EXHIBIT 3
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT dated as of March
31, 1998 among American Mobile Satellite Corporation, a Delaware corporation
(the "Company"), ▇▇▇▇▇▇ Electronics Corporation ("▇▇▇▇▇▇"), Singapore
Telecommunications Ltd. ("Singapore Telecom"), and Baron Capital Partners, L.P.
(collectively, the "Guarantors") and each other Person who executes this
Agreement.
W I T N E S S E T H:
WHEREAS, the Company and the Guarantors are parties to a certain
Registration Rights Agreement (the "1996 Registration Rights Agreement") dated
as of June 28, 1996 entered into in connection with the Guarantee Issuance
Agreement dated as of June 28, 1996, as previously amended, and the warrants to
purchase common stock, par value $0.01 per share, of the Company issued in
connection therewith; and
WHEREAS, in order to induce the Guarantors to issue new Guaranties
in connection with the restructuring of the Company's existing indebtedness, the
Company has agreed, pursuant to a new Guaranty Issuance Agreement dated as of
March 31, 1998 (the "1998 Guaranty Issuance Agreement"), to amend and restate
the 1996 Registration Rights Agreement to (i) extend the expiration date for
demand registration rights with respect to the existing warrants, (ii) provide
registration rights for the warrants to be issued pursuant to the 1998 Guaranty
Issuance Agreement, and (iii) provide registration rights for other restricted
securities held by the Guarantors;
NOW, THEREFORE, the parties hereto agree that the 1996 Registration
Rights Agreement is hereby amended and restated to read in full as follows:
NYFS07...:\56\53356\0056\0297\AGR4068K.510
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein, have
the following meanings:
"Affiliate", as applied to any specified Person, shall mean any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of this
definition, "control", when used with respect to any Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means the Board of Directors of the Company.
"Bridge Shares" means the shares of Common Stock issued or issuable
upon exercise of the Bridge Warrants in accordance with the terms thereof and
any Common Stock issued as or issuable upon the conversion or exercise or any
warrant, option, right, or other security which is issued as a dividend or other
distribution with respect to or in exchange for or in
2
replacement of the shares of Common Stock issued or issuable upon exercise of
the Bridge Warrants.
"Bridge Registration Rights Agreement" means the registration rights
agreement dated as of April 19, 1996 among the Company, Toronto Dominion
Investments, Inc., ▇▇▇▇▇▇ Guaranty Trust Company of New York and ▇▇▇▇▇▇
Communications Satellite Services, Inc. with respect to the
registration of the Bridge Shares.
"Bridge Warrants" means the warrants to purchase Common Stock
originally issued by the Company to Toronto Dominion Investments, Inc., ▇▇▇▇▇▇
Guaranty Trust Company of New York and ▇▇▇▇▇▇ Communications Satellite Services,
Inc. on January 19, 1996.
"Commission" means the Securities and Exchange Commission, or any
successor agency.
"Common Stock" means the common stock, par value $.01 per share, of
the Company.
"Deferral Period" has the meaning set forth in Section 2.1.
"Demand Registration" has the meaning set forth in Section 2.1.
3
"Demand Registration Notice" has the meaning set forth in Section
2.l.
"Demanding Group" has the meaning set forth in Section 2.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Holder" means the holder of any Registrable Securities.
"Motorola Registration Rights Agreement" means the Registration
Rights Agreement dated as of March 31, 1998 between the Company and Motorola,
Inc.
"NASD" means the National Association of Securities Dealers, Inc.
"Participation Rights Agreement" means the Participation Rights
Agreement dated as of December 31, 1997 among the Company, Motorola, Inc.
("Motorola"), ▇▇▇▇▇▇, Singapore Telecom and AT&T Wireless Services, Inc.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust, or any
4
other entity or organization, including a government or political subdivision or
an agency or instrumentality thereof.
"Piggy-Back Registration" has the meaning set forth in Section 2.2.
"Registrable Securities" means the Warrant Shares and any other
shares of Common Stock beneficially owned by the Guarantors that constitute
"restricted securities" as such term is defined in Rule 144 under the Securities
Act until (i) a Registration Statement covering such Warrant Shares or other
shares has been declared effective by the Commission and they have been disposed
of pursuant to such effective Registration Statement, (ii) such Warrant Shares
or other shares are sold under circumstances in which all of the applicable
conditions of Rule 144 (or any similar provisions then in force) under the
Securities Act are met or under which they may be sold pursuant to Rule 144(k)
or (iii) the Company has delivered a new certificate or other evidence of
ownership for them not bearing the legend required pursuant to the Warrants or
the agreement pursuant to which they were issued and they may be freely resold
at one time without subsequent registration under the Securities Act.
"Registration Statement" means any registration statement of the
Company relating to a Demand Registration
5
pursuant to Section 2.1 or a Piggy-Back Registration pursuant to Section 2.2, in
each case, including the prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all exhibits and
material incorporated by reference therein.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Selling Holder" means a Holder who is selling Registrable
Securities pursuant to a Registration Statement under the Securities Act.
"Subordination Termination Date" has the meaning set forth in
Section 4 of the Participation Rights Agreement.
"Underwriter" means a securities dealer who purchases any
Registrable Securities as principal and not as part of such dealer's
market-making activities.
"Unit Offering" means the offering of 335,000 Units, each consisting
of $1,000 principal amount of 12 1/4 % Senior Notes of AMSC Acquisition Company,
Inc. and one warrant to purchase 3.75749 shares of Common Stock, pursuant to the
Offering Memorandum dated March 31, 1998.
"Unit Warrants Registration Rights Agreement"
6
means the Registration Rights Agreement dated as of March 31, 1998 among the
Company, Bear ▇▇▇▇▇▇▇ & Co. Inc., ▇.▇. ▇▇▇▇▇▇ Securities, Inc., TD Securities
(USA) Inc. and Banc America ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ entered into in connection with
the Unit Offering.
"Warrants" means the warrants dated June 28, 1996, as amended
through the date hereof and as may be further amended from time to time, and the
warrants dated March 31, 1998, as the same may be amended from time to time, to
purchase Common Stock issued to the Guarantors.
"Warrant Shares" means the shares of Common Stock issued or issuable
upon exercise of the Warrants, in each case in accordance with the terms
thereof, and any Common Stock or other securities issued or issuable upon the
exercise of any warrant, option, right, or other security which is issued as a
dividend or other distribution with respect to or in exchange for or in
replacement of the shares of Common Stock issued or issuable upon exercise of
the Warrants.
7
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1. Demand Registration.
(a) Right to Demand. At any time and from time to time prior to
March 31, 2005, Holders of Registrable Securities representing at least 25% of
the aggregate number of Registrable Securities as a group (each, a "Demanding
Group") may make a written request of the Company for registration with the
Commission, under and in accordance with the provisions of the Securities Act,
of all or part of their Registrable Securities (a "Demand Registration"). Within
5 days after receipt of the request for a Demand Registration, the Company will
send written notice (the "Demand Registration Notice") of such registration
request and its intention to comply therewith to each Holder and, subject to
paragraph (c) below, the Company will include in such registration all
Registrable Securities of such Holders with respect to which the Company has
received written requests for inclusion therein within 20 days after the
Holder's receipt of the Demand Registration Notice and such Holders will be
deemed to be members of the Demanding Group. All requests made pursuant to this
paragraph (a) will specify the aggregate number of Registrable Securities
requested to be registered.
8
Promptly after receipt of any request for registration under this
paragraph (a), but in no event later than 60 days after receipt of such request,
the Company shall file a Registration Statement with the Commission with respect
to the Registrable Securities included in such request and shall use its best
efforts to have such Registration Statement declared effective as promptly as
practicable; provided, however, that the Company may postpone the filing of such
Registration Statement for a period of up to 90 days (the "Deferral Period") if
(x) the Board of Directors reasonably determines that (i) such a filing would
adversely affect any proposed financing, acquisition, divestiture or other
material transaction by the Company or (ii) such a filing would otherwise
represent an undue hardship for the Company, and (y) such determination is
reflected in a certificate signed by the Chief Executive Officer or President of
the Company. The Company shall not be entitled to request more than one such
deferral with respect to any Demand Registration within any 365-day period. If
the Company does elect to defer any such Demand Registration, the Holders
requesting such Demand Registration may, at their election by written notice to
the Company, (i) confirm their request to proceed with such Demand Registration
upon the expiration of the Deferral Period or (ii) withdraw their request for
such Demand Registration in which case no such request for a Demand Registration
shall be deemed to have occurred for purposes of Section 2.1(b) or for
9
any other purposes under this Agreement (and if such Deferral Period extends
past March 31, 2005, the Holders shall nevertheless be entitled to make
subsequent requests for Demand Registration hereunder).
(b) Number of Demand Registrations. The Demanding Group(s) shall
collectively be entitled to two Demand Registrations hereunder. A Demand
Registration shall not be counted as a Demand Registration hereunder (i) until
such Demand Registration has been declared effective by the Commission and
maintained continuously effective for a period of at least 120 days or such
shorter period as will terminate when all Registrable Securities included
therein have been sold in accordance with such Demand Registration and (ii)
unless the number of Registrable Securities in such Demand Registration by the
Demand Group is at least 80% of the number of shares originally requested to be
included by such group after giving effect to any reductions pursuant to
paragraph (c) below.
(c) Priority on Demand Registrations. If in any Demand Registration
the managing Underwriter or Underwriters thereof advise the Company in writing
that in its or their reasonable opinion or, in the case of a Demand Registration
not being underwritten, the Company shall reasonably determine after
consultation with an investment banking firm of nationally
10
recognized standing, that the number of Registrable Securities proposed to be
sold in such Demand Registration exceeds the number that can be sold in such
offering or will adversely affect the success of such offering (including,
without limitation, an impact on the selling price or the number of Registrable
Securities that any participant may sell), the Company shall include in such
registration only the number of Registrable Securities, if any, which in the
opinion of such Underwriter or Underwriters, or the Company, as the case may be,
can be sold without having an adverse effect on the success of the offering and
in accordance with the following priority: (x) up to and including the
Subordination Termination Date, (i) first, pursuant to Section 2 of the Motorola
Registration Rights Agreement, securities requested to be included in such
offering by Motorola, (ii) second, subject to the priority rights of the holders
of Bridge Shares pursuant to the Bridge Registration Rights Agreement,
Registrable Securities that are Warrant Shares requested to be included in such
offering by Holders in the Demanding Group requesting such registration,
allocated pro rata among such Demanding Group (based upon the number of such
Warrant Shares requested to be included in such Demand Registration), (iii)
third, other Registrable Securities requested to be included in such offering by
Holders in the Demanding Group requesting such registration, allocated pro rata
among such Demanding Group (based upon the number of such other Registrable
11
Securities requested to be included in such Demand Registration), (iv) fourth,
pro rata (based upon the number of Registrable Securities or similar securities
requested to be included in such registration by such Holders and other Persons,
if any) among the other Holders of Registrable Securities and other Persons
having similar rights who have requested to include Registrable Securities or
similar securities in such registration pursuant to the piggy-back registration
provisions of Section 2.2 or other registration rights agreements other than the
Motorola Registration Rights Agreement and the Bridge Registration Rights
Agreement, and (v) fifth, securities proposed to be issued by the Company for
its own account; and (y) after the Subordination Termination Date, (i) first,
Registrable Securities requested to be included in such offering by Holders in
the Demanding Group requesting such registration and securities requested to be
included in such offering by Motorola pursuant to Section 2 of the Motorola
Registration Rights Agreement, allocated pro rata among Motorola and, subject to
the priority rights of the holders of Bridge Shares pursuant to the Bridge
Registration Rights Agreement, the members of such Demanding Group based upon
the number of securities requested to be included in such offering (provided
that Registrable Securities that are Warrant Shares shall have priority over
other Registrable Securities in the shares included at the request of the
Demanding Group), (ii) second, pro rata (based upon the number
12
of Registrable Securities or similar securities requested to be included in such
registration by such Holders and other Persons, if any) among the other Holders
of Registrable Securities and other persons having similar rights who have
requested to include Registrable Securities or similar securities in such
registration pursuant to the piggy-back registration provisions of Section 2.2
or other registration rights agreements other than the Motorola Registration
Rights Agreement and the Bridge Registration Rights Agreement, and (ii) third,
securities proposed to be issued by the Company for its own account.
(d) Selection of Underwriters. If any Demand Registration is to be
in the form of an underwritten offering, the managing Underwriter or
Underwriters that will administer the offering shall be selected by the holders
of a majority of the Registrable Securities to be included in such offering;
provided that such managing underwriter or underwriters must be of recognized
national standing and reasonably satisfactory to the Company. The Company shall
(together with all Holders of Registrable Securities proposing to distribute
Registrable Securities through such underwriting) enter into an underwriting
agreement in customary form with the Underwriter or Underwriters selected for
such underwriting in the manner set forth above.
13
(e) Withdrawal. If any Holder of Registrable Securities disapproves
of the terms of any such underwriting, such Holder may elect to withdraw
therefrom by written notice to the Company and the managing Underwriter. If by
the withdrawal of such Registrable Securities a greater number of Registrable
Securities held by other Holders may be included in such registration (up to the
maximum of any limitation imposed by the Underwriters), then the Company shall
offer to all Holders who have requested inclusion of Registrable Securities in
the registration, the right to include additional Registrable Securities in the
priority and proportions specified in Section 2.l(c).
14
SECTION 2.2. Piggy-Back Registration.
(a) If the Company proposes to file a registration statement under
the Securities Act with respect to an offering by the Company for its own
account or for the account of any of its respective securityholders of any class
of equity security or security convertible into or exchangeable for any class of
equity security (other than a registration statement on Form S-4 or S-8 (or any
substitute form that may be adopted by the Commission), or a registration filed
in connection with an exchange offer or offering of securities solely to the
Company's existing securityholders or other registrations solely in connection
with employee stock options or other employee benefit plans), then the Company
shall give written notice of such proposed filing to the Holders of Registrable
Securities as soon as practicable (but in no event less than 30 days before the
anticipated filing date), and such notice shall offer such Holders the
opportunity to register such number of shares of Registrable Securities as each
such Holder may request ("Piggy-Back Registration"). The Company shall use its
best efforts to cause the managing Underwriter or Underwriters of a proposed
underwritten offering to permit the Registrable Securities requested to be
included in a Piggy-Back Registration to be included on the same terms and
conditions as any similar securities of the Company included therein and to
permit the sale or other disposition of such
15
Registrable Securities in accordance with the intended method of distribution
thereof.
No registration effected under this Section 2.2, and no failure to
effect a registration under this Section 2.2, shall relieve the Company of its
obligations pursuant to Section 2.l, and no failure to effect a registration
under this Section 2.2 and complete the sale of shares in connection therewith
shall relieve the Company of any other obligation under this Agreement
(including, without limitation, the Company's obligations under Sections 3.2 and
4.1).
(b) Notwithstanding anything contained herein, if the managing
Underwriter or Underwriters of an offering described in the foregoing paragraph
(a) deliver a written opinion to the Holders of the Registrable Securities
proposed to be included in such offering that (i) the size of the offering that
the Holders, the Company and any other Persons intend to make or (ii) the kind
of securities that the Holders, the Company and any other Persons intend to
include in such offering are such that the success of the offering would be
materially and adversely affected by inclusion of the Registrable Securities
requested to be included, then, subject to the priority rights of the Unit
Warrant Holders pursuant to and in accordance with the Unit Warrant Registration
Rights Agreement, Motorola pursuant to and in
16
accordance with the terms of the Participation Rights Agreement (through the
Subordination Termination Date) and the holders of Bridge Shares pursuant to and
in accordance with the terms of the Bridge Registration Rights Agreement, (A) if
the size of the offering is the basis of such Underwriter's opinion, such amount
of securities to be offered for the accounts of Holders and the amount of
securities to be offered for the account of the Company shall be reduced pro
rata (based upon the number of Registrable Securities or other securities
proposed to be included in such registration by the Holders and the Company)
provided that the number of Registrable Securities that are not Warrant Shares
shall be reduced to zero before the number of Warrant Shares included is
reduced, and the amount of securities to be offered for the account of any other
Persons (other than the Unit Warrant Holders, Motorola and the holders of Bridge
Shares) shall be reduced to zero; and (B) if the combination of securities to be
offered is the basis of such Underwriter's opinion, (x) the amount of securities
to be offered for the accounts of Holders and the amount of securities to be
offered for the account of the Company shall be reduced pro rata (based upon the
number of Registrable Securities or other securities proposed to be included in
such registration by the Holders and the Company) provided that the number of
Registrable Securities that are not Warrant Shares shall be reduced to zero
before the number of Warrant Shares included is reduced, and the amount of
securities to be
17
offered for the account of such other Persons (other than the Unit Warrant
Holders, Motorola and the holders of Bridge Shares) shall be reduced to zero to
the extent necessary, in the judgment of managing Underwriter, to substantially
eliminate the adverse effect that inclusion of the Registrable Securities
requested to be included would have on such offering. After the Subordination
Termination Date, any reduction in the amount of securities to be offered for
the accounts of participating Holders and the amount of securities to be offered
for the account of Motorola shall be on a pro rata basis.
(c) The Holders of Registrable Securities included within such
Piggy-Back Registration may withdraw all or any part of the Registrable
Securities from such Piggy-Back Registration at any time (before but not after
the effective date of such Registration Statement), by delivering written notice
of such withdrawal request to the Company.
(d) If the Company shall determine for any reason (x) not to
register or (y) to delay a registration which includes Registrable Securities
pursuant to this Section 2.2, the Company may, at its election, give written
notice of such determination to the Holders of the Registrable Securities and,
thereupon (i) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Securities in connection
18
with such registration (but not from its obligation to pay the Registration
Expenses in connection therewith), without prejudice, however, to the rights, if
any, of any Holder or Holders of Registrable Securities to request that such
registration be effected as a Demand Registration under Section 2.1, and (ii) in
the case of a delay in registering, shall be permitted to delay registering any
Registrable Securities for the same period as the delay in registering such
other shares.
ARTICLE III
REGISTRATION PROCEDURES
SECTION 3.1. Filings; Information. Whenever Registrable Securities
are to be registered pursuant to Section 2.1 hereof, the Company will use its
best efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof as
quickly as practicable, and in connection with any such request:
(a) The Company will as expeditiously as possible (and in any event
within the time period specified in Section 2.1(a)) prepare and file with the
Commission a Registration Statement on any form for which the Company then
qualifies or which counsel for the Company and counsel for the Selling Holders
shall deem appropriate and which form shall be
19
available for the sale of the Registrable Securities to be registered thereunder
in accordance with the intended method of distribution thereof, and if the
offering is an underwritten offering, shall be reasonably satisfactory to the
managing Underwriter or Underwriters. The Company will use its best efforts to
cause such filed Registration Statement to become and remain continuously
effective in accordance with Section 2.1(b).
(b) The Company will, prior to filing a Registration Statement or
prospectus or any amendment or supplement thereto, furnish to each Selling
Holder and each Underwriter, if any, of the Registrable Securities covered by
such Registration Statement copies of such Registration Statement as proposed to
be filed, and thereafter furnish to such Selling Holder and Underwriter, if any,
such number of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits thereto and documents
incorporated by reference therein), the prospectus included in such Registration
Statement (including each preliminary prospectus) and such other documents as
such Selling Holder or Underwriter may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such Selling Holder.
(c) After the filing of the Registration Statement, the Company will
promptly notify each Selling Holder of
20
Registrable Securities covered by such Registration Statement of any stop order
issued or threatened by the Commission and take all reasonable actions required
to prevent the entry of such stop order or to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify
the Registrable Securities under such other securities or blue sky laws of such
jurisdictions in the United States as any Selling Holder or managing Underwriter
reasonably (in light of such Selling Holder's intended plan of distribution)
requests and (ii) cause such Registrable Securities to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company and do any and all other
acts and things that may be reasonably necessary or advisable to enable such
Selling Holder and the Underwriters, if any, to consummate the disposition of
the Registrable Securities owned by such Selling Holder; provided that the
Company will not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph (d), (B) subject itself to taxation in any such jurisdiction or (C)
consent to general service of process in any such jurisdiction.
(e) The Company will immediately notify each
21
Selling Holder, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the occurrence of an event requiring the
preparation of 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 material fact required to be stated therein or necessary to make the
statements therein not misleading, in light of the circumstances in which they
were made, and promptly file with the Commission and make available to each
Selling Holder any such supplement or amendment.
(f) The Company will enter into customary agreements (including an
underwriting agreement in customary form if the offering is an underwritten
offering) and take such other actions as are reasonably required in order to
expedite or facilitate the disposition of such Registrable Securities,
including, in the case of an offering pursuant to Section 2.1, cooperating in
the marketing efforts of the Underwriters and the Selling Holders by, among
other things, making available, as reasonably requested by the Underwriters and
the Selling Holders, senior executive officers of the Company for attendance at,
and active participation with the Underwriters in, informational meetings with
prospective purchasers of the Registrable Securities being offered, including
meeting with groups of such purchasers or
22
with individual purchasers, providing information and answering questions about
the Company at such meetings, and traveling to locations at reasonable times and
as reasonably selected by the Underwriters.
(g) The Company will make available for inspection by any Selling
Holder, any Underwriter participating in any disposition pursuant to such
Registration Statement and any attorney, accountant or other professional
retained by any such Selling Holder or Underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any Inspectors in connection with
such Registration Statement. Records which the Company determines, in good
faith, to be confidential and which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in such
Registration Statement or (ii) the release of such Records is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction. Each
Selling Holder of such Registrable Securities agrees that information obtained
by it as a result of such inspections shall be
23
deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company or its Affiliates unless and until
such is made generally available to the public. Each Selling Holder of such
Registrable Securities further agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the company, at its expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential.
(h) The Company will furnish to each Selling Holder and to each
Underwriter, if any, a signed counterpart, addressed to such Selling Holder or
Underwriters of (i) an opinion or opinions of counsel to the Company and (ii) a
comfort letter or comfort letters from the Company's independent public
accountants, each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the cased may be, as the
holders of a majority of the Registrable Securities included in such offering or
the managing Underwriter therefor reasonably requests.
(i) If requested by the Selling Holders, the Company will provide a
CUSIP number for all Registrable Securities not later than the effective date of
the Registration
24
Statement covering such Registrable Securities and provide the Company's
transfer agent(s) and registrar(s) for the Registrable Securities with printed
certificates for the Registrable Securities.
(j) The Company will cooperate and assist in any filings required to
be made with the NASD and in the performance of any due diligence investigation
by any Underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use its best efforts to cause such Registration Statement to become
effective and approved by such governmental agencies or authorities as may be
necessary to enable the Selling Holders or Underwriters, if any, to consummate
the disposition of such Registrable Securities.
(k) The Company will otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and make available to
its securityholders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
commencement of any public offering of securities pursuant to the Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act.
(l) The Company will use its best efforts to cause all such
Registrable Securities to be listed on each securities
25
exchange on which similar securities issued by the Company are then listed.
The Company may require each Selling Holder to promptly furnish in
writing to the Company such information regarding the distribution of the
Registrable Securities as the Company may from time to time reasonably request
and such other information as may be legally required in connection with such
registration.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3.1(e)
hereof, such Selling Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until such Selling Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3.1(e) hereof, and,
if so directed by the Company, such Selling Holder will deliver to the Company
(at the Company's expense) all copies, other than permanent file copies then in
such Selling Holder's possession, of the most recent prospectus covering such
Registrable Securities at the time of receipt of such notice. In the event the
Company shall give such notice, the Company shall extend the period during which
such Registration Statement shall be maintained effective (including
26
the period referred to in Section 3.1(a) hereof) by the number of days during
the period from and including the date of the giving of notice pursuant to
Section 3.1(c) hereof to the date when the Company shall make available to the
Selling Holders a prospectus supplemented or amended to conform with the
requirements of Section 3.1(e) hereof.
SECTION 3.2. Expenses. The Company shall pay the following expenses
incurred in connection with any registration required hereunder (the
"Registration Expenses"), regardless of whether a Registration Statement becomes
effective: (i) all registration and filing fees, (ii) fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), (iii) printing and engraving expenses, (iv) internal
expenses of the Company (including, without limitation. all salaries and
expenses of its officers and employees performing legal or accounting duties),
(v) all fees and expenses incurred in connection with the listing of the
Registrable Securities, (vi) reasonable fees and disbursements of counsel for
the Company and customary fees and expenses for independent certified public
accountants retained by the Company (including the expenses of any comfort
letters or costs associated with the delivery by independent certified public
accountants of a comfort letter or comfort letters
27
requested pursuant to Section 3.1(h) hereof), (vii) the reasonable fees and
expenses of any special experts retained by the Company in connection with such
registration, (viii) reasonable fees and expenses of one counsel (who shall be
reasonably acceptable to the Company) for the Holders, (ix) in connection with
any underwritten offering or proposed underwritten offering of Registrable
Securities hereunder, the reasonable fees and disbursements of the Underwriters
and counsel for the Underwriters (excluding any underwriting discounts or
commissions with respect to Registrable Securities not being sold for the
account of the Company), and reasonable expenses in connection with the
marketing efforts of the Underwriters and the Selling Holders, including
expenses related to meetings with prospective purchasers of the Registrable
Securities and any travel costs related thereto and (xi) fees and expenses
associated with any NASD filing required to be made in connection with the
registration of the Registrable Securities, including, if applicable, the
reasonable fees and expenses of any "qualified independent underwriter" (and its
counsel) that is required to be retained in accordance win the rules and
regulations of the NASD.
28
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
SECTION 4.1. Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Selling Holder, its officers, directors and
agents, and each Person, if any, who controls such Selling Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities caused by
any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or prospectus relating to the Registrable Securities
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading (in the case
of a prospectus, in light of the circumstances under which they were made),
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished in writing to the Company by such Selling Holder or
on such Selling Holder's behalf expressly for use therein; provided, however,
that the foregoing indemnity agreement with
29
respect to any preliminary prospectus shall not inure to the benefit of any
Selling Holder from whom the Person asserting any such loss, claim, damage or
liability purchased the Registrable Securities if it is determined that it was
the responsibility of such Selling Holder to provide such Person with a current
copy of the prospectus and such current copy of the prospectus would have cured
the defect giving rise to such loss, claim, damage or liability. In connection
with any underwritten offering, the Company also agrees to indemnify the
Underwriters of the Registrable Securities, their officers and directors and
each Person who controls such Underwriters on substantially the same basis as
that of the indemnification of the Selling Holders provided in this Section 4.1.
SECTION 4.2. Indemnification by Selling Holders. Each Selling Holder
agrees, severally but not jointly, to indemnify and hold harmless the Company,
its officers, directors and agents and each Person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Selling Holder, but only with reference to information related
to such Selling Holder furnished in writing to the Company by such Selling
Holder or on such Selling Holder's behalf expressly for use in any Registration
Statement or prospectus relating to the
30
Registrable Securities, or any amendment or supplement thereto, or any
preliminary prospectus. In connection with any underwritten offering, each
Selling Holder also agrees to indemnify and hold harmless the Underwriters of
the Registrable Securities, their officers and directors and each Person who
controls such Underwriters on substantially the same basis as that of the
indemnification of the Company provided in this Section 4.2. Notwithstanding
anything in this Agreement to the contrary, in no event shall any Selling Holder
be obligated to provide indemnification hereunder in connection with any
offering in an amount that exceeds the proceeds of such offering received by
such Selling Holder.
SECTION 4.3. Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 4.1 or 4.2, such Person (an "Indemnified Party") shall promptly notify
the Person against whom such indemnity may be sought (an "Indemnifying Party")
in writing and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Party, and shall assume the payment of all fees and expenses. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and
31
expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Indemnified Party
and the Indemnifying Party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Indemnified Parties, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Indemnified
Parties, such firm shall be designated in writing by the Indemnified Parties.
The Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent, or if
there be a final judgment for the plaintiff, the Indemnifying Party shall
indemnify and hold harmless such Indemnified Parties from and against any loss
or liability (to the extent stated above) by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Party shall have requested an Indemnifying Party to reimburse the Indemnified
Party for fees and expenses
32
of counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 business days after receipt by such Indemnifying Party
of the aforesaid request and (ii) such Indemnifying Party shall not have
reimbursed the Indemnified Party in accordance with such request prior to the
date of such settlement. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such proceeding.
SECTION 4.4. Contribution. If the indemnification provided for in
this Article 4 is unavailable to an Indemnified Party in respect of any losses,
claims, damages or liabilities referred to herein, then each Indemnifying Party,
in lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, claims,
damages or liabilities. As between the Company on the one hand and each Selling
Holder on the other, the amount of contribution shall be in such proportion as
is
33
appropriate to reflect the relative fault of the Company and of each Selling
Holder in connection with such statements or omissions, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and of each Selling Holder on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Selling Holders agree that it would not be just
and equitable if contribution pursuant to this Section 4.4 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding anything to the contrary in this Agreement, in no event shall
any Selling Holder be obligated to
34
contribute in connection with any offering in an amount that exceeds the
proceeds of such offering received by such Selling Holder, minus the amount of
any damages which such Selling Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The Selling
Holders' obligations to contribute pursuant to this Section 4.4 are several and
not joint.
35
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Participation in Underwritten Registrations. No Person
may participate in any underwritten registration hereunder unless such Person
(a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and these
Registration Rights.
SECTION 5.2. Rule 144. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange Act
and that it will take such further action as any Holder may reasonably request,
all to the extent required from time to time to enable Holders to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any Holder,
the Company will deliver to such Holder a written statement as
36
to whether it has complied with such requirements.
SECTION 5.3. Holdback Agreements. (a) Restrictions on Public Sale by
Holder of Registrable Securities. In the case of an underwritten public
offering, to the extent not inconsistent with applicable law, each Holder whose
securities are included in a Registration Statement agrees, except as part of
such public offering, not to effect any public sale or distribution of the issue
being registered or a similar security of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, including
sale pursuant to Rule 144 under the Securities Act, during the 14 days prior to,
and during the 90-day period beginning on, the commencement of a public
distribution of Registrable Securities, if and to the extent requested by the
managing Underwriter or Underwriters.
(b) Restrictions on Public Sale by the Company and Others. The
Company agrees, on behalf of itself and its Affiliates, (i) not to effect any
public sale or distribution of any securities similar to those being registered
in accordance with Section 2.1 or Section 2.2 hereof, or any securities
convertible into or exchangeable or exercisable for such securities, (in each
case other than in connection with the Company's Employee Stock Purchase Plan,
Employee Stock Option Plan, Non-Employee Director Stock Ownership Plan, 401(k)
Plan or other
37
similar employee stock option or incentive plan) during the 30 days prior to,
and during the 180-day period beginning on, the commencement of a public
distribution of Registrable Securities (or such other period of time as may be
required by the Underwriter effecting such public distribution); and (ii) that
any agreement entered into after the date of this Agreement pursuant to which
the Company issues or agrees to issue any privately placed securities shall
contain a provision under which holders of such securities agree not to effect
any public sale or distribution of any such securities during the periods
described in (i) above, in each case including a sale pursuant to Rule 144 under
the Securities Act; provided, however, that the provisions of this paragraph (b)
shall not prevent the conversion or exchange of any securities pursuant to their
terms into or for other securities.
SECTION 5.4. Specific Performance. Each Holder, in addition to being
entitled to exercise all rights provided herein or granted by law, including
recovery of liquidated or other damages, will be entitled to specific
performance of its rights under this Agreement. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
38
SECTION 5.5. Notices. Any notice, demand or delivery authorized or
required by this Agreement shall be in writing and shall be given to the Holder
or the Company, as the case may be, at its address (or facsimile number) set
forth below, or such other address (or facsimile number) as shall have been
furnished to the party giving or making such notice, demand or delivery:
If to the Company: American Mobile Satellite Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, General Counsel
If to any Holder: at the address and facsimile
number set forth in the 1998
Guaranty Issuance Agreement.
Each such notice, demand or delivery shall be effective (i) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
herein and the intended recipient confirms the receipt of such telecopy or (ii)
if given by any other means, when received at the address specified herein.
39
SECTION 5.6. No Inconsistent Agreement.
(a) Notwithstanding anything to the contrary contained herein, to
the extent that any of the provisions hereof conflict with any of the provisions
of (i) the Unit Warrants Registration Rights Agreement or (ii) the Participation
Rights Agreement, the provisions of the Unit Warrants Registration Rights
Agreement and the Participation Rights Agreement, in that order, each as in
effect on the date hereof, shall have priority over the provisions hereof.
(b) The Company will not after the date of this Agreement enter into
any agreement with respect to its securities or any amendment to such an
agreement that is inconsistent with the rights granted to the Holders in this
Agreement, or otherwise conflicts with the provisions hereof, including any
amendment to the Unit Warrants Registration Rights Agreement or the
Participation Rights Agreement. Except as provided in Section 5.6 (a), the
Company hereby represents that the rights granted to the Holders hereunder do
not in any way conflict with and are not inconsistent with the rights granted to
the holders of the Company's securities under any agreement in effect on the
date hereof. In addition, the Company agrees that it will not amend its
Certificate of Incorporation, by-laws or other governing documents in any
respect that would materially and adversely
40
affect the rights of the Holders hereunder.
SECTION 5.7. Further Assurances. Each Party shall cooperate and take
such action as may be reasonably requested by another party in order to carry
out the provisions and purposes of this Agreement and the transactions
contemplated hereby.
SECTION 5.8. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 5.9. GOVERNING LAW AND WAIVER OF JURY TRIAL. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF. THE PARTIES
HERETO IRREVOCABLY WAIVE ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
SECTION 5.10. 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
41
such provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
SECTION 5.11. Amendments; Waivers. Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in writing
and signed, in the case of an amendment, by all parties to this Agreement, or in
the case of a waiver, by the party against whom the waiver is to be effective.
No failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 5.12. 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.
(signature page follows)
42
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers, as of the date first
above written.
AMERICAN MOBILE SATELLITE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
▇▇▇▇▇▇ ELECTRONICS CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Assistant Treasurer
SINGAPORE TELECOMMUNICATIONS LTD.
By: /s/ ▇▇▇ ▇▇▇▇ Keong
--------------------------------------------
Name: ▇▇▇ ▇▇▇▇ Keong
Title: Group Financial Controller
BARON CAPITAL PARTNERS, L.P.
By: Baron Capital Management Inc., a General
Partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
45
