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Exhibit 10.1
ORBITAL IMAGING CORPORATION
$150,000,000
11 5/8% SENIOR NOTES DUE 2005
WITH WARRANTS
PURCHASE AGREEMENT
FEBRUARY 20, 1998
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & CO., XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED
NATIONSBANC XXXXXXXXXX SECURITIES LLC
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ORBITAL IMAGING CORPORATION
$150,000,000
11 5/8% Senior Notes due 2005
with Warrants
PURCHASE AGREEMENT
February 20, 1998
New York, New York
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & CO., XXXXXXX LYNCH, XXXXXX, XXXXXX
& XXXXX INCORPORATED
NATIONSBANC XXXXXXXXXX SECURITIES LLC
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies & Gentlemen:
Orbital Imaging Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to Bear, Xxxxxxx & Co. Inc., Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and NationsBanc Xxxxxxxxxx
Securities LLC (together, the "Initial Purchasers") 150,000 units (the "Units")
consisting of $150,000,000 in aggregate principal amount of 11 5/8% Senior Notes
due 2005 (the "Notes") and warrants (the "Warrants") to purchase an aggregate of
1,312,746 shares (the "Warrant Shares") of common stock, $.01 par value, of the
Company (the "Common Stock"), subject to the terms and conditions set forth
herein. Each Unit will consist of $1,000 principal amount of Notes and one
Warrant. The Notes will be issued pursuant to an indenture (the "Indenture"), to
be dated the Closing Date (as defined), between the Company and Marine Midland
Bank, as trustee (the "Trustee"). The Warrants will be issued pursuant to a
warrant agreement (the "Warrant Agreement") to be dated the Closing Date,
between the Company and Marine Midland Bank, as warrant agent (the "Warrant
Agent"). The Notes and the Warrants will not trade separately until the earliest
of (i) 90 days from the date of issuance, (ii) such date as the Initial
Purchasers may, in their discretion, deem appropriate, (iii) in the event a
Change of Control occurs, the date the Company mails notice thereof to the
holders of the Notes, (iv) the date on which the Exchange Offer is consummated
(such date, the "Separation Date") and (v) the effective date of the Shelf
Registration Statement. The Units, the Notes and the Warrants are collectively
referred to herein as the "Securities." Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the
Indenture.
1. Issuance of Securities. The Company proposes, upon the terms and
subject to the conditions set forth herein, to issue and sell to the Initial
Purchasers 150,000 Units consisting of $150,000,000 in aggregate principal
amount of Notes and Warrants to purchase an aggregate of 1,372,746 shares of
Common Stock. The Notes issuable in exchange therefor are collectively referred
to herein as the "Exchange Notes."
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act of 1933,
as amended (the "Act"), the Units, the Notes, the Warrants and the Warrant
Shares (and all securities issued in exchange therefor or in substitution
thereof) shall bear the following legend:
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THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF ORBITAL IMAGING CORPORATION AND ITS SUCCESSORS ("THE COMPANY")
THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE
THE UNITED STATES TO A PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN
RULE 902 UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE AND WARRANT AGENT A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE UNITS, NOTES AND
WARRANTS (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE OR
WARRANT AGENT) OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL IF THE COMPANY OR TRUSTEE, REGISTRAR OR TRANSFER AGENT FOR THE
SECURITIES SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM
IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH
IN (A) ABOVE.
2. Offering. The Units will be offered and sold to the Initial Purchasers
pursuant to an exemption from the registration requirements under the Act. The
Company has prepared a preliminary offering memorandum, dated February 5, 1998
(the "Preliminary Offering Memorandum"), and a final offering memorandum, dated
February 23, 1998 (the "Offering Memorandum"), relating to the Company, the
Units, the Notes and the Warrants.
The Initial Purchasers have advised the Company that the Initial
Purchasers will make offers (the "Exempt Resales") of the Units on the terms set
forth in the Offering Memorandum, as amended or supplemented, solely to (i)
persons whom the Initial Purchasers reasonably believe to be "qualified
institutional buyers," as defined in Rule 144A under the Act ("QIBs") and (ii)
non-U.S. persons outside the United States in reliance upon Regulation S
("Regulation S") under the Act (each, a "Regulation S Investor"). The QIBs and
the Regulation S Investors are collectively referred to herein as the "Eligible
Purchasers." The Initial Purchasers will offer the Units to such Eligible
Purchasers initially at the price set forth herein. Such price may be changed at
any time without notice.
Holders (including subsequent transferees) of the Notes will have the
registration rights set forth in the registration rights agreement relating
thereto (the "Registration Rights Agreement") in the form agreed to by the
Company and the Initial Purchasers, and holders (including subsequent
transferees) of the Warrants will have the registration rights set forth in the
registration rights agreement relating thereto (the "Warrant Registration Rights
Agreement"), in each case, to be dated the Closing Date, in the form agreed to
by the Company and the Initial Purchasers, for so long as such Notes, Warrants
or any Warrant Shares constitute "Transfer Restricted Securities" (as defined in
each such agreement, respectively). Pursuant to the Registration Rights
Agreement, the Company
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will agree to file with the Securities and Exchange Commission (the
"Commission"), under the circumstances set forth therein, (i) a registration
statement under the Act (the "Exchange Offer Registration Statement") relating
to the Exchange Notes to be offered in exchange for the Notes (the "Exchange
Offer") and (ii) a shelf registration statement pursuant to Rule 415 under the
Act (the "Shelf Registration Statement") relating to the resale by certain
holders of the Notes, and to use its best efforts to cause such registration
statements to be declared effective and consummate the Exchange Offer. Pursuant
to the Warrant Registration Rights Agreement, the Company will agree to file
with the Commission, under the circumstances set forth therein, shelf
registration statements pursuant to Rule 415 under the Act (the "Warrant Shelf
Registration Statements;" each of the Warrant Shelf Registration Statement, the
Exchange Offer Registration Statement and the Shelf Registration Statement, a
"Registration Statement") relating to the resale by certain holders of the
Warrants and the Warrant Shares, and to use its best efforts to cause such
Warrant Shelf Registration Statement to be declared effective.
The Company will use a portion of the net proceeds from the sale of the
Units to purchase a portfolio of Government Securities pursuant to the Pledge
Agreement (the "Pledged Securities") in an amount sufficient to provide for
payment in full of the first four scheduled interest payments due on the Notes.
The Pledged Securities will be pledged as security for the benefit of the
Initial Purchasers and other holders of the Notes (including subsequent
transferees) pursuant to the Pledge Agreement, in the form agreed to by the
Company and the Initial Purchasers.
This Agreement, the Notes, the Units, the Warrant Agreement, the Warrant
Shares, the Indenture and the Registration Rights Agreements, are hereinafter
sometimes referred to collectively as the "Operative Documents."
3. Purchase, Sale and Delivery. (a) On the basis of the representations,
warranties and covenants contained in this Agreement, and subject to its terms
and conditions, the Company agrees to issue and sell to each Initial Purchaser,
and each Initial Purchaser agrees, severally and not jointly, to purchase from
the Company, that amount of Units set forth opposite its name on Schedule I
hereto. The aggregate purchase price for the Units will be $145,500,000.
(b) Delivery of the Units shall be made, against payment of the
purchase price therefor, at the offices of Fried, Xxxxx, Xxxxxx, Xxxxxxx &
Xxxxxxxx, 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. or such other
location as may be mutually acceptable. Such delivery and payment shall be made
at 10:00 a.m., New York City time, on February 25, 1998 or at such other time as
shall be agreed upon by the Initial Purchasers and the Company. The time and
date of such delivery and payment are herein called the "Closing Date."
(c) Units sold to Regulation S Investors will initially be
represented by one or more permanent Notes and one or more permanent Warrants,
each in global form without interest coupons (a "Regulation S Global Note" and a
"Regulation S Global Warrant," respectively, and together constituting one or
more "Regulation S Global Units") registered in the name of Cede & Co., as
nominee of the Depository Trust Company ("DTC"), for the accounts of the
Euroclear System ("Euroclear") and Cedel Bank, societe anonyme ("Cedel"), having
an aggregate amount corresponding to the aggregate amount of the Units sold to
Regulation S Investors. Units sold to QIBs will be represented by one or more
permanent Notes and one or more permanent Warrants, each in global form without
interest coupons (a "Restricted Global Note" and a "Restricted Global Warrant,"
respectively, and together constituting one or more "Restricted Global Units")
registered in the name of Cede & Co., as nominee of DTC, having an aggregate
amount corresponding to the aggregate amount of the Units sold to QIBs. The
Global Units shall be delivered by the Company to the Initial Purchasers (or as
the Initial Purchasers direct), against payment by the Initial Purchasers of the
purchase price therefor, by wire transfer of immediately available funds to an
account specified by the Company or as the Company may direct in writing,
provided that the Company shall give at least two business days' prior written
notice to the Initial Purchasers of the information required to effect such wire
transfers. The Global Units, Global Notes and Global Warrants shall be made
available to the Initial Purchasers for inspection not later than 9:30 a.m., New
York City time, on the business day immediately preceding the Closing Date.
4. Agreements of the Company. The Company covenants and agrees with the
Initial Purchasers as follows:
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(a) To advise the Initial Purchasers promptly and, if requested by
the Initial Purchasers, confirm such advice in writing of; (i) the issuance by
any state securities commission of any stop order suspending the qualification
or exemption from qualification of any Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purpose by any state
securities commission or other regulatory authority; and (ii) the happening of
any event that, in the reasonable opinion of either counsel to the Company or
counsel to the Initial Purchasers, makes any statement of a material fact made
in the Preliminary Offering Memorandum or the Offering Memorandum untrue or that
requires the making of any additions to or changes in the Preliminary Offering
Memorandum or the Offering Memorandum in order to make the statements therein,
in the light of the circumstances under which they are made, not misleading. The
Company shall use its best efforts to prevent the issuance of any stop order or
order suspending the qualification or exemption of any Securities under any
state securities or Blue Sky laws and, if at any time any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption of any Securities under any 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.
(b) To furnish the Initial Purchasers and those persons identified
by the Initial Purchasers to the Company, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any amendments
or supplements thereto, as the Initial Purchasers may reasonably request. The
Company consents to the use of the Preliminary Offering Memorandum and the
Offering Memorandum, and any amendments and supplements thereto required
pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(c) Not to amend or supplement the Preliminary Offering Memorandum
or the Offering Memorandum prior to the Closing Date unless the Initial
Purchasers shall previously have been advised thereof and shall not have
reasonably objected thereto within a reasonable time after being furnished a
copy thereof. The Company shall promptly prepare, upon the Initial Purchasers'
request, any amendment or supplement to the Preliminary Offering Memorandum or
the Offering Memorandum that may be necessary or advisable in connection with
Exempt Resales.
(d) If, after the date hereof and prior to consummation of any
Exempt Resale, any event shall occur as a result of which, in the judgment of
the Company or in the reasonable opinion of either counsel to the Company or
counsel to the Initial Purchasers, it becomes necessary or advisable to amend or
supplement the Preliminary Offering Memorandum or Offering Memorandum in order
to make the statements therein, in the light of the circumstances in which they
were made, not misleading, or if it is necessary or advisable to amend or
supplement the Preliminary Offering Memorandum or Offering Memorandum to comply
with applicable law, (i) notify the Initial Purchasers and (ii) forthwith to
prepare an appropriate amendment or supplement to such Offering Memorandum so
that the statements therein as so amended or supplemented will not, in the light
of the circumstances when it is so delivered, be misleading, or so that such
Offering Memorandum will comply with applicable law.
(e) To cooperate with the Initial Purchasers and counsel to the
Initial Purchasers in connection with the qualification or registration of the
Units, the Notes and the Warrants under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may reasonably request and to continue
such qualification in effect so long as required for the Exempt Resales;
provided, however, that the Company shall not be required in connection
therewith to register or qualify as a foreign corporation where it is not now
qualified or to take any action that would subject it to service of process in
suits or taxation, in each case, other than as to matters and transactions
relating to the Preliminary Offering Memorandum, the Offering Memorandum or
Exempt Resales, in any jurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement becomes effective or is terminated, to pay all
costs, expenses, fees and taxes incident to the performance of the obligations
of the Company hereunder, including in connection with: (i) the preparation,
printing, filing and distribution of the Preliminary Offering Memorandum and the
Offering Memorandum (including, without
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limitation, financial statements) and all amendments and supplements thereto
required pursuant hereto, (ii) the issuance, transfer and delivery by the
Company of the Securities to the Initial Purchasers, (iii) the qualification or
registration of the Securities for offer and sale under the securities or blue
sky laws of the several states (including, without limitation, the cost of
preparing, printing and mailing a preliminary and final blue sky memorandum and
the reasonable fees and disbursements of counsel to the Initial Purchasers
relating thereto), (iv) furnishing such copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and all amendments and supplements
thereto, as may be requested for use in connection with Exempt Resales, (v) the
preparation of certificates for the Securities (including, without limitation,
printing and engraving thereof), (vi) the fees, disbursements and expenses of
the Company's counsel and accountants, (vii) all expenses and listing fees in
connection with the application for quotation of the Securities in the National
Association of Securities Dealers, Inc. ("NASD") Automated Quotation System -
PORTAL ("PORTAL"), (viii) all fees and expenses (including fees and expenses of
counsel to the Company) of the Company in connection with the approval of the
Securities by DTC for "book-entry" transfer, (ix) the rating of the Securities
by rating agencies, (x) the reasonable fees and expenses of the Trustee and its
counsel in connection with the Indenture and the Notes, (xi) the reasonable fees
and expenses of the Warrant Agent and its counsel in connection with the Warrant
Agreement and the Warrants, (xii) the performance by the Company of its other
obligations under this Agreement and the other Operative Documents and (xiii)
"roadshow" travel and other expenses incurred in connection with the marketing
and sale of the Units, the Notes and the Warrants.
(g) To use the proceeds from the sale of the Units in the manner
described in the Offering Memorandum under the caption "Use of Proceeds."
(h) Not to voluntarily claim, and to resist actively any attempts to
claim, the benefit of any usury laws against the holders of any Securities.
(i) To do and perform all things required to be done and performed
under this Agreement by it prior to or after the Closing Date and to satisfy all
conditions precedent on its part to the delivery of the Units.
(j) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Units in a manner that would require
the registration under the Act of the sale to the Initial Purchasers, or the
Eligible Purchasers, of the Units, the Notes or the Warrants or to take any
other action that would result in the Exempt Resales not being exempt from
registration under the Act.
(k) For so long as any of the Securities remain outstanding and
during any period in which the Company is not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make
available to any beneficial owner of Units, Notes or Warrants in connection with
any sale thereof and any prospective purchaser of such Units, Notes or Warrants
from such beneficial owner, the information required by Rule 144A(d)(4) under
the Act.
(l) To cause the Exchange Offer to be made in the appropriate form
to permit registered Exchange Notes to be offered in exchange for the Notes and
to comply with all applicable federal and state securities laws in connection
with the Exchange Offer.
(m) To comply with all of its agreements set forth in the
Registration Rights Agreement, the Warrant Registration Rights Agreement and all
agreements set forth in the representation letters of the Company to DTC
relating to the approval of the Securities by DTC for "book-entry" transfer.
(n) To use its best efforts to obtain approval of the Securities by
DTC for "book-entry" transfer.
(o) During a period of five years following the Closing Date, to
deliver without charge to each of the Initial Purchasers, as they may reasonably
request, promptly upon their becoming available, copies of (i) all reports or
other publicly available information that the Company shall mail or otherwise
make available to its securityholders and (ii) all reports, financial statements
and proxy or information statements filed by the Company
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with the Commission or any national securities exchange and such other publicly
available information concerning the Company or its subsidiaries, if any,
including without limitation, press releases.
(p) Prior to the Closing Date, to furnish to each of the Initial
Purchasers, as soon as they have been prepared in the ordinary course by the
Company, copies of any unaudited interim financial statements for any period
subsequent to the periods covered by the financial statements appearing in the
Offering Memorandum.
(q) Not to take, directly or indirectly, any action designed to, or
that might reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities. Except as permitted by the Act, the Company will
not distribute any (i) preliminary offering memorandum, including, without
limitation, the Preliminary Offering Memorandum, (ii) offering memorandum,
including, without limitation, the Offering Memorandum, or (iii) other offering
material in connection with the offering and sale of the Securities.
(r) To perform all things required or necessary to be done and
performed under this Agreement prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Securities.
(s) To reserve and continue to reserve as long as any Warrants are
outstanding, a sufficient number of shares of Common Stock for issuance upon
exercise of the Warrants.
5. Representations and Warranties. (a) The Company represents and warrants
to the Initial Purchasers that:
(i) The Preliminary Offering Memorandum and the Offering Memorandum
do not, and any supplement or amendment to them will not, contain any
untrue statement of a material fact or omit to state any 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, except that the representations and warranties contained in
this paragraph shall not apply to statements in or omissions from the
Preliminary Offering Memorandum and the Offering Memorandum (or any
supplement or amendment thereto) made in reliance upon and in conformity
with information relating to the Initial Purchasers furnished to the
Company in writing by or on behalf of the Initial Purchaser expressly for
use therein. No stop order preventing the use of the Preliminary Offering
Memorandum or the Offering Memorandum, or any amendment or supplement
thereto, or any order asserting that any of the transactions contemplated
by this Agreement are subject to the registration requirements of the Act,
has been issued.
(ii) When the Units, the Notes and the Warrants are issued and
delivered pursuant to this Agreement, no Unit, Note or Warrant will be of
the same class (within the meaning of Rule 144A under the Act) as
securities of the Company that are listed on a national securities
exchange registered under Section 6 of the Exchange Act or that are quoted
in a United States automated inter-dealer quotation system.
(iii) The Company (A) has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation, (B) has all requisite corporate
power and authority to carry on its business as it is currently being
conducted and as described in the Offering Memorandum and to own, lease
and operate its properties and (C) is duly qualified and in good standing
as a foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of property
requires such qualification except, with respect to this clause (C), where
the failure of the Company to be so qualified or in good standing does not
and could not reasonably be expected to individually or in the aggregate,
result in a material adverse effect on the assets, liabilities, business,
results of operations, condition (financial or otherwise), cash flows,
affairs or prospects of the Company or on the Company's ability to issue
the Securities (a "Material Adverse Effect").
(iv) The Company has no direct or indirect subsidiaries as of the
Closing Date.
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(v) All of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable and were not issued in violation of any preemptive or
similar rights. The Company has an authorized and outstanding consolidated
capitalization as set forth in the Offering Memorandum under the caption
"Capitalization."
(vi) Except as disclosed in the Offering Memorandum, there are not
currently, and will not be as a result of the Offering, any outstanding
subscriptions, rights, warrants, calls, commitments of sale or options to
acquire, or instruments convertible into or exchangeable for, any capital
stock or other equity interest of the Company (collectively, "Equity
Rights"). The issuance of the Units, the Notes and the Warrants, and the
Warrant Shares upon exercise of the Warrants, will not result in an
adjustment to the exercise price or number of shares issuable upon the
exercise of such Equity Rights.
(vii) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under each of this Agreement,
the Indenture, the Warrant Agreement, the Registration Rights Agreement,
the Warrant Registration Rights Agreement and the other Operative
Documents and to consummate the transactions contemplated hereby and
thereby, including, without limitation, the corporate power and authority
to issue, sell and deliver the Securities as provided herein and therein.
(viii) This Agreement has been duly and validly authorized, executed
and delivered by Company and is the legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar laws affecting the rights of creditors generally
and subject to general principles of equity.
(ix) The Indenture has been duly and validly authorized by the
Company and, when duly executed and delivered by the Company, will be the
legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or similar
laws affecting the rights of creditors generally and subject to general
principles of equity. On the Closing Date, the Indenture will conform, in
all material respects, to the requirements of the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder. The Offering Memorandum contains a summary of the
terms of the Indenture, which is accurate in all material respects.
(x) The Units have been duly and validly authorized by the Company.
The Notes have been duly and validly authorized for issuance and sale to
the Initial Purchasers by the Company pursuant to this Agreement and, when
issued and authenticated in accordance with the terms of the Indenture and
delivered against payment therefor in accordance with the terms hereof and
thereof, will be the legal, valid and binding obligations of the Company.
The description of the Notes in the Offering Memorandum is accurate in all
material respects.
(xi) The Exchange Notes have been duly and validly authorized for
issuance by the Company and, when issued and authenticated in accordance
with the terms of the Exchange Offer and the Indenture, will be the legal,
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms and entitled to the benefits of the
Indenture, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity. The
description of the Exchange Notes in the Offering Memorandum is accurate
in all material respects.
(xii) The Registration Rights Agreement has been duly and validly
authorized by the Company and, when duly executed and delivered by the
Company, will be the legal, valid and binding obligation of the Company.
The description of the Registration Rights Agreement in the Offering
Memorandum is accurate in all material respects.
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(xiii) The Warrant Agreement has been duly and validly authorized by
the Company and, when duly executed and delivered by the Company, will be
the legal, valid and binding obligation of the Company. The description of
the Warrant Agreement in the Offering Memorandum is accurate in all
material respects.
(xiv) The Warrants have been duly and validly authorized for
issuance and sale to the Initial Purchasers by the Company pursuant to
this Agreement and, when issued and countersigned in accordance with the
terms of the Warrant Agreement and delivered against payment therefor in
accordance with the terms hereof and thereof, will be the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms and entitled to the benefits of the Warrant
Agreement, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity. The
description of the Warrants in the Offering Memorandum is accurate in all
material respects.
(xv) The Warrants are exercisable into Warrant Shares in accordance
with the terms of the Warrant Agreement. The Warrant Shares have been duly
authorized for issuance by the Company and, when issued and paid for upon
exercise of the Warrants in accordance with the terms thereof, will be
validly issued, fully paid and nonassessable, free of any preemptive or
similar rights.
(xvi) The Warrant Registration Rights Agreement has been duly and
validly authorized by the Company and, when duly executed and delivered by
the Company, will be the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar laws affecting the rights of creditors generally
and subject to general principles of equity. The description of the
Warrant Registration Rights Agreement in the Offering Memorandum is
accurate in all material respects.
(xvii) The Company is not and, after giving effect to the Offering
will not be (A) in violation of its charter or bylaws, (B) in default in
the performance of any bond, debenture, note, indenture, mortgage, deed of
trust or other agreement or instrument to which it is a party or by which
it is bound or to which any of its properties is subject, which singly or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect, or (C) in violation of any local, state, federal or foreign law,
statute, ordinance, rule, regulation, requirement, judgment or court
decree (including, without limitation, the Communications Act of 1934, as
amended by the Telecommunications Act of 1996 (the "Telecommunications
Act"), and the rules and regulations of the Federal Communications
Commission (the "FCC"), the Department of Commerce (the "DoC"), the
National Telecommunications and Information Administration (the "NTIA")
and the International Telecommunications Union ("ITU") and environmental
laws, statutes, ordinances, rules, regulations, judgments or court
decrees) applicable to the Company or any of its assets or properties
(whether owned or leased), which singly or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. To the best
knowledge of the Company, there exists no condition that, with notice, the
passage of time or otherwise, would constitute a default under any such
document or instrument.
(xviii) None of (A) the execution, delivery or performance by the
Company of this Agreement and the other Operative Documents, (B) the
issuance and sale of the Securities and (C) consummation by the Company of
the transactions contemplated by the Operative Documents or the Offering
Memorandum described under the captions "Use of Proceeds" and "Related
Party Transactions," violates, conflicts with or constitutes a breach of
any of the terms or provisions of, or a default under (or an event that
with notice or the lapse of time, or both, would constitute a default), or
require consent under, or result in the imposition of a lien or
encumbrance on any properties of the Company, or an acceleration of any
indebtedness of the Company pursuant to, (i) the charter or bylaws of the
Company, (ii) any bond, debenture, note, indenture, mortgage, deed of
trust or other agreement or instrument to which the Company is a party or
by which it or its property is or may be bound, (iii) any local, state,
federal or foreign law, statute, ordinance, rule, regulation or
requirement (including, without limitation, the Telecommunications Act and
the rules and regulations of the FCC, the DoC, the NTIA and the ITU,
environmental laws,
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statutes, ordinances, rules or regulations) applicable to the Company, or
any of its assets or properties or (iv) any judgment, order or decree of
any court or governmental agency or authority having jurisdiction over the
Company or any of its assets or properties. Other than as described in the
Offering Memorandum, no consent, approval, authorization or order of, or
filing, registration, qualification, license or permit of or with, (A) any
court or governmental agency, body or administrative agency (including,
without limitation, the FCC, the DoC, the NTIA and the ITU) or (B) any
other person is required for (1) the execution, delivery and performance
by the Company of this Agreement and the other Operative Documents or (2)
the issuance and sale of the Securities and the transactions contemplated
hereby and thereby, except such as have been obtained and made on or prior
to the Closing Date (or, in the case of the Registration Rights Agreement
and the Warrant Registration Rights Agreement, will be obtained and made)
under the Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and state securities or Blue Sky laws and regulations or
such as may be required by the NASD.
(xix) There is (A) no action, suit or proceeding before or by any
court, arbitrator or governmental agency, body or official, domestic or
foreign, now pending or, to the knowledge of the Company, threatened or
contemplated to which the Company is or may be a party or to which the
business, assets or property of the Company is subject, (B) no local,
state, federal or foreign law, statute, ordinance, rule, regulation,
requirement, judgment or court decree (including, without limitation, the
Telecommunications Act and the rules and regulations of the FCC, the DoC,
the NTIA and the ITU) or order that has been enacted, adopted or issued by
any governmental agency or that has been proposed by any governmental body
or (C) no injunction, restraining order or order of any nature by a
federal or state court or foreign court of competent jurisdiction to which
the Company is or may be subject or to which the business, assets, or
property of the Company is or may be subject, that, in the case of clauses
(A), (B) and (C) above, (1) is required to be disclosed in the Preliminary
Offering Memorandum or the Offering Memorandum and that is not so
disclosed, or (2) could reasonably be expected to result in a Material
Adverse Effect.
(xx) No action has been taken and no local, state, federal or
foreign law, statute, ordinance, rule, regulation, order, requirement,
judgment or court decree has been enacted, adopted or issued by any
governmental agency that prevents the issuance of the Securities or
prevents or suspends the use of the Offering Memorandum; no injunction,
restraining order or order of any nature by a federal, state or foreign
court of competent jurisdiction has been issued that prevents the issuance
of the Securities or prevents or suspends the sale of the Securities in
any jurisdiction referred to in Section 4(e) hereof; and the Company has
complied with every request of any securities authority or agency of any
jurisdiction for additional information.
(xxi) There is (i) no unfair labor practice complaint pending or, to
the knowledge of the Company, threatened against the Company, before the
National Labor Relations Board, or any state or local labor relations
board or any foreign labor relations board, and no significant grievance
or significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending or, to the knowledge of the
Company, threatened against the Company, (ii) no significant strike, labor
dispute, slowdown or stoppage pending or, to the knowledge of the Company,
threatened against the Company, and (iii) no union representation question
existing with respect to the employees of the Company. To the knowledge of
the Company, no collective bargaining organizing activities are taking
place with respect to the Company. The Company has not violated (A) any
federal, state or local law or foreign law relating to discrimination in
hiring, promotion or pay of employees, (B) any applicable wage or hour
laws, or (C) any provision of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or the rules and regulations thereunder.
(xxii) The Company has not violated any foreign, federal, state or
local law or regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), lacks any permit,
license or other approval required of it under applicable Environmental
Laws, or is violating any term or condition of such permit, license or
approval which could reasonably be expected to have a Material Adverse
Effect. There is no
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alleged liability or potential liability (including, without limitation,
alleged or potential liability or investigatory costs, cleanup costs,
governmental response costs, natural resource damages, property damages,
personal injuries or penalties) of the Company arising out of, based on or
resulting from (a) the presence or release into the environment of any
Hazardous Material (as defined) at any location, whether or not owned by
the Company, or (b) any violation or alleged violation of any
Environmental Law, which alleged or potential liability is required to be
disclosed in the Offering Memorandum, other than as disclosed therein, or
could reasonably be expected to have a Material Adverse Effect. The term
"Hazardous Material" means (i) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, (ii) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (iii) any petroleum or
petroleum product, (iv) any polychlorinated biphenyl, and (v) any
pollutant or contaminant or hazardous, dangerous or toxic chemical,
material, waste or substance regulated under or within the meaning of any
other law relating to protection of human health or the environment or
imposing liability or standards of conduct concerning any such chemical
material, waste or substance.
(xxiii) The Company has (i) good and marketable title to all of the
properties and assets described in the Offering Memorandum as owned by it,
free and clear of all liens, charges, encumbrances and restrictions
(except for Permitted Liens and taxes not yet payable), (ii) peaceful and
undisturbed possession under all leases to which any of them is a party as
lessee, (iii) except as disclosed in the Offering Memorandum, all
licenses, certificates, permits, authorizations, approvals, franchises and
other rights from, and has made all declarations and filings with, all
federal, foreign, state and local authorities (including, without
limitation, the FCC, the DoC, the NTIA and the ITU), all self-regulatory
authorities and all courts and other tribunals (each an "Authorization")
necessary to engage in the business conducted by any of them in the manner
described in the Offering Memorandum, and (iv) no reason to believe that
any governmental body or agency is considering limiting, suspending or
revoking any such Authorization. All such Authorizations are valid and in
full force and effect and the Company is in compliance with the terms and
conditions of all such Authorizations and with the rules and regulations
of the regulatory authorities having jurisdiction with respect thereto,
except where the failure to so comply would not have a Material Adverse
Effect. All leases to which the Company is a party are valid and binding
and no default by the Company has occurred and is continuing thereunder
and no defaults by the landlord are existing under any such lease, except
such defaults that could not reasonably be expected to have a Material
Adverse Effect. The Company is using its reasonable best efforts to obtain
all Authorizations (including, but not limited to an FCC license and a DoC
License, or amendments thereto) with respect to the high-resolution
satellites described in the Offering Memorandum.
(xxiv) The Company owns, possesses or has the right to employ all
patents, patent rights, intellectual property licenses, including the
OrbView-2 License (as defined in the Offering Memorandum), inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, software, systems or
procedures), trademarks, service marks and trade names, inventions,
computer programs, technical data and information (collectively, the
"Intellectual Property") employed by the Company in connection with its
business, free and clear of and without violating any right, claimed
right, charge, encumbrance, pledge, security interest, restriction or lien
of any kind of any other person, except where the failure to own, possess
or have the right to employ such Intellectual Property would not have a
Material Adverse Effect. The Company has not infringed and is not
infringing with asserted rights of others with respect to any such
Intellectual Property, except infringements that would not have a Material
Adverse Effect, and the Company has not received notice of the
infringement of asserted rights of others with respect to any such
Intellectual Property.
(xxv) None of the Company or any of its officers, directors,
partners, employees, agents or affiliates or any other person acting on
behalf of the Company, has, directly or indirectly, given or agreed to
give any money, gift or similar benefit (other than legal price
concessions to customers in the ordinary course of business) to any
customer, supplier, employee or agent of a customer or supplier, official
or employee of any governmental agency (domestic or foreign),
instrumentality of any government (domestic or foreign) or any political
party or candidate for office (domestic or foreign) or other person who
was, is
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or may be in a position to help or hinder the business of the Company (or
assist the Company in connection with any actual or proposed transaction)
which (i) might subject the Company, or any other individual or entity to
any damage or penalty in any civil, criminal or governmental litigation or
proceeding (domestic or foreign), (ii) if not given in the past, could
reasonably be expected to have had a Material Adverse Effect on the
assets, business or operations of the Company or (iii) if not continued in
the future, could reasonably be expected to have a Material Adverse
Effect.
(xxvi) All material tax returns required to be filed by the Company
in all jurisdictions have been so filed. All taxes, including withholding
taxes, penalties and interest, assessments, fees and other charges due or
claimed to be due from such entities or that are due and payable have been
paid, except to the extent such taxes are (A) currently payable without
penalty or interest or (B) being contested in good faith and for which
adequate reserves have been provided. To the knowledge of the Company,
there are no material proposed additional tax assessments against the
Company or the assets or property of the Company.
(xxvii) The Company is not, and after giving effect to the Offering
will not be, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act").
(xxviii) Except as set forth in the Offering Memorandum with respect
to the holders of Series A Preferred Stock, there are no holders of
securities of the Company who, by reason of the execution by the Company
of this Agreement or any other Operative Document to which it is a party
or the consummation by the Company of the transactions contemplated hereby
and thereby, have the right to request or demand that the Company register
any of its securities under the Act or analogous foreign laws and
regulations.
(xxix) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that: (i) transactions
are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect thereto.
(xxx) The Company maintains insurance covering its properties,
operations, personnel and businesses, and will maintain insurance as
required by the Indenture. Such insurance insures against such losses and
risks as are consistent with industry practice to protect the Company and
its business. The Company has not received notice from any insurer or
agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance. All
such insurance is outstanding and duly in force on the date hereof.
(xxxi) The Company has not (i) taken, directly or indirectly, any
action designed to, or that might reasonably be expected to, cause or
result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Units, the Notes or
the Warrants or (ii) except as set forth in the Offering Memorandum with
respect to the Series A Offering, since the date of the Preliminary
Offering Memorandum (A) sold, bid for, purchased or paid any person any
compensation for soliciting purchases of, the Units, the Notes or the
Warrants or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(xxxii) No registration under the Act of the Units, the Notes or the
Warrants is required for the sale of the Units to the Initial Purchasers
as contemplated hereby or for the Exempt Resales assuming (i) that the
purchasers who buy the Units in the Exempt Resales are either Eligible
Purchasers and (ii) the accuracy of the Initial Purchasers'
representations regarding the absence of general solicitation in
connection with the sale of Units to the Initial Purchasers and the Exempt
Resales contained herein. No form of general solicitation or general
advertising was used by the Company or any of its representatives (other
than the Initial Purchasers, as to which the Company makes no
representation or warranty) in
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connection with the offer and sale of any of the Securities in connection
with Exempt Resales, including, but not limited to, articles, notices or
other communications published in any newspaper, magazine, or similar
medium or broadcast over television or radio, or any seminar or meeting
whose attendees have been invited by any general solicitation or general
advertising. No securities of the same class as the Securities have been
issued and sold by the Company within the six-month period immediately
prior to the date hereof.
(xxxiii) Except as set forth on Schedule 5(xxxiii), there are no
employee pension or benefit plan with respect to which the Company or any
corporation considered an affiliate of the Company within the meaning of
Section 407(d)(7) of ERISA (an "ERISA Affiliate") is a party in interest
or disqualified person. The execution and delivery of this Agreement, the
other Operative Documents and the sale of the Units to be purchased by the
Eligible Purchasers will not involve any prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue
Code of 1986. The representation made by the Company in the preceding
sentence is made in reliance upon and subject to the accuracy of, and
compliance with, the representations and covenants made or deemed made by
the Eligible Purchasers, as set forth in the Offering Memorandum under the
caption "Notice to Investors."
(xxxiv) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, and each amendment or supplement thereto, as
of its date, contains the information specified in, and meets the
requirements of, Rule 144A(d)(4) under the Act.
(xxxv) Subsequent to the respective dates as of which information is
given in the Offering Memorandum and up to the Closing Date, and except as
set forth in the Offering Memorandum, (A) the Company has not entered into
any amendment to or agreed to any modification of the Orbital Agreements,
the Stock Purchase Agreement or the Stockholders' Agreement, (B) the
Company has not incurred any liabilities or obligations, direct or
contingent, which are or will be material, individually or in the
aggregate, to the Company, nor entered into any transaction not in the
ordinary course of business, (C) there has not been, singly or in the
aggregate, any change or development which could reasonably be expected to
result in a Material Adverse Effect, and (D) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of capital stock.
(xxxvi) None of the execution, delivery and performance of this
Agreement, the issuance and sale of the Securities, the application of the
proceeds from the issuance and sale of the Securities and the consummation
of the transactions contemplated thereby as set forth in the Offering
Memorandum, will violate Regulations G, T, U or X promulgated by the Board
of Governors of the Federal Reserve System or analogous foreign laws and
regulations.
(xxxvii) The accountants who have certified or will certify the
financial statements included or to be included as part of the Offering
Memorandum are independent accountants as required by the Act. The
historical financial statements of the Company, together with related
notes thereto, comply as to form with the requirements applicable to
registration statements on Form S-4 under the Act, and the historical
financial statements of the Company present fairly the financial position
and results of operations of the Company at the dates and for the periods
indicated. Such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods presented except as noted therein. The other
financial and statistical information and data included in the Offering
Memorandum derived from the historical financial statements are accurately
presented and prepared on a basis consistent with the historical financial
statements included in the Offering Memorandum and the books and records
of the Company.
(xxxviii) The Company does not intend to, nor does it believe that
it will, incur debts beyond its ability to pay such debts as they mature.
Upon the issuance of the Units, the present fair saleable value of the
assets of the Company will exceed the amount that will be required to be
paid on or in respect of the existing debts and other liabilities
(including contingent liabilities) of the Company as they become absolute
and matured. Upon the issuance of the Units, the assets of the Company
will not constitute
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unreasonably small capital to carry out its businesses as now conducted,
including the capital needs of the Company, taking into account the
projected capital requirements and capital availability.
(xxxix) Except pursuant to this Agreement, there are no contracts,
agreements or understandings between the Company and any other person that
would give rise to a valid claim against the Company or either of the
Initial Purchasers for a brokerage commission, finder's fee or like
payment in connection with the issuance, purchase and sale of the
Securities.
(xl) The Company has complied with all provisions of Section
517.075, Florida Statutes, relating to doing business with the Government
of Cuba or with any affiliate located in Cuba.
(xli) There exist no conditions that would constitute a default (or
an event which with notice or the lapse of time, or both, would constitute
a default) under any of the Operative Documents or any of the documents
relating to the Series A Preferred Stock.
(xlii) Except as disclosed in the Offering Memorandum, there are no
business relationships or related party transactions required to be
disclosed therein pursuant to Item 404 of Regulation S-K of the Commission
(assuming for purposes of this subparagraph that Regulation S-K is
applicable to the Offering Memorandum).
(xliii) Prior to the effectiveness of any Registration Statement,
the Indenture is not required to be qualified under the Trust Indenture
Act.
(xliv) Each certificate signed by any officer of the Company and
delivered to the Initial Purchasers or counsel for the Initial Purchasers
pursuant to this Agreement shall be deemed to be a representation and
warranty by the Company to the Initial Purchasers as to the matters
covered thereby.
(xlv) The data relating to market size included in the Offering
Memorandum is based on or derived from sources that the Company believes
to be reliable and accurate in all material respects.
The Company acknowledges that each of the Initial Purchasers and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 8 hereof, counsel to the Company and counsel to the Initial Purchasers,
will rely upon the accuracy and truth of the foregoing representations and
hereby consents to such reliance.
(b) Each of the Initial Purchasers, severally and not jointly,
represents, warrants and covenants to the Company and agrees that:
(i) Offers and Sales only to Institutional Accredited Investors or
Qualified Institutional Buyers. Offers and sales of the Securities shall be made
only to Eligible Purchasers. Each Initial Purchaser agrees that it will not
offer, sell or deliver any of the Securities in any jurisdiction outside the
United States except under circumstances that will result in compliance with the
applicable laws thereof, and that it will take at its own expense whatever
action is required to permit its purchase and resale of the Securities in such
jurisdictions.
(ii) No General Solicitation. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the 1933 Act) will be used
in the United States in connection with the offering or sale of the Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Eligible Purchaser of a Security acting as a fiduciary for one or more third
parties, each third party shall, in the judgment of the applicable Initial
Purchaser, be an Eligible Purchaser.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will
take reasonable steps to inform, and cause each of its U.S. affiliates to take
reasonable steps to inform, persons acquiring Securities from
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such Initial Purchaser or affiliate, as the case may be, in the United States
that the Securities (A) have not been and will not be registered under the
Securities Act, (B) are being sold to them without registration under the
Securities Act in reliance on Rule 144A or in accordance with another exemption
from registration under the Securities Act, as the case may be, and (C) may not
be offered, sold or otherwise transferred except (1) to the Company, (2) outside
the United States in accordance with Regulation S or (3) inside the United
States in accordance with (x) Rule 144A to a person whom the Seller reasonably
believes is a QIB that is purchasing such Securities for its own account or for
the account of a QIB to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (y) pursuant to another available
exemption from registration under the 1933 Act.
(v) Minimum Principal Amount. No sale of the Securities to any one
Eligible Purchaser will be for less than U.S. $100,000 principal amount and no
Security will be issued in a smaller principal amount. If the Eligible Purchaser
is a non-bank fiduciary acting on behalf of others, each of the persons for whom
it is acting must purchase at least U.S. $100,000 principal amount of the
Securities.
(vi) Restrictions on Transfer. The transfer restrictions and the
other provisions set forth in the Offering Memorandum under the heading "Notice
to Investors," including the legend required thereby, shall apply to the
Securities except as otherwise agreed by the Company and the Initial Purchasers.
(vii) Delivery of Offering Memorandum. Each Initial Purchaser will
deliver to each purchaser of the Securities from such Initial Purchaser, in
connection with its original distribution of the Securities, a copy of the
Offering Memorandum, as amended and supplemented at the date of such delivery.
The Initial Purchasers understand that the Company and, for purposes of
the opinions to be delivered to the Initial Purchasers pursuant to Section 8
hereof, counsel for the Company and counsel for the Initial Purchasers will rely
upon the accuracy and truth of the foregoing representations and hereby consents
to such reliance.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless (i) each of
the Initial Purchasers, (ii) each person, if any, who controls either of the
Initial Purchasers within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act and (iii) the respective officers, directors, partners,
employees, representatives and agents of each of the Initial Purchasers 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 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
Preliminary Offering Memorandum or the Offering Memorandum, 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, however, that the Company
will not be liable in any such case to the extent, but only 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
information relating to either of the Initial Purchasers furnished to the
Company in writing by or on behalf of such Initial Purchaser expressly for use
therein; provided, further, that such indemnity with respect to the Preliminary
Offering Memorandum shall not inure to the benefit of either Initial Purchaser
(or any persons controlling such Initial Purchaser) from whom the person
asserting such loss, claim, damage or liability purchased the Units which are
the subject thereof if such person did not receive a copy of the Offering
Memorandum (or the Offering Memorandum as amended or supplemented) at or prior
to the confirmation of the sale of such Units to such person (and the Offering
Memorandum or any such amended or supplemented Offering Memorandum, as
applicable, shall have been delivered by the Company to such Initial Purchaser a
reasonable amount of time prior to the mailing or delivery, as applicable, of
such confirmation) and any such untrue statement or omission or alleged untrue
statement or omission of a material fact contained in such Preliminary
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Offering Memorandum was corrected in the Offering Memorandum (or the Offering
Memorandum as amended or supplemented). This indemnity agreement will be in
addition to any liability which the Company may otherwise have, including under
this Agreement.
(b) Each of the Initial Purchasers, severally and not jointly,
agrees to indemnify and hold harmless (i) the Company, (ii) each person, if any,
who controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, and (iii) the officers, directors, partners,
employees, representatives and agents of the Company against any losses,
liabilities, claims, damages and expenses whatsoever (including but not limited
to reasonable attorneys' fees and any and all 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 Preliminary Offering Memorandum or
the Offering Memorandum, 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 arises 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 information
relating to such Initial Purchaser furnished to the Company in writing by or on
behalf of such Initial Purchaser expressly for use therein; provided, however,
that in no case shall either of the Initial Purchasers be liable or responsible
for any amount in excess of the discounts and commissions received by such
Initial Purchaser, as set forth on the cover page of the Offering Memorandum.
(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 it from any
liability which it may have under this Section 6 except to the extent that it
has been prejudiced in any material respect by such failure 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
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 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 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 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; provided, however, that 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.
7. Contribution. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 6 is for any reason held to be
unavailable to or is insufficient to hold harmless a party indemnified
thereunder, each indemnifying party 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
reasonably incurred in connection with, and any amount paid in settlement
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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
Initial Purchasers, who may also be liable for contribution, including persons
who control the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act) to which the Company and such Initial Purchaser may
be subject, in such proportion as is appropriate to reflect the relative
benefits received by the Company, on one hand, and such Initial Purchaser, on
the other hand, from the offering of the Units 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 Section 6, in
such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company, on one hand, and
such Initial Purchaser, on the other hand, 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, on one hand, and each Initial Purchaser, on
the other hand, shall be deemed to be in the same proportion as (i) the total
proceeds from the offering of Units (net of discounts but before deducting
expenses) received by the Company and (ii) the discounts and commissions
received by such Initial Purchaser, respectively, in each case as set forth in
the table on the cover page of the Offering Memorandum. The relative fault of
the Company, on one hand, and of each Initial Purchaser, on the other hand,
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 such
Initial Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Initial Purchasers 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) in no case shall either of the Initial Purchasers be
required to contribute any amount in excess of the amount by which the discounts
and commissions applicable to the Units purchased by such Initial Purchaser
pursuant to this Agreement exceeds the amount of any damages which such Initial
Purchaser has otherwise been required to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission 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. For purposes of this Section 7, (A) each person,
if any, who controls either of the Initial Purchasers within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and (B) the
respective officers, directors, partners, employees, representatives and agents
of each of the Initial Purchasers or any controlling person shall have the same
rights to contribution as such Initial Purchaser, and (A) each person, if any,
who controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act and (B) the respective officers, directors, partners,
employees, representatives and agents 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. 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, 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 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.
8. Conditions of Initial Purchasers' Obligations. The obligations of the
Initial Purchasers to purchase and pay for the Units, as provided herein, shall
be subject to the satisfaction of the following conditions:
(a) All of the representations and warranties of the Company
contained in this Agreement shall be true and correct on the date hereof and on
the Closing Date with the same force and effect as if made on and as of the date
hereof and the Closing Date, respectively. The Company shall have performed or
complied with all of the agreements herein contained and required to be
performed or complied with by it at or prior to the Closing Date.
(b) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers as promptly as practicable on the day
following the date of this Agreement or at such later date and time as to which
the Initial Purchasers may agree, and no stop order suspending the qualification
or exemption from
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qualification of the Units in any jurisdiction referred to in Section 4(e) shall
have been issued and no proceeding for that purpose shall have been commenced or
shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental agency
which would, as of the Closing Date, prevent the issuance of the Units; no
action, suit or proceeding shall have been commenced and be pending or
threatened against or affecting the Company before any court or arbitrator or
any governmental body, agency or official that, if adversely determined, would
result in a Material Adverse Effect; and no stop order shall have been issued
preventing the use of the Offering Memorandum, or any amendment or supplement
thereto, or which could reasonably be expected have a Material Adverse Effect on
the Company.
(d) Since the dates as of which information is given in the Offering
Memorandum, (i) there shall not have been any material adverse change, or any
development that is reasonably likely to result in a material adverse change, in
the capital stock or the long-term debt, or increase in the short-term debt, of
the Company from that set forth in the Offering Memorandum, (ii) no dividend or
distribution of any kind shall have been declared, paid or made by the Company
on any class of its capital stock, and (iii) the Company shall not have incurred
any liabilities or obligations, direct or contingent, that are material,
individually or in the aggregate, to the Company, and that are required to be
disclosed on a balance sheet or notes thereto in accordance with generally
accepted accounting principles and are not disclosed on the latest balance sheet
or notes thereto included in the Offering Memorandum. Since the date hereof and
since the dates as of which information is given in the Offering Memorandum,
there shall not have occurred any Material Adverse Effect.
(e) The Initial Purchasers shall have received certificates, dated
the Closing Date, signed on behalf of the Company, in form and substance
satisfactory to the Initial Purchasers, confirming, as of the Closing Date, the
matters set forth in paragraphs (a), (b), (c) and (d) of this Section 8 and
that, as of the Closing Date, the obligations of the Company to be performed
hereunder on or prior thereto have been duly performed.
(f) The Initial Purchasers shall have received on the Closing Date
an opinion, dated the Closing Date, (i) of Xxxxxx & Xxxxxxx, counsel for the
Company and (ii) of Xxxxx Xxxxxxx, Esquire, general counsel for the Company;
each in form and substance satisfactory to the Initial Purchasers and counsel
for the Initial Purchasers, covering such matters as are customarily covered in
such opinions.
(g) The Initial Purchasers shall have received on the Closing Date
an opinion, dated the Closing Date, of Xxxxxxx, Temple, Xxxxxxx and Xxxxxx, in
form and substance satisfactory to the Initial Purchasers and counsel for the
Initial Purchasers, covering such matters as are customarily covered in such
opinions.
(h) At the time this Agreement is executed and at the Closing Date,
the Initial Purchasers shall have received from KPMG Peat Marwick, independent
public accountants, dated as of the date of this Agreement and as of the Closing
Date, customary comfort letters addressed to the Initial Purchasers and in form
and substance satisfactory to the Initial Purchasers and counsel for the Initial
Purchasers with respect to the financial statements and certain financial
information of the Company contained in the Offering Memorandum and/or
incorporated therein by reference.
(i) The Initial Purchasers shall have received an opinion, dated the
Closing Date, in form and substance reasonably satisfactory to the Initial
Purchasers, of Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx, counsel for the Initial
Purchasers, covering such matters as are customarily covered in such opinions.
(j) Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx shall have been
furnished with such documents, in addition to those set forth above, as they may
reasonably require for the purpose of enabling them to review or pass upon the
matters referred to in this Section 8 and in order to evidence the accuracy,
completeness or satisfaction of any of the representations, warranties or
conditions herein contained.
(k) Prior to the Closing Date, the Company shall have furnished to
the Initial Purchasers such further information, certificates and documents as
the Initial Purchasers may reasonably request.
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(l) The Company and the Trustee shall have entered into the
Indenture and the Initial Purchasers shall have received counterparts, conformed
as executed, thereof.
(m) The Company shall have entered into the Registration Rights
Agreement and the Initial Purchasers shall have received counterparts, conformed
as executed, thereof.
(n) The Company shall have entered into the Warrant Registration
Rights Agreements and the Initial Purchasers shall have received counterparts,
conformed as executed, thereof.
(o) The Company shall have entered into the Pledge Agreement and the
Initial Purchasers shall have received counterparts, conformed as executed,
thereof.
(p) The Company shall have given irrevocable instructions to
purchase the Pledged Securities and deposit the Pledged Securities into the
Pledge Account, and the Initial Purchasers shall have received the written
opinion of a firm of nationally recognized independent certified accountants, in
form and substance satisfactory to the Initial Purchasers, to the effect that
the Pledged Securities, upon receipt of scheduled interest and principal
payments thereon, are sufficient to provide for the payment in full of the first
four scheduled interest payments due on the Notes.
(q) There shall not have been any announcement by any "nationally
recognized statistical rating organization," as defined for purposes of Rule
463(g) under the Securities Act, that (i) it is downgrading its rating assigned
to any class of securities of the Company or (ii) it is reviewing its rating
assigned to any class of securities of the Company with a view to possible
downgrading, or with negative implications, or direction not determined.
(r) The Units shall have been approved for trading on PORTAL.
(s) Not later than the Closing Date, the Series A Offering shall
have been completed, upon the terms described in the Offering Memorandum.
All opinions, certificates, letters and other documents required by this
Section 8 to be delivered by the Company will be in compliance with the
provisions hereof only if they are satisfactory in form and substance to the
Initial Purchasers. The Company shall furnish the Initial Purchasers with such
conformed copies of such opinions, certificates, letters and other documents as
they shall reasonably request.
9. Initial Purchasers' Information. The Company acknowledges that the
statements with respect to the offering of the Units set forth in the first
sentence of the last paragraph of text on the cover page, the last paragraph
appearing on page iv of the Offering Memorandum and the sixth paragraph under
the caption "Plan of Distribution" in the Offering Memorandum constitute the
only information relating to any of the Initial Purchasers furnished to the
Company in writing by or on behalf of any of the Initial Purchasers expressly
for use in the Offering Memorandum.
10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Initial Purchasers and the Company
contained in this Agreement, including the agreements contained in Sections 4(f)
and 11(d), the indemnity agreements contained in Section 6 and the contribution
agreements contained in Section 7, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of either of the
Initial Purchasers, any controlling person thereof, or by or on behalf of the
Company or any controlling person thereof, and shall survive delivery of and
payment for the Units to and by the Initial Purchasers. The representations
contained in Section 5 and the agreements contained in Sections 4(f), 6, 7 and
11(d) shall survive the termination of this Agreement, including any termination
pursuant to Section 11.
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11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon execution and
delivery of a counterpart hereof by each of the parties hereto.
(b) The Initial Purchasers shall have the right to terminate this
Agreement at any time prior to the Closing Date by notice to the Company from
the Initial Purchasers, without liability (other than with respect to Sections 6
and 7) on the Initial Purchasers' part to the Company if, on or prior to such
date, (i) the Company shall have failed, refused or been unable to perform any
agreement in any material respect on their part to be performed hereunder, (ii)
any other condition to the obligations of the Initial Purchasers hereunder as
provided in Section 8 is not fulfilled when and as required in any material
respect], (iii) in the reasonable judgment of the Initial Purchasers, any
Material Adverse Effect shall have occurred since the respective dates as of
which information is given in the Offering Memorandum, other than as set forth
in the Offering Memorandum, or (iv)(A) any domestic or international event or
act or occurrence has disrupted, or in the opinion of the Initial Purchasers
will in the immediate future materially disrupt, the market for the Company's
securities or for securities in general; (B) trading in securities generally on
the New York or American Stock Exchange, or the Nasdaq National Market, shall
have been suspended or materially limited, or minimum or maximum prices for
trading shall have been established, or maximum ranges for prices for securities
shall have been required, on such exchange, or by such exchange or other
regulatory body or governmental authority having jurisdiction; (C) a banking
moratorium shall have been declared by federal or state authorities, or a
moratorium in foreign exchange trading by major international banks or persons
shall have been declared; (D) there is an outbreak or escalation of armed
hostilities involving the United States on or after the date hereof, or if there
has been a declaration by the United States of a national emergency or war, the
effect of which shall be, in the Initial Purchasers' reasonable judgment, to
make it inadvisable or impracticable to proceed with the offering or delivery of
the Units on the terms and in the manner contemplated in the Offering
Memorandum; or (E) there shall have been such a material adverse change in
general economic, political or financial conditions or if the effect of
international conditions on the financial markets in the United States shall be
such as, in the Initial Purchasers' reasonable judgment, makes it inadvisable or
impracticable to proceed with the delivery of the Units as contemplated hereby.
(c) Any notice of termination pursuant to this Section 11 shall be
by telephone or telephonic facsimile and, in either case, confirmed in writing
by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to clause (iii) or (iv) of Section
11(b), in which case each party will be responsible for its own expenses), the
Company shall reimburse the Initial Purchasers for all out-of-pocket expenses
(including the reasonable fees and expenses of the Initial Purchasers' counsel),
reasonably incurred by the Initial Purchasers in connection herewith.
12. Notice. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to the Initial
Purchasers shall be mailed, delivered, telecopied and confirmed in writing or
sent by a nationally recognized overnight courier service guaranteeing delivery
on the next business day to Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000, Attention: Corporate Finance Department, telecopy number: (212)
272-3092, with a copy to Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx, 0000
Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, XX 00000, Attention: Xxxxxxx
X. Xxxxxx, telecopy number: (000) 000-0000; and if sent to the Company, shall be
mailed, delivered, telecopied and confirmed in writing or sent by a nationally
recognized overnight courier service guaranteeing delivery on the next business
day to Orbital Imaging Corporation, 00000 Xxxxxxxx Xxxxxxxxx, Xxxxxx, XX 00000,
Attention: Xxxxx Xxxxxxx, General Counsel, telecopy number: (000) 000-0000, with
a copy to Xxxxxx & Xxxxxxx, 0000 Xxxxxxxxxxxx Xxx., XX, Xxxxx 000, Xxxxxxxxxx,
XX 00000, Attention:
Xxxxxxx X. Xxxx, telecopy number: (000) 000-0000.
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Initial Purchasers and the Company and the
controlling persons and agents referred to in Sections 6 and 7, and their
respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained. The
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term "successors and assigns" shall not include a purchaser, in its capacity as
such, of Units, Notes or Warrants from the Initial Purchasers.
14. Construction. This Agreement shall be construed in accordance with the
internal laws of the State of New York. TIME IS OF THE ESSENCE IN THIS
AGREEMENT.
15. Captions. The captions included in this Agreement are included solely
for convenience of reference and are not to be considered a part of this
Agreement.
16. Counterparts. This Agreement may be executed in various counterparts
which together shall constitute one and the same instrument.
[Signature Page to Follow]
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If the foregoing correctly sets forth the understanding among the Initial
Purchasers and the Company please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement among
us.
Very truly yours,
ORBITAL IMAGING CORPORATION
By: ____________________________
Name:
Title:
Accepted and agreed to as of
the date first above written:
BEAR, XXXXXXX & CO. INC.
By: _______________________
Name:
Title:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: _______________________
Name:
Title:
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By: _______________________
Name:
Title:
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SCHEDULE I
24
SCHEDULE 5(vi)
25
SCHEDULE 5(xxxiii)
401(k) plan
