCHASE PRICE. The purchase price payable by Orbital for each
Exchangeable Share to be purchased by Orbital under the Exchange Right shall be
an amount per share equal to (a) the Current Market Price multiplied by the
Current Orbital Common Share Equivalent, in each case determined on the day of
closing of the purchase and sale of such Exchangeable Share under the Exchange
Right, which shall be satisfied in full in respect of the Exchangeable Shares
in regard to which a Holder has exercised the Exchange Right by causing to be
delivered to such Holder such whole number of Orbital Common Shares as is equal
to the product obtained by multiplying the number of such Exchangeable Shares
by the Current Orbital Common Share Equivalent (together with an amount in lieu
of any fractional Orbital Common Share resulting from such calculation payable
in accordance with section 9.4 of the Exchangeable Share Provisions), plus (b)
the aggregate of all dividends declared and unpaid on each such Exchangeable
Share (provided that if the record date for any such declared and unpaid
dividends occurs on or after the day of closing of such purchase and sale the
purchase price shall not include such declared and unpaid dividends). The sole
responsibility to calculate the purchase price and pay the same to the Holder
shall be that of Orbital and not the Trustee.
.5 EXERCISE INSTRUCTIONS. Subject to the terms and conditions herein
set forth, a Holder shall be entitled, upon the occurrence and during the
continuance of an Insolvency Event, to instruct the Trustee to exercise the
Exchange Right with respect to all or any part of the Exchangeable Shares
registered in the name of such Holder on the books of the Corporation. To
cause the exercise of the Exchange Right by the Trustee, the Holder shall
deliver to the Trustee, in person or by certified or registered mail, at its
principal office or at such other place as the Trustee may from time to time
designate by written notice to the Holders, the certificates representing the
Exchangeable Shares that such Holder desires Orbital to purchase, duly endorsed
in blank, and accompanied by such other documents and instruments as the
Trustee may reasonably require together with (a) a duly completed form of
notice of exercise of the Exchange Right, contained on the reverse of or
attached to the Exchangeable Share certificates, stating (i) that the Holder
thereby instructs the Trustee to exercise the Exchange Right so as to require
Orbital to purchase from the Holder the number of Exchangeable Shares specified
therein, (ii) that such Holder has good title to and owns all such Exchangeable
Shares to be acquired by Orbital free and clear of all Liens, (iii) the names
in which the certificates representing Orbital Common Shares issuable in
connection with the exercise of the Exchange Right are to be issued and (iv)
the names and addresses of the
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persons to whom such new certificates should be delivered and (b) payment
(or evidence satisfactory to the Trustee, the Corporation and Orbital of
payment) of the taxes (if any) payable as contemplated by section 5.8 of this
Agreement. If only a part of the Exchangeable Shares represented by any
certificate or certificates delivered to the Trustee are to be purchased by
Orbital under the Exchange Right, a new certificate for the balance of such
Exchangeable Shares shall be issued to the Holder at the expense of the
Corporation.
.6 DELIVERY OF ORBITAL COMMON SHARES: EFFECT OF EXERCISE. Promptly
after receipt of the certificates, duly endorsed in blank, representing the
Exchangeable Shares that are the subject of instructions to the Trustee
pursuant to section 5.5 (together with such documents and instruments of
transfer and a duly completed form of notice of exercise of the Exchange Right
(and payment of taxes, if any, or evidence thereof in accordance with section
5.8)), the Trustee shall notify Orbital and the Corporation of its receipt of
the same, which notice to Orbital and the Corporation shall constitute exercise
of the Exchange Right by the Trustee on behalf of the Holder of such
Exchangeable Shares, and Orbital shall immediately thereafter deliver or cause
to be delivered to the Holder of such Exchangeable Shares (or to such other
persons, if any, properly designated by such Holder), the certificates for the
number of Orbital Common Shares issuable in connection with the exercise of the
Exchange Right, which shares shall be duly issued as fully paid and
non-assessable and shall be free and clear of any Liens, and cheques for the
balance, if any, of the total purchase price therefor (or, if part of the
purchase price consists of dividends payable in property, such property or
property the same as or economically equivalent to such property). Immediately
upon the giving of notice by the Trustee to Orbital and the Corporation of the
exercise of the Exchange Right, as provided in this section 5.6, the closing of
the transaction of purchase and sale contemplated by the Exchange Right shall
be deemed to have occurred, and the Holder of such Exchangeable Shares shall be
deemed to have transferred to Orbital all of its right, title and interest in
and to such Exchangeable Shares and in the related interest in the Trust Estate
and shall cease to be a holder of such Exchangeable Shares and shall not be
entitled to exercise any of the rights of a holder in respect thereof, other
than the right to receive the purchase price therefor, unless the requisite
number of Orbital Common Shares (together with a cheque for the balance, if
any, of the purchase price therefor or, if part of the purchase price consists
of dividends payable in property, such property or property the same as or
economically equivalent to such property) is not allotted, issued and delivered
by Orbital to such Holder (or to other persons, if any, properly designated by
such Holder) within five Business Days of the date of the giving of such notice
by the Trustee, in which case the rights of the Holder shall remain unaffected
until such Orbital Common Shares are so allotted, issued and delivered by
Orbital and any such cheque is so delivered and paid. Concurrently with such
Holder ceasing to be a holder of Exchangeable Shares, the
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Holder shall be considered and deemed for all purposes to be the holder of the
Orbital Common Shares delivered to it pursuant to the Exchange Right.
.7 EXERCISE OF EXCHANGE RIGHT SUBSEQUENT TO RETRACTION. In the event
that a Holder has exercised its right under Article 5 of the Exchangeable Share
Provisions to require the Corporation to redeem any or all of the Exchangeable
Shares held by the Holder (the "Retracted Shares") and is notified by the
Corporation pursuant to section 5.6 of the Exchangeable Share Provisions that
the Corporation is not permitted as a result of solvency requirements of
applicable law to redeem all of such Retracted Shares, and provided that
Orbital shall not have exercised the Retraction Call Right with respect to the
Retracted Shares, the retraction request shall constitute and shall be deemed
to constitute notice from the Holder to the Trustee instructing the Trustee to
exercise the Exchange Right with respect to those Retracted Shares that the
Corporation is unable to redeem. In any such event, the Corporation hereby
agrees with the Trustee and in favour of the Holder immediately to notify the
Trustee of such prohibition against the Corporation redeeming all of the
Retracted Shares and immediately to forward or cause to be forwarded to the
Trustee all relevant materials delivered by the Holder to the Corporation or to
the transfer agent of the Exchangeable Shares (including without limitation a
copy of the retraction request delivered pursuant to section 5.1 of the
Exchangeable Share Provisions) in connection with such proposed redemption of
the Retracted Shares and the Trustee shall thereupon exercise the Exchange
Right with respect to the Retracted Shares that the Corporation is not
permitted to redeem and will require Orbital to purchase such shares in
accordance with the provisions of this Article 5.
.8 STAMP OR OTHER TRANSFER TAXES. Upon any sale of Exchangeable Shares
to Orbital pursuant to the Exchange Right or the Automatic Exchange Rights, the
share certificate or certificates representing Orbital Common Shares to be
delivered in connection with the payment of the purchase price therefor shall
be issued in the name of the Holder of the Exchangeable Shares so sold or in
such names as such Holder may otherwise direct in writing without charge to the
holder of the Exchangeable Shares so sold, provided, however, that such Holder
(a) shall pay (and neither Orbital, the Corporation nor the Trustee shall be
required to pay) any documentary, stamp, transfer or other similar taxes that
may be payable in respect of any transfer involved in the issuance or delivery
of such shares to a person other than such Holder or (b) shall establish to the
satisfaction of the Trustee, Orbital and the Corporation that such taxes, if
any, have been paid.
.9 NOTICE OF INSOLVENCY EVENT OR DEFAULT EVENT. Immediately upon the
occurrence of an Insolvency Event or Default Event or any event that with the
giving of notice or the passage of time or both would be an Insolvency Event or
Default Event, the Corporation and Orbital shall give written notice thereof to
the Trustee. As soon as
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practicable after receiving notice from the Corporation and Orbital or from
any other person of the occurrence of an Insolvency Event or Default Event, the
Trustee shall mail to each Holder, at the expense of Orbital, a notice of such
Insolvency Event or Default Event, which notice shall be sufficient if it
references this Agreement and that an event has occurred that, pursuant to this
Agreement, entitles Holders to instruct the Trustee to cause Orbital to
exchange Orbital Common Shares for Exchangeable Shares.
.10 QUALIFICATION OF ORBITAL COMMON SHARES. Unless the staff of the
United States Securities and Exchange Commission (the "SEC") has confirmed the
availability of an exemption from registration under the United States
Securities Act of 1933, as amended (the "Securities Act") as to the issuance of
the Orbital Common Shares in exchange for the Exchangeable Shares pursuant to
the Plan of Arrangement and the Exchangeable Share Provisions or this
Agreement, in response to the No Action Request (as defined in the Combination
Agreement) or Orbital has received an opinion of counsel reasonably
satisfactory to the Corporation to such effect, then Orbital shall cause such
issuance to be registered under the Securities Act, and shall file a
registration statement covering such issuance with the SEC and use all
commercially reasonable efforts to cause such registration statement to become
effective as soon as practicable and remain effective throughout the period
during which the Exchangeable Shares may be exchanged in accordance with the
Plan of Arrangement, the Exchangeable Share Provisions or this Agreement.
Orbital agrees to file any such required registration statement as soon as
reasonably practicable. Orbital shall use all reasonable efforts to obtain all
orders required from the applicable Canadian securities authorities to permit
the issuance of the Orbital Common Shares upon any such exchange of the
Exchangeable Shares without registration or qualification with or approval of
or the filing of any document including any prospectus or similar document or
the taking of any proceeding with or the obtaining of any order, ruling or
consent from any governmental or regulatory authority under any Canadian
federal or provincial law or regulation or pursuant to the rules and
regulations of any regulatory authority or the fulfilment of any other legal
requirement before such Orbital Common Shares may be issued and delivered by
the Corporation or Orbital to the holder thereof or in order that such Orbital
Common Shares may be freely traded thereafter (other than any restrictions on
transfer by reason of a holder being a "control person" of the Corporation or
Orbital for purposes of Canadian federal or provincial securities law or an
"affiliate" for purposes of United States Federal or state securities law).
The obligations of the Trustee with respect to the Exchange Right and the
Automatic Exchange Rights shall in all respects be subject to the Trustee being
satisfied that all applicable laws and regulations with respect thereto and the
issuance of Orbital Common Shares in connection with the exercise thereof have
been complied with.
.11 RESERVATION OF ORBITAL COMMON SHARES. Orbital hereby represents and
warrants that it has irrevocably reserved for issuance out of its authorized
and
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unissued capital stock such number of Orbital Common Shares as is equal to the
number of Exchangeable Shares outstanding at the date hereof and covenants that
it will at all times keep available, free from pre-emptive and other rights,
out of its authorized and unissued capital stock such number of Orbital Common
Shares (or other shares or securities into which Orbital Common Shares may be
reclassified or changed) as is necessary to enable Orbital and the Corporation
to perform their respective obligations pursuant to this Agreement, the
Exchangeable Share Provisions and the Support Agreement.
.12 AUTOMATIC EXCHANGE ON LIQUIDATION OF ORBITAL.
(a) Orbital shall give the Trustee notice of each of the following events
(a "Liquidation Event") at the time set forth below:
(i) in the event of any determination by the Board of Directors
of Orbital to institute voluntary liquidation, dissolution
or winding-up proceedings with respect to Orbital or to
effect any other distribution of assets of Orbital among
its stockholders for the purpose of winding up its affairs,
at least 60 days prior to the proposed effective date of
such liquidation, dissolution, winding-up or other
distribution; and
(ii) immediately, upon the earlier of (A) receipt by Orbital of
notice of and (B) Orbital otherwise becoming aware of any
threatened or instituted claim, suit, petition or other
proceedings with respect to the involuntary liquidation,
dissolution or winding up of Orbital or to effect any other
distribution of assets of Orbital among its stockholders
for the purpose of winding up its affairs.
(b) Immediately following receipt by the Trustee from Orbital of notice
of any Liquidation Event, the Trustee shall give notice thereof to the Holders.
Such notice shall be sufficient if it references this Agreement and that an
event has occurred that, pursuant to this Agreement, causes the Exchangeable
Shares to be exchanged automatically for Orbital Common Shares.
(c) In order that the Holders will be able to participate on a pro rata
basis with the holders of Orbital Common Shares in the distribution of assets
of Orbital in connection with a Liquidation Event, on the fifth Business Day
prior to the effective date of a Liquidation Event (the "Liquidation Event
Effective Date") all of the then outstanding Exchangeable Shares shall be
automatically exchanged for Orbital Common Shares. To effect such automatic
exchange, Orbital shall purchase each Exchangeable Share outstanding on the
fifth Business Day prior to the Liquidation
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Event Effective Date and held by Holders, and each Holder shall sell the
Exchangeable Shares held by it at such time, for a purchase price per share
equal to (a) the Current Market Price multiplied by the Current Orbital Common
Share Equivalent on such fifth Business Day prior to the Liquidation Event
Effective Date, which shall be satisfied in full in respect of the Exchangeable
Shares held by each Holder by Orbital by issuing to such Holder such whole
number of Orbital Common Shares as is equal to the product obtained by
multiplying the number of such Exchangeable Shares by the Current Orbital
Common Share Equivalent (together with an amount in lieu of any fractional
Orbital Common Share resulting from such calculation payable in accordance with
section 9.4 of the Exchangeable Share Provisions), plus (b) an additional
amount equal to the aggregate of all dividends declared and unpaid on each such
Exchangeable Share (provided that if the record date for any such declared and
unpaid dividends occurs on or after the day of closing of such purchase and
sale, the purchase price shall not include such additional amount equal to such
declared and unpaid dividends).
(d) On the fifth Business Day prior to the Liquidation Event
Effective Date, the closing of the transaction of purchase and sale
contemplated by the automatic exchange of Exchangeable Shares for Orbital
Common Shares shall be deemed to have occurred, and each Holder of Exchangeable
Shares shall be deemed to have transferred to Orbital all of the Holder's
right, title and interest in and to such Exchangeable Shares and the related
interest in the Trust Estate and shall cease to be a Holder of such
Exchangeable Shares and Orbital shall issue to the Holder the Orbital Common
Shares issuable upon the automatic exchange of Exchangeable Shares for Orbital
Common Shares and shall deliver to the Holder a cheque for the balance, if any,
of the purchase price for such Exchangeable Shares (or, if any part of the
purchase price consists of dividends payable in property, such property or
property that is the same as or economically equivalent to such property).
Concurrently with such Holder ceasing to be a holder of Exchangeable Shares,
the Holder shall be considered and deemed for all purposes to be the holder of
the Orbital Common Shares issued to it pursuant to the automatic exchange of
Exchangeable Shares for Orbital Common Shares and the certificates held by the
Holder previously representing the Exchangeable Shares exchanged by the Holder
with Orbital pursuant to such automatic exchange shall thereafter be deemed to
represent the Orbital Common Shares issued to the Holder by Orbital pursuant to
such automatic exchange. Upon the request of a Holder and the surrender by the
Holder of Exchangeable Share certificates deemed to represent Orbital Common
Shares, duly endorsed in blank and accompanied by such instruments of transfer
as Orbital may reasonably require, Orbital shall deliver or cause to be
delivered to the Holder certificates representing the Orbital Common Shares of
which the Holder is the holder.
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ARTICLE 6
CONCERNING THE TRUSTEE
.1 POWERS AND DUTIES OF THE TRUSTEE. The rights, powers and authorities
of the Trustee under this Agreement, in its capacity as trustee of the Trust,
shall include:
(a) purchasing the Voting Share from Orbital as trustee for and on
behalf of the Holders in accordance with the provisions of this
Agreement;
(b) granting proxies and distributing materials to Holders as
provided in this Agreement;
(c)voting the Holder Votes in accordance with the provisions of this Agreement;
(d)receiving the grant of the Exchange Right and the Automatic Exchange Rights
from Orbital as trustee for and on behalf of the Holders in
accordance with the provisions of this Agreement;
(e)exercising the Exchange Right and requiring Orbital to honour the Automatic
Exchange Rights, in each case in accordance with the provisions
of this Agreement and in connection therewith receiving from
Holders certificates representing Exchangeable Shares and other
requisite documents and distributing to such Holders, upon
receipt thereof from Orbital, the Orbital Common Shares and
cheques, if any, to which such Holders are entitled upon the
exercise of the Exchange Right or pursuant to the Automatic
Exchange Rights, as the case may be;
(f) holding title to the Trust Estate as trustee for, and for the
benefit of, the Holders;
(g) investing any moneys forming, from time to time, a part of the
Trust Estate as provided in this Agreement;
(h) taking action at the direction of a Holder or Holders to enforce
the obligations of Orbital under this Agreement; and
(i) taking such other actions and doing such other things as are
specifically provided in this Agreement.
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In the exercise of such rights powers and authorities the
Trustee shall have (and is granted) such incidental and additional rights,
powers and authority not in conflict with any of the provisions of this
Agreement as the Trustee, acting in good faith and in the reasonable exercise
of its discretion, may deem necessary, appropriate or desirable to effect the
purpose of the Trust, provided that the Trustee need perform only those duties
and obligations that are specifically set forth in this Agreement and no other
duties or obligations shall be read into this Agreement. Any exercise of such
discretionary rights, powers and authorities by the Trustee shall be final,
conclusive and binding upon all persons. For greater certainty, the Trustee
shall have only those duties as are set out specifically in this Agreement.
The Trustee in exercising its rights, powers, duties and
authorities hereunder shall act reasonably and in good faith with a view to the
best interests of the Holders and shall exercise the care, diligence and skill
that a reasonably prudent person would exercise in comparable circumstances in
the exercise of his or her own affairs.
The Trustee shall not be deemed to have notice of any fact,
claim, demand, event or matter with respect hereto unless actually known by an
officer charged with responsibility for administering this Agreement or unless
in writing received by the Trustee and specifically referencing this Agreement.
The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within its rights or
powers, provided that the Trustee's conduct does not constitute negligence or
bad faith.
.2 NO CONFLICT OF INTEREST. The Trustee represents to the Corporation
and Orbital that at the date of execution and delivery of this Agreement there
exists no material conflict of interest in the role of the Trustee as a
fiduciary hereunder and the role of the Trustee in any other capacity. The
Trustee shall, within 30 days after it becomes aware that such a material
conflict of interest exists, either eliminate such material conflict of
interest or resign in the manner and with the effect specified in Article 9
hereof. If, notwithstanding the foregoing provisions of this section 6.2, the
Trustee has such a material conflict of interest, the validity and
enforceability of this Agreement shall not be affected in any manner whatsoever
by reason only of the existence of such material conflict of interest. If the
Trustee contravenes the foregoing provisions of this section 6.2, any
interested party may apply to the Supreme Court of British Columbia (Trial
Division) for an order that the Trustee be replaced as trustee hereunder.
.3 DEALINGS WITH TRANSFER AGENTS, REGISTRARS, ETC. The Corporation and
Orbital irrevocably authorize the Trustee, from time to time, to:
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(a) consult, communicate and otherwise deal with the respective
registrars and transfer agents, and with any such subsequent
registrar or transfer agent, of the Exchangeable Shares and Orbital
Common Shares; and
(b) requisition, from time to time, (i) from any such registrar or
transfer agent any information readily available from the records
maintained by it which the Trustee may reasonably require for the
discharge of its duties and responsibilities under this Agreement and
(ii) from the transfer agent of Orbital Common Shares, and any
subsequent transfer agent of such shares, the share certificates
issuable upon the exercise from time to time of the Exchange Right
and pursuant to the Automatic Exchange Rights in the manner specified
in Article 5 hereof.
The Corporation and Orbital irrevocably authorize their respective registrars
and transfer agents to comply with all such requests. Orbital covenants that
it will supply its transfer agent with duly executed share certificates for the
purpose of completing the exercise from time to time of the Exchange Right and
the Automatic Exchange Rights, in each case pursuant to Article 5 hereof.
.4 BOOKS AND RECORDS. The Trustee shall keep available for inspection
by Orbital and the Corporation, at the Trustee's principal office, correct and
complete books and records of account relating to the Trustee's actions under
this Agreement, including without limitation all information relating to
mailings and instructions to and from Holders and all transactions pursuant to
the Voting Rights, the Exchange Right and the Automatic Exchange Rights for the
term of this Agreement. On or before March 31, 1996, and on or before March 31
in every year thereafter, so long as the Voting Share is on deposit with the
Trustee, the Trustee shall transmit to Orbital and the Corporation a brief
report, dated as of the preceding December 31, with respect to:
(a) the property and funds comprising the Trust Estate as of that date;
(b) the number of exercises of the Exchange Right, if any, and the
aggregate number of Exchangeable Shares received by the Trustee on
behalf of Holders in consideration of the issue and delivery by
Orbital of Orbital Common Shares in connection with the Exchange
Right, during the calendar year ended on such date; and
(c) all other actions taken by the Trustee in the performance of its
duties under this Agreement that it had not previously reported.
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.5 INCOME TAX RETURNS AND REPORTS. The Trustee shall, to the extent
necessary, prepare and file on behalf of the Trust, and at Orbital's expense,
appropriate United States and Canadian income tax returns and any other returns
or reports as may be required by applicable law or pursuant to the rules and
regulations of any securities exchange or other trading system through which
the Exchangeable Shares are traded and, in connection therewith, may obtain the
advice and assistance of such experts as the Trustee may consider necessary or
advisable and Orbital shall pay the reasonable fees and disbursements of such
experts.
.6 INDEMNIFICATION PRIOR TO CERTAIN ACTIONS BY TRUSTEE. The Trustee
shall exercise any or all of the rights, duties, powers or authorities vested
in it by this Agreement at the request, order or direction of any Holder upon
such Holder furnishing to the Trustee reasonable funding, security and
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities (including the reasonable fees and expenses of its attorneys and
agents) that may be incurred by the Trustee therein or thereby, provided that
no Holder shall be obligated to furnish to the Trustee any such funding,
security or indemnity in connection with the exercise by the Trustee of any of
its rights, duties, powers and authorities with respect to (i) the Voting Share
pursuant to Article 4 hereof, subject to section 6.15 hereof, (ii) the Exchange
Right pursuant to Article 5 hereof, subject to section 6.15 hereof, and (iii)
the Automatic Exchange Rights pursuant to Article 5 hereof.
None of the provisions contained in this Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the exercise of any of its rights, powers, duties or authorities unless
funded and given security and indemnity as aforesaid.
.7 ACTIONS BY HOLDERS. No Holder shall have the right to institute any
action, suit or proceeding or to exercise any other remedy authorized by this
Agreement for the purpose of enforcing any of its rights or for the execution
of any trust or power hereunder unless the Holder has requested the Trustee to
take or institute such action, suit or proceeding and furnished the Trustee
with the funding, security and indemnity referred to in section 6.6 hereof and
the Trustee shall have failed to act within 60 days thereafter. In such case,
but not otherwise, the Holder shall be entitled to take proceedings in any
court of competent jurisdiction such as the Trustee might have taken, it being
understood and intended that no one or more Holders shall have any right in any
manner whatsoever to affect, disturb or prejudice the rights hereby created by
any such action, or to enforce any right hereunder or under the Voting Rights,
the Exchange Right or the Automatic Exchange Rights except subject to the
conditions and in the manner herein provided, and that all powers and trusts
hereunder shall be exercised and all proceedings at law shall be instituted,
had and maintained by the
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Trustee, except only as herein provided, and in any event for the equal benefit
of all Holders.
.8 RELIANCE UPON DECLARATIONS. The Trustee shall not be considered to
be in contravention of any of its rights, powers, duties and authorities
hereunder if, when required, it acts and relies in good faith upon lists,
mailing labels, notices, statutory declarations, certificates, opinions,
reports or other papers or documents furnished pursuant to the provisions
hereof or required by the Trustee to be furnished to it in the exercise of its
rights, powers, duties and authorities hereunder and such lists, mailing
labels, notices, statutory declarations, certificates, opinions, reports or
other papers or documents conform on their face with the provisions of section
6.9 hereof, if applicable, and with any other applicable provisions of this
Agreement. The Trustee shall not be bound to make any investigation into the
facts or matters stated in any notice, statutory declaration, certificate,
report, request, direction, consent or other paper or document furnished to it,
but the Trustee may, in its discretion, make such further inquiry or
investigation into such facts or matters as it may see fit.
.9 EVIDENCE AND AUTHORITY TO TRUSTEE. The Corporation and/or Orbital
shall furnish to the Trustee evidence of compliance with the conditions
provided for in this Agreement relating to any action or step required or
permitted to be taken by the Corporation and/or Orbital or the Trustee under
this Agreement or as a result of any obligation imposed under this Agreement,
including, without limitation, in respect of the Voting Rights, the Exchange
Right or the Automatic Exchange Rights and the taking of any other action to be
taken by the Trustee at the request of or on the application of the Corporation
and/or Orbital forthwith if and when:
(a) such evidence is required by any other section of this Agreement to
be furnished to the Trustee in accordance with the terms of this
section 6.9; or
(b) the Trustee, in the exercise of its rights, powers, duties and
authorities under this Agreement, gives the Corporation and/or
Orbital written notice requiring it to furnish such evidence in
relation to any particular action or obligation specified in such
notice.
Such evidence shall consist of an Officer's Certificate of the
Corporation and/or Orbital or a statutory declaration or a certificate made by
persons entitled to sign an Officer's Certificate stating that any such
condition has been complied with in accordance with the terms of this
Agreement. The Trustee shall not be liable for any action it takes or omits to
take in good faith in accordance with any such declaration or certificate.
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Whenever such evidence relates to a matter other than the Voting
Rights, the Exchange Right or the Automatic Exchange Rights, and except as
otherwise specifically provided herein, such evidence may consist of a report
or opinion of any solicitor, auditor, accountant, appraiser, valuer, engineer
or other expert or any other person whose qualifications give authority to a
statement made by him, provided that if such report or opinion is furnished by
a director, officer or employee of the Corporation and/or Orbital it shall be
in the form of an Officer's Certificate or a statutory declaration.
Each statutory declaration, certificate, opinion or report furnished
to the Trustee as evidence of compliance with a condition provided for in this
Agreement shall include a statement by the person giving the evidence:
(a) declaring that he has read and understands the provisions of this
Agreement relating to the condition in question;
(b) describing the nature and scope of the examination or investigation
upon which he based the statutory declaration, certificate, statement
or opinion; and
(c) declaring that he has made such examination or investigation as he
believes is necessary to enable him to make the statements or give
the opinions contained or expressed therein.
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.10 EXPERTS, ADVISERS AND AGENTS.
The Trustee may:
(a) in relation to this Agreement act and rely on the opinion or advice
of or information obtained from any lawyer, accountant, appraiser,
valuer, engineer or other expert, whether retained by the Trustee or
by the Corporation and/or Orbital or otherwise, and shall be fully
and completely protected from liability in acting or relying thereon;
and
(b) retain such lawyers, accountants, appraisers, valuers, engineers and
other experts as it may reasonably require for the proper discharge
of its powers and duties hereunder, shall not be responsible for the
misconduct or negligence of any such expert, and may pay, at
Orbital's expense, reasonable remuneration for all services performed
for it in the discharge of the trusts hereof and compensation for all
disbursements, costs and expenses made or incurred by it in the
discharge of its duties hereunder and in the management of the Trust,
including the reasonable fees and disbursements of such experts.
.11 INVESTMENT OF MONEYS HELD BY TRUSTEE. Unless otherwise provided in
this Agreement, any moneys held by the Trustee that under the terms of this
Agreement may be invested shall be invested and reinvested in accordance with
the written direction of the Corporation in the name or under the control of
the Trustee or its nominee in securities in which, under the laws of the
Commonwealth of Massachusetts, trustees are authorized to invest trust moneys,
provided that such securities are stated to mature within two years after their
purchase by the Trustee. Absent such written direction, the Trustee shall not
be responsible for the investment of any moneys received by it. The Trustee
shall have no responsibility for any losses on any investment made by it
hereunder. Pending the investment of any moneys as hereinbefore provided, such
moneys may be (but shall not be required to be) deposited
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in the name of the Trustee or its nominee in any bank in the United States
approved by the Corporation or, with the consent of the Corporation, in the
deposit department of the Trustee at the rate of interest then current on
similar deposits.
.12 TRUSTEE NOT REQUIRED TO GIVE SECURITY. The Trustee shall not be
required to give any bond or security in respect of the execution of the
trusts, rights, duties, powers and authorities of this Agreement.
.13 TRUSTEE NOT BOUND TO ACT ON CORPORATION'S REQUEST. Except as in this
Agreement otherwise specifically provided, the Trustee shall not be bound to
act in accordance with any direction or request of the Corporation and/or
Orbital or of the directors thereof until a duly authenticated copy of the
instrument or resolution containing such direction or request shall have been
delivered to the Trustee, and the Trustee shall be empowered to act and rely
upon any such copy purporting to be authenticated and believed by the Trustee
to be genuine; provided that the Trustee shall not be under any obligation to
take any action hereunder that may involve it in any expense for which
indemnification reasonably satisfactory to it is not made available. In no
event shall the Trustee be liable for the acts or omissions of the Corporation
and/or Orbital or any other person and the Trustee shall not be liable for any
distributions, payments or other actions made in accordance with the
instructions of the Corporation and/or Orbital.
.14 AUTHORITY TO CARRY ON BUSINESS. The Trustee represents to the
Corporation and Orbital that at the date of execution and delivery by it of
this Agreement it is authorized to perform its obligations pursuant to this
Agreement under all applicable laws but if, notwithstanding the provisions of
this section 6.14, it ceases to be so authorized, the validity and
enforceability of this Agreement and the Voting Rights, the Exchange Right and
the Automatic Exchange Rights shall not be affected in any manner whatsoever by
reason only of such event but the Trustee shall, within 30 days after ceasing
to be so authorized, either become so authorized or resign in the manner and
with the effect specified in Article 9 hereof.
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.15 CONFLICTING CLAIMS. If conflicting claims or demands are made or
asserted with respect to any interest of any Holder in any Exchangeable Shares,
including any disagreement between the heirs, representatives, successors or
assigns succeeding to all or any part of the interest of any Holder in any
Exchangeable Shares resulting in conflicting claims or demands being made in
connection with such interest, then the Trustee shall be entitled, at its sole
discretion, to refuse to recognize or to comply with any such claim or demand.
In so refusing, the Trustee may elect not to exercise any Voting Rights,
Exchange Right or Automatic Exchange Rights subject to such conflicting claims
or demands and, in so doing, the Trustee shall not be or become liable to any
person on account of such election or its failure or refusal to comply with any
such conflicting claims or demands. The Trustee shall be entitled to continue
to refrain from acting and to refuse to act until:
(a) the rights of all adverse claimants with respect to the Voting
Rights, Exchange Right or Automatic Exchange Rights subject to such
conflicting claims or demands have been adjudicated by a final
judgment of a court of competent jurisdiction; or
(b) all differences with respect to the Voting Rights, Exchange Right or
Automatic Exchange Rights subject to such conflicting claims or
demands have been conclusively settled by a valid written agreement
binding on all such adverse claimants, and the Trustee shall have
been furnished with an executed copy of such agreement.
If the Trustee elects to recognize any claim or comply with any demand made by
any such adverse claimant, it may in its discretion require such claimant to
furnish such surety bond or other security satisfactory to the Trustee as it
shall deem appropriate fully to indemnify it as between all conflicting claims
or demands.
.16 ACCEPTANCE OF TRUST. The Trustee hereby accepts the Trust created
and provided for by and in this Agreement and agrees to perform the same upon
the terms and conditions herein set forth and to hold all rights, privileges
and benefits
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conferred hereby and by law in trust for the various persons who shall from
time to time be Holders, subject to all the terms and conditions herein set
forth.
ARTICLE 7
COMPENSATION
.1 FEES AND EXPENSES OF THE TRUSTEE. Orbital and the Corporation
jointly and severally agree to pay to the Trustee reasonable compensation for
entering into this Agreement and for all of the services rendered by it under
this Agreement and will reimburse the Trustee for all reasonable expenses and
disbursements, including the cost and expense (including fees and expenses of
its lawyers) of any suit or litigation of any character and any proceedings
before any governmental agency reasonably incurred by the Trustee in connection
with its rights and duties under this Agreement; provided that Orbital and the
Corporation shall have no obligation to reimburse the Trustee for any expenses
or disbursements paid, incurred or suffered by the Trustee in any suit or
litigation in which the Trustee is determined by final judgment of a court of
competent jurisdiction to have acted fraudulently, in bad faith or with
negligence or wilful misconduct if such expenses or disbursements are the
result of or caused by such fraud, bad faith, negligence or wilful misconduct.
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ARTICLE 8
INDEMNIFICATION AND LIMITATION OF LIABILITY
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.1 INDEMNIFICATION OF THE TRUSTEE. Orbital and the Corporation jointly
and severally agree to indemnify and hold harmless the Trustee and each of its
directors, officers, employees and agents appointed and acting in accordance
with this Agreement (collectively the "Indemnified Parties") against all
claims, losses, damages, costs, taxes (other than income taxes imposed on the
Trustee), penalties, fines and reasonable expenses (including reasonable
expenses of the Trustee's legal counsel) which, without fraud, negligence,
wilful misconduct or bad faith on the part of such Indemnified Party, may be
paid, incurred or suffered by the Indemnified Party by reason of or as a result
of the Trustee's acceptance or administration of the Trust, its compliance with
its duties set forth in this Agreement, or any written or oral instructions
delivered to the Trustee by Orbital or the Corporation pursuant hereto. In no
case shall Orbital or the Corporation be liable under this indemnity for any
claim against any of the Indemnified Parties unless Orbital and the Corporation
shall be notified by the Trustee of the written assertion of a claim or of any
action commenced against the Indemnified Parties, promptly after any of the
Indemnified Parties shall have received any such written assertion of a claim
or shall have been served with a summons or other first legal process giving
information as to the nature and basis of the claim. Subject to (ii), below,
Orbital and the Corporation shall be entitled to participate at their own
expense in the defense and, if Orbital or the Corporation so elect at any time
after receipt of such notice, either of them may assume the defence of any suit
brought to enforce any such claim. The Trustee shall have the right to employ
separate counsel in any such suit and participate in the defence thereof but
the fees and expenses of such counsel shall be at the expense of the Trustee
unless: (i) the employment of such counsel has been authorized by Orbital or
the Corporation; or (ii) the named parties to any such suit include both the
Trustee and Orbital or the Corporation and the Trustee shall have been advised
by counsel acceptable to Orbital or the Corporation that there may be one or
more legal defences available to the Trustee that are different from or in
addition to those available to Orbital or the Corporation and that an actual or
potential conflict of interest exists (in which case Orbital and the
Corporation shall not have the right to assume the defence of such suit on
behalf of the Trustee but shall be liable to pay the reasonable fees and
expenses of
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counsel for the Trustee). The indemnifications set forth in this Agreement
shall survive the termination hereof.
.2 LIMITATION OF LIABILITY. The Trustee shall not be held liable for
any loss that may occur by reason of depreciation of the value of any part of
the Trust Estate or any loss incurred on any investment of funds pursuant to
this Agreement.
ARTICLE 9
CHANGE OF TRUSTEE
.1 RESIGNATION. The Trustee, or any trustee hereafter appointed, may at
any time resign by giving written notice of such resignation to Orbital and the
Corporation specifying the date on which it desires to resign, provided that
such notice shall never be given less than 60 days before such desired
resignation date unless Orbital and the Corporation otherwise agree and
provided further that such resignation shall not take effect until the date of
the appointment of a successor trustee and the acceptance of such appointment
by the successor trustee. Upon receiving such notice of resignation, Orbital
and the Corporation shall promptly appoint a successor trustee by written
instrument in duplicate, one copy of which shall be delivered to the resigning
trustee and one copy to the successor trustee. Failing acceptance by a
successor trustee, a successor trustee may be appointed by an order of the
Supreme Court of British Columbia (Trial Division) upon application of one or
more of the parties hereto.
.2 REMOVAL. The Trustee, or any trustee hereafter appointed, may be
removed with or without cause, at any time on 60 days' prior notice by written
instrument executed by Orbital and the Corporation, in duplicate, one copy of
which shall be delivered to the trustee so removed and one copy to the
successor trustee.
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.3 SUCCESSOR TRUSTEE. Any successor trustee appointed as provided under
this Agreement shall execute, acknowledge and deliver to Orbital and the
Corporation and to its predecessor trustee an instrument accepting such
appointment. Thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as trustee in this Agreement. However, on the written request
of Orbital and the Corporation or of the successor trustee, the trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the
provisions of this Agreement, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so ceasing to
act. Upon the request of any such successor trustee, Orbital, the Corporation
and such predecessor trustee shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers.
.4 NOTICE OF SUCCESSOR TRUSTEE. Upon acceptance of appointment by a
successor trustee as provided herein, Orbital and the Corporation shall cause
to be mailed notice of the succession of such trustee hereunder to each Holder
specified in a List. If Orbital or the Corporation shall fail to cause such
notice to be mailed within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of Orbital and the Corporation.
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ARTICLE 10
ORBITAL SUCCESSORS
.1 CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC. Orbital shall
not enter into any transaction (whether by way of reconstruction,
reorganization, consolidation, merger, transfer, sale, lease or otherwise)
whereby all or substantially all of its undertaking, property and assets would
become the property of any other person or, in the case of a merger, of the
continuing corporation resulting therefrom, unless:
(a) such other person or continuing corporation is a corporation (herein
called the "Orbital Successor") incorporated under the laws of any
state of the United States or the laws of Canada or any province
thereof; and
(b) Orbital Successor, by operation of law, becomes, without more, bound
by the terms and provisions of this Agreement or, if not so bound,
executes, prior to or contemporaneously with the consummation of such
transaction an agreement supplemental hereto and such other
instruments (if any) as are satisfactory to the Trustee acting
reasonably to evidence the assumption by Orbital Successor of
liability for all moneys payable and property deliverable hereunder
and the covenant of such Orbital Successor to pay and deliver or
cause to be delivered the same and its agreement to observe and
perform all the covenants and obligations of Orbital under this
Agreement.
.2 VESTING OF POWERS IN SUCCESSOR. Whenever the conditions of section
10.1 hereof have been duly observed and performed, the Trustee, if required, by
section 10.1 hereof, Orbital Successor and the Corporation shall execute and
deliver the supplemental agreement provided for in Article 11 hereof and
thereupon Orbital Successor shall possess and from time to time may exercise
each and every right and power of Orbital under this Agreement in the name of
Orbital or otherwise and any act or proceeding by any provision of this
Agreement required to be done or performed by
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the board of directors of Orbital or any officers of Orbital may be done and
performed with like force and effect by the directors or officers of such
Orbital Successor.
.3 WHOLLY-OWNED SUBSIDIARIES. Nothing herein shall be construed as
preventing the amalgamation or merger of any wholly-owned subsidiary of Orbital
with or into Orbital.
ARTICLE 11
AMENDMENTS AND SUPPLEMENTAL TRUST AGREEMENTS
.1 AMENDMENTS, MODIFICATIONS, ETC. This Agreement may not be amended or
modified except by an agreement in writing executed by the Corporation, Orbital
and the Trustee and approved by the Holders in accordance with section 8.2 of
the Exchangeable Share Provisions.
.2 MINISTERIAL AMENDMENTS. Notwithstanding the provisions of section
11.1 hereof, the parties to this Agreement may in writing, at any time and from
time to time, without the approval of the Holders, amend or modify this
Agreement for the purposes of:
(a) adding to the covenants of any or all of the parties hereto for the
protection of the Holders hereunder;
(b) making such amendments or modifications not inconsistent with this
Agreement as may be necessary or desirable with respect to matters or
questions that, in the opinion of the Board of Directors of each of
Orbital and Corporation and in the opinion of the Trustee, having in
mind the best interests of the Holders as a whole, it may be
expedient to make, provided that such boards of directors and the
Trustee shall be of the
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opinion that such amendments and modifications will not be
prejudicial to the interests of the Holders as a whole; or
(c) making such changes or corrections required for the purpose of curing
or correcting any ambiguity or defect or inconsistent provision or
clerical omission or mistake or manifest error, provided that the
Trustee and the Board of Directors of each of the Corporation and
Orbital shall be of the opinion that such changes or corrections will
not be prejudicial to the interests of the Holders as a whole.
.3 MEETING TO CONSIDER AMENDMENTS. The Corporation, at the request of
Orbital, shall call a meeting or meetings of the Holders for the purpose of
considering any proposed amendment or modification requiring approval pursuant
hereto. Any such meeting or meetings shall be called and held in accordance
with the by-laws of the Corporation, the Exchangeable Share Provisions and all
applicable laws.
.4 CHANGES IN CAPITAL OF ORBITAL AND THE CORPORATION. Notwithstanding
section 11.1, at all times after the occurrence of any Orbital Common Share
Reorganization or Capital Reorganization (as such terms are respectively
defined in the Exchangeable Share Provisions) or other change in either the
Orbital Common Shares or the Exchangeable Shares or both, this Agreement shall
forthwith be amended and modified as necessary in order that it shall apply
with full force and effect, mutatis mutandis, to all new securities into which
Orbital Common Shares or the Exchangeable Shares or both are so changed and the
parties hereto shall execute and deliver a supplemental agreement giving effect
to and evidencing such necessary amendments and modifications.
.5 EXECUTION OF SUPPLEMENTAL TRUST AGREEMENTS. Notwithstanding section
11.1, from time to time the Corporation (when authorized by a resolution of the
Board of Directors), Orbital (when authorized by a resolution of its board of
directors) and the Trustee may, subject to the provisions hereof, and they
shall, when so directed by these presents, execute and deliver by their proper
officers, agreements or other
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instruments supplemental hereto, which thereafter shall form part hereof, for
any one or more of the following purposes:
(a) evidencing the succession of Orbital Successors to Orbital and the
covenants of and obligations assumed by each such Orbital Successor
in accordance with the provisions of Article 10 and the succession of
any successor trustee in accordance with the provisions of Article 9;
(b) making any additions to, deletions from or alterations of the
provisions of this Agreement or the Voting Rights, the Exchange Right
or the Automatic Exchange Rights that, in the opinion of the Trustee
acting reasonably will not be prejudicial to the interests of the
Holders as a whole or are in the opinion of counsel to the Trustee
necessary or advisable in order to incorporate, reflect or comply
with any legislation the provisions of which apply to Orbital, the
Corporation, the Trustee or this Agreement; and
(c) for any other purposes not inconsistent with the provisions of this
Agreement including, without limitation, to make or evidence any
amendment or modification to this Agreement as contemplated hereby,
provided that, in the opinion of the Trustee acting reasonably, the
rights of the Trustee and the Holders as a whole will not be
prejudiced thereby.
The Trustee shall not be required to execute any amendment or supplemental
agreement that adversely affects its own rights. In executing any amendment or
supplemental agreement hereunder, the Trustee shall be entitled to receive and
to rely upon an opinion of counsel as to whether such supplemental agreement or
amendment is permitted hereunder.
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ARTICLE 12
TERMINATION
.1 TERM. The Trust created by this Agreement shall continue until the
earliest to occur of the following events:
(a) no outstanding Exchangeable Shares are held by any Holder;
(b) each of the Corporation and Orbital elects in writing to terminate
the Trust and such termination is approved by the Holders of the
Exchangeable Shares in accordance with Section 8.2 of the
Exchangeable Share Provisions; and
(c) 21 years after the death of the last survivor of the descendants of
His Majesty King ▇▇▇▇▇▇ VI of the United Kingdom of Great Britain and
Northern Ireland living on the date of the creation of the Trust.
.2 SURVIVAL. The provisions of Articles 7 and 8 hereof shall survive
any termination of the Trust pursuant to section 12.1.
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ARTICLE 13
GENERAL
.1 SEVERABILITY. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality or enforceability of
the remainder of this Agreement shall not in any way be affected or impaired
thereby and this Agreement shall be carried out as nearly as possible in
accordance with its original terms and conditions; provided, however, that if
the provision or provisions so held to be invalid, in the reasonable judgment
of the parties, is or are so fundamental to the intent of the parties and the
operation of this Agreement that the enforcement of the other provisions
hereof, in the absence of such invalid provision or provisions, would damage
irreparably the intent of the parties in entering into this Agreement, the
parties shall agree (i) to terminate this Agreement, or (ii) to amend or
otherwise modify this Agreement so as to carry out the intent and purposes
hereof and the transactions contemplated hereby.
.2 INUREMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns and to the benefit of the Holders.
.3 NOTICES TO PARTIES. All notices and other communications between the
parties hereunder shall be in writing and shall be deemed to have been given if
delivered personally or by confirmed telecopy to the parties at the following
addresses (or at such other address for such party as shall be specified in
like notice):
(a) if to Orbital at:
Orbital Sciences Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇.▇.▇. ▇▇▇▇▇
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Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Corporation at:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Holdings Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(with a copy to Orbital at the address set out in (a))
(c) if to the Trustee at:
State Street Bank and Trust Company
Two International Place
4th Floor
Boston, Massachusetts
U.S.A. 02110
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Vice President
Corporate Trust Operations
Corporate Trust Department
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
▇▇▇▇ ▇▇▇▇▇▇, Esq.
Peabody & ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇.▇.▇. ▇▇▇▇▇
Any notice or other communication given personally shall be deemed to have been
given and received upon delivery thereof and if given by telecopy shall be
deemed to have been given and received on the date of receipt thereof unless
such day is not a Business Day in which case it shall be deemed to have been
given and received upon the immediately following Business Day.
.4 NOTICE TO HOLDERS. Any and all notices to be given and any documents
to be sent to any Holders may be given or sent to the address of such Holder
shown on the register of Holders in any manner permitted by the by-laws of the
Corporation from time to time in force in respect of notices to shareholders
and shall be deemed to be received (if given or sent in such manner) at the
time specified in such by-laws, the provisions of which bylaws shall apply
mutatis mutandis to notices or documents as aforesaid sent to such Holders.
.5 RISK OF PAYMENTS BY POST. Whenever payments are to be made or
documents are to be sent to any Holder by the Trustee or by the Corporation, or
by such Holder to the Trustee or to Orbital or the Corporation, the making of
such payment or sending of such document sent through the post shall be at the
risk of the Corporation, in the case of payments made or documents sent by the
Trustee or the Corporation, and the Holder, in the case of payments made or
documents sent by the Holder.
.6 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
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.7 JURISDICTION. This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts.
.8 ATTORNMENT. Orbital agrees that any action or proceeding arising out
of or relating to this Agreement may be instituted in the courts of the
Commonwealth of Massachusetts, waives any objection that it may have now or
hereafter to the venue of any such action or proceeding, irrevocably submits to
the jurisdiction of the said courts in any such action or proceeding, agrees to
be bound by any judgment of the said courts and agrees not to seek, and hereby
waives, any review of the merits of any such judgment by the courts of any
other jurisdiction and hereby appoints its registered agent in Massachusetts as
Orbital's attorney for service of process.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
ORBITAL SCIENCES CORPORATION
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Senior Vice President
----------------------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ HOLDINGS
INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Vice President
----------------------------
▇▇
- ▇▇ -
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ & TRUST
COMPANY
by ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Assistant Vice President
-----------------------------------