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EXHIBIT 4.6
[Execution Copy]
ORBITAL SCIENCES CORPORATION
REGISTRATION RIGHTS AGREEMENT
Dated as of
September 16, 1997
Deutsche Xxxxxx Xxxxxxxx Inc.
X.X. Xxxxxx Securities Inc.
c/o Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Orbital Sciences Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell to Deutsche Xxxxxx Xxxxxxxx Inc. and
X.X. Xxxxxx Securities Inc. (the "Initial Purchasers") upon the terms set forth
in a purchase agreement dated September 10, 1997 (the "Purchase Agreement")
between the Initial Purchasers and the Company, its 5% Convertible Subordinated
Notes due 2002. As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Company agrees with the Initial Purchasers,
(i) for the benefit of the Initial Purchasers and (ii) for the benefit of the
Holders (as defined below) from time to time of the Registrable Securities (as
defined below), including the Initial Purchasers, as follows:
1. DEFINITIONS. Capitalized terms used herein without
definition shall have their respective meanings set forth in or pursuant to the
Purchase Agreement or the Offering Memorandum, dated September 11, 1997, in
respect of the Securities. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Additional Interest" has the meaning set forth in Section
2(c).
"Affiliate" of any specified Person means any other Person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified Person. For purposes of this definition,
control of a Person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by
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contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" shall mean this Registration Rights Agreement as
the same may be amended, supplemented or modified from time to time in
accordance with the terms hereof.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the common stock, $0.01 par value, of
the Company and any other shares of common stock as may constitute "Common
Stock" for purposes of the Indenture.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section
2(b) hereof.
"Exchange Act" means the United States Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Holder" shall mean any person that is the record owner of
Registrable Securities (and includes any person that has a beneficial interest
in any Registrable Security in book-entry form).
"Indenture" shall mean the Indenture, dated as of September
16, 1997, between the Company and the Trustee thereunder, pursuant to which the
Securities are being issued, as amended, modified or supplemented from time to
time in accordance with the terms thereof.
"Issue Date" means September 16, 1997.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an
underwritten offering, if any, as set forth in Section 6 hereof.
"Person" shall mean an individual, partnership, limited
liability corporation, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" means the prospectus, including all material or
documents incorporated by reference therein, included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities.
"Registrable Security" shall mean any Restricted Security and
any share of Common Stock issuable upon conversion thereof except any such
Restricted Security or share of Common Stock which (i) has been effectively
registered under the Securities Act and sold in a
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manner contemplated by the applicable Registration Statement and related
Prospectus, (ii) has been transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto), or is transferable
pursuant to paragraph (k) of such Rule 144 (or any successor provision
thereto), or (iii) has otherwise been transferred and a new security or share
of Common Stock not subject to transfer restrictions under the Securities Act
has been delivered by or on behalf of the Company in accordance with the
Indenture.
"Registration Default" has the meaning set forth in Section
2(c) hereof.
"Restricted Securities" shall mean all Securities required
pursuant to the Indenture to bear any Restricted Securities Legend (as defined
in the Indenture).
"Rule 144" shall mean Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any successor rule or regulation.
"Rule 144A" shall mean Rule 144A promulgated by the
Commission pursuant to the Securities Act, as such Rule may be amended from
time to time, or any successor rule or regulation.
"Rule 415" shall mean Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any successor rule or regulation.
"Rule 430A" shall mean Rule 430A promulgated by the
Commission pursuant to the Securities Act, as such Rule may be amended from
time to time, or any successor rule or regulation.
"Securities" shall mean the $100,000,000 aggregate principal
amount of 5% Convertible Subordinated Notes due 2002 of the Company being
issued pursuant to the Indenture.
"Securities Act" means the United States Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
"Shelf Registration" means a registration effected pursuant
to Section 2 hereof.
"Shelf Registration Statement" means a shelf registration
statement of the Company pursuant to the provisions of Section 2 hereof filed
with the Commission which covers some or all the Registrable Securities, as
applicable, on an appropriate form under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material or documents incorporated by reference
therein.
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"Special Counsel" means any special counsel to the Holders,
determined as provided in Section 4 hereof.
"Trust Indenture Act" has the meaning set forth in Section
1.1 of the Indenture.
"Trustee" means the Trustee under the Indenture.
"underwriter" means any underwriter of Registrable Securities
in connection with an offering thereof under a Shelf Registration Statement.
2. SHELF REGISTRATION.
(a) The Company shall use its reasonable efforts to file with
the Commission, within 90 calendar days following the Issue Date of the
Securities, a Shelf Registration Statement relating to the offer and sale of
the Registrable Securities by Holders that comply with the requirements of
Section 3(n) hereof from time to time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf Registration
Statement and, thereafter, shall use its reasonable efforts to cause such Shelf
Registration Statement to be declared effective under the Securities Act as
soon as practicable, and in any event within 180 calendar days after the Issue
Date.
(b) The Company shall use its reasonable efforts:
(i) Subject to Section 2(a), to keep the Shelf
Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period
that terminates upon the earlier to occur of (x) two years from the
Issue Date of the Securities or (y) the occurrence of any one of the
following events: (A) when all the Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement, (B) when all shares of Common Stock issued
upon conversion of any such Securities that had not been sold pursuant
to the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement and (C) when there shall cease to be
outstanding Registrable Securities (such period described above in
clauses (x) and (y) being herein called the "Effectiveness Period");
and
(ii) After the effectiveness of the Shelf Registration
Statement, promptly upon the request of any Holder that complies with
the requirements of Section 3(n) hereof, to take any action reasonably
necessary to register the sale of any Registrable Securities of such
Holder and to identify such Holder as a selling securityholder.
The Company shall be deemed not to have used its reasonable efforts to keep the
Shelf Registration Statement effective during the Effectiveness Period if the
Company voluntarily takes any action that would result in Holders of
Registrable Securities covered thereby not being able to offer and sell any
such Registrable Securities during the Effectiveness Period, unless (i) such
Company action is required by applicable law, (ii) the continued effectiveness
of the Shelf Registration Statement would require the Company to disclose a
material financing, acquisition or other transaction, and the Board of
Directors (or where due to the nature of the circumstances, timely consultation
with the Board of Directors is not, in the good faith determination of the
Chairman of the Board, the Chief Executive Officer or the Chief Financial
Officer of the Company, possible, then such officer) shall have determined in
good faith that such disclosure is not in the best interests of the Company and
the holders of its outstanding Common Stock, or (iii) the Board of Directors
(or where due to the nature of the
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circumstances, timely consultation with the Board of Directors is not, in the
good faith determination of the Chairman of the Board, the Chief Executive
Officer or the Chief Financial Officer of the Company, possible, then such
officer) shall have determined in good faith that there is a valid business
purpose or reason for such suspension, and (x) in the case of clause (i) above,
the Company thereafter promptly complies with the requirements of paragraph
3(j) below and (y) in the case of any clauses (i), (ii) or (iii) the Company
complies with its obligations, if any, to pay Additional Interest as described
in paragraph (c) below.
(c) (1) If (i) on or prior to 90 days following the Issue
Date a Shelf Registration Statement has not been filed with the Commission or
(ii) on or prior to the 180th day following the Issue Date, such Shelf
Registration Statement is not declared effective (each, a "Registration
Default"), additional interest ("Additional Interest") will accrue on the
Restricted Securities from and including the date following such Registration
Default until such time as such Shelf Registration Statement is filed or such
Shelf Registration Statement is declared effective, as the case may be.
Additional Interest will be paid semi-annually in arrears, with the first
semi-annual payment due on the first Interest Payment Date under the Indenture
following the date on which such Additional Interest begin to accrue, and will
accrue at a rate per annum equal to an additional one-quarter of one percent
(0.25%) of the principal amount to and including the 90th day following such
Registration Default and an aggregate of one-half of one percent (0.50%)
thereof from and after the 91st day following such Registration Default. In the
event that the Shelf Registration Statement ceases to be effective for more
than 90 days or the Company suspends the use of the prospectus which is a part
thereof for more than 90 days, whether or not consecutive, during any 12-month
period, then the interest rate borne by the Restricted Securities will increase
by one-half of one percent (0.50%) per annum from the 91st day of the
applicable 12-month period such Shelf Registration Statement ceases to be
effective or the Company suspends the use of the prospectus which is a part
thereof, as the case may be, until the earlier of such time as (i) the Shelf
Registration Statement again becomes effective, (ii) the use of the related
prospectus ceases to be suspended or (iii) the Effectiveness Period expires.
Following the cure of all Registration Defaults relating to any Restricted
Securities, the accrual of Additional Interest with respect to such Restricted
Securities will cease (without in any way limiting the effect of any subsequent
Registration Default). In no event shall the Company be required to pay
Additional Interest in excess of the applicable maximum amount of one-half of
one percent (0.50%) set forth above, regardless of whether one or multiple
Registration Defaults exist.
(2) Additional Interest on the Restricted Securities
shall be paid by the Company to the holders of record of such Restricted
Securities on each Interest Payment Date (as defined in the Indenture) in the
same manner as for interest on such Restricted Securities as provided in the
form of Securities set forth in Section 2.2 of the Indenture.
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(3) All the Company's obligations set forth in this
Section 2(c) which are unsatisfied to any extent with respect to any Restricted
Security at the time such security ceases to be a Restricted Security shall
survive until such time as all such obligations with respect to such security
have been satisfied in full (notwithstanding the earlier termination of this
Agreement).
(4) Any payments due and payable pursuant to this Section
2(c) shall be subordinated to Senior Indebtedness (as defined in the Indenture)
to the extent and in the manner set forth in the Indenture.
(5) The rights of the recordholders of Restricted
Securities to Additional Interest as set forth in this Section 2(c) is not
intended to be exclusive of any other right or remedy, and shall be in addition
to every other right and remedy given hereunder or under the Indenture or now
or hereafter existing at law or in equity or otherwise.
3. REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to the Special Counsel and
Holders (if requested and if such Holders have provided the Company in
writing their address), prior to the filing thereof with the
Commission, a copy of any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein and shall use its reasonable efforts to
reflect in each such document, when so filed with the Commission, such
comments as the Special Counsel and Holders reasonably and in a timely
fashion may propose and to which the Company does not reasonably
object.
(b) The Company shall take such action as may be necessary so
that (i) any Shelf Registration Statement and any amendment thereto
and any Prospectus forming part thereof and any amendment or
supplement thereto (and each report or other document incorporated
therein by reference in each case) complies in all material respects
with the Securities Act and the Exchange Act, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any
Prospectus forming part of any Shelf Registration Statement, and any
amendment or supplement to such Prospectus, does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchasers, the
Holders (who have provided the Company with their respective
addresses) and the Special Counsel and, if requested by the Initial
Purchasers or any such Holder, confirm such advice in writing:
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(i) when a Shelf Registration Statement and
any amendment thereto has been filed with the Commission and
when the Shelf Registration Statement or any post effective
amendment thereto has become effective; and
(ii) other than to the Holders, of any request
by the Commission for amendments or supplements to the Shelf
Registration Statement or the Prospectus included therein or
for additional information.
(2) The Company shall advise the Special Counsel and
the Holders (who have provided the Company with their respective
addresses) and, if requested by the Special Counsel or any such
Holder, confirm such advice in writing of:
(i) the issuance by the Commission of any stop
order suspending effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) the receipt by the Company of any notification
with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or
the initiation of any proceeding for such purpose; and
(iii) the happening of any event that requires
the making of any changes in the Shelf Registration Statement
or the Prospectus so that, as of such date, the Shelf
Registration Statement and the Prospectus do not contain an
untrue statement of a material fact and do not omit to state
a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus,
in light of the circumstances under which they were made) not
misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the
requisite changes have been made).
(d) The Company shall use its reasonable efforts to prevent
the issuance, and if issued to obtain the withdrawal at the earliest
possible time of any order suspending the effectiveness of any Shelf
Registration Statement.
(e) The Company shall furnish to the Special Counsel and each
Holder (if requested in writing) with respect to a Shelf Registration
Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Special
Counsel and/or Holder so requests, all reports, other documents and
exhibits (including those incorporated by reference).
(f) The Company shall use its reasonable efforts to obtain
"cold comfort" letters and updates thereof from the independent public
accountants of the Company (and, if necessary, any other independent
public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Shelf Registration
Statement), addressed (where reasonably possible) to each selling
Holder of Restricted Securities or the
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Common Stock issued upon conversion thereof registered thereunder
(provided such Holder so requests and furnishes the accountants with
such representations as the accountants customarily require in similar
situations) and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with a shelf registration statement.
(g) The Company shall, during the Effectiveness Period,
deliver to each Holder who has complied with Section 3(n) hereof,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement
and any amendment or supplement thereto as such Holder may reasonably
request, and the Company consents (except during the continuance of
any event described in Section 3(c)(2)(iii)) to the use of the
Prospectus or any amendment or supplement thereto by each of the
Holders in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement
thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant
to any Shelf Registration Statement, the Company shall register or
qualify or cooperate with the Special Counsel and Holders who have
complied with Section 3(n) hereof in connection with the registration
or qualification of such Registrable Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any
such Holders reasonably request in writing and do any and all other
acts or things necessary or advisable to enable the offer and sale in
such jurisdictions of the Registrable Securities covered by such Shelf
Registration Statement; provided, however, that in no event shall the
Company be obligated to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise
be required to so qualify but for this Section 3(h), (ii) file any
general consent to service of process in any jurisdiction where it is
not as of the date hereof then so subject or (iii) subject itself to
taxation in any jurisdiction if it is not so subject.
(i) Unless any Registrable Securities shall be in book-entry
only form, the Company shall cooperate with the Holders who have
complied with Section 3(n) hereof and, as applicable, the Trustee and
the transfer agent for the Common Stock, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold pursuant to any Shelf Registration Statement
free of any restrictive legends and in such permitted denominations
and registered in such names as such Holders may request in connection
with the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraph 3(c)(2)(iii) above, the Company shall promptly prepare a
post-effective amendment to any Shelf Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to purchasers of
the Registrable Securities included therein, the Prospectus will not
include an untrue statement of a material fact or omit to state any
material fact necessary to make the
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statements therein, in the light of the circumstances under which they
were made, not misleading. If the Company notifies the Holders (who
have provided the Company with their respective addresses) of the
occurrence of any event contemplated by paragraph 3(c)(2)(iii) above,
such Holders shall suspend the use of the Prospectus until the
requisite changes to the Prospectus or any other filings have been
made.
(k) Not later than the effective date of any Shelf
Registration Statement hereunder, the Company shall obtain a CUSIP
number for the Securities registered under such Shelf Registration
Statement.
(l) The Company shall make generally available to its
securityholders or otherwise provide in accordance with Section 11(a)
of the Securities Act and Rule 158 thereunder as soon as practicable
after the effective date of the applicable Shelf Registration
Statement an earning statement satisfying the provisions of Section
11(a) of the Securities Act.
(m) The Company shall cause the Indenture and the Securities
to be qualified under the Trust Indenture Act in a timely manner; and
in connection with such qualification, the Company shall cooperate
with the Trustee under the Indenture and the Holders (as defined in
the Indenture) to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the
terms of the Trust Indenture Act; and the Company shall execute and
use all reasonable efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner.
(n) With respect to a Shelf Registration Statement that is to
include a Holder's Registrable Securities, such Holder shall furnish
to the Company such information regarding the Holder and the
distribution of Registrable Securities held by such Holder as may be
required by applicable law or regulation for inclusion in such Shelf
Registration Statement (including, without limitation, the information
required by Item 507 of Regulation S-K of the Securities Act), and the
Company may exclude from such registration the Registrable Securities
of any Holder that fails to furnish such information within a
reasonable time after receiving such request unless, and until such
time as, such information is furnished by such Holder. Each such
Holder agrees, by the acquisition of Restricted Securities, and agrees
to confirm such agreement in writing upon request of the Company, to
notify the Company as promptly as practicable of any inaccuracy or
change in information previously furnished by such Holder to the
Company or of the occurrence of any event as a result of which any
Prospectus relating to such Shelf Registration Statement contains or
would contain an untrue statement of a material fact regarding such
Holder or such Holder's intended method of distribution of such
Restricted Securities, or omits to state any material fact regarding
such Holder or such Holder's intended method of distribution of such
Restricted Securities, necessary to make the statements therein, in
light of the circumstances then existing, not misleading and promptly
to furnish to the Company any additional information required to
correct and update any previously
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furnished information or required so that such Prospectus shall not
contain, with respect to such Holder or the distribution of such
Restricted Securities, an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in
light of the circumstances then existing, not misleading.
(o) The Company shall enter into such customary agreements
(including an underwriting agreement in customary form) to take all
other appropriate actions in order to expedite or facilitate the
registration or the disposition of the Registrable Securities, and in
connection therewith, if an underwriting agreement is entered into
pursuant to an underwritten offering in accordance with the provisions
of Section 6, cause the same to contain indemnification and
contribution provisions and procedures substantially similar to those
set forth in Section 5 (or such other provisions and procedures
acceptable to the Managing Underwriters, if any) with respect to all
parties to be indemnified pursuant to Section 5.
(p) The Company shall make reasonably available for
inspection by one representative of the Holders designated in writing
by the Holders of a majority of the Registrable Securities to be
registered thereunder (calculated based on the total of (x) the number
of shares of Common Stock constituting Registrable Securities to be
registered thereunder plus (y) the number of shares of Common Stock
obtainable at the time in question if the Restricted Securities to be
registered thereunder were converted), any underwriter participating
in any disposition pursuant to such Shelf Registration Statement, and
any attorney or other agent retained by such representative or any
such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
as is customary for similar due diligence examinations; provided,
however, that such persons (other than any attorney, including the
Special Counsel, or any underwriter) shall, if requested by the
Company, first agree in writing with the Company that any information
that is reasonably and in good faith designated by the Company in
writing as confidential at the time of delivery of such information
shall be kept confidential by such persons, unless (i) disclosure of
such information is required by court or administrative order or is
necessary to respond to inquiries or regulatory authorities, (ii)
disclosure of such information is required by law (including any
disclosure requirements pursuant to Federal or state securities laws
in connection with the filing of any Shelf Registration Statement or
the use of any Prospectus), (iii) such information becomes generally
available to the public other than as a result of a disclosure of
failure to safeguard by any such person or (iv) such information
becomes available to any such person from a source other than the
Company and such source is not bound by a confidentiality agreement.
(q) The Company shall cause the Company's officers, directors
and employees to make reasonably available for inspection all relevant
information reasonably requested by the representative designated in
accordance with paragraph (p) above and any such underwriter, attorney
or other agent in connection with any such Shelf Registration
Statement, in each case, as is customary for similar due diligence
examinations; provided, however, that such persons (other than any
attorney, including the Special Counsel, or
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any underwriter) shall, if requested by the Company, first agree in
writing with the Company that any information that is reasonably and
in good faith designated by the Company in writing as confidential at
the time of delivery of such information shall be kept confidential by
such persons, unless (i) disclosure of such information is required by
court or administrative order or is necessary to respond to inquiries
or regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to
Federal or state securities laws in connection with the filing of any
Shelf Registration Statement or the use of any Prospectus), (iii) such
information becomes generally available to the public other than as a
result of a disclosure of failure to safeguard by any such person or
(iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a
confidentiality agreement.
(r) The Company will use its reasonable efforts to cause the
Common Stock issuable upon conversion of the Securities to be admitted
for quotation on the Nasdaq National Market or other stock exchange or
trading system on which the Common Stock primarily trades on or prior
to the effective date of any Shelf Registration Statement hereunder.
(s) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling group
or "assist in the distribution" (within the meaning of the Rules of
Fair Practice and the By-Laws of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of
such Registrable Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, the
Company shall assist such broker-dealer in complying with the
requirements of such Rules and By-Laws, including, without limitation,
by (A) if such Rules or By-Laws, including Section 2720, shall so
require, engaging a "qualified independent underwriter" (as defined in
Section 2720) to participate in the preparation of the Shelf
Registration Statement relating to such Registrable Securities and to
exercise usual standards of due diligence in respect thereto, (B)
indemnifying any such qualified independent underwriter to the extent
of the indemnification of underwriters provided in Section 5 hereof
and (C) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the
requirements of the Rules of Fair Practice of the NASD.
(t) The Company shall use its reasonable efforts to take all
other steps necessary to effect the registration, offering and sale of
the Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
(u) Notwithstanding any provision of this Section 3 to the
contrary, the Company shall not be required to amend or supplement the
Shelf Registration Statement pursuant to the requirements of Sections
3(b), 3(c), 3(j) or 3(t) hereof if (i) such amendment or supplement
would require the Company to disclose a material financing,
acquisition or other transaction and the Board of Directors (or where
due to the nature of
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the circumstances, timely consultation with the Board of Directors is
not, in the good faith determination of the Chairman of the Board, the
Chief Executive Officer or the Chief Financial Officer of the Company,
possible, then such officer) shall have determined that such
disclosure is not in the best interests of the Company and the holders
of its outstanding Common Stock or (ii) the Board of Directors (or
where due to the nature of the circumstances, timely consultation with
the Board of Directors is not, in the good faith determination of the
Chairman of the Board, the Chief Executive Officer or the Chief
Financial Officer of the Company, possible, then such officer) shall
have determined in good faith that there is a valid business purpose
or reason for suspending the use of the Prospectus included in such
Shelf Registration Statement in accordance with Section 3(j) hereof
instead of making such amendment or supplement, provided that in each
such case the Company complies with its obligations, if any, to pay
Additional Interest.
4. REGISTRATION EXPENSES. Except as otherwise provided in
Section 6, the Company shall bear all fees and expenses incurred in connection
with the performance of its obligations under Sections 2 and 3 hereof and shall
bear or reimburse the Holders for the reasonable fees and disbursements of a
Special Counsel designated by the Company. For purposes of this Agreement, the
Company initially appoints Cleary, Gottlieb, Xxxxx & Xxxxxxxx, as Special
Counsel; provided that the Holders of a majority of the Registrable Securities
covered by the Shelf Registration Statement (calculated based on the total of
(x) the number of shares of Common Stock constituting Registrable Securities to
be registered thereunder plus (y) the number of shares of Common Stock
obtainable at the time in question if the Restricted Securities to be
registered thereunder were converted) have the right pursuant to this Agreement
to substitute another firm of counsel as Special Counsel under this Agreement
with the consent of the Company, which consent shall not be unreasonably
withheld.
5. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with
any Shelf Registration Statement, the Company shall agree to indemnify and hold
harmless each Initial Purchaser, each Holder, each underwriter who participates
in an offering of Registrable Securities, the directors, officers, employees
and agents of each such party and each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which such party or such controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon:
(i) any untrue statement or alleged untrue
statement of any material fact contained in any Shelf
Registration Statement covering Registrable Securities or any
amendment thereto, any Prospectus or any amendment or
supplement thereto, or
(ii) the omission or alleged omission to state
in any Shelf Registration Statement covering Registrable
Securities or any amendment thereto, any
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Prospectus or any amendment or supplement thereto, a material
fact required to be stated therein or necessary to make the
statements therein not misleading,
and will reimburse, as incurred, each such indemnified party for any legal or
other costs or expenses reasonably incurred by it in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable (A) to any Initial Purchaser,
Holder or any person controlling such Initial Purchaser or Holder in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any untrue statement or alleged untrue statement or omission
or alleged omission made in any Shelf Registration Statement covering
Registrable Securities or any amendment thereto, any Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by such Initial Purchaser or Holder, as
the case may be, specifically for use therein or (B) to any underwriter or any
person controlling such underwriter in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Shelf Registration Statement covering Registrable Securities or any
amendment thereto, any Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by such underwriter specifically for use therein. The indemnity
provided for in this Section 5(a) shall be in addition to any liability which
the Company may otherwise have. The Company will not, without the prior written
consent of the persons the Company has agreed to indemnify and hold harmless
pursuant to this paragraph (a) (for purposes of this paragraph (a), the
"indemnified parties"), settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not any
such indemnified party is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes an unconditional release
of all of the indemnified parties from all liability arising out of such claim,
action, suit or proceeding.
(b) Each Holder shall agree, severally and not jointly, to
indemnify and hold harmless the Company, each Initial Purchaser, each
underwriter who participates in an offering of Registrable Securities, the
other Holders, the directors, officers (including each officer of the Company
who signed the Shelf Registration Statement), employees and agents of each such
party and each Person, if any, who controls any of such parties within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which such party or such controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in any Shelf Registration Statement covering Registrable Securities or any
amendment thereto, any Prospectus or any amendment or supplement thereto, or
(ii) the omission or alleged omission to state in any Shelf Registration
Statement covering Registrable Securities or any amendment thereto, any
Prospectus or any amendment or supplement thereto, a material fact required to
be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
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reliance upon and in conformity with written information furnished to the
Company by such Holder specifically for use therein, and, subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses reasonably incurred by the Company or any
such Initial Purchaser, underwriter, other Holder or director, officer or
controlling person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or any action in respect thereof; provided, however, that, no
such Holder shall be liable for any claims hereunder in excess of the amount of
the net proceeds received by such Holder from the sale of Registrable
Securities pursuant to the Shelf Registration Statement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to paragraph (a) or (b) of this Section 5,
such person (for purposes of this paragraph (c), the "indemnified party")
shall, promptly after receipt by such party of notice of the commencement of
such action, notify the person against whom such indemnity may be sought (for
purposes of this paragraph (c), the "indemnifying party"), but the omission so
to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this Section 5. In
case any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be one or more legal defenses available to
it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not
have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense of any such action
and approval by such indemnified party of counsel appointed to defend such
action, the indemnifying party will not be liable to such indemnified party
under this Section 5 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall
have employed separate counsel in accordance with the proviso to the next
preceding sentence (it being understood, however, that in connection with such
action the indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to local counsel) in any one action or
separate but substantially similar actions in the same jurisdiction arising out
of the same general allegations or circumstances, it being further understood,
however, that in the case of paragraph (a) of this Section 5, the indemnifying
party's obligation shall extend to liability for the expenses of such separate
counsel for each of the Initial Purchasers and their related indemnified
parties, the Holders and their related indemnified parties and the underwriters
and their related indemnified parties to the extent any of the foregoing
indemnified parties are parties to such action or actions), or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party, or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the
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expense of the indemnifying party. All fees and expenses reimbursed pursuant to
this paragraph (c) shall be reimbursed as they are incurred. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party.
(d) In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in the preceding
paragraphs of this Section 5 is unavailable or insufficient, for any reason, to
hold harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), as between the Company, on the one
hand, and the Holders, on the other, such parties shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Company on
the one hand and the Holders on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative fault of the parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company, on the
one hand, or the Holders, on the other, the parties' relative intents,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and any other equitable considerations appropriate in
the circumstances. The Company and the Holders agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute hereunder are several in proportion to the respective principal
amount or number of shares, as the case may be, of Registrable Securities sold
pursuant to the Shelf Registration Statement, and not joint. For purposes of
this paragraph (d), each person, if any, who controls a Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Holder, and each director of
the Company, each officer of the Company and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, shall have the same rights to contribution as the
Company.
(e) The remedies provided for in this Section 5 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The Company may require, as a condition to including any
Registrable Securities in any Registration Statement filed and to entering into
any underwriting agreement with respect thereto, that the Company shall have
received an undertaking reasonably satisfactory
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to it from the holder of such Registrable Securities and from each underwriter
named in any such underwriting agreement, severally and not jointly, to comply
with the provisions of paragraphs (a) through (e) of this Section 5.
6. UNDERWRITTEN OFFERING. The Holders who desire to do so may
sell Registrable Securities in an underwritten offering. In such underwritten
offering, the investment banker or bankers and manager or managers that will
administer the offering will be selected by, and the underwriting arrangements
with respect thereto will be approved by the Holders of a majority of the
Registrable Securities to be included in such offering (calculated based on the
total of (x) the number of shares of Common Stock constituting Registrable
Securities plus (y) the number of shares of Common Stock obtainable at the time
in question if the Restricted Securities to be included in such offering were
converted) provided, however, that (i) such investment bankers and managers and
underwriting arrangements must be reasonably satisfactory to the Company, (ii)
the Company shall not be obligated to arrange for more than one underwritten
offering during the Effectiveness Period and (iii) the Company shall not be
obligated (but may agree) to participate in any "roadshow" or other marketing
activities with respect to such underwritten offering. No Holder may
participate in any underwritten offering contemplated hereby unless such Holder
(a) agrees to sell such Holder's Registrable Securities in accordance with any
approved underwriting arrangements, (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such approved
underwriting arrangements and (c) at least 51% of the outstanding Registrable
Securities (calculated based on the total of (x) the number of shares of Common
Stock constituting Registrable Securities plus (y) the number of shares of
Common Stock obtainable at the time in question if the outstanding Restricted
Securities were converted) are included in such underwritten offering. The
Holders participating in any underwritten offering shall be responsible for any
expenses customarily borne by selling securityholders, including underwriting
discounts and commissions and fees and expenses of Special Counsel to the
selling securityholders with respect to such underwritten offering.
The Company shall in connection with an underwritten offering
in accordance with the provisions of this Section:
(a) if requested and provided with the relevant information,
promptly include or incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement, such
information as the Managing Underwriters administering an underwritten
offering of Registrable Securities registered thereunder reasonably
request to be included therein and to which the Company does not
reasonably object and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after they are notified of the matters to be included or
incorporated in such Prospectus supplement or post-effective
amendment;
(b) make such representations and warranties to the Holders
and the underwriters in form, substance and scope as are customarily
made by the issuer to underwriters in primary underwritten offerings;
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(c) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters)
addressed to each Holder and the underwriters covering such matters as
are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by
such Holders and underwriters (it being agreed that the matters to be
covered by such opinion or written statement by such counsel delivered
in connection with such opinions shall include in customary form,
without limitation, as of the date of the opinion and as of the
effective date of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence from
such Shelf Registration Statement and the prospectus included therein,
as then amended or supplemented, including the documents incorporated
by reference therein, of an untrue statement of a material fact or the
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading);
(d) use its reasonable efforts to obtain "cold comfort"
letters and updates thereof from the independent public accountants of
the Company (and, if necessary, any other independent public
accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Shelf Registration
Statement), addressed (where reasonably possible) to each Holder
(provided such Holder furnishes the accountants with such
representations as the accountants customarily require in similar
situations) and the underwriters in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and
(e) deliver such documents and certificates as may be
reasonably requested by any such Holders and the Managing
Underwriters, including those to evidence compliance with Section 3(j)
and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company.
7. MISCELLANEOUS.
(a) Other Registration Rights. The Company may grant
registration rights that would permit any Person that is a third party the
right to piggy-back on any Shelf Registration Statement, provided that if the
Managing Underwriter, if any, of such offering delivers an opinion to the
Holders that the total amount of securities which they and the holders of such
piggy-back rights intend to include in any Shelf Registration Statement is so
large as to materially adversely affect the success of such offering (including
the price at which such securities can be sold), then only the amount, the
number or kind of securities to be offered for the account of holders of such
piggy-back rights will be reduced to the extent necessary to reduce the total
amount of securities to be included in such offering to the amount, number or
kind recommended by the Managing Underwriter prior to any reduction in the
amount of Registrable Securities to be included.
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(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of Holders of at least a majority of the Registrable Securities
(calculated based on the total of (x) the number of shares of Common Stock
constituting Registrable Securities plus (y) the number of shares of Common
Stock obtainable at the time in question if the Restricted Securities then
outstanding were converted).
(c) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by
such Holder to the Company in accordance with the provisions of this
Section 7(c);
(2) if to the Initial Purchasers, initially at the
address set forth in the Purchase Agreement;
(3) if to the Company, initially at its address set
forth in the Purchase Agreement; and
(4) if to the Special Counsel, the address given by
such Special Counsel to the Company in accordance with the provisions
of this Section 7(c).
All such notices and communications shall be deemed to have been duly given
when received.
The Initial Purchasers or the Company by written notice to
the other may designate additional or different addresses for subsequent
notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties and the Holders, including, without the need for an express assignment
or any consent by the Company thereto, subsequent Holders of Registrable
Securities. The Company hereby agrees to extend the benefits of this Agreement
to any Holder of Registrable Securities and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
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(g) Governing Law. This agreement shall be governed by and
construed in accordance with the law of the State of New York, United States of
America, without giving effect to any provisions relating to conflicts of laws.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
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Please confirm that the foregoing correctly sets forth the
agreement between the Company and you.
Very truly yours,
ORBITAL SCIENCES CORPORATION
By: /s/ XXXXXXX X. XXXXXX
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
The foregoing Registration Rights Agreement is hereby
confirmed and accepted as of the date first above written.
DEUTSCHE XXXXXX XXXXXXXX INC.,
as Initial Purchaser
By: /s/ A. XXXXX XXXXXX, JR.
----------------------------------
Name: A. Xxxxx Xxxxxx, Jr.
Title: Managing Director
X.X. XXXXXX SECURITIES INC.,
as Initial Purchaser
By: /s/ XXXX X. XXXX
----------------------------------
Name: Xxxx Xxxx
Title: Vice President
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