EXHIBIT 10.2
135,000 WARRANTS INITIALLY EXERCISABLE TO PURCHASE
16,501,050 SHARES OF COMMON STOCK
REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 22, 2002
BY AND AMONG
ORBITAL SCIENCES CORPORATION
AND
JEFFERIES/QUARTERDECK, LLC
JEFFERIES & COMPANY, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made and entered into as of
August 22, 2002, by and between Orbital Sciences Corporation, a Delaware
corporation (the "Company") on the one hand, and Jefferies/Quarterdeck, LLC and
Jefferies & Company, Inc. (such entities collectively, the "Initial Purchaser"),
on the other hand.
This Agreement is made pursuant to the Purchase Agreement, dated
August 9, 2002 by and between the Company and the Initial Purchaser (the
"Purchase Agreement"). In order to induce the Initial Purchaser to enter into
the Purchase Agreement, the Company has agreed to provide the registration
rights provided for in this Agreement to the Initial Purchaser and its direct
and indirect transferees. The execution and delivery of this Agreement is a
condition to the closing of the transactions contemplated by the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Affiliate: As defined in Rule 144 of the Securities Act.
Agreement: This Registration Rights Agreement, as the same may
be amended, supplemented or modified from time to time in accordance with the
terms hereof.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
Closing Date: The Closing Date as defined in the Purchase
Agreement.
Common Stock: Common Stock, par value $.01 per share, of the
Company.
Effectiveness Period: As defined in Section 2(a) hereof.
Effectiveness Target Date: The 180th day following the Closing
Date.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
Exempt Resales: The transactions in which the Initial Purchaser
proposes to sell the Warrants to certain "qualified institutional buyers" as
such term is defined in Rule 144A.
Filing Date: The 90th day after the Closing Date.
Holder: Each registered holder of any Transfer Restricted
Securities.
Liquidated Damages: As defined in Section 3(a) hereof.
majority of the Transfer Restricted Securities: shall be
determined, as of the specified date of determination, based upon the number of
shares of Common Stock represented by such Transfer Restricted Securities
outstanding, as of such date, assuming exercise of all such Transfer Restricted
Securities into shares of Common Stock in accordance with their terms.
Payment Date: As defined in Section 3(b) hereof.
Person: Any corporation, individual, limited liability company,
joint stock company, joint venture, partnership, limited liability partnership,
unincorporated association, governmental regulatory entity, country, state or
political subdivision thereof, trust, municipality or other entity.
Proceeding: An action, claim, suit or proceeding (including,
without limitation, an investigation or partial proceeding, such as a
deposition), whether commenced or threatened.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Transfer Restricted Securities
covered by such Registration Statement, and all other amendments and supplements
to any such prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such prospectus.
Registration Default: As defined in Section 3(a) hereof.
Registration Statement: Any registration statement of the Company
that covers any of the Transfer Restricted Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.
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Rule 144: Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 158: Rule 158 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 424: Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
Securities Act or Act: The Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
Shelf Registration: As defined in Section 2 hereof.
Special Counsel: One nationally recognized firm acting as special
counsel to the Holders of Transfer Restricted Securities, the reasonable fees
and expenses of which the Holders of Transfer Restricted Securities will be
reimbursed pursuant to Section 5(b) hereof.
Transfer Restricted Securities: The Warrants and the Warrant
Shares, upon original issuance thereof, and at all times subsequent thereto,
until, in the case of any such Warrant or Warrant Share the earlier of, (i) the
date on which it has been registered effectively pursuant to the Securities Act
and disposed of in accordance with the Registration Statement relating to it,
(ii) the date on which either such Warrant or such Warrant Shares are
distributed to the public pursuant to Rule 144 or are saleable pursuant to Rule
144(k) or (iii) the date on which such security ceases to be outstanding.
Warrant Agent: U.S. Bank, N.A., the warrant agent under the
Warrant Agreement.
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Warrant Agreement: The warrant agreement, dated the date hereof,
between the Company and the Warrant Agent thereunder, pursuant to which the
Warrants are being issued, as amended, modified or supplemented from time to
time in accordance with the terms thereof.
Warrant Shares: Shares of Common Stock issuable upon exercise of
Warrants and any "restricted securities" (as defined in Rule 144) issuable upon
the conversion or exchange of such shares of Common Stock.
Warrants: The warrants issued pursuant to the Warrant Agreement.
2. Shelf Registration
(a) The Company shall mail as soon as practicable a
questionnaire (the "Questionnaire"), soliciting the information required by
Items 507 and 508 of Regulation S-K, to each of the Holders. As a condition to
any Holder's Transfer Restricted Securities being included, and such Holder
being named as a selling securityholder, in the Shelf Registration referred to
below, such Holder shall submit to the Company a fully completed Questionnaire
and shall agree to amend and submit to the Company a revised Questionnaire any
time the information contained therein ceases to be accurate and complete. The
Company agrees to file with the SEC on or prior to the Filing Date, a
Registration Statement (the "Shelf Registration") for an offering to be made on
a continuous basis pursuant to Rule 415 covering the resale of all of the
Transfer Restricted Securities held by Holders and the issuance by the Company
of the Warrant Shares upon exercise of the Warrants by any Person other than a
Holder. Holders that fully complete and return their Questionnaires at least two
Business Days prior to the date the Shelf Registration is intended to be filed,
as stated in the cover letter accompanying the Questionnaires shall have their
Transfer Restricted Securities included in the initial filing of the Shelf
Registration. Following the initial filing of the Shelf Registration, the
Company shall include the Transfer Restricted Securities held by, and shall name
as selling securityholders, in the final Prospectus relating to such Shelf
Registration, any Holder that returns a fully completed Questionnaire after such
cut-off date but not less than two Business Days before the date on which the
Company files with the SEC its request for acceleration of effectiveness of the
Shelf Registration. Following the date on which the Shelf Registration is
declared effective by the SEC, the Company will use its reasonable best efforts
to prepare and file a post-effective amendment to the Shelf Registration or a
supplement to the Prospectus, as may be required under the Securities Act, to
include in the Shelf Registration the Transfer Restricted Securities held by,
and/or name as a selling securityholder in the Prospectus, any Holder within
five Business Days after receipt from such Holder of a fully completed
Questionnaire. The Shelf Registration shall be on Form S-3 under the Securities
Act or another appropriate form permitting registration of such Transfer
Restricted Securities for resale by the Holders in the manner or manners
reasonably designated by them and the issuance by the Company of the Warrant
Shares upon exercise of the Warrants by any Person other than a Holder. The
Company shall use its
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reasonable best efforts, as described in Section 4, to cause the Shelf
Registration to be declared effective pursuant to the Securities Act on or prior
to the Effectiveness Target Date, and to keep the Shelf Registration
continuously effective under the Securities Act until the earlier of (i) four
years after the Closing Date, (ii) the date that all Warrant Shares have been
issued and there cease to be outstanding any Transfer Restricted Securities (the
"Effectiveness Period").
(b) The Company shall use reasonable best efforts to keep
the Shelf Registration continuously effective, for the period described in
Section 2(a) hereof, by supplementing and amending the Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration, if required by the
Securities Act or if reasonably requested by the Holders of a majority of the
Transfer Restricted Securities covered by such Registration Statement.
(c) Notwithstanding anything to the contrary in this Section
2, but subject to compliance with Section 3, the Company may, by delivering
written notice to the named selling securityholders, prohibit offers and sales
of Transfer Restricted Securities pursuant to the Shelf Registration at any time
if (A)(i) the Company is in possession of material non-public information
relating to the Company, (ii) the Company determines (based on advice of
counsel) that such prohibition is necessary in order to avoid a requirement to
disclose such material non-public information to the public and (iii) the
Company determines in good faith that public disclosure of such material
non-public information would not be in the best interests of the Company and its
stockholders, or (B)(i) the Company has made a public announcement relating to
an acquisition or business combination transaction including the Company and/or
one or more of its subsidiaries that is material to the Company and its
subsidiaries taken as a whole and (ii) the Company determines in good faith that
(x) offers and sales of Transfer Restricted Securities pursuant to the Shelf
Registration prior to the consummation of such transaction (or such earlier date
as the Company shall determine) would not be in the best interests of the
Company and its stockholders or (y) it would be impracticable at the time to
obtain any financial statements relating to such acquisition or business
combination transaction that would be required to be set forth in the Shelf
Registration; provided, however, that upon (i) the public disclosure by the
Company of the material non-public information described in clause (A) of this
paragraph or (ii) the consummation, abandonment or termination of, or the
availability of the required financial statements with respect to, a transaction
described in clause (B) of this paragraph, the suspension of the use of the
Shelf Registration pursuant to this Section 2(c) shall cease and the Company
shall promptly comply with Section 4(b) hereof and notify such Holders that
dispositions of Transfer Restricted Securities may be resumed.
3. Liquidated Damages
(a) The Company and the Initial Purchaser agree that the
Holders of Transfer Restricted Securities will suffer damages if the Company
fails to fulfill its obligations pursuant to
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Sections 2 and 4(b) hereof and that it would not be possible to ascertain the
extent of such damages. Accordingly, in the event of such failure by the Company
to fulfill such obligations, the Company hereby agrees to pay liquidated damages
("Liquidated Damages") to each Holder of Transfer Restricted Securities under
the circumstances and to the extent set forth below.
If (i) the Shelf Registration has not been filed with the SEC on
or prior to the Filing Date; or (ii) the Shelf Registration is not declared
effective by the SEC on or prior to the Effectiveness Target Date; or (iii) the
Shelf Registration has been declared effective by the SEC and such Shelf
Registration ceases to be effective or the Prospectus contained therein ceases
to be usable (including as a result of a prohibition against sales of Transfer
Restricted Securities pursuant to Section 2(c) hereof or a suspension of the use
of the Prospectus as described in the last paragraph of Section 4 hereof) at any
time during the Effectiveness Period for a period of time which shall exceed 90
consecutive days or 120 days in the aggregate during any 365-day period (any of
the foregoing, a "Registration Default"), then the Company shall pay Liquidated
Damages in cash to each Holder of Transfer Restricted Securities for the first
90-day period immediately following the occurrence of such Registration Default
in an amount equal to $.05 per week per Warrant held by such Holder for each
week or portion thereof that the Registration Default continues. The amount of
Liquidated Damages shall increase by an additional $0.05 per week per Warrant
with respect to each subsequent 90-day period until all Registration Defaults
have been cured, up to a maximum amount of $0.50 per week per Warrant. The
Company shall not be required to pay Liquidated Damages for more than one
Registration Default at any given time. Following the cure of all Registration
Defaults relating to any Transfer Restricted Securities, the accrual of
Liquidated Damages with respect to such Transfer Restricted Securities will
cease. A Registration Default under clause (i) above shall be cured on the date
that the Shelf Registration is filed with the SEC; a Registration Default under
clause (ii) above shall be cured on the date that the Shelf Registration is
declared effective by the SEC; and a Registration Default under clause (iii)
above shall be cured upon the filing of a post-effective amendment to the Shelf
Registration that causes such Shelf Registration Statement to again be declared
effective and made usable or the Prospectus contained therein again becomes
usable consistent with applicable law.
(b) The Company shall notify the Warrant Agent as promptly
as possible, but in no event more than three Business Days after each and every
date on which a Registration Default occurs. Liquidated Damages accrued as of
February 15 and August 15 of each year (each a "Payment Date") will be payable
on such Payment Date. The Company shall pay Liquidated Damages on the applicable
Payment Date to the Holders of Transfer Restricted Securities that are entitled
to receive Liquidated Damages at the close of business on February 1 or August 1
immediately preceding the Payment Date. Each obligation to pay Liquidated
Damages shall be deemed to commence accruing on the date of the applicable
Registration Default and to cease accruing when all Registration Defaults have
been cured. In no event shall the Company pay
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Liquidated Damages in excess of the applicable maximum amount set forth above,
regardless of whether one or multiple Registration Defaults exist.
4. Registration Procedures
In connection with the Company's registration obligations
hereunder, the Company shall use its reasonable best efforts to effect such
registrations on the appropriate form available for the sale of the Transfer
Restricted Securities to permit the sale of Transfer Restricted Securities in
accordance with the method or methods of disposition thereof specified by the
Holders of a majority of the Transfer Restricted Securities, and the issuance by
the Company of the Warrant Shares upon exercise of the Warrants by any Person
other than a Holder, and pursuant thereto the Company shall as expeditiously as
possible:
(a) No fewer than five Business Days prior to the initial
filing of a Registration Statement or Prospectus and no fewer than two Business
Days prior to the filing of any amendment or supplement thereto (but excluding
any document that would be incorporated or deemed to be incorporated therein by
reference), furnish to the Holders of the Transfer Restricted Securities and
their Special Counsel, copies of all such documents proposed to be filed, which
documents (other than those incorporated or deemed to be incorporated by
reference) will be subject to the review and comment of such Holders and their
Special Counsel for a period of (a) at least five Business Days (in the case of
the initial Registration Statement and Prospectus) or (b) two Business Days (in
the case of any amendment or supplement thereto), and cause the officers and
directors of the Company, counsel to the Company and independent certified
public accountants to the Company to respond to such inquiries as shall be
necessary in connection with such Registration Statement, in the opinion of
Special Counsel, to conduct a reasonable investigation within the meaning of the
Securities Act. The Company shall not file any such Registration Statement or
related Prospectus or any amendments or supplements thereto (other than any
document that would be incorporated or deemed to be incorporated in the
Registration Statement by reference) to which the Holders of a majority of the
Transfer Restricted Securities and their Special Counsel shall reasonably object
on a timely basis; provided that the Company may assume, for the purposes of
this subparagraph (a), that objections to the inclusion of information
specifically requested to be included in the Registration Statement by the staff
of the SEC, or in the opinion of counsel to the Company, required to be in the
Registration Statement, or specifically required by the Securities Act or other
applicable law, shall not be deemed to be reasonable; and provided further, that
the Company shall not be permitted to include in the Registration Statement any
securities other than the Transfer Restricted Securities;
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable time
period; cause, subject to Section 2(c)
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hereof, the related Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424; and comply
with the provisions of the Securities Act and the Exchange 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 as so amended or in
such Prospectus as so supplemented;
(c) Notify the Holders of Transfer Restricted Securities to
be sold or their Special Counsel promptly, and (if requested by any such Person)
confirm such notice in writing, (i)(A) when a Prospectus or post-effective
amendment is proposed to be filed, and (B) with respect to a Registration
Statement, when the same has become effective, (ii) of any request by the SEC or
any other Federal or state governmental authority for amendments or supplements
to a Registration Statement or Prospectus or for additional information, (iii)
of the issuance by the SEC, any state securities commission, any other
governmental agency or any court of any stop order, order or injunction
suspending or enjoining the use or the effectiveness of a Registration Statement
or the initiation of any Proceeding for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Transfer Restricted 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 makes any statement
made in such Registration Statement or Prospectus untrue in any material respect
or that requires the making of any changes in such Registration Statement or
Prospectus so that, in the case of the Registration Statement, it will not
contain any 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,
not misleading, and that, in the case of the Prospectus, it will not contain any
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;
(d) Use reasonable best efforts to avoid the issuance of,
or, if issued, obtain the withdrawal of, any order enjoining or suspending the
use or effectiveness of a Registration Statement or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Transfer Restricted Securities for sale in any jurisdiction, at the earliest
reasonably practicable moment;
(e) Furnish to each Holder of Transfer Restricted Securities
and their Special Counsel without charge, at least one conformed copy of each
Registration Statement and each amendment thereto, including financial
statements (but excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits, unless requested in writing
by such Holder or Special Counsel);
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(f) Deliver to each Holder of Transfer Restricted Securities
and their Special Counsel without charge, as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons reasonably request; and the Company hereby
consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders of Transfer Restricted Securities in connection
with the offering and sale of the Transfer Restricted Securities covered by such
Prospectus and any amendment or supplement thereto;
(g) Prior to any public offering of Transfer Restricted
Securities, use reasonable efforts to register or qualify or cooperate with the
Holders of Transfer Restricted Securities to be sold and their Special Counsel
in connection with the registration or qualification (or exemption from such
registration or qualification) of such Transfer Restricted Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any Holder reasonably requests in writing; use reasonable
efforts to keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and use reasonable efforts to do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Registration Statement; provided,
however, that the Company shall not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or subject the Company to any tax
in any such jurisdiction where it is not then so subject;
(h) In connection with any sale or transfer of Transfer
Restricted Securities that will result in such securities no longer being
Transfer Restricted Securities, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer Restricted
Securities to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The Depository Trust Company
and to enable such Transfer Restricted Securities to be in such denominations
and registered in such names as the Holders may request in writing at least
three Business Days prior to any sale of Transfer Restricted Securities;
(i) Use reasonable efforts to cause the offering of the
Transfer Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or authorities
within the United States as may require such registration or approval, except as
may be required as a consequence of the nature of such selling Holder's
business, in which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities; provided,
however, that the Company shall not be required to register the Transfer
Restricted Securities in any jurisdiction that would subject it to general
service of process in any such jurisdiction where it is not then so subject or
subject the Company to any tax in any such jurisdiction where it is not then so
9
subject or to require the Company to qualify to do business in any jurisdiction
where it is not then so qualified;
(j) Upon the occurrence of any event contemplated by Section
4(c)(v) hereof, as promptly as practicable, prepare a supplement or amendment,
including, if appropriate, a post- effective amendment, to each Registration
Statement or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, such Prospectus will not 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, in light of the
circumstances under which they were made, not misleading;
(k) Prior to the effective date of the first Registration
Statement relating to the Transfer Restricted Securities, to provide a CUSIP
number for the Transfer Restricted Securities;
(l) Enter into such agreements and take all such other
reasonable actions in connection therewith (including those reasonably requested
by the Holders of a majority of the Transfer Restricted Securities being sold)
in order to expedite or facilitate the disposition of such Transfer Restricted
Securities;
(m) Make available for inspection by a representative of the
Holders of not less than a majority of the Transfer Restricted Securities being
sold and any counsel, consultant or accountant retained by such selling Holders
at the offices where normally kept, during reasonable business hours, such
financial and other information and books and records of the Company and its
subsidiaries, and cause the officers, directors, agents and employees of the
Company and its subsidiaries to respond to such inquiries, as shall be
reasonably necessary, in the judgment of Special Counsel, to conduct a
reasonable investigation within the meaning of Section 11 of the Securities Act;
provided, however, that such Persons shall first agree in writing with the
Company that any information that is reasonably and in good faith designated by
the Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such Persons, unless (i) disclosure of
such information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law, or (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure to
safeguard by any such Person;
(n) Comply with applicable rules and regulations of the SEC
and make generally available to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158,
no later than 45 days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year) commencing on the
first day of
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the first fiscal quarter after the effective date of a Registration Statement,
which statement shall cover said period, consistent with the requirements of
Rule 158; and
(o) Use reasonable best efforts to (i) list all Warrant
Shares covered by such Registration Statement on the New York Stock Exchange (or
on another national securities exchange on which the Common Stock is then
listed) or (ii) authorize for quotation on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or the National Market
System of NASDAQ all Warrant Shares covered by such Registration Statement if
any of the Company's Common Stock is then so authorized for quotation.
The Company may require each Holder of Transfer Restricted
Securities as to which any registration is being effected to furnish to the
Company such information regarding the distribution of such Transfer Restricted
Securities as is required by law to be disclosed in the applicable Registration
Statement and the Company may exclude from such registration the Transfer
Restricted Securities of any Holder who fails to furnish such information within
a reasonable time after receiving such request and such Holder shall not be
entitled to Liquidated Damages as a result of the Company's exclusion of such
Holder's Transfer Restricted Securities from such registration. Each such Holder
agrees, by the acquisition of Transfer Restricted Securities, and agrees to
confirm such agreement in writing upon request of the Company, to notify the
Company as promptly as practicable of any inaccuracy or change in information
previously furnished by such Holder to the Company or of the occurrence of any
event 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 Transfer Restricted
Securities, or omits to state any material fact regarding such Holder or such
Holder's intended method of distribution of such Transfer Restricted Securities,
necessary to make the statements therein, in light of the circumstances then
existing, not misleading and promptly to furnish to the Company 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 Transfer Restricted Securities, an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances then existing, not
misleading.
If any such Registration Statement refers to any Holder by name
or otherwise as the holder of any securities of the Company, then such Holder
shall have the right to require (i) the insertion therein of language, in form
and substance reasonably satisfactory to such Holder, 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
will 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
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reference to such Holder in any amendment or supplement to the Registration
Statement filed or prepared subsequent to the time that such reference ceases to
be required.
Each Holder of Transfer Restricted Securities agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company pursuant to Section 2(c) hereof or of the happening of
any event of the kind described in Section 4(c)(ii), 4(c)(iii), 4(c)(iv) or
4(c)(v) hereof, such Holder will forthwith discontinue disposition of such
Transfer Restricted Securities covered by such Registration Statement or
Prospectus until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4(k) hereof, or until it is advised
in writing by the Company that the use of the applicable Prospectus may be
resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus, and, if so directed by the Company, such Holder
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Holder's possession of the Prospectus
covering such Transfer Restricted Securities at the time of receipt of such
notice.
5. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by it whether or
not any Registration Statement is filed or becomes effective and whether or not
any securities are issued or sold pursuant to any Registration Statement. The
fees and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with the
National Association of Securities Dealers, Inc. and (B) in compliance with
securities or Blue Sky laws (including, without limitation and in addition to
that provided for in (b) below, reasonable fees and disbursements of Special
Counsel for the Holders in connection with Blue Sky qualifications of the
Transfer Restricted Securities)), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Transfer Restricted Securities
in a form eligible for deposit with The Depository Trust Company and of printing
Prospectuses if the printing of Prospectuses is requested by the Holders, (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and Special Counsel for the Holders (plus any local
counsel deemed appropriate by the Holders of a majority of the Transfer
Restricted Securities), in accordance with the provisions of Section 5(b)
hereof, (v) Securities Act liability insurance, if the Company desires such
insurance, and (vi) fees and expenses of all other Persons retained by the
Company. In addition, the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, and the
fees and expenses incurred in connection with the listing of the securities to
be registered on the New York Stock Exchange (or on another national securities
exchange or on NASDAQ). Notwithstanding the foregoing or anything in this
Agreement to the contrary, each Holder of the Transfer Restricted
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Securities being registered shall pay all commissions and placement agent fees
with respect to any Transfer Restricted Securities sold by it and the fees and
disbursements of any counsel or other advisors or experts retained by such
Holders (severally or jointly), other than Special Counsel and local counsel
referred to in clause (iv) above.
(b) In connection with the preparation and filing of any
Registration Statement pursuant to the terms hereof, the Company shall reimburse
the Holders of the Transfer Restricted Securities being registered pursuant to
such Registration Statement for the reasonable fees and disbursements of Special
Counsel thereto (in addition to any local counsel), who shall be Skadden, Arps,
Slate, Meagher & Flom LLP, unless another firm shall be chosen by the Holders of
a majority of the Transfer Restricted Securities for whose benefit the
applicable Registration Statement is being prepared.
6. Indemnification
(a) The Company agrees to indemnify and hold harmless each
Holder, its directors, officers and each Person, if any, who controls such
Holder (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act), from and against any and all losses, claims, damages, liabilities
and judgments (including without limitation, any legal or other expenses
incurred in connection with investigating or defending any matter, including any
action that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained or incorporated by reference in any Registration
Statement, preliminary Prospectus or Prospectus provided by the Company to any
Holder or any prospective purchaser of Warrants, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of any preliminary
Prospectus, Prospectus or form of Prospectus or supplement thereto, in light of
the circumstances under which they were made) not misleading, except insofar as
such losses, claims, damages, liabilities or judgments are caused by an untrue
statement or omission or alleged untrue statement or omission that is based upon
and made in conformity with information relating to such Holder furnished in
writing to the Company by such Holder, provided, however, that the
indemnification contained in this Section 6(a) with respect to a preliminary
Prospectus shall not inure to the benefit of any Holder (or to the benefit of
any Person controlling such Holder) on account of any such loss, claim, damage,
liability or judgment arising from the sale of the Transfer Restricted
Securities by such Holder to any Person if the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact contained in
a preliminary Prospectus was corrected in the Prospectus and, due to the
wrongful actions or wrongful inaction of such Holder, such Holder did not send
or give in a timely manner, a copy of the Prospectus to such Person (as then
amended or supplemented) if the Company had previously furnished sufficient
copies thereof to such Holder in a timely basis.
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The Company agrees to notify the Holders promptly of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation in connection with the matters
addressed by this Agreement which involves the Company or any Person indemnified
hereunder. This indemnity agreement will be in addition to any liability which
the Company may otherwise have, including under this Agreement.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the Company and its
directors and officers, and each Person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company
to the same extent as the foregoing indemnity from the Company set forth in
section (a) above, but only with reference to information relating to such
Holder furnished in writing to the Company by such Holder expressly for use in
any Registration Statement, preliminary Prospectus or Prospectus. In no event
shall any Holder, its directors, officers or any Person who controls such Holder
be liable or responsible for any amount in excess of the amount by which the
total amount received by such Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages that such Holder, its directors, officers or any Person
who controls such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any
Person in respect of which indemnity may be sought pursuant to Section 6(a) or
6(b) (the "indemnified party"), the indemnified party shall promptly notify the
Person against whom such indemnity may be sought (the "indemnifying party") in
writing (provided, that the failure to give such notice shall not relieve the
indemnifying party of its obligations pursuant to this Agreement except to the
extent that the indemnifying party has been materially prejudiced by such
failure) and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 6(a) and 6(b), a Holder shall not be required
to assume the defense of such action pursuant to this Section 6(c), but may
employ separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Holder). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional
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to those available to the indemnifying party (in which case the indemnifying
party shall not have the right to assume the defense of such action on behalf of
the indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circum stances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by affected Holders holding a majority of
the Transfer Restricted Securities held by all such affected Holders, in the
case of the parties indemnified pursuant to Section 6(a), and by the Company, in
the case of parties indemnified pursuant to Section 6(b). The indemnifying party
shall indemnify and hold harmless the indemnified party from and against any and
all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than twenty
Business Days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and, prior to the date of such settlement, the indemnifying party shall
have failed to comply with such reimbursement request. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent that the indemnification provided for in
this Section 6 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, on
the one hand, and the Holders, on the other hand, from the sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause 6(d)(i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 6(d)(i) above but also the
relative fault of the Company, on the one hand, and of the Holders, on the other
hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable consider ations. The relative fault of the Company, on the one hand,
and of the Holders, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or by the Holders, on the
other
15
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
judgments referred to above shall be deemed to include any legal or other fees
or expenses reasonably incurred by such party in connection with investigating
or defending any action or claim.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 6, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages which such Holder has 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 Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresen tation. The Holders'
obligations to contribute pursuant to this Section 6(d) are several in
proportion to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.
7. Rules 144 and 144A
The Company agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company (i) is not subject to Section 13 of 15(d) of the Exchange Act, to make
available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 of 15 (d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
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8. Miscellaneous
(a) Remedies. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under this Agreement may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations hereunder. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The Company has not
previously entered into any agreement granting any registration rights with
respect to its securities to any Person except as set forth on Schedule 8(b).
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless (i) in the case of
Section 3 hereof and this Section 8(c)(i), the Company has obtained the written
consent of Holders of all outstanding Transfer Restricted Securities and (ii) in
the case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the Transfer Restricted Securities
(excluding Transfer Restricted Securities held by the Company or its
Affiliates). Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights of Holders
whose Transfer Restricted Securities are being sold pursuant to a Registration
Statement and that does not affect directly or indirectly the rights of other
Holders of Transfer Restricted Securities may be given by the Holders of a
majority of the Transfer Restricted Securities being sold by such Holders
pursuant to such Registration Statement.
(d) Third Party Beneficiary. The Holders shall be third
party beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Initial Purchaser, on the other hand, and shall have the right
to enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
17
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Warrant Registrar under the
Warrant Agreement, with a copy to the Warrant
Agent under the Warrant Agreement; and
(ii) if to the Company:
Orbital Sciences Corporation
21839 Atlantic Boulevard
Dulles, Virginia 20166
Telecopy No.: (703) 406-5572
Attention: Legal Department
With a copy to:
Hogan and Hartson L.L.P.
Columbia Square
555 13th Street N.W.
Washington, DC 20004
Telecopy No.: (202) 637-5910
Attention: James E. Showen
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices (other than any notice required under
Section 4(i) hereof), demands or other communications shall be concurrently
delivered by the Person giving the same to the Warrant Agent at the address
specified in the Warrant Agreement.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or the
Warrant Agreement. If any transferee of any Holder shall acquire Transfer
Restricted Securities in any manner, whether by operation of law or otherwise,
such Transfer Restricted Securities shall be held subject to all of the
18
terms of this Agreement, and by taking and holding such Transfer Restricted
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement, including
the restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such Person shall be entitled to receive the benefits
hereof.
(g) 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.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING,
WITHOUT LIMITATION, NEW YORK GENERAL OBLIGATIONS LAW ss. 5- 1401.
(j) Severability. In the event that 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.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
19
IN WITNESS WHEREOF, the parties have caused this Registration
Rights Agreement to be duly executed as of the date first written above.
ORBITAL SCIENCES CORPORATION
By: /s/ MICHAEL R. WILLIAMS
-----------------------------------
Name: Michael R. Williams
Title: Senior Vice President and Treasurer
The foregoing Registration Rights
Agreement is hereby confirmed
and accepted as of the date
first above written.
JEFFERIES/QUARTERDECK, LLC
By: /s/ MARK J. CARMEN
------------------------------------------
Name: Mark J. Carmen
Title: Senior Vice President
JEFFERIES & COMPANY, INC.
By: /s/ MARK J. CARMEN
------------------------------------------
Name: Mark J. Carmen
Title: Senior Vice President
SCHEDULE 8(b)
Note Registration Rights Agreement, dated August 22, 2002.
Registration Rights Agreement dated as of January 15, 2000 by and between
Orbital Sciences Corporation and Morgan Guaranty Trust Company of New York, as
Administrative Agent
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