[Exhibit 4.4]
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
LORAL SPACE & COMMUNICATIONS INC.
LORAL SKYNET CORPORATION
AND
THE PERSONS LISTED ON THE
SIGNATURE PAGES HEREOF
DATED AS OF NOVEMBER 21, 2005
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
1.1 Defined Terms........................................................................................... 1
1.2 General Interpretive Principles......................................................................... 6
ARTICLE II
DEMAND REGISTRATION
2.1 Request for Registration................................................................................ 7
2.2 Joining Holders......................................................................................... 10
2.3 Effective Registration.................................................................................. 11
2.4 Underwritten Offerings.................................................................................. 11
2.5 Priority on Demand Registrations........................................................................ 11
2.6 Withdrawal and Cancellation of Registration............................................................. 12
2.7 Registration Statement Form............................................................................. 12
ARTICLE III
PIGGYBACK REGISTRATIONS
3.1 Holder Piggyback Registration........................................................................... 12
3.2 Priority on Piggyback Registrations..................................................................... 13
3.3 Withdrawals............................................................................................. 15
3.4 Underwritten Offerings.................................................................................. 15
ARTICLE IV
SHELF REGISTRATION
4.1 Shelf Registration Filing............................................................................... 15
4.2 Required Period and Shelf Registration Procedures....................................................... 18
ARTICLE V
STANDSTILL AND SUSPENSION PERIODS
5.1 Company Standstill Period............................................................................... 18
5.2 Suspension Period....................................................................................... 18
5.3 Holder Standstill Period................................................................................ 19
ARTICLE VI
REGISTRATION PROCEDURES
6.1 Company Obligations..................................................................................... 20
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TABLE OF CONTENTS
(continued)
Page
6.2 Holder Obligations...................................................................................... 24
6.3 Subsequent Registration Rights.......................................................................... 24
ARTICLE VII
INDEMNIFICATION
7.1 Indemnification by the Company.......................................................................... 24
7.2 Indemnification by the Holders.......................................................................... 26
7.3 Notice of Claims, Etc................................................................................... 26
7.4 Contribution............................................................................................ 27
7.5 Indemnification Payments; Other Remedies................................................................ 28
ARTICLE VIII
REGISTRATION EXPENSES
ARTICLE IX
RULE 144
ARTICLE X
MISCELLANEOUS
10.1 Notice Generally........................................................................................ 29
10.2 Successors and Assigns.................................................................................. 30
10.3 Amendments; Waivers..................................................................................... 30
10.4 Injunctive Relief....................................................................................... 30
10.5 Attorney's Fees......................................................................................... 30
10.6 Termination Of Registration Rights; Survival............................................................ 31
10.7 Severability............................................................................................ 31
10.8 Headings................................................................................................ 31
10.9 Governing Law; Jurisdiction............................................................................. 31
10.10 Counterparts and Facsimile Execution.................................................................... 31
10.11 Entire Agreement........................................................................................ 31
10.12 Further Assurances...................................................................................... 31
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
November 21, 2005, by and among Loral Space & Communications Inc., a Delaware
corporation ("New Loral"), Loral Skynet Corporation, a Delaware corporation
("New Skynet"), and the Holders (as hereinafter defined) of Registrable
Securities (as hereinafter defined).
RECITALS
A. Subject to and on the terms and conditions set forth in that certain
Fourth Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy
Code, dated as of June 3, 2005 (the "Plan"), which Plan was confirmed on August
1, 2005 by order of the United States Bankruptcy Court for the Southern District
of New York, as the same may be amended, modified or supplemented from time to
time in accordance with the terms thereof, the Holders shall receive, on the
effective date of the Plan, from (i) New Loral shares of the New Loral Common
Stock (as hereinafter defined), (ii) New Skynet shares of New Skynet Preferred
Stock (as hereinafter defined), and (iii) New Skynet New Skynet Notes (as
hereinafter defined), pursuant to a rights offering by New Skynet under the Plan
(the "Rights Offering") and/or the Backstop Commitment Agreement (as defined in
the Plan).
B. New Loral, New Skynet and the Holders are entering into this Agreement
pursuant to, and as authorized by, the Bankruptcy Court order confirming the
Plan.
AGREEMENTS
In consideration of the foregoing, and the agreements set forth below, the
parties hereby agree with each other as follows:
ARTICLE I
DEFINITIONS.
1.1 DEFINED TERMS.
As used in this Agreement, the following capitalized terms (in their
singular and plural forms, as applicable) have the following meanings:
"Action" has the meaning assigned to such term in Section 7.3
hereof.
"Additional Holders" means the Permitted Assignees of Registrable
Securities who, from time to time, acquire Registrable Securities and own
Registrable Securities at the relevant time, agree to be bound by the terms
hereof and become Holders for purposes of this Agreement.
"Adverse Effect" has the meaning assigned to such term in Section
2.5 hereof.
"Affiliate" of a Person means any Person that, directly or
indirectly, through one or more intermediaries, controls or is controlled by, or
is under common control with, such other
Person. For purposes of this definition, the term "control" (including the terms
"controlling," "controlled by" and "under common control with") means the
possession, direct or indirect, of the power to cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" has the meaning assigned to such term in the
introductory paragraph to this Agreement, as the same may be amended,
supplemented or restated from time to time.
"Backstop Commitment Agreement" has the meaning assigned to such
term in the Recitals to this Agreement.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the Borough of
Manhattan, The City of New York are authorized or obligated by law or executive
order to close.
"Commission" means the United States Securities and Exchange
Commission and any successor United States federal agency or governmental
authority having similar powers.
"Company" means, as applicable to the situation at hand, either New
Loral or New Skynet.
"Company Indemnified Person" has the meaning assigned to such term
in Section 7.2 hereof.
"Company Standstill Period" has the meaning assigned to such term in
Section 5.1 hereof.
"Demand Registration" means, as applicable to the situation at hand,
a New Loral Common Stock Demand Registration, a New Skynet Preferred Stock
Demand Registration or a New Skynet Notes Demand Registration.
"Demand Request" has the meaning assigned to such term in Section
2.1(a) hereof.
"DTC" means The Depository Trust Company, or any successor thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute, and the rules and regulations of the
Commission thereunder.
"Holder" means any (i) Person who owns Registrable Securities at the
relevant time and is a party to this Agreement or (ii) any Additional Holder.
"Indemnified Person" has the meaning assigned to such term in
Section 7.1 hereof.
"Indemnitee" has the meaning assigned to such term in Section 7.3
hereof.
"Inspectors" has the meaning assigned to such term in Section 6.1(k)
hereof.
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"Joining Holder" has the meaning assigned to such term in Section
2.2 hereof.
"Loss" and "Losses" have the meanings assigned to such terms in
Section 7.1 hereof.
"Major Holder" means, with respect to a class of Registrable
Securities, any Person or group of Affiliated Persons that hold a minimum of 25%
of such class of Registrable Securities as of the effective date of the Plan or
any Additional Holder that acquires the rights of such Person or group of
Affiliated Persons in accordance with the terms of this Agreement.
"Majority Participating Holders" means, with respect to any
registration of Registrable Securities under this Agreement, the Holder or
Holders at the relevant time of at least a majority of the Registrable
Securities of all Holders to be included in the Registration Statement in
question.
"Material Disclosure Event" means, as of any date of determination,
any pending or imminent event relating to the Company or any of its
subsidiaries, which, in the good faith determination of the Board of Directors
of the Company after consultation with counsel to the Company (i) requires
disclosure of material, non-public information relating to such event in any
Registration Statement or related Prospectus (including documents incorporated
by reference therein) so that such Registration Statement would not be
materially misleading, (ii) is otherwise not required to be publicly disclosed
at that time (e.g., on Forms 10-K, 8-K, or 10-Q) under applicable federal or
state securities laws but for the filing of such Registration Statement or
related Prospectus and (iii) if publicly disclosed at the time of such event,
could reasonably be expected to have a material adverse effect on the business,
financial condition or prospects of the Company and its subsidiaries or would
materially adversely affect a pending or proposed acquisition, merger,
recapitalization, consolidation, reorganization, financing or similar
transaction, or negotiations with respect thereto.
"NASD" has the meaning assigned to such term in Section 6.1(n)
hereof.
"New Loral" has the meaning assigned to such term in the
introductory paragraph to this Agreement.
"New Loral Common Stock" means the authorized common stock, par
value $0.01 per share, of New Loral.
"New Loral Common Stock Demand Registration" has the meaning
assigned to such term in Section 2.1(a) hereof.
"New Loral Common Stock Shelf Registration Statement" has the
meaning assigned to such term in Section 4.1(a) hereof.
"New Loral Shelf Filing Deadline" has the meaning assigned to such
term in Section 4.1(a) hereof.
"New Skynet" has the meaning assigned to such term in the
introductory paragraph to this Agreement.
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"New Skynet Preferred Stock" means the authorized non-convertible
preferred stock, par value $0.01 per share, of New Skynet.
"New Skynet Preferred Stock Demand Registration" has the meaning
assigned to such term in Section 2.1(b) hereof.
"New Skynet Preferred Stock Shelf Registration Statement" has the
meaning assigned to such term in Section 4.1(b) hereof.
"New Skynet Preferred Stock Shelf Request" has the meaning assigned
to such term in Section 4.1(b) hereof.
"New Skynet Notes" means the senior secured notes issued by New
Skynet in connection with the Rights Offering and the Backstop Commitment
Agreement.
"New Skynet Notes Demand Registration" has the meaning assigned to
such term in Section 2.1(c) hereof.
"New Skynet Notes Shelf Registration Statement" has the meaning
assigned to such term in Section 4.1(b) hereof.
"New Skynet Notes Shelf Request" has the meaning assigned to such
term in Section 4.1(b) hereof.
"Participating Holder" means any Holder on whose behalf Registrable
Securities are registered pursuant to Articles II, III or IV hereof.
"Permitted Assignee" means any (a) Affiliate of any Holder who
acquires Registrable Securities from such Holder or its Affiliates; or (b) any
other Person who (i) acquires any Holder's Registrable Securities in an amount
of at least 2% of the total number or amount, as applicable, of outstanding
securities of the applicable class of Registrable Securities calculated as of
the effective date of the Plan; and (ii) shall have been designated as a
Permitted Assignee by such Holder in a written notice to the Company; provided,
however, that the rights of any Person designated as a Permitted Assignee
referred to in the foregoing clause (b) shall be limited if, and to the extent,
provided in such notice.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Piggyback Registration" has the meaning assigned to such term in
Section 3.1 hereof.
"Plan" has the meaning assigned to such term in the Recitals to this
Agreement.
"Prospectus" means the prospectus included in any Registration
Statement, all amendments and supplements to such prospectus and all material
incorporated by reference in such prospectus.
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"Records" has the meaning assigned to such term in Section 6.1(k)
hereof.
The terms "register," "registered" and "registration" mean a
registration effected by preparing and filing with the Commission a Registration
Statement on an appropriate form in compliance with the Securities Act, and the
declaration or order of the Commission of the effectiveness of such Registration
Statement under the Securities Act.
"Registrable Securities" means (i) the shares of New Loral Common
Stock held by any of the Holders (or their respective Affiliates and successors
or Permitted Assigns) now or at any time in the future ("Registrable New Loral
Common Stock"), (ii) the shares of New Skynet Preferred Stock held by any of the
Holders (or their respective Affiliates and successors or Permitted Assigns) now
or at any time in the future ("Registrable New Skynet Preferred Stock"), (iii)
any New Skynet Notes held by any of the Holders (or their respective Affiliates
and successors or Permitted Assigns) now or at any time in the future
("Registrable New Skynet Notes"), and (iv) any securities that may be issued or
distributed or be issuable in respect thereof by way of stock dividend, stock
split or other similar distribution, payment in kind with respect to any
interest payment, merger, consolidation, exchange offer, recapitalization or
reclassification or similar transaction or exercise or conversion of any of the
foregoing; provided, however, that as to any Registrable Securities, such
securities shall cease to constitute "Registrable Securities" for purposes of
this Agreement if and when (i) a Registration Statement with respect to the sale
of such securities shall have been declared effective under the Securities Act
and such securities shall have been disposed of pursuant such Registration
Statement, (ii) such securities are distributed pursuant to Rule 144, (iii) such
securities are otherwise sold or transferred (other than in a transaction under
clause (i) or (ii) above) by a Person in a transaction in which such Person's
rights under this Agreement are not assigned, (iv) such securities are no longer
outstanding, (v) such securities are sold or transferred by the beneficial owner
of such securities pursuant to Rule 144(k) and new certificates for such
securities not bearing a legend restricting transfer under the Securities Act
shall have been delivered to the Holder thereof by the Company, or (vi) such
securities are, in the reasonable determination of the Holder thereof, otherwise
freely-transferable by such Holder without any restriction under the Securities
Act at the time such Holder desires to sell or transfer such securities. For
purposes of this Agreement, a "class" of Registrable Securities shall mean all
securities with the same terms and a "percentage" (or a "majority") of the
Registrable Securities (or, where applicable, of any other securities) shall be
determined (x) based on the number of shares of such securities, in the case of
Registrable Securities which are equity securities, and (y) based on the
principal amount of such securities, in the case of Registrable Securities which
are debt securities.
"Registration Statement" means any registration statement of the
Company filed with, or to be filed with, the Commission under the rules and
regulations promulgated under the Securities Act, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such registration statement.
"Requesting New Loral Stockholder" has the meaning assigned to such
term in Section 2.1(a) hereof.
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"Requesting New Skynet Preferred Stockholder" has the meaning
assigned to such term in Section 2.1(b) hereof.
"Requesting New Skynet Noteholder" has the meaning assigned to such
term in Section 2.1(c) hereof.
"Required Filing Date" has the meaning assigned to such term in
Section 2.1(a) hereof.
"Required Period" has the meaning assigned to such term in Section
4.2 hereof.
"Rights Offering" has the meaning assigned to such term in the
Recitals to this Agreement.
"Rule 144" means Rule 144 (or any similar provision then in force)
promulgated under the Securities Act.
"Rule 144(k)" means Rule 144(k) (or any similar provision then in
force) promulgated under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor statute, and the rules and regulations of the Commission
thereunder.
"Shelf Registration Statement" means, as applicable to the situation
at hand, a New Loral Common Stock Shelf Registration Statement, a New Skynet
Preferred Stock Shelf Registration Statement or a New Skynet Notes Shelf
Registration Statement.
"Suspension Notice" has the meaning assigned to such term in Section
5.2 hereof.
"Suspension Period" has the meaning assigned to such term in Section
5.2 hereof.
"Underwritten Offering" means a registration in which securities of
the Company are sold to an underwriter or underwriters on a firm commitment
basis for reoffering to the public.
1.2 GENERAL INTERPRETIVE PRINCIPLES. Whenever used in this Agreement,
except as otherwise expressly provided or unless the context otherwise requires,
any noun or pronoun shall be deemed to include the plural as well as the
singular and to cover all genders. The name assigned to this Agreement and the
section captions used herein are for convenience of reference only and shall not
be construed to affect the meaning, construction or effect hereof. Unless
otherwise specified, the terms "hereof," "herein," "hereunder" and similar terms
refer to this Agreement as a whole (including the exhibits and schedules
hereto), and references herein to Sections refer to Sections of this Agreement.
The words "include," "includes" and "including," when used in this Agreement,
shall be deemed to be followed by the words "without limitation."
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ARTICLE II
DEMAND REGISTRATION
2.1 REQUEST FOR REGISTRATION.
(a) New Loral Common Stock. Subject to the provisions contained in
this Section 2.1(a) and in Sections 5.2 and 5.3 hereof, any Major Holder may,
from time to time (each, a "Requesting New Loral Stockholder"), make a request
in writing (a "Demand Request") that New Loral effect the registration under the
Securities Act of any specified number of shares of Registrable New Loral Common
Stock held by the Requesting New Loral Stockholders (a "New Loral Common Stock
Demand Registration"); provided, however, that New Loral shall in no event be
required to effect:
(i) subject to subsection (d) below, more than three (3) New
Loral Common Stock Demand Registrations in total;
(ii) more than two (2) New Loral Common Stock Demand
Registration in any 12-month period;
(iii) subject to New Loral's compliance with its obligations
under Article III hereof, any New Loral Common Stock Demand Registration during
the period commencing with New Loral's issuance of a notice to the Holders
pursuant to Section 3.1 hereof of a proposed registration of an Underwritten
Offering of equity securities of New Loral for its own account (except pursuant
to registrations on Form S-4 or any successor form or on Form S-8 or any
successor form relating solely to securities issued pursuant to any benefit
plan), continuing while New Loral uses reasonable efforts to pursue such
registered Underwritten Offering, and ending upon the earliest to occur of: (A)
forty five (45) days immediately following New Loral's issuance of the notice of
such proposed registered Underwritten Offering pursuant to Section 3.1 hereof,
unless, within such 45-day period, New Loral shall have (x) filed the
Registration Statement for such proposed Underwritten Offering, or (y) issued a
press release disclosing such proposed Underwritten Offering pursuant to Rule
135 (or its successor) promulgated under the Securities Act thereby enabling the
Holders to sell their Registrable New Loral Common Stock pursuant to the New
Loral Common Stock Shelf Registration Statement; (B) the abandonment, cessation
or withdrawal of such proposed registered Underwritten Offering; or (C) 90 days
immediately following the effective date of the Registration Statement
pertaining to such Underwritten Offering; and
(iv) any New Loral Common Stock Demand Registration if the New
Loral Common Stock Shelf Registration Statement is then effective, and such New
Loral Common Stock Shelf Registration Statement may be utilized by the
Requesting New Loral Stockholder for the offering and sale of any of its
Registrable New Loral Common Stock without a requirement under the Commission's
rules and regulations for a post-effective amendment thereto.
Subject to the provisions contained in this Section 2.1(a) and in Sections
5.2 and 5.3 hereof, upon receipt of a Demand Request, New Loral shall cause to
be included in a
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Registration Statement on an appropriate form under the Securities Act, filed
with the Commission as promptly as practicable but in any event not later than
60 days after receiving a Demand Request (the "Required Filing Date"), such
shares of Registrable New Loral Common Stock as may be requested by such
Requesting New Loral Stockholders in their Demand Request together with any
other Registrable New Loral Common Stock as requested by Joining Holders joining
in such request pursuant to Section 2.2 hereof. New Loral shall use its
reasonable efforts to cause any such Registration Statement to be declared
effective under the Securities Act as promptly as possible after such filing. If
New Loral issues a notice of a proposed Underwritten Offering of equity
securities of New Loral for its own account pursuant to Section 3.1 hereof and
subsequently abandons, ceases or withdraws such offering, New Loral shall not
issue a notice of a subsequent proposed registration of an Underwritten Offering
of equity securities of New Loral for its own account pursuant to Section 3.1
hereof until the New Loral Common Stock Shelf Registration Statement is first
declared effective.
(b) New Skynet Preferred Stock. Subject to the provisions contained
in this Section 2.1(b) and in Sections 5.2 and 5.3 hereof, any Major Holder may,
from time to time (each, a "Requesting New Skynet Preferred Stockholder"), make
a Demand Request that New Skynet effect the registration under the Securities
Act of any specified number of shares of Registrable New Skynet Preferred Stock
held by the Requesting New Skynet Preferred Stockholders (a "New Skynet
Preferred Stock Demand Registration"); provided, however, that New Skynet shall
in no event be required to effect:
(i) subject to subsection (d) below, more than three (3) New
Skynet Preferred Stock Demand Registrations in total;
(ii) more than two (2) New Skynet Preferred Stock Demand
Registration in any 12-month period;
(iii) subject to New Skynet's compliance with its obligations
under Article III hereof, any New Skynet Preferred Stock Demand Registration
during the period commencing with New Skynet's issuance of a notice to the
Holders pursuant to Section 3.1 hereof of a proposed registration of an
Underwritten Offering of equity securities of New Skynet for its own account
(except pursuant to registrations on Form S-4 or any successor form or on Form
S-8 or any successor form relating solely to securities issued pursuant to any
benefit plan), continuing while New Skynet uses reasonable efforts to pursue
such registered Underwritten Offering, and ending upon the earliest to occur of:
(A) forty five (45) days immediately following New Skynet's issuance of the
notice of such proposed registered Underwritten Offering pursuant to Section 3.1
hereof, unless, within such 45-day period, New Skynet shall have (x) filed the
Registration Statement for such proposed Underwritten Offering, or (y) issued a
press release disclosing such proposed Underwritten Offering pursuant to Rule
135 (or its successor) promulgated under the Securities Act thereby enabling the
Holders to sell their Registrable New Skynet Preferred Stock pursuant to the New
Skynet Preferred Stock Shelf Registration Statement (if any); (B) the
abandonment, cessation or withdrawal of such proposed registered Underwritten
Offering; or (C) 90 days immediately following the effective date of the
Registration Statement pertaining to such Underwritten Offering; and
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(iv) any New Skynet Preferred Stock Demand Registration if the
New Skynet Preferred Stock Shelf Registration Statement is then effective, and
such New Skynet Preferred Stock Shelf Registration Statement may be utilized by
the Requesting New Skynet Preferred Stockholder for the offering and sale of any
of its Registrable New Skynet Preferred Stock without a requirement under the
Commission's rules and regulations for a post-effective amendment thereto.
Subject to the provisions contained in this Section 2.1(b) and in Sections
5.2 and 5.3 hereof, upon receipt of a Demand Request, New Skynet shall cause to
be included in a Registration Statement on an appropriate form under the
Securities Act, filed with the Commission by the Required Filing Date, such
shares of Registrable New Skynet Preferred Stock as may be requested by such
Requesting New Skynet Preferred Stockholders in their Demand Request together
with any other Registrable New Skynet Preferred Stock as requested by Joining
Holders joining in such request pursuant to Section 2.2 hereof. New Skynet shall
use its reasonable efforts to cause any such Registration Statement to be
declared effective under the Securities Act as promptly as possible after such
filing. Notwithstanding anything to the contrary contained herein, a Major
Holder may make a Demand Request that New Skynet effect the registration of New
Skynet Preferred Stock and New Skynet Notes in a single Registration Statement
and such Demand Request shall be counted, in the sole discretion of such Major
Holder, as either a New Skynet Preferred Stock Demand Registration or a New
Skynet Notes Demand Registration.
(c) New Skynet Notes. Subject to the provisions contained in this
Section 2.1(c) and in Sections 5.2 and 5.3 hereof, any Major Holder may, from
time to time (each, a "Requesting New Skynet Noteholder"), make a Demand Request
that New Skynet effect the registration under the Securities Act of any
specified principal amount of Registrable New Skynet Notes held by the
Requesting New Skynet Noteholders (a "New Skynet Notes Demand Registration," and
collectively with a New Loral Common Stock Demand Registration and a New Skynet
Preferred Stock Demand Registration, as the case may be, a "Demand
Registration"); provided, however, that New Skynet shall in no event be required
to effect:
(i) subject to subsection (d) below, more than three (3) New
Skynet Notes Demand Registrations in total;
(ii) more than two (2) New Skynet Notes Demand Registration in
any 12-month period;
(iii) subject to New Skynet's compliance with its obligations
under Article III hereof, any New Skynet Notes Demand Registration during the
period commencing with New Skynet's issuance of a notice to the Holders pursuant
to Section 3.1 hereof of a proposed registration of an Underwritten Offering of
debt securities of New Skynet for its own account (except pursuant to
registrations on Form S-4 or any successor form or on Form S-8 or any successor
form relating solely to securities issued pursuant to any benefit plan),
continuing while New Skynet uses reasonable efforts to pursue such registered
Underwritten Offering, and ending upon the earliest to occur of: (A) forty five
(45) days immediately following New Skynet's issuance of the notice of such
proposed registered Underwritten Offering pursuant to Section 3.1 hereof,
unless, within such 45-day period, New Skynet shall have (x) filed the
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Registration Statement for such proposed Underwritten Offering, or (y) issued a
press release disclosing such proposed Underwritten Offering pursuant to Rule
135 (or its successor) promulgated under the Securities Act thereby enabling the
Holders to sell their Registrable New Skynet Notes pursuant to the New Skynet
Notes Shelf Registration Statement; (B) the abandonment, cessation or withdrawal
of such proposed registered Underwritten Offering; or (C) 90 days immediately
following the effective date of the Registration Statement pertaining to such
Underwritten Offering; and
(iv) any New Skynet Notes Demand Registration if the New
Skynet Notes Shelf Registration Statement is then effective, and such New Skynet
Notes Shelf Registration Statement may be utilized by the Requesting New Skynet
Noteholder for the offering and sale of any of its Registrable New Skynet Notes
without a requirement under the Commission's rules and regulations for a
post-effective amendment thereto.
Subject to the provisions contained in this Section 2.1(c) and in Sections
5.2 and 5.3 hereof, upon receipt of a Demand Request, New Skynet shall cause to
be included in a Registration Statement on an appropriate form under the
Securities Act, filed with the Commission by the Required Filing Date, such
principal amount of Registrable New Skynet Notes as may be requested by such
Requesting New Skynet Noteholders in their Demand Request together with any
other Registrable New Skynet Notes as requested by Joining Holders joining in
such request pursuant to Section 2.2 hereof. New Skynet shall use its reasonable
efforts to cause any such Registration Statement to be declared effective under
the Securities Act as promptly as possible after such filing. Notwithstanding
anything to the contrary contained herein, a Major Holder may make a Demand
Request that New Skynet effect the registration of New Skynet Preferred Stock
and New Skynet Notes in a single Registration Statement and such Demand Request
shall be counted, in the sole discretion of such Major Holder, as a New Skynet
Preferred Stock Demand Registration or a New Skynet Notes Demand Registration.
(d) Additional Demand Registration Rights. Notwithstanding and
without prejudice to the provisions of subsections (a)(i), (b)(i) and (c)(i)
above, in addition to the Demand Requests permitted under such subsections, any
Major Holder may make at any time and the Company shall effect an aggregate of
two (2), but not more than two (2), additional Demand Requests for any of a New
Loral Common Stock Demand Registration, a New Skynet Preferred Stock Demand
Registration or a New Skynet Notes Demand Registration.
2.2 JOINING HOLDERS. If at any time the Company proposes to register
Registrable Securities for the account of the Requesting Holders pursuant to
Section 2.1 hereof, then (i) the Company shall give, or cause to be given,
written notice of such proposed filing to all the Holders of such class of
Registrable Securities as soon as practicable (but in no event less than 30 days
before the anticipated filing date). Upon the written request of any Holder,
received by the Company no later than the 10th Business Day after receipt by
such Holder of the notice sent by the Company (each such Holder, a "Joining
Holder"), to register, on the same terms and conditions as the securities
otherwise being sold pursuant to such Demand Registration, any of its
Registrable Securities of the same class as the securities otherwise being sold
pursuant to such Demand Registration, the Company shall use its reasonable
efforts to cause such Registrable Securities to be included in the Registration
Statement proposed to be filed by the Company on the same terms and conditions
as any securities of the same class included therein. All such
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requests by Joining Holders shall specify the aggregate amount and class of
Registrable Securities to be registered and the intended method of distribution
of the same.
2.3 EFFECTIVE REGISTRATION. A registration shall not count as a
Demand Registration under this Agreement (i) unless the related Registration
Statement has been declared effective under the Securities Act and has remained
effective until such time as all of such Registrable Securities covered thereby
have been disposed of in accordance with the intended methods of disposition by
the Participating Holders (but in no event for a period of more than 180 days
after such Registration Statement becomes effective not including any Suspension
Period) and if, after it has become effective, an offering of Registrable
Securities pursuant to a Registration Statement is not terminated by any stop
order, injunction, or other order of the Commission or other governmental agency
or court, or (ii) if pursuant to Section 2.5 hereof, the Requesting Holders and
Joining Holders are cut back to fewer than 75% of the Registrable Securities
requested to be registered and at the time of the request there was not in
effect a Shelf Registration Statement.
2.4 UNDERWRITTEN OFFERINGS. If the Majority Participating Holders who are
included in any offering pursuant to a Demand Registration so elect, such
offering shall be in the form of an Underwritten Offering. With respect to any
such Underwritten Offering pursuant to a Demand Registration, the Company shall
select an investment banking firm of national standing to be the managing
underwriter for the offering, which firm shall be reasonably acceptable to the
Majority Participating Holders.
2.5 PRIORITY ON DEMAND REGISTRATIONS. With respect to any Underwritten
Offering of Registrable Securities pursuant to a Demand Registration, no
securities to be sold for the account of any Person (including the Company)
other than the Requesting Holders and Joining Holders shall be included in a
Demand Registration unless the managing underwriter advises the Requesting
Holders in writing (or, in the case of a Demand Registration not being
underwritten, the Majority Participating Holders determine) that the inclusion
of such securities shall not adversely affect the price or success of the
offering (an "Adverse Effect") and the Majority Holder making such Demand
Request reasonably agrees. Furthermore, in the event that the managing
underwriter advises the Requesting Holders in writing (or the Majority
Participating Holders determine) that the amount of Registrable Securities
proposed to be included in such Demand Registration by Requesting Holders and
Joining Holders is sufficiently large (even after exclusion of all securities of
any other Person pursuant to the immediately preceding sentence) to cause an
Adverse Effect, the number of Registrable Securities to be included in such
Demand Registration shall be allocated among all such Requesting Holders and
Joining Holders pro rata for each Holder based on the percentage derived by
dividing (i) the number of Registrable Securities that each such Holder
requested to be included in such Demand Registration by (ii) the aggregate
number of Registrable Securities that all Requesting Holders and Joining Holders
requested to be included in such Demand Registration; provided, however, that
if, as a result of such proration, any Requesting Holder or Joining Holder shall
not be entitled to include in a registration all Registrable Securities of the
class that such Holder had requested to be included, such Holder may elect to
withdraw its request to include such Registrable Securities in such registration
or may reduce the number requested to be included; provided, however, that (a)
such request must be made in writing prior to the earlier of the execution of
the underwriting
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agreement, if any, or the execution of the custody agreement with respect to
such registration, if any, and (b) such withdrawal or reduction shall be
irrevocable.
2.6 WITHDRAWAL AND CANCELLATION OF REGISTRATION. Any Participating Holder
may withdraw its Registrable Securities from a Demand Registration at any time
and any Majority Participating Holders shall have the right to cancel a proposed
Demand Registration of Registrable Securities pursuant to this Article II in
accordance with Section 3.3 hereof when the request for cancellation is based
upon material adverse information relating to the Company that is different from
the information known to the Participating Holders at the time of the Demand
Request. Upon such cancellation, the Company shall cease all efforts to secure
registration and such Demand Registration shall not be counted as a Demand
Registration under this Agreement for any purpose; provided, however that
notwithstanding anything to the contrary in this Agreement, the Company shall be
responsible for the expenses of the Participating Holders incurred in connection
with such cancelled registration through the date that is seven days after the
time such information became known to the Participating Holders, to the extent
such expenses are as described in clauses (i) through (x) of the first sentence
of Article VIII hereof.
2.7 REGISTRATION STATEMENT FORM. Registrations under this Article II shall
be on such appropriate registration form of the Commission (i) as shall be
selected by the Company and as shall be reasonably acceptable to the Holders of
a majority of each class of Registrable Securities requesting participation in
the Demand Registration and (ii) as shall permit the disposition of the
Registrable Securities in accordance with the intended method or methods of
disposition specified in the applicable Holders' requests for such registration.
Notwithstanding the foregoing, if, pursuant to a Demand Registration, (x) the
Company proposes to effect registration by filing a registration statement on
Form S-3 (or any successor or similar short-form registration statement), (y)
such registration is in connection with an Underwritten Offering and (z) the
managing underwriter or underwriters shall advise the Company in writing that,
in its or their opinion, the use of another form of registration statement (or
the inclusion, rather than the incorporation by reference, of information in the
Prospectus related to a registration statement on Form S-3 (or other short-form
registration statement)) is of material importance to the success of such
proposed offering, then such registration shall be effected on such other form
(or such information shall be so included in such Prospectus).
ARTICLE III
PIGGYBACK REGISTRATIONS.
3.1 HOLDER PIGGYBACK REGISTRATION. If the Company proposes to file a
Registration Statement with respect to an offering of its securities (except
pursuant to registrations on Form S-4 or any successor form or on Form S-8 or
any successor form relating solely to securities issued pursuant to any benefit
plan) on a form that would permit registration of Registrable Securities for
sale to the public under the Securities Act, then the Company shall give written
notice of such proposed filing to the Holders not less than 21 days before the
anticipated filing date, describing in reasonable detail the proposed
registration (including the number and class of securities proposed to be
registered, the proposed date of filing of such Registration Statement, any
proposed means of distribution of such securities, any proposed managing
underwriter of such securities and a good faith estimate by the Company of the
proposed maximum offering
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price of such securities as such price is proposed to appear on the facing page
of such Registration Statement), and offering such Holders the opportunity to
register such number of Registrable Securities of the same class as those being
registered by the Company as each such Holder may request in writing (each a
"Piggyback Registration"). Upon the written request of any Holder, received by
the Company no later than ten (10) Business Days after receipt by such Holder of
the notice sent by the Company, to register, on the same terms and conditions as
the securities otherwise being sold pursuant to such registration, any of such
Holder's Registrable Securities of the same class as those being registered
(which request shall state the intended method of disposition thereof if the
securities otherwise being sold are being sold by more than one method of
disposition), the Company shall use its reasonable efforts to cause such
Registrable Securities as to which registration shall have been so requested to
be included in the Registration Statement proposed to be filed by the Company on
the same terms and conditions as the securities otherwise being sold pursuant to
such registration; provided, however, that, notwithstanding the foregoing, the
Company may at any time, in its sole discretion, without the consent of any
other Holder, delay or abandon the proposed offering in which any Holder had
requested to participate pursuant to this Section 3.1 or cease the filing (or
obtaining or maintaining the effectiveness) of or withdraw the related
Registration Statement or other governmental approvals, registrations or
qualifications. In such event, the Company shall so notify each Holder that had
notified the Company in accordance with this Section 3.1 of its intention to
participate in such offering and the Company shall incur no liability for its
failure to complete any such offering.
3.2 PRIORITY ON PIGGYBACK REGISTRATIONS.
(a) If the managing underwriter or underwriters for the related
Piggyback Registration Underwritten Offering (or in the case of a Piggyback
Registration not being underwritten, the Company, in good faith) advises the
Holders in writing that the inclusion of such Registrable Securities would cause
an Adverse Effect, then the Company shall be obligated to include in such
Registration Statement only that number of Registrable Securities which, in the
judgment of the managing underwriter (or the Company in good faith, as
applicable), would not have an Adverse Effect; provided, however, that no such
reduction shall reduce the aggregate amount of Registrable Securities included
in such Registration Statement for the benefit of the requesting Holders to less
than:
(i) in the case of New Loral Common Stock (A) any time that
the New Loral Common Stock Shelf Registration Statement is not effective or the
Holders may not otherwise utilize the New Loral Common Stock Shelf Registration
Statement for the offering and sale of their Registrable New Loral Common Stock,
all of the shares of Registrable New Loral Common Stock requested by the Holders
to be included in such Registration Statement (but up to the maximum amount of
the securities to be sold in the related Underwritten Offering), and (B) any
time that the New Loral Common Stock Shelf Registration Statement is effective
and the Holders may utilize the New Loral Common Stock Shelf Registration
Statement for the offering and sale of their Registrable New Loral Common Stock,
fifty percent (50%) of the total number of securities that are included in each
such Registration Statement thereafter;
(ii) in the case of New Skynet Preferred Stock (A) any time
that the New Skynet Preferred Stock Shelf Registration Statement is not
effective or the Holders may not
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otherwise utilize the New Skynet Preferred Stock Shelf Registration Statement
for the offering and sale of their Registrable New Skynet Preferred Stock, all
of the shares of Registrable New Skynet Preferred Stock requested by the Holders
to be included in such Registration Statement (but up to the maximum amount of
the securities to be sold in the related Underwritten Offering), and (B) any
time that the New Skynet Preferred Stock Shelf Registration Statement is
effective and the Holders may utilize the New Skynet Preferred Stock Shelf
Registration Statement for the offering and sale of their Registrable New Skynet
Preferred Stock, fifty percent (50%) of the total number of securities that are
included in each such Registration Statement thereafter, and
(iii) in the case of New Skynet Notes (A) any time that the
New Skynet Notes Shelf Registration Statement is not effective or the Holders
may not otherwise utilize the New Skynet Notes Shelf Registration Statement for
the offering and sale of their Registrable New Skynet Notes, all of the
principal amount of Registrable New Skynet Notes requested by the Holders to be
included in such Registration Statement (but up to the maximum amount of the
securities to be sold in the related Underwritten Offering), and (B) any time
that the New Skynet Notes Shelf Registration Statement is effective and the
Holders may utilize the New Skynet Notes Shelf Registration Statement for the
offering and sale of their Registrable New Skynet Notes, fifty percent (50%) of
the total number of securities that are included in each such Registration
Statement thereafter.
Any partial reduction in the number of Registrable Securities to be
included in a Registration Statement pursuant to the immediately preceding
sentence shall be affected by allocating the number of Registrable Securities to
be included in such Registration Statement, among all the Holders requesting to
be included in such Registration Statement pursuant to Section 3.1 hereof, pro
rata based for each Holder on the percentage derived by dividing (i) the number
of Registrable Securities that each such Holder requested to be included in such
Registration Statement by (ii) the aggregate number of Registrable Securities
that all Holders requested to be included in such Registration Statement;
provided, however, that if, as a result of such proration, any Holder requesting
to be included in such Registration Statement pursuant to Section 3.1 hereof
shall not be entitled to include in a registration all Registrable Securities of
the class that such Holder had requested to be included, such Holder may elect
to withdraw its request to include such Registrable Securities in such
registration or may reduce the number requested to be included in accordance
with Section 3.3 hereof.
(b) In the case of New Loral only, subject to New Loral's compliance
with its obligations under this Article III, if prior to the filing or
effectiveness of the New Loral Shelf Registration Statement, New Loral initiates
a proposal to register an Underwritten Offering of securities for its own
account pursuant to this Article III and the Holders shall be afforded the right
(whether or not exercised by the Holders) to include Registrable Securities in
such Underwritten Offering in accordance with and subject to the provisions of
this Article III, then the proposed registration for the account of New Loral
pursuant to this Article III shall be given priority in all respects.
(c) Notwithstanding the foregoing, until the nine month anniversary
of the date that the New Loral Common Stock Shelf Registration Statement is
first declared effective, New Loral shall not initiate a proposal to register or
otherwise conduct an Underwritten Offering of equity securities of the Company
for its own account.
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3.3 WITHDRAWALS. Each Holder shall have the right to withdraw its request
for inclusion of all or any of its Registrable Securities in any Registration
Statement pursuant to this Article III by giving written notice to the Company
of its request to withdraw; provided, however, that (i) such request must be
made in writing prior to the earlier of the execution of the underwriting
agreement or the execution of the custody agreement with respect to such
registration and (ii) such withdrawal shall be irrevocable.
3.4 UNDERWRITTEN OFFERINGS.
(a) In connection with the exercise of any registration rights
granted to Holders pursuant to this Article III, if the registration is to be
effected by means of an Underwritten Offering, the Company may condition
participation in such registration by any such Holder upon inclusion of the
Registrable Securities being so registered in such underwriting and such
Holder's entering into an underwriting agreement pursuant to Section 6.2(d)
hereof.
(b) With respect to any offering of Registrable Securities pursuant
to this Article III in the form of an Underwritten Offering, the Company shall
select an investment banking firm of national standing to be the managing
underwriter for the offering.
ARTICLE IV
SHELF REGISTRATION
4.1 SHELF REGISTRATION FILING.
(a) New Loral. Subject to the provisions contained in this Section
4.1(a) and in Sections 3.2(b), 5.2 and 5.3 hereof, within thirty (30) days
following the issuance by New Loral's independent public accountants of their
audit report covering New Loral's post-emergence "fresh-start" financial
statements (the "New Loral Shelf Filing Deadline"), New Loral shall file with
the Commission a Registration Statement (the "New Loral Common Stock Shelf
Registration Statement") relating to the offer and sale of all of the shares of
Registrable New Loral Common Stock by the Holders to the public, from time to
time, on a delayed or continuous basis. New Loral shall use its reasonable
efforts to cause New Loral's independent public accountants to issue their audit
report covering New Loral's post-emergence "fresh-start" financial statements as
soon as practicable after the effective date of the Plan and, subject to the
provisions contained in this Section 4.1(a) and in Sections 3.2(b), 5.2 and 5.3
hereof, to cause the New Loral Common Stock Shelf Registration Statement to be
declared effective under the Securities Act as soon as practicable after the
filing thereof with the Commission. The New Loral Common Stock Shelf
Registration Statement shall specify the intended method of distribution of the
subject Registrable New Loral Common Stock substantially in the form of Exhibit
A attached hereto. New Loral shall file the New Loral Common Stock Shelf
Registration Statement on Form S-3 or, if New Loral or the offering of the
Registrable New Loral Common Stock does not satisfy the requirements for use of
such form, such other form as may be appropriate; provided, however, that if the
New Loral Common Stock Shelf Registration Statement is not filed on Form S-3,
New Loral shall, promptly upon meeting the requirements for use of such form,
file an appropriate amendment to the New Loral Common Stock Shelf Registration
Statement to convert it to Form S-3. Notwithstanding the foregoing, subject to
New Loral's compliance with its obligations under Article III hereof, New
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Loral shall not be obligated to take any action to effect the New Loral Common
Stock Shelf Registration Statement or any amendment thereto during the following
periods commencing:
(i) with New Loral's issuance of a notice to the Holders
pursuant to Section 3.1 hereof of a proposed registration of an Underwritten
Offering of equity securities of New Loral for its own account (except pursuant
to registrations on Form S-4 or any successor form or on Form S-8 or any
successor form relating solely to securities issued pursuant to any benefit
plan), continuing while New Loral uses reasonable efforts to pursue such
registered Underwritten Offering, and ending upon the earliest to occur of: (A)
forty five (45) days immediately following New Loral's issuance of the notice of
such proposed registered Underwritten Offering pursuant to Section 3.1 hereof,
unless, within such 45-day period, New Loral shall have (x) filed the
Registration Statement for such proposed Underwritten Offering, or (y) issued a
press release disclosing such proposed Underwritten Offering pursuant to Rule
135 (or its successor) promulgated under the Securities Act thereby enabling the
Holders to sell their Registrable New Loral Common Stock pursuant to the New
Loral Common Stock Shelf Registration Statement; (B) the abandonment, cessation
or withdrawal of such proposed registered Underwritten Offering; or (C) 90 days
immediately following the effective date of the Registration Statement
pertaining to such Underwritten Offering; and
(ii) on the effective date of a Registration Statement for an
Underwritten Offering of equity securities of New Loral for its own account
(except pursuant to registrations on Form S-4 or any successor form or on Form
S-8 or any successor form relating solely to securities issued pursuant to any
benefit plan) and ending 90 days immediately following the effective date of the
Registration Statement pertaining to such Underwritten Offering.
If New Loral issues a notice of a proposed Underwritten Offering of equity
securities of New Loral for its own account pursuant to Section 3.1 hereof and
subsequently abandons, ceases or withdraws such offering, New Loral shall not
issue a notice of a subsequent proposed registration of an Underwritten Offering
of equity securities of New Loral for its own account pursuant to Section 3.1
hereof until the New Loral Common Stock Shelf Registration Statement is first
declared effective.
(b) New Skynet. Subject to the provisions contained in this Section
4.1(b) and in Sections 5.2 and 5.3 hereof, any Major Holder may, from time to
time, request in writing (each a, "New Skynet Preferred Stock Shelf Request," or
a "New Skynet Notes Shelf Request," as applicable) that New Skynet file with the
Commission a Registration Statement (the "New Skynet Preferred Stock Shelf
Registration Statement," or the "New Skynet Notes Shelf Registration Statement,"
as applicable) relating to the offer and sale of all of the shares of
Registrable New Skynet Preferred Stock or all of the Registrable New Skynet
Notes, as applicable, by the Holders to the public, from time to time, on a
delayed or continuous basis; provided, however, that New Skynet shall in no
event be required to effect more than one (1) New Skynet Preferred Stock Shelf
Registration Statement and more than one (1) New Skynet Notes Shelf Registration
Statement. Subject to the provisions contained in this Section 4.1(b) and in
Sections 5.2 and 5.3 hereof, upon receipt of a New Skynet Preferred Stock Shelf
Request or a New Skynet Notes Shelf Request, as applicable, New Skynet shall
cause such applicable Shelf
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Registration Statement to be filed with the Commission by the Required filing
date. New Skynet shall use its reasonable efforts to cause any such Shelf
Registration Statement to be declared effective under the Securities Act as soon
as practicable after the filing thereof with the Commission. Such Shelf
Registration Statement shall specify the intended method of distribution of the
subject Registrable New Skynet Preferred Stock or Registrable New Skynet Notes,
as applicable, substantially in the form of Exhibit A attached hereto. New
Skynet shall file the applicable Shelf Registration Statement on Form S-3 or, if
New Skynet or the offering of the Registrable New Skynet Preferred Stock or the
Registrable New Skynet Notes, as applicable, does not satisfy the requirements
for use of such form, such other form as may be appropriate; provided, however,
that if such Shelf Registration Statement is not filed on Form S-3, New Skynet
shall, promptly upon meeting the requirements for use of such form, file an
appropriate amendment to such Shelf Registration Statement to convert it to Form
S-3. Notwithstanding the foregoing, subject to New Skynet's compliance with its
obligations under Article III hereof, New Skynet shall not be obligated to take
any action to effect the applicable Shelf Registration Statement or any
amendment thereto during the following periods commencing:
(i) with New Skynet's issuance of a notice to the Holders
pursuant to Section 3.1 hereof of a proposed registration of an Underwritten
Offering of equity securities or debt securities, as applicable, of New Skynet
for its own account (except pursuant to registrations on Form S-4 or any
successor form or on Form S-8 or any successor form relating solely to
securities issued pursuant to any benefit plan), continuing while New Skynet
uses reasonable efforts to pursue such registered Underwritten Offering, and
ending upon the earliest to occur of: (A) forty five (45) days immediately
following New Skynet's issuance of the notice of such proposed registered
Underwritten Offering pursuant to Section 3.1 hereof, unless, within such 45-day
period, New Skynet shall have (x) filed the Registration Statement for such
proposed Underwritten Offering, or (y) issued a press release disclosing such
proposed Underwritten Offering pursuant to Rule 135 (or its successor)
promulgated under the Securities Act thereby enabling the Holders to sell their
Registrable New Skynet Preferred Stock or Registrable New Skynet Notes, as
applicable, pursuant to the applicable Shelf Registration Statement; (B) the
abandonment, cessation or withdrawal of such proposed registered Underwritten
Offering; or (C) 90 days immediately following the effective date of the
Registration Statement pertaining to such Underwritten Offering; and
(ii) on the effective date of a Registration Statement for an
Underwritten Offering of equity securities or debt securities, as applicable, of
New Skynet for its own account (except pursuant to registrations on Form S-4 or
any successor form or on Form S-8 or any successor form relating solely to
securities issued pursuant to any benefit plan) and ending 90 days immediately
following the effective date of the Registration Statement pertaining to such
Underwritten Offering.
If, following the receipt of a New Skynet Preferred Stock Shelf Request or
New Skynet Notes Shelf Request, as applicable, New Skynet issues a notice of a
proposed Underwritten Offering of equity securities or debt securities, as
applicable, of New Skynet for its own account pursuant to Section 3.1 hereof and
subsequently abandons, ceases or withdraws such offering, New Skynet shall not
issue a notice of a subsequent proposed registration of an Underwritten Offering
of equity securities or debt securities, as applicable, of New Skynet for its
own account pursuant to Section 3.1 hereof until the applicable Shelf
Registration Statement is first declared
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effective. Registrations effected pursuant to this Section 4.1(b) shall not be
counted as New Skynet Preferred Stock Demand Registrations effected pursuant to
Section 2.1(b) hereof or as New Skynet Notes Demand Registrations effected
pursuant to Section 2.1(c) hereof, as applicable.
4.2 REQUIRED PERIOD AND SHELF REGISTRATION PROCEDURES. The Company shall
(i) cause each Shelf Registration Statement to include a resale Prospectus
intended to permit each Holder to sell, at such Holder's election, all or part
of the applicable class of Registrable Securities held by such Holder without
restriction, (ii) use its reasonable efforts to prepare and file with the
Commission such supplements, amendments and post-effective amendments to such
Shelf Registration Statement as may be necessary to keep such Shelf Registration
Statement continuously effective (subject to Section 3.2(b) hereof and to any
Suspension Period(s) referred to below) for so long as the securities registered
thereunder constitute Registrable Securities (the "Required Period"), and (iii)
use its reasonable efforts to cause the resale Prospectus to be supplemented by
any required Prospectus supplement (subject to Section 3.2(b) hereof and to any
Suspension Period(s) referred to below) and permit such Prospectus to be usable
by the Holders during the Required Period.
ARTICLE V
STANDSTILL AND SUSPENSION PERIODS
5.1 COMPANY STANDSTILL PERIOD. In the event of an Underwritten Offering of
Registrable Securities pursuant to Section 2.1 hereof, the Company agrees not
to, without the prior written consent of the managing underwriter and the
Majority Participating Holders, offer, pledge, sell, contract to sell, grant any
option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any securities that are the same as, or similar to, such
Registrable Securities, or any securities convertible into, or exchangeable or
exercisable for, any securities of the Company that are the same as, or similar
to, such Registrable Securities (except pursuant to registrations on Form S-4 or
any successor form, or otherwise in connection with the acquisition of a
business or assets of a business, a merger, or an exchange offer for the
securities of the issuer or another entity, or pursuant to a Company dividend
reinvestment plan, or for issuances of securities pursuant to the conversion,
exchange or exercise of then-outstanding convertible or exchangeable securities,
options, rights or warrants, or pursuant to registrations on Form S-8 or any
successor form or otherwise relating solely to securities offered pursuant to
any benefit plan), during the period commencing 14 days prior to the effective
date of the Registration Statement relating to such Registrable Securities (to
the extent timely notified in writing by the Majority Participating Holders or
the managing underwriter of such distribution) and ending on the 90th day after
such effective date (the "Company Standstill Period").
5.2 SUSPENSION PERIOD. The Company may, by notice in writing to each
Holder, postpone the filing or effectiveness of a Shelf Registration Statement
or any other registration requested pursuant to this Agreement, or otherwise
suspend the Demand Registration rights of the Holders and/or require the Holders
to suspend use of any resale Prospectus included in a Shelf Registration
Statement for any period of time reasonably determined by the Company if there
shall occur a Material Disclosure Event (such period, a "Suspension Period").
Notwithstanding anything herein to the contrary, neither New Loral nor New
Skynet shall be
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entitled to more than an aggregate of four (4) Suspension Periods each, with
respect to all Registrable Securities issued by either of them, as applicable,
which Suspension Periods shall have durations of not more than thirty (30) days
each (but may at the Company's reasonable determination run consecutively for a
given Material Disclosure Event), during any consecutive 12 month period, and
which Suspension Periods shall not exceed more than ninety (90) days in the
aggregate in any consecutive 12-month period; provided, however, that if the
Company deems in good faith that it is necessary to file a post-effective
amendment to the Shelf Registration Statement in order to comply with Section 4
hereof, then such period of time from the date of filing such post-effective
amendment until the date on which the applicable Shelf Registration Statement is
declared effective under the Securities Act shall not be treated as a Suspension
Period and the Company shall use its reasonable efforts to cause such
post-effective amendment to be declared effective as promptly as possible. Each
Holder agrees that, upon receipt of notice from the Company of the occurrence of
a Material Disclosure Event (a "Suspension Notice"), such Holder shall forthwith
discontinue any disposition of Registrable Securities pursuant to the applicable
Shelf Registration Statement or any public sale or distribution, including
pursuant to Rule 144, until the earlier of (i) the expiration of the Suspension
Period and (ii) such Holder's receipt of a notice from the Company to the effect
that such suspension has terminated. Any Suspension Notice shall be accompanied
by a certificate of the Chief Executive Officer, Chief Financial Officer,
President or any Vice President of the Company confirming the existence of the
Material Disclosure Event. If so directed by the Company, such Holder shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Holder's possession, of the most recent
Prospectus covering such Registrable Securities at the time of receipt of such
Suspension Notice. The Company covenants and agrees that it shall not deliver a
Suspension Notice with respect to a Suspension Period unless Company employees,
officers and directors are also prohibited by the Company for the duration of
such Suspension Period from effecting any public sales of securities of the
Company beneficially owned by them. In the event of a Suspension Notice, the
Company shall, promptly after such time as the related Material Disclosure Event
no longer exists, provide notice to all Holders that the Suspension Period has
ended, and take any and all actions necessary or desirable to give effect to any
Holders' rights under this Agreement that may have been affected by such notice,
including the Holders' Demand Registration rights and rights with respect to any
Shelf Registration Statement.
5.3 HOLDER STANDSTILL PERIOD. Each Holder of Registrable Securities
(whether or not such Registrable Securities are covered by a Shelf Registration
Statement or by a Registration Statement filed pursuant to Section 2.1 or 3.1
hereof) agrees to enter into a customary lock-up agreement with the managing
underwriter for any Underwritten Offering of the Company's securities for its
own account with respect to the same class of securities being registered
pursuant to such Registration Statement, containing terms reasonably acceptable
to such managing underwriter, covering the period commencing 15 days prior to
the effective date of any Registration Statement relating to such securities of
the Company and ending on the 90th day after such effective date (or such
shorter period as shall have been agreed to by the Company's executive officers
and directors in their respective lock-up agreements); provided, however, that
the obligations of each Holder under this Section 5.3 shall apply only if: (i)
such Holder shall be afforded the right (whether or not exercised by the Holder)
to include Registrable Securities in such Underwritten Offering in accordance
with and subject to the provisions of Article III hereof; (ii) each of the
Company's executive officers and directors enter into lock-up
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agreements with such managing underwriter, which agreements shall not contain
terms more favorable to such executive officers or directors than those
contained in the lock-up agreement entered into by such Holder; and (iii) the
aggregate restriction periods in such Holder's lock-up agreements entered into
pursuant to this Section 5.3 shall not exceed an aggregate of 180 days during
any 365-day period.
ARTICLE VI
REGISTRATION PROCEDURES
6.1 COMPANY OBLIGATIONS. Whenever the Company is required pursuant to this
Agreement to register Registrable Securities, it shall (it being understood and
agreed that except as otherwise expressly set forth in this Article VI, if any
other provision of this Agreement is more favorable to the Holders than the
provisions of this Article VI, such other provision shall apply):
(a) provide the Participating Holders and their respective counsel
with a reasonable opportunity to review, and comment on, any Registration
Statement to be prepared and filed pursuant to this Agreement prior to the
filing thereof with the Commission, and make all changes thereto as any
Participating Holder may request in writing to the extent such changes are
required, in the reasonable judgment of the Company's counsel, by the Securities
Act and, except in the case of a registration under Article III, not file any
Registration Statement or Prospectus or amendments or supplements thereto to
which the holders of a majority of the class of Registrable Securities covered
by the same or the underwriter or underwriters, if any, shall reasonably object;
(b) cause any such Registration Statement and the related Prospectus
and any amendment or supplement thereto, as of the effective date of such
Registration Statement, amendment or supplement, (i) to comply in all material
respects with the applicable requirements of the Securities Act and the rules
and regulations of the Commission promulgated thereunder and (ii) not to contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, (in
the case of the Prospectus and any preliminary Prospectus in light of the
circumstances under which they were made) not misleading, or, if for any other
reason it shall be necessary to amend or supplement such Registration Statement
or Prospectus in order to comply with the Securities Act and, in either case as
promptly as reasonably practicable thereafter, prepare and file with the
Commission an amendment or supplement to such Registration Statement or
Prospectus which will correct such statement or omission or effect such
compliance;
(c) furnish, at its expense, to the Participating Holders such
number of conformed copies of such Registration Statement and of each such
amendment thereto (in each case including all exhibits thereto, except that the
Company shall not be obligated to furnish to any such Participating Holder more
than two (2) copies of such exhibits), such number of copies of the Prospectus
included in such Registration Statement (including each preliminary Prospectus
and each supplement thereto), and such number of the documents, if any,
incorporated by reference in such Registration Statement or Prospectus, as the
Participating Holders reasonably may request;
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(d) use its reasonable efforts to register or qualify the
Registrable Securities covered by such Registration Statement under such
securities or "blue sky" laws of the states of the United States as the
Participating Holders reasonably shall request, to keep such registration or
qualification in effect for so long as such Registration Statement remains in
effect, and to do any and all other acts and things that may be necessary or
advisable to enable the Participating Holders to consummate the disposition in
such jurisdictions of the Registrable Securities covered by such Registration
Statement, except that the Company shall not, for any such purpose, be required
to qualify generally to do business as a foreign corporation in any jurisdiction
in which it is not obligated to be so qualified, or to subject itself to
material taxation in any such jurisdiction, or to consent to general service of
process in any such jurisdiction; and use its reasonable efforts to obtain all
other approvals, consents, exemptions or authorizations from such securities
regulatory authorities or governmental agencies as may be necessary to enable
such Participating Holders to consummate the disposition of such Registrable
Securities;
(e) promptly notify the Participating Holders, at any time when a
Prospectus or Prospectus supplement relating thereto is required to be delivered
under the Securities Act, upon discovery that, or upon the occurrence 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, in the light of the circumstances under which they
were made, not misleading, which untrue statement or omission requires amendment
of the Registration Statement or supplementing of the Prospectus, and, as
promptly as practicable (subject to Sections 3.2 and 5.2 hereof), prepare and
furnish, at its expense, to the Participating Holders a reasonable number of
copies of a supplement to such Prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable 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 the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that with respect to Registrable
Securities registered pursuant to such Registration Statement, each Holder
agrees that it shall not enter into any transaction for the sale of any
Registrable Securities pursuant to such Registration Statement during the time
after the furnishing of the Company's notice that the Company is preparing a
supplement to or an amendment of such Prospectus or Registration Statement and
until the filing and effectiveness thereof;
(f) use its reasonable efforts to comply with all applicable rules
and regulations of the Commission, and make available to holders of its
securities, as soon as practicable, an earnings statement covering the period of
at least 12 months, but not more than 18 months, beginning with the first month
of the first fiscal quarter after the effective date of such Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;
(g) provide, and cause to be maintained, a transfer agent and
registrar for the Registrable Securities covered by such Registration Statement
(which transfer agent and registrar shall, at the Company's option, be the
Company's existing transfer agent and registrar) from and after a date not later
than the effective date of such Registration Statement;
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(h) notify the Participating Holders and the managing underwriter,
if any, promptly, and (if requested by any such Person) confirm such notice in
writing, (i) when a Registration Statement, Prospectus, Prospectus supplement or
post-effective amendment related to such Registration Statement has been filed,
and, with respect to such Registration Statement or any post-effective amendment
thereto, when the same has become effective, (ii) of any request by the
Commission or any other federal or state governmental authority for amendments
or supplements to such Registration Statement or related Prospectus, (iii) of
the issuance by the Commission or any other federal or state governmental
authority of any stop order suspending the effectiveness of such Registration
Statement or the initiation of any proceedings for that purpose and (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(i) use its reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of such Registration Statement, or the lifting of
any suspension of the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any jurisdiction, as soon as practicable;
(j) in the event of an Underwritten Offering of Registrable
Securities pursuant to Section 2.1 hereof, enter into customary agreements
(including underwriting agreements in customary form, which may include, in the
case of an Underwritten Offering on a firm commitment basis, "lock-up"
obligations substantially similar to Section 5.1 hereof) and take such other
actions (including using its reasonable efforts to make such road show
presentations and otherwise engaging in such reasonable marketing support in
connection with any such Underwritten Offering, including the obligation to make
its executive officers available for such purpose if so requested by the
managing underwriter for such offering) as are reasonably requested by the
managing underwriter in order to expedite or facilitate the sale of such
Registrable Securities;
(k) make available for inspection by each Participating Holder, any
underwriter participating in any disposition pursuant to such registration, and
any attorney, accountant or other agent retained by such Participating Holder or
any such underwriter (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the Company and any of
its subsidiaries (collectively, the "Records") as shall be reasonably necessary
to enable them to exercise their due diligence responsibility, and cause the
officers, directors and employees of the Company to supply all information
reasonably requested by any such Inspector in connection with such registration,
provided, however, that (i) in connection with any such inspection, any such
Inspectors shall cooperate to the extent reasonably practicable to minimize any
disruption to the operation by the Company of its business and shall comply with
all Company site safety rules, (ii) Records and information obtained hereunder
shall be used by such Inspectors only to exercise their due diligence
responsibility and (iii) Records or information furnished or made available
hereunder shall be kept confidential and shall not be disclosed by such
Participating Holder, underwriter or Inspectors unless (A) the disclosing party
advises the other party that the disclosure of such Records or information is
necessary to avoid or correct a misstatement or omission in a Registration
Statement or is otherwise required by law, (B) the release of such Records or
information is ordered pursuant to a subpoena or other order from a court or
governmental
-22-
authority of competent jurisdiction (provided, however, that such Person shall
use its reasonable efforts to provide the Company with prior written notice of
such requirement to afford the Company with an opportunity to seek a protective
order or other appropriate remedy in response) or (C) such Records or
information otherwise become generally available to the public other than
through disclosure by such Participating Holder, underwriter or Inspector in
breach hereof or by any Person in breach of any other confidentiality
arrangement;
(l) in connection with any registration of an Underwritten Offering
of Registrable Securities hereunder, use all reasonable efforts to furnish to
each Participating Holder and to the managing underwriter, if any, a signed
counterpart, addressed to such Participating Holder and the managing
underwriter, if any, of (i) an opinion or opinions of counsel to the Company and
(ii) a comfort letter or comfort letters from the Company's independent public
accountants pursuant to Statement on Auditing Standards No. 72 (or any successor
thereto), each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case may be, as each
such Participating Holder and the managing underwriter, if any, reasonably
requests;
(m) in connection with any registration of an Underwritten Offering
of Registrable Securities hereunder, provide officers' certificates and other
customary closing documents;
(n) reasonably cooperate with each seller of Registrable Securities
and any underwriter in the disposition of such Registrable Securities and with
underwriters' counsel, if any, in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. (the "NASD");
(o) use its reasonable efforts to cause all such Registrable
Securities to be listed on each securities exchange on which securities of the
same class issued by the Company are then listed;
(p) cooperate with the Participating Holders and the managing
underwriter, underwriters or agent, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends;
(q) use its reasonable efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriter or underwriters, if
any, to consummate the disposition of such Registrable Securities; and
(r) not later than the effective date of the applicable Registration
Statement, provide a CUSIP number for all Registrable Securities and provide the
applicable transfer agent with printed certificates for the Registrable
Securities which certificates shall be in a form eligible for deposit with DTC
(provided that such Registrable Securities are so eligible for deposit with DTC
and, if not so eligible, the Company shall use reasonable efforts to cause such
Registrable Securities to be so eligible for deposit with DTC).
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6.2 HOLDER OBLIGATIONS. Each Holder agrees:
(a) that it shall furnish to the Company such information regarding
such Holder and the plan and method of distribution of Registrable Securities
intended by such Holder (i) as the Company may, from time to time, reasonably
request in writing and (ii) as shall be required by law or by the Commission in
connection therewith;
(b) that information obtained by it or by its Inspectors shall be
deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company or its Affiliates unless and until
such information is made generally available to the public;
(c) to use its reasonable efforts, prior to making any disclosure
allowed by Section 6.1(k)(iii)(A) or (B) hereof, to inform the Company that such
disclosure is necessary to avoid or correct a misstatement or omission in the
Registration Statement or ordered pursuant to a subpoena or other order from a
court or governmental authority of competent jurisdiction or otherwise required
by law; and
(d) in the case of an Underwritten Offering of Registrable
Securities pursuant to this Agreement, if requested by the managing underwriter,
to enter into an underwriting agreement with the underwriters for such offering
containing such representations and warranties by each Holder and such other
terms and provisions as are customarily contained in such underwriting
agreements, including customary indemnity and contribution provisions and
"lock-up" obligations substantially similar to Section 5.3 hereof.
6.3 SUBSEQUENT REGISTRATION RIGHTS. The Company is not currently a party
to, any agreement which is, or could be, inconsistent with the rights granted to
the holders of Registrable Securities by this Agreement. For as long as any
Major Holder of any class of Registrable Securities holds at least 50% of such
class of Registrable Securities issued to such Major Holder on the effective
date of the Plan, the Company shall not grant any Person any registration rights
other than registration rights that are no more favorable than those being
granted hereunder and that shall not be in conflict with, inconsistent with, or
otherwise adverse to or lessen the rights of the Holders hereunder in any
respect, including, without limitation, priority of registration or ability to
transfer or otherwise dispose of Registrable Securities.
ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION BY THE COMPANY. In the event of any registration of
any Registrable Securities under the Securities Act pursuant to this Agreement,
the Company shall indemnify and hold harmless to the full extent permitted by
law (i) each Holder, such Holder's Affiliates and their respective officers,
directors, managers, partners, stockholders, employees, advisors, agents and
other representatives of the foregoing, and each of their respective successors
and assigns, and each Person who controls any of the foregoing, within the
meaning of the Securities Act and the Exchange Act, and (ii) any selling agent
selected by the Holders or their affiliates with respect to such Registrable
Securities (each such Person being sometimes
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referred to as an "Indemnified Person"), against any and all losses, claims,
damages, liabilities (or actions or proceedings in respect thereof, whether or
not such Indemnified Person is a party thereto) and expenses (including
reasonable costs of investigations and legal expenses), joint or several (each a
"Loss" and collectively "Losses"), to which such Indemnified Person may become
subject, to the extent that such Losses (or related actions or proceedings)
arise out of or are based upon (A) any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement in which
such Registrable Securities were included for registration under the Securities
Act, including any preliminary or summary Prospectus or any final Prospectus
included in such Registration Statement (or any amendment or supplement to such
Registration Statement or Prospectus) or any document incorporated by reference
therein or (B) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, (in
the case of the Prospectus and any preliminary Prospectus in light of the
circumstances under which they were made) not misleading; and the Company agrees
to reimburse such Indemnified Person for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company shall
have no obligation to provide any indemnification or reimbursement hereunder (i)
to the extent that any such Losses (or actions or proceedings in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement,
preliminary Prospectus, final Prospectus, amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by the
Holder, or on the Holder's behalf, specifically for inclusion, respectively, in
such Registration Statement, preliminary Prospectus, final Prospectus, amendment
or supplement, or (ii) in the case of a sale directly by a Holder of Registrable
Securities (including a sale of such Registrable Securities through any
underwriter retained by such Holder engaging in a distribution solely on behalf
of such Holder), to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was contained in a preliminary
Prospectus and corrected in a final, amended or supplemented Prospectus provided
to such Holder prior to the confirmation of the sale of the Registrable
Securities to the Person asserting any such Loss, and such Holder failed to
deliver a copy of the final, amended or supplemented Prospectus at or prior to
such confirmation of sale in any case in which such delivery is required by the
Securities Act, or (iii) in the case of a sale directly by a Holder of
Registrable Securities (including a sale of such Registrable Securities through
any underwriter retained by such Holder engaging in a distribution solely on
behalf of such Holder), to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was contained in a final
Prospectus but was corrected in an amended or supplemented final Prospectus
provided to such Holder prior to the confirmation of the sale of the Registrable
Securities to the Person asserting any such Loss, and such Holder failed to
deliver a copy of the amended or supplemented final Prospectus at or prior to
such confirmation of sale in any case in which such delivery is required by the
Securities Act. The indemnity provided in this Section 7.1 shall remain in full
force and effect regardless of any investigation made by or on behalf of such
Holder or any Indemnified Person and shall survive the transfer or disposal of
the Registrable Securities by the Holder or any such other Persons. The Company
will also indemnify, if applicable and if requested, underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in any distribution pursuant hereto, their officers and directors
and each Person who controls such Persons (within the meaning of the Securities
Act and the Exchange Act) to the same extent as provided above with respect to
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the indemnification of the Indemnified Persons. This indemnity shall be in
addition to any liability the Company may otherwise have.
7.2 INDEMNIFICATION BY THE HOLDERS. In the event of any registration of
any Registrable Securities under the Securities Act pursuant to this Agreement,
each Holder shall, severally and not jointly, indemnify and hold harmless (in
the same manner and to the same extent as set forth in Section 7.1 hereof) the
Company, each director and officer of the Company and each other Person, if any,
who controls the Company within the meaning of the Securities Act and the
Exchange Act (each such Person being sometimes referred to as a "Company
Indemnified Person"), against Losses to which the Company or any such Persons
may become subject under the Securities Act or otherwise, to the extent that
such Losses (or related actions or proceedings) arise out of or are based upon
(A) any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement in which Registrable Securities were
included for registration under the Securities Act, or any preliminary
Prospectus or any final Prospectus included in such Registration Statement (or
any amendment or supplement to such Registration Statement or Prospectus), or
(B) any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, (in the case
of the Prospectus and any preliminary Prospectus in light of the circumstances
under which they were made) not misleading, in each case, only to the extent
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in such Registration Statement, preliminary Prospectus, final
Prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Holder, or on such Holder's
behalf, specifically for inclusion, respectively, in such Registration
Statement, preliminary Prospectus, final Prospectus, amendment or supplement;
and each Holder agrees to reimburse such Company Indemnified Person for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that a Holder's aggregate liability under this
Agreement shall be limited to an amount equal to the net proceeds (after
deducting the underwriter's discount and expenses) received by such Holder from
the sale of such Holder's Registrable Securities pursuant to such registration.
7.3 NOTICE OF CLAIMS, ETC. Promptly after receipt by any Person entitled
to indemnity under Section 7.1 or 7.2 hereof (an "Indemnitee") of notice of the
commencement of any action or proceeding (an "Action") involving a claim
referred to in such Sections, such Indemnitee shall, if indemnification is
sought against an indemnifying party, give written notice to such indemnifying
party of the commencement of such Action; provided, however, that the failure of
any Indemnitee to give said notice shall not relieve the indemnifying party of
its obligations under Sections 7.1 or 7.2 hereof, except to the extent that the
indemnifying party is actually prejudiced by such failure. In case an Action is
brought against any Indemnitee, and such Indemnitee notifies the indemnifying
party of the commencement thereof, each indemnifying party shall be entitled to
participate therein and, to the extent it elects to do so by written notice
delivered to the Indemnitee promptly after receiving the aforesaid notice, to
assume the defense thereof with counsel selected by such Indemnitee and
reasonably satisfactory to such indemnifying party. Notwithstanding the
foregoing, the Indemnitee shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
such Indemnitee, unless (i) the employment of such counsel shall have been
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall not have
-26-
employed counsel to take charge of the defense of such Action, reasonably
promptly after notice of the commencement thereof or (iii) such Indemnitee
reasonably shall have concluded that there may be defenses available to it which
are different from or additional to those available to the indemnifying party
which, if the indemnifying party and the Indemnitee were to be represented by
the same counsel, could result in a conflict of interest for such counsel or
materially prejudice the prosecution of the defenses available to such
Indemnitee. If any of the events specified in clauses (i), (ii) or (iii) of the
preceding sentence shall have occurred or otherwise shall be applicable, then
the fees and expenses of counsel for the Indemnitee shall be borne by the
indemnifying party; it being understood, however, that the indemnifying party
shall not, in connection with any one such claim or proceeding, or separate but
substantially similar or related claims or proceedings arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for all Indemnitees hereunder, or for fees and expenses
that are not reasonable. Anything in this Section 7.3 to the contrary
notwithstanding, an indemnifying party shall not be liable for the settlement of
any action effected without its prior written consent (which consent shall not
unreasonably be withheld or delayed), but if settled with the prior written
consent of the indemnifying party, or if there shall be a final judgment adverse
to the Indemnitee, the indemnifying party agrees to indemnify the Indemnitee
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior consent of the Indemnitee (which
consent shall not be unreasonably withheld or delayed), consent to entry of any
judgment or enter into any settlement or compromise, with respect to any pending
or threatened action or claim in respect of which the Indemnitee would be
entitled to indemnification or contribution hereunder (whether or not the
Indemnitee is an actual party to such action or claim), which (i) does not
include as a term thereof the unconditional release of the Indemnitee from all
liability in respect of such action or claim or (ii) includes an admission of
fault, culpability or a failure to act by or on behalf of the Indemnitee.
7.4 CONTRIBUTION. If the indemnification provided for in this Article VII
is unavailable or insufficient to hold harmless an Indemnitee in respect of any
Losses, then each indemnifying party shall, in lieu of indemnifying such
Indemnitee, contribute to the amount paid or payable by such Indemnitee as a
result of such Losses in such proportion as appropriate to reflect the relative
fault of the indemnifying party, on the one hand, and the Indemnitee, on the
other hand, which relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by such Indemnitee or indemnifying party, and such parties' relative
intent, knowledge, access to information and opportunity to correct or mitigate
the damage in respect of or prevent the untrue statement or omission giving rise
to such indemnification obligation; provided, however, that a Holder's aggregate
liability under this Section 7.4 shall be limited to an amount equal to the net
proceeds (after deducting the underwriter's discount but before deducting
expenses) received by such Holder from the sale of such Holder's Registrable
Securities pursuant to such registration. The parties hereto agree that it would
not be just and equitable if contributions pursuant to this Section 7.4 were
determined solely by pro rata allocation or by any other method of allocation
which did not take account of the equitable considerations referred to above. 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 is not guilty of such fraudulent misrepresentation.
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7.5 INDEMNIFICATION PAYMENTS; OTHER REMEDIES.
(a) Periodic payments of amounts required to be paid pursuant to
this Article VII shall be made during the course of the investigation or
defense, as and when reasonably itemized bills therefor are delivered to the
indemnifying party in respect of any particular Loss as incurred.
(b) The remedies provided in this Article VII are not exclusive and
shall not limit any rights or remedies that may otherwise be available to an
Indemnitee at law or in equity.
ARTICLE VIII
REGISTRATION EXPENSES.
In connection with any offerings pursuant to a Registration Statement
hereunder, the Company shall pay (i) all registration and filing fees, (ii) all
fees and expenses of compliance with state securities or "blue sky" laws
(including reasonable fees and disbursements of counsel in connection with "blue
sky" laws qualifications of the Registrable Securities), (iii) printing and
duplicating expenses, (iv) internal expenses of the Company (including all
salaries and expenses of its officers and employees performing legal or
accounting duties), (v) fees and disbursements of counsel for the Company and
fees and expenses of independent certified public accountants retained by the
Company (including the expenses of any comfort letters or costs associated with
the delivery by independent certified public accountants of a comfort letter or
comfort letters or with any required special audits), (vi) the reasonable fees
and expenses of any special experts retained by the Company, (vii) fees and
expenses in connection with any review of underwriting arrangements by the NASD,
including fees and expenses of any "qualified independent underwriter" in
connection with an Underwritten Offering, (viii) reasonable fees and expenses of
not more than one counsel for the Participating Holders (as a group), (ix) fees
and expenses in connection with listing, if applicable, the Registrable
Securities on a securities exchange or the Nasdaq National Market, and (x) all
duplicating, distribution and delivery expenses. In connection any offerings
pursuant to a Registration Statement, each Participating Holder shall pay (i)
any underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities by such Participating Holder in connection with an
Underwritten Offering; (ii) any out-of-pocket expenses of such Participating
Holder including any fees and expenses of counsel to such Participating Holder
(other than as set forth in clause (viii) of the immediately preceding
sentence); and (iii) any applicable transfer taxes.
ARTICLE IX
RULE 144
With a view to making available to the Holders the benefits of Rule 144
and any other similar rule or regulation of the Commission that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, (i) New Loral covenants
that, from and after the New Loral Shelf Filing Deadline and for so long as it
is subject to Section 13 or 15(d) of the Exchange Act thereafter, and (ii) New
Skynet covenants that, from and after the time that and for so long as it is
subject to Section 13 or 15(d)
-28-
of the Exchange Act, it shall use its reasonable efforts to file in a timely
manner all reports required to be filed by it under the Exchange Act, and that
it shall comply with the requirements of Rule 144(c), as such Rule may be
amended from time to time (or any similar rule or regulation hereafter adopted
by the Commission), regarding the availability of current public information to
the extent required to enable any Holder to sell Registrable Securities without
registration under the Securities Act pursuant to the resale provisions of Rule
144 (or any similar rule or regulation). Upon the request of any Holder, the
Company shall promptly deliver to such Holder a written statement as to whether
it has complied with such requirements and, upon such Holder's compliance with
the applicable provisions of Rule 144 and its delivery of such documents and
certificates as the Company's transfer agent may reasonably request in
connection therewith, shall take such reasonable action as may be required
(including using its reasonable efforts to cause legal counsel to issue an
appropriate opinion) to cause its transfer agent to effectuate any transfer of
Registrable Securities properly requested by such Holder, in accordance with the
terms and conditions of Rule 144.
ARTICLE X
MISCELLANEOUS
10.1 NOTICE GENERALLY. Any notice, demand, request, consent, approval,
declaration, delivery or other communication hereunder to be made pursuant to
the provisions of this Agreement shall be deemed sufficiently given or made if
in writing and signed by the party making the same, and either delivered in
person with receipt acknowledged or sent by registered or certified mail, return
receipt requested, postage prepaid, or by telecopy and confirmed by telecopy
answerback, addressed, if to any Holder, at the address of such Holder as set
forth on Exhibit B hereto:
with copies to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and if to New Loral or New Skynet, at:
Loral Space & Communications Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Chief Financial Officer
Telephone:
Facsimile:
with copies to:
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Loral Space & Communications Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Telephone:
Facsimile:
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, telecopied and confirmed by telecopy
answerback or three (3) Business Days after the same shall have been deposited
in the United States mail (by registered or certified mail, return receipt
requested, postage prepaid), whichever is earlier.
10.2 SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by any
Holder other than to a Permitted Assignee (provided, however, that such
Permitted Assignee agrees in writing to be bound by the terms of this
Agreement), whereupon such Permitted Assignee shall be deemed to be a Holder for
all purposes of this Agreement. Subject to the preceding sentence, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and all successors to New Loral, New Skynet and the Holders.
10.3 AMENDMENTS; WAIVERS. Any provision of this Agreement affecting a
party may be amended or modified only by a written agreement signed by each such
affected party; provided, however that any approval required by the Holders of a
specified class of Registrable Securities shall be effected by the Holders of a
majority of the applicable class of Registrable Securities then outstanding. No
provision of this Agreement affecting a party may be waived except pursuant to a
writing signed by each such affected party; provided, however that any approval
required by the Holders of a specified class of Registrable Securities shall be
effected by the Holders of a majority of the applicable class of Registrable
Securities then outstanding.
10.4 INJUNCTIVE RELIEF. It is hereby agreed and acknowledged that it will
be impossible to measure in money the damages that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them and
that in the event of any such failure, an aggrieved Person will be irreparably
damaged and will not have an adequate remedy at law. Any such Person shall,
therefore, be entitled (in addition to any other remedy to which it may be
entitled in law or in equity) to injunctive relief, including, without
limitation, specific performance, to enforce such obligations, and if any action
should be brought in equity to enforce any of the provisions of this Agreement,
none of the parties hereto shall raise the defense that there is an adequate
remedy at law.
10.5 ATTORNEY'S FEES. In any action or proceeding brought to enforce any
provision of this Agreement or where any provision hereof is validly asserted as
a defense, the successful party shall, to the extent permitted by applicable
law, be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
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10.6 TERMINATION OF REGISTRATION RIGHTS; SURVIVAL. All rights granted
under this Agreement shall terminate with respect to any Holder at such time as
such Holder ceases to own any Registrable Securities and this entire Agreement
shall terminate when all Holders cease to own any Registrable Securities. The
provisions of Articles VII, VIII and X shall survive any termination of this
Agreement.
10.7 SEVERABILITY. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
10.8 HEADINGS. The headings used in this Agreement are for the convenience
of reference only and shall not, for any purpose, be deemed a part of this
Agreement.
10.9 GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED
EXCLUSIVELY BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK. Each party to this Agreement hereby irrevocably agrees that any
legal action or proceeding arising out of or relating to this Agreement or any
agreements or transactions contemplated hereby may be brought in the courts of
the State of New York or of the United States of America for the Southern
District of New York and hereby expressly submits to the personal jurisdiction
and venue of such courts for the purposes thereof and expressly waives any claim
of improper venue and any claim that such courts are an inconvenient forum. Each
party hereby irrevocably consents to the service of process of any of the
aforementioned courts in any such suit, action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to the address
set forth in Section 10.1 hereof, such service to become effective ten (10) days
after such mailing.
10.10 COUNTERPARTS AND FACSIMILE EXECUTION. This Agreement may be executed
in any number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together
constitute one and the same instrument. This Agreement may be executed by
facsimile signatures.
10.11 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between New Loral, New Skynet and the Holders in respect of the
subject matter contained herein. This Agreement supersedes all prior agreements
and understandings between the parties with respect to the subject matter of
this Agreement.
10.12 FURTHER ASSURANCES. Each of the parties hereto shall execute such
documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed and delivered as of the date first above
written.
LORAL SPACE & COMMUNICATIONS INC.
By: /s/ Xxx Xxxx
__________________________________
Name:
Title:
LORAL SKYNET CORPORATION
By: /s/ Xxx Xxxx
__________________________________
Name:
Title:
MHR CAPITAL PARTNERS (500) LP
MHR CAPITAL PARTNERS (100) LP
BY: MHR Advisors LLC, general partner
By: /s/ Xxx Xxxxxxxxx
__________________________________
Name: Xxx Xxxxxxxxx
Title: Authorized Signatory
MHR INSTITUTIONAL PARTNERS II LP
MHR INSTITUTIONAL PARTNERS IIA LP
BY: MHR Institutional Advisors II LLC,
general partner
By: /s/ Xxx Xxxxxxxxx
__________________________________
Name: Xxx Xxxxxxxxx
Title: Authorized Signatory
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MHR INSTITUTIONAL PARTNERS LP
MHRM LP
MHRA LP
BY: MHR Institutional Advisors LLC,
general partner
By: /s/ Xxx Xxxxxxxxx
__________________________________
Name: Xxx Xxxxxxxxx
Title: Authorized Signatory
-33-
EXHIBIT A
PLAN OF DISTRIBUTION
The selling securityholders, or their pledgees, donees, transferees, or
any of their successors in interest selling shares received from a named selling
securityholder as a gift, partnership distribution or other non-sale-related
transfer after the date of this prospectus (all of whom may be selling
securityholders), may sell the securities from time to time on any stock
exchange or automated interdealer quotation system on which the securities are
listed, in the over-the-counter market, in privately negotiated transactions or
otherwise, at fixed prices that may be changed, at market prices prevailing at
the time of sale, at prices related to prevailing market prices or at prices
otherwise negotiated. The selling securityholders may sell the securities by one
or more of the following methods, without limitation:
(a) block trades in which the broker or dealer so engaged shall attempt
to sell the securities as agent but may position and resell a
portion of the block as principal to facilitate the transaction;
(b) purchases by a broker or dealer as principal and resale by the
broker or dealer for its own account pursuant to this prospectus;
(c) an exchange distribution in accordance with the rules of any stock
exchange on which the securities are listed;
(d) ordinary brokerage transactions and transactions in which the broker
solicits purchases;
(e) privately negotiated transactions;
(f) short sales;
(g) through the writing of options on the securities, whether or not the
options are listed on an options exchange;
(h) through the distribution of the securities by any selling
securityholder to its partners, members or stockholders;
(i) one or more underwritten offerings on a firm commitment or best
efforts basis; and
(j) any combination of any of these methods of sale.
The selling securityholders may also transfer the securities by gift. The
issuer does not know of any arrangements by the selling securityholders for the
sale of any of the securities.
The selling securityholders may engage brokers and dealers, and any
brokers or dealers may arrange for other brokers or dealers to participate in
effecting sales of the securities. These brokers, dealers or underwriters may
act as principals, or as an agent of a selling securityholder.
A-1
Broker-dealers may agree with a selling securityholder to sell a specified
number of the securities at a stipulated price per security. If the
broker-dealer is unable to sell securities acting as agent for a selling
securityholder, it may purchase as principal any unsold securities at the
stipulated price. Broker-dealers who acquire securities as principals may
thereafter resell the securities from time to time in transactions on any stock
exchange or automated interdealer quotation system on which the securities are
then listed, at prices and on terms then prevailing at the time of sale, at
prices related to the then-current market price or in negotiated transactions.
Broker-dealers may use block transactions and sales to and through
broker-dealers, including transactions of the nature described above. The
selling securityholders may also sell the securities in accordance with Rule 144
under the Securities Act of 1933, as amended, rather than pursuant to this
prospectus, regardless of whether the securities are covered by this prospectus.
From time to time, one or more of the selling securityholders may pledge,
hypothecate or grant a security interest in some or all of the securities owned
by them. The pledgees, secured parties or persons to whom the securities have
been hypothecated shall, upon foreclosure in the event of default, be deemed to
be selling securityholders. As and when a selling securityholder takes such
actions, the number of securities offered under this prospectus on behalf of
such selling securityholder shall decrease. The plan of distribution for that
selling securityholder's securities shall otherwise remain unchanged. In
addition, a selling securityholder may, from time to time, sell the securities
short, and, in those instances, this prospectus may be delivered in connection
with the short sales and the securities offered under this prospectus may be
used to cover short sales.
To the extent required under the Securities Act of 1933, as amended, the
aggregate amount of selling securityholders' securities being offered and the
terms of the offering, the names of any agents, brokers, dealers or underwriters
and any applicable commission with respect to a particular offer shall be set
forth in an accompanying prospectus supplement. Any underwriters, dealers,
brokers or agents participating in the distribution of the securities may
receive compensation in the form of underwriting discounts, concessions,
commissions or fees from a selling securityholder and/or purchasers of selling
securityholders' securities for whom they may act (which compensation as to a
particular broker-dealer might be in excess of customary commissions).
The selling securityholders and any underwriters, brokers, dealers or
agents that participate in the distribution of the securities may be deemed to
be "underwriters" within the meaning of the Securities Act of 1933, as amended,
and any discounts, concessions, commissions or fees received by them and any
profit on the resale of the securities sold by them may be deemed to be
underwriting discounts and commissions.
A selling securityholder may enter into hedging transactions with
broker-dealers and the broker-dealers may engage in short sales of the
securities in the course of hedging the positions they assume with that selling
securityholder, including, without limitation, in connection with distributions
of the securities by those broker-dealers. A selling securityholder may enter
into option or other transactions with broker-dealers that involve the delivery
of the securities offered hereby to the broker-dealers, who may then resell or
otherwise transfer those securities. A selling securityholder may also loan or
pledge the securities offered hereby to a broker-dealer
A-2
and the broker-dealer may sell the securities offered hereby so loaned or upon a
default may sell or otherwise transfer the pledged securities offered hereby.
A selling securityholder may enter into derivative transactions with third
parties, or sell securities not covered by this prospectus to third parties in
privately negotiated transactions. If the applicable prospectus supplement
indicates, in connection with those derivatives, the third parties may sell
securities covered by this prospectus and the applicable prospectus supplement,
including in short sale transactions. If so, the third party may use securities
pledged by the selling securityholder or borrowed from the selling
securityholder or others to settle those sales or to close out any related open
borrowings of stock, and may use securities received from the selling
securityholder in settlement of those derivatives to close out any related open
borrowings of stock. The third party in such sale transactions shall be an
underwriter and, if not identified in this prospectus, shall be identified in
the applicable prospectus supplement (or a post-effective amendment).
The selling securityholders and other persons participating in the sale or
distribution of the securities shall be subject to applicable provisions of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder, including Regulation M. This regulation may limit the timing of
purchases and sales of any of the securities by the selling securityholders and
any other person. The anti-manipulation rules under the Securities Exchange Act
of 1934 may apply to sales of securities in the market and to the activities of
the selling securityholders and their affiliates. Furthermore, Regulation M may
restrict the ability of any person engaged in the distribution of the securities
to engage in market-making activities with respect to the particular securities
being distributed for a period of up to five business days before the
distribution. These restrictions may affect the marketability of the securities
and the ability of any person or entity to engage in market-making activities
with respect to the securities.
The issuer has agreed to indemnify in certain circumstances the selling
securityholders and any brokers, dealers and agents (who may be deemed to be
underwriters), if any, of the securities covered by the registration statement,
against certain liabilities, including liabilities under the Securities Act of
1933, as amended. The selling securityholders have agreed to indemnify us in
certain circumstances against certain liabilities, including liabilities under
the Securities Act of 1933, as amended.
The securities offered hereby were originally issued to the selling
securityholders pursuant to an exemption from the registration requirements of
the Securities Act of 1933, as amended. The issuer agreed to register the
securities under the Securities Act of 1933, as amended, and to keep the
registration statement of which this prospectus is a part effective for a
specified period of time. The issuer has agreed to pay all expenses in
connection with this offering, including the fees and expenses of counsel to the
selling securityholders, but not including underwriting discounts, concessions,
commissions or fees of the selling securityholders.
The issuer shall not receive any proceeds from sales of any securities by
the selling securityholders.
A-3
The issuer cannot assure you that the selling securityholders shall sell
all or any portion of the securities offered hereby.
A-4
EXHIBIT B
HOLDERS NOTICE INFORMATION
1. MHR Capital Partners LP
MHR Capital Partner (100) LP
MHR Institutional Partners LP
MHR Institutional Partners II LP
MHR Institutional Partners IIA LP
MHRM LP
MHRA LP
c/o MHR Fund Management LLC
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
B-1
