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EXHIBIT 10.13
GLOBALSTAR, L.P.
GLOBALSTAR CAPITAL CORPORATION
Up to $325,000,000
10 3/4% Senior Notes due 2004
REGISTRATION RIGHTS AGREEMENT
October 29, 1997
Bear, Xxxxxxx & Co. Inc.
In care of Bear, Xxxxxxx & Co. Inc.
As Representative of the
Several Initial Purchasers
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00x00
Ladies and Gentlemen:
Globalstar, L.P., a Delaware limited partnership ("Globalstar"), and
Globalstar Capital Corporation, a Delaware corporation ("Globalstar Capital"
and, together with Globalstar, the "Issuers"), propose, subject to the terms and
conditions stated in a purchase agreement dated October 21, 1997 (the "Purchase
Agreement"), to jointly and severally issue and sell to Bear, Xxxxxxx & Co.
Inc., Xxxxxx Brothers Inc. and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation (the "Initial Purchasers") $325,000,000 aggregate principal amount
of 10 3/4% Senior Notes due 2004. The Notes will be issued pursuant to an
indenture dated as of October 15, 1997 (the "Indenture"), among the Issuers and
The Bank of New York, as trustee (the "Trustee"). This Agreement will have no
force and effect until the Notes are issued. As an inducement to the Initial
Purchasers, the Issuers hereby agree with the several Initial Purchasers, for
the benefit of the holders of the Notes (including, without limitation, the
Initial Purchasers), the Exchange Notes (as defined below) and the Private
Exchange Notes (as defined below) (collectively, the "Holders"), as follows:
1. Registered Exchange Offer. The Issuers shall, at their cost and
expense, prepare and, not later than 60 days after (or if the 60th day is not a
business day, the first business day thereafter) the Issue Date (as defined in
the Indenture) of the Notes, file with the Securities and Exchange Commission
(the "Commission") a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act of 1933, as
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amended (the "Securities Act"), with respect to a proposed offer (the
"Registered Exchange Offer") to the Holders of Transfer Restricted Notes (as
defined in Section 6(e)), who are not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer, to issue and
deliver to such Holders, in exchange for the Notes, a like aggregate principal
amount of debt securities (the "Exchange Notes") of the Issuers issued under the
Indenture and identical in all material respects to the Notes (except for the
transfer restrictions relating to the Notes) that would be registered under the
Securities Act. The Issuers shall use reasonable efforts to cause such Exchange
Offer Registration Statement to become effective under the Securities Act within
180 days (or if the 180th day is not a business day, the first business day
thereafter) after the Issue Date of the Notes and shall keep the Exchange Offer
Registration Statement effective for not less than 30 days (or longer if
required by applicable law or the policy of the Commission) after the date on
which notice of the Registered Exchange Offer is mailed to the Holders (such
period being called the "Exchange Offer Registration Period").
If the Issuers effect the Registered Exchange Offer, the Issuers
will be entitled to close the Registered Exchange Offer 30 days after the
commencement thereof; provided, however, that the Issuers have accepted all the
Notes theretofore validly tendered in accordance with the terms of the
Registered Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, unless the Registered Exchange Offer would not be
permitted by applicable law or the Commission's policy, the Issuers shall
promptly commence the Registered Exchange Offer, it being the objective of such
Registered Exchange Offer to enable each Holder of Transfer Restricted Notes
electing to exchange the Notes for Exchange Notes (assuming that such Holder is
not an affiliate of either of the Issuers within the meaning of the Securities
Act, acquires the Exchange Notes in the ordinary course of such Holder's
business, has no arrangements with any person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Notes and is not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such Exchange Notes from and after their
receipt without any limitations or restrictions under the Securities Act and
without material restrictions under the securities laws of the several states of
the United States. In connection with such Registered Exchange Offer, the
Issuers shall take all such reasonable
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further action, including, without limitation, appropriate filings under state
securities laws, as may be necessary to realize the foregoing objective subject
to the proviso of Section 3(h).
The Issuers and the Initial Purchasers acknowledge that the
foregoing statement of the objective of the Registered Exchange Offer is based
upon current interpretations by the staff of the Commission's Division of
Corporation Finance, which interpretations are subject to change without notice,
and further acknowledge that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder that is a broker-dealer electing
to exchange Notes, acquired for its own account as a result of market making
activities or other trading activities, for Exchange Notes (an "Exchanging
Dealer"), is required to deliver a prospectus containing the information set
forth in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section, and in
Annex C hereto in the "Plan of Distribution" section of such prospectus in
connection with a sale of any such Exchange Notes received by such Exchanging
Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser
that elects to sell Exchange Notes acquired in exchange for Notes constituting
any portion of an unsold allotment is required to deliver a prospectus
containing the information required by Items 507 or 508 of Regulation S-K under
the Securities Act, as applicable, in connection with such sale.
The Issuers shall use their reasonable efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Notes; provided, however, that (i)
in the case where such prospectus and any amendment or supplement thereto must
be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall
be the lesser of 180 days after the expiration date of the Registered Exchange
Offer and the date on which all Exchanging Dealers and the Initial Purchasers
have sold all Exchange Notes held by them (unless such period is extended
pursuant to Section 3(j) below), and (ii) the Issuers shall make such prospectus
and any amendment or supplement thereto available to any broker-dealer for use
in connection with any resale of any Exchange Notes for a period not less than
90 days after the consummation of the Registered Exchange Offer.
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If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Transfer Restricted Notes acquired by it as part of its initial
distribution, the Issuers, simultaneously with the delivery of the Exchange
Notes pursuant to the Registered Exchange Offer, shall issue and deliver to such
Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "Private Exchange") for the Transfer Restricted Notes held by such
Initial Purchaser, a like principal amount of debt securities of the Issuers
issued under the Indenture and identical in all material respects (including the
existence of restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States) to the Transfer
Restricted Notes (the "Private Exchange Notes"); provided, however, that the
Issuers shall not be required to effect such exchange if, in the opinion of
counsel to the Issuers, such exchange cannot be effected without registration
under the Securities Act. The Private Exchange Notes shall bear the same CUSIP
number as the Exchange Notes. The Transfer Restricted Notes, the Exchange Notes
and the Private Exchange Notes are herein collectively called the "Securities".
In connection with the Registered Exchange Offer, the Issuers shall:
(a) mail, or cause to be mailed, to each Holder a copy of the
prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30
calendar days (or longer, if required by applicable law or policy of the
Commission) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York,
which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Transfer Restricted Notes at
any time prior to the close of business, New York time, on the last
Business Day (as defined in the Indenture) on which the Registered
Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all applicable
law.
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As soon as practicable after the close of the Registered Exchange
Offer or the Private Exchange, as the case may be, the Issuers shall:
(i) accept for exchange all the Transfer Restricted Notes validly
tendered and not validly withdrawn pursuant to the Registered Exchange
Offer or the Private Exchange, as the case may be;
(ii) deliver, or cause to be delivered to, the Trustee for
cancelation all the Transfer Restricted Notes so accepted for exchange;
and
(iii) cause the Trustee to authenticate and promptly deliver to each
Holder of the Transfer Restricted Notes, Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal amount to the
Transfer Restricted Notes of each Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be issued
under the Indenture, which will provide that the Exchange Notes will not be
subject to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on the Exchange Notes and the Private Exchange Notes will
accrue from (A) the later of (i) the last interest payment date on which
interest was paid on the Securities surrendered in the exchange therefor or (ii)
if the Securities are surrendered for exchange on a date in a period which
includes the record date for an interest payment date to occur on or after the
date of such exchange and as to which interest will be paid, the date of such
interest payment date or (B) if no interest has been paid on such Securities,
from the date of original issue of the Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Issuers that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Notes received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the distribution
of the Notes or the Exchange Notes within the meaning of the Securities Act,
(iii) such Holder is not an "affiliate", as defined in Rule 405 of the
Securities Act, of either of the
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Issuers or, if it is an affiliate, such Holder will comply with the registration
and prospectus delivery requirements of the Securities Act to the extent
applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged
in, and does not intend to engage in, the distribution of the Exchange Notes,
and (v) if such Holder is a broker-dealer, that it will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities and that it will deliver a
prospectus in connection with any resale of such Exchange Notes.
Notwithstanding any other provisions hereof, the Issuers will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto will comply in
all material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer 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 Exchange Offer Registration Statement, and any supplement to
such prospectus, will not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that in no such case shall the
Issuers be responsible for information concerning any Initial Purchaser of the
Securities included in the Exchange Offer Registration Statement, the prospectus
contained therein, or any amendment or supplement thereto, as the case may be.
2. Shelf Registration. If (i) because of any change in law or
Commission policy or in applicable interpretations thereof by the staff of the
Commission, the Issuers are not permitted to effect a Registered Exchange Offer,
as contemplated by Section 1 hereof, (ii) the Registered Exchange Offer is not
consummated within 210 days of the Issue Date, (iii) the Initial Purchaser so
requests within 90 days after the consummation of the Registered Exchange Offer
with respect to the Transfer Restricted Notes (or the Private Exchange Notes)
not eligible to be exchanged for Exchange Notes in the Registered Exchange Offer
and held by it following consummation of the Registered Exchange Offer or (iv)
any Holder (other than an Exchanging Dealer) is not eligible to participate in
the Registered Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer) that participates in the Registered
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Exchange Offer, such Holder does not receive freely tradeable Exchange Notes on
the date of the exchange, the Issuers shall take the following actions:
(a) The Issuers shall, at their cost, use reasonable efforts to
file, as promptly as practicable (but in no event later than the earlier
of (i) 180 days after the Issue Date and (ii) 60 days after so required or
requested pursuant to this Section 2 with the Commission and shall
thereafter use their reasonable efforts to cause to be declared effective
a registration statement (the "Shelf Registration Statement" and, together
with the Exchange Offer Registration Statement, a "Registration
Statement") on an appropriate form under the Securities Act relating to
the offer and sale of the Transfer Restricted Notes by the Holders thereof
from time to time in accordance with the methods of distribution set forth
in the Shelf Registration Statement and Rule 415 under the Securities Act
(hereinafter, the "Shelf Registration"); provided, however, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Securities
held by it covered by such Shelf Registration Statement unless such Holder
agrees in writing to be bound by all the provisions of this Agreement
applicable to such Holder (including certain indemnification obligations).
(b) The Issuers shall use their reasonable efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities, until the principal of, and interest and Liquidated
Damages (if any) on, the Securities have been paid in full or such shorter
period that will terminate when all the Securities covered by the Shelf
Registration Statement (i) have been sold pursuant thereto or (ii) are
distributed to the public pursuant to Rule 144 under the Securities Act or
are saleable pursuant to Rule 144(k) under the Securities Act (in any such
case, such period being called the "Shelf Registration Period"). Subject
to Section 6(b), the Issuers shall be deemed not to have used their
reasonable efforts to keep the Shelf Registration Statement effective
during the requisite period if either of the Issuers voluntarily takes any
action that would result in Holders of Securities covered thereby not
being able to offer and sell such Securities during that period, unless
such action is required by applicable law; provided, however, that the
Issuers shall not be deemed to have
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voluntarily taken any such action if either of the Issuers enters, in good
faith, into negotiations concerning, or executes and delivers any
agreement or other document relating to, any business combination,
acquisition or disposition.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Issuers shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3. Registration Procedures. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Issuers shall (i) furnish to each Initial Purchaser, prior
to the filing thereof with the Commission, a copy of each Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that an Initial Purchaser
(with respect to any portion of an unsold allotment from the original
offering) is participating in the Registered Exchange Offer or the Shelf
Registration Statement, shall use its reasonable efforts to reflect in
each such document, when so filed with the Commission, such comments as
such Initial Purchaser reasonably may propose; (ii) include the
information set forth in Annex A hereto on the cover, in Annex B hereto in
the "Exchange Offer Procedures" section and the "Purpose of the Exchange
Offer" section and in Annex C hereto in the "Plan of Distribution" section
of the prospectus forming a part of the Exchange Offer Registration
Statement and include the information set forth in Annex D hereto in the
Letter of Transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include the information
required by Items 507 or 508 of Regulation S-K under the Securities Act,
as applicable, in the prospectus forming a part of the Exchange Offer
Registration Statement; (iv) include within the prospectus contained in
the Exchange Offer
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Registration Statement a section entitled "Plan of Distribution",
reasonably acceptable to the Initial Purchasers, which shall contain a
summary statement of the positions taken or policies made by the staff of
the Commission with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
Exchange Notes received by such broker-dealer in the Registered Exchange
Offer (a "Exchanging Dealer"), whether such positions or policies have
been publicly disseminated by the staff of the Commission or such
positions or policies, in the reasonable judgment of the Initial
Purchasers based upon advice of counsel (which may be in-house counsel),
represent the prevailing views of the staff of the Commission; and (v) in
the case of a Shelf Registration Statement, include the names of the
Holders who propose to sell Securities pursuant to the Shelf Registration
Statement as selling securityholders.
(b) The Issuers shall give written notice to the Initial Purchasers
and the Holders of the Securities from whom the Issuers have received
prior written notice that it will be a Exchanging Dealer in the Registered
Exchange Offer (which notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the prospectus until
the requisite changes have been made):
(i) when the Registration Statement or any amendment
thereto has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information (provided, however, that with
respect to any requests prior to the effectiveness of the
Registration Statement, the Issuers shall be required to give
written notice only to the Initial Purchasers and their counsel,
Cravath, Swaine & Xxxxx);
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
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(iv) of the receipt by either of the Issuers of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the
Issuers to make changes in the Registration Statement or the
prospectus in order that the Registration Statement or the
prospectus does not contain an untrue statement of a material fact
nor omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) The Issuers shall make every reasonable effort to obtain the
withdrawal at the earliest possible time of any order suspending the
effectiveness of the Registration Statement.
(d) The Issuers shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least
one copy of the Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if
the Holder so requests in writing, all exhibits thereto (including those,
if any, incorporated by reference).
(e) The Issuers shall deliver to each Exchanging Dealer and each
Initial Purchaser, and to any other Holder who so requests, without
charge, at least one copy of the Exchange Offer Registration Statement and
any post-effective amendment thereto, including financial statements and
schedules, and, if any Initial Purchaser or any such Holder requests, all
exhibits thereto (including those incorporated by reference).
(f) The Issuers shall deliver to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, as many
copies of the prospectus (including each preliminary prospectus) included
in the Shelf Registration Statement and any amendment or supplement
thereto as such person may reasonably request. The Issuers consent,
subject to the provisions of this Agreement, to the use of the prospectus
or any amendment or supplement thereto included in the Shelf Registration
Statement by each of the selling Holders of the Securities in connection
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with the offering and sale of the Securities covered by such prospectus,
or any such amendment or supplement.
(g) The Issuers shall deliver to each Initial Purchaser, any
Exchanging Dealer and such other persons required to deliver a prospectus
during the Exchange Offer Registration Period and/or Shelf Registration
Period, as applicable, without charge, as many copies of the final
prospectus included in the Exchange Offer Registration Statement and any
amendment or supplement thereto as such persons may reasonably request.
The Issuers consent, subject to the provisions of this Agreement, to the
use of the prospectus or any amendment or supplement thereto by any
Initial Purchaser, if necessary, any Exchanging Dealer and such other
persons required to deliver a prospectus following the Registered Exchange
Offer in connection with the offering and sale of the Exchange Notes
covered by the prospectus, or any amendment or supplement thereto,
included in such Exchange Offer Registration Statement, in each case in
the form most recently provided to each party by the Issuers.
(h) Prior to any public offering of the Securities, pursuant to any
Registration Statement, the Issuers shall use their reasonable efforts to
register or qualify or cooperate with the Holders of the Securities
included therein and their respective counsel in connection with the
registration or qualification of the Securities for offer and sale under
the securities or "blue sky" laws of such states of the United States as
any Holder of the Securities reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable the offer and
sale in such jurisdictions of the Securities covered by such Registration
Statement; provided, however, that none of the Issuers shall be required
to (i) qualify generally to do business in any jurisdiction where it is
not then so qualified, (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction where it is
not then so subject, (iii) register or qualify Securities or take any
other action under the securities or "blue sky" laws of any jurisdiction
if, in the judgment of the Board of Directors or such other governing body
of the Issuers, the consequences of such registration, qualification or
other action would be unduly burdensome to the Issuers or (iv) make any
changes to their respective organizational documents or any agreement with
their respective equity holders.
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(i) The Issuers shall cooperate with the Holders of the Securities
to facilitate the timely preparation and delivery of certificates
representing the Securities to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as the Holders may request a reasonable period of
time prior to sales of the Securities pursuant to such Registration
Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the Issuers
are required to maintain an effective Registration Statement, the Issuers
shall promptly prepare and file a post-effective amendment to the
Registration Statement or a supplement to the related prospectus and any
other required document so that, as thereafter delivered to Holders of the
Notes or purchasers of Securities, the prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
If the Issuers notify the Initial Purchasers, the Holders of the
Securities and any known Exchanging Dealer in accordance with paragraphs
(ii) through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made,
then the Initial Purchasers, the Holders of the Securities and any such
Exchanging Dealers shall suspend use of such prospectus, and the period of
effectiveness of the Shelf Registration Statement provided for in Section
2(b) above and the Exchange Offer Registration Statement provided for in
Section 1 above shall each be extended (i) by the number of days from and
including the date of the giving of such notice to and including the date
when the Initial Purchasers, the Holders of the Securities and any known
Exchanging Dealer shall have received such amended or supplemented
prospectus pursuant to this Section 3(j) or (ii) if earlier, until the
date when none of the Securities represent Transfer Restricted Notes (as
defined in Section 6(d)).
(k) Not later than the effective date of the applicable Registration
Statement, the Issuers will provide a CUSIP number for the Transfer
Restricted Notes, the Exchange Notes or the Private Exchange Notes, as the
case may be, and provide the applicable trustee with printed certificates
for the Notes, the
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Exchange Notes or the Private Exchange Notes, as the case may be, in a
form eligible for deposit with The Depository Trust Company.
(l) The Issuers will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the
Registered Exchange Offer or the Shelf Registration, and Globalstar will
make generally available to its security holders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act, no later
than 45 days after the end of a 12-month period (or 90 days, if such
period is a fiscal year) beginning with the first month of its first
fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.
(m) The Issuers shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner and containing
such changes, if any, as shall be necessary for such qualification. In the
event that such qualification would require the appointment of a new
trustee under the Indenture, the Issuers shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(n) The Issuers may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Issuers
such information regarding the Holder and the distribution of the
Securities as the Issuers may from time to time reasonably require for
inclusion in the Shelf Registration Statement, and the Issuers may exclude
from such registration the Securities of any Holder that unreasonably
fails to furnish such information within a reasonable time after receiving
such request. Each such Holder agrees to notify the Issuers as promptly as
practicable of any inaccuracy or change in information previously
furnished by such Holder to the Issuers or of the occurrence of any event,
in either case, as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material
fact regarding such Holder or such Holder's intended method of
distribution of such Securities, or omits to state a material fact
regarding such Holder or such Holder's intended method of distribution of
such Securities, required to be stated therein or necessary to make the
statements therein not
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misleading in light of the circumstances then existing, and promptly to
furnish to the Issuers any additional information required to correct and
update any previously furnished information or required so that such
prospectus shall not contain, with respect to such Holder or the
distribution of such Securities, an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances then existing. Each such Holder shall comply with the
provisions of the Securities Act applicable to such Holder with respect to
the disposition by such Holder of Securities, covered by such registration
statement in accordance with the intended methods of disposition by such
Holder set forth in such registration statement.
(o) The Issuers shall enter into such customary agreements
(including if requested an underwriting agreement in customary form) and
take all such other action, if any, as Holders of a majority in aggregate
principal amount of Securities being sold or the managing underwriters
shall reasonably request in order to facilitate the disposition of the
Securities pursuant to any Shelf Registration; provided, however, that in
the case of actions that facilitate the disposition of a particular
Holder's Securities, only such Holders request is required; provided
further, that the Issuers shall not be required to enter into any such
agreement more than once with respect to all of the Securities and may
delay entering into such agreement until the consummation of any
underwritten public offering which such Issuers shall have then
undertaken.
(p) In the case of any Shelf Registration, each of the Issuers shall
(i) make reasonably available for inspection by the Holders of the
Securities, any underwriter participating in any disposition pursuant to
the Shelf Registration Statement and any attorney, accountant or other
agent retained by the Holders of the Securities or any such underwriter
all relevant financial and other records, pertinent corporate documents
and properties of such Issuers and (ii) cause such Issuers' officers,
directors, employees, accountants and auditors to supply all relevant
information reasonably requested by the Holders of the Securities or any
such underwriter, attorney, accountant or agent in connection with the
Shelf Registration Statement, in each case, as shall be reasonably
necessary, in the judgment of the Holder or
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any such underwriter, attorney, accountant or agent referred to in this
paragraph, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that the foregoing
inspection and information gathering shall be coordinated on behalf of the
Initial Purchasers by you and on behalf of the other parties by one
counsel designated by and on behalf of such other parties as described in
Section 4 hereof and shall be expressly subject to the confidential
treatment by such parties as to all proprietary information of the
Issuers.
(q) In the case of any Shelf Registration, each of the Issuers, if
requested by (i) Holders of a majority in aggregate principal amount of
Securities, (ii) such Holder's counsel, or (iii) the managing underwriter
(if any), covered thereby, shall use reasonable efforts to cause (x) its
counsel to deliver an opinion and updates thereof relating to the
Registration Statement and the Securities in customary form addressed to
such Holders and the managing underwriters, if any, thereof and dated the
effective date of such Shelf Registration Statement covering the matters
customarily covered in opinions of counsel requested in underwritten
offerings and such other matters as may be reasonably requested by the
managing underwriter or underwriters; (y) its officers to execute and
deliver all customary documents and certificates and updates thereof
reasonably requested by any underwriters of the applicable Securities; and
(z) its independent public accountants to provide to the selling Holders
of the applicable Securities and any underwriter therefor a comfort letter
in customary form and covering matters of the type customarily covered in
comfort letters in connection with primary underwritten offerings, subject
to receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested by
any Initial Purchaser or any known Exchanging Dealer, each of the Issuers
shall use reasonable efforts to cause (i) its counsel to deliver to such
Initial Purchaser or such Exchanging Dealer a signed opinion in the form
as is customary in connection with such a Registration Statement and (ii)
its independent public accountants to deliver to such Initial Purchaser or
such Exchanging Dealer a comfort letter, in customary form.
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(s) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Transfer Restricted Notes by Holders to
the Issuers (or to such other Person as directed by the Issuers) in
exchange for the Exchange Notes or the Private Exchange Notes, as the case
may be, the Issuers shall xxxx, or cause to be marked, on the Transfer
Restricted Notes so exchanged that such Transfer Restricted Notes are
being canceled in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be; in no event shall the Transfer Restricted Notes
be marked as paid or otherwise satisfied.
(t) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member of
an underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules of the By-Laws of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Issuers shall
assist such broker-dealer in complying with the requirements of such Rules
and By-Laws.
(u) The Issuers will use their reasonable efforts to cause the
Securities or the Exchange Securities, as applicable, covered by a
Registration Statement to continue to be rated, during the period for
which such Registration Statement is required to be effective, by the
rating agencies that initially rated the Securities, if so requested by
Holders of a majority in aggregate principal amount of Securities covered
by such Registration Statement or the Exchange Securities, as the case may
be, or the managing underwriters, if any.
(v) The Issuers shall use their reasonable efforts to take all other
steps reasonably necessary to effect the registration of the Securities
covered by a Registration Statement contemplated hereby.
4. Registration Expenses. The Issuers shall bear all fees and
expenses incurred in connection with the performance of the Issuers' obligations
under Sections 1 through 3 hereof (including the reasonable fees and expenses of
one counsel to the Initial Purchasers, incurred in connection with the
Registered Exchange Offer), whether or not the Registered Exchange Offer or a
Shelf Registration is filed or becomes effective, and, in the event of a Shelf
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Registration, shall bear, or reimburse the Holders of the Securities covered
thereby for, the reasonable fees and disbursements of one firm of counsel
designated by the Holders of a majority in principal amount of the Securities
covered thereby to act as counsel for the Holders of the Securities in
connection therewith, it being understood that the Issuers shall not be
responsible for the fees and expenses of more than one counsel employed at any
one time; provided, however, that in an underwritten offering, the Issuers shall
not be responsible for any fees or expenses of any underwriter, including any
underwriting discounts or commissions, or any legal fees or expenses of counsel
to any underwriter. Notwithstanding the foregoing, the Holders of Securities
being registered shall pay all agency or brokerage fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Securities and the fees and disbursements of any counsel or other advisors or
experts retained by such Holders (severally or jointly), other than the one
counsel specifically referred to above.
5. Indemnification. (a) The Issuers agree, jointly and severally,
to indemnify and hold harmless each Holder of the Securities and each person, if
any, who controls such Holder or such Exchanging Dealer within the meaning of
the Securities Act or the Exchange Act (each Holder, any Exchanging Dealer and
such controlling persons being referred to collectively as the "Indemnified
Parties") from and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to purchases and sales
of the Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto,
or arise out of, or are based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and shall reimburse, as incurred, the Indemnified Parties for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Issuers shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged
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omission made in a Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to a Shelf
Registration in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Issuers by or on behalf of such
Holder specifically for inclusion therein, (ii) with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
prospectus relating to the registration statement, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any person as
to which there is a prospectus delivery requirement (a "Delivering Seller") that
sold the Securities to the person asserting any such losses, claims, damages or
liabilities to the extent that any such loss, claim, damage or liability of such
Delivering Seller results from the fact that there was not sent or given to such
person, on or prior to the written confirmation of such sale, a copy of the
relevant prospectus, as amended and supplemented, provided that (A) the Issuers
shall have previously furnished copies thereof to such Delivering Seller in
accordance with this Agreement and (B) such furnished prospectus, as amended and
supplemented, would have corrected any such untrue statement or omission or
alleged untrue statement or omission, and (iii) this indemnity agreement will be
in addition to any liability which the Issuers may otherwise have to such
Indemnified Party. The Issuers shall also indemnify underwriters, their officers
and directors and each person who controls such persons within the meaning of
the Securities Act or the Exchange Act to the same extent as provided above with
respect to the indemnification of the Holders of the Securities if requested by
such Holders; provided, however, that the Issuers shall not indemnify any such
party to the extent its liability arises from its failure to comply with the
requirements described in Annexes A, B, C and D hereto, as updated.
(b) Each Holder of the Securities (and, if requested by the Issuers,
each placement agent or underwriter in connection with the registration),
severally and not jointly, will indemnify and hold harmless the Issuers and each
person, if any, who controls Globalstar within the meaning of the Securities Act
or the Exchange Act and the directors, officers, agents and employees of such
controlling persons from and against any losses, claims, damages or liabilities
or any actions in respect thereof to which the Issuers, any such controlling
person or director, officer, agent or employee of such controlling person may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any
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untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information pertaining to such Holder or such underwriter, as the case may be,
and furnished to the Issuers by or on behalf of such Holder or such underwriter,
as the case may be, specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall reimburse, as
incurred, the Issuers for any legal or other expenses reasonably incurred by the
Issuers or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder or
such underwriter, as the case may be, may otherwise have to the Issuers or any
such controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding (including a
governmental investigation), 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 of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above, except to the
extent that it is prejudiced or harmed in any material respect by failure to
give such prompt notice. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with one counsel (and local counsel as
necessary) reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof the indemnifying party will not
be liable to such indemnified party under this Section 5 for any legal or other
expenses, other than
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reasonable costs of investigation, subsequently incurred by such indemnified
party in connection with the defense thereof. No indemnifying party shall,
without the prior written consent of the indemnified party, not to be
unreasonably withheld, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action. No
indemnifying party shall be liable for any amounts paid in settlement of any
action or claim without its written consent, which consent shall not be
unreasonably withheld, but if settled in accordance with its written consent or
if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above for any reason other than as provided in subsection
(c) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other from the exchange of the Notes,
pursuant to the Registered Exchange Offer, or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party or parties on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as any
other relevant equitable considerations. The relative fault of the parties shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuers on the one hand
or such Holder or such other indemnified person, as the case may be, on the
other, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified
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party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding any other provision of this Section 5(d), the
Holders of the Securities shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holders from the
sale of the Securities pursuant to a Registration Statement exceeds the amount
of damages which such Holders have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
paragraph (d), each officer, director, employee, representative and agent of an
indemnified party and each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party, and each officer, director,
employee, representative and agent of the Issuers and each person, if any, who
controls Globalstar within the meaning of the Securities Act or the Exchange Act
shall have the same rights to contribution as the Issuers.
(e) The agreements contained in this Section 5 shall survive the
sale of the Securities pursuant to a Registration Statement and shall remain in
full force and effect, regardless of any termination or cancelation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Liquidated Damages Under Certain Circumstances. (a) Additional
cash interest (the "Liquidated Damages") with respect to the Securities shall be
assessed against the Issuers as follows if any of the following events occurs
(each such event in clauses (i) through (iv) below a "Registration Default"):
(i) if the Issuers fail to file either the Exchange Offer
Registration Statement or Shelf Registration Statement on or before the
date specified for the filing thereof in Sections 1 and 2 hereof,
respectively;
(ii) if any such Registration Statement so required to be filed is
not declared effective by the Commission
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on or before, in the case of the Exchange Offer Registration Statement,
the date that is 180 days after the Issue Date, and in the case of the
Shelf Registration Statement, the date that is 210 days after the Issue
Date (each such date being hereinafter referred to as an "Effectiveness
Target Date");
(iii) if the Issuers fail to consummate the Registered Exchange
Offer within 30 days after the Effectiveness Target Date with respect to
such Registered Exchange Offer; or
(iv) if after either the Exchange Offer Registration Statement or
the Shelf Registration Statement is declared effective (A) such
Registration Statement thereafter ceases to be effective; or (B) such
Registration Statement or the related prospectus ceases to be usable
(except as permitted in paragraph (b)) in connection with resales of
Transfer Restricted Notes during the periods specified herein because
either (1) any event occurs as a result of which the related prospectus
forming part of such Registration Statement would include any 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, or (2) it shall be necessary to amend
such Registration Statement or supplement the related prospectus, to
comply with the Securities Act or the Exchange Act or the respective rules
thereunder.
Liquidated Damages shall accrue on the Transfer Restricted Notes in an amount
equal to $.05 per week per $1,000 principal amount of Transfer Restricted Notes
held by each Holder (over and above the interest set forth in the title of the
Transfer Restricted Notes) from and including the date on which any such
Registration Default shall occur until the earlier of (i) the date on which all
such Registration Defaults have been cured or (ii) the date which is 90 days
after the date such Registration Default occurred. The Liquidated Damages will
increase by an additional $.05 per week per $1,000 principal amount of the Notes
held by each Holder during each subsequent 90-day period until the date on which
all such Registration Defaults have been cured; provided, however, that the
aggregate amount of Liquidated Damages shall not exceed a maximum of $.50 per
week per $1,000 principal amount of the Notes held by each Holder
(b) A Registration Default referred to in Section 6(a)(iii)(B) shall
be deemed not to have occurred
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and be continuing in relation to a Shelf Registration Statement or the related
prospectus if (i) such Registration Default has occurred solely as a result of
(x) the filing of a post-effective amendment to such Shelf Registration
Statement to incorporate annual audited or, if required by the rules and
regulations under the Securities Act, quarterly unaudited financial information
with respect to the Issuers where such post-effective amendment is not yet
effective and needs to be declared effective to permit Holders to use the
related prospectus or (y) other material events or developments with respect to
the Issuers that would need to be described in such Shelf Registration Statement
or the related prospectus and (ii) in the case of clause (y), the Issuers are
proceeding promptly and in good faith to amend or supplement such Shelf
Registration Statement and related prospectus to describe such events; provided,
however, that in no event shall the Issuers be required to disclose the business
purpose for such suspension if the Issuers determine in good faith that such
business purpose must remain confidential. Notwithstanding the foregoing, the
Issuers shall not be required to pay Liquidated Damages with respect to the
Securities of a Holder if the failure arises from the Issuers' failure to file,
or cause to become effective, a Shelf Registration Statement within the time
periods specified in this Section 6 by reason of the failure of such Holder to
provide such information as (i) the Issuers may reasonably request, with
reasonable prior written notice, for use in the Shelf Registration Statement or
any prospectus included therein to the extent the Issuers reasonably determine
that such information is required to be included therein by applicable law, (ii)
the NASD or the Commission may request in connection with such Shelf
Registration Statement or (iii) is required to comply with the agreements of
such Holder as contained in Section 3(n) to the extent compliance thereof is
necessary for the Shelf Registration Statement to be declared effective.
(c) The parties hereto agree that the Liquidated Damages provided
for in this Section constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Securities by
reason of the failure of the applicable Registration Statement to be filed, to
be declared effective or to remain effective, or of the Exchange Offer to be
consummated, as the case may be, to the extent required by this Agreement.
(d) Any Liquidated Damages accruing on the Transfer Restricted Notes
prior to May 1, 1998, will be payable in cash on the next succeeding November 1
or May 1 to holders of record on the immediately preceding April 15
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or October 15, respectively. Any such Liquidated Damages accruing on the
Transfer Restricted Notes thereafter will be payable in cash on the regular
interest payment dates with respect to the Transfer Restricted Notes to the
holders of record on the applicable record date.
(e) "Transfer Restricted Notes" means each Security until (i) the
date on which such Transfer Restricted Note has been exchanged by a person other
than a broker-dealer for a freely transferrable Exchange Note in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered
Exchange Offer of a Transfer Restricted Note for an Exchange Note, the date on
which such Exchange Note is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Transfer Restricted Note has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iv) the date on which such Transfer Restricted Note is distributed
to the public pursuant to Rule 144 under the Securities Act or is saleable
pursuant to Rule 144(k) under the Securities Act.
7. Rules 144 and 144A. The Issuers shall use their reasonable
efforts to file the reports required to be filed by each of them, respectively,
under the Securities Act and the Exchange Act in a timely manner and, if at any
time the Issuers are not required to file such reports, each will, upon the
request of any Holder of Transfer Restricted Notes, make publicly available
other information so long as necessary to permit sales of their securities
pursuant to Rules 144 and 144A. The Issuers covenant that they will take such
further action as any Holder of Transfer Restricted Notes may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Transfer Restricted Notes without registration under the Securities Act
within the limitation of the exemptions provided by Rules 144 and 144A
(including the requirements of Rule 144A(d)(4)). The Issuers will provide a copy
of this Agreement to prospective purchasers of Notes identified to the Issuers
by the Initial Purchasers upon request. Upon the request of any Holder of
Transfer Restricted Notes, each of the Issuers 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 Issuers to register any of its securities pursuant to the Exchange
Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Notes covered by any Shelf Registration
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25
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering ("Managing
Underwriters") will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Notes to be included in such
offering (subject to the approval (which approval shall not be unreasonably
withheld) of the Issuers, provided, however, that the Issuers shall not be
obligated to arrange for more than one underwritten offering during the period
that such Shelf Registration is required to be effective pursuant to this
Agreement).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Notes on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, lock-up agreements, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
9. Miscellaneous. (a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, except by the Issuers
and the written consent of the Holders of a majority in principal amount of the
Securities affected by such amendment, modification, supplement, waiver or
consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address
given by such Holder to the Issuers in accordance with the provisions of
this Section 9(b), which address initially is, with respect to each
Holder, the address of such Holder to which
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confirmation of the sale of the Notes to such Holder was first sent by the
Initial Purchasers, with a copy in like manner to you as follows:
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX x0x00
Fax No: (000) 000-0000
Attention: Xxxxxx Xxxxxx
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
(2) if to the Initial Purchasers, at the addresses
specified in Section 9(b)(1);
(3) if to the Issuers, at its address as follows:
Globalstar, L.P.
0000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
One Citicorp Center
000 Xxxx 00xx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax No: (000) 000-0000
Attention: Xxxxx X. Xxxxx
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, entered into, nor shall they, on or after the date hereof, enter into,
any agreement
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with respect to their securities that is inconsistent with the rights granted to
the Holders herein or otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the
Issuers and their successors and assigns.
(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 LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
(h) Severability. If 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.
(i) Securities Held by the Issuers. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Issuers or their 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.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to Bear Xxxxxxx & Co. Inc. a counterpart
hereof, whereupon this
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Agreement will become a binding agreement among Globalstar, Globalstar Capital
and the several Initial Purchasers in accordance with its terms.
Very truly yours,
GLOBALSTAR, L.P. by
LORAL/QUALCOMM SATELLITE
SERVICES, L.P., its managing
general partner, by
LORAL/QUALCOMM PARTNERSHIP,
L.P. its general partner, by
LORAL GENERAL PARTNER, INC.
its general partner,
by /s/ Xxxx Xxxxxx
__________________________
Name:
Title:
GLOBALSTAR CAPITAL
CORPORATION,
by /s/ Xxxx Xxxxxx
__________________________
Name:
Title:
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The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
BEAR, XXXXXXX & CO. INC.
by /s/ Xxxx Xxxxxx Xxxxx
__________________________
Name:
Title:
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
by /s/ Xxxx Xxxxxxxx
__________________________
Name:
Title:
XXXXXX BROTHERS INC.
by /s/ Xxxxxxx Xxxxx
__________________________
Name:
Title:
30
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Issuers have agreed that, for a period of 180 days
after the Expiration Date (as defined herein), they will make this Prospectus
available to any broker-dealer for use in connection with any such resale.
See "Plan of Distribution."
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ANNEX B
Each broker-dealer that receives Exchange Notes for its own account
in exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution."
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ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for existing Notes where such existing Notes were acquired as a result
of market-making activities or other trading activities. The Issuers have agreed
that, for a period of 180 days after the Expiration Date, it will make this
prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until , 199 , all dealers
effecting transactions in the Exchange Notes may be required to deliver a
prospectus. */
The Issuers will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer for the purchasers of any such Exchange Notes. Any broker-dealer
that resells Exchange Notes that were received by it for its own account
pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Notes may be deemed to be an "underwriter" within
the meaning of the Securities Act and any profit on any such resale of Exchange
Notes and any commission or concessions received by any such persons may be
deemed to be underwriting compensation under the Securities Act. The Letter of
Transmittal states that, by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
------------
*/ In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
33
2
For a period of 180 days after the Expiration Date the Issuers will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Issuers have agreed to pay all expenses
incident to the Exchange Offer (including the reasonable expenses of one counsel
for the Holders of the Notes) other than commissions or concessions of any
brokers or dealers and will indemnify the Holders of the Securities (including
any broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
34
ANNEX D
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name: _______________________________________________________
Address: ____________________________________________________
____________________________________________________
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
