EXHIBIT 4.10
EXECUTION COPY
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ORBIMAGE INC.
and
THE BANK OF NEW YORK, as Warrant Agent
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WARRANT AGREEMENT
Dated as of March 14, 2005
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WARRANT AGREEMENT
TABLE OF CONTENTS
PAGE
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SECTION 1. Appointment of Warrant Agent..................................... 1
SECTION 2. Warrant Certificates............................................ 1
SECTION 3. Execution of Warrant Certificates............................... 1
SECTION 4. Registration and Countersignature............................... 2
SECTION 5. Registration of Transfers and Exchanges......................... 2
SECTION 6. Terms of Warrants............................................... 3
SECTION 7. Payment of Taxes................................................ 5
SECTION 8. Mutilated or Missing Warrant Certificates....................... 5
SECTION 9. Reservation of Warrant Shares................................... 5
SECTION 10. Obtaining Stock Exchange Listings............................... 6
SECTION 11. Adjustment of Number of Warrant Shares and Exercise Price....... 6
SECTION 12. Fractional Shares............................................... 9
SECTION 13. Special Arrangements of Company................................. 9
SECTION 14. Maintenance of Registration and Qualification of Common Stock... 10
SECTION 15. Notices to Warrant Holders...................................... 10
SECTION 16. Public Offering; Sale of Company................................ 10
SECTION 17. Representations of the Company.................................. 11
SECTION 18. Merger, Consolidation or Change of Name of Warrant Agent........ 11
SECTION 19. Warrant Agent................................................... 11
SECTION 20. Change of Warrant Agent......................................... 14
SECTION 21. Notices to Company and Warrant Agent............................ 15
SECTION 22. Supplements and Amendments...................................... 16
SECTION 23. Successors...................................................... 16
SECTION 24. Termination..................................................... 16
SECTION 25. Governing Law................................................... 16
SECTION 26. Benefits of This Agreement...................................... 16
SECTION 27. Counterparts.................................................... 16
SECTION 28. Force Mejeure................................................... 17
Exhibit A Form of Warrant Certificate
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WARRANT AGREEMENT dated as of March 14, 2005 between ORBIMAGE
Inc., a Delaware corporation (the "COMPANY"), and The Bank of New York, a New
York banking corporation, as Warrant Agent (the "WARRANT AGENT").
WHEREAS, the Company proposes to issue up to 3,258,406 Common
Stock Purchase Warrants, as hereinafter described (the "WARRANTS"), which in the
aggregate initially entitle the holders thereof to purchase up to 3,258,406
shares of Common Stock of the Company (the "COMMON STOCK") which constitute
approximately 18.05% of the Common Stock outstanding (on a Fully Diluted Basis)
on the date hereof (the Common Stock issuable on exercise of the Warrants being
referred to herein as the "WARRANT SHARES").
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing so to act, in connection with the
issuance, transfer, exchange and exercise of Warrants and other matters as
provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. APPOINTMENT OF WARRANT AGENT The Company hereby
appoints the Warrant Agent to act as agent for the Company in accordance with
the instructions set forth hereinafter in this Agreement, and the Warrant Agent
hereby accepts such appointment. The Company may from time to time appoint such
Co-Warrant Agents as is may deem necessary or desirable upon ten (10) days'
prior written notice to the Warrant Agent. The Warrant Agent shall have no duty
to supervise, and shall in no event be liable for, the acts or omissions of any
such Co-Warrant Agent.
SECTION 2. WARRANT CERTIFICATES The certificates evidencing the
Warrants (the "WARRANT CERTIFICATES") to be delivered pursuant to this Agreement
shall be in registered form only and shall be substantially in the form set
forth in EXHIBIT A attached hereto.
SECTION 3. EXECUTION OF WARRANT CERTIFICATES Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board or its
President or a Vice President and by its Secretary or an Assistant Secretary.
Each such signature upon the Warrant Certificates may be in the form of a
facsimile signature of the present or any future Chairman of the Board,
President, Vice President, Secretary or Assistant Secretary and may be imprinted
or otherwise reproduced on the Warrant Certificates and for that purpose the
Company may adopt and use the facsimile signature of any person who shall have
been Chairman of the Board, President, Vice President, Secretary or Assistant
Secretary, notwithstanding the fact that at the time the Warrant Certificates
shall be countersigned and delivered or disposed of he or she shall have ceased
to hold such office.
In case any officer of the Company who shall have signed any of
the Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned by the Warrant Agent, or
disposed of by the Company, such Warrant Certificates nevertheless may be
countersigned and delivered or disposed of as though such
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person had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Warrant Certificate, shall be a proper
officer of the Company to sign such Warrant Certificate, although at the date of
the execution of this Warrant Agreement any such person was not such officer.
Warrant Certificates shall be dated the date of countersignature
by the Warrant Agent.
SECTION 4. REGISTRATION AND COUNTERSIGNATURE The Warrant Agent, on
behalf of the Company, shall hold the Warrant Certificates unnumbered and
unregistered.
Warrant Certificates shall be manually countersigned by the
Warrant Agent and shall not be valid for any purpose unless so countersigned.
The Warrant Agent shall, upon written instructions of the Chairman of the Board,
the President, a Vice President, the Treasurer or the Chief Financial Officer of
the Company, initially countersign, issue and deliver Warrants collectively for
all Warrants outstanding entitling the holders thereof to purchase not more than
the number of Warrant Shares referred to above in the first recital hereof and
shall countersign and deliver Warrants as otherwise provided in this Agreement.
The Company and the Warrant Agent may deem and treat the
registered holder(s) of the Warrant Certificates as the absolute owner(s)
thereof (notwithstanding any notation of ownership or other writing thereon made
by anyone), for all purposes, and neither the Company nor the Warrant Agent
shall be affected by any notice to the contrary.
SECTION 5. REGISTRATION OF TRANSFERS AND EXCHANGES The Warrant
Agent shall from time to time, subject to the limitations of SECTION 6 hereof,
register the transfer of any outstanding Warrant Certificates upon the records
to be maintained by it for that purpose, upon surrender thereof duly endorsed or
accompanied (if so required by the Warrant Agent) by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent, duly executed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to the
transferee(s) and the surrendered Warrant Certificate shall be cancelled by the
Warrant Agent. Cancelled Warrant Certificates shall thereafter be disposed of by
the Warrant Agent in its customary manner.
The Warrant holders agree that they shall give five days prior
written notice of transfer to the Company and that prior to any proposed
transfer of the Warrants or of the Warrant Shares, if such transfer is not made
pursuant to an effective Registration Statement under the Securities Act of
1933, as amended (the "ACT"), the Warrant holders shall deliver to the Company:
(1) an opinion of counsel reasonably acceptable to the Warrant Agent
and the Company that the Warrant or Warrant Shares may be transferred without
registration under the Act;
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(2) customary representations and warranties, and covenants, regarding
the transferee and the investment that are reasonably satisfactory to the
Company signed by the proposed transferee;
(3) an agreement by such transferee to the impression of the
restrictive investment legend set forth below on the Warrant or the Warrant
Shares; and
(4) an agreement by such transferee to be bound by the provisions of
this Agreement.
The Warrant holders agree that each certificate representing
Warrant Shares shall bear a legend in substantially the following form (and any
legend required by (i) any applicable state securities laws and (ii) any
securities exchange upon which such Warrant Shares may, at the time of such
exercise, be listed) on the face thereof unless at the time of exercise such
Warrant Shares shall be registered under the Securities Act:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may
not be sold or transferred unless pursuant to a registration
statement or in a transaction exempt from or to subject to
registration under the Securities Act."
Any certificate issued at any time in exchange or substitution for
any certificate bearing such legend except a new certificate issued upon
completion of a public distribution under a registration statement of the
securities represented thereby) shall also bear such legend unless, in the
opinion of counsel for the Holder of such certificate (which counsel shall be
reasonably satisfactory to Company) the securities represented thereby are not,
at such time, required by law to bear such legend.
Subject to the terms of this Agreement, Warrant Certificates may
be exchanged at the option of the holder(s) thereof, when surrendered to the
Warrant Agent at its principal corporate trust office, which is currently
located at the address listed in SECTION 21 hereof, for another Warrant
Certificate or other Warrant Certificates of like tenor and representing in the
aggregate a like number of Warrants. Any holder desiring to exchange a Warrant
Certificate shall deliver a written request to the Warrant Agent, and shall
surrender, duly endorsed or accompanied (if so required by the Warrant Agent) by
a written instrument or instruments of transfer in form satisfactory to the
Warrant Agent, the Warrant Certificate or Certificates to be so exchanged.
Warrant Certificates surrendered for exchange shall be cancelled by the Warrant
Agent. Such cancelled Warrant Certificates shall then be disposed of by such
Warrant Agent in its customary manner.
The Warrant Agent is hereby authorized to countersign, in
accordance with the provisions of this SECTION 5 and of SECTION 4 hereof, the
new Warrant Certificates required pursuant to the provisions of this SECTION 5.
SECTION 6. TERMS OF WARRANTS The initial exercise price per share
at which Warrant Shares shall be purchasable upon the exercise of Warrants (the
"EXERCISE PRICE") shall be $10.00 per share. The Warrants shall be initially
exercisable in the aggregate for that number
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of shares of Common Stock equal to 18.05% of the fully diluted Common Stock
outstanding on the date hereof (calculated after giving effect to the exercise
of such Warrants and all options, warrants and rights to acquire Common Stock
and the conversion of all convertible securities for the maximum number of
shares of Common Stock obtainable whether or not such options, warrants or
rights are then exercisable or vested and whether or not such convertible
securities are then convertible).
Subject to the terms of this Agreement, each Warrant holder shall
have the right, which may be exercised until 5:00 p.m., New York City time on
March 25, 2010, to receive from the Company the number of fully paid and
nonassessable Warrant Shares which the holder may at the time be entitled to
receive on exercise of such Warrants and payment of the Exercise Price then in
effect for such Warrant Shares. Each Warrant not exercised prior to 5:00 p.m.,
New York City time, on March 25, 2010 shall become void and all rights
thereunder and all rights in respect thereof under this Agreement shall cease as
of such time. No adjustments as to dividends will be made upon exercise of the
Warrants.
A Warrant may be exercised upon surrender to the Company at the
principal stock transfer office of the Warrant Agent, which is currently located
at the address listed in SECTION 21 hereof, of the certificate or certificates
evidencing the Warrants to be exercised with the form of election to purchase on
the reverse thereof duly filled in and signed and such other documentation as
the Warrant Agent may reasonably request, and upon payment to the Warrant Agent
for the account of the Company of the Exercise Price which is set forth in the
form of Warrant Certificate attached hereto as EXHIBIT A as adjusted as herein
provided, for the number of Warrant Shares in respect of which such Warrants are
then exercised. Payment of the aggregate Exercise Price shall be made (i) in
cash or by certified or official bank check payable to the order of the Company
in New York Clearing House Funds, or the equivalent thereof or (ii) in the
manner provided in this SECTION 6.
Subject to the provisions of SECTION 7 hereof, upon such surrender
of Warrants and payment of the Exercise Price, the Company shall issue and cause
to be delivered with all reasonable dispatch to and in such name or names as the
Warrant holder may designate, a certificate or certificates for the number of
full Warrant Shares issuable upon the exercise of such Warrants together with
cash as provided in SECTION 12 hereof. Such certificate or certificates shall be
deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of record of such Warrant Shares as of
the date of the surrender of such Warrants and payment of the Exercise Price.
The Warrants shall be exercisable, at the election of the holders
thereof, either in full or from time to time in part and, in the event that a
certificate evidencing Warrants is exercised in respect of fewer than all of the
Warrant Shares issuable on such exercise at any time prior to the date of
expiration of the Warrants, a new certificate evidencing the remaining Warrant
or Warrants will be issued, and the Warrant Agent is hereby irrevocably
authorized to countersign and to deliver the required new Warrant Certificate or
Certificates pursuant to the provisions of this SECTION 6 and of SECTION 4
hereof, and the Company, whenever required by the Warrant Agent, shall supply
the Warrant Agent with Warrant Certificates duly executed on
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behalf of the Company for such purpose. The Warrant Agent may assume that any
Warrant presented for exercise is permitted to be so exercised under applicable
law and shall have no liability for acting in reliance on such assumption.
All Warrant Certificates surrendered upon exercise of Warrants
shall be canceled by the Warrant Agent. Such canceled Warrant Certificates shall
then be disposed of by the Warrant Agent in its customary manner. The Warrant
Agent shall account promptly to the Company with respect to Warrants exercised
and concurrently pay to the Company all monies received by the Warrant Agent for
the purchase of the Warrant Shares through the exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement and any
notices given or received hereunder available for inspection by the holders with
reasonable prior written notice during normal business hours at its office. The
Company shall supply the Warrant Agent from time to time with such numbers of
copies of this Agreement as the Warrant Agent may request.
SECTION 7. PAYMENT OF TAXES The Company covenants and agrees that
it shall pay when due and payable any and all federal and state documentary or
stamp taxes (other than federal or state income taxes or similar laws) or other
costs which may be payable in respect of the issue of the Warrants or any Common
Stock or certificates therefor issuable upon the exercise of the Warrants
(provided, however, the Company's obligations to any Holder in this regard will
in all events be conditioned upon such Holder cooperating with the Company in
any reasonable arrangement designed to minimize or eliminate any such taxes),
except that, if Warrant Shares or new Warrants shall be registered in a name or
names other than the name of any Holder, funds sufficient to pay all transfer
taxes payable as a result of such transfer shall be paid by such Holder at the
time of delivery of the election to purchase.
SECTION 8. MUTILATED OR MISSING WARRANT CERTIFICATES In case any
of the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the
Company shall issue and the Warrant Agent shall countersign, in exchange and
substitution for and upon cancellation of the mutilated Warrant Certificate, or
in lieu of and substitution for the Warrant Certificate lost, stolen or
destroyed, a new Warrant Certificate of like tenor and representing an
equivalent number of Warrants, but only upon receipt of evidence satisfactory to
the Company and the Warrant Agent of such loss, theft or destruction of such
Warrant Certificate and indemnity, also satisfactory to the Company and the
Warrant Agent. Except as otherwise provided herein, in the case of the loss,
theft, or destruction of a Warrant Certificate, Company shall pay all expenses,
taxes and other charges payable in connection with any replacement of such
Warrant Certificate.
SECTION 9. RESERVATION OF WARRANT SHARES The Company shall at all
times reserve and keep available out of its authorized but unissued Common Stock
(or out of shares of Common Stock held in its treasury) solely for the purpose
of issuance upon the exercise of the Warrants, the maximum number of Warrant
Shares issuable upon the exercise of the Warrants. The Warrant Agent shall have
no duty to verify availability of such shares set aside by the Company.
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The Company or, if appointed, the transfer agent for the Common
Stock (the "TRANSFER AGENT") and every subsequent transfer agent for any shares
of the Company's Common Stock issuable upon the exercise of any of the rights of
purchase aforesaid will be irrevocably authorized and directed at all times to
reserve such number of authorized shares as shall be required for such purpose.
The Company will keep a copy of this Agreement on file with the Transfer Agent
and with every subsequent transfer agent for any shares of the Company's Common
Stock issuable upon the exercise of the rights of purchase represented by the
Warrants. The Warrant Agent is hereby irrevocably authorized to requisition from
time to time from such Transfer Agent the stock certificates required to honor
outstanding Warrants upon exercise thereof in accordance with the terms of this
Agreement. The Company will supply such Transfer Agent with duly executed
certificates for such purposes and will provide or otherwise make available any
cash which may be payable as provided in SECTION 12 hereof. The Company will
furnish such Transfer Agent a copy of all notices of adjustments and
certificates related thereto, transmitted to each holder pursuant to SECTION 11
hereof.
The Company covenants and agrees that all shares of Common Stock
that may be issued upon the exercise of the rights represented by the Warrants
shall, upon issuance, be validly issued, fully paid and nonassessable, and free
from all taxes, liens, preemptive rights and charges with respect to the issue
thereof. The Company shall take all such actions as may be necessary to ensure
that all such Warrant Shares may be so issued without violation by the Company
of any applicable law or governmental regulation or any requirements of any
domestic securities exchange or quotation system upon which shares of Common
Stock or other securities constituting Warrant Shares may be listed or quoted
(except for official notice of issuance which shall be immediately delivered by
the Company upon each such issuance).
SECTION 10. OBTAINING STOCK EXCHANGE LISTINGS The Company will use
its best efforts to cause the Warrant Shares, immediately upon their issuance
upon the exercise of Warrants, to be listed on any domestic national securities
exchange or quotation system upon which shares of Common Stock or other
securities constituting Warrant Shares are listed or quoted at the time of such
exercise.
SECTION 11. ADJUSTMENT OF NUMBER OF WARRANT SHARES AND EXERCISE
PRICE(a) ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment of the Warrant
Price as provided in subsection (b) of this Section 11, each Holder shall
thereafter be entitled to purchase, at the Warrant Price resulting from such
adjustment, only the number of shares (calculated to the nearest tenth of a
share) obtained by multiplying the Warrant Price in effect immediately prior to
such adjustment by the number of shares purchasable by such Holder pursuant
hereto immediately prior to such adjustment and dividing the product thereof by
the Warrant Price resulting from such adjustment.
(b) ADJUSTMENT IN EXERCISE PRICE. The Warrant Price shall be
subject to adjustment from time to time as follows:
(i) If, at any time during the Term of this Warrant
Agreement, the number of shares of Common Stock outstanding is increased by a
stock dividend payable in
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shares of Common Stock or by a subdivision or split-up of shares of Common
Stock, then, following the record date fixed for the determination of holders of
Common Stock entitled to receive such stock dividend, subdivision or split-up,
the Warrant Price shall be appropriately decreased so that the number of shares
of Common Stock issuable upon the exercise hereof shall be increased in
proportion to such increase in outstanding shares.
(ii) If, at any time during the Term of this Warrant, the
number of shares of Common Stock outstanding is decreased by a combination of
the outstanding shares of Common Stock, then, following the record date for such
combination, the Warrant Price shall be appropriately increased so that the
number of shares of Common Stock issuable upon the exercise hereof shall be
decreased in proportion to such decrease in outstanding shares.
(iii) Whenever the Warrant Price shall be adjusted as
provided in this Section 11, Company shall promptly prepare a statement showing
the facts requiring such adjustment and the Warrant Price that shall be in
effect after such adjustment, setting forth in reasonable detail and certifying
the calculation of such adjustment. Company shall cause a copy of such statement
(A) to be filed with the Warrant Agent and (B) cause a copy of such statement to
be sent by mail, first class postage prepaid, to each Holder at its, his or her
address appearing on the Warrant register. Where appropriate, such copy may be
given in advance and may be included as part of the notice required to be mailed
under the provisions of clause (v) of this Section 11(b). The Warrant Agent
shall be fully protected in relying on any such statement and on any adjustement
therein contained and shall not be deemed to have knowledge of such adjustment
unless and until it shall have received such statement.
(iv) Adjustments made pursuant to this Section 11 shall
be made on the date such dividend, subdivision, split-up, combination or
distribution, as the case may be, is made, and shall become effective at the
opening of business on the business day next following the record date for the
determination of stockholders entitled to such dividend, subdivision, split-up,
combination or distribution.
(v) In the event Company shall propose to take any
action of the types described in this Section 11, Company shall forward to each
Holder, at the same time and in the same manner, such notice, if any, which
Company shall give to the holders of capital stock of Company.
(vi) In any case in which the provisions of this Section
11 shall require that an adjustment shall become effective immediately after a
record date for an event, Company may defer until the occurrence of such event,
issuing to any Holder of all or any part of any Warrant that exercised all or
part of such Warrant after such record date, and before the occurrence of such
event, the additional shares of capital stock issuable upon such exercise by
reason of the adjustment required by such event over and above the shares of
capital stock issuable upon such exercise before giving effect to such
adjustment exercise; provided, however, that Company shall deliver to such
Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right
to receive such additional shares upon the occurrence of the event requiring
such adjustment.
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(c) MERGERS, CONSOLIDATION, SALES. In the case of any proposed
consolidation or merger of Company with another entity, or the proposed sale of
all or substantially all of its assets to another person or entity, or any
proposed reorganization, recapitalization, reclassification of the capital stock
of Company or other transaction, then, as a condition of such consolidation,
merger, sale, reorganization, recapitalization, reclassification or other
transaction, Company shall give 30 days' prior written notice thereof to Warrant
holders and lawful and adequate provision shall be made whereby Holders shall
thereafter have the right to receive upon the basis and upon the terms and
conditions specified herein, in lieu of the shares of the Common Stock of
Company immediately theretofore purchasable hereunder, such shares of stock,
securities or assets as may (by virtue of such consolidation, merger, sale,
reorganization, recapitalization, reclassification or other transaction) be
issued or payable with respect to or in exchange for the number of shares of
such Common Stock purchasable hereunder immediately before such consolidation,
merger, sale, reorganization, recapitalization, reclassification or other
transaction. In any such case appropriate provision shall be made with respect
to the rights and interests of the Holders to the end that the provisions hereof
shall thereafter be applicable as nearly as may be practicable, in relation to
any shares of stock, securities or assets thereafter deliverable upon the
exercise of the Warrants. The Company shall not effect any such consolidation,
merger, sale, reorganization, recapitalization, reclassification or other
transaction unless, prior to the consummation thereof, the successor entity (if
other than the Company) resulting from such consolidation, merger, sale,
reorganization, recapitalization, reclassification or other transaction
(including a purchaser of all or substantially all the Company's assets) assumes
by written instrument the obligation to deliver to each Holder of Warrants such
shares of stock, securities or assets as, in accordance with the foregoing
provisions, such Holder may be entitled to acquire upon exercise of Warrants.
(d) WARRANT AGENT'S DISCLAIMER.
The Warrant Agent has no duty to determine when an adjustment
under this SECTION 11 should be made, how it should be made or what it should
be. The Warrant Agent makes no representation as to the validity or value of any
securities or assets issued upon exercise of Warrants. The Warrant Agent shall
not be responsible for the Company's failure to comply with this Section.
(e) FORM OF WARRANTS.
Irrespective of any adjustments in the number or kind of shares
issuable upon the exercise of the Warrants or the Exercise Price, Warrants
theretofore or thereafter issued may continue to express the same number and
kind of shares and Exercise Price as are stated in the Warrants initially
issuable pursuant to this Agreement.
SECTION 12. FRACTIONAL SHARES Fractional shares shall not be
issued upon the exercise of any Warrant but in any case where a Holder would,
except for the provisions of this SECTION 12, be entitled under the terms hereof
to receive a fractional share upon the complete exercise of such Warrant,
Company shall, upon the exercise of such Warrant for the largest number of whole
shares then called for, pay a sum in cash equal to the excess of the value of
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such fractional share (determined in such reasonable manner as may be prescribed
in good faith by the Board of Directors of Company) over the Warrant Price for
such fractional share.
SECTION 13. SPECIAL ARRANGEMENTS OF COMPANY Company covenants and
agrees with each Holder of a Warrant that during the Term of such Warrant,
unless otherwise approved by such Holder:
(a) CERTAIN ACTIONS. The Company shall not amend its
certificate or articles, as the case may be, of incorporation to eliminate as an
authorized class of capital stock that class denominated as "Common Stock" on
the date hereof. The Company shall not, and shall not permit its subsidiaries
to, directly or indirectly, by any action (including, without limitation,
reincorporation in a jurisdiction other than Delaware, amending its Certificate
of Incorporation (as may be amended and/or restated from time to time) or
through any merger, sale, consolidation, reorganization, reclassification,
issuance or sale of securities or any other action) avoid or seek to avoid the
observance or performance of any terms of this Warrant Agreement or the Warrants
or impair or diminish the value of the Warrants, but shall at all times in good
faith assist in the carrying out of all such terms of this Warrant Agreement and
the Warrants. Without limiting the generality of the foregoing, the Company
shall (a) obtain all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof as may be necessary to enable the
Company to perform its obligations under this Warrant Agreement and the Warrants
and (b) not undertake any reverse stock split, combination, reorganization or
other reclassification of its capital stock which would have the effect of
making the Warrants exercisable for less than one share of Common Stock (except
as permitted under Section 11 hereof).
(b) SHALL BIND SUCCESSORS. This Warrant Agreement, the Warrants
and the rights evidenced hereby and thereby shall be binding upon the successors
of the Company.
(c) NO EXERCISE INTERFERENCE; PAR VALUE. The Company shall not
close its books against the transfer of any Warrant or of any Warrant Shares
issued or issuable upon the exercise of any Warrant in any manner which
interferes with the timely exercise of any Warrant. The Company shall from time
to time take all such action as may be necessary to assure that the par value
per share of the unissued Warrant Shares acquirable upon exercise of the
Warrants is at all times equal to or less than the Warrant Price then in effect.
(d) GOVERNMENTAL FILINGS. The Company shall assist and
cooperate with any reasonable request by any Holder of any Warrant which is
required to make any governmental filings or obtain any governmental approvals
prior to or in connection with any exercise of any Warrant.
(e) NOTICES OF CERTAIN ACTIONS. The Company shall give written
notice to the Holders at least 30 days prior to the date on which the Company
closes its books or takes a record (A) with respect to any dividend or
distribution upon the Common Stock, (B) with respect to any pro rata
subscription offer to holders of Common Stock, or (C) for determining rights to
vote with respect to any recapitalization, reorganization, reclassification,
consolidation, merger,
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dissolution, liquidation or sale of all or substantially all of the Company's
assets or other transaction which is effected in such a way that holders of
Common Stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in exchange for
Common Stock.
SECTION 14. MAINTENANCE OF REGISTRATION AND QUALIFICATION OF
COMMON STOCK The Company shall maintain the effectiveness of the Company's
Registration Statement (No. 333-122493) on Form S-1 filed with the Securities
and Exchange Commission for the registration of, inter alia, the Warrants and
the Warrant Shares, and keep current a prospectus thereunder, and maintain the
qualification for sale, in those states in which the Warrants were initially
offered by the Company, for so long as the Holders are entitled to exercise any
Warrants, provided, however that, upon the occurrence of any event that would
cause any such Registration Statement (A) to contain an untrue statement of
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading or (B) not to be effective and usable for the issuance of Warrant
Shares upon the exercise of any Warrant during the period required by this
Agreement, the Company may refuse to allow any Warrant to be exercised until the
Company has filed an appropriate amendment to such Registration Statement curing
such defect (a "blackout period"), provided further that no blackout period
shall exceed 90 days.
SECTION 15. NOTICES TO WARRANT HOLDERS Any notice or other
document required or permitted to be given or delivered to Holders shall be
delivered at, or sent by certified or registered mail to, each Holder at its,
his or her address appearing on the Warrant register. Any notice so addressed
and mailed by registered or certified mail shall be deemed to be given when so
mailed. Any notice so addressed and otherwise delivered shall be deemed to be
given when actually received by the addressee.
Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders thereof the right
to vote or to consent or to receive notice as shareholders in respect of the
meetings of shareholders or the election of Directors of the Company or any
other matter, or any rights whatsoever as shareholders of the Company.
SECTION 16. PUBLIC OFFERING; SALE OF COMPANY Notwithstanding any
other provision hereof, if an exercise of any portion of any Warrant is to be
made in connection with a public offering or a sale of the Company (pursuant to
a merger, sale of stock or otherwise), such exercise may at the election of the
Holder of such Warrant be conditioned upon the consummation of such transaction,
in which case such exercise shall not be deemed to be effective until
immediately prior to consummation of such transaction.
SECTION 17. REPRESENTATIONS OF THE COMPANY The Company has all
requisite corporate power and authority to enter into and perform its
obligations under this Warrant Agreement and the Warrants, to deliver the
Warrant Agreement to the Warrant Agent and to issue and deliver the Warrants to
the Holders. The execution, delivery, and performance by the Company of its
obligations under this Warrant Agreement and the Warrants, including the
issuance and delivery of the Warrants to the Purchaser, have been duly
authorized by all
10
necessary corporate action on the part of the Company. This Warrant Agreement
has been duly executed and delivered by the Company and is a legal, valid, and
binding obligation of the Company and is enforceable against the Company in
accordance with its terms.
SECTION 18. MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT
AGENT Any corporation into which the Warrant Agent may be merged or with which
it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to all or substantially all the corporate trust or agency business of
the Warrant Agent, shall be the successor to the Warrant Agent hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided that such corporation would be eligible for
appointment as a successor warrant agent under the provisions of SECTION 20. In
case at the time such successor to the Warrant Agent shall succeed to the agency
created by this Agreement, and in case at that time any of the Warrant
Certificates shall have been countersigned but not delivered, any such successor
to the Warrant Agent may adopt the countersignature of the original Warrant
Agent; and in case at that time any of the Warrant Certificates shall not have
been countersigned, any successor to the Warrant Agent may countersign such
Warrant Certificates either in the name of the predecessor Warrant Agent or in
the name of the successor to the Warrant Agent; and in all such cases such
Warrant Certificates shall have the full force and effect provided in the
Warrant Certificates and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed
and at such time any of the Warrant Certificates shall have been countersigned
but not delivered, the Warrant Agent whose name has been changed may adopt the
countersignature under its prior name, and in case at that time any of the
Warrant Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its changed
name, and in all such cases such Warrant Certificates shall have the full force
and effect provided in the Warrant Certificates and in this Agreement.
SECTION 19. WARRANT AGENT The Warrant Agent undertakes the duties
and obligations imposed by this Agreement (and no implied duties or obligations
shall be read into this Agreement against the Warrant Agent) upon the following
terms and conditions, by all of which the Company and the holders of Warrants,
by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant
Certificates shall be taken as statements of the Company and the Warrant Agent
assumes no responsibility for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. The Warrant
Agent assumes no responsibility with respect to the distribution of the Warrant
Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this Agreement
or in the Warrant Certificates to be complied with by the Company.
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(c) The Warrant Agent may consult at any time with counsel of
its own selection (who may be counsel for the Company), which counsel shall be
generally recognized as having competence in the subject matter under
consideration, and the Warrant Agent shall incur no liability or responsibility
to the Company or to any holder of any Warrant Certificate in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with the opinion or the advice of such counsel. The Warrant Agent may
execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys and the Warrant Agent shall
not be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(d) The Warrant Agent may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Warrant Agent and conforming to the
requirements of this Agreement. The Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Warrant Certificate for
any action taken in reliance on any Warrant Certificate, certificate of shares,
notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument (whether in its original or facsimile form) believed by
it to be genuine and to have been signed, sent or presented by the proper party
or parties.
(e) The Company agrees to pay to the Warrant Agent such
compensation for all services rendered by the Warrant Agent in the
administration and execution of this Agreement as the Company and the Warrant
Agent shall agree in writing to reimburse the Warrant Agent for all expenses,
taxes and governmental charges and other charges of any kind and nature incurred
by the Warrant Agent in the execution of this Agreement (including fees and
expenses of its counsel) and to indemnify the Warrant Agent (and any predecessor
Warrant Agent) and save it harmless against any and all claims (whether asserted
by the Company, a holder or any other person), damages, losses, expenses
(including taxes other than taxes based on the income of the Warrant Agent),
liabilities, including judgments, costs and counsel fees and expenses, for
anything done or omitted by the Warrant Agent in the execution of this Agreement
except as a result of its gross negligence or willful misconduct. The provisions
of this SECTION 19(E) shall survive the expiration of the Warrants and the
termination of this Agreement.
(f) The Warrant Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more registered holders of Warrant
Certificates shall furnish the Warrant Agent with security and indemnity
satisfactory to it for any costs and expenses which may be incurred, but this
provision shall not affect the power of the Warrant Agent to take such action as
it may consider proper, whether with or without any such security or indemnity.
All rights of action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of any of the Warrant
Certificates or the production thereof at any trial or other proceeding relative
thereto, and any such action, suit or proceeding instituted by the Warrant Agent
shall be brought in its name as Warrant Agent and any recovery of judgment shall
be for the ratable benefit of the registered holders of the Warrants, as their
respective rights or interests may appear.
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(g) The Warrant Agent, and any stockholder, director, officer
or employee of it, may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Warrant Agent
under this Agreement. Nothing herein shall preclude the Warrant Agent from
acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for
the Company, and its duties shall be determined solely by the provisions hereof.
The Warrant Agent shall not be liable for anything which it may do or refrain
from doing in connection with this Agreement except for its own gross negligence
or willful misconduct. The Warrant Agent shall not be liable for any error of
judgment made in good faith by it, unless it shall be proved that the Warrant
Agent was grossly negligent in ascertaining the pertinent facts. Notwithstanding
anything in this Agreement to the contrary, in no event shall the Warrant Agent
be liable for special, indirect, punitive or consequential loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Warrant
Agent has been advised of the likelihood of the loss or damage and regardless of
the form of the action.
(i) The Warrant Agent shall not at any time be under any duty
or responsibility to any holder of any Warrant Certificate to make or cause to
be made any adjustment of the Exercise Price or number of the Warrant Shares or
other securities or property deliverable as provided in this Agreement, or to
determine whether any facts exist which may require any of such adjustments, or
with respect to the nature or extent of any such adjustments, when made, or with
respect to the method employed in making the same. The Warrant Agent shall not
be accountable with respect to the validity or value or the kind or amount of
any Warrant Shares or of any securities or property which may at any time be
issued or delivered upon the exercise of any Warrant or with respect to whether
any such Warrant Shares or other securities will when issued be validly issued
and fully paid and nonassessable, and makes no representation with respect
thereto.
(j) Notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Warrant Agent shall have any liability to any holder
of a Warrant Certificate or other Person as a result of its inability to perform
any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or administrative agency
or commission, or any statute, rule, regulation or executive order promulgated
or enacted by any governmental authority prohibiting or otherwise restraining
performance of such obligation; provided that the Company must use its
reasonable best efforts to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
(k) Any application by the Warrant Agent for written
instructions from the Company may, at the option of the Warrant Agent, set forth
in writing any action proposed to be taken or omitted by the Warrant Agent under
this Agreement and the date on and/or after which such action shall be taken or
such omission shall be effective. The Warrant Agent shall not be liable for any
action taken by, or omission of, the Warrant Agent in accordance with a proposal
13
included in such application on or after the date specified in such application
(which date shall not be less than three Business Days after the date any
officer of the Company actually receives such application, unless any such
officer shall have consented in writing to any earlier date) unless prior to
taking any such action (or the effective date in the case of an omission), the
Warrant Agent shall have received written instructions in response to such
application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant
Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of its
rights.
(m) In addition to the foregoing, the Warrant Agent shall be
protected and shall incur no liability for, or in respect of, any action taken
or omitted by it in connection with its administration of this Agreement if such
acts or omissions are in reliance upon the proper execution of the certification
concerning beneficial ownership appended to the form of assignment and the form
of the election attached hereto unless the Warrant Agent shall have actual
knowledge that, as executed, such certification is untrue, or the non-execution
of such certification including, without limitation, any refusal to honor any
otherwise permissible assignment or election by reason of such non-execution.
(n) Holders (for purposes of this subsection (n) only,
"Customers" and each a "Customer") acknowledge that the Bank is subject to the
customer identification program requirements under the USA PATRIOT Act and its
implementing regulations, and that the Bank must obtain, verify and record
information that allows the Bank to identify each Customer. Accordingly, prior
to opening an Account hereunder the Bank may request information (including but
not limited to the Customer's name, physical address, tax identification number
and other information) that will help the Bank to identify the organization such
as organizational documents, certificate of good standing, license to do
business, or any other information that will allow the Bank to identify
Customer. Each Customer agrees that the Bank cannot open an Account hereunder
unless and until the Bank verifies Customer's identity in accordance with its
Customer Identification Program.
SECTION 20. CHANGE OF WARRANT AGENT The Warrant Agent may at any
time resign as Warrant Agent upon written notice to the Company. If the Warrant
Agent shall become incapable of acting as Warrant Agent, the Company shall
appoint a successor to such Warrant Agent. If the Company shall fail to make
such appointment within a period of 30 days after it has been notified in
writing of such resignation or of such incapacity by the Warrant Agent or by the
registered holder of a Warrant Certificate, then the registered holder of any
Warrant Certificate or the Warrant Agent may apply, at the expense of the
Company, to any court of competent jurisdiction for the appointment of a
successor to the Warrant Agent. Pending appointment of a successor to such
Warrant Agent, either by the Company or by such a court, the duties of the
Warrant Agent shall be carried out by the Company. The holders of a majority of
the unexercised Warrants shall be entitled at any time to remove the Warrant
Agent and appoint a successor to such Warrant Agent. If a Successor Warrant
Agent shall not have been appointed within 30 days of such removal, the Warrant
Agent may apply, at the expense of
14
the Company, to any court of competent jurisdiction for the appointment of a
successor to the Warrant Agent. Such successor to the Warrant Agent need not be
approved by the Company or the former Warrant Agent. After appointment the
successor to the Warrant Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally named as Warrant Agent
without further act or deed; but the former Warrant Agent upon payment of all
fees and expenses due it and its agents and counsel shall deliver and transfer
to the successor to the Warrant Agent any property at the time held by it
hereunder and execute and deliver any further assurance, conveyance, act or deed
necessary for the purpose. Failure to give any notice provided for in this
SECTION 20, however, or any defect therein, shall not affect the legality or
validity of the appointment of a successor to the Warrant Agent.
SECTION 21. NOTICES TO COMPANY AND WARRANT AGENT Any notice or
demand authorized by this Agreement to be given or made by the Warrant Agent or
by the registered holder of any Warrant Certificate to or on the Company shall
be sufficiently given or made when and if delivered by hand or by courier, or
deposited in the mail, first class or registered, postage prepaid, or by
telecopy confirmed in writing, and addressed (until another address is filed in
writing by the Company with the Warrant Agent), as follows:
ORBIMAGE Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
In case the Company shall fail to maintain such office or agency
or shall fail to give such notice of the location or of any change in the
location thereof, presentations may be made and notices and demands may be
served at the principal corporate trust office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company
or by the registered holder(s) of any Warrant Certificate to the Warrant Agent
shall be sufficiently given when and if delivered by hand or by courier, or
deposited in the mail, first class or registered, postage prepaid, or by
telecopy confirmed in writing, and addressed (until another address is filed in
writing by the Warrant Agent with the Company) to the Warrant Agent as follows:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Stock Transfer Administration
SECTION 22. SUPPLEMENTS AND AMENDMENTS The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Warrant Certificates in order to cure any ambiguity
or to correct or supplement any provision contained herein which may be
defective or inconsistent with any other provision herein, or to make any other
provisions in regard to matters or questions arising hereunder which the Company
and the Warrant Agent may deem necessary or desirable and which shall not in any
15
way adversely affect the interests of the holders of Warrant Certificates. Upon
the delivery of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance with the terms
of this SECTION 22, the Warrant Agent shall execute such supplement or
amendment. Notwithstanding anything in this Agreement to the contrary, the prior
written consent of the Warrant Agent must be obtained in connection with any
supplement or amendment which alters the rights or duties of the Warrant Agent.
The Company and the Warrant Agent may amend any provision herein with the
consent of the holders of Warrants exercisable for a majority of the Warrant
Shares issuable on exercise of all outstanding Warrants.
SECTION 23. SUCCESSORS All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 24. TERMINATION This Agreement will terminate on any
earlier date if all Warrants have been exercised or expired without exercise.
The provisions of SECTION 19 hereof shall survive such termination.
SECTION 25. GOVERNING LAW This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Delaware, and the validity, interpretation, and enforcement
of this Agreement and each Warrant Certificate shall be governed by and
construed in accordance with the internal laws of said State without giving
effect to the conflict of law principles thereof. The parties agree that, all
actions and proceedings arising out of this Agreement or any of the transactions
contemplated hereby, shall be brought in the United States District Court for
the Southern District of New York or in a New York State Court in the County of
New York and that, in connection with any such action or proceeding, submit to
the jurisdiction of, and venue in, such court. Each of the parties hereto also
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim arising out of this Agreement or the transactions contemplated
hereby.
SECTION 26. BENEFITS OF THIS AGREEMENT Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Warrant Agent and the registered holders of the Warrant Certificates any
legal or equitable right, remedy or claim under this Agreement, and this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of the Warrant Certificates.
SECTION 27. COUNTERPARTS This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
SECTION 28. FORCE MEJEURE In no event shall the Warrant Agent be
responsible or liable for any failure or delay in the performance of its
obligations under this Agreement arising out of or caused by, directly or
indirectly, forces beyond its reasonable control, including without limitation
strikes, work stoppages, accidents, acts of war or terrorism, civil or military
16
disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software or
hardware) services.
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, as of the day and year first above written.
ORBIMAGE INC.
By:
-----------------------------------
Title
THE BANK OF NEW YORK, as
Warrant Agent
By:
-----------------------------------
Title:
EXHIBIT A
FORM OF WARRANT CERTIFICATE