REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of __________, 1997, between and among Orion Newco Services,
Inc., a Delaware corporation (the "Company"), British Aerospace Holdings, Inc.,
a Delaware corporation ("BAe"), and Matra Marconi Space UK Limited, a company
organized under the laws of England and Wales ("Matra") (together, the
"Purchasers").
WHEREAS, the Company proposes to issue and sell to the Purchasers
$60,000,000 aggregate principal amount of its Convertible Junior Subordinated
Debentures Due February 1, 2012 (Interest Payable in Common Stock) (the
"Debentures"), pursuant to the terms of a Debenture Purchase Agreement, dated as
of January , 1997 (the "Debenture Purchase Agreement");
WHEREAS, as a condition to the Purchasers' obligations under the
Debenture Purchase Agreement, the Company agrees with each of the Purchasers for
their benefit and for the benefit of the holders from time to time of the
Registrable Securities (as defined herein) whose names appear in the register
maintained by the Company's registrar in accordance with the provisions of the
Debenture Purchase Agreement (each of the foregoing a "Holder," and collectively
the "Holders"), to grant to the Purchasers certain registration rights;
WHEREAS, the purchase of the Debentures under the Debenture Purchase
Agreement and this Agreement are conditioned upon, among other things, the
consummation of the transactions contemplated under the Section 351 Exchange
Agreement and Plan of Conversion, dated as of June, 1996, as amended, and as may
be further amended from time to time (the "Exchange Agreement"), among Orion
Network Systems, Inc., a Delaware corporation ("ONS"), International Private
Satellite Partners, L.P., a Delaware limited partnership, Orion Satellite
Corporation, a Delaware corporation, and British Aerospace Communications, Inc.
("BAC"); COM DEV Satellite Communications Limited, a Canadian corporation ("COM
DEV"); Kingston Communications International Limited, a company incorporated
under the laws of England ("Kingston"); Lockheed ▇▇▇▇▇▇ Commercial Launch
Services, Inc., a Delaware corporation ("Lockheed ▇▇▇▇▇▇"); MCN Sat US, Inc., a
Delaware corporation ("MCN Sat"); and TransAtlantic Satellite, Inc., a Delaware
corporation ("TA Sat") (collectively, BAC, COM DEV, Kingston, Lockheed ▇▇▇▇▇▇,
MCN Sat, and TA Sat are referred to herein as the "Exchanging Partners").
NOW, THEREFORE, in consideration of the premises, the parties hereby
consent and agree, as follows:
1. Definitions.
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As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
Business Day: any day other than a Saturday or Sunday or day on which
banking institutions in the State of New York are not required to be open.
Closing Date: the date of closing of the Company's sale of the
Debentures to the Purchasers as contemplated by the Debenture Purchase
Agreement.
Commission: the Securities and Exchange Commission.
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Common Stock: the common stock, par value $.01 per share, of the
Company.
Company: the meaning set forth in the preamble and shall also include
the Company's successors or other parties who succeed to the Company's
obligations hereunder.
Debentures: the Convertible Junior Subordinated Debentures Due February
1, 2012 (Interest Payable in Common Stock) of the Company.
Debenture Purchase Agreement: the meaning set forth in the preamble.
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Eligible Series C Securities: the Series C Securities which a holder
thereof is permitted to sell under the terms of the Transfer Restrictions
Agreements.
Exchange Act: the Securities Exchange Act of 1934, as amended from time
to time.
Exchange Agreement: the meaning set forth in the preamble.
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Exchanging Partner: the meaning set forth in the preamble.
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Holder: any holder of Registrable Securities.
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Initial Shelf Registrable Securities: Registrable Securities, excluding
the shares of Common Stock or other securities issued or issuable upon
conversion of the Debentures.
Initial Shelf Registration Statement: the Shelf Registration Statement
filed by the Company pursuant to Section 2(a).
Losses: any losses, claims, damages, liabilities, costs and expenses,
including, but not limited to, reasonable attorney's fees.
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Managing Underwriters: the investment banker or investment bankers and
manager ormanagers that shall administer an Underwritten Offering of the
securities covered by any registration statement.
Market Value: with respect to a specified date, the aggregate closing
price of such shares of Common Stock on the principal national stock exchange or
automated quotation system upon which the Common Stock is listed or quoted,
averaged over a period of twenty (20) consecutive Business Days prior to such
date. If during this period the Common Stock is not listed on any securities
exchange, quoted on the Nasdaq National Market, or quoted in the
over-the-counter market, the Market Value will be the fair value of the Common
Stock determined by agreement between the Company and the holders of a majority
of the Registrable Securities. If such parties are unable to reach agreement
within a reasonable period of time, the fair value of the Common Stock shall be
determined by an independent appraiser experienced in valuing such type of
consideration jointly selected by the Company and the holders of a majority of
the Registrable Securities. The determination of such appraiser shall be final
and binding upon the parties, and the fees and expenses of such appraiser shall
be borne by the Company.
Other Registrable Stock: shares of Common Stock which the Company is
obligated to register, or include in a registration statement under the
Securities Act, under any Other Registration Rights Agreement.
Other Registration Rights Agreement: the following agreements entered
into by ONS on or before the date of the Exchange Agreement under which ONS is
obligated to register, or include in a registration statement under the
Securities Act, shares of capital stock of ONS, and amendments and supplements
to any such agreement entered into on or before the date of the Exchange
Agreement, in each case as such agreement will be amended prior to the closing
under the Exchange Agreement to transfer all of the ONS rights and obligations
under each of such agreements to the Company: (i) the Registration Rights
Agreement dated as of June 17, 1994, among ONS and the Schedule of Investors set
forth therein, as amended (the "Recent PRRAA")); (ii) the Registration Rights
Agreement, dated as of April 29, 1994, between ONS and Space Systems/Loral, Inc.
(the "SS/L RR Agreement"); and (iii) the Series C Registration Rights Agreement.
Person: any individual, partnership, corporation, limited liability
company, trust, or unincorporated organization, or a government or agency or
political subdivision thereof.
Piggyback Registration: the registration by the Company of the Common
Stock (whether for its own account or for the account of others) under the
Securities Act, other than pursuant to a registration statement filed pursuant
to the provisions of Section 2 or Section 3 hereof or a registration of
securities in connection with a business acquisition or combination or an
employee benefit plan.
Proceeding: any action, suit, proceeding or investigation or written
threat thereof.
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Registrable Securities: regardless of who holds such securities at the
applicable time, (i)the shares of Common Stock of the Company received by BAe in
connection with the purchase by ONS of BAe's interest in Asia Pacific Space and
Communications Ltd.; (ii) the shares of Common Stock or other securities issued
or issuable upon conversion of the Debentures or issued as interest payments
pursuant to the Debenture Purchase Agreement; and (iii) the 86,505 shares of
Common Stock issued pursuant to the respective Warrants of ONS dated as of
December 20, 1991, granted to BAC, exercised on December 31, 1996; provided,
however, that such securities shall cease to be Registrable Securities when a
registration statement with respect to the registration of such securities shall
have been declared effective under the Securities Act and such securities shall
have been disposed of pursuant to such registration statement.
Registration Expenses: any and all expenses incident to the filing and
effectiveness of each registration statement and performance of or compliance by
the Company with this Agreement, including without limitation: (i) all
Commission, stock exchange or National Association of Securities Dealers, Inc.
("NASD") registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or Blue Sky laws (including
reasonable fees and disbursements of counsel in connection with Blue Sky
qualification of any of the Registrable Securities and the preparation of a Blue
Sky memorandum and compliance with the rules of the NASD, (iii) all expenses of
any Persons in preparing or assisting in preparing, word processing, printing
and distributing any registration statement, any prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements,
certificates and other documents relating to the performance of and compliance
with this Agreement, (iv) all fees and expenses incurred in connection with the
listing of any of the Registrable Securities on any securities exchange or the
Nasdaq National Market, (v) the fees and disbursements of counsel for the
Company and of the independent public accountants of the Company, including the
expenses of any special audits or "cold comfort" letters required by or incident
to such performance and compliance, (vi) the reasonable fees and disbursements
of one special counsel representing the Holders of Registrable Securities, such
special counsel to be selected by the Holders of a majority of the Registrable
Securities being registered, (vii) the fees and expenses of a "qualified
independent underwriter" if required by Rule 2720(c) of the rules of the NASD in
connection with the offering of any of the Registrable Securities, (viii) the
fees and expenses of any escrow agent or custodian, and (ix) any fees and
disbursements of any Underwriters customarily paid by issuers or sellers of
securities and the reasonable fees and expenses of any special experts retained
by the Company in connection with any registration statement, but excluding
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Securities by a Holder.
Registration Period: a period terminating fifteen (15) years following
the Closing Date.
Securities Act: the Securities Act of 1933, as amended from time to
time.
Series C Preferred Stock: the Series C 6% Cumulative Redeemable
Convertible Preferred Stock of the Company.
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Series C Registration Rights Agreement: the Registration Rights
Agreement dated as of ____________ 1996, among ONS and the Exchanging Partners
and as amended through the Closing Date.
Series C Securities: the shares of Common Stock or other securities
issued or issuable upon conversion of the Series C Preferred Stock purchased by
the Exchanging Partners pursuant to the Exchange Agreement or issued as
dividends or distributions pursuant to the Certificate of Designations, Rights
and Preferences establishing the terms and relative rights and preferences of
the Series C Preferred Stock.
Shelf Registration: a registration required to be effected pursuant to
Section 2(a).
Shelf Registration Statement: a "shelf" registration statement of the
Company which covers the registration of Registrable Securities on a Form S-3,
and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein; "Shelf Registration Statement" shall include the Initial Shelf
Registration Statement and each Top-up Shelf Registration Statement.
Top-up Shelf Registration Statement: the meaning set forth in Section
2(b).
Transfer Restriction Agreement: means (i) each agreement, dated on or
about the Closing Date, between the Company and any Exchanging Partner and (ii)
each subsequent agreement entered into between the Company and any Exchanging
Partner, any affiliate thereof, any transferee of Series C Preferred Stock or
Common Stock into which such Series C Preferred Stock is converted or which is
issued as a dividend on such Series C Preferred Stock or any other party
pursuant to the terms of another Transfer Restriction Agreement, in each case
which provides for restrictions on transfer of the Series C Preferred Stock or
Common Stock into which such Series C Preferred Stock is converted or which is
issued as a dividend on such Series C Preferred Stock.
Underwriter: each Person who participates as an underwriter of
securities in a registered offering under the Securities Act.
Underwritten Offering: a sale of Company securities by the Company or a
holder of such securities to an Underwriter or Underwriters for reoffering to
the public.
2. Shelf Registration.
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2(a) Filing of Initial Shelf Registration Statement. The
Company shall prepare and cause to be filed as soon as practicable after the
date that is one hundred eighty (180) days after the Closing Date (but not later
than fifteen (15) days thereafter), the Initial Shelf Registration Statement
providing for the registration of all of the Initial Shelf Registrable
Securities. The Company shall use all its best efforts to have the Initial Shelf
Registration Statement declared
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effective by the Commission as soon as practicable after filing. The Company
shall use its best efforts to keep the Initial Shelf Registration Statement
continuously effective for the Registration Period, or such shorter period which
will terminate when all of the Registrable Securities covered by the Initial
Shelf Registration Statement, as amended from time to time pursuant to Section
2(b), have been sold pursuant to the Initial Shelf Registration Statement.
Notwithstanding the foregoing, except as set forth below, any Holder who does
not provide information reasonably requested by the Company in connection with
the Initial Shelf Registration Statement shall not be entitled to have its
Registrable Securities included in the Initial Shelf Registration Statement.
2(b) Filing of Subsequent Shelf Registration Statements or
Amendments. The Company shall prepare and cause to be filed on or as soon as
practicable after the first anniversary of the Closing Date (but no later than
ten (10) days thereafter) and as soon as practicable after each of the
successive semi-annual interest payment dates provided for in the Debenture
Purchase Agreement (but no later than ten (10) days thereafter) an additional
Shelf Registration Statement or, at the Company's option, a post-effective
amendment to any then- effective Shelf Registration Statement (a "Top-up Shelf
Registration Statement") providing for the registration of all of the
Registrable Securities comprising shares of Common Stock or other securities
issued as interest payments pursuant to the Debenture Purchase Agreement which
have not been registered previously. The Company shall also use all reasonable
efforts to cause to be filed, as soon as practicable each time after receipt of
a written demand from a Holder (but no later than thirty (30) days thereafter),
provided, however, that such demand shall not be effective before the first
anniversary of the Closing Date or after the end of the Registration Period, an
additional Shelf Registration Statement or, at the Company's option, a
post-effective amendment to any then-effective Shelf Registration Statement
(also a "Top-up Shelf Registration Statement") providing for the registration of
any and all of the Registrable Securities each Holder demands to be included in
such Top-up Shelf Registration Statement which have not been registered
previously. The Company shall use its best efforts to have each such Shelf
Registration Statement or post-effective amendment declared effective by the
Commission as soon as practicable after filing. The Company shall use its best
efforts to keep each Top-up Shelf Registration Statement continuously effective
for the Registration Period, or such shorter period which will terminate when
all of the Registrable Securities covered by such Top-up Shelf Registration
Statement, as amended from time to time pursuant to this Section 2(b), have been
sold pursuant to such Top-up Shelf Registration Statement. Notwithstanding the
foregoing, except as set forth below, any Holder who does not provide
information reasonably requested by the Company in connection with the Top-up
Shelf Registration Statement shall not be entitled to have its Registrable
Securities included in the Top-up Shelf Registration Statement.
2(c) Effective Registration Statement, Amendments. A Shelf
Registration Statement pursuant to this Section 2 will not be deemed to have
become effective unless it has been declared effective by the Commission;
provided, however that if, after it has been declared effective, the offering of
any Registrable Securities pursuant to such registration statement is interfered
with by any stop order, injunction or other order or requirement of the
Commission or any other governmental agency or court, such registration
statement will be deemed not to have become effective, and the Company shall be
required to continue to use its best efforts to have such
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registration statement declared effective. Further, the Company shall, if
necessary, supplement or amend each Shelf Registration Statement, if required by
the rules, regulations or instructions applicable to the registration form used
by the Company for such Shelf Registration Statement or by the Securities Act or
by any other rules and regulations thereunder for shelf registration.
2(d) Expenses. The Company shall pay any and all Registration
Expenses incident to the filing of each Shelf Registration Statement or
otherwise incident to the performance of or compliance by the Company with this
Section 2. Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
3. Demand Registration of Underwritten Offerings.
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3(a) Requests for Underwritten Registration. At any time
following one hundred eighty (180) days after the Closing Date, one or more
Holders may request that the Company effect a registration under the Securities
Act of all or any of their Registrable Securities in an Underwritten Offering;
provided, however, that, unless the requesting Holder is Matra, the requesting
Holders must request registration of Registrable Securities with a Market Value,
on the date of such request, of at least $20 million; and provided, further,
that if the requesting Holder is Matra, Matra must request registration of
Registrable Securities with a Market Value, as of the date of such request, of
at least $10 million. Each request for an Underwritten Offering shall specify
the approximate number of shares of Registrable Securities requested to be
registered and the anticipated per share price range for such offering. Within
ten (10) days after receipt of any such request, the Company will give written
notice of such requested demand registration to all other Holders and, subject
to Section 3(b), will include in any such registration which constitutes an
Underwritten Offering satisfying the requirements of this Section 3(a) all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within fifteen (15) days after the date the
Company's notice is given.
3(b) Priority on Underwritten Offering. If the Managing
Underwriters for an Underwritten Offering advise the Company in writing that in
their reasonable opinion the aggregate number of Registrable Securities to be
included in an Underwritten Offering (together with any other shares of Common
Stock which the Company is required to include in such registration) exceeds the
number of shares which can be sold in an orderly manner in such offering within
a price range acceptable to the holders of a majority of the Registrable
Securities and Other Registrable Stock requested to be included in such
registration, the Company will include in such registration (i) first, the
maximum amount of Registrable Securities requested to be included therein, pro
rata among the respective Holders thereof on the basis of the amount of
Registrable Securities requested to be included in such registration by each
such Holder, and (ii) second, the maximum amount of Other Registrable Stock and
any other securities requested to be included therein (including by the Company,
subject to Section 3(e)), pro rata among the Company and the holders of such
Other Registrable Stock and other securities on the basis of the number of
shares requested to be included in such registration by the Company and each
such holder, in each case up to the greatest number of shares of Common Stock
which in the reasonable opinion of such underwriters can be sold in an orderly
manner in the price range of such offering. In no event shall any Other
Registrable Stock or any other securities be included in an Underwritten
Offering under this Section 3 unless all
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Registrable Securities requested to be sold in any such offering have been
included therein.
3(c) Restrictions on Underwritten Offerings. The Company will
not be obligated to effect more than one Underwritten Offering for Holders of
Registrable Securities within any twelve (12) month period, except as provided
in the following sentence, and will not be obligated to effect an Underwritten
Offering for Holders of Registrable Securities at any time before ninety (90)
days after the earlier of (i) the date the previous registration statement
prepared in connection with an Underwritten Offering for holders of Registrable
Securities ceases to be effective or (ii) the date that all shares registered
thereunder have been sold. The foregoing limitation on Underwritten Offerings
within any twelve (12) month period shall not apply to a single Underwritten
Offering with respect to Registrable Securities of any Holder (other than Matra)
if the Company effected an Underwritten Offering made at Matra's request within
the preceding twelve (12) months or to a single Underwritten Offering requested
by Matra if the Company effected an Underwritten Offering with respect to
Registrable Securities of any other Holder within the preceding twelve (12)
months.
3(d) Selection of Underwriters. The Holders of a majority of
the Registrable Securities requested to be included in such Underwritten
Offering will have the right to select the Managing Underwriter(s) to administer
the offering; provided, first, that if the Company is successful in obtaining
the services of one or more Underwriters who have been the Managing Underwriters
for an Underwritten Offering of the Company's securities previously, such
Underwriters shall be the Managing Underwriter(s) to administer the offering;
provided, however, that such Managing Underwriter(s) shall be nationally
recognized investment banking firms approved by the Holders, which approval
shall not be unreasonably withheld; and provided, second, that if the Company
participates in the Underwritten Offering under Section 3(e), such Holders shall
obtain the Company's consent with respect to any Managing Underwriter(s) to
administer the offering, which consent shall not be unreasonably withheld.
3(e) Inclusion by the Company of its Common Stock in an
Underwritten Offering. If the Managing Underwriters for an Underwritten Offering
advise the Company in writing that in their opinion the aggregate number of
Registrable Securities to be included in an Underwritten Offering (together with
any Other Registrable Stock) is less than the number of shares which can be sold
in an orderly manner in such offering within a price range acceptable to the
holders of a majority of the Registrable Securities and Other Registrable Stock
requested to be included in such registration, the Company may include in such
registration, on its own behalf, up to the greatest number of shares of Common
Stock which in the opinion of such underwriters can be sold (together with the
Registrable Securities and Other Registrable Stock requested to be included in
such registration) in an orderly manner in the price range of such offering.
3(f) Participation in Underwritten Registrations.
Notwithstanding any other provision of this Section 3 to the contrary, no Person
may participate in any Underwritten Offering hereunder unless such Person (a)
agrees to sell such Person's securities on the basis provided in the applicable
underwriting arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided, however,
that no Holder of Registrable Securities included in any Underwritten Offering
shall be required to make any representations or warranties to the Company or
the underwriters other than representations and warranties regarding such Holder
and such Holder's intended method of distribution.
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3(g) Expenses of Underwriting Offering. The Company shall pay
any and all Registration Expenses incident to the filing of each registration
statement or otherwise incident to the performance of or compliance by the
Company with this Section 3. Each Holder shall pay all underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition
of such Holder's Registrable Securities included in the Underwritten Offering.
3(h) Relationship to Shelf Registration. The rights and
obligations of the parties hereto under Section 3 shall be in addition to, and
not in lieu of, their respective rights and obligations under Section 2.
4. Piggyback Registration Rights.
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4(a) Requests for Piggyback Registration. If at any time
following the date of this Agreement, the Company proposes to effect a Piggyback
Registration, the Company will give written notice to all Holders of its
intention to effect such a registration and, subject to Section 4(b) and Section
4(c), will include in such registration all Registrable Securities with respect
to which the Company has received written requests for inclusion therein within
fifteen (15) days after the date the Company's notice is given.
4(b) Priority on Primary Registrations. If the proposed
Piggyback Registration is an underwritten primary registration on behalf of the
Company, and the Managing Underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering in an orderly
manner within a price range acceptable to the Company, the Company will include
in such registration (i) first, the securities the Company proposes to sell and
the High Priority Registrable Securities (as defined in the Recent PRRAA), pro
rata among the Company and the holders of such High Priority Registrable
Securities on the basis of the number of shares requested to be included by the
Company and each such holder, (ii) second, any Other Registrable Stock requested
to be included therein, pro rata among the holders of such Other Registrable
Stock on the basis of the number of shares requested to be included in such
registration by each such holder, and (iii) third, the Registrable Securities
requested to be included in such registration, pro rata among the Holders
thereof on the basis of the amount of Registrable Securities requested to be
included by each such Holder, in each case up to the greatest number of shares
of Common Stock which in the reasonable opinion of such underwriters can be sold
in an orderly manner in the price range of such offering.
4(c) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities (other than the Registrable Securities), and the
Managing Underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of the offering, the Company will include in such registration (A)
if such registration is on behalf of holders of the Eligible Series C
Securities, (i) first, the securities requested to be included in such
registration under the Series C Registration Agreement, and (ii) second, the
Registrable Securities requested to be
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included in such registration and any Other Registrable Stock (excluding
Eligible Series C Securities) and any other securities requested to be included
therein (including by the Company, subject to Section 3(e)), pro rata among such
Holders and the holders of such Other Registrable Stock and other securities on
the basis of the number of shares requested to be included in such registration
by each such holder, in each case up to the greatest number of shares of Common
Stock which in the reasonable opinion of such underwriters can be sold in an
orderly manner in the price range of such offering; or (B) if such registration
is not on behalf of holders of Series C Securities (i) first, the securities
requested to be included therein by the holders requesting such registration,
and (ii) second, the greatest number of the Registrable Securities, Other
Registrable Stock and any other securities requested to be included therein
(including by the Company, subject to Section 3(e)), pro rata among such Holders
and the holders of such Other Registrable Stock and other securities on the
basis of the number of shares requested to be included in such registration by
each such holder, in each case up to the greatest number of shares of Common
Stock which in the reasonable opinion of such underwriters can be sold in an
orderly manner in the price range of such offering.
4(d) Participation in Piggyback Registrations. Notwithstanding
any other provision of this Section 4 to the contrary, no Person may participate
in any Piggyback Registrations hereunder unless such Person (i) agrees to sell
such Person's securities on the basis provided in the applicable underwriting
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements; provided, however, that no
Holder of Registrable Securities included in any Piggyback Registrations shall
be required to make any representations or warranties to the Company or the
underwriters other than representations and warranties regarding such Holder and
such Holder's intended method of distribution.
4(e) Expenses of Piggyback Registration. The Company shall pay
any and all Registration Expenses incident to the filing of each registration
statement or otherwise incident to the performance of or compliance by the
Company with this Section 4. Each Holder shall pay all underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition
of such Holder's Registrable Securities included in the Piggyback Registration.
5. Registration Procedures.
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In connection with the obligations of the Company with respect to a
registration statement pursuant to Section 2, Section 3 or Section 4 hereof, the
Company shall effect or cause to be effected the registration of the Registrable
Securities under the Securities Act to permit the sale of such Registrable
Securities by the Holders in accordance with their intended method or methods of
distribution, and the Company shall:
5(a) prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective within the time period
required hereunder (provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company will furnish to
one
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counsel selected by the holders of 70% of the Registrable Securities (together
with any Other Registrable Stock) covered by such registration statement copies
of all such documents proposed to be filed, which documents will be subject to
the review of such counsel, and the Company will incorporate in such
registration statement the reasonable comments of such counsel not inconsistent
with the Company's disclosure obligations under applicable securities laws;
5(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period required hereunder (or if no period is so required, a period of not
less than one hundred eighty (180) days or such shorter period which is
sufficient to complete the distribution of the securities registered under the
registration statement) and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
5(c) furnish to each seller of Registrable Securities, the
Managing Underwriters, if any, and their respective counsel, not less than five
(5) Business Days prior to the filing thereof with the Commission, such number
of copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller and to use its best efforts to reflect in each such
document, when so filed with the Commission, such comments as the sellers of
Registrable Securities or their counsel shall reasonably propose;
5(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
5(e) notify each seller of such Registrable Securities as
promptly as practicable in any of the following circumstances: (i) at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company will prepare
a supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading; (ii) when a registration statement
and any amendment thereto has been filed with the Commission and when the
registration statement or any post-effective amendment thereto
-11-
has become effective; (iii) of any request by the Commission for amendment or
supplements to the registration statement or the prospectus included therein or
for additional information; (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration statement or the
initiation of any proceedings for that purpose; and (v) the receipt by the
Company of any notification with respect to the suspension of the qualification
of the securities included therein for sale in any jurisdiction or the
initiation of any proceeding for such purpose;
5(f) cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the Company are
then listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its best
efforts to secure designation of all such Registrable Securities covered by such
registration statement as a Nasdaq "national market system security" within the
meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, to secure Nasdaq
authorization for such Registrable Securities and without limiting the
generality of the foregoing, to arrange for at least two market makers to
register as such with respect to such Registrable Securities with the NASD;
5(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
5(h) if requested, promptly incorporate in any registration
statement or prospectus, if necessary, pursuant to a supplement or
post-effective amendment to such registration statement, such information as the
Managing Underwriters, if any, or the holders of a majority of Registrable
Securities and Other Registrable Securities being registered reasonably request
to have included therein and shall make all required filings of such prospectus
supplement or post-effective amendment as soon as practicable after the Company
is notified of the matters to be incorporated in such prospectus supplement or
post-effective amendment.
5(i) enter into such agreements on terms reasonably acceptable
to the Company (including underwriting agreements) in form, scope and substance
as are customary in underwritten offerings, and take all other reasonable
actions necessary to facilitate the registration or the disposition of the
Registrable Securities included in any registration statement.
5(j) (i) make reasonably available at reasonable times for
inspection by the Holders of Registrable Securities to be registered thereunder,
any underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by the Holders
or such underwriters, at the office where normally kept during normal business
hours, all financial and other records, pertinent corporation documents and
properties of the Company and its subsidiaries, and cause the Company's
officers, directors and employees to supply all relevant information reasonably
requested by the Holders, underwriters, attorney, accountant or other agent in
connection with the registration statement as is customary for similar due
diligence examinations, provided, however, that such persons shall first agree
in writing with the Company that any information that is reasonably and in good
faith designated by the Company in writing as confidential at the time of
delivery of such information shall be kept confidential by such persons;
-12-
(ii) obtain opinions of counsel to the Company and updates thereof (which
counsel, if different from counsel to the Company referred to in the Debenture
Purchase Agreement, shall be reasonably satisfactory to the holders of a
majority of the Registrable Securities to be registered thereunder, the
underwriters, if any, and their respective counsel) addressed to each selling
Holder covering such matters in form, scope and substance as are customary in
underwritten offerings; (iii) obtain "cold comfort" letters (or, in the case of
any person that does not satisfy the conditions for receipt of a "cold comfort"
letter specified in Statement on Auditing Standards No. 72, an "agreed-upon
procedures letter") and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the registration statement), addressed where
reasonably practicable to each selling Holder of Registrable Securities
registered thereunder, and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and (iv) deliver such documents
and certificates as may be reasonably requested by the holders of a majority of
the Registrable Securities and Other Registrable Securities to be registered and
the Managing Underwriters, if any, including those to evidence compliance with
Section 5(e). The foregoing actions set forth in clauses (ii), (iii) and (iv) of
this Section 5(j) shall be performed at (A) the effectiveness of such
registration statement and each post-effective amendment thereto and (B) each
closing under any underwriting or similar agreement as and to the extent
required thereunder;
5(k) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission;
5(l) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable Securities;
5(m) take all such action as may be necessary so that (i) any
registration statement and any amendment thereto and any prospectus forming part
thereof and any amendment or supplement thereto (and each report or other
document incorporated therein by reference in each case) complies in all
material respects with the Securities Act and the Exchange Act and the
respective rules and regulations thereunder; (ii) any registration statement and
any amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
(iii) any prospectus forming part of any registration statement, and any
amendment or supplement to such prospectus, does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
5(n) use its best efforts to prevent the issuance, and if
issued to obtain the withdrawal, of any order suspending the effectiveness of
any registration statement at the earliest
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possible time;
5(o) unless any Registrable Securities shall be in book-entry
form, cooperate with the Holders to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold pursuant
to any registration statement free of any restrictive legend and in such
permitted denominations and registered in such names as the Holders may request
in connection with the sale of Registrable Securities pursuant to such
registration statement; and
5(p) use its best efforts to comply with all applicable rules
and regulations of the Commission and make generally available to its security
holders in a regular filing on Form 10-Q or Form 10-K or otherwise provide in
accordance with Section 11(a) of the Securities Act within the period required
after the effective date of the applicable registration statement an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereof.
The Company may require each Holder of Registrable Securities (i) to
furnish to the Company such information regarding the proposed distribution by
such Holder of such Registrable Securities as the Company may from time to time
reasonably request in writing, and (ii) to enter into an underwriting agreement
and securities sales agreement in the form contemplated by Section 5(i).
Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 5(e) hereof, such
Holder will immediately discontinue disposition of Registrable Securities
pursuant to a registration statement until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 5(e) hereof,
and, if so directed by the Company, such Holder will deliver to the Company (at
the expense of the Company) all copies in its possession, other than permanent
file copies then in such Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. If the
Company shall give any such notice to suspend the disposition of Registrable
Securities pursuant to a registration statement, the Company shall extend the
period during which the registration statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the date when
the Holders shall have received copies of the supplemented or amended prospectus
necessary to resume such dispositions.
6. Hold-Back Agreements.
--------------------
6(a) Restrictions on Public Sale by Holders. By electing to
include Registrable Securities in a registration statement filed pursuant to
Section 3 or Section 4 hereof, each such Holder of Registrable Securities shall
be deemed to have agreed not to effect any public sale or public distribution of
securities of the Company of the same or similar class or classes of the
securities included in the registration statement or any securities convertible
into or exchangeable or exercisable for such securities, including a sale
pursuant to Rule 144 or Rule 144A under the Securities Act, during the 15-day
period prior to, and during such period of time as may be required by the
Underwriters, but not to exceed a 180-day period beginning on, the effective
date of the
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registration statement (except pursuant to the registration statement), except
to the extent otherwise agreed in writing by the Managing Underwriter.
6(b) Restrictions on Public Sale by the Company. The Company
shall not effect any public sale or public distribution of any securities which
are the same as or substantially similar to the Registrable Securities being
registered pursuant to a registration statement filed pursuant to Section 3 or
Section 4 hereof, or any securities convertible into or exchangeable or
exercisable for such securities during the 15-day period prior to, and during
the 180-day period beginning on, the effective date of a registration statement
(except pursuant to the registration statement).
7. Black-Out Periods for Shelf Registration Statements.
---------------------------------------------------
Notwithstanding anything to the contrary in this Agreement,
(A) commencing ninety (90) days after the effectiveness of a Shelf Registration
Statement, the Company may, not more than once in any 12-month period, and one
additional time during the term of this Agreement (but not during any other
Suspension Event or within ninety (90) days after termination of any other
Suspension Event), direct the Holders to suspend sales of Registrable Securities
registered thereunder, as provided herein, if one or more of the following
events (a "Suspension Event") occurs: (i) an underwritten primary offering by
the Company where the Company is advised by the Managing Underwriter(s) for such
offering that sale of Registrable Securities under the Shelf Registration
Statement would have a material adverse effect on the primary offering, or (ii)
pending negotiations relating to, or consummation of, a material corporate
transaction (x) that would require additional disclosure of material information
by the Company in the Shelf Registration Statement (or such filings), (y) as to
which the Company has a bona fide business purpose for preserving
confidentiality and (z) which renders the Company unable to comply with SEC
requirements, in each case under circumstances that would make it impractical or
inadvisable to cause the Shelf Registration Statement (or such filings) to
become effective or to promptly amend or supplement the Shelf Registration
Statement on a post-effective basis, as applicable; and (B) the Company may, not
more than once during the term of this Agreement, direct the Holders to suspend
sales of Registrable Securities registered thereunder, as provided herein, upon
the commencement (or such earlier date as may be required by law) of an
underwritten secondary offering covering not less than 5,250,000 Series C
Securities, with an aggregate minimum Market Value of $75,000,000 (a "Series C
Offering Event").
In the case of a Suspension Event, the Company may give notice
(a "Suspension Notice") to the Holders to suspend sales of the Registrable
Securities so that the Company may correct or update the Shelf Registration
Statement (or such filings). Each such suspension shall continue only for so
long as the Suspension Event or its effect is continuing, and in no event will
any such suspension exceed ninety (90) days. In the case of a Series C Offering
Event, the Company may give notice (also a "Suspension Notice") to the Holders
to suspend sales of Registrable Securities for so long as the Company reasonably
determines is necessary and in no event shall such suspension exceed the date
one hundred and eighty (180) days after the close of the Series C Offering
Event. The Holders agree that they will not effect any sales of the Registrable
Securities
-15-
pursuant to such Shelf Registration Statement (or such filings) at any time
after they have received a Suspension Notice from the Company. If so directed by
the Company, Holders will deliver to the Company all copies of the prospectus
covering the Registrable Securities held by them at the time of receipt of the
Suspension Notice. The Holders may recommence effecting sales of the Registrable
Securities pursuant to the Shelf Registration Statement (or such filings)
following further notice to such effect (an "End of Suspension Notice") from the
Company, which End of Suspension Notice shall, in the case of a Suspension
Event, be given by the Company not later than five (5) days after the conclusion
of any Suspension Event and shall be accompanied by copies of the supplemented
or amended prospectus necessary to resume such sales. In the case of a Series C
Offering Event, the holders may recommence effecting sales immediately following
the conclusion of the one hundred and eighty (180) day period.
Notwithstanding Section 2, if the Company shall give a
Suspension Notice pursuant to this Section 7, the Company shall extend the
period during which the Shelf Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the period
from the date of the giving of the Suspension Notice to and including the date
when the Holders shall have received the End of Suspension Notice and copies of
the supplemented or amended prospectus necessary to resume sales.
8. Indemnification.
---------------
8(a) Indemnification by the Company. The Company shall
indemnify, to the extent permitted by law, each Holder of Registrable
Securities, each Person who controls such Holder (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) and their respective
officers, directors, partners, employees, agents and representatives, against
all Losses caused by any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which made, not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such Holder expressly for use
therein or by such Holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such Holder with a sufficient number of copies of the same
and except insofar as the same are caused by or contained in any prospectus if
such Holder failed to send or deliver a copy of any subsequent prospectus or
prospectus supplement which would have corrected such untrue or alleged untrue
statement of material fact or such omission or alleged omission of a material
fact with or prior to the delivery of written confirmation of the sale by such
Holder after the Company has furnished such Holder with a sufficient number of
copies of the same. In connection with an Underwritten Offering, the Company
will indemnify such Underwriters, each Person who controls such Underwriters
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act) and their respective officers, directors, partners,
employees, agents and representatives to the same extent as provided above with
respect to the indemnification of the Holders of Registrable Securities.
-16-
8(b) Indemnification by Holders. In connection with any
registration statement in which Holders of Registrable Securities are
participating, each such Holder will furnish to the Company in writing such
information as the Company reasonably requests for use in connection with any
such registration statement or prospectus and, to the extent permitted by law,
will indemnify the Company, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
and their respective officers, directors, partners, employees, agents and
representatives against any Losses arising out of or based upon any untrue or
alleged untrue statement of a material fact contained in any registration
statement, prospectus, or form of prospectus, or arising out of or based upon
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which made, not misleading, to the extent, but only to the
extent, that such untrue or alleged untrue statement is contained in, or such
omission or alleged omission is required to be contained in, any information so
furnished in writing by such Holder to the Company expressly for use in such
registration statement or prospectus and that such statement or omission was
relied upon by the Company in preparation of such registration statement,
prospectus or form of prospectus; provided, however, that such Holder of
Registrable Securities shall not be liable in any such case to the extent that
the Holder has furnished in writing to the Company prior to the filing of any
such registration statement or prospectus or amendment or supplement thereto
information expressly for use in such registration statement or prospectus or
any amendment or supplement thereto which corrected or made not misleading,
information previously furnished to the Company, and the Company failed to
include such information therein. In no event shall the liability of any selling
Holder of Registrable Securities hereunder be greater in amount than the dollar
amount of the proceeds (net of payment of all expenses) received by such Holder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such indemnified party.
8(c) Conduct of Indemnification Proceedings. If any Person
shall be entitled to indemnity hereunder such indemnified party shall give
prompt notice to the party or parties from which such indemnity is sought of the
commencement of any Proceeding with respect to which such indemnified party
seeks indemnification or contribution pursuant hereto; provided, however, that
the failure to so notify the indemnifying parties shall not relieve the
indemnifying parties from any obligation or liability except to the extent that
the indemnifying parties have been prejudiced by such failure. The indemnifying
parties shall have the right, exercisable by giving written notice to an
indemnified party promptly after the receipt of written notice from such
indemnified party of such Proceeding, to assume, at the indemnifying parties'
expense, the defense of any such Proceeding, with counsel reasonably
satisfactory to such indemnified party; provided, however, that an indemnified
party or parties (if more than one such indemnified party is named in any
Proceeding) shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such indemnified party or parties
unless the parties to such Proceeding include both the indemnified party or
parties and the indemnifying party or parties, and there exists, in the opinion
of the parties' counsel, a conflict between one or more indemnifying parties and
one or more indemnified parties,
-17-
in which case the indemnifying parties shall, in connection with any one such
Proceeding or separate but substantially similar or related Proceedings in the
same jurisdiction, arising out of the same general allegations or circumstances,
be liable for the fees and expenses of not more than one separate firm of
attorneys (together with appropriate local counsel) at any time for such
indemnified party or parties. If an indemnifying party assumes the defense of
such Proceeding, the indemnifying, parties will not be subject to any liability
for any settlement made by the indemnified party without its or their consent
(such consent not to be unreasonably withheld).
8(d) Contribution. If the indemnification provided for in this
Section 7 is unavailable to an indemnified party or is insufficient to hold such
indemnified party harmless for any Losses in respect of which this Section 8
would otherwise apply by its terms, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have an obligation to
contribute to the amount paid or payable by such indemnified party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party, on the one hand, and such indemnified party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party, on the one hand, and indemnified
party, on the other hand, shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been taken by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent any such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include any legal or other fees or expenses
incurred by such party in connection with any Proceeding, to the extent such
party would have been indemnified for such expenses under Section 8(c), if the
indemnification provided for in Section 8(a) or Section 8(b) was available to
such party. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), an indemnifying party that
is a selling Holder of Registrable Securities shall not be required to
contribute any amount in excess of the amount by which the net proceeds received
by such indemnifying party exceeds the amount of any damages that such
indemnifying party has otherwise been required to pay by reasons of such untrue
or alleged untrue statement or omission or alleged omission. No person adjudged
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
9. Miscellaneous.
------------
9(a) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of the
Holders of a majority of the Registrable Securities; provided, however, that
-18-
no amendment, modification or supplement or waiver or consent to the departure
with respect to the provisions of Section 2, Section 3, Section 4, Section 7, or
Section 8 hereof shall be effective as against any Holder of Registrable
Securities unless consented to in writing by such Holder of Registrable
Securities.
9(b) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 9(b) (ii) if to the Company, at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel, and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 9(b).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
9(c) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders. If any successor, assignee or transferee
of any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject
to the terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be entitled to receive the benefits hereof and
shall be conclusively deemed to have agreed to be bound by all of the terms and
provisions hereof. Notwithstanding the foregoing, only Matra, as a Holder of
Registrable Securities, may request an Underwritten Offering pursuant to Section
3(a) with respect to Registrable Securities with a Market Value, as of the date
of such request, of less than $20 million.
9(d) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in, separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
9(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
9(f) Governing Law; Consent to Jurisdiction. THIS AGREEMENT
AND THE DUTIES AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAW PROVISIONS THEREOF. EACH OF THE PARTIES
HERETO AGREES TO SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF DELAWARE IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
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9(g) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
9(h) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if any party fails to perform any of
its obligations hereunder, and accordingly agree that each party, in addition to
any other remedy to which it may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of any other party
under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States of America or any State thereof
having jurisdiction.
9(i) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement supersedes an
prior oral or written agreements, commitments or understandings between the
parties with respect to the matters provided for herein.
-20-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ORION NEWCO SERVICES, INC.
By:
-------------------------------
Name:
Title:
BRITISH AEROSPACE HOLDINGS,
INC.
By:
-------------------------------
Name:
Title:
MATRA MARCONI SPACE
UK LIMITED
By:
--------------------------------
Name:
Title:
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