Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of January 16, 1998 (this
"Agreement"), among PANAMSAT CORPORATION, a Delaware corporation (the
"Company"), and XXXXXX XXXXXXX & CO. INCORPORATED, XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION, SALOMON BROTHERS INC, CITICORP SECURITIES, INC.,
BANCAMERICA XXXXXXXXX XXXXXXXX AND X.X. XXXXXX SECURITIES INC., as the initial
purchasers (the "Initial Purchasers") of the 6% Notes due 2003, the 6-1/8% Notes
due 2005, the 6-3/8% Notes due 2008 and the 6-7/8% Debentures due 2028 of the
Company.
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings:
(a) "Additional Interest" has the meaning assigned thereto in
Section 2(c).
(b) "Closing Date" means the date on which the Securities are
initially issued.
(c) "Commission" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act or
the Securities Act, whichever is the relevant statute for the
particular purpose.
(d) "Effective Time," in the case of (i) an Exchange Offer, means
the time and date as of which the Commission declares the Exchange
Offer Registration Statement effective or as of which the Exchange
Offer Registration Statement otherwise becomes effective and (ii) a
Shelf Registration, means the time and date as of which the Commission
declares the Shelf Registration effective or as of which the Shelf
Registration otherwise becomes effective.
(e) "Exchange Act" means the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
(f) "Exchange Offer" has the meaning assigned thereto in Section
2(a).
(g) "Exchange Offer Registration Statement" has the meaning
assigned thereto in Section 2(a).
(h) "Exchange Registration" has the meaning assigned thereto in
Section 3(f).
(i) "Holder" means each Initial Purchaser for so long as it owns
any Registrable Securities, and such of its respective successors and
assigns who acquire Registrable Securities, directly or indirectly,
from such person or from any successor or assign of such person, in
each case for so long as such person owns any Registrable Securities.
(j) "Indenture" means the Indenture, dated as of January 16, 1998,
between the Company and The Chase Manhattan Bank, as Trustee, as the
same shall be amended from time to time.
(k) "New Securities" has the meaning assigned thereto in Section
2(a).
(l) "Participant" has the meaning as assigned thereto in Section
6(a).
(m) "Person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
(n) "Purchase Agreement" means the Purchase Agreement dated as of
January 13, 1998 among the Company and the Initial Purchasers.
(o) "Registrable Securities" means the Securities; provided,
however, that such Securities shall cease to be Registrable Securities
when (i) such Securities have been exchanged for New Securities in an
Exchange Offer as contemplated in Section 2(a); (ii) in the
circumstances contemplated by Section 2(b), a registration statement
registering such Securities under the Securities Act has been declared
or becomes effective and such Securities have been sold or otherwise
transferred by the Holder thereof pursuant to such effective
registration statement; (iii) such Securities are sold pursuant to Rule
144 under circumstances in which any legend borne by such Securities
relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed or such Securities are eligible
to be sold pursuant to paragraph (k) of Rule 144; or (iv) such
Securities shall cease to be outstanding.
(p) "Securities" means the 6% Notes due 2003, the 6-1/8% Notes due
2005, the 6-3/8% Notes due 2008 and the 6-7/8% Debentures due 2028 to
be issued under the Indenture and sold by the Company to the Initial
Purchasers and securities (other than New Securities) issued in
exchange therefor or in lieu thereof pursuant to the Indenture.
(q) "Registration Default" has the meaning assigned thereto in
Section 2(c).
(r) "Registration Expenses" has the meaning assigned thereto in
Section 4.
(s) "Resale Period" means the period beginning on the date the
Shelf Registration becomes effective and ending on the earlier of (i)
the Shelf Registration ceasing to be effective or (ii) the second
anniversary of the Closing Date.
(t) "Restricted Holder" means (i) a Holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a Holder who acquires
New Securities outside the ordinary course of such Holder's business,
(iii) a Holder who has arrangements or understandings with any person
to participate in the Exchange Offer for the purpose of distributing
New Securities, or (iv) a broker-dealer who receives Securities for its
own account but did not acquire the Securities as a result of
market-making activities or other trading activities.
(u) "Rule 144," "Rule 405" and "Rule 415" means, in each case,
such rule promulgated under the Securities Act.
(v) "Securities Act" means the Securities Act of 1933, as amended.
(w) "Shelf Registration" has the meaning assigned thereto in
Section 2(b).
(x) "Trust Indenture Act" means the Trust Indenture Act of 1939,
or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b), the Company agrees to use
its reasonable best efforts to file under the Securities Act a
registration statement (the "Exchange Offer Registration Statement")
relating to an offer to exchange (the "Exchange Offer") any and all of
the Securities for a like aggregate amount of securities issued by the
Company, which have the same terms as the Securities (and are entitled
to the benefits of a trust indenture which has been qualified under the
Trust Indenture Act), except that they have been registered pursuant to
an effective registration statement under the Securities Act, do not
contain restrictions on transfers and do not contain provisions for the
additional interest contemplated in Section 2(c) below (such new
securities hereinafter called "New Securities"). The Company agrees to
use its reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective under the Securities Act
within 180 days after the Closing Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will
comply in all material respects with all applicable tender offer rules
and regulations under the Exchange Act. The Company further agrees to
use its reasonable best efforts to commence and complete the Exchange
Offer promptly after the Exchange Offer Registration Statement has
become effective for all Securities that have been properly tendered
and not withdrawn on or prior to the expiration of the Exchange Offer.
The Exchange Offer will be deemed completed only if the New Securities
received by Holders (other than Restricted Holders) in the Exchange
Offer for Securities are, upon receipt, transferable by each such
Holder without restriction imposed thereon by the Securities Act or the
Exchange Act and without material restrictions imposed thereon by the
blue sky or securities laws of a substantial majority of the States of
the United States of America. The Exchange Offer shall be deemed to
have been completed upon the Company having exchanged, pursuant to the
Exchange Offer, New Securities for all Securities that have been
properly tendered and not withdrawn before the expiration of the
Exchange Offer, which shall be on a date that is at least 30 days
following the commencement of the Exchange Offer.
(b) If (i) because of any change in law or in applicable
interpretations by the staff of the Commission, the Company is not
permitted to effect the Exchange Offer or (ii) in the case of any
Holder, other than a Restricted Holder, that participates in the
Exchange Offer, such Holder does not receive New Securities on the date
of the exchange that may be sold without restriction under state and
federal securities laws (other than due solely to the status of such
Holder as an affiliate of the Company within the meaning of the
Securities Act), then in addition to or in lieu of conducting the
Exchange Offer contemplated by Section 2(a), the Company shall file
under the Securities Act as promptly as practicable a "shelf"
registration statement providing for the registration of, and the sale
on a continuous or delayed basis by any such Holder of, all of the
Registrable Securities held by such Holder, pursuant to Rule 415 or any
similar rule that may be adopted by the Commission (the "Shelf
Registration"). The Company agrees to use its reasonable best efforts
to cause the Shelf Registration to become or be declared effective and
to keep such Shelf Registration continuously effective for a period
(the "Effectiveness Period") ending on the earlier of (i) the second
anniversary of the Closing Date or (ii) such time as there are no
longer any Registrable Securities outstanding. The Company further
agrees to supplement or make amendments to the Shelf Registration
during the Effectiveness Period, as and when required by the rules,
regulations or instructions applicable to the registration form used
for such Shelf Registration or by the Securities Act or rules and
regulations thereunder for shelf registration, and the Company agrees
to furnish to the Holders of the Registrable Securities copies of any
such supplement or amendment prior to its being used or promptly
following its filing with the Commission. Notwithstanding the
foregoing, if the Board of Directors of the Company determines in good
faith that it is in the best interests of the Company not to disclose
the existence of or facts surrounding any proposed or pending material
corporate transaction involving the Company, the Company may allow the
Shelf Registration Statement to fail to be effective and usable as a
result of such nondisclosure for up to 60 days during the two year
period of effectiveness required by Section 2 hereof, but in no event
for any period in excess of 30 consecutive days.
(c) If any of the following events (any such event a "Registration
Default") shall occur, then, as liquidated damages, additional interest
(the "Additional Interest") shall become payable in respect of the
Securities as follows:
(i) if the Exchange Offer Registration Statement or a Shelf
Registration is not filed with the Commission within 150 days
following the Closing Date, then commencing on the 151st day after
the Closing Date, Additional Interest shall accrue on the
principal amount of the Securities at a rate of 0.25% per annum;
or
(ii) if neither the Exchange Offer Registration Statement nor
a Shelf Registration is declared effective by the Commission on or
prior to the 180th day following the Closing Date, then commencing
on the 181st day after the Closing Date, Additional Interest shall
accrue on the principal amount of the Securities at a rate of
0.25% per annum; or
(iii) if either (A) the Company has not exchanged New
Securities for all Securities validly tendered and not withdrawn,
in accordance with the terms of the Exchange Offer, on or prior to
35 days after the date on which the Exchange Offer Registration
Statement was declared effective, or (B) if applicable, the Shelf
Registration has been declared effective but, to the extent
required by Section 2(b) above, such Shelf Registration ceases to
be effective during the Effectiveness Period, then commencing on
(x) the 36th day after such effective date, in the case of (A)
above, or (y) the day such Shelf Registration ceases to be
effective, in the case of (B) above, Additional Interest shall
accrue on the principal amount of Securities at a rate of 0.25 %
per annum;
provided, however, that the Additional Interest rate on the Securities,
shall not exceed in the aggregate 0.25% per annum; provided further,
however, that (1) upon the filing of the Exchange Offer Registration
Statement or a Shelf Registration (in the case of clause (i) above),
(2) upon the effectiveness of the Exchange Offer Registration Statement
or a Shelf Registration (in the case of clause (ii) above), (3) upon
the exchange of New Securities for all Securities validly tendered and
not withdrawn (in the case of clause (iii) (A) above), or upon the
effectiveness of the Shelf Registration which had ceased to remain
effective (in the case of clause (iii) (B) above), or (4) upon the
termination of certain transfer restrictions on the Securities as a
result of the application of Rule 144(k), Additional Interest on the
Securities as a result of such clause (or the relevant subclause
thereof), as the case may be, shall cease to accrue.
(d) Any reference herein to a registration statement shall be
deemed to include any document incorporated therein by reference as of
the applicable Effective Time and any reference herein to any
post-effective amendment to a registration statement shall be deemed to
include any document incorporated therein by reference as of a time
after such Effective Time.
(e) Notwithstanding any other provision of this Agreement, no
Holder of Registrable Securities who does not comply with the
provisions of Section 3(d), if applicable, shall be entitled to receive
Additional Interest unless and until such Holder complies with the
provisions of such Section, if applicable.
3. Registration Procedures.
The following provisions shall apply to registration statements filed
pursuant to Section 2:
(a) At or before the Effective Time of the Exchange Offer or the
Shelf Registration, as the case may be, the Company shall qualify the
Indenture under the Trust Indenture Act.
(b) In connection with the Company's obligations with respect to
the Shelf Registration, if applicable, the Company shall, as soon as
reasonably practicable (or as otherwise specified herein):
(i) prepare and file with the Commission a registration
statement with respect to the Shelf Registration on any form which
may be utilized by the Company and which shall permit the
disposition of the Registrable Securities in accordance with the
intended method or methods thereof, as specified in writing by the
Holders of the Registrable Securities, and use its reasonable best
efforts to cause such registration statement to become effective
as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus
included therein as may be necessary to effect and maintain the
effectiveness of such registration statement for the period
specified in Section 2(b) and as may be required by the applicable
rules and regulations of the Commission and the instructions
applicable to the form of such registration statement, and furnish
to the Holders of the Registrable Securities copies of any such
supplement or amendment simultaneously with or prior to its being
used or filed with the Commission;
(iii) comply in all material respects, as to all matters
within the Company's control, with the provisions of the
Securities Act with respect to the disposition of all of the
Registrable Securities covered by such registration statement in
accordance with the intended methods of disposition by the Holders
thereof provided for in such registration statement;
(iv) permit any of (A) the Holders of the Registrable
Securities to be included in such registration statement, (B) the
underwriters (which term, for purposes of this Agreement, shall
include a person deemed to be an underwriter within the meaning of
Section 2(11) of the Securities Act), if any, thereof, (C) the
sales or placement agent, if any, therefor, (D) counsel for such
underwriters or agent and (E) not more than one counsel for all
the Holders of such Registrable Securities who so request of the
Company in writing to participate in the preparation of such
registration statement, each prospectus included therein or filed
with the Commission and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the Resale Period, make
available at reasonable times at the Company's principal place of
business or such other reasonable place for inspection by the
persons referred to in Section 3(b)(iv), who shall certify to the
Company that they have a current intention to sell their
Registrable Securities pursuant to the Shelf Registration, such
financial and other information and books and records of the
Company, and cause the officers, employees, counsel and
independent certified public accountants of the Company to respond
to such inquiries, as shall be reasonably necessary, in the
judgment of the respective counsel referred to in such Section, to
conduct a reasonable investigation within the meaning of Section
11 of the Securities Act; provided, however, that each such party
shall be required to maintain in confidence and not to disclose to
any other person any information or records reasonably designated
by the Company in writing as being confidential, until such time
as (A) such information becomes a matter of public record (whether
by virtue of its inclusion in such registration statement or
otherwise), or (B) such person shall be required so to disclose
such information pursuant to a subpoena or order of any court or
other governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only after
such person shall have given the Company prompt prior written
notice of such requirement and the opportunity to contest the same
or seek an appropriate protective order), or (C) such information
is required to be set forth in such registration statement or the
prospectus included therein or in an amendment to such
registration statement or an amendment or supplement to such
prospectus in order that such registration statement, prospectus,
amendment or supplement, as the case may be, does not contain an
untrue statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading;
(vi) promptly notify the selling Holders of Registrable
Securities, the sales or placement agent, if any, therefor and the
managing underwriter or underwriters, if any, thereof named in the
Shelf Registration or a supplement thereto, and confirm such
notice in writing, (A) when such registration statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such registration statement or any post-effective
amendment, when the same has become effective, (B) of the issuance
by the Commission of any stop order suspending the effectiveness
of such registration statement or the initiation or written threat
of any proceedings for that purpose, (C) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or written threat of any proceeding
for such purpose, or (D) at any time when a prospectus is required
to be delivered under the Securities Act, that such registration
statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder;
(vii) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto at
the earliest practicable date;
(viii) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Holder of
Registrable Securities, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission
relating to the terms of the sale of such Registrable Securities,
including information with respect to the principal amount of
Registrable Securities being sold by such Holder or agent or to
any underwriters, the name and description of such Holder, agent
or underwriter, the offering price of such Registrable Securities
and any discount, commission or other compensation payable in
respect thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the offering
of the Registrable Securities to be sold by such Holder or agent
or to such underwriters; and make all required filings of such
prospectus supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(ix) furnish to each Holder of Registrable Securities, each
placement or sales agent, if any, therefor, each underwriter, if
any, thereof and the respective counsel referred to in Section
3(b)(iv) an executed copy (or, in the case of a Holder of
Registrable Securities, a conformed copy) of such registration
statement, each such amendment or supplement thereto (in each case
including all exhibits thereto) and such number of copies of such
registration statement (excluding exhibits thereto) and of the
prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity
in all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder; and the Company hereby
consents to the use of such prospectus (including any such
preliminary or summary prospectus) and any amendment or supplement
thereto by each such Holder and by any such agent and underwriter,
in each case, in the form most recently provided to such person by
the Company in connection with the offering and sale of the
Registrable Securities covered by the prospectus (including any
such preliminary or summary prospectus) or any supplement or
amendment thereto; and
(x) use its reasonable best efforts to (A) register or
qualify the Registrable Securities to be included in such
registration statement under such securities laws or blue sky laws
of such United States jurisdictions as any Holder of such
Registrable Securities and each placement or sales agent, if any,
therefor and underwriter, if any, thereof shall reasonably
request, and (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance
of offers, sales and dealings therein in such jurisdictions during
the period the Shelf Registration is required to remain effective
under Section 2(b) and for so long as may be necessary to enable
any such Holder, agent or underwriter to complete its distribution
of Securities pursuant to such registration statement but in any
event not later than the date through which the Company is
required to keep the Shelf Registration effective pursuant to
Section 2(b); provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section
3(b)(x), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders.
In case any of the foregoing obligations is dependent upon information
provided or to be provided by a party other than the Company, such obligation
shall be subject to the provision of such information by such party; provided
that the Company shall use its reasonable best efforts to obtain the necessary
information from any party responsible for providing such information.
(c) In the event that the Company would be required, pursuant to
Section 3(b)(vi)(D), to notify the selling Holders of Registrable
Securities, the placement or sales agent, if any, therefor or the
managing underwriters, if any, thereof named in the Shelf Registration
or a supplement thereto of the existence of the circumstances described
therein, the Company shall promptly prepare and furnish to each such
Holder, to each placement or sales agent, if any, and to each such
underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers
of Registrable Securities, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder. Each Holder of Registrable Securities agrees
that upon receipt of any notice from the Company, pursuant to Section
3(b)(vi)(D), such Holder shall forthwith discontinue (and cause any
placement or sales agent or underwriters acting on their behalf to
discontinue) the disposition of Registrable Securities pursuant to the
registration statement applicable to such Registrable Securities until
such Holder (i) shall have received copies of such amended or
supplemented prospectus and, 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 prospectus covering such Registrable Securities at the time of
receipt of such notice or (ii) shall have received notice from the
Company that the disposition of Registrable Securities pursuant to the
Shelf Registration may continue.
(d) The Company may require each Holder of Registrable Securities
as to which any registration pursuant to Section 2(b) is being effected
to furnish to the Company such information regarding such Holder and
such Holder's intended method of distribution of such Registrable
Securities as the Company may from time to time reasonably request in
writing, but only to the extent that such information is required in
order to comply with the Securities Act. Each such Holder agrees 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 in either case as a result of
which any prospectus relating to such registration contains or would
contain an untrue statement of a material fact regarding such Holder or
such Holder's intended method of disposition of such Registrable
Securities or omits to state any material fact regarding such Holder or
such Holder's intended method of disposition of such Registrable
Securities required to be stated therein or necessary to make the
statements therein not misleading, and promptly to furnish to the
Company any additional information required to correct and update any
previously furnished information or required so that such prospectus
shall not contain, with respect to such Holder or the disposition of
such Registrable Securities, 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.
(e) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as
defined in Rule 144) to, resell any of the Securities that have been
reacquired by any of them except pursuant to an effective registration
statement under the Securities Act.
(f) In connection with the Company's obligations with respect to
the registration of New Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
reasonably practicable (or as otherwise specified):
(i) prepare and file with the Commission such amendments and
supplements to the Exchange Offer Registration Statement and the
prospectus included therein as may be necessary to effect and
maintain the effectiveness thereof for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of the Exchange Offer
Registration Statement, and promptly provide each broker-dealer
holding New Securities with such number of copies of the
prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, as such broker-dealer
reasonably may request for use in connection with resales of New
Securities;
(ii) for a period of 180 days from the date on which the
Exchange Offer Registration Statement is declared effective (the
"180 Day Period"), promptly notify each broker-dealer that has
requested or received copies of the prospectus included in the
Exchange Offer Registration Statement, and confirm such advice in
writing, (A) when any prospectus amendment or supplement or
post-effective amendment to the Exchange Offer Registration
Statement has been filed, and, with respect to any post-effective
amendment to the Exchange Offer Registration Statement, when the
same has become effective, (B) of the issuance by the Commission
of any stop order suspending the effectiveness of the Exchange
Offer Registration Statement or the initiation or threatening of
any proceedings for that purpose, (C) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the New Securities for sale in any United States
jurisdiction or the initiation or threatening in writing of any
proceeding for such purpose, or (D) at any time when a prospectus
is required to be delivered under the Securities Act, that the
Exchange Offer Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not
conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder;
(iii) in the event that the Company would be required,
pursuant to Section 3(f)(ii)(D), to notify any broker-dealers
holding New Securities, promptly prepare and furnish to each such
Holder a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of such
New Securities, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the
Commission thereunder or notify such broker-dealers that the offer
and sale of New Securities pursuant to the Exchange Offer
Registration Statement may continue;
(iv) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of the Exchange Offer
Registration Statement or any post-effective amendment thereto at
the earliest practicable date;
(v) use its reasonable best efforts to register or qualify
the New Securities under the securities laws or blue sky laws of
such jurisdictions as are contemplated by Section 2(a) no later
than the commencement of the Exchange Offer, provided, however,
that the Company shall not be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein it
would not otherwise be required to qualify but for the
requirements of this Section 3(f)(v), (2) consent to general
service of process in any such jurisdiction or (3) make any
changes to its certificate of incorporation or by-laws or any
agreement between it and its stockholders; and
(vi) make generally available to its security Holders as soon
as practicable but no later than eighteen months after the
effective date of such registration statement, an earning
statement of the Company and its subsidiaries complying with
Section 1l(a) of the Securities Act (including, at the option of
the Company, Rule 158 thereunder).
In case any of the foregoing obligations is dependent upon
information provided or to be provided by a party other than the
Company, such obligation shall be subject to the provision of such
information; provided that the Company shall use its reasonable best
efforts to obtain the necessary information from any party responsible
for providing such information.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's performance
of or compliance with this Agreement, including (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Securities or New Securities for
offering and sale under the state securities and blue sky laws referred to in
Section 3(b)(x) and Section 3(f)(v) hereof, including reasonable fees and
disbursements of one counsel for the placement or sales agent or underwriters,
if any, in connection with such qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, the certificates representing the Securities and all other documents
relating hereto, (d) fees and expenses of the Trustee under the Indenture, and
of any escrow agent or custodian, (e) internal expenses (including all salaries
and expenses of the Company's officers and employees performing legal or
accounting duties), (f) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "cold comfort" letters required by or incident to such
performance and compliance) and (g) reasonable fees, disbursements and expenses
of one counsel for the Holders of Registrable Securities retained in connection
with a Shelf Registration, as selected by the Holders of at least a majority in
aggregate principal amount of the Registrable Securities being registered and
approved by the Company, and fees, expenses and disbursements of any other
persons, including special experts, retained by the Company in connection with
such registration (collectively, the "Registration Expenses"). To the extent
that any Registration Expenses are incurred, assumed or paid by any Holder of
Registrable Securities or any placement or sales agent therefor or underwriter
thereof, the Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
documented request therefor. Notwithstanding the foregoing, the Holders of the
Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such Holders (severally or jointly), other
than the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, the Initial
Purchasers and each of the Holders from time to time of Registrable Securities
that:
(a) Each registration statement covering Registrable Securities
and each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(c) or Section 3(f)
hereof and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is
filed with the Commission, as the case may be, and, in the case of an
underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform
in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not 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 during the 180 Day Period and subject to Section 2(b)
hereof, other than from (i) such time as a notice has been given to
Holders of Registrable Securities pursuant to Section 3(b)(vi)(B) or
(D) or Section 3(f)(ii)(B) or (D) hereof until (ii) such time as the
Company furnishes an amended or supplemented prospectus pursuant to
Section 3(c) or Section 3(f)(iii) hereof or such time as the Company
provides notice that offers and sales pursuant to the Exchange Offer
Registration Statement or the Shelf Registration, as the case may be,
may continue, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished
pursuant to Section 3(b) or Section 3(f) hereof, as then amended or
supplemented, will conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder; provided, however,
that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of a Holder of
Registrable Securities or any underwriter expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became
effective or are or were filed with the Commission, as the case may be,
will conform or conformed in all material respects to the requirements
of the Securities Act or the Exchange Act, as applicable, and none of
such documents will contain or contained an untrue statement of a
material fact or will omit or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by a Holder of Registrable Securities or any underwriter expressly for
use therein.
(c) The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or, except to
the extent that any such contravention would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole,
any indenture or instrument relating to indebtedness for money borrowed
or any agreement to which the Company is a party or any order, rule,
regulation or decree of any court or governmental agency or authority
located in the United States having jurisdiction over the Company or
any property of the Company; and, to the best knowledge of the Company,
no consent, authorization or order of, or filing or registration with,
any court or governmental agency or authority is required for the
consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Securities Act
contemplated hereby, qualification of the Indenture under the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or blue sky laws.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company. In connection with a Shelf
Registration, the Company shall, and it hereby agrees to, indemnify and
hold harmless each of the Holders of Registrable Securities included in
such Shelf Registration, and each person who is named in such Shelf
Registration or a supplement thereto as a placement or sales agent or
as an underwriter in any offering or sale of such Registrable
Securities and each person who controls any such person (each, a
"Participant") against any losses, claims, damages or liabilities,
joint or several, to which such Participant may become subject under
the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any registration
statement under which such Registrable Securities were registered under
the Securities Act, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such Participant,
or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading and the Company shall, and it hereby agrees to,
reimburse each such Participant for any legal or other expenses
reasonably incurred by it in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however,
that the Company shall not be liable to any such person in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration
statement, or preliminary, final or summary prospectus, or amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such Participant expressly for
use therein; and provided, further, that the Company will not be liable
to any Holder of Registrable Securities or any person controlling any
Holder of Registrable Securities with respect to any such untrue
statement or omission made in any preliminary prospectus which is
completely corrected in the final prospectus if (x) it is finally
judicially determined that the person asserting any such loss, claim,
damage or liability purchased Securities from such Holder in reliance
upon a preliminary prospectus but was not sent or given a copy of the
final prospectus at or prior to the written confirmation of the sale of
such Securities to such person and (y) the Company notified the Holders
of Registrable Securities to send the final prospectus to such person,
unless such failure to deliver the final prospectus was a result of
noncompliance by the Company with Section 6 of the Purchase Agreement.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Indemnification by Participants. The Company may require, as a
condition to including any Registrable Securities in any registration
statement filed pursuant to Section 2(b) and to entering into any
underwriting agreement with respect thereto, that the Company shall
have received an undertaking reasonably satisfactory to it from each
Participant, severally and not jointly, to indemnify and hold harmless
the Company, each of the Company's directors, officers and employees
and each person who controls the Company within the meaning of either
the Securities Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company, but only with reference to
written information furnished to the Company by or on behalf of such
Participant specifically for use in any registration statement, or any
preliminary or final or summary prospectus contained therein or any
amendment or supplement thereto. This indemnity agreement will be in
addition to any liability which any such person may otherwise have.
(c) Promptly after receipt by an indemnified party under Section
6(a) or (b) of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any
indemnified party otherwise than under Section 6(a) or (b). 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 elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfactory to such
indemnified party; provided that, if the defendants in any such action
include both the indemnified party and the indemnifying party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential conflicting interests between
them, the indemnified party or parties shall have the right to select
separate counsel to participate in the defense of such action on behalf
of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such
indemnified party under Section 6(a) or (b) for any legal or other
expenses subsequently incurred by such indemnified party (other than
reasonable costs of investigation) in connection with the defense
thereof unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the immediately preceding sentence (it
being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate national counsel,
approved by the indemnifying party, representing the indemnified
parties who are parties to such action), (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii).
No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by
such indemnified party unless such settlement includes an unconditional
release of such indemnified party from all liability on any claims that
are the subject matter of such action.
(d) Contribution. Each party hereto agrees that, if for any reason
the indemnification provisions contemplated by Section 6(a) or Section
6(b) are unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying
party 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 indemnifying party and
the indemnified party in connection with the statements or omissions
which 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 such indemnifying party and
indemnified party 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 indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and
equitable if contributions pursuant to this Section 6(d) were
determined by pro rata allocation (even if the Participants were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in this Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be
deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 6(d), no Participant shall be required to contribute any
amount in excess of the amount by which the dollar amount of the
proceeds received by such Participant from the sale of any Registrable
Securities exceeds the amount of any damages which such Participant has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, and no underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Registrable Securities underwritten
by it and distributed to the public were offered to the public exceeds
the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Participants'
obligations in this Section 6(d) to contribute shall be several in
proportion to the principal amount of Registrable Securities registered
or underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each officer,
director and partner of each Participant and each person, if any, who
controls any Participant within the meaning of the Securities Act or
the Exchange Act; and the obligations of the Participants contemplated
by this Section 6 shall be in addition to any liability which the
respective Participants may otherwise have and shall extend, upon the
same terms and conditions, to each officer, employee and director of
the Company (including any person who, with his consent, is named in
any registration statement as about to become a director of the
Company), and to each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act.
7. Rule 144.
The Company covenants to the Holders of Registrable Securities that the
Company shall use its reasonable best efforts to timely file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(l) of Rule 144 adopted by the Commission under the
Securities Act) and the rules and regulations adopted by the Commission
thereunder, all to the extent required from time to time to enable such Holder
to sell Registrable Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
request of any Holder of Registrable Securities in connection with that Holder's
sale pursuant to Rule 144, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements.
8. Remedies.
The Company agrees that monetary damages (including Additional Interest
contemplated hereby) would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities which would
be inconsistent with the terms contained in this Agreement.
(b) Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (a)
delivered personally, (b) mailed, certified or registered mail with
postage prepaid, (c) sent by next-day or overnight mail or delivery or
(d) sent by telecopy or telegram, as follows:
(i) If to the Initial Purchasers:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Liability Management Group
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
(ii) If to the Company, at:
PanAmSat Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
with a copy to:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
or, in each case, at such other address as may be specified in writing
to the other parties hereto.
(c) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and
shall be enforceable by the respective successors and assigns of the
parties hereto. In the event that any transferee of any Holder of
Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or
otherwise, such transferee shall, without any further writing or action
of any kind, be deemed a party hereto for all purposes and such
Registrable Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Registrable Securities
such transferee shall be entitled to receive the benefits of, and be
conclusively deemed to have agreed to be bound by and to perform, all
of the applicable terms and provisions of this Agreement.
(d) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results
thereof) made by or on behalf of the Company, any officer, director or
agent of the Company, any Holder of Registrable Securities, any
director, officer or partner of such Holder, any agent or underwriter
or any director, officer or partner thereof, or any controlling person
of any of the foregoing, and shall survive delivery of and payment for
the Registrable Securities pursuant to the Purchase Agreement and the
transfer and registration of Registrable Securities by such Holder and
the consummation of an Exchange Offer.
(e) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK.
(f) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(g) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture) or delivered
pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between
the parties with respect to its subject matter. This Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively
or prospectively) only by a written instrument duly executed by the
Company and the Holders of at least a majority in aggregate principal
amount of the Registrable Securities at the time outstanding. Each
Holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any amendment or waiver effected pursuant
to this Section 8(g), whether or not any notice, writing or marking
indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such Holder.
(h) Inspection. For so long as this Agreement shall be in effect,
this Agreement and a complete list of the names and addresses of all
the Holders of Registrable Securities shall be made available for
inspection and copying on any business day by any Holder of Registrable
Securities for proper purposes only (which shall include any purpose
related to the rights of the Holders of Registrable Securities under
the Securities, the Indenture and this Agreement) at the offices of the
Company at the address thereof set forth in Section 8(b) above, or at
the office of the Trustee under the Indenture.
(i) Counterparts. This Agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
[signature page follows]
Agreed to and accepted as of the date referred to above.
PANAMSAT CORPORATION.
By:/s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
& Chief Financial Officer
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation
Salomon Brothers Inc
Citicorp Securities, Inc.
Bancamerica Xxxxxxxxx Xxxxxxxx
X.X. Xxxxxx Securities Inc.
Acting severally on behalf of themselves
and the several Initial Purchasers.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By:/s/Xxxxxxx Xxxxx
Name:
Title:
