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Exhibit 4.6
WARRANT REGISTRATION RIGHTS AGREEMENT
DATED AS OF FEBRUARY 25, 1998
BY AND AMONG
ORBITAL IMAGING CORPORATION
AND
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
NATIONSBANC XXXXXXXXXX SECURITIES LLC
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This Warrant Registration Rights Agreement (the "Agreement") is made
and entered into as of February 25, 1998, by and among Orbital Imaging
Corporation, a Delaware corporation (the "Company"), and Bear, Xxxxxxx & Co.
Inc., Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
and NationsBanc Xxxxxxxxxx Securities LLC (each an "Initial Purchaser" and
together, the "Initial Purchasers"), each of whom has agreed to purchase an
aggregate of 100,000 Units consisting of an aggregate of $100,000,000 in
aggregate principal amount at maturity of the Company's 11 5/8% Series A Senior
Notes due 2005 (the "Series A Notes") and warrants (the "Warrants") to purchase
an aggregate of 1,312,746 shares of the Company's Common Stock, $.01 par value,
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement (the
"Purchase Agreement"), dated as of February 20, 1998, between the Company and
the Initial Purchasers. In order to induce the Initial Purchasers to purchase
the Units, the Company has agreed to provide the registration rights set forth
in this Agreement. The execution and delivery of this Agreement is a condition
to the obligations of the Initial Purchasers set forth in Section 8 of the
Purchase Agreement. All defined terms used but not defined herein shall have the
meanings ascribed to them in the Indenture (as defined below).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Business Day: Any day except a Saturday, Sunday or other day in the
City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Common Stock: The common stock, $.01 par value, of the Company.
Exchange Act: The Securities Exchange Act of 1934, as amended
Exchange Offer: The offer to exchange and issuance by the Company of a
principal amount of Series B Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of Series A Notes that are validly tendered by such Holders in connection with
such exchange and issuance.
Holders: As defined in Section 2 hereof.
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Indenture: The Indenture, dated the Closing Date, by and between the
Company and Marine Midland Bank, as trustee (the "Trustee"), pursuant to which
the Notes are to be issued, as such Indenture is amended or supplemented from
time to time in accordance with the terms thereof.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, limited liability
company, joint venture, trust, unincorporated organization, or a government or
agency or political subdivision thereof.
Prospectus: The prospectus included in a Shelf Registration Statement
at the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Registrable Securities: The Warrants, Warrant Shares and any other
securities issued or issuable with respect to the Warrants or the Warrant Shares
by way of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization;
provided that a security ceases to be a Registrable Security when it is no
longer a Transfer Restricted Security.
Registration Expenses: See Section 6 hereof.
Shelf Registration Statement: Any registration statement of the Company
which covers Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such Shelf
Registration Statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such Registration Statement.
Transfer Restricted Securities: A Warrant or Warrant Share, until such
Warrant or Warrant Share (i) has been effectively registered under the Act and
resold in accordance with the Shelf Registration Statement covering it, (ii) is
distributed to the public pursuant to Rule 144 or (iii) may be sold or
transferred pursuant to Rule 144(k) (or any similar provisions then in force)
under the Act or otherwise.
Trustee: Marine Midland Bank or such other person who may be the
trustee under the Indenture.
Warrants: The warrants to purchase an aggregate of 1,312,726 shares of
Common Stock of the company issued pursuant to the Purchase Agreement and the
Warrant Agreement, together with any warrants issued in substitution or
replacement therefor.
Warrant Agreement: The Warrant Agreement dated the Closing Date by and
between the Company and Marine Midland Bank, as Warrant Agent.
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Warrant Shares: The Common Stock or other securities which any Holder
may acquire upon exercise of a Warrant, together with any other securities which
such Holder may acquire on account of any such securities, including, without
limitation, as the result of any dividend or other distribution on Common Stock
or any split-up of such Common Stock as provided for in the Warrant Agreement.
SECTION 2. HOLDER. A Person is deemed to be a holder of Registrable
Securities (each a "Holder") whenever such Person owns Registrable Securities or
holds a beneficial interest in Registrable Securities.
SECTION 3. SHELF REGISTRATION.
(a) Shelf Registration. The Company shall use its best efforts
to file a Shelf Registration Statement with respect to all Registrable
Securities on any appropriate form pursuant to Rule 415 (or similar rule that
may be adopted by the Commission) under the Act within 270 days after the
Closing Date covering (i) resales by the Holders of the Warrants, and (ii) the
issuance of the Warrant Shares by the Company upon exercise, or if such issuance
is not then permitted to be registered by applicable rule or policy of the
Commission, covering resales of the Warrant Shares and shall use its best
efforts to have such Shelf Registration Statement declared effective by the
Commission on or prior to 95 days after the dates specified for such filings.
Notwithstanding the foregoing, the Company shall not be required to file such
Shelf Registration Statement on or prior to the consummation of the Exchange
Offer; provided that, in the event the Exchange Offer is consummated later than
the filing time required by the preceding sentence for each Shelf Registration
Statement, the Company shall file such Shelf Registration Statement(s) within 30
days after the date of the consummation of the Exchange Offer; and shall use its
best efforts to have the Shelf Registration Statement declared effective within
95 days thereafter provided that no Holder shall be entitled to have its
Registrable Securities covered by the Shelf Registration Statement unless such
Holder is in compliance with Section (b) hereof.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder may include any of its
Registrable Securities in the Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in writing such
information as the Company may reasonably request specified in Item 507 and
Items 508 of Regulation S-K under the Act for use in connection with the Shelf
Registration Statement. Each Holder agrees to furnish promptly to the Company
all information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading.
(c) Black-out Periods. During any consecutive 365 day period,
the Company may suspend the effectiveness of the Shelf Registration Statement on
two occasions for a period of not more than 45 consecutive days if there is a
possible acquisition or business combination or other transaction, business
development or event involving the Company that may require disclosure in the
Shelf Registration Statement and the Board of Directors of the Company
determines in the exercise of its reasonable judgment that such disclosure is
not in the best interests of the Company and its stockholders or obtaining any
financial statements relating to a
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possible acquisition or business combination required to be included in the
Shelf Registration Statement would be impracticable. In such a case, the Company
shall promptly notify the Holders of the suspension of the Shelf Registration
Statement's effectiveness, provided that such notice shall not require the
Company to disclose the possible acquisition or business combination or other
transaction, business development or event if the Board of Directors of the
Company determines in good faith that such acquisition or business combination
or other transaction, business development or event should remain confidential.
Upon the abandonment, consummation, or termination of the possible acquisition
or business combination, or the availability of the required financial
statements with respect to a possible acquisition or business combination, the
suspension of the use of the Shelf Registration Statement pursuant to this
Section 3(f) shall cease and the Company shall promptly comply with Section 5
hereof and notify the holders that disposition of Registrable Securities may be
resumed. The length of any periods during which the Company prohibits offers and
sales of Registrable Securities pursuant to the Shelf Registration Statement
under this Section 3(f) shall not be considered periods of a Registration
Default under Section 5 hereof. In addition, the length of any periods during
which the Company prohibits offers and sales of Registrable Securities pursuant
to the Shelf Registration Statement under this Section 3(f) shall be added to
the period described in Section 3(f) above.
(d) If the Holders of a majority of the Registrable Securities
so elect, an offering of Registrable Securities pursuant to the Shelf
Registration Statement may be effected in the form of an underwritten offering.
In such event, and if the managing underwriters advise the Company and the
Holders of such Registrable Securities in writing that in their opinion the
amount of Registrable Securities proposed to be sold in such offering exceeds
the amount of Registrable Securities which can be sold in such offering, there
shall be included in such underwritten offering the amount of such Registrable
Securities which in the opinion of such managing underwriters can be sold, and
such amount shall be allocated pro rata among the Holders of such Registrable
Securities on the basis of the principal amount of Registrable Securities
requested to be included by such Holders. The Holders of the Registrable
Securities to be registered shall pay all underwriting discounts and commissions
of such underwriters.
(e) If any of the Registrable Securities covered by the Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority of such
Registrable Securities included in such offering; provided that such investment
bank or manager shall be reasonably satisfactory to the Company.
(f) The Company shall use its best efforts (i) to keep the
Shelf Registration Statement continuously effective in order to permit the
Prospectus forming a part thereof to be usable from the date that the Shelf
Registration Statement is declared effective until the earlier of (A) the
expiration of the Warrants, and (B) such date as all Registrable Securities have
been sold, and (ii) after the effectiveness of the Shelf Registration Statement,
promptly upon the request of any Holder, to take any action reasonably necessary
to register the sale of any Registrable Securities of such Holder and to
identify such Holder as a selling security holder. The Company further agrees to
use its best efforts to prevent the happening of any event that
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would cause the Shelf Registration Statement pursuant to Section 3 hereof to
contain a material misstatement or omission or to be not effective and usable
for resale of the Registrable Securities during the period that such Shelf
Registration Statement is required to be effective and usable.
(g) Each Holder whose Registrable Securities are covered by a
Shelf Registration Statement filed pursuant to this Section 3 agrees, if
requested by the managing underwriters in an underwritten offering, not to
effect any public sale or distribution of securities of the Company of the same
class as any Securities included in such Shelf Registration Statement, including
a sale pursuant to Rule 144 under the Act (except as part of such underwritten
offering), during the 10-day period prior to, and during the 90-day period
beginning on, the closing date of each underwritten offering made pursuant to
such Shelf Registration Statement, to the extent timely notified in writing by
the Company or the managing underwriters; provided that each Holder shall be
subject to the hold-back restrictions of this Section 3(e) only once during the
term of this Agreement.
The foregoing provisions shall not apply to any Holder if such Holder
is prevented by applicable statute or regulation from entering into any such
agreement; provided that any such Holder shall undertake, in its request to
participate in any such underwritten offering, not to effect any public sale or
distribution of any applicable class of Registrable Securities commencing on the
date of sale of such applicable class of Registrable Securities unless it has
provided 45 days prior written notice of such sale or distribution to the
underwriter or underwriters.
SECTION 4. LIQUIDATED DAMAGES. If the Shelf Registration Statement: (i)
is not filed with the Commission on or prior to the date specified for such
filing in Section 3(a) hereof; (ii) has not been declared effective by the
Commission pursuant to Section 3(a) hereof; or (iii) following the date such
Shelf Registration Statement is declared effective by the Commission, shall
cease to be effective without being restored to effectiveness by amendment or
otherwise within 30 business days, (each such event referred to in clauses (i)
through (iii), a "Shelf Registration Statement Default"), the Company shall pay
as liquidated damages ("Liquidated Damages") to each Holder of Warrants or
Warrant Shares an amount (the "Damage Amount") equal to $.0025 per week per
Warrant for each week that the Shelf Registration Statement Default continues.
The amount of Liquidated Damages will increase by an additional $.0025 per week
per Warrant with respect to subsequent 90-day period until all Shelf
Registration Statement Defaults have been cured, up to a maximum amount of
Liquidated Damages of $.0125 per week per Warrant.
All accrued liquidated damages will be paid to record Holders by the
Company by wire transfer of immediately available funds or a federal funds
check, and to Holders of Certificated Securities by mailing checks to their
registered addresses on each Interest Payment Date (as defined in the
Indenture). All obligations of the Company set forth in the preceding paragraph
that are outstanding with respect to any Registrable Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such security have been satisfied
in full.
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SECTION 5. REGISTRATION PROCEDURES. (a) General Provisions. In
connection with the Company's registration obligations pursuant to Section 3
hereof, the Company will use its best efforts to effect such registration to
permit the sale of such Registrable Securities in accordance with the intended
method or methods of disposition thereof, and pursuant thereto the Company will
as expeditiously as possible:
(1) use its best efforts to keep such Shelf
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 of this Agreement.
Upon the occurrence of any event that would cause any such Shelf Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable for resale of
Registrable Securities during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to such Shelf Registration
Statement or file appropriate documents that will be so incorporated by
reference, (1) in the case of clause (A), correcting any such misstatement or
omission, and (2) in the case of either clause (A) or (B), use its best efforts
to cause such amendment to be declared effective and such Shelf Registration
Statement and the related Prospectus to become usable for their intended
purpose(s) as soon as reasonably practicable thereafter;
(2) prepare and file with the Commission such
amendments and post-effective amendments to the Shelf Registration Statement as
may be necessary to keep the Shelf Registration Statement effective for the
period set forth in Section 3(d) hereof; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Act; and comply with the provisions of the Act
with respect to the disposition of all securities covered by such Shelf
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in
such Shelf Registration Statement or supplement to the Prospectus;
(3) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any Shelf Registration Statement
or any post-effective amendment thereto, when the same has become effective, (B)
of any request by the Commission for amendments to the Shelf Registration
Statement or amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf Registration Statement under the
Act or of the suspension by any state securities commission of the qualification
of the Registrable Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any statement of
a material fact made in the Shelf Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the Shelf Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in the
Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If at any time the
Commission shall issue any stop order
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suspending the effectiveness of the Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Registrable
Securities under state securities or blue sky laws, the Company shall use its
best efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;
(4) furnish to each selling Holder named in any Shelf
Registration Statement or Prospectus and each of the underwriter(s) in
connection with such sale, if any, before filing with the Commission, copies of
any Shelf Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Shelf Registration Statement or
Prospectus, which documents will be subject to the review of such Holders and
underwriter(s), if any, in connection with such sale, for a period of at least
five Business Days, and the Company will not file or will correct any such Shelf
Registration Statement or Prospectus (including all documents incorporated by
reference) to which the selling Holders of the Registrable Securities covered by
such Shelf Registration Statement or the underwriter(s) in connection with such
sale, if any, shall reasonably object within five (5) Business Days after the
receipt thereof. A selling Holder or underwriter, if any, shall be deemed to
have reasonably objected to such filing if such Shelf Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission or fails to comply with the
applicable requirements of the Act;
(5) promptly prior to the filing of any document that
is to be incorporated by reference into a Shelf Registration Statement or
Prospectus, provide notice identifying such document, and upon request, furnish
copies of such document to one counsel for such selling Holders designated by a
majority of such Holders and to the underwriter(s), if any, in connection with
such sale, make the Company's representatives available for discussion of such
document and other customary due diligence matters, and include such information
in such document prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(6) subject to the entry of appropriate
confidentiality agreements, make available at reasonable times for inspection by
the selling Holders, any managing underwriter participating in any disposition
pursuant to such Shelf Registration Statement and any attorney or accountant
retained by such selling Holders or any of such underwriter(s), all financial
and other records, pertinent corporate documents and properties of the Company
and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such Holder, underwriter, attorney or
accountant in connection with such Shelf Registration Statement or any post-
effective amendment thereto subsequent to the filing thereof and prior to its
effectiveness;
(7) if requested by any selling Holders or the
underwriter(s), if any, in connection with such sale, promptly include in any
Shelf Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling Holders
and underwriter(s), if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Registrable
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Securities, information with respect to the number of Registrable Securities
being sold to such underwriter(s), the purchase price being paid therefor and
any other terms of the offering of the Registrable Securities to be sold in such
offering; and make all required filings of such prospectus supplement or
post-effective amendment available to such selling Holders as soon as
practicable after the Company is notified of the matters to be included in such
prospectus supplement or post-effective amendment;
(8) furnish to each selling Holder and each of the
underwriter(s), if any, in connection with such sale, without charge, at least
one copy of the Shelf Registration Statement, as first filed with the
Commission, and of each amendment thereto, and make available all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(9) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Persons reasonably may request; the Company hereby consents to the use
(in accordance with law) of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s), if any,
in connection with the offering and the sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto;
(10) enter into such agreements (including an
underwriting agreement) and make such representations and warranties and take
all such other actions in connection therewith in order to expedite or
facilitate the disposition of the Registrable Securities pursuant to any Shelf
Registration Statement contemplated by this Agreement as may be reasonably
requested by any Holder of Registrable Securities or underwriter, and in such
connection, (A) make such representations and warranties to the underwriters,
with respect to the business of the Company and the Shelf Registration
Statement, Prospectus and documents, if any, incorporated or deemed incorporated
by reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings, and confirm the same if and when
requested; (B) obtain an opinion, dated the date of effectiveness of the Shelf
Registration Statement of counsel for the Company covering matters customarily
covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by the underwriters, including a statement to the
effect that such counsel has participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company at which the contents of such Shelf Registration
Statement and related Prospectus were discussed, although such counsel has not
independently verified, and does not assume any responsibility for, the
accuracy, completeness or fairness of such statements; and that such counsel
advises that, on the basis of the foregoing (relying as to materiality to a
large extent upon facts provided to such counsel by officers and other
representatives of the Company and without independent check or verification),
no facts came to such counsel's attention that caused such counsel to believe
that the applicable Shelf Registration Statement, at the time such Shelf
Registration Statement or any post-effective amendment thereto became effective
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus contained in
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such Shelf Registration Statement as of its date contained an untrue statement
of a material fact or omitted 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. Without limiting the foregoing, such counsel may
state further that such counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial and statistical data
included in any Shelf Registration Statement contemplated by this Agreement or
the related Prospectus; and (C) obtain a customary comfort letter, dated as of
the date of effectiveness of the Shelf Registration Statement from the Company's
independent accountants, in the customary form and covering matters of the type
customarily covered in comfort letters to underwriters; and (D) if an
underwriting agreement is entered into, the same shall contain indemnification
and contribution provisions and procedures no less favorable than those set
forth in Section 7 hereof with respect to all parties to be indemnified pursuant
to Section 8. The above shall be done at each closing under such underwriting or
similar agreement, as and to the extent required thereunder, and if at any time
the representations and warranties of the Company contemplated in (A)(1) above
cease to be true and correct, the Company shall so advise the underwriter(s), if
any, the selling Holders promptly and if requested by such Persons, shall
confirm such advice in writing;
(11) prior to any public offering of Registrable
Securities, cooperate with the selling Holders, the underwriter(s), if any, and
their counsel in connection with the registration and qualification of the
Registrable Securities under the securities or blue sky laws of such
jurisdictions as the selling Holders or underwriter(s), if any, may request and
do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by the
applicable Shelf Registration Statement; provided, however, that the Company
shall not be required to register or qualify as a foreign corporation where it
is not now so qualified or would not otherwise be required to be so qualified
but for this Section 5(a)(11) or to take any action that would subject it to the
service of process in suits or to taxation, in any jurisdiction where it is not
now so subject; to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends; and to register such Transfer Restricted
Securities in such denominations and such names as the Holders or the
underwriter(s), if any, may request at least two Business Days prior to such
sale of Transfer Restricted Securities;
(12) in connection with any sale of Registrable
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends; and to register such Registrable Securities in such
denominations and such names as the Holders or the underwriter(s), if any, may
request at least two Business Days prior to such sale of Registrable Securities;
(13) use its best efforts to cause the Registrable
Securities covered by the Shelf Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the
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underwriter(s), if any, to consummate the disposition of such Registrable
Securities, subject to the proviso contained in clause (11) above;
(14) if any fact or event contemplated by clause (2)
above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Shelf Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Registrable Securities,
the Prospectus will not contain 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;
(15) provide a CUSIP number for all Registrable
Securities not later than the effective date of a Shelf Registration Statement
covering such Registrable Securities and provide the Trustee under the Indenture
with printed certificates for the Registrable Securities which are in a form
eligible for deposit with the Depository Trust Company;
(16) cooperate and assist in any filings required to
be made with the NASD and in the performance of any due diligence investigation
by any underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use its best efforts to cause such Shelf Registration Statement to
become effective and approved by such governmental agencies or authorities as
may be necessary to enable the Holders selling Registrable Securities to
consummate the disposition of such Registrable Securities;
(17) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and make generally
available to the Holders as soon as reasonably practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the "effective date of
the registration statement" (as such term is defined in paragraph (c) of Rule
158 under the Act);
(18) cause all Registrable Securities covered by the
Shelf Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed if requested by the
Holders of a majority of Registrable Securities or the managing underwriter(s),
if any; and
(19) provide promptly to each Holder upon written
request each document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(b) Restrictions on Holders. Each Holder agrees by acquisition
of a Registrable Security that, upon receipt of any notice from the Company of
the existence of any fact of the kind described in Section 5(a)(3)(D) hereof,
such Holder will forthwith discontinue disposition of Registrable Securities
pursuant to the applicable Shelf Registration Statement until
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such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(a)(14) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus. If so directed by the Company, each Holder will
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 that was current at the time of receipt of
such notice. In the event the Company shall give any such notice, the time
period regarding the effectiveness of such Shelf Registration Statement set
forth in Section 3 hereof, as applicable, shall be extended by the number of
days during the period from and including the date of the giving of such notice
pursuant to Section 5(a)(3)(D) hereof to and including the date when each
selling Holder covered by such Shelf Registration Statement shall have received
the copies of the supplemented or amended Prospectus contemplated by Section
5(a)(14) hereof or shall have received the Advice.
SECTION 6. REGISTRATION EXPENSES. (a) All expenses incident to the
Company's performance of or compliance with this Agreement will be borne by the
Company, regardless of whether a Shelf Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses
(including filings made by any Holder with the NASD); (ii) all fees and expenses
of compliance with federal securities and state blue sky or securities laws;
(iii) all expenses of printing (including, without limitation, expenses of
printing or engraving certificates for the Registrable Securities in a form
eligible for deposit with The Depositary Trust Company and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company and the Holders of Transfer Restricted
Securities; (v) all application and filing fees in connection with listing the
Registrable Securities on a national exchange or automated quotation system
pursuant to the requirements hereof; and (vi) all fees and disbursements of
independent certified public accountants of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance). The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
(b) In connection with each Shelf Registration Statement
required hereunder, the Company will reimburse the Holders of Registrable
Securities being registered pursuant to such Shelf Registration Statement for
the reasonable fees and disbursements of not more than one counsel chosen by the
Holders of a majority of the Registrable Securities.
SECTION 7. INDEMNIFICATION. (a) The Company agrees to indemnify and
hold harmless (i) each Holder, (ii) each Person, if any, who controls a Holder
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act
(a "Controlling Person") and (iii) the respective officers, directors, partners,
employees, representatives and agents of any Holder or any Controlling Person to
the fullest extent lawful, from and against any and all losses, liabilities,
claims, damages and expenses whatsoever (including but not limited to reasonable
attorneys' fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any investigation or litigation,
commenced or threatened, or any claim whatsoever, and
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any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Shelf Registration Statement or the Prospectus, or in any supplement thereto or
amendment thereof, 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, in the light of the circumstances
under which they were made, not misleading; provided, that the Company will not
be liable in any such case to the extent that any such loss, liability, claim,
damage or expense 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
Company by or on behalf of such Holder expressly for use therein.
(b) Each Holder, severally and not jointly, agrees to
indemnify and hold harmless the Company and each Controlling Person of the
Company and the respective officers, directors, partners, employees,
representatives and agents of the Company or any Controlling Person against any
losses, liabilities, claims, damages and expenses whatsoever (including but not
limited to reasonable attorneys' fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending against any
investigation or litigation, commenced or threatened, or any claim whatsoever
and any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Shelf Registration Statement or the 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, in the light of the circumstances
under which they were made, not misleading, in each case to the extent, but only
to the extent, that any such loss, liability, claim, damage or expense arise out
of or is based upon any 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 Company by or on behalf of such Holder expressly
for use therein. In no event, however, shall the liability of any selling Holder
hereunder be greater in amount than the dollar amount of the proceeds received
by such Holder upon its sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve such indemnifying
party from any liability which it may have under this Section 7 except to the
extent that it has been prejudiced in any material respect by such failure to
notify by the indemnified party or from any liability which it may otherwise
have). In case any such action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent it may elect by
written notice delivered to the
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indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such action, (ii) the indemnifying party or
parties shall not have employed counsel to take charge of the defense of such
action within a reasonable time after notice of commencement of the action, or
(iii) such indemnified party or parties shall have reasonably concluded, upon
the advice of counsel, that there may be defenses available to it or them which
are different from or additional to those available to one or all of the
indemnifying party or parties (in which case the indemnifying party or parties
shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses of
counsel shall be borne by the indemnifying parties. The indemnifying party under
subsection (a) or (b) above, shall only be liable for the legal expenses of one
counsel (in addition to any local counsel) for all indemnified parties in each
jurisdiction in which any claim or action is brought. Anything in this
subsection to the contrary notwithstanding, an indemnifying party shall not be
liable for any settlement of any claim or action effected without its prior
written consent; provided, that such consent was not unreasonably withheld.
(d) In order to provide for contribution in
circumstances in which the indemnification provided for in this Section 7 is for
any reason held to be unavailable or is insufficient to hold harmless a party
indemnified hereunder, the Company and each Holder shall contribute to the
aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and expenses
suffered by the Company, any contribution received by the Company from Persons,
other than the Holder who may also be liable for contribution, including
Controlling Persons of the Company to which the Company and any Holders may be
subject, in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Holders or, if such allocation is not permitted
by applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in this Section 7, in
such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company and the Holder in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and any
Holder shall be deemed to be in the same proportion as (x) the total proceeds
from the Offering of the Registrable Securities (net of discounts but before
deducting expenses) received by the Company and (y) the total proceeds received
by such Holder upon its sale of Registrable Securities which would otherwise
give rise to the indemnification obligation, respectively. The relative fault of
the Company and of the Holders shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Holders and the parties' relative intent,
knowledge, access to information and
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opportunity to correct or prevent such statement or omission. The Company and
the Holders agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation or by any
other method of allocation which does not take into account the equitable
considerations referred to above. Notwithstanding the provisions of this Section
7, (i) no Holder shall be required to contribute, in the aggregate, any amount
in excess of the dollar amount by which the proceeds received by such Holder
with respect to the sale of its Registrable Securities pursuant to a Shelf
Registration Statement exceeds the sum of (A) the amount paid by such Holder for
such Registrable Securities plus (B) the amount of any damages which such Holder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission and indemnification obligation,
respectively; and (ii) 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. The Holders'
obligations to contribute pursuant to this Section 7(d) are several in
proportion to the respective number of Registrable Securities held by each of
the Holders hereunder and not joint.
For purposes of this Section 7, (A) each Controlling Person of a Holder
and (B) the respective officers, directors, partners, employees, representatives
and agents of any Initial Purchaser or any Controlling Person shall have the
same rights to contribution as such Initial Purchaser, and each Controlling
Person of the Company shall have the same rights to contribution as the Company,
subject in each case to clauses (i) and (ii) of this Section 7(d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this Section
7(d), notify such party or parties from whom contribution may be sought, but the
failure to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 7(d) or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its prior
written consent; provided that such written consent was not unreasonably
withheld.
SECTION 8. RULE 144A. The Company hereby agrees with each Holder, for
so long as any Registrable Securities remain outstanding and during any period
in which the Company is not subject to Section 13 or 15(d) of the Act, to make
available, upon request of any Holder, to any Holder or beneficial owner of
Registrable Securities in connection with any sale thereof and any prospective
purchaser of such Registrable Securities designated by such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Act in order to
permit resales of such Registrable Securities pursuant to Rule 144A.
SECTION 9. MISCELLANEOUS.
(a) Remedies. The Company agrees that monetary damages 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.
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(b) No Inconsistent Agreements. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. Except as disclosed
in the Offering Memorandum, the Company has not previously entered into any
agreement granting any registration rights with respect to its securities to any
Person. The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the
Company's securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Registrable Securities. The
Company will not take any action, or permit any change to occur, with respect to
the Registrable Securities that would (i) adversely affect the ability of the
Holders to include such Registrable Securities in a registration undertaken
pursuant to this Agreement or (ii) materially adversely affect the marketability
of the Registrable Securities in any such registration.
(d) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions
hereof may not be given unless the Company has obtained the written consent of
Holders of a majority of the Registrable Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are sold pursuant
to a Shelf Registration Statement and that does not affect directly or
indirectly the rights of other Holders may be given by the Holders of a majority
of the Registrable Securities being sold.
(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), facsimile
transmission, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Warrant Agent under the Warrant Agreement, with a copy to the
Warrant Agent under the Warrant Agreement; and
(ii) if to the Company:
Orbital Imaging Corporation
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; upon receipt of a
confirmation notice, if sent by facsimile
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transmission; when answered back, if telexed; when receipt acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Warrant Agent at the
address specified in the Warrant Agreement.
(f) 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 limitation and without the need for an express
assignment, subsequent Holders of Registrable Securities; provided, however,
that this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign acquired Registrable Securities directly from such Holder.
(g) 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.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the
Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Warrant Registration
Rights Agreement as of the date first written above.
ORBITAL IMAGING CORPORATION
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By:
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Name:
Title:
BEAR, XXXXXXX & CO. INC.
By:
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Name:
Title:
XXXXXXX XXXXX, XXXXXX XXXXXX & XXXXX INCORPORATED
By:
--------------------------------------------
Name:
Title:
NATIONSBANC XXXXXXXXXX SECURITIES LCC
By:
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Name:
Title:
17
