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CONFORMED COPY
GLOBALSTAR, L.P.
GLOBALSTAR CAPITAL CORPORATION
$500,000,000
11 % Senior Notes due 2004
REGISTRATION RIGHTS AGREEMENT
February 19, 1997
Xxxxxx Brothers Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Xxxxxxxxx Xxxxxx
In care of Xxxxxx Brothers Inc.
As Representative of the Several Initial Purchasers
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 of even date
herewith (the "Purchase Agreement"), to jointly and severally issue and sell to
Xxxxxx Brothers Inc., Bear, Xxxxxxx & Co. Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation and Unterberg Harris (collectively, the "Initial
Purchasers"), 500,000 Units, each consisting of $1,000 aggregate principal
amount of 11 3/8% Senior Notes due 2004 (collectively the "Notes") and a
warrant (collectively, the "Warrants") to purchase 2.0645 shares of the common
stock, par value $1.00 per share ("Common Stock"), of Globalstar
Telecommunications Limited ("GTL"). The Notes will be issued pursuant to an
indenture dated as of February 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
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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 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(d)), 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 150 days (or if the 150th 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.
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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 the Issuers within the meaning of the Securities
Act, acquires the Exchange Notes in the ordinary course of such Xxxxxx'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 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
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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.
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
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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.
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;
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(ii) deliver, or cause to be delivered to, the Trustee for
cancellation 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 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
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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 180 days of the Issue Date, (iii) any 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)
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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 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) 150 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 Xxxxxx 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").
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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 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
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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 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):
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(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, Xxxxxxx, 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;
(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
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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 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
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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.
(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
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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 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
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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,
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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 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.
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(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.
(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 mark, 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
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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 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")
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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 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
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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.
(a) 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 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
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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.
(b) 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 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
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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.
(c) 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 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
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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.
(d) 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 cancellation
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;
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(ii) if any such Registration Statement so required to be
filed is not declared effective by the Commission on or before, in the
case of the Exchange Offer Registration Statement, the date that is
150 days after the Issue Date, and in the case of the Shelf
Registration Statement, the date that is 180 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
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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 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 determines 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.
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(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 August 15, 1997, will be payable in cash on the next
succeeding February 15 or August 15 to holders of record on the immediately
preceding February 1 or August 1, 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
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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 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.
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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 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:
Xxxxxx Brothers Inc.
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Syndicate Department
with a copy to:
Xxxxxxx, 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);
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(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 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.
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(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.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to Xxxxxx Brother Inc. a counterpart
hereof, whereupon this 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 XXXXX/QUALCOMM SATELLITE SERVICES, L.P., its managing
general partner, by XXXXX/QUALCOMM PARTNERSHIP, L.P. its general partner, by
XXXXX GENERAL PARTNER, INC. its general partner,
by
/s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary
GLOBALSTAR CAPITAL CORPORATION,
by
/s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary
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The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
XXXXXX BROTHERS INC.
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXXXX XXXXXX
by XXXXXX BROTHERS, INC.
by
/s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Authorized Signatory
34
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
________________
*/ 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.
37
2
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.
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.
38
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.
