Exhibit 99.4
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
April 22, 2005, is entered into by and between SKYTERRA COMMUNICATIONS, INC.,
a Delaware corporation (the "Company") and XXXXXX NETWORK SYSTEMS, INC., a
Delaware corporation ("HNS").
WHEREAS, The DIRECTV Group, Inc. ("DTVG"), HNS, the Company and
Xxxxxx Network Systems, LLC ("Newco") have entered into a Contribution and
Membership Interest Purchase Agreement, dated as of December 3, 2004 (as
amended, the "Contribution Agreement"), pursuant to which, among other things,
HNS, contributed to Newco, and Newco acquired and accepted from HNS certain
assets, and assumed certain liabilities associated therewith, all on the terms
and conditions set forth therein;
WHEREAS, pursuant to the Contribution Agreement, among other things,
the Company agreed to issue to HNS shares of common stock of the Company, par
value $0.01 per share (the "Common Stock");
WHEREAS, the parties have agreed that the Company will grant shelf
and piggyback registration rights with respect to the shares of Common Stock
issued by the Company pursuant to the Contribution Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
1.1 "Commission" means the Securities and Exchange
Commission, or any other Federal agency at the time administering the
Securities Act.
1.2 "Exchange Act" means the Securities Exchange Act of
1934, as amended, or any similar Federal statute, and the rules and
regulations of the Commission issued under such Act, as they each may, from
time to time, be in effect.
1.3 "Holder" means HNS and the other beneficial owners from
time to time of Registrable Securities, but in each case only so long as each
such Person continues to hold any Registrable Securities.
1.4 "Person" means any individual, corporation, association,
partnership, limited liability company, joint venture, trust, estate, or other
entity or organization.
1.5 "Registrable Securities" means the shares of Common
Stock issued to HNS pursuant to the Contribution Agreement and any securities
into which such shares of Common Stock have been converted or exchanged, and
any securities issued with respect thereto upon any stock dividend, split or
similar event; provided, however, that such shares and securities that are
Registrable Securities shall cease to be Registrable Securities (x) upon any
sale pursuant to a Registration Statement, or (y) with respect to a Holder,
when such Holder is eligible to sell, transfer or otherwise convey all of such
Holder's Registrable Securities pursuant to Rule 144 under the Securities Act
without regard to volume and holding period limitations.
1.6 "Registration Statement" means a registration statement,
including any Shelf Registration Statement, filed by the Company with the
Commission for a public offering and sale of equity securities of the Company
(other than a registration statement on Form S-8 or Form S-4, or their
successors, any registration statement covering only securities proposed to be
issued in exchange for securities or assets of another corporation or a
registration statement on Form S-3 solely for the purpose of registering
shares issued in a non-underwritten offering in connection with a merger,
combination or acquisition).
1.7 "Securities Act" means the Securities Act of 1933, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
Capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings given them in the Contribution
Agreement.
2. Registration Rights.
2.1 Shelf Registration.
2.1.1 The Company shall prepare and file with the
Commission as soon as practicable but in no event later than (i) if the
Company is eligible to file a registration statement on Form S-3, one hundred
twenty (120) days after the date hereof or (ii) if the Company is not eligible
to file a registration statement on Form S-3, one hundred eighty (180) days
after the date hereof, a "shelf" registration statement on Form S-3 or on
another appropriate short form that permits incorporation by reference of
certain information in the prospectus, or if not available to the Company on
Form S-1 or such other appropriate form (the "Initial Shelf Registration
Statement" and together with any subsequent shelf registration statement filed
in the event the Initial Shelf Registration Statement is withdrawn or New
Shelf Registration Statement (as defined below), including, in each case, the
prospectus, amendments and supplements to such registration statements,
including post-effective amendments, all exhibits and all materials
incorporated by reference or deemed to be incorporated by reference in such
registration statements, are herein collectively referred to as the "Shelf
Registration Statement"), for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act (the "Shelf
Registration"), registering the resale from time to time by Holders of all of
the Registrable Securities. The Shelf Registration Statement shall be on an
appropriate form under the Securities Act permitting registration of such
Registrable Securities for resale by such Holders from time to time in
accordance with the methods of distribution elected by the Holders of
Registrable Securities and set forth in the Shelf Registration Statement. The
Company shall use commercially reasonable efforts to cause the Initial Shelf
Registration Statement to be declared effective under the Securities Act as
promptly as is practicable. The Company shall use its best efforts to keep the
Shelf Registration Statement, continuously effective under the Securities Act
to permit the prospectus, forming a part thereof, to be used lawfully by the
Holders of the Registrable Securities, until the earliest of (i) the date when
all the Registrable Securities registered under the Shelf Registration
Statement have been sold pursuant thereto, (ii) the date when each Holder is
eligible to sell, transfer or otherwise convey all of such Holder's
Registrable Securities pursuant to Rule 144 under the Securities Act without
regard to volume and holding period limitations or (iii) eighteen (18) months
after the date the Shelf Registration Statement is declared effective under
the Securities Act (or for such longer period if extended pursuant to Section
2.1.2 or for such number of days as the Holders are required to agree not to
sell, transfer or otherwise dispose of the Registrable Securities pursuant to
Section 8) (such period, the "Effectiveness Period"). The Company shall be
deemed not to have used its best efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes any
action that would result in Holders of Registrable Securities covered thereby
not being able to offer and sell such Registrable Securities during that
period, unless such action is required by applicable law. The Company shall at
all times after the date hereof use commercially reasonable efforts to remain
eligible under the Securities Act to file a registration statement on Form
S-3.
2.1.2 If the Shelf Registration Statement ceases to be
effective for any reason at any time during the Effectiveness Period (other
than because all Registrable Securities registered thereunder have been resold
pursuant thereto or have otherwise ceased to be Registrable Securities), the
Company shall use its best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof; provided, that the period of time
set forth in Section 2.1.1(iii) shall be extended by any period of time the
Shelf Registration Statement ceases to be effective for any reason at any time
during the Effectiveness Period.
2.1.3 The Company shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement, if required by the Securities Act or, to the extent to
which the Company does not reasonably object, as reasonably requested by (i)
HNS in the event that it is participating in the Shelf Registration Statement
or (ii) a majority of the Holders of Registrable Securities.
2.1.4 Each Holder of Registrable Securities agrees that
if such Holder wishes to sell Registrable Securities pursuant to a Shelf
Registration Statement and the related prospectus, it will do so only in
accordance with this Section 2.1.4. At the time the Shelf Registration
Statement is declared effective, each Holder who has provided the Company with
the information required by Section 7, on or prior to the date that is five
(5) business days prior to such time of effectiveness, and who holds
Registrable Securities shall be named as a selling securityholder in the
Initial Shelf Registration Statement and the related prospectus in such a
manner as to permit such Holder to deliver such prospectus to purchasers of
Registrable Securities in accordance with applicable law. From and after the
date the Initial Shelf Registration Statement is declared effective, the
Company shall, as promptly as practicable, and in any event no later ten (10)
business days after the date any other Holder delivers the information
required by Section 7 to the Company, as required by applicable law, prepare
and file with the Commission a post-effective amendment to the Shelf
Registration Statement or prepare and file a supplement to the related
prospectus or a supplement or amendment to any document incorporated therein
by reference or file any other document required under the Securities Act or,
if required by applicable law upon advice of counsel, prepare and file a new
Shelf Registration Statement combining, pursuant to Rule 429 under the
Securities Act (or any successor rule), the information contained in the
prospectus forming part of the existing Shelf Registration Statement and the
prospectus forming part of such new Shelf Registration Statement (for purposes
of this Section 2.1.4, this new Shelf Registration Statement is referred to as
the "New Shelf Registration Statement") so that such Holder of Registrable
Securities that has delivered the information required by Section 7 is named
as a selling securityholder in a Shelf Registration Statement and the related
prospectus in such a manner as to permit the Holder to deliver a prospectus
relating to an effective Registration Statement to purchasers of the
Registrable Securities in accordance with applicable law. If the Company, upon
the advice of counsel, files a post-effective amendment to the Shelf
Registration Statement or a New Shelf Registration Statement, the Company
shall use their commercially reasonable efforts to cause such post-effective
amendment or such New Shelf Registration Statement to be declared effective
under the Securities Act as promptly as is practicable. The Company shall also
(i) provide any Holder with copies of any documents filed pursuant to this
Section 2.1.4 and (ii) notify any Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment or such
New Shelf Registration Statement filed pursuant to this Section 2.1.4.
2.1.5 Notwithstanding any other provisions of this
Agreement to the contrary, the Company shall as expeditiously as possible use
its best efforts to prepare and file with the Commission any amendments and
supplements to the Shelf Registration Statement and the prospectus included in
the Shelf Registration Statement as may be necessary to keep the Shelf
Registration Statement continuously effective during the Effectiveness Period,
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Shelf Registration Statement.
2.2. Incidental Registration.
2.2.1 Subject to Section 2.2.2, below, whenever the
Company proposes to file a Registration Statement for the issuance or public
sale of Common Stock or other equity of the Company for its own account or for
the account of a holder of Common Stock of the Company (except for
registrations relating to employee benefit plans and corporate
reorganizations) at any time and from time to time, it will, prior to such
filing, give written notice to all Holders of its intention to do so and, upon
the written request of a Holder or Holders given within twenty (20) days after
the Company provides such notice (which request shall state the intended
method of disposition of such Registrable Securities), the Company shall use
its best efforts to cause all Registrable Securities that the Company has been
requested by such Holder or Holders to register to be registered under the
Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified
in the request of such Holder or Holders; provided that the Company shall have
the right to postpone or withdraw any registration effected pursuant to this
Section 2.2 without obligation to any Holder.
2.2.2 In connection with any offering under this Section
2.2 involving an underwriting, the Company shall not be required to include
any Registrable Securities in such underwriting unless the Holders thereof
accept the terms of the underwriting as agreed upon between the Company and
the underwriters selected by it, and then only in such quantity as will not,
in the good faith opinion of the underwriters, jeopardize the success of the
offering by the Company.
2.2.3 In connection with any offering under this Section
2.2 involving an underwriting, if the representative of the underwriters
advises the Company in writing that marketing factors require a limitation on
the securities to be so underwritten, the securities which the Company has
requested to be so included shall be entirely included in such registration
and underwriting and the number of Registrable Securities to be included in
the registration and underwriting by the Holders shall thereafter be allocated
pro rata among the Holders and any other Persons with similar registration
rights based upon their total ownership of Common Stock or other equity
interests; provided, however, that such allocation shall not operate to reduce
the aggregate number of securities to be included in such registration, if any
Holder does not request inclusion of the maximum number of Registrable
Securities allocated to such Holder pursuant to the above-described procedure,
in which case the remaining portion of such Holder's allocation shall be
reallocated among those Holders whose allocations did not satisfy their
requests, pro rata on the basis of the Common Stock or other equity interests
which would be held by such Holders. This procedure shall be repeated until
all of the securities which may be included in the registration on behalf of
the requesting Holders have been so allocated.
3. Registration Procedures. When the Company causes the registration
of any of the Registrable Securities under the Securities Act, the Company
shall:
3.1 as expeditiously as possible use its best efforts to
prepare and file with the Commission a Registration Statement with respect to
such Registrable Securities and use its best efforts to cause that
Registration Statement to become and remain effective in accordance with the
time and other limitations set forth herein;
3.2 as expeditiously as possible use its best efforts to
prepare and file with the Commission any amendments and supplements to the
Registration Statement and the prospectus included in the Registration
Statement as may be necessary to keep the Registration Statement effective,
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement;
3.3 not later than five (5) business days prior to filing
the Registration Statement or prospectus, or any amendment or supplement
thereto (excluding amendments deemed to result from the filing of documents
incorporated by reference therein), the Company shall deliver to a single
counsel selected by the Holders of the Registrable Securities included or to
be included in such Registration Statement copies of such Registration
Statement or prospectus, or any amendment or supplement thereto as proposed to
be filed, together with exhibits thereto, which documents will be subject to
review and comment by such Holders and such counsel during such
five-business-day period, and the Company shall not file any Registration
Statement or prospectus, or any amendment or supplement thereto containing any
statements with respect to any such Holder to which such Holder shall
reasonably object in writing during such five-business-day period;
3.4 as expeditiously as possible use its best efforts to
furnish to each selling Holder such reasonable numbers of copies of the
Registration Statement, each amendment and supplement thereto, prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the selling Holder may reasonably
request in order to facilitate the public sale or other disposition of the
Registrable Securities owned by the selling Holder;
3.5 as expeditiously as possible use its best efforts to
register or qualify the Registrable Securities covered by the Registration
Statement under the securities or Blue Sky laws of such states as the selling
Holders shall reasonably request, and do any and all other acts and things
that may be necessary or desirable to enable the selling Holders to consummate
the public sale or other disposition in such states of the Registrable
Securities owned by the selling Holder; provided, however, that the Company
shall not be required in connection with this Section 3.5 to qualify as a
foreign corporation or execute a general consent to service of process in any
jurisdiction unless the Company is already subject to service in such
jurisdiction and except as may be required under the Securities Act;
3.6 in the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering and
reasonably cooperate in the marketing efforts of the underwriters and the
Holders by, among other things, making available, as reasonably requested by
the underwriters and the Holders, senior executive officers of the Company for
attendance at, and active participation with the underwriters in,
informational meetings with prospective purchasers of the Registrable
Securities being offered, including meeting with groups of such purchasers or
with individual purchasers, providing information and answering questions
about the Company at such meetings, and traveling to locations at reasonable
times and as reasonably selected by the underwriters. Holders participating in
such underwriting shall also enter into and perform their obligations under
such an agreement;
3.7 promptly notify each Holder of Registrable Securities
upon the occurrence of any of the following events in respect of the
Registration Statement or related prospectus in respect of an offering of
Registrable Securities: (i) receipt of any request by the Commission or any
other Federal or state governmental authority for additional information,
amendments or supplements to the Registration Statement or related prospectus;
(ii) notification of the issuance by the Commission or any other Federal or
state governmental authority of any stop order suspending the effectiveness of
the Registration Statement or of the initiation of any proceedings for that
purpose; (iii) receipt of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; (iv) the happening of any event as a result
of which the prospectus included in such Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing; (v) the declaration by the Commission of the effectiveness of the
Registration Statement; and (vi) the Company's reasonable determination that a
post-effective amendment to the Registration Statement would be appropriate,
and the Company promptly shall make available to the Holders any such
supplement or amendment to the related prospectus.
3.8 use its best efforts to furnish, on the date that such
Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, (i) an opinion, dated as of
such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and
(ii) a letter dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering addressed to the underwriters;
3.9 if the Company has delivered preliminary or final
prospectuses to the selling Holders and after having done so the prospectus is
amended to comply with the requirements of the Securities Act, the Company
shall promptly notify the selling Holders and, if requested, the selling
Holders shall immediately cease making offers of Registrable Securities and
return all prospectuses to the Company. The Company shall promptly provide the
selling Holders with revised prospectuses and, following receipt of the
revised prospectuses, the selling Holders shall be free to resume making
offers of the Registrable Securities;
3.10 cause all Registrable Securities to be listed on any
securities exchanges or automated quotation systems on which the Common Stock
is then listed;
3.11 make available for inspection by any Holder or any
underwriter participating in any disposition pursuant to such Registration
Statement and any attorney, accountant or other professional retained by any
such Holder or underwriter (collectively, the "Inspectors"), all financial and
other records, pertinent corporate documents and properties of the Company as
shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors, employees,
accountants, attorneys and auditors to supply all information reasonably
requested by any Inspectors in connection with such Registration Statement;
3.12 if requested by the Holders, provide a CUSIP number for
all Registrable Securities not later than the effective date of the
Registration Statement covering such Registrable Securities and provide the
Company's transfer agent(s) and registrar(s) for the Registrable Securities
with printed certificates for the Registrable Securities;
3.13 cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc. ("NASD") and in the
performance of any due diligence investigation by any underwriter (including
any "qualified independent underwriter") that is required to be retained in
accordance with the rules and regulations of the NASD; and
3.14 use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
securityholders, as soon as reasonably practicable, an earnings statement
covering a period of twelve (12) months, beginning within three (3) months
after the effective date of a Registration Statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act.
4. Allocation of Expenses. The Company will pay all Registration
Expenses (as defined below) of all registrations under this Agreement. For
purposes of this Section, the term "Registration Expenses" shall mean all
expenses incurred by the Company in complying with this Agreement, including,
without limitation, all registration and filing fees, exchange listing fees,
printing expenses, fees and disbursements of counsel for the Company and the
reasonable fees and expenses of one (1) counsel selected by the selling
Holders to represent the selling Holders, state Blue Sky fees and expenses,
and the expense of any special audits incident to or required by any such
registration, but excluding underwriting discounts, selling commissions and
the fees and expenses of selling Holders' own counsel (other than the counsel
selected to represent all selling Holders).
5. Indemnification and Contribution. In the event of any registration
of any of the Registrable Securities under the Securities Act pursuant to this
Agreement, the Company will indemnify and hold harmless the seller of such
Registrable Securities (including any member, partner, officer or director of
such seller), each underwriter of such seller of such Registrable Securities,
and each other Person, if any, who controls such seller or underwriter within
the meaning of the Securities Act or the Exchange Act against any losses,
claims, damages or liabilities, joint or several, to which such seller
(including any member, partner, officer or director of such seller),
underwriter or controlling Person may become subject under the Securities Act,
the Exchange Act, state securities or Blue Sky laws or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement under
which such Registrable Securities were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any state securities law or
any rule or regulation promulgated under the Securities Act, the Exchange Act
or any state securities laws in connection with the offering covered by such
Registration Statement; and the Company will reimburse such seller (including
any member, partner, officer or director of such seller), underwriter and each
such controlling Person of the seller or underwriter for any legal or any
other expenses reasonably incurred by such seller (including any member,
partner, officer or director of such seller), underwriter or controlling
Person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or omission made
in such Registration Statement, preliminary prospectus or prospectus, or any
such amendment or supplement, in reliance upon and in conformity with
information furnished to the Company, in writing, by or on behalf of such
seller, underwriter or controlling Person specifically for use in the
preparation thereof.
In the event of any registration of any of the Registrable
Securities under the Securities Act pursuant to this Agreement, each seller of
Registrable Securities, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors and officers and each underwriter
(if any) and each Person, if any, who controls the Company or any such
underwriter within the meaning of the Securities Act or the Exchange Act, and
any other seller of Registrable Securities or any such seller's partners,
directors or officers and each Person, if any, who controls such seller within
the meaning of the Securities Act and the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which the Company, such
directors and officers, underwriter, other selling Holder or controlling
Person may become subject under the Securities Act, Exchange Act, state
securities or Blue Sky laws or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement under which such Registrable
Securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and each such seller of Registrable Securities will reimburse the
Company for any legal or any other expenses reasonably incurred by the Company
in connection with investigating or defending any such loss, claim, damage,
liability or action, if the statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company by or
on behalf of such seller, specifically for use in connection with the
preparation of such Registration Statement, prospectus, amendment or
supplement; provided, however, that the obligations of such Holders hereunder
shall be limited to an amount equal to the net proceeds received by each
selling Holder of Registrable Securities sold as contemplated herein.
Each party entitled to indemnification under this Section 5
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom; provided, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld); and, provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement, except to the
extent that the Indemnifying Party's ability to defend against such claim or
litigation is impaired as a result of such failure to give notice. The
Indemnified Party may participate in such defense at such party's expense;
provided, however, that the Indemnifying Party shall pay such expense if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between the Indemnified Party and any other party represented by
such counsel in such proceeding. No Indemnifying Party in the defense of any
such claim or litigation shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation, and no Indemnified Party shall consent to entry
of any judgment or settle such claim or litigation without the prior written
consent of the Indemnifying Party. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
due in accordance with its terms but for any reason is held to be unavailable
to an Indemnified Party in respect to any losses, claims, damages and
liabilities referred to herein, then the Indemnifying Party shall, in lieu of
indemnifying such Indemnified Party, contribute to the amount paid or payable
by such Indemnified Party as a result of such losses, claims, damages or
liabilities to which such party may be subject in proportion as is appropriate
to reflect the relative fault of the Indemnifying Party on the one hand and
the Indemnified Party on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
Indemnifying Party and the Indemnified Party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
material fact related to information supplied by the Indemnifying Party or the
Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 5 were determined by pro rata allocation
or by any other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph of Section 5, (a) in no case shall any one Holder be liable or
responsible for any amount in excess of the net proceeds received by such
Holder from the offering of Registrable Securities and (b) the Company shall
be liable and responsible for any amount in excess of such proceeds; provided,
however, that 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. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against
such party or parties under this Section 5, notify such party or parties from
whom such contribution may be sought, but the omission so to notify such party
or parties from contribution may be sought shall not relieve such party from
any other obligation it or they may have thereunder or otherwise under this
Section 5. No party shall be liable for contribution with respect to any
action, suit, proceeding or claim settled without its prior written consent,
which consent shall not be unreasonably withheld.
6. Indemnification with Respect to Underwritten Offering. In the
event that Registrable Securities are sold pursuant to a Registration
Statement in an underwritten offering pursuant to Section 2, the Company
agrees to enter into an underwriting agreement containing customary
representations and warranties with respect to the business and operations of
an issuer of the securities being registered and customary covenants and
agreements to be performed by such issuer, including without limitation
customary provisions with respect to indemnification by the Company of the
underwriters of such offering.
7. Information by Holder. Each Holder of Registrable Securities
included in any registration shall furnish to the Company such information
regarding such Holder and the distribution proposed by such Holder as the
Company may reasonably request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
8. "Market Stand-Off" Agreement. Each Holder, if requested by the
Company and an underwriter of Registrable Securities, shall agree not to sell
or otherwise transfer or dispose of any Registrable Securities held by such
Holder for a specified period of time determined by the Company and the
underwriters (not to exceed 90 days) following the effective date of a
Registration Statement; provided, that all holders of more than 1% of the
Common Stock (including convertible securities, or upon the exercise of
options, warrants or rights) and all executive officers and directors of the
Company enter into similar agreements.
Such agreement shall be in writing in a form reasonably
satisfactory to the Company and such underwriter. The Company may impose
stop-transfer instructions with respect to the Registrable Securities subject
to the foregoing restriction until the end of the stand-off period.
The Company agrees, on behalf of itself and its Affiliates,
not to effect any public sale or distribution of any securities similar to
those being registered in accordance with Section 2.2 hereof, or any
securities convertible into or exchangeable or exercisable for such securities
(in each case other than in connection with the Company's employee stock
option or incentive plan) during the 30 days prior to, and during the 120-day
period beginning on, the commencement of a public distribution of Registrable
Securities (or such shorter period of time as may be required by the
underwriter effecting such public distribution).
9. Rule 144 Requirements. The Company agrees to:
(a) comply with the requirements of Rule 144(c) under the
Securities Act with respect to current public information about the Company;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act; and
(c) furnish to any Holder of Registrable Securities upon
written request (i) a written statement by the Company as to its compliance
with the requirements of said Rule 144(c), and the reporting requirements of
the Securities Act and the Exchange Act, (ii) a copy of the most recent annual
or quarterly report of the Company, and (iii) such other reports and documents
of the Company as such Holder may reasonably request to avail itself of any
similar rule or regulation of the Commission allowing it to sell any such
securities without registration.
10. General.
10.1 Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
10.2 Specific Performance. In addition to any and all other
remedies that may be available at law, in the event of any breach of this
Agreement, the Holders shall be entitled to specific performance of the
agreements and obligations of the Company hereunder and to such other
injunctive or other equitable relief as may be granted by a court of competent
jurisdiction.
10.3 Jurisdiction. This Agreement and the duties and
obligations of the parties hereto shall be enforceable against the parties
hereto in the courts of the United States of America, and of the State of New
York in each case, located in the County of New York in the State of New York.
For such purpose, the parties hereto hereby irrevocably submit to the
non-exclusive jurisdiction of such courts, and agree that all claims in
respect of this Agreement any of the other documents referred to herein or
therein may be heard and determined in any of such courts. The parties hereto
hereby irrevocably agree that a final judgment of any of the courts specified
above in any action or proceeding relating to this Agreement or to any of the
other documents referred to herein or therein shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
10.4 Governing Law. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating
thereto, shall be governed by and construed in accordance with the laws of the
State of New York (excluding the choice of law rules thereof, other than
Section 5-1401 of the New York General Obligations Law).
10.5 Notices. All notices required or permitted by this
Agreement shall be in writing and shall be deemed given upon delivery, when
delivered personally or by overnight courier or sent by telegram or fax, or
three (3) business days after being deposited in the U.S. mail, as certified
or registered mail, with postage prepaid, addressed to the party to be
notified at such party's address as set forth below, or as subsequently
modified by written notice to the other parties:
If to the Company:
SkyTerra Communications, Inc.
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy: 000-000-0000
With copies to:
Apollo Management, L.P.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopy No. 000-000-0000
and
O'Melveny & Xxxxx LLP
Times Square Tower
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telecopy No.: 000-000-0000
If to HNS:
Xxxxxx Network Systems, Inc.
c/o The DIRECTV Group, Inc.
0000 Xxxx Xxxxxxxx Xxxxxxx
Xx Xxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxx, Esq.
Telecopy No.: 000-000-0000
With a copy to:
Xxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxx
Xxxxx 0000
XxXxxx, XX 00000
Attention: Xxxxxxx X.X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
10.5 Complete Agreement. This Agreement constitutes the
entire agreement and understanding of the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
10.6 Amendments and Waivers. Any term of this Agreement may
be amended or terminated and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either
retroactively or prospectively), with the written consent of the Company and
the majority of the Holders. Any such amendment, termination or waiver
effected in accordance with this Section 10.6 shall be binding on all parties
hereto, even if they do not execute such consent. No waivers of or exceptions
to any term, condition or provision of this Agreement, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
10.7 Pronouns. Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural and vice versa.
10.8 Counterparts; Facsimile Signatures. This Agreement may
be executed in any number of counterparts, each of which shall be deemed to be
an original, and all of which together shall constitute one and the same
document. This Agreement may be executed by facsimile signatures.
10.9 Section Headings. The section headings are for the
convenience of the parties and in no way alter, modify, amend, limit or
restrict the contractual obligations of the parties.
10.10 Assignment. The registration rights contained in
Section 2 may be transferred by a Holder in connection with the transfer by
such Holder of the Registrable Securities to which such registration rights
relate to any transferee who (i) is an Affiliate of such Holder or (ii) who,
immediately following such transfer, holds at least fifty percent (50%) of the
outstanding Registrable Securities originally issued to HNS. As a condition to
the effectiveness of any such transfer of registration rights hereunder, the
transferee shall execute a counterpart of, and shall become a party to, this
Agreement.
10.11 Mergers, etc. The Company agrees that, in connection
with any merger, consolidation or the sale of all or substantially all of its
assets in exchange for securities of another Person, it shall (i) use its
commercially reasonable efforts in light of the circumstances then existing to
require the surviving, consolidated or purchasing Person to enter into an
agreement to register the securities of such surviving, consolidated or
purchasing Person, to be received by the Holders, on substantially the same
terms and provisions as are provided in this Agreement or (ii) if no such
agreement is entered into with such surviving, consolidated or purchasing
Person, the Company shall offer to purchase the Registrable Securities at a
price equal to the fair market value of such securities consistent with the
valuation of such securities under such merger, consolidation or sale
transaction.
10.12 Termination. This Agreement will terminate five (5)
years after the date hereof.
[Signatures on following page]
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
COMPANY:
SKYTERRA COMMUNICATIONS, INC.
By: /s/ XXXXXXX XXXXX
----------------------------
Name: Xxxxxxx Xxxxx
Title: CEO
HNS:
XXXXXX NETWORK SYSTEMS, INC.
By: /s/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
Title: Vice President and General
Counsel
