Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
, 1998, by and between Motorola, Inc., a Delaware corporation (the
"Investor") and American Mobile Satellite Corporation, a Delaware corporation
(the "Company").
The Company, the Investor and certain others are parties to a Stock
Purchase Agreement, dated as of December 31, 1997, as amended on the date hereof
(the "Purchase Agreement"). In order to induce the Investor to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the Closing under the Purchase Agreement. Unless otherwise
provided in this Agreement, capitalized terms used herein shall have the
meanings set forth in Section 8 hereof.
The parties hereto agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time after the first anniversary
of the Closing Date under the Purchase Agreement, the holders of at least 10% of
the Registrable Securities may on two occasions request registration under the
Securities Act of all or any portion of their Registrable Securities on Form
S-1 or any similar long-form registration or, if available, Form S-2 or S-3 or
any similar short-form registration. All registrations requested pursuant to
this Section 1(a) are referred to herein as "Demand Registrations". A
registration shall not count as one of the two permitted Demand Registrations
until it has become effective and has not been deemed to be a Piggyback
Registration under Section 1(b); provided that, in any event the Company shall
pay all Registration Expenses in connection with any registration initiated as a
Demand Registration whether or not it has become effective and whether or not
such registration has counted as one of the two permitted Demand Registrations.
One of the two Demand Registrations shall be an underwritten registration. Each
request for a Demand Registration shall specify the approximate number of
Registrable Securities requested to be registered and the anticipated per share
price range for such offering. Within ten days after receipt of any such
request, the Company shall give written notice of such requested registration to
all other holders of Registrable Securities and shall include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice.
(b) Priority on Demand Registrations. In the event that the Company
proposes to sell any of its securities in any Demand Registration and less than
75% of the Registrable Securities requested to be included in such registration
are ultimately sold pursuant to such registration, then such Demand Registration
shall be treated for all purposes hereunder as a Piggyback Registration and
shall not count as one of the two permitted Demand Registrations. If the
managing underwriters in an underwritten offering (as selected in accordance
with Section 1(d) below) advise the Company in writing that, in their opinion
the number of Registrable Securities and, if permitted hereunder, other
securities requested to be included in such offering, exceeds the number of
Registrable Securities and other securities, if any, which can be sold therein
without adversely affecting the marketability of the offering, the Company shall
include in such registration (i) first, the securities the Company proposes to
sell, if any, (ii) second, the Registrable Securities
requested to be included in such registration, pro rata among the holders of
such Registrable Securities on the basis of the number of shares owned by each
such holder, and (iii) third, other securities requested to be included in such
registration.
(c) Restrictions on Demand Registrations. The Company may postpone for up
to 90 days the filing or the effectiveness of a registration statement for a
Demand Registration if (i) the Company's board of directors determines in good
faith that such Demand Registration would reasonably be expected to have a
material adverse effect on a then current proposal or plan by the Company or any
of its Subsidiaries to engage in a primary offering of common stock to the
public (subject to the Investor's rights under Section 2 below), an acquisition
of assets (other than in the ordinary course of business) or a merger,
consolidation, tender offer, reorganization or similar transaction, and (ii) if
the holders of the Registrable Securities have requested that such Demand
Registration be an underwritten registration as permitted under Section 1(a)
above, the managing underwriters (as selected in accordance with Section 1(d)
below) concur with such determination; provided that in such event, the holders
of Registrable Securities initially requesting such Demand Registration shall be
entitled to withdraw such request and, if such request is withdrawn, such Demand
Registration shall not count as one of the two permitted Demand Registrations
hereunder and the Company shall pay all Registration Expenses in connection with
such registration. The right to postpone the filing or the effectiveness of a
registration statement pursuant to this Section 1(c) may only be exercised once
in any twelve-month period.
(d) Selection of Underwriters. The holders of a majority of the
Registrable Securities initially requesting registration hereunder shall have
the right to select the investment banker(s) and manager(s) to administer the
offering, subject to the Company's approval which shall not be unreasonably
withheld.
(e) Other Registration Rights. Except as provided in this Agreement, the
Company shall not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of a majority of the Registrable Securities if such right
is inconsistent with the terms of this Agreement (including without limitation
the priorities set forth in Sections 1(b), 2(c) and 2(d) hereof); provided,
however, that the Company may enter into that certain Warrant Registration
Rights Agreement dated as of March 31, 1998, by and among the Company, Bear,
Xxxxxxx & Co. Inc., X.X. Xxxxxx Securities Inc., TD Securities (USA) Inc. and
Banc America Xxxxxxxxx Xxxxxxxx (the "Warrant Registration Agreement") and grant
the registration rights contained therein.
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2. Piggyback Registrations
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(a) Right to Piggyback. At any time after the date hereof, whenever
the Company proposes to register any of its securities under the Securities Act
(other than pursuant to a Demand Registration) and the registration form to be
used may be used for the registration of Registrable Securities (a "Piggyback
Registration"), whether or not for sale for its own account, the Company shall
give prompt written notice (in any event within three business days after its
receipt of notice of any exercise of demand registration rights other than under
this Agreement) to all holders of Registrable Securities of its intention to
effect such a registration and shall include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 15 days after the receipt of the Company's
notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the marketability
of the offering, then,
(A) if such Piggyback Registration is filed under the Securities Act on or
prior to the end of the 42nd month after the month in which the Closing
under the Purchase Agreement occurs, the Company shall include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on
the basis of the number of shares owned by each such holder, and (iii)
third, other securities requested to be included in such registration; and
(B) if such Piggyback Registration is filed under the Securities Act after
the end of the 42nd month after the month in which the Closing under the
Purchase Agreement occurs, the Company shall include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities and all other securities requested to be included in
such registration, pro rata among the holders of such Registrable
Securities and other securities on the basis of the number of shares owned
by each holder thereof
(d) Priority on Secondary Registrations. If a Piggyback Registration
is solely an underwritten secondary registration on behalf of holders of the
Company's securities, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering
without adversely affecting the marketability of the offering, then,
(A) if such Piggyback Registration is filed under the Securities Act on or
prior to the end of the 42nd month after the month in which the Closing
under the Purchase Agreement occurs, the Company shall include in such
registration (i) first, the Registrable Securities
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requested to be included in such registration, pro rata among the holders
of such Registrable Securities on the basis of the number of shares owned
by each such holder, (ii) second, the securities requested to be included
therein by the holders requesting such registration, and (iii) third, other
securities requested to be included in such registration; and
(B) if such Piggyback Registration is filed under the Securities Act after
the end of the 42nd month after the month in which the Closing under the
Purchase Agreement occurs, the Company shall include in such registration
the Registrable Securities and all other securities requested to be
included in such registration, pro rata among the holders of such
Registrable Securities and other securities on the basis of the number of
shares owned by each holder thereof.
provided, however, that notwithstanding clauses (A) and (B) above, if an
offering of Registrable Securities (as defined in the Warrant Registration
Agreement) by the Holders (as defined in the Warrant Registration Agreement) in
accordance with the Warrant Registration Agreement is a Shelf Registration (as
defined in the Warrant Registration Agreement) effected in the form of an
underwritten offering of Warrant Shares (as defined in the Warrant Registration
Agreement), the Company shall include in such registration first, the
Registrable Securities (as defined in the Warrant Registration Agreement) pro
rata among the Holders (as defined in the Warrant Registration Agreement) of
such Warrant Shares (as defined in the Warrant Registration Agreement) on the
basis of the number of Warrant Shares (as defined in the Warrant Registration
Agreement) requested to be included by such Holders (as defined in the Warrant
Registration Agreement), and then shall include Registrable Securities and other
securities in accordance with the applicable provisions of clauses (A) and (B)
above.
(e) Other Registrations. If the Company has previously filed a
registration statement (other than pursuant to the Warrant Registration
Agreement) with respect to Registrable Securities pursuant to Section 1 or
pursuant to this Section 2, and if such previous registration has not been
withdrawn or abandoned, the Company shall not file or cause to be effected any
other registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (other than pursuant to the Warrant Registration Agreement and other than on
Form S-4 or Form S-8 or any successor forms or on Form S-3 with respect to any
employee benefit plans of the Company), whether on its own behalf or at the
request of any holder or holders of such securities, until a period of at least
180 days has elapsed from the effective date of such previous registration.
3. Holdback Agreements.
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(a) Each holder of Registrable Securities shall not effect any public
sale or distribution (including sales pursuant to Rule 144) of equity securities
of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 90-day
period beginning on the effective date of any underwritten Demand Registration
or any underwritten Piggyback Registration in which Registrable Securities are
included (except as part of such underwritten registration), unless the
underwriters managing the registered public offering otherwise agree.
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(b) The Company (i) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-4 or Form S-8
or any successor forms or on Form S-3 with respect to any employee benefit plans
of the Company or pursuant to the Warrant Registration Agreement), unless the
underwriters managing the registered public offering otherwise agree, and (ii)
shall use reasonable efforts to cause each holder of at least 10% (on a fully-
diluted basis) of its Common Stock, or any securities convertible into or
exchangeable or exercisable for Common Stock, purchased from the Company at any
time after the date of this Agreement (other than in a registered public
offering or pursuant to the exercise of any warrants for Common Stock
outstanding as of the date of the Purchase Agreement) to agree not to effect any
public sale or distribution (including sales pursuant to Rule 144) of any such
securities during such period (except as part of such underwritten registration,
if otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use all commercially reasonable efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof (including the
registration of AMSC Warrants held by a holder of Registrable Securities), and
pursuant thereto, the Company shall as expeditiously as possible:
(a) prepare and (60 days after the end of the period within which
requests for registration may be given to the Company) file with the Securities
and Exchange Commission a registration statement with respect to such
Registrable Securities and use all commercially reasonable efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company shall furnish to any counsel selected by the holders of a majority
of the Registrable Securities covered by such registration statement, copies of
all such documents proposed to be filed, which documents shall be subject to the
review and comment of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the
Securities and Exchange Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of not less
than 180 days and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by the
sellers thereof, set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus), and such other documents as such
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seller may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(d) use all commercially reasonable efforts to register or qualify
such Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the happening of
any event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the request of
any such seller, the Company shall prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue statement of
a material fact or omit to state any fact necessary to make the statements
therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form if such registration is underwritten) and take such
other customary actions (which persons in similar circumstances would be
expected to take in a reasonable effort to facilitate the sale of Registrable
Securities as contemplated hereby) as the holders of a majority of the
Registrable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities;
(i) make available for inspection by any underwriter participating in
any disposition pursuant to such registration statement, and any attorney,
accountant or other agent retained by any such underwriter or selected by the
holders of a majority of the Registrable Securities, all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement;
(j) otherwise use all commercially reasonable efforts to comply with
all applicable rules and regulations of the Securities and Exchange Commission,
and make available
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to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months beginning with the first
day of the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) if any such registration or comparable statement refers to any
holder by name or otherwise as the holder of any securities of the Company and
if its sole and exclusive judgment, such holder is or might be deemed to be an
underwriter or a controlling person of the Company, such holder shall have the
right to require (i) the insertion therein of language, in form and substance
satisfactory to such holder and presented to the Company in writing, to the
effect that the holding by such holder of such securities is not to be construed
as a recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such holder
shall assist in meeting any future financial requirements of the Company, or
(ii) in the event that such reference to such holder by name or otherwise is not
required by the Securities Act or any similar Federal statute then in force, the
deletion of the reference to such holder; provided that with respect to this
clause (ii) such holder shall furnish to the Company an opinion of counsel to
such effect, which opinion and counsel shall be reasonably satisfactory to the
Company;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use all commercially reasonable efforts promptly
to obtain the withdrawal of such order;
(m) use all commercially reasonable efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of such Registrable
Securities; and
(n) use all commercially reasonable efforts to provide a legal
opinion of the Company's outside counsel, dated the effective date of such
registration statement (and, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement), with respect to the registration statement, each amendment and
supplement thereto, the prospectus included therein (including the preliminary
prospectus) and such other documents relating thereto in customary form and
covering such matters of the type customarily covered by legal opinions of such
nature.
5. Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
fees and disbursements of custodians, and fees and disbursements of counsel for
the Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company
(all such expenses being herein called "Registration Expenses"), shall be borne
as provided in this Agreement, except that the Company shall, in any event, pay
its internal expenses (including, without limitation, all salaries and expenses
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of its officers and employees performing legal or accounting duties), the
expense of any annual audit or quarterly review, the expense of any liability
insurance and the expenses and fees for listing the securities to be registered
on each securities exchange on which similar securities issued by the Company
are then listed or on the NASD automated quotation system. Notwithstanding the
foregoing, the holders of the Registrable Securities shall pay all of the fees
and disbursements of their respective separate legal counsel in connection with
the registration rights provided hereunder.
6. Indemnification.
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(a) The Company agrees to indemnify, to the extent permitted by law, each
holder of Registrable Securities, its officers and directors and each Person who
controls such holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses incurred by such party
pursuant to any actual or threatened action, suit, proceeding or investigation
arising out of or based upon any untrue or alleged untrue statement of material
fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the same arise
out of or are based upon any information furnished in writing to the Company by
such holder expressly for use therein or by such holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same.
(b) in connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify (in the same
manner and to the same extent as set forth in Section 6(a) above) the Company,
its directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is made in reliance on and in conformity with any
information or affidavit so furnished in writing by such holder; provided that
the obligation to indemnify shall be individual, not joint and several, for each
holder and shall be limited to the net amount of proceeds received by such
holder from the sale of Registrable Securities pursuant to such registration
statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided that the failure to give prompt notice shall not
impair any Person's right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such
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defense is assumed, the indemnifying party shall not be subject to any liability
for any settlement made by the indemnified party without its consent (but such
consent shall not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d) The indemnification provided for under this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities. The
indemnifying party also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event
the indemnifying party's indemnification is unavailable for any reason.
7. Participation in Underwritten Registrations. No Person may participate
in any registration hereunder which is underwritten unless such Person (i)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that, no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder
and such holder's intended method of distribution) or to undertake any
indemnification obligations to the Company or the underwriters with respect
thereto, except as otherwise provided in Section 6 hereof
8. Definitions.
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(a) "Aliens" means any alien or a representative thereof, or a foreign
government or a representative thereof, or a corporation or other entity
organized under the laws of any foreign government.
(b) "Common Stock" means the Common Stock, par value $.0l per share, of
the Company.
(c) "Registrable Securities" means (i) any Common Stock issued pursuant to
the Purchase Agreement (including shares issuable upon the exercise of any AMSC
Warrants) and (ii) any Common Stock issued or issuable with respect to the
securities referred to in clause (i) by way of a stock dividend or stock split
or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when they
have been distributed to the public pursuant to an offering registered under the
Securities Act or sold to the public through a broker, dealer or market maker in
compliance with Rule 144 under the Securities Act (or any similar rule then in
force) or repurchased by the Company or any Subsidiary. For purposes of this
Agreement,
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a Person shall be deemed to be a holder of Registrable Securities, and the
Registrable Securities shall be deemed to be in existence, whenever such Person
has the right to acquire directly or indirectly such Registrable Securities
(upon conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected, and
such Person shall be entitled to exercise the rights of a holder of Registrable
Securities hereunder.
(d) Unless otherwise stated, other capitalized terms contained herein have
the meanings set forth in the Purchase Agreement.
9. Current Public Information. The Company shall file all reports required
to be filed by it under the Securities Act and the Securities Exchange Act of
1934, as amended, and the rules and regulations adopted by the Securities and
Exchange Commission thereunder, and will take such further action as any holder
or holders of Registrable Securities may reasonably request, all to the extent
required to enable such holders to sell Registrable Securities pursuant to Rule
144 adopted by the Securities and Exchange Commission under the Securities Act
(as such rule may be amended from time to time) or any similar rule or
regulation hereafter adopted by the Securities and Exchange Commission.
10. Opinion of Counsel. If the Company so requests, any transfer of shares
of Common Stock held by the Investor on the effective date of this Agreement
(other than shares sold pursuant to the Section 1 or 2 above) shall be
accompanied by an opinion of counsel to the Investor, reasonably satisfactory in
form and substance to the Company to the effect that such transfer complies with
applicable provisions of the Securities Act, and the rules and regulations
promulgated thereunder. In addition, each transfer of shares of Common Stock by
the Investor shall be accompanied by an opinion of counsel to the transferee
reasonably satisfactory in form and substance to the Company, to the effect that
the transfer complies with applicable provisions of the Communications Act of
1934, as amended (the "Communications Act"). Notwithstanding the foregoing, no
opinion of counsel shall be required in connection with the transfer of shares
of Common Stock that cease to be Registrable Securities, unless such shares are
transferred together with Registrable Securities in a single transfer or series
of related transfers to a single purchaser (including any Affiliates of such
purchaser).
11. Alien Ownership Restrictions. The Investor acknowledges that the
Company is, and from time to time may be, subject to the laws, regulations
and/or FCC policies restricting the grant of FCC licenses to, or the holding of
FCC licenses by, corporations directly or indirectly owned or controlled by
Aliens, including, but not limited to, Section 310(b) of the Communications Act
(as modified by any FCC ruling or order specifically applicable to the Company
or any subsidiary, the "Alien Ownership Restrictions"). The Investor shall use
good faith efforts to cooperate (including providing the Company with annual
certifications as reasonably requested by the Company and other documents and/or
information as required by the FCC) with the Company in its compliance with the
Alien Ownership Restrictions as they relate to the Registrable Securities owned
by the Investor. The Investor shall not transfer any Registrable Securities if
such transfer would violate the Alien Ownership Restrictions.
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12. Miscellaneous.
(a) Entire Agreement; No Inconsistent Agreements. This Agreement contains
the entire agreement between the parties hereto with respect to the transactions
contemplated herein and supersede all previous negotiations, commitments and
writings. The Company shall not hereafter enter into any agreement with respect
to its securities which is inconsistent with or violates the rights granted to
the holders of Registrable Securities in this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company shall not
take any action, or permit any change to occur, with respect to its equity
capitalization which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(c) Remedies. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of a majority of the Registrable
Securities.
(e) Successors and Assigns. All covenants and agreements in this Agreement
by or on behalf of any of the parties hereto shall bind and insure to the
benefit of the respective successors and assigns of the parties hereto whether
so expressed or not. In addition, whether or not any express assignment has been
made, the provisions of this Agreement which are for the benefit of purchasers
or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities, subject to the
provisions respecting the minimum numbers or percentages of shares of
Registrable Securities required in order to be entitled to certain rights, or
take certain actions, contained herein.
(f) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
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(g) Counterparts. This Agreement may be executed simultaneously in two or
more counterparts (including by means of telecopied signature pages), any one of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF
NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS
OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
(j) Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when (i) delivered personally to
the recipient, (ii) sent to the recipient by reputable overnight courier service
(charges prepaid) or (iii) mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid. Such notices, demands and
other communications shall be sent to the Investor and the Company at the
applicable address indicated below:
To Investor:
------------
Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
With a copy (which will not constitute notice) to:
--------------------------------------------------
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
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To the Company:
---------------
American Mobile Satellite Corporation
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: General Counsel
Facsimile: (000) 000-0000
With a copy (which will not constitute notice) to:
--------------------------------------------------
Xxxxxx & Xxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
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IN WITNESS WHEREOF, the parties have duly executed this Registration Rights
Agreement as of the date first written above.
MOTOROLA, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
-----------------------------
Its: Group Controller
-----------------------------
AMERICAN MOBILE SATELLITE CORPORATION,
a Delaware corporation
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
-----------------------------
Its: Vice President & Secretary
-----------------------------
