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EXECUTION COPY
GLOBALSTAR TELECOMMUNICATIONS LIMITED
Up to 5,400,000 Shares of
8% Convertible Redeemable Preferred Stock
due 2011 (Liquidation Preference of $50 Per Share)
REGISTRATION RIGHTS AGREEMENT
New York, New York
January 26, 1999
Bear, Xxxxxxx & Co. Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Xxxxxx Brothers Inc.
X.X. Xxxxxxxxx, Towbin
CIBC Xxxxxxxxxxx Corp.
ING Baring Xxxxxx Xxxx LLC
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Globalstar Telecommunications Limited, a Bermuda company (the
"Company"), proposes to issue and sell to you (the "Purchasers"), upon the terms
set forth in the Purchase Agreement dated January 21, 1999 (the "Purchase
Agreement"), among the Company, Globalstar, L.P., a Delaware limited partnership
("Globalstar"), Loral Space & Communications Ltd., a Bermuda company ("Loral"),
and the Purchasers, up to 5,400,000 shares (including up to 1,400,000 shares
that the Company has granted the Purchasers an option to purchase pursuant to
the Purchase Agreement) of its 8% Convertible Redeemable Preferred Stock due
2011, par value $0.01 per share, liquidation preference of $50 per share (the
"Preferred Stock") (such issuance and sale, the "Initial Placement"). The
Preferred Stock will be convertible into shares of Common Stock, par value $1.00
per share, of the Company (the "Common Stock") at the conversion price set forth
in the Final Memorandum (as defined below). For purposes of this Agreement, the
term "Securities" shall
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refer to the Preferred Stock (other than any shares of Preferred Stock
beneficially owned by Loral), all shares of Common Stock issued (i) as dividends
thereon, (ii) on conversion thereof or (iii) in redemption thereof, and any
securities into which such shares of Preferred Stock or Common Stock shall be
converted or into which they shall be changed by operation of law or otherwise.
The Company will use the proceeds of such sale to purchase preferred partnership
interests in Globalstar. In satisfaction of a condition to your obligations
under the Purchase Agreement, the Company agrees with you (i) for your benefit
and (ii) for the benefit of the holders of the Securities (including you) from
time to time until the later of (i) the second anniversary of the last Closing
Date (as defined below) and (ii) such time as (A) such Securities shall no
longer constitute restricted securities for purposes of Rule 144(k) of the Act
(as defined below) or (B) all such Securities have been sold pursuant to the
Shelf Registration Statement (as defined below) (each of the foregoing a
"Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" means the Securities Act of 1933 and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person
that, 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 contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Closing Date" has the meaning set forth in the Purchase
Agreement.
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"Commission" means the Securities and Exchange Commission.
"Damages Payment Date" means each of the quarterly dividend
payment dates set forth in the schedule to the Bye-Laws of the Company setting
forth the terms of the Preferred Stock.
"Exchange Act" means the Securities Exchange Act of 1934 and
the rules and regulations of the Commission promulgated thereunder.
"Final Memorandum" has the meaning set forth in the Purchase
Agreement.
"First Closing Date" has the meaning set forth in the Purchase
Agreement.
"Holder" has the meaning set forth in the preamble hereto.
"Incorporated Documents" means filings made by the Company
with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act and
incorporated by reference in the Shelf Registration Statement.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Majority Holders" means the Holders of a majority of the
shares of the Preferred Stock registered (or if no shares are registered,
entitled to be registered) under a Shelf Registration Statement; provided,
however, that Holders of Common Stock issued in respect of the Preferred Stock
shall be deemed to be Holders of the number of shares of Preferred Stock which,
when converted, would have resulted in such number of shares of Common Stock.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering of the securities covered by the Shelf Registration Statement.
"Preferred Stock" has the meaning set forth in the preamble
hereto.
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"Prospectus" means the prospectus included in any Shelf
Registration Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Securities or
Common Stock issuable upon conversion thereof covered by such Shelf Registration
Statement, and all amendments and supplements to the Prospectus, including
post-effective amendments.
"Securities" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to
Section 2 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 2 hereof which
covers some or all of the Securities, on an appropriate form under Rule 415
under the Act or any similar rule that may be adopted by the Commission, and all
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 incorporated by reference
therein.
"Transfer Agent" means The Bank of New York.
"Transfer Restricted Securities" means each Security until the
later of (i) the second anniversary of the last Closing Date and (ii) such time
as (A) such Security shall no longer constitute a restricted security for
purposes of Rule 144(k) of the Act or (B) such Security has been sold pursuant
to the Shelf Registration Statement.
"underwriter" means any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
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2. Shelf Registration; Suspension of Use of Prospectus.
(a) The Company shall prepare and, not later than 90 days
following the First Closing Date, shall file with the Commission and thereafter
shall use its reasonable efforts to cause to be declared effective under the
Act, as promptly as practicable but no later than 210 days following the First
Closing Date (the "Effectiveness Target Date"), a Shelf Registration Statement
relating to the offer and sale of the Transfer Restricted Securities by the
Holders from time to time in accordance with the methods of distribution elected
by such Holders and set forth in such Shelf Registration Statement. The sole and
exclusive remedy available to the Holders in the event that a Shelf Registration
Statement is not filed or declared effective within the time periods specified
in this Section 2(a) is the collection of additional dividends in accordance
with Section 6 and the terms of the Preferred Stock.
(b) The Company shall use its reasonable efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders until the later of (i)
the second anniversary of the last Closing Date and (ii) such time as (A) such
Securities shall no longer constitute restricted securities for purposes of Rule
144(k) of the Act or (B) all such Securities have been sold pursuant to the
Shelf Registration Statement (in any such case, such period being called the
"Shelf Registration Period"). The Company shall be deemed not to have used its
reasonable efforts to keep the Shelf Registration Statement effective during the
requisite period if it voluntarily takes any action that would result in Holders
of securities covered thereby not to be able to offer and sell such securities
during that period, unless such action is (i) required by applicable law or (ii)
taken pursuant to Section 2(c) hereof, and, in either case, so long as the
Company promptly thereafter complies with the requirements of Section 3(i)
hereof, if applicable.
(c) The Company may suspend the use of the Prospectus for a
period not to exceed 60 days (or such longer period as is reasonably necessary
under the circumstances) in any calendar year for valid business
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reasons (not including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, public filings with the
Commission, pending corporate developments and similar events.
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to you, 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 best
efforts to reflect in each such document, when so filed with the
Commission, such comments as you reasonably may propose; provided,
however, that the Company shall be required only to furnish an
Incorporated Document to you as promptly as practicable following its
filing with the Commission.
(b) The Company shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part
thereof and any amendment or supplement thereto complies in all
material respects with the 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
therein, in the light of the circumstances under which they were made,
not misleading.
(c) (1) The Company shall advise you and the Holders and, if
requested by you or any such Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any
amendment thereto has been filed with the Commission and when
the Shelf Registration
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Statement or any post-effective amendment thereto has become
effective; and
(ii) 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 you and the Holders and, if
requested by you or any such Holder, confirm such advice in writing:
(i) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included in any Shelf
Registration Statement for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
and
(iii) of the suspension of the use of the Prospectus
pursuant to Section 2(c) hereof or of 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 statements therein are not misleading 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); provided that such
notice shall not be required to specify the nature of the
event giving rise to the notice requirement hereunder.
(d) The Company shall use its reasonable best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Shelf Registration Statement at the earliest possible time.
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(e) The Company shall furnish to each Holder of securities
included within the coverage of any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement
and any post-effective amendment thereto, including documents
incorporated by reference therein, financial statements and schedules,
and, if the Holder so requests in writing, all exhibits (including
those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of
any Shelf Registration Statement, 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 to the use
of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Securities in connection with the offering and sale
of the Securities covered by the Prospectus or any amendment or
supplement thereto.
(g) Prior to any offering of securities pursuant to any Shelf
Registration Statement, the Company shall register or qualify or
cooperate with the Holders of Securities included therein and their
respective counsel in connection with the registration or qualification
of such 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 reasonably necessary or
advisable to enable the offer and sale in such jurisdictions of the
Securities covered by such Shelf Registration Statement; provided,
however, that the Company will not be required to qualify generally to
do business in any jurisdiction where it is not then so qualified or to
take any action which would subject it to general service of process or
to taxation in any such jurisdiction where it is not then so subject.
(h) The Company shall cooperate with the Holders of Securities
to facilitate the timely preparation and
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delivery of certificates representing Securities to be sold pursuant to
any Shelf Registration Statement free of any restrictive legends and in
such denominations and registered in such names as Holders may request
prior to sales of Securities pursuant to such Shelf Registration
Statement.
(i) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) above, the Company shall, if required pursuant to the Act
or paragraph (c)(2)(iii) above, as promptly as practicable 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
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 statements therein, in the light of the
circumstances under which they were made, not misleading.
(j) Not later than the effective date of any Shelf
Registration Statement hereunder, the Company shall provide a CUSIP
number for each class of Securities registered under such Shelf
Registration Statement, and provide the Transfer Agent with printed
certificates for such Securities, in a form eligible for deposit with
The Depository Trust Company.
(k) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make
generally available to its security holders as soon as practicable
after the effective date of the applicable Shelf Registration Statement
an earnings statement satisfying the provisions of Section 11(a) of the
Act.
(l) The Company may require each Holder of Securities to be
sold pursuant to any Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of
such Securities as the Company may from time to time reasonably require
for inclusion in such Shelf Registration Statement. Any Holder who
fails to
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provide such information shall not be entitled to use the Prospectus.
(m) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters
and Majority Holders reasonably agree should be included therein and
shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment.
(n) The Company and Globalstar shall enter into such
agreements (including underwriting agreements) and take all other
appropriate actions in order to expedite or facilitate the registration
or the disposition of any Securities, and in connection therewith, if
an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those
set forth in Section 5 (or such other provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if
any), with respect to all parties to be indemnified pursuant to Section
5, it being understood that all underwriting discounts and commissions,
and all other underwriting fees, associated with such agreement in
connection with such offering of the Securities shall, except as
otherwise expressly agreed herein (including those expenses covered by
Section 4), be for the account of the Holders or the underwriters.
(o) The Company and Globalstar shall (i) make reasonably
available for inspection by Holders of Securities to be registered
thereunder and any Managing Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and any
attorney, accountant or other agent retained by the Majority Holders of
Securities to be registered thereunder or by any such Managing
Underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company or Globalstar, as the
case may be; (ii) cause the officers, directors and employees of the
Company or Globalstar, as the case may be, to supply all relevant
information reasonably
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requested by any such Holders or Managing Underwriter, attorney,
accountant or agent in connection with such Shelf Registration
Statement as is customary for similar due diligence examinations;
provided, however, that any information that is designated in writing
by the Company or Globalstar, as the case may be, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by any such Holders and Managing Underwriter, attorney,
accountant or agent, unless disclosure thereof is made in connection
with a court proceeding or required by law, or such information has
become available (not in violation of this Agreement) to the public
generally or through a third party without an accompanying obligation
of confidentiality; (iii) make such representations and warranties to
the Holders of securities registered thereunder and the underwriters,
if any, in form, substance and scope as are customarily made by issuers
to underwriters in primary underwritten offerings and covering matters
including those set forth in the Purchase Agreement; (iv) obtain
opinions of counsel to the Company and Globalstar and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Holders and Managing Underwriter, if
any) addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably
requested by the Majority Holders of the securities covered by such
Shelf Registration Statement and by such Managing Underwriter; (v)
obtain "cold comfort" letters and updates thereof from the independent
certified public accountants of the Company and Globalstar, as the case
may be (and, if necessary, use its reasonable best efforts to retain
any other independent certified public accountants of any subsidiary of
the Company or Globalstar or of any business acquired by the Company or
Globalstar for which financial statements and financial data are, or
are required to be, included in the Shelf Registration Statement),
addressed to each selling Holder of Securities registered thereunder
and the underwriters, if any, in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection
with primary
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underwritten offerings; and (vi) deliver such documents and
certificates as may be reasonably requested by the Majority Holders and
the Managing Underwriters, if any, including those to evidence
compliance with Section 3(i) and with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Company or Globalstar. The foregoing actions set forth in
clauses (iii), (iv), (v) and (vi) of this Section 3(o) shall be
performed at (A) the effectiveness of such Shelf Registration Statement
and each post-effective amendment thereto and (B) each closing under
any underwriting or similar agreement as and to the extent required
thereunder.
4. Registration Expenses. Globalstar shall bear all expenses
incurred in connection with the performance of the Company's obligations under
Sections 2 and 3 hereof and shall reimburse the Holders for the reasonable and
duly documented fees and disbursements of (i) counsel designated by the Majority
Holders to act as counsel for the Holders in connection therewith or (ii) in the
absence of such selection of counsel by the Majority Holders, one firm
designated by the underwriters to act as counsel for the Holders in connection
therewith. It is understood, however, that as except provided in this Section 4,
the Holders shall pay all their own costs and expenses, including stock transfer
taxes due upon resale by them of any of the securities covered by a Shelf
Registration Statement and any advertising expenses incurred in connection with
any offers and sales they make.
5. Indemnification and Contribution. (a) In connection with
any Shelf Registration Statement, the Company and Globalstar (the
"Indemnitors"), jointly and severally, agree to indemnify and hold harmless each
Holder of securities covered thereby (including the Purchasers), the directors,
officers, employees and agents of each such Holder and each person who controls
any such Holder within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the 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
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any untrue statement or alleged untrue statement of a material fact contained in
the Shelf Registration Statement as originally filed or in any amendment
thereof, or in any preliminary Prospectus or Prospectus, or in any amendment
thereof 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 agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Indemnitors will not be liable in any case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Indemnitors by or on behalf of any such Holder specifically for
inclusion therein, (ii) the Indemnitors shall not be liable to any indemnified
party under this indemnity agreement with respect to any Shelf Registration
Statement or Prospectus to the extent that any such loss, claim, damage or
liability of such indemnified party results solely from an untrue statement of a
material fact contained in, or the omission of a material fact from, the Shelf
Registration Statement or Prospectus which untrue statement or omission was
corrected in an amended or supplemented Shelf Registration Statement or
Prospectus, if the person alleging such loss, claim, damage or liability was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the amended or supplemented Shelf Registration Statement or Prospectus if the
Indemnitors had previously furnished copies thereof to such indemnified party
and if such delivery of a prospectus is finally judicially determined to be
required by the Act and was not so made and (iii) the Indemnitors will not be
liable to any indemnified party under this indemnity agreement with respect to
any Shelf Registration Statement or Prospectus to the extent that any such loss,
claim, damage or liability of such indemnified party results (a) from the use of
a Shelf Registration Statement during a period when a stop order has been issued
in respect thereof or any proceedings for that purpose have been initiated or
(b) from the use of the Prospectus during a period when the use of the
Prospectus has been suspended in accordance with
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Section 3(c)(2)(iii) hereof, provided, in each case, that Holders received prior
notice of such stop order, initiation of proceedings or suspension. This
indemnity agreement will be in addition to any liability which the Indemnitors
may otherwise have.
The Indemnitors also agree to indemnify or contribute to
Losses, as provided in Section 5(d), of any underwriters of Securities
registered under a Shelf Registration Statement, their officers and directors
and each person who controls such underwriters on substantially the same basis
as that of the indemnification of the Holders provided in this Section 5(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 3(n) hereof.
(b) Each Holder of securities covered by a Shelf Registration
Statement (including the Purchasers) severally agrees to indemnify and hold
harmless (i) the Indemnitors, (ii) each of their respective directors, (iii)
each of their respective officers who signs such Shelf Registration Statement
and (iv) each person who controls either of the Indemnitors within the meaning
of either the Act or the Exchange Act to the same extent as the foregoing
indemnity from the Indemnitors to each such Holder, but only with reference to
written information relating to such Holder furnished to the Indemnitors by or
on behalf of such Holder specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5 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 this Section 5, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
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obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel (and local counsel) if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in,
or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) 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 the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 5 is unavailable to or insufficient to hold harmless an
indemnified party for any
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reason, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall have a joint and several obligation to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively, "Losses") to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, from the Initial Placement and the Shelf Registration Statement which
resulted in such Losses; provided, however, that in no case shall the Purchasers
be responsible, in the aggregate, for any amount in excess of the purchase
discount or commission applicable to such Security, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter under the Shelf
Registration Statement which resulted in such Losses. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Indemnitors shall be deemed to be equal to the total
net proceeds from the Initial Placement (before deducting expenses). Benefits
received by the Purchasers shall be deemed to be equal to the total purchase
discounts and commissions, and benefits received by any other Holders shall be
deemed to be equal to the value such Holders realize by receiving Securities
registered under the Act. Benefits received by any underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Shelf Registration
Statement which resulted in such Losses. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand. The parties agree that it would not be
just and equitable if contribution were determined by pro rata
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allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 5, each person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
person who controls either of the Indemnitors within the meaning of either the
Act or the Exchange Act, each officer of the Company or Globalstar who shall
have signed the Shelf Registration Statement and each director of the Company or
Globalstar shall have the same rights to contribution as the Company or
Globalstar, as the case may be, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder
or the Indemnitors or any of the officers, directors or controlling persons
referred to in Section 5 hereof, and will survive the sale by a Holder of
securities covered by a Shelf Registration Statement.
6. Liquidated Damages.
(a) The Company and the Purchasers agree that the Holders of
Transfer Restricted Securities shall suffer damages if the Company fails to
fulfill its obligations pursuant to Section 2 hereof and that it would not be
possible to ascertain the extent of such damages. Accordingly, the Company
hereby agrees to pay liquidated damages ("Preferred Stock Liquidated Damages")
to each Holder of Transfer Restricted Securities under the circumstances and to
the extent set forth below:
(i) if the Registration Statement has not been filed with the
Commission on or prior to the date by which such filing is required to
be made in Section 2(a); or
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(ii) if the Registration Statement is not declared effective
by the Commission on or prior to the Effectiveness Target Date; or
(iii) if the Shelf Registration Statement has been declared
effective by the Commission and such Shelf Registration Statement
ceases to be effective or to be usable as contemplated by Section 2(b)
at any time during the Shelf Registration Period (without being
succeeded by a post-effective amendment to such Shelf Registration
Statement that cures such failure and that is itself immediately
declared effective) for any period of ten consecutive days or for any
20 days in any 180-day period in connection with resales of Transfer
Restricted Securities (provided, that the Company will have the option
of suspending the effectiveness of the Shelf Registration Statement,
without becoming obligated to pay Preferred Stock Liquidated Damages,
for periods of up to a total of 60 days in any calendar year if the
Board of Directors of the Company determines that compliance with the
disclosure obligations necessary to maintain the effectiveness of the
Shelf Registration Statement at such time could reasonably be expected
to have an adverse effect on the Company or a pending corporate
transaction) (each of the foregoing clauses (i) through (iii), a
"Registration Default").
(b) In the event of each such Registration Default, the
Company shall pay Preferred Stock Liquidated Damages to each Holder of shares of
Preferred Stock that are Transfer Restricted Securities at a rate of 0.50% of
the liquidation preference of the shares of Preferred Stock constituting
Transfer Restricted Securities, which shall accrue from the date of the
Registration Default to and including the 30th day following such Registration
Default and increase by 0.50% for each subsequent 30 day period; provided,
however, that the rate of such Preferred Stock Liquidated Damages may not exceed
2.00% of the Liquidation Preference of the Preferred Stock at any time.
Following the cure of all Registration Defaults relating to any shares of
Preferred Stock that are Transfer Restricted Securities, the accrual of
Preferred Stock Liquidated Damages with respect to such shares of Preferred
Stock that are Transfer Restricted Securities shall cease (without in any way
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limiting the effect of any subsequent Registration Default). A Registration
Default under clause (i) above shall be cured on the date that the Shelf
Registration Statement is filed with the Commission. A Registration Default
under clause (ii) above shall be cured on the date that the Shelf Registration
Statement is declared effective by the Commission. A Registration Default under
clause (iii) above shall be cured on the date the Shelf Registration Statement
is declared effective or becomes usable.
(c) The Company shall notify the Transfer Agent within one
business day after each and every date on which a Registration Default occurs.
Preferred Stock Liquidated Damages shall be paid by the Company to the record
Holders of shares of Preferred Stock that are Transfer Restricted Securities on
each Damages Payment Date by mailing checks to their registered addresses as
they appear in the Preferred Stock register if no such accounts have been
specified on or before the Damages Payment Date; provided that any Preferred
Stock Liquidated Damages accrued with respect to any Preferred Stock or portion
thereof called for redemption on a redemption date or converted into Common
Stock on a conversion date prior to the Damages Payment Date, shall, in any such
event, be paid instead to the Holder that submitted such Preferred Stock for
redemption or conversion on the applicable redemption date or conversion date,
as the case may be, on such date (promptly following the conversion date, in the
case of conversion of Preferred Stock). Each obligation to pay Preferred Stock
Liquidated Damages shall be deemed to commence accruing on the date of the
applicable Registration Default and to cease accruing when all Registration
Defaults have been cured.
(d) All Preferred Stock Liquidated Damages with respect to any
shares of Preferred Stock that are Transfer Restricted Securities, that remain
unpaid when such Securities cease to be Transfer Restricted Securities or cease
to be outstanding, shall remain unpaid obligations of the Company until they
have been paid in full.
7. Rules 144 and 144A. The Company shall use its reasonable
efforts to file the reports required to be filed under the Act and the Exchange
Act in a timely manner and, if at any time the Company is not required to file
such reports, will, upon the request of any Holder of Transfer
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Restricted Securities, make publicly available other information so long as
necessary to permit sales of its securities pursuant to Rules 144 and 144A. The
Company covenants that it will take such further action as any Holder of
Transfer Restricted Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Transfer Restricted
Securities without registration under the Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of Rule
144A(d)(4)). The Company will provide a copy of this Agreement to prospective
purchasers of Securities identified to the Company by the Purchasers upon
request. Upon the request of any Holder of Transfer Restricted Securities, the
Company shall deliver to such Holder a written statement as to whether it has
complied with such requirements. Notwithstanding the foregoing, nothing in this
Section 7 shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof,
enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(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 the Majority Holders;
provided that, with respect to any matter that directly or indirectly
affects the rights of the Purchasers hereunder, the Company shall
obtain the written consent of the Purchasers against which such
amendment, qualification, supplement, waiver or consent is to be
effective. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the
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rights of Holders whose Securities are being sold pursuant to a Shelf
Registration Statement and that does not directly or indirectly affect
the rights of other Holders may be given by the Majority Holders,
determined on the basis of securities being sold rather than registered
under such Shelf Registration Statement.
(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 8(c), which address initially is,
with respect to each Holder, the address of such Holder
maintained by the Registrar of the Securities, with a copy in
like manner to Bear, Xxxxxxx & Co. Inc.;
(2) if to you, initially at the address set forth in
the Purchase Agreement; and
(3) if to the Company or Globalstar, initially at its
address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Purchasers or the Company by 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, including, without the need for an express assignment or
any consent by the Company or Globalstar thereto, subsequent Holders of
Securities. The Company and Globalstar hereby agree to extend the
benefits of this Agreement to any Holder of Securities and any such
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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.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(h) Jurisdiction. EACH OF THE COMPANY AND GLOBALSTAR HEREBY
IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED
STATES DISTRICT COURTS LOCATED IN THE CITY OF NEW YORK FOR ANY
LAWSUITS, CLAIMS OR OTHER PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND AGREES NOT TO COMMENCE ANY SUCH LAWSUIT, CLAIM OR
OTHER PROCEEDING EXCEPT IN SUCH COURTS. EACH OF THE COMPANY AND
GLOBALSTAR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION
TO THE LAYING OF VENUE OF ANY LAWSUIT, CLAIM, OR OTHER PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT IN THE COURTS OF THE STATE
OF NEW YORK OR THE UNITED STATES DISTRICT COURTS LOCATED IN THE CITY OF
NEW YORK, AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH LAWSUIT,
CLAIM OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM. EACH OF THE COMPANY AND GLOBALSTAR HAS APPOINTED
XXXX X. XXXXXX AT 000 XXXXX XXXXXX, XXX XXXX, XXX XXXX 00000, X.X.X.
(HEREINAFTER REFERRED TO IN EACH SUCH CAPACITY AS THE "PROCESS AGENT"),
AS ITS AUTHORIZED AGENT UPON WHOM PROCESS MAY BE SERVED IN ANY SUCH
SUIT OR PROCEEDING. EACH OF THE COMPANY AND GLOBALSTAR REPRESENTS TO
YOU THAT IT HAS NOTIFIED THE PROCESS
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AGENT OF SUCH DESIGNATION AND APPOINTMENT AND THAT THE PROCESS AGENT
HAS ACCEPTED THE SAME IN WRITING. EACH OF THE COMPANY AND GLOBALSTAR
HAS AUTHORIZED AND DIRECTED THE PROCESS AGENT TO ACCEPT SUCH SERVICE.
IF THE PROCESS AGENT SHALL CEASE TO ACT AS THE COMPANY'S OR
GLOBALSTAR'S AGENT FOR SERVICE OF PROCESS, THE COMPANY OR GLOBALSTAR,
AS APPLICABLE, SHALL APPOINT WITHOUT DELAY ANOTHER SUCH AGENT AND
NOTIFY YOU OF SUCH APPOINTMENT. EACH OF THE COMPANY AND GLOBALSTAR
FURTHER AGREES THAT SERVICE OF PROCESS UPON THE PROCESS AGENT AND
WRITTEN NOTICE OF SAID SERVICE TO THE COMPANY OR GLOBALSTAR, AS
APPLICABLE, MAILED BY FIRST CLASS MAIL OR DELIVERED TO THE PROCESS
AGENT SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS
UPON IT IN ANY SUCH SUIT OR PROCEEDING. NOTHING HEREIN SHALL AFFECT
YOUR RIGHT OR THE RIGHT OF ANY PERSON CONTROLLING ANY OF YOU TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. EACH OF THE COMPANY AND
GLOBALSTAR AGREES THAT A FINAL ACTION IN ANY SUCH SUIT OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT
ON THE JUDGMENT OR IN ANY OTHER LAWFUL MANNER.
(i) 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.
(j) Securities Held by the Company or Globalstar, etc.
Whenever the consent or approval of Holders of a specified percentage
of principal amount or liquidation preference, as the case may be, of
Securities is required hereunder, Securities held by the Company,
Globalstar or their respective Affiliates (other than subsequent
Holders of Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities) shall
not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
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Please confirm that the foregoing correctly sets forth the
agreement between the Company and you.
Very truly yours,
GLOBALSTAR TELECOMMUNICATIONS
LIMITED,
by /s/ Xxxx X. Xxxxxx
------------------------------
Name:
Title:
GLOBALSTAR, L.P., by
LORAL/QUALCOMM SATELLITE
SERVICES, L.P., its general
partner, by
LORAL/QUALCOMM PARTNERSHIP,
L.P., its general partner, by
LORAL GENERAL PARTNER, INC.,
its general partner,
by /s/ Xxxx X. Xxxxxx
------------------------------
Name:
Title:
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Accepted in New York, New York
January 26, 1999
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXXX BROTHERS INC.
X.X. XXXXXXXXX, TOWBIN
CIBC XXXXXXXXXXX CORP.
ING BARING XXXXXX XXXX LLC
by BEAR, XXXXXXX & CO. INC.
by /s/ X. Xxxxxx Xxxxxx
-------------------------------
Name: X. Xxxxxx Xxxxxx
Title: Senior Managing Director
