EXECUTION COPY
SHAREHOLDERS AGREEMENT
dated as of April 23, 1996
by and among
LORAL CORPORATION,
and
LORAL SPACE & COMMUNICATIONS LTD.
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SHAREHOLDERS AGREEMENT
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SHAREHOLDERS AGREEMENT, dated as of April 23, 1996 (the
"Agreement"), by and among Loral Corporation, a New York corporation ("Loral"),
and Loral Space & Communications Ltd., a Bermuda company (the "Company"). Loral
and those of its Affiliates who are transferees with respect to any of the
Equity Securities (as defined below), are sometimes collectively referred to
herein as the "Shareholders".
RECITALS:
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WHEREAS, Lockheed Xxxxxx Corporation, a Maryland corporation
("LMC"), Loral and certain subsidiaries of Loral entered into a Restructuring,
Financing and Distribution Agreement, dated as of January 7, 1996 (the
"Restructuring Agreement"; all capitalized terms used in this Agreement but not
otherwise defined herein, shall have the respective meanings assigned to such
terms in the Restructuring Agreement), pursuant to which, after giving effect to
the Restructuring and the Distribution, Loral acquired 45,896,978 shares of
Series A Convertible Preferred Stock, par value $0.01 per share, of the Company
(the "Preferred Stock"); and
WHEREAS, the Company and Loral desire to establish in this
Agreement certain conditions with respect to the relationship between the
Shareholders and the Company;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and in the Restructuring Agreement, the parties
hereto agree as follows:
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I.
STANDSTILL AND VOTING PROVISIONS
1.1. Restrictions on Certain Actions by the Shareholders. (a)
During the Term (as defined in Article V below), each Stockholder will not, and
will cause each of its Affiliates (such term, as used in this Agreement, as
defined in Rule 12b-2 of the General Rules and Regulations under the Exchange
Act) not to, singly or as part of a partnership, limited partnership, syndicate
or other group (as those terms are used in Section 13(d)(3) of the Exchange
Act), directly or indirectly:
(i) acquire, offer to acquire, or agree to acquire,
by purchase, gift or otherwise, any Equity Securities (as defined below
in Section 1.1(c)), except pursuant to a stock split, stock dividend,
rights offering, recapitalization, reclassification, merger,
consolidation, corporate reorganization or similar transaction;
provided that at any time in which the Shareholders hold, in the
aggregate, less than twenty percent (20%) of the Total Voting Power,
then the Shareholders may acquire Equity Securities so that the
Shareholders hold, in the aggregate, up to twenty percent (20%) of the
Total Voting Power;
(ii) make, or in any way actively participate in, any
"solicitation" of "proxies" to vote (as such terms are defined in Rule
14a-1 under the Exchange Act), solicit any consent or communicate with
or seek to advise or influence any third party with respect to the
voting of any Equity Securities or become a "participant" in any
"election contest" (as such terms are defined or used in Rule 14a-11
under the Exchange Act), in each case with respect to the Company,
except as expressly provided in Section 1.7;
(iii) form, join or encourage the formation of, any
"person" or "group" within the meaning of Section 13(d) of the Exchange
Act with respect to any Equity Securities; provided that this Section
1.1(a)(iii) shall not prohibit any such arrangement solely among the
Shareholders and any of their respective Affiliates;
(iv) deposit any Equity Securities into a voting
trust or subject any such Equity Securities to any arrangement or
agreement with respect to the voting thereof; provided that this
Section 1.1(a)(iv) shall not prohibit any such arrangement solely among
the Shareholders and any of their respective Affiliates;
(v) initiate, propose or otherwise solicit
Shareholders for the approval of one or more stockholder proposals with
respect to the Company as described in Rule 14a-8 under the Exchange
Act, or induce or attempt to induce
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any other third party to initiate any stockholder proposal, except as
expressly provided in Section 1.7;
(vi) except as otherwise contemplated or permitted by
this Agreement (including, without limitation, pursuant to Section 1.2
or 1.7 hereof), seek to place a representative on the Board of
Directors of the Company or seek the removal of any member of the Board
of Directors of the Company, except with the approval of the Board of
Directors or management of the Company;
(vii) except with the approval of the Board of
Directors or management of the Company, call or seek to have called any
meeting of the Shareholders of the Company;
(viii) except through its representatives on the
Board of Directors (or any committee thereof) of the Company (if any)
and except as otherwise contemplated by this Agreement or the
Restructuring Agreement (including the agreements and other documents
referred to therein, including, without limitation, the Tax Sharing
Agreement), otherwise act to seek to control the management or policies
of the Company, except with the approval of the Board of Directors or
management of the Company;
(ix) sell or otherwise transfer in any manner any
Equity Securities to any "person" (within the meaning of Section
13(d)(3) of the Exchange Act) who, immediately following such sale or
transfer, would, to the best of the Stockholder's knowledge, own more
than four percent (4%) of any class of Equity Securities or who,
without the approval of the Board of Directors of the Company, (A) has
publicly proposed a business combination or similar transaction with,
or a change of control of, the Company or who has publicly proposed a
tender offer for Equity Securities or (B) who has discussed with Loral
or any of its respective Affiliates the possibility of proposing a
business combination or similar transaction with, or a change in
control of, the Company;
(x) sell or otherwise transfer in any manner to any
person (as defined in clause (ix) above) in any single transaction or
series of related transactions more than 2% of the outstanding Equity
Securities;
(xi) solicit, seek to effect, negotiate with or
provide any information to any other party with respect to, or make any
statement or proposal, whether written or oral, to the Board of
Directors of the Company or any director or officer of the Company or
otherwise make any public announcement or proposal whatsoever with
respect to, any form of business combination transaction involving the
Company, including, without limitation, a merger, exchange offer or
liquidation of the Company's assets, or any
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corporate reorganization or similar transaction with respect to the
Company, except in each case with the approval of the Board of
Directors or management of the Company; or
(xii) instigate or encourage any third party to do
any of the foregoing.
Notwithstanding clauses (ix) and (x) above, the Shareholders
may effect any transaction contemplated by Article III hereof.
(b) Notwithstanding the provisions of this Section 1.1,
nothing herein shall apply with respect to any Equity Securities acquired from
any person other than a Stockholder (x) held by any pension, retirement or other
benefit plan managed by any Stockholder or any of its subsidiaries or other
Affiliates or (y) held in any account managed for the benefit of another person,
by any subsidiary or other Affiliate of any of the Shareholders which is engaged
in the financial services business. In addition, notwithstanding the provisions
of this Section 1.1, nothing herein shall prohibit or restrict any transfer of
Equity Securities to or among any of the subsidiaries or other Affiliates of any
of the Shareholders (provided that such subsidiary or Affiliate agrees to be
bound to the provisions of this Agreement, upon which such subsidiary or
Affiliate shall be entitled to all rights and benefits, and shall be subject to
all obligations, of a Stockholder under this Agreement).
(c) For the purposes of this Agreement, (i) the term "Equity
Securities" shall mean the Preferred Stock and any securities entitled to vote
generally in the election of directors of the Company, or any direct or indirect
rights or options to acquire any such securities or any securities convertible
or exercisable into or exchangeable for such securities (provided that, in the
event that the Guaranty Warrants (as defined below) become warrants to acquire
Equity Securities, such Guaranty Warrants and any securities issued pursuant to
the exercise of such Guaranty Warrants, shall not (so long, in each case, as
they are held by the Stockholder) constitute Equity Securities for purposes of
determining the appropriate number of shares of Common Equity Securities which
Loral is entitled to acquire hereunder, including in connection with the
determination of the Target Percentage pursuant to Section 1.4(a) hereof), (ii)
the term "Voting Power" shall mean the voting power in the general election of
directors of the Company, (iii) the term "Total Voting Power" shall mean the
total combined Voting Power of all the Equity Securities then outstanding,
including, without limitation, the Preferred Stock, and, insofar as the
Preferred Stock is concerned, it is deemed to have Voting Power equal to that of
the Common Stock into which it is convertible, (iv) the term "Change of Control"
shall mean the occurrence of any of the following events: (A) any "person" or
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"group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes the beneficial owner of Equity Securities which represent at least
forty percent (40%) of the Total Voting Power, or (B) during any one-year
period, individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election by such
Board of Directors or whose nomination for election by the shareholders of the
Company was approved by a vote of a majority of the directors of the Company
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of the Company
then in office, (v) the term "beneficial owner", and terms having similar
import, shall mean any direct or indirect "beneficial owner", as such term is
defined in Rules 13d-3 and 13d-5 under the Exchange Act, and (vi) the term
"Guaranty Warrants" shall mean those warrants which accrue to the benefit of the
Company in connection with the Globalstar Bank Guarantee, as described in the
Globalstar Warrant Memorandum.
1.2. HSR Clearance.
(a) At any time after the date hereof (but subject to the
provisions of Section 1.2(b) below), following a written request by Loral to the
Company (such request, the "HSR Notice"), the Company and the Shareholders will
(i) take promptly all actions necessary to make the filings required of the
Shareholders, the Company or any of their respective Affiliates under the HSR
Act (as defined in the Merger Agreement) with respect to the right to convert
Preferred Stock and continue to own the securities so received, the ownership
and voting of Equity Securities by the Shareholders, any of the transactions
contemplated by this Agreement or any other similar matters (all such exercise,
ownership, voting, transaction and other similar matters, the "Filing Matters"),
(ii) comply at the earliest practicable date with any request for additional
information or documentary material received by the Company or the Shareholders
or any of their Affiliates from any of the Federal Trade Commission, the
Antitrust Division of the Department of Justice, state attorneys general, the
Commission, or other governmental or regulatory authorities (all such
authorities, the "Antitrust Authorities"), and (iii) cooperate with each other
in connection with any of the filings referred to in clause (i) above and in
connection with resolving any investigation or other inquiry commenced by any of
the Antitrust Authorities. To the extent reasonably requested by Loral, the
Company shall use all reasonable efforts to resolve such objections, if any, as
may be asserted with respect to the Filing Matters. If any administrative,
judicial or legislative action or proceeding is instituted (or threatened to be
instituted) challenging any aspect of the Filing Matters as violative of any
Antitrust Law, each of the Shareholders and the Company shall cooperate with
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each other to contest and resist any such action or proceeding, and to have
vacated, lifted, reversed or overturned any decree, judgment, injunction or
other order (whether temporary, preliminary or permanent) that is in effect and
that restricts, prevents or prohibits the exercise by the Shareholders of the
right to convert Preferred Stock and continue to own the securities so received,
or the exercise by Loral of its rights with respect to the ownership and voting
of Equity Securities or any of the transactions contemplated by this Agreement
(any such decree, judgment, injunction or other order is hereafter referred to
as an "Order"), including, without limitation, by pursuing all reasonable
avenues of administrative and judicial appeal, provided that nothing contained
in this Section 1.2(a) shall be construed to require any party hereto to hold
separate or divest any of their respective assets or businesses or agree to any
substantive restriction thereon or on the conduct thereof. Each of the Company
and Loral shall promptly inform the other party of any material communication
received by such party from any Antitrust Authority regarding any of the Filing
Matters or any of the other transactions contemplated hereby. For the purposes
of this Agreement, the term "HSR Clearance Date" shall mean the first date on
which (x) any applicable waiting period under the HSR Act with respect to the
Filing Matters shall have expired or been terminated, (y) there shall not be
pending any Action commenced by any Antitrust Authority relating to any of the
Filing Matters or any of the other transactions contemplated hereby, and (z)
there shall not be in effect any Order.
(b) Notwithstanding the provisions of Section 1.2(a) above, in
the event that Loral delivers the HSR Notice to the Company, the Company shall
be entitled to postpone for a reasonable period of time (but in no event later
than 45 days), any filing referred to in Section 1.2(a)(i) above if the Company
determines in its reasonable judgment and in good faith that such filing would
delay the obtaining of any approval from an Antitrust Authority with respect to
any announced or imminent material acquisition or disposition which would
require a filing by the Company under the HSR Act. In the event of such
postponement, Loral shall have the right to withdraw its HSR Notice and may
deliver any such HSR Notice at any time thereafter.
1.3. Voting.
(a) General Voting Provisions. Prior to the HSR Clearance
Date, no Stockholder shall have the right to convert Preferred Stock into common
stock or the right to vote any Equity Securities with respect to the election of
directors of the Company. Following the HSR Clearance Date, each Stockholder
shall have the right to vote its Equity Securities to the extent permitted by
the terms thereof on any matters submitted to a vote of the Shareholders of the
Company, provided that following the HSR Clearance Date any Stockholder shall
have the right to vote
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any Equity Securities to the extent permitted by the terms thereof with respect
to the election of directors of the Company without restriction, provided that,
except as expressly provided in Section 1.7, in the event of an "election
contest" (as such term is used in Rule 14a-11 under the Exchange Act) each
Stockholder shall have the right to vote in the election contest only (i) as
recommended by the Board of Directors or management of the Company or (ii) in
the same proportions as the holders of Equity Securities (other than
Shareholders) vote their Securities. On each matter with respect to which a
Stockholder is entitled to vote pursuant to this Section 1.3, each such
Stockholder shall be present, in person or represented by proxy, at all such
stockholder meetings of the Company so that all Equity Securities beneficially
owned by it shall be counted for the purpose of determining the presence of a
quorum at such meetings. For purposes of this Section 1.3, all references to the
term "vote" shall include the execution and delivery of any written consent with
respect to the taking of any shareholder action in lieu of a meeting of
shareholders.
(b) Company Call. If, within one year following the date
hereof, the Shareholders vote against any Call Event Triggering Transaction (as
defined below), the Company shall have the right, for 10 days following the date
on which such vote is held, to purchase, and the Shareholders shall be required
to sell to the Company, all, but not less than all, of the Equity Securities
held by the Shareholders at a per share cash price equal to the Call Event
Trigger Price (as defined below). The Company may exercise such right by
delivering to each Stockholder, within such 10-day period, a written notice
stating that the Company has irrevocably agreed to purchase in cash all (but not
less than all) of the Equity Securities held by the Shareholders at the Call
Event Trigger Price upon the terms and conditions set forth in this Section
1.3(b). The closing with respect to the purchase of Equity Securities by the
Company pursuant to this Section 1.3(b) shall be on a mutually determined
closing date which shall not be more than 15 days after the date on which the
Company's written notice referred to above is delivered to the Shareholders. The
closing shall be held at 10:00 A.M., local time, at the principal office of the
Company, or at such other time or place as the parties mutually agree. On such
closing date, each Stockholder shall deliver (i) certificates representing the
shares of Equity Securities being sold, free and clear of any lien, claim or
encumbrance, and (ii) such instruments of transfer and evidence of ownership and
authority as the Company may reasonably request. The purchase price shall be
paid by the Company to each Stockholder by wire transfer of immediately
available funds no later than 2:00 P.M. on the closing date to the account(s)
designated by the Shareholders prior to such closing date.
(c) Certain Definitions. For purposes of Section 1.3,
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(i) the term "Call Event Triggering Transaction"
shall mean a transaction between the Company, on the one hand, and any
Spinco Company (or any other Subsidiary of either the Company or a
Spinco Company), on the other hand, involving (x) any merger,
consolidation, corporate reorganization or similar transaction
involving the Company; or (y) any sale, lease, exchange, transfer or
other disposition, directly or indirectly, in a single transaction or
series of related transactions, of all or substantially all of the
assets of the Company or any of its Affiliates; provided that the term
"Call Event Triggering Transaction" shall not include any transaction
involving any party which is not a Spinco Company (or any other
Subsidiary of either the Company or a Spinco Company); and
(ii) the term "Call Event Trigger Price" shall mean
the sum of (x) $344,000,000.00, plus (y) all amounts expended by the
Shareholders following the date hereof in connection with the
acquisition of Equity Securities other than acquisitions from another
Stockholder following the date hereof, minus (z) any net sales proceeds
received by the Shareholders following the date hereof in connection
with the sale of Equity Securities (other than sales to another
Stockholder) following the date hereof.
1.4. Loral Option.
(a) General Provisions Relating to Loral Option. If, within
five years following the date hereof, any Option Event Triggering Transaction
(as defined below) occurs, Loral shall have the right, within 90 days after the
consummation of the Option Event Triggering Transaction, to purchase, and the
Company (for purposes of this Section 1.4, all references to the "Company" shall
be deemed to include the Surviving Corporation (as defined below), shall be
required to sell to Loral, a number of shares of Preferred Stock which would
cause Loral to own Equity Securities with Voting Power equal to the Target
Percentage (as defined below) of the Total Voting Power immediately after giving
effect to the consummation of the Option Event Triggering Transaction, at a per
share cash price equal to the Option Event Trigger Price (as defined below).
Loral may exercise such right by delivering to the Company, within such 90-day
period, a written notice stating that Loral (or any Subsidiary of Loral
designated by Loral; for purposes of this Section 1.4, all references to "Loral"
shall be deemed to include such designated Subsidiary) has irrevocably agreed to
purchase in cash the number of shares of Preferred Stock specified in the
preceding sentence, at the Option Event Trigger Price, upon the terms and
conditions set forth in this Section 1.4. The closing with respect to the
purchase of Preferred Stock by the Company pursuant to this Section 1.4 shall be
on a mutually determined closing date which shall not be more than 15 days after
the date on which Loral's written notice referred to above is delivered to
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the Company. The closing shall be held at 10:00 A.M., local time, at the
principal office of the Company, or at such other time or place as the parties
mutually agree. On such closing date, the Company shall issue to Loral
certificates representing the shares of Preferred Stock being sold, which shall
be validly issued, fully paid and non-assessable and free and clear of any lien,
claim or encumbrance. The purchase price shall be paid by Loral to the Company
by wire transfer of immediately available funds no later than 2:00 P.M. on the
closing date to the account designated in writing by the Company prior to such
closing date. For purposes of this Section 1.4,
(i) the term "Option Event Triggering Transaction"
shall mean a transaction involving as parties, among others, the
Company or any of its Affiliates (other than GTL and Globalstar), on
the one hand, and either GTL or Globalstar or any of their respective
Subsidiaries, on the other hand, involving either (x) a Call Event
Triggering Transaction (including, without limitation, a similar
transaction involving the merger, consolidation, reorganization, sale,
lease, exchange, transfer or other disposition of all or substantially
all of the assets, of Globalstar, GTL or their respective Subsidiaries)
or the liquidation or (y) dissolution of the Company;
(ii) the term "Option Event Trigger Price" shall mean
with respect to an Option Event Trigger Transaction occurring (x) on or
prior to the first anniversary hereof, a $6.00 per share cash purchase
price, subject to adjustment pursuant to the provisions of Section
1.4(b) hereof or (y) after the first anniversary hereof but on or prior
to the fifth anniversary hereof, a per share price equal to 80% of the
per share price of the Company implicit in the Option Event Triggering
Transaction;
(iii) the term "Surviving Corporation" shall mean any
successor to the rights and obligations of the Company as a result of
or in connection with any Option Event Triggering Transaction; and
(iv) the term "Target Percentage" shall mean a
percentage amount equal to the percentage of the Total Voting Power
represented by the Equity Securities held by the Shareholders
immediately prior to the closing of the Option Event Triggering
Transaction; provided, however, that if there has occurred within the
five days preceding such closing an event that diluted the Voting Power
of the Equity Securities held by the Shareholders, the Target
Percentage shall be determined as of the date five days prior to the
closing of such Option Event Triggering Transaction.
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(b) Adjustment of Loral Option Event Trigger Price. The Option
Event Trigger Price shall be equitably adjusted from time to time after the date
hereof to take into account of any of the following events: (i) if the Company
shall pay a dividend or make any other distribution with respect to any Equity
Securities which is payable in the form of Equity Securities or in the form of
any other Asset (other than normal, periodic cash dividends of the Company),
(ii) if the Company shall subdivide its outstanding common stock, (iii) if the
Company shall combine its outstanding common stock into a smaller number of
shares, (iv) if the Company shall issue any shares of its capital stock in a
reclassification of the Common Stock (including any such reclassification in
connection with a merger, consolidation or other business combination involving
the Company), or (v) in any other similar transaction affecting the Company or
the number or value of the outstanding Equity Securities. The parties
acknowledge and agree that each such equitable adjustment shall preserve for
Loral the economic benefits of the Loral option set forth in Section 1.4(a)
above.
1.5. Globalstar Warrant Put Option. In the event of any of
the following transactions (each such transaction, a "Warrant Trigger Event"):
(i) any merger, consolidation, corporate reorganization or
similar transaction involving Globalstar or GTL;
(ii) any sale, lease, exchange, transfer or other disposition,
directly or indirectly, of all or substantially all of the assets of
Globalstar or GTL; or
(iii) any liquidation or dissolution of Globalstar or GTL;
in which it is proposed that the Globalstar Warrants be converted into cash or
the right to receive cash, or any other interest (or the right to receive any
other interest) in Globalstar other than common stock thereof the Shareholders
shall have the right (the "Limited Warrant Put") to require the Company to
purchase the Globalstar Warrants for a price equal to their Option Privilege
Value (as defined below). The Shareholders may exercise the Limited Warrant Put
by delivering to the Company, at least 10 days prior to the scheduled closing of
the Warrant Trigger Event, a notice to such effect accompanied by appropriate
documentation or certificates evidencing the Globalstar Warrants. The Option
Privilege Price shall be payable by the Company 10 days after the determination
thereof. As used herein, the term "Option Privilege Price" means the greater of
(x) the consideration payable in respect of the Globalstar Warrants in the
Warrant Trigger Event and (y) the hypothetical fair market value that would be
assigned to the Globalstar Warrants at the date of the
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Warrant Trigger Event assuming (1) that no Warrant Trigger Event were to occur
then or at any time prior to the expiration of the Globalstar Warrants, (2) that
the Globalstar Warrants would remain outstanding until such expiration in
accordance with their terms, exercisable for shares of or interests in the
issuer thereof, and (3) that such issuer would remain a public company during
such period. The Option Privilege Price shall be determined by an investment
banking firm of national standing selected by agreement of the Company and the
Shareholders or, failing such agreement, by agreement of Bear Xxxxxxx Co. Inc.
and Xxxxxx Brothers. Such investment banking firm shall, in determining the
Option Privilege Price, give full effect to (i) the spread between the exercise
price and the fair market value of the securities into which the Globalstar
Warrants are exercisable and (ii) the value of the "option privilege" in the
Globalstar Warrants (that is, the value of the right, without risking any
capital, to speculate on and benefit from appreciation in the underlying
securities).
1.6. Required Sales by Shareholders.
(a) Immediately following any repurchase by the Company of any
of its outstanding Equity Securities which repurchase has the effect of
increasing the Total Voting Power of all Shareholders to an amount in excess of
20% of Total Voting Power (a "Repurchase Event"), the Company shall give written
notice (the "Repurchase Event Notice") thereof to each Stockholder. The
Repurchase Event Notice shall set forth in reasonable detail the transactions
resulting in the Repurchase Event, specify the Repurchase Price (as defined in
Section 1.6(c) hereof) and set a date (the "Repurchase Date") for the repurchase
by the Company of the Adjustment Securities (as defined in Section 1.6(b)
hereof) as contemplated by Section 1.6(b) hereof. The Repurchase Date shall be
not sooner than 15 nor later than 25 business days after either (i) the date the
Repurchase Event Notice is sent to the Stockholder or (ii) if the provisions of
Section 1.6(d)(ii) hereof are applicable, the Section 16(d) Date (as defined in
Section 1.6(d)(ii) hereof).
(b) Subject to the provisions of Section 1.6(c) and (d)
hereof, on the Repurchase Date the Company shall purchase from each Stockholder
and each Stockholder shall sell to the Company, a number of shares of Equity
Securities (the "Adjustment Securities") held by the Stockholder equal to the
product of (i) the aggregate number of shares of Equity Securities of all
Shareholders less the aggregate number of shares of Equity Securities
constituting 20% of the Total Voting Power, multiplied by (ii) the number of
shares of Equity Securities held by the Stockholder divided by the number of
shares of Equity Securities held by all Shareholders. The closing with respect
to the purchase of Adjustment Securities shall be held on the Repurchase Date at
10:00 a.m. local time at the principal office of the Company, or at such other
place and time as the parties mutually
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agree. On the Repurchase Date each Stockholder (other than an Electing
Stockholder (as defined in Section 1.6(d) hereof)) shall deliver (i)
certificates representing the Adjustment Securities free and clear of any lien,
claim or encumbrance, and (ii) such instruments of transfer and evidence of
ownership and authority as the Company may reasonably request. The Company shall
pay the purchase price to the Stockholder by wire transfer of immediately
available funds no later than 2:00 p.m. on the Repurchase Date to an account
designated by the Stockholder prior to the Repurchase Date.
(c) The per share repurchase price of the Adjustment
Securities (the "Repurchase Price") shall be equal to the per share price paid
by the Company in respect of the repurchase of Equity Securities resulting in
the Repurchase Event; provided, that if after the immediately preceding
Repurchase Event (or if none, the date of this Agreement) (the "Prior Repurchase
Event") the Company has repurchased Equity Securities at different prices, then
the Repurchase Price shall be equal to the highest per share price paid by the
Company to repurchase Equity Securities after the Prior Repurchase Event
(exclusive of repurchases after which the Stockholder's Total Voting Power was
less than or equal to 20%); provided, however, that if pursuant to the preceding
provisions of this Section 1.6(c) the Repurchase Price would be less than the
Initial Purchase Price (as defined below), then each Stockholder may elect to
sell the Adjustment Securities in accordance with the provisions of Section
1.6(d) hereof in lieu of selling the Adjustment Securities to the Company by
giving written notice to the Company (the "Market Sale Notice"), within 10
business days after receipt of the Repurchase Event Notice, that the Stockholder
has elected to sell the Adjustment Securities pursuant to the provisions of
Section 1.6(d) hereof. For purposes of this Agreement, the "Initial Purchase
Price" means the price paid by the Stockholder (or its Affiliate) for the
Adjustment Securities, increased at the rate of 10% per annum, compounded
annually, from the date of the acquisition thereof through the date of the
Repurchase Event Notice; it being understood that to the extent the Adjustment
Securities include Equity Securities acquired by the Stockholder (or its
Affiliate) on or before the Distribution Date (as defined in the Distribution
Agreement), then (i) the Initial Purchase Price therefor shall be equal to $344
million divided by the number of shares of Equity Securities beneficially owned
by the Shareholders immediately after the Distribution (subject to adjustment to
reflect (1) the 10% annual compound rate of increase, (2) any of the events
contemplated by Section 1.4(b) hereof, and (3) any stock splits, reverse stock
splits, stock dividends or other similar events), and (ii) the date of
acquisition thereof shall be the Distribution Date.
(d) If a Stockholder delivers the Market Sale Notice to the
Company in the time required by Section 1.6(c) hereof (the "Electing
Stockholder"), then the Electing Stockholder may sell
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its Adjustment Securities to any one or more third parties not Affiliates of the
Shareholders; provided, that such sale of Adjustment Securities shall be
completed on or before the date that is the later of (i) the six-month
anniversary of the Repurchase Event Notice (the "First Date"), (ii) the earliest
date after the First Date on which Adjustment Securities can be sold by the
Electing Stockholder without liability resulting therefrom under Section 16(b)
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (the "Section 16(b) Date"), (iii) provided
the Electing Stockholder has requested in the Market Sale Notice the
registration of the Adjustment Securities pursuant to Article III hereof, the
six-month anniversary of the effective date of a registration statement filed
with respect to the Adjustment Securities under the Securities Act of 1933, as
amended, which registration statement has not after it becomes effective been
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any reason other than a
misrepresentation or omission by the Electing Stockholder and, as a result
thereof, the Adjustment Securities cannot be distributed in accordance with the
plan of distribution, and (iv) provided clause (iii) of this Section 1.6(d) is
not applicable, the earliest date after the Repurchase Event Notice which is the
end of a period during which the Adjustment Securities could have been sold
pursuant to Rule 144 (or any similar provision then in force).
(e) The Electing Stockholder may demand that Adjustment
Securities be registered under the Securities Act pursuant to Article III
hereof; provided, that a registration of Adjustment Securities pursuant to
Article III hereof shall not be (i) subject to the limitation set forth in
Section 3.1(a) hereof on the minimum number of shares that can be registered
pursuant to Article III, and (ii) counted as one of the five requests for
registration permitted under Section 3.1(a) hereof.
(f) Except to the extent otherwise expressly provided in this
Section 1.6, the provisions of this Agreement shall not in any manner limit or
otherwise restrict the rights of an Electing Stockholder to transfer Adjustment
Securities
1.7. Special Nominating and Voting Rights.
(a) Notwithstanding anything to the contrary contained in this
Agreement, from and after the seventh anniversary of the date hereof, the
Shareholders shall have the right to nominate for election to the Board of
Directors a Proportionate Number (as defined below) of nominees ("Stockholder
Nominees") and to vote their Equity Securities in favor of their election.
(b) With respect to each meeting of shareholders of the
Company at which directors are to be elected which occurs on or after the
seventh anniversary of the date hereof, the Company
14
will give the Shareholders 30 days' prior written notice of the filing with the
SEC of proxy materials with respect thereto. On or before the 10th day following
receipt of such notice the Shareholders shall notify the Company if they intend
to propose Stockholder Nominees and within 10 days thereafter shall supply the
Company with the Special Nominee Information (as defined below). The Company
will include the Special Nominee Information in its proxy materials with respect
to such meeting, and the Shareholders will not engage in any action otherwise
prohibited by Section 1.1(ii) or (v) with respect to the Stockholder Nominees or
otherwise.
(c) In the event that, following any election of Stockholder
Nominees to the Board of Directors and before the next meeting of shareholders
at which directors are elected, the size of the Board of Directors is increased
so as to increase the Proportionate Number of directors, the Company will use
its best efforts to create additional seats on the Board of Directors, offer the
Shareholders the right to propose additional Stockholder Nominees to fill such
vacancies and use its best efforts to cause such vacancies to be filled by any
such nominees so that the Stockholder Nominees would constitute a Proportionate
Number of the enlarged Board.
(d) The Company will not propose, and will use its best
efforts to prevent, the adoption of any amendment of any of the charter
documents of the Company that would adversely affect the rights of the
Shareholders under this Agreement.
(e) As used in this Section 1.7, the following terms are used
as defined below:
"Proportionate Number" means a number of directors or
nominees, as the case may be, rounded up to the nearest whole number, that would
represent a proportion of the entire Board of Directors (after giving effect to
the election of Directors or enlargement of the Board in question) equal to the
proportion of the Total Voting Power of the Company that is represented by the
Voting Power of the Equity Securities beneficially owned by the Shareholders,
provided, that if the Proportionate Number (as calculated above) would otherwise
be reduced if the total number of members of the Board of Directors were reduced
by a single member, the Proportionate Number will be calculated by rounding
down, rather than rounding up, to the nearest whole number.
"Special Nominee Information" means the information as to each
nominee for director required to be included in the Company's proxy materials
under the Exchange Act and the rules and regulations thereunder, and may include
a brief statement as to the qualifications of the Stockholder Nominees and the
Shareholders' reasons for seeking their election to the board, but shall not
include any invidious comparisons between the Stockholder Nominees and other
nominees for director or any
15
criticism of the other nominees for director or of incumbent management, its
policies or the Company's performance.
II.
TRANSFER RESTRICTIONS
2.1. Certain Transactions. Notwithstanding anything contained
in this Agreement to the contrary, a Stockholder may without restriction:
(i) assign, pledge, mortgage, hypothecate, or
otherwise encumber or transfer all or any of its Equity Securities in
connection with any bona fide financing arrangement entered into by
such person or otherwise in connection with any indebtedness owed by
such Stockholder; provided that in the event that the Stockholder in
question defaults, the creditor's rights and obligations with respect
to the voting and transfer of such Equity Securities and the
registration thereof shall be the same as the Stockholder in question
had under the provisions of this Agreement and the creditor in question
shall be deemed to be a Stockholder under this Agreement for such
purposes;
(ii) transfer any Equity Securities to another
Stockholder or any subsidiary or other Affiliate thereof (provided that
such subsidiary or Affiliate agrees to be bound to the provisions of
this Agreement, upon which such subsidiary or Affiliate shall be
entitled to all rights and benefits, and shall be subject to all
obligations, of a Stockholder under this Agreement);
(iii) transfer any Equity Securities pursuant to any
registered public offering in connection with the provisions of Article
III hereof or pursuant to the provisions of Rule 144 (or any similar
provision then in force) under the Securities Act provided that such
transfer under Rule 144 or any similar provision meets the volume
restrictions set forth in Rule 144 as in effect on the date hereof; or
(iv) transfer any Equity Securities pursuant to any
merger, consolidation, corporate reorganization, restructuring or any
other similar transaction affecting the Company or pursuant to any
involuntary transfer.
2.2. Rights Pursuant to a Tender Offer. Each Stockholder (any
such Stockholder shall, for purposes of this Section 2.2, be referred to as a
"Tendering Stockholder") shall have the right to sell or exchange all its Equity
Securities pursuant to a tender or exchange offer for the Equity Securities
16
(an "Offer"). However, during the Term, prior to such sale or exchange, the
Tendering Stockholder shall give the Company the opportunity to purchase such
Equity Securities in the following manner:
(i) The Tendering Stockholder shall give notice (the
"Tender Notice") to the Company in writing of its intention to sell or
exchange Equity Securities in response to an Offer no later than three
calendar days prior to the latest time (including any extensions) by
which Equity Securities must be tendered in order to be accepted
pursuant to such Offer, specifying the amount of Equity Securities
proposed to be tendered by the Tendering Stockholder (the "Tendered
Shares") and the purchase price per share specified in the Offer at the
time of the Tender Notice.
(ii) If the Tender Notice is given, the Company shall
have the right to purchase all, but not less than all, of the Tendered
Shares exercisable by giving written notice (an "Exercise Notice") to
the Tendering Stockholder at least two calendar days prior to the
latest time after delivery of the Tender Notice by which Equity
Securities must be tendered in order to be accepted pursuant to the
Offer (including any extensions thereof) and depositing in any escrow
or similar arrangement reasonably acceptable to the Tendering
Stockholder, a sum in cash sufficient to purchase all Tendered Shares
at the price then being offered in the Offer, without regard to any
provision thereof with respect to proration or conditions to the
offeror's obligation to purchase. The delivery by the Company of an
Exercise Notice and deposit of funds as provided above will, except as
provided below, constitute an irrevocable agreement by the Company to
purchase, and the Tendering Stockholder to sell, the Tendered Shares in
accordance with the terms of this Section 2.2, whether or not the Offer
or any other tender or exchange offer (a "Competing Tender Offer") for
Equity Securities that was outstanding during the Offer is consummated.
(iii) The purchase price to be paid by the Company
for any Equity Securities purchased by it pursuant to this Section 2.2
shall be the highest price offered or paid in the Offer or in any
Competing Tender Offer. For purposes hereof, the price offered or paid
in a tender or exchange offer for Voting Shares shall be deemed to be
the price offered or paid pursuant thereto, without regard to any
provisions thereof with respect to proration or conditions to the
offeror's obligation to purchase. If the purchase price per share
specified in the Offer includes any property other than cash (the
"Offer Noncash Property"), the purchase price per share at which the
Company shall be entitled to purchase all, but not less than all, of
the Equity Securities specified in the Tender Notice shall be
17
(y) the amount of cash per share, if any, specified in such
Offer (the "Cash Portion"), plus (z) an amount of cash per share equal
to the value of the Offer Noncash Property per share (the "Cash Value
of Offer Noncash Property"), as determined in good faith by the mutual
agreement of the parties hereto, or if the parties cannot agree, by an
independent, nationally recognized investment banking firm selected by
the Tendering Shareholders and reasonably acceptable to the Company.
If the Company exercises its right of first refusal by giving an
Exercise Notice, the closing of the purchase of the Equity Securities
with respect to such right (the "Closing") shall take place at 3:00
p.m., local time (or, if earlier, two hours before the latest time by
which Equity Securities must be tendered in order to be accepted
pursuant to the Offer), on the last day on which Equity Securities
must be tendered in order to be accepted pursuant to the Offer
(including any extensions thereof) (the "Last Tender Date"), and the
Company shall pay the purchase price for the Equity Securities
specified above. The Tendering Stockholder shall be entitled to
rescind its Tender Notice at any time prior to the Last Tender Date by
notice in writing to the Company; provided that if on or before the
Last Tender Date, the Company publicly announces that the Company has
approved, proposed or entered into an agreement with respect to
(either individually or together with any other persons) a
recapitalization, reorganization or business combination with respect
to the Company or all or substantially all of its assets, or a
self-tender offer, the Tendering Stockholder shall be entitled to
rescind its Tender Notice by notice in writing to the Company at any
time prior to the Closing on the Last Tender Date. If the Tendering
Stockholder rescinds its Tender Notice pursuant to the immediately
preceding sentence, the Company's Exercise Notice with respect to such
Offer shall be deemed to be immediately rescinded and the Tendering
Stockholder's disposition of its Equity Securities in response to the
Offer with respect to which the Tender Notice is rescinded or any
other Offer shall again be subject to all of the provisions of this
Section 2.2.
(iv) If the Company does not exercise its right of
first refusal set forth in this Section 2.2 within the time specified
for such exercise by giving an Exercise Notice, then the Tendering
Stockholder shall be free to accept, for all its Equity Securities, the
Offer with respect to which the Tender Notice was given or any
Competing Tender Offer (including any increases and extensions
thereof).
18
III.
REGISTRATION RIGHTS
3.1. Registration Upon Request.
(a) At any time commencing on the date hereof and continuing
thereafter, each Stockholder (any such Stockholder, whether registering
securities pursuant to this Section 3.1 or Section 3.2, shall be referred to as
a "Registering Stockholder") shall have the right to make written demand upon
the Company, on not more than five separate occasions (subject to the provisions
of this Section 3.1), to register under the Securities Act, any common stock or
other securities of the Company held by it (the securities subject to such
demand hereunder or subject to the provisions of Section 3.2 being referred to
in each case as the "Subject Securities"), and the Company shall use its best
efforts to cause such securities to be registered under the Securities Act as
soon as reasonably practicable so as to permit the sale thereof promptly;
provided that each such demand shall cover at least the lesser of (i) 10 million
shares of Common Stock or Preferred Stock convertible into 10 million shares of
Common Stock and (ii) shares having a market value of $150 million shares of
Common Stock (subject to adjustment for stock splits, reverse stock splits,
stock dividends and similar events after the date hereof). In connection
therewith, the Company shall prepare, and as soon as reasonably practicable but
in no event later than 90 days of the receipt of the request, file, on Form S-3
if permitted or otherwise on the appropriate form, a registration statement
under the Securities Act to effect such registration. Such registration shall be
effected in accordance with the intended method or methods of disposition
specified by the Registering Shareholders (including, but not limited to, an
offering on a delayed or continuous basis pursuant to Rule 415 (or any successor
rule to similar effect) promulgated under the Securities Act). Each Registering
Stockholder agrees to provide all such information and materials and to take all
such action as may be reasonably required in order to permit the Company to
comply with all applicable requirements of the Securities Act and the SEC and to
obtain any desired acceleration of the effective date of such registration
statement. If the offering to be registered is to be underwritten, the managing
underwriter shall be selected by the Registering Shareholders and shall be
reasonably satisfactory to the Company. Notwithstanding the foregoing, the
Company (i) shall not be obligated to prepare or file more than one registration
statement other than for purposes of a stock option or other employee benefit or
similar plan during any twelve-month period, (ii) shall be entitled to postpone
for a reasonable period of time (but in no event later than 60 days), the filing
of any registration statement otherwise required to be prepared and filed by the
Company if (A) the Company is, at such time, conducting or about to conduct an
underwritten public offering of securities and is advised by its
19
managing underwriter or underwriters in writing (with a copy to the Registering
Shareholders), that such offering would, in its or their opinion, be materially
adversely affected by the registration so requested, or (B) the Company
determines in its reasonable judgment and in good faith that the registration
and distribution of the Subject Securities would interfere with any announced or
imminent material financing, acquisition, disposition, corporate reorganization
or other material transaction of a similar type involving the Company. In the
event of such postponement, the Registering Shareholders shall have the right to
withdraw the request for registration by giving written notice to the Company
within 20 days after receipt of the notice of postponement (and, in the event of
such withdrawal, such request shall not be counted for purposes of determining
the number of registrations to which the Registering Shareholders are entitled
pursuant to this Section 3.1).
(b) The Company shall not grant to any other holder of its
securities, whether currently outstanding or issued in the future, any
incidental or piggyback registration rights with respect to any registration
statement filed pursuant to a demand registration under this Section 3.1 and
without the prior consent of the Registering Shareholders, the Company will not
itself, and will not permit any other holder of its securities to, participate
in any offering made pursuant to a demand registration under this Section 3.1.
The Company may grant to other holders of its securities incidental or piggyback
registration rights on a primary offering by the Company which are no more
favorable to such holders than the provisions set forth in Section 3.2 are to
the Shareholders. If the Registering Shareholders consents to the inclusion of
offers and sales of any other securities in a registration pursuant to this
Section 3.1 and the underwriter(s) retained in connection with such registration
subsequently advise the Registering Shareholders that such offering would be
adversely affected by the inclusion of such other securities, the Registering
Shareholders may in their sole discretion exclude all or some of such securities
from such registration.
(c) Any registration requested by any Registering Stockholder
pursuant to this Section 3.1 shall not be deemed to have been effected (and,
therefore, not requested for purposes of this Section 3.1), (i) unless it has
become effective, (ii) if after it has become effective such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any reason other than a
misrepresentation or an omission by the Registering Shareholders and, as a
result thereof, the Subject Securities requested to be registered cannot be
completely distributed in accordance with the plan of distribution set forth in
the related registration statement or (iii) if the closing pursuant to the
purchase agreement or underwriting agreement entered into in connection with
such registration does not occur. Any registration effected pursuant to Section
3.2 shall not be deemed
20
to have been requested by a Registering Stockholder for purposes of this Section
3.1.
3.2. Incidental Registration Rights. If the Company proposes
to register any of its Equity Securities under the Securities Act for its own
account (other than (i) pursuant to Section 3.1 hereof, (ii) securities to be
issued pursuant to a stock option or other employee benefit or similar plan, and
(iii) securities proposed to be issued in exchange for securities or assets of,
or in connection with a merger or consolidation with, another corporation), the
Company shall, as promptly as practicable, give written notice to the
Registering Shareholders of the Company's intention to effect such registration.
If, within 15 days after receipt of such notice, a Registering Stockholder
submits a written request to the Company specifying the amount of Equity
Securities that it proposes to sell or otherwise dispose of in accordance with
this Section 3.2, the Company shall use its best efforts to include the
securities specified in the Registering Stockholder's request in such
registration. If the offering pursuant to such registration statement is to be
made by or through underwriters, the managing underwriters shall be chosen by
the Company and shall be reasonably satisfactory to the Registering Shareholders
and the Company, and the Registering Shareholders and such underwriter shall
execute an underwriting agreement in customary form. If the managing underwriter
reasonably determines in good faith and advises the Registering Shareholders in
writing that the inclusion in the registration statement of all the Equity
Securities proposed to be included would interfere with the successful marketing
of the securities proposed to be registered, then the Company and the
Registering Shareholders shall negotiate in good faith to agree upon an
equitable adjustment in the number or amount of securities of each to be
included in such underwriting (provided that in the event that the Company and
the Registering Shareholders are unable to agree upon an equitable adjustment in
the number or amount of securities of each to be included in such underwriting,
then the number of securities which the Company and the Registering Shareholders
propose to register shall be reduced pro rata (based upon the respective market
values of each party's respective share of the total number of securities
proposed to be registered). No registration effected under this Section 3.2
shall relieve the Company of its obligation to effect any registration upon
request under Section 3.1. If the Registering Shareholders are permitted to
participate in a proposed offering pursuant to this Section 3.2, the Company
thereafter may determine either not to file a registration statement relating
thereto, or to withdraw such registration statement, or otherwise not to
consummate such offering, without any liability hereunder. Any underwriters
participating in a distribution of the Subject Securities pursuant to Sections
3.1 and 3.2 hereof shall use all reasonable efforts to effect as wide a
distribution as is reasonably practicable, and in no event shall any sale of
Subject Securities be made knowingly to any person (including its Affiliates and
any
21
group in which that person or its Affiliates shall be a member, or the
Registering Shareholders or the underwriters know of the existence of such a
group or Affiliate) that, immediately prior to giving effect to any such sale,
beneficially owned Equity Securities representing five percent (5%) or more of
the Total Voting Power. The Registering Shareholders and the Company shall use
all reasonable efforts to secure the agreement of the underwriters, in
connection with any underwritten offering of its Equity Securities, to comply
with the foregoing.
3.3. Registration Mechanics. (a) In connection with any
offering of Subject Securities registered pursuant to Section 3.1 or 3.2 herein,
the Company shall (i) furnish to the Registering Shareholders such number of
copies of any prospectus (including preliminary and summary prospectuses) and
conformed copies of the registration statement (including amendments or
supplements thereto and, in each case, all exhibits) and such other documents as
any Registering Stockholder may reasonably request; (ii)(A) use its best efforts
to register or qualify the Subject Securities covered by such registration
statement under such blue sky or other state securities laws for offer and sale
as the Registering Shareholders shall reasonably request and (B) keep such
registration or qualification in effect for so long as the registration
statement remains in effect; provided that the Company shall not be obligated to
qualify to do business as a foreign corporation under the laws of any
jurisdiction in which it shall not then be qualified or to file any general
consent to service of process in any jurisdiction in which such a consent has
not been previously filed or subject itself to taxation in any jurisdiction
wherein it would not otherwise be subject to tax but for the requirements of
this Section 3.3; (iii) use its best efforts to cause all Subject Securities
covered by such registration statement to be registered with or approved by such
other federal or state government agencies or authorities as may be necessary,
in the opinion of counsel to the Registering Shareholders, to enable the
Registering Shareholders to consummate the disposition of such Subject
Securities; (iv) notify the Registering Shareholders any time when a prospectus
relating thereto is required to be delivered under the Securities Act upon
discovery that, or upon the happening of any event as a result of which, the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, in the light of the circumstances under which they were made, and
(subject to the good faith determination of the Company's Board of Directors as
to whether to permit sales under such registration statement), at the request of
any Registering Stockholder promptly prepare and furnish to it a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
22
the statements therein not misleading, in light of the circumstances under which
they were made; (v) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC; (vi) use its best efforts to list the Subject
Securities covered by such registration statement on the New York Stock Exchange
or on any other Exchange on which the Subject Securities are then listed, if
required by the rules of any such Exchange; (vii) use its best efforts to obtain
a "cold comfort" letter from the independent public accountants for the Company
in customary form and covering matters of the type customarily covered by such
letters as may be reasonably requested by the Registering Shareholders, in the
event of a registration effected pursuant to Section 3.1 hereof; (viii) execute
and deliver all instruments and documents (including in an underwritten offering
an underwriting agreement in customary form) and take such other actions and
obtain such certificates and opinions as the Registering Shareholders reasonably
request in order to effect an underwritten public offering; and (ix) before
filing any registration statement or any amendment or supplement thereto, and as
far in advance as is reasonably practicable, furnish to each Registering
Stockholder and its counsel copies of such documents. In connection with any
offering of Subject Securities registered pursuant to Section 3.1 or 3.2, the
Company shall (x) furnish to the underwriter, if any, unlegended certificates
representing ownership of the Subject Securities being sold in such
denominations as requested and (y) instruct any transfer agent and registrar of
the Subject Securities to release any stop transfer orders with respect to such
Subject Securities. Upon any registration becoming effective pursuant to Section
3.1, the Company shall use its best efforts to keep such registration statement
current for a period of 60 days (or 90 days, if the Company is eligible to use a
Form S-3, or successor form) or such shorter period as shall be necessary to
effect the distribution of the Subject Securities.
(a) Before filing with the SEC any registration statement
referred to herein or any amendments or supplements thereto, the Company shall
furnish to the Registering Shareholders or their respective counsel copies of
all such documents proposed to be filed, in order to give the Registering
Shareholders or their respective counsel sufficient time to review such
documents, and such documents may thereafter be filed subject to any timely and
reasonable comments of the Registering Shareholders or their respective counsel.
The Company shall (i) deliver promptly to the Registering Shareholders or their
respective counsel copies of all written communications between the Company and
the SEC relating to the registration statement, and (ii) advise the Registering
Shareholders or their respective counsel promptly of, and provide the
Registering Shareholders or their respective counsel with the opportunity to
participate in (to the extent reasonably practicable), all telephonic and other
non-written communications between the Company and the SEC relating to such
registration statement. The Company shall
23
respond promptly to any comments from the SEC with respect thereto, after
consultation with the Registering Shareholders or their respective counsel, and
shall take such other actions as shall be reasonably required in order to have
each such registration statement declared effective under the Securities Act as
soon as reasonably practicable following the date hereof.
(b) Each Registering Stockholder agrees that upon receipt of
any notice from the Company of the happening of any event of the kind described
in subdivision (iv) of this Section 3.3, it will forthwith discontinue its
disposition of Subject Securities pursuant to the registration statement
relating to such Subject Securities until its receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (iv) of this
Section 3.3 and, if so directed by the Company, will deliver to the Company all
copies (other than permanent file copies) then in its possession of the
prospectus relating to such Subject Securities current at the time of receipt of
such notice. If any Registering Stockholder's disposition of Subject Securities
is discontinued pursuant to the foregoing sentence unless the Company thereafter
extends the effectiveness of the registration statement to permit dispositions
of Subject Securities by the Registering Stockholder for an aggregate of 60 days
(or 90 days, if the Company is eligible to use a Form S-3, or successor form),
whether or not consecutive, the registration statement shall not be counted for
purposes of determining the number of registrations to which the Registering
Shareholders are entitled pursuant to Section 3.1.
3.4. Expenses. The Registering Shareholders shall pay all
agent fees and commissions and underwriting discounts and commissions related to
Subject Securities being sold by the Registering Shareholders and the fees and
disbursements of its counsel and accountants and the Company to the extent
permitted by applicable law shall pay all fees and disbursements of its counsel
and accountants in connection with any registration pursuant to this Article
III. All other fees and expenses in connection with any registration statement
(including, without limitation, all registration and filing fees, all printing
costs, all fees and expenses of complying with securities or blue sky laws)
shall to the extent permitted by applicable law (i) in the case of a
registration pursuant to Section 3.1, be borne equally by the Registering
Shareholders and the Company and (ii) in the case of a registration pursuant to
Section 3.2, be shared pro rata based upon the respective market values of the
securities to be sold by the Company, the Registering Shareholders and any other
holders participating in such offering; provided that the Registering
Shareholders shall not be obligated to pay any expenses relating to work that
would otherwise be incurred by the Company including, but to limited to, the
preparation and filing of periodic reports with the SEC.
3.5. Indemnification and Contribution. (a) In the case of any
offering registered pursuant to this Article III, the
24
Company agrees to indemnify and hold each Registering Stockholder, each
underwriter, if any, of the Subject Securities under such registration and each
person who controls any of the foregoing within the meaning of Section 15 of the
Securities Act, and any officer, employee or partner of the foregoing, harmless
against any and all losses, claims, damages, or liabilities (including
reasonable legal fees and other reasonable expenses incurred in the
investigation and defense thereof) to which they or any of them may become
subject under the Securities Act or otherwise (collectively "Losses"), insofar
as any such Losses shall arise out of or shall be based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement relating to the sale of such Subject Securities (as
amended if the Company shall have filed with the SEC any amendment thereof), or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) any untrue statement or alleged untrue statement of a material fact
contained in the prospectus relating to the sale of such Subject Securities (as
amended or supplemented if the Company shall have filed with the SEC any
amendment thereof or supplement thereto), or the omission or alleged omission to
state therein a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided that the indemnification contained in this Section 3.5 shall not apply
to such Losses which shall arise primarily out of or shall be based primarily
upon any such untrue statement or alleged untrue statement, or any such omission
or alleged omission, which shall have been made in reliance upon and in
conformity with information furnished in writing to the Company by the
Registering Shareholders or any such underwriter, as the case may be,
specifically for use in connection with the preparation of the registration
statement or prospectus contained in the registration statement or any such
amendment thereof or supplement therein.
(a) In the case of each offering registered pursuant to this
Article III, the Registering Shareholders and each underwriter, if any,
participating therein shall agree, substantially in the same manner and to the
same extent as set forth in the preceding paragraph, severally to indemnify and
hold harmless the Company and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, and the directors and
executive officers of the Company, with respect to any statement in or omission
from such registration statement or prospectus contained in such registration
statement (as amended or as supplemented, if amended or supplemented as
aforesaid) if such statement or omission shall have been made in reliance upon
and in conformity with information furnished in writing to the Company by the
Registering Shareholders or such underwriter, as the case may be, specifically
for use in connection with the preparation of such registration statement or
25
prospectus contained in such registration statement or any such amendment
thereof or supplement thereto.
(b) Each party indemnified under this Section 3.5 shall,
promptly after receipt of notice of the commencement of any claim ("Claim")
against such indemnified party in respect of which indemnity may be sought
hereunder, notify the indemnifying party in writing of the commencement thereof.
The failure of any indemnified party to so notify an indemnifying party shall
not relieve the indemnifying party from any liability in respect of such Claim
which it may have to such indemnified party on account of the indemnity
contained in this Section 3.5, unless (and only in the event) the indemnifying
party was materially prejudiced by such failure, and in no event shall such
failure relieve the indemnifying party from any other liability which it may
have to such indemnified party. In case any Claim in respect of which
indemnification may be sought hereunder shall be brought against any indemnified
party and it shall notify an indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it may desire, jointly with any other indemnifying party similarly
notified, to assume the defense thereof through counsel reasonably satisfactory
to the indemnified party by notifying the indemnified party in writing of such
election within 10 days after receipt of the indemnified party's initial notice
of the Claim, and after such notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under this
Section 3.5 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, other than reasonable
costs of investigation (unless such indemnified party reasonably objects to such
assumption on the grounds that there may be defenses available to it which are
different from or in addition to those available to such indemnifying party in
which event the indemnified party shall be reimbursed by the indemnifying party
for the reasonable expenses incurred in connection with retaining separate legal
counsel). If the indemnifying party undertakes to defend against such Claim
within such 10-day period, the indemnifying party shall control the
investigation, defense and settlement thereof; provided that (i) the
indemnifying party shall use its reasonable efforts to defend and protect the
interests of the indemnified party with respect to such Claim, (ii) the
indemnified party, prior to or during the period in which the indemnifying party
assumes control of such matter, may take such reasonable actions as the
indemnified party deems necessary to preserve any and all rights with respect to
such matter, without such actions being construed as a waiver of the indemnified
party's rights to defense and indemnification pursuant to this Agreement, and
(iii) the indemnifying party shall not, without the prior written consent of the
indemnified party, consent to any settlement which (A) imposes any Liabilities
on the indemnified party (other than those
26
Liabilities which the indemnifying party agrees to promptly pay or discharge),
and (B) with respect to any non-monetary provision of such settlement, would be
likely, in the indemnified party's reasonable judgment, to have an adverse
effect on the business operations, assets, properties or prospects of any
Stockholder (in the event that a Registering Stockholder or any of its
Affiliates is the indemnified party), or the Company (in the event that the
Company is an indemnified party), or such indemnified party. If the indemnifying
party does not undertake within such 10-day period to defend against such Claim,
then the indemnifying party shall have the right to participate in any such
defense at its sole cost and expense, but the indemnified party shall control
the investigation, defense and settlement thereof (provided that the indemnified
party may not settle any such Claim without obtaining the prior written consent
of the indemnifying party (which consent shall not be unreasonably withheld by
the indemnifying party; provided that in the event that the indemnifying party
is in material breach at such time of the provisions of this Section 3.5, then
the indemnified party shall not be obligated to obtain such prior written
consent of the indemnifying party) at the reasonable cost and expense of the
indemnifying party (which shall be paid by the indemnifying party promptly upon
presentation by the indemnified party of invoices or other documentation
evidencing the amounts to be indemnified). In addition to the foregoing, 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 the indemnified party 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 claim or proceeding.
(c) If the indemnification provided for in this Section 3.5 is
unavailable to an indemnified party or is insufficient to hold such indemnified
party harmless from any Losses in respect of which this Section 3.5 would
otherwise apply by its terms (other than by reason of exceptions provided
herein), then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall have a joint and several 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 benefits received
by and fault of the indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the offering to which such
contribution relates as well as any other relevant equitable considerations. The
relative benefit shall be determined by reference to, among other things, the
amount of proceeds received by each party from the offering to which such
contribution relates. The relative fault shall be determined by reference to,
among other things, each party's relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, and the
opportunity to correct and prevent any statement or omission.
27
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 investigation or proceeding, to the extent such party would
have been indemnified for such expenses if the indemnification provided for in
this Section 3.5 was available to such party.
(d) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 3.5 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. 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.
3.6. Rule 144. The Company covenants that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder (or, if the
Company is not required to file such reports, it will, upon the request of any
Stockholder, make publicly available other information), and it will take such
further action as any Stockholder may reasonably request, all to the extent
required from time to time to enable such Stockholder to sell Subject Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any Stockholder, the Company will
deliver to such Stockholder a written statement as to whether it has complied
with such requirements.
3.7. Holdback Agreement. The Company agrees that it and its
Affiliates will not effect any sale, offer for sale, or grant any option to
purchase any shares of common stock (or securities convertible into or
exchangeable or exercisable for common stock) (collectively, "Sales") during the
10-day period prior to, and the 90-day period (or such longer period, not to
exceed 120 days, as the managing underwriter(s) therefor determines) beginning
on the effective date of a registration statement filed pursuant to Section 3.1
without the consent of such managing underwriter(s). The Shareholders agree not
to effect any Sales during the 10-day period prior to, and the 90-day period (or
such longer period, not to exceed 120 days, as the managing underwriter(s)
therefor determines) beginning on the effective date of a registration statement
relating to a primary offering (other than one described in clauses (i), (ii) or
(iii) of the first sentence of Section 3.2 hereof) without the consent of such
managing underwriter(s); provided that this sentence shall be of no force and
effect if the Company effects a Sale or
28
files any registration statement for the benefit of any other party during such
120-day period.
IV.
REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties of the Company. The
Company hereby represents and warrants to each of the Shareholders as follows:
(a) The execution, delivery and performance by the Company of
this Agreement and the consummation by the Company of the transactions
contemplated by this Agreement are within its corporate powers and have been
duly authorized by all necessary corporate action on its part. This Agreement
constitutes a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, (i) except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting creditors' rights
generally, including the effect of statutory and other laws regarding fraudulent
conveyances and preferential transfers, and (ii) subject to the limitations
imposed by general equitable principles (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
(b) The execution, delivery and performance of this Agreement
by the Company does not and will not contravene or conflict with or constitute a
default under the Company's Memorandum of Association or Bye-laws or any of its
material Contracts.
(c) Immediately after giving effect to both the Restructuring
and the Distribution (including, without limitation, after giving effect to the
distribution of shares of Spinco Common Stock to the holders of common stock of
Loral and the holders of options with respect to common stock of Loral, who or
which may be entitled to receive shares of Spinco Common Stock pursuant to or in
connection with the Distribution Agreement, the Merger Agreement or otherwise),
(i) the Company's authorized capital stock shall consist of 750,000,000 shares
of Spinco Common Stock, 150,000,000 shares of Preferred Stock and 750,000 shares
of Series B Preferred Stock, par value $.01 per share (the "Series B Preferred
Stock"), of which 183,587,910 shares of Spinco Common Stock and 45,896,978
shares of Preferred Stock shall be issued and outstanding and no shares of
Series B Preferred Stock shall be issued and outstanding, (ii) Loral will be the
record and beneficial owner of 45,896,978 shares of Preferred Stock, all of
which will be validly issued and fully paid and nonassessable and all of which
will be free of all Liens, (iii) except for the shares of Spinco Common Stock,
the
29
shares of Preferred Stock and the Series B Preferred Stock specified in clause
(i) above, there will be no other Equity Securities, and (iv) the Wing
Shareholders will hold, in the aggregate, at least twenty percent (20%) of the
Total Voting Power.
V.
TERM
5.1. Term. The term (the "Term") of this Agreement shall
commence on the date hereof and shall continue until the earlier of (x) the date
on which the Voting Power of the Equity Securities, on a fully diluted basis,
beneficially owned by Loral and its Affiliates shall represent less than five
percent (5%) of the Total Voting Power, (y) the tenth anniversary of the date
hereof, or (z) a Change of Control (as defined in Section 1.1(c) above). Upon
expiration of the Term, the provisions of this Agreement shall terminate, and be
of no further force or effect, automatically without any further action on the
part of any parties hereto; provided that the provisions of Articles III and VI
shall continue without regard to the term limitation set forth in this sentence;
provided further that no such termination shall relieve any party of any
liability to the other parties hereto, to the extent such liability is incurred
prior to the expiration of the Term.
VI.
MISCELLANEOUS
6.1. Certain Restrictions. The Company shall not take or
recommend to its Shareholders any action, including any amendment of its
Memorandum of Association, Bye-laws or stockholder rights plan, if any, which
would impose restrictions applicable to Loral and not to other securityholders
generally based upon the size of Loral' security holdings, the business in which
it is engaged or other considerations applicable to it and not to
securityholders generally. In addition, the Company shall not take or recommend
to its Shareholders any action, including any amendment of its Certificate of
Incorporation, By-laws or stockholder rights plan, if any, which would likely
adversely affect in any material respect, either directly or indirectly, any of
the rights or obligations of the Shareholders under the provisions of this
Agreement.
The Shareholders agree that the Company may adopt a
Shareholders rights plan similar to the Shareholders rights plan adopted by
Loral except that Loral (and its Affiliates and associates) shall not be deemed
to be an "Acquiring Person" unless Loral and its Affiliates become the
beneficial owner of
30
25% or more of the outstanding shares of common stock of the Company.
6.2. Entire Agreement. This Agreement and the Restructuring
Agreement (including the schedules and exhibits and the agreements and other
documents referred to therein, including, without limitation, the Tax Sharing
Agreement and the Transition Services Agreements) constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior negotiations, commitments, agreements and
understandings, both written and oral, between the parties or any of them with
respect to the subject matter hereof.
6.3. Fees and Expenses. Except as otherwise provided in this
Agreement, all costs and expenses incurred by the Shareholders and the Company
in connection with consummating such party's obligations hereunder or otherwise
shall be paid by the party incurring such cost or expense.
6.4. Access to Information. During the Term, the Company shall
provide to each Stockholder reasonable access to the books and records of the
Company and its subsidiaries during the regular business hours of the Company
and such subsidiaries, following the Company's receipt of a written notice from
such Stockholder requesting such access; provided that the Company shall not be
required to provide any confidential information if the Company reasonably
determines that the providing of such information would result in (x) a
violation of applicable antitrust laws or (y) create a substantial likelihood of
a significant adverse effect on the Company; provided, further, that the
Stockholder shall keep confidential any confidential information disclosed to it
except as required by law, service of process, interrogatories, or similar legal
process, and except for any such information which becomes publicly available
through no fault of the Stockholder.
6.5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF
NEW YORK WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF (EXCEPT
IN THOSE CIRCUMSTANCES WHERE THE CORPORATE LAW OF THE COMPANY'S JURISDICTION OF
ORGANIZATION REQUIRES THE APPLICATION OF THE LAW OF THE COMPANY'S JURISDICTION
OF ORGANIZATION WITH RESPECT TO A PARTICULAR MATTER).
6.6. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given upon (a) transmitter's
confirmation of a receipt of a facsimile transmission, (b) confirmed delivery by
a standard overnight carrier or when delivered by hand or (c) the expiration of
five Business Days after the day when mailed by certified or registered mail,
postage prepaid, addressed at the following addresses (or at such other address
for a party as shall be specified by like notice):
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(a) If to any of the Shareholders, to:
Loral Corporation
c/o Lockheed Xxxxxx Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: General Counsel
and to:
Skadden, Arps, Slate, Xxxxxxx
& Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxx Xxxxx Xxxxxx, Esq.
Xxx X. Xxxxx, Esq.
and to:
O'Melveny & Xxxxx
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: C. Xxxxxxx Xxxxxxxxxx, Esq.
Xxxxxxx X. Xxxxx, Esq.
If to the Company, to:
Loral Space & Communications Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxx, Esq.
In addition to providing any notice required to be given by
the Company pursuant to its Certificate of Incorporation in the manner specified
therein, the Company shall send to each
32
Stockholder by telecopy in accordance with this Section 6.6 a copy of each such
notice.
6.7. Successors and Assigns; Reclassifications; No Third Party
Beneficiaries. This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties and their respective successors and
permitted assigns, but neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any party hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties hereto (which consent may not be unreasonably withheld), except that any
party shall have the right, without the consent of any other party hereto, to
assign all or a portion of its rights, interests and obligations hereunder to
one or more direct or indirect subsidiaries, but no such assignment of
obligation shall relieve the assigning party from its responsibility therefor.
In the event of any recapitalization or reclassification of any Equity
Securities, or any merger, consolidation or other transaction with like effect,
the securities issued in replacement or exchange for such Equity Securities
shall be deemed Equity Securities hereunder. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement; provided that the indemnified parties referred to in
Section 3.5 hereof are intended to be third party beneficiaries of the
provisions of Section 3.5 hereof, and shall have the right to enforce such
provisions as if they were parties hereto.
6.8. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.9. Further Assurances. Each party hereto or person subject
hereto shall do and perform or cause to be done and performed all such further
acts and things and shall execute and deliver all such other agreements,
certificates, instruments and documents as any other party hereto or person
subject hereto may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
6.10. Interpretation. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement. Unless otherwise
specified in this Agreement, all references in this Agreement to "days" shall be
deemed to be references to calendar days.
33
6.11. Legal Enforceability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without affecting the validity or enforceability of the
remaining provisions hereof. Any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
6.12. Consent to Jurisdiction. Each of the parties hereto
irrevocably and unconditionally (a) agrees that all suits, actions or other
legal proceedings arising out of this Agreement or any of the transactions
contemplated hereby (a "Suit") shall be brought and adjudicated solely in the
United States District Court for the District of Delaware, or, if such court
will not accept jurisdiction, in the Delaware Chancery Court or any court of
competent civil jurisdiction sitting in New Castle County, Delaware, (b) submits
to the non-exclusive jurisdiction of any such court for the purpose of any such
Suit and (c) waives and agrees not to assert by way of motion, as a defense or
otherwise in any such Suit, any claims that it is not subject to the
jurisdiction of the above courts, that such Suit is brought in an inconvenient
forum or that the venue of such Suit is improper. Each of the parties hereto
also irrevocably and unconditionally consents to the service of any process,
summons, pleadings, notices or other papers in a manner permitted by the notice
provisions of Section 6.6 hereof and agrees that any such form of service shall
be effective in connection with any such Suit; provided that nothing contained
in this Section 6.12 shall affect the right of any party to serve process,
pleadings, notices or other papers in any other manner permitted by applicable
Law.
6.13. Specific Performance. Each of the parties hereto
acknowledges and agrees that in the event of any breach of this Agreement, each
non-breaching party would be irreparably and immediately harmed and could not be
made whole by monetary damages. It is accordingly agreed that the parties hereto
(a) will waive, in any action for specific performance, the defense of adequacy
of a remedy at law and (b) shall be entitled, in addition to any other remedy to
which they may be entitled at law or in equity, to compel specific performance
of this Agreement in any action instituted in any court referred to in Section
6.12 hereof.
34
IN WITNESS WHEREOF, each of the parties has caused this
Shareholders Agreement to be executed on its behalf by its officers thereunto
duly authorized, all as of the day and year first above written.
LORAL CORPORATION (to be
renamed Lockheed Xxxxxx
Tactical Systems, Inc.)
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President and
Assistant Treasurer
LORAL SPACE & COMMUNICATIONS
LTD.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President, General
Counsel & Secretary
35
