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Exhibit 4.1
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EXECUTION COPY
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STOCKHOLDERS' AGREEMENT
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by and among
EARTHWATCH INCORPORATED,
MORGAN STANLEY & CO., INCORPORATED,
AMERICAN HIGH-INCOME TRUST,
AMERICAN VARIABLE INSURANCE SERIES ASSET ALLOCATION FUND,
AMERICAN VARIABLE INSURANCE SERIES BOND FUND,
AMERICAN VARIABLE INSURANCE SERIES HIGH-YIELD BOND FUND,
THE BOND FUND OF AMERICA, INC.,
ITT INDUSTRIES, INC.
and
THE OTHER PERSONS LISTED ON THE SIGNATURE PAGES HERETO
(solely with respect to Articles II, V and VII)
Dated as of April 8, 1999
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions................................................... 2
ARTICLE II
BOARD COMPOSITION
Section 2.1 Composition of the Board...................................... 7
Section 2.2 Committee Representation...................................... 10
ARTICLE III
APPROVAL ITEMS
Section 3.1 Approval Required for Certain Actions......................... 10
ARTICLE IV
RESTRICTIONS ON TRANSFER OF STOCK
Section 4.1 General Restrictions on Transfer.............................. 11
Section 4.2 Legend........................................................ 12
ARTICLE V
REGISTRATION RIGHTS
Section 5.1 Certain Definitions........................................... 12
Section 5.2 Demand Registration........................................... 13
Section 5.3 Piggyback Registration........................................ 15
Section 5.4 Registration Procedures....................................... 16
Section 5.5 Registration Expenses......................................... 20
Section 5.6 Indemnification by the Company................................ 20
Section 5.7 Indemnification by Stockholders............................... 21
Section 5.8 Conduct of Indemnification Proceedings........................ 22
Section 5.9 Contribution.................................................. 23
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Section Page
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Section 5.10 Participation in Underwritten Registrations................... 24
Section 5.11 Rule 144...................................................... 24
Section 5.12 Holdback Agreements........................................... 24
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties of the Company................. 25
Section 6.2 MS Representations and Warranties............................. 26
Section 6.3 CapRe Representations and Warranties.......................... 27
Section 6.4 ITT Representations and Warranties............................ 27
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 License Activities............................................ 28
Section 7.2 Termination................................................... 29
Section 7.3 Counterparts.................................................. 29
Section 7.4 Governing Law................................................. 29
Section 7.5 Entire Agreement.............................................. 29
Section 7.6 Specific Performance.......................................... 29
Section 7.7 Notices....................................................... 30
Section 7.8 Successors and Assigns........................................ 31
Section 7.9 Headings...................................................... 31
Section 7.10 Amendments and Waivers........................................ 32
Section 7.11 Interpretation; Absence of Presumption........................ 32
Section 7.12 Severability.................................................. 32
Section 7.13 Further Assurances............................................ 32
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THIS STOCKHOLDERS' AGREEMENT (the "Agreement"), dated as of April 8,
1999, is made by and among EarthWatch Incorporated, a Delaware corporation (the
"Company"), Morgan Stanley & Co., Incorporated, a Delaware corporation ("MS"),
American High-Income Trust, a Massachusetts business trust, American Variable
Insurance Series Asset Allocation Fund, a Massachusetts business trust, American
Variable Insurance Series Bond Fund, a Massachusetts business trust, American
Variable Insurance Series High-Yield Bond Fund, a Massachusetts business trust,
and The Bond Fund of America, Inc., a Maryland corporation (collectively,
"CapRe" and, together when acting jointly with MS, the "B Holders"), ITT
Industries, Inc., an Indiana corporation ("ITT") and, solely with respect to
Articles II, V and VII, the other persons listed on the signature pages hereto
(such other persons referred to as the "Other Holders").
RECITALS
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WHEREAS, the Company, MS, CapRe and ITT are party to a
Recapitalization Agreement dated as of April 8, 1999 (the "Recap Agreement")
setting forth the terms and conditions of a proposed investment by each of MS,
CapRe and ITT in shares of New Common Stock, New Series A Preferred Stock and
New Series B Preferred Stock (each as defined herein) in connection with the
proposed recapitalization of the Company (the "Recapitalization");
WHEREAS, as part of the Recapitalization, the Company wishes to issue
and sell certain shares of New Common Stock, New Series A Preferred Stock and
New Series B Preferred Stock to the Purchasers on the terms and conditions set
forth in the Recap Agreement;
WHEREAS, as part of the Recapitalization, each of the Purchasers
wishes to subscribe for and purchase from the Company certain shares of New
Common Stock, New Series A Preferred Stock and New Series B Preferred Stock on
the terms and conditions set forth in the Recap Agreement;
WHEREAS, as part of the Recapitalization, each share of Existing
Common Stock and Existing Preferred Stock shall be reclassified into a certain
number of shares of New Series C Preferred Stock;
WHEREAS, following consummation of the Recapitalization, each of MS,
CapRe and ITT will own a significant percentage of the equity interests in the
Company; and
WHEREAS, it is a condition to the Recapitalization, and the parties
believe it to be in their best interests, that they enter into this Agreement to
provide for certain rights and restrictions with respect to the corporate
governance of the Company;
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NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein and for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, the parties agree as follows:
ARTICLE I
DEFINITIONS
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Section 1.1 Definitions. Capitalized terms not defined herein shall
have their respective meanings specified in the Recap Agreement. As used in this
Agreement, the following terms shall have the following respective meanings:
(a) "1933 Act" shall mean the Securities Act of 1933, as amended, and
the regulations promulgated thereunder.
(b) "1934 Act" shall mean the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
(c) "A Directors" shall have the meaning specified in Section 2.1(b).
(d) "Affiliate" shall have the meaning ascribed thereto in Rule 12b-2
promulgated under the 1934 Act, and as in effect on the date hereof.
(e) "Agreement" shall have the meaning specified in the preamble.
(f) "Applicable A Number" shall have the meaning specified in Section
2.1(c).
(g) "Applicable B Number" shall have the meaning specified in Section
2.1(d).
(h) "Ball Director" shall have the meaning specified in Section
2.1(h).
(i) "B Directors" shall have the meaning specified in Section 2.1(b).
(j) "B Holders" shall have the meaning specified in the preamble. In
the event this Agreement terminates pursuant to Section 7.2(b) with respect
to either, but not both, of MS and its Affiliates or CapRe and its
Affiliates, either of MS or CapRe, remaining bound by this Agreement, shall
thereafter constitute the "B Holders" for all purposes hereunder.
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(k) "Beneficially Own" shall mean, with respect to any security,
having direct or indirect "beneficial ownership" of such security, as
determined pursuant to Rule 13d-3 under the 1934 Act, including without
limitation pursuant to any agreement, arrangement or understanding, whether
or not in writing.
(l) "Board" shall mean the board of directors of the Company.
(m) "Business Day" shall mean any day that is not a Saturday, a Sunday
or other day on which banks are required or authorized by law to be closed
in The City of New York.
(n) "C Directors" shall have the meaning specified in Section 2.1(h).
(o) "CapRe" shall have the meaning specified in the preamble.
(p) "CEO" shall mean the Chief Executive Officer of the Company.
(q) "Chairman" shall mean the chairman of the Board.
(r) "Closing" shall have the meaning specified in the recitals.
(s) "Committee" shall mean a committee or subcommittee of the Board.
(t) "Company" shall have the meaning specified in the preamble.
(u) "Company Directors" shall have the meaning specified in Section
2.1(h).
(v) "Covered Transaction" shall have the meaning specified in Section
4.2(a).
(w) "Demand Registration" shall have the meaning specified in Section
5.2(a).
(x) "Demanding Stockholder" shall have the meaning specified in
Section 5.2(a).
(y) "DGCL" shall mean the Delaware General Corporation Law.
(z) "Director" shall mean a member of the Board.
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(aa) "FCC Approval" means a determination of the Federal
Communications Commission approving of or consenting to the transfer of
control of the Company to the extent required under the terms of, or rules
and regulations governing, the FCC Licenses, without any condition
materially adverse to any of the Company, MS, CapRe and ITT.
(bb) "FCC Licenses" means the following three licenses held by the
Company: Earth Station Longmont, Colorado (No. E950498); Earth Station
Fairbanks, Alaska (No. E950499); and Space Station 21/22-DSS-P-93;
43-DSS-LA-94(2); and 52-SAT-AMEND-95, authorized August 1, 1995
(cc) "Fully-Diluted Shares" means the number of shares of New Common
Stock issued and outstanding assuming the exercise of all outstanding
options, warrants and rights to acquire, and the conversion of any
securities convertible into, shares of New Common Stock, whether or not
then vested or exercisable. When calculating the percentage of the Fully-
Diluted Shares owned by a specified person, such person shall be deemed to
own all shares of New Common Stock beneficially owned by such person
assuming the exercise of all outstanding options, warrants and rights to
acquire, and the conversion of any securities convertible into, shares of
New Common Stock, whether or not then vested or exercisable.
(dd) "High Yield Financing" means the issuance of high-yield
securities yielding net proceeds to the Company (after the setting aside of
cash to prefund interest and the payment of fees, expenses and other costs
associated with such issuance) of up to $125,000,000, such securities to be
secured by the Satellite Insurance, the terms and conditions of which
insurance are summarized in Exhibit 5.5 to the Recap Agreement, for the
purpose of funding the Company's operations through successful launch and
commercially viable operation of each of QuickBird 1 and QuickBird 2, or
any successor to such satellite.
(ee) "Independent Director" means a Director who (apart from such
directorship) (i) is not a current or former officer or employee of the
Company or any Affiliate of the Company, (ii) is not a current or former
director, officer or employee of the party designating such Director for
election to the Board or any Affiliate of such party, (iii) did not in
either of the last two completed calendar years receive, and is not an
officer, director, employee, stockholder holding more than 10% of the
voting interest of, partner or Affiliate of any entity that in either of
such entity's two most recent fiscal years received, more than 10% of such
person or entity's total income from either the Company or the party
designating such Director for election to the Board.
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(ff) "Initial Public Offering" means the consummation of the first
sale of shares of New Common Stock for cash by the Company, or by one or
more stockholders, in an underwritten public offering registered under the
1933 Act following the date hereof.
(gg) "ITT" shall have the meaning specified in the preamble.
(hh) "MS" shall have the meaning specified in the preamble.
(ii) "MS HSR Clearance Date" shall have the meaning specified in the
Recap Agreement.
(jj) "NASDAQ" means the Nasdaq National Market.
(kk) "New Common Stock" means the Common Stock, par value $.001 per
share, of the Company to be issued as part of the Recapitalization.
(ll) "New Equity Plan" shall have the meaning specified in the Recap
Agreement.
(mm) "New Series A Preferred Stock" means the Series A Preferred
Stock, par value $.001 per share, of the Company to be issued as part of
the Recapitalization.
(nn) "New Series B Preferred Stock" means the Series B Preferred
Stock, par value $.001 per share, of the Company to be issued as part of
the Recapitalization.
(oo) "New Series C Preferred Stock" means the Series C Preferred
Stock, par value $.001 per share, of the Company to be issued as part of
the Recapitalization.
(pp) "Non-party Holders" means those holders of shares of Existing
Common Stock and Existing Preferred Stock which do not execute this
Agreement.
(qq) "Odetics Warrant" shall have the meaning set forth in the Recap
Agreement.
(rr) "Other Holders" shall have the meaning specified in the preamble.
(ss) "Permitted Transferee" shall mean any transferee of shares of New
Series A Preferred Stock or New Series B Preferred Stock, or of any shares
of New Common Stock into which such shares of New Series
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A Preferred Stock or New Series B Preferred Stock shall be converted,
pursuant to a transfer complying with Section 4.1.
(tt) "person" shall mean any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated
organization, other form of business or legal entity or government
authority.
(uu) "Piggyback Registration" shall have the meaning specified in
Section 5.3(a).
(vv) "Recap Agreement" shall have the meaning specified in the
recitals.
(ww) "Recapitalization" shall have the meaning specified in the
recitals.
(xx) "Register," "registered" and "registration" shall have the
meanings specified in Section 5.1(a).
(yy) "Registrable Securities" shall have the meaning specified in
Section 5.1(b).
(zz) "Satellite Insurance" shall have the meaning specified in
Article I of the Recap Agreement.
(aaa) "SEC" shall mean the Securities and Exchange Commission.
(bbb) "Stockholders" shall mean ITT, the B Holders and the Other
Holders. Where applicable, the phrase "Stockholder" when used herein shall
not refer to either of MS or CapRe individually, but rather to the
B Holders in the aggregate.
(ccc) "Subsidiary" of any person means another person, an amount of
the voting securities, other voting ownership or voting partnership or
membership interests of which is sufficient to elect at least a majority of
its board of directors or other governing body (or, if there are no such
voting interests, 50% or more of the equity interests of which) is owned or
controlled directly or indirectly by such person.
(ddd) "Telespazio" means Nuova Telespazio s.p.a., a corporation
organized under the laws of Italy.
(eee) "Waterstone Agreement" shall have the meaning specified in the
Recap Agreement.
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ARTICLE II
BOARD COMPOSITION
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Section 2.1 Composition of the Board.
(a) Upon and following the earlier to occur of (i) receipt by the
Company of the FCC Approval and (ii) October 31, 1999, the parties hereto
and their Permitted Transferees shall take all necessary action as is
required under applicable law to cause the number of Directors comprising
the Board to be 11.
(b) Subject to Section 7.1, notwithstanding anything else in this
Article II to the contrary, upon and following the earlier to occur of (i)
receipt by the Company of the FCC Approval and (ii) October 31, 1999 and
until the second anniversary of the earlier to occur of (i) and (ii), the
parties hereto and their Permitted Transferees shall take all necessary
action as is required under applicable law to cause (i) two Directors
designated by ITT to be elected to the Board (such elected designees, the
"A Directors") and (ii) four Directors designated by the B Holders to be
elected to the Board (such elected designees, the "B Directors"); provided,
however, that MS shall not be entitled to designate any directors prior to
the MS HSR Clearance Date.
(c) Subject to Section 7.1, upon and following the second anniversary
of the earlier to occur of (i) receipt by the Company of the FCC Approval
and (ii) October 31, 1999, from and after the first Business Day on which
ITT owns no shares of New Series A Preferred Stock, the parties hereto and
their Permitted Transferees shall take all necessary action as is required
under applicable law to designate for election to the Board a certain
number (the "Applicable A Number") of A Directors. The "Applicable A
Number" shall be (i) in the event ITT beneficially owns at least 10% of the
Fully-Diluted Shares, two; (ii) in the event ITT beneficially owns less
than 10% but at least 5% of the Fully-Diluted Shares, one; or (iii) in the
event ITT beneficially owns less than 5% of the Fully-Diluted Shares, none;
provided, however, that once reduced, the Applicable A Number cannot be
increased by subsequent acquisitions by ITT or its Permitted Transferees of
beneficial ownership of Fully-Diluted Shares.
(d) Subject to Section 7.1, upon and following the second anniversary
of the earlier to occur of (i) receipt by the Company of the FCC Approval
and (ii) October 31, 1999, from and after the first Business Day on which
the B Holders own no shares of New Series B Preferred Stock, the parties
hereto and their Permitted Transferees shall take all necessary action as
is required under applicable law to designate for election to the
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Board a certain number (the "Applicable B Number") of B Directors. The
"Applicable B Number" shall be (i) in the event the B Holders beneficially
own at least 15% of the Fully-Diluted Shares, four; (ii) in the event the B
Holders beneficially own less than 15% but at least 10% of the Fully-
Diluted Shares, three; (iii) in the event the B Holders beneficially own
less than 10% but at least 5% of the Fully-Diluted Shares, two; or (iv) in
the event the B Holders beneficially own less than 5%, none; provided,
however, that once reduced, the Applicable B Number cannot be increased by
subsequent acquisitions by the B Holders or their Permitted Transferees of
beneficial ownership of Fully-Diluted Shares.
(e) The number of Directors designable by either ITT or the B Holders,
as the case may be, hereunder shall be reduced one-for-one by the number of
Directors which ITT's or the B Holders' Special Permitted Transferees, as
the case may be, shall have been transferred the right to elect to the
Board pursuant to Section 7(c) of the Series A Preferred Stock Certificate
of Designations or the Series B Preferred Stock Certificate of
Designations, as the case may be.
(f) To the extent, and only to the extent, that the B Holders shall at
any time have the right pursuant to this Article II to designate at least
three Directors for election to the Board, then the B Holders shall be
required to cause a certain number of such Directors to be Independent
Directors, such number to be equal to the excess, if any of (A) the number
of Directors that the B Holders shall have the right to designate for
election to the Board pursuant to this Section 2.1(d) over (B) two. To
the extent, and only to the extent, that ITT or the B Holders, as the case
may be, shall at any time have the right pursuant to this Article II to
designate three Directors for election to the Board, then ITT or the B
Holders, as the case may be, shall be required to cause at least one of
such three Directors to be Independent Directors.
(g) To the extent that either of ITT or the B Holders at any time has
the right pursuant to this Article II to designate Directors for election
to the Board, then ITT or the B Holders, as the case may be, shall be
required to vote all of their shares of Common Stock held at such time in
favor of their respective designees.
(h) Subject to Section 7.1, upon and following the earlier to occur
of (i) receipt by the Company of the FCC Approval and (ii) October 31,
1999, the parties hereto and their Permitted Transferees shall take all
necessary action as is required under applicable law to cause (A) two
persons designated by the CEO to be elected to the Board (such elected
designees, the "Company Directors"); (B) two (or three, should Ball have no
right to designate for election to the Board one Director in (C) below,
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subject to the ownership requirement set forth below) persons designated by
the Other Holders which at that time hold of record at least a majority of
the outstanding shares of Series C Preferred Stock then held by all Other
Holders to be elected to the Board so long as such Other Holders own at
least 50% of the number of Fully-Diluted Shares owned by such Other Holders
immediately following the Closing (such elected designees, the
"C Directors"); and (C) one person designated by Ball to be elected to the
Board so long as Ball owns at least 50% of the number of Fully-Diluted
Shares owned by Ball immediately following the Closing (such elected
designee, the "Ball Director"); provided, however, that the number of
Directors to be designated by each of the Other Holders and Ball cannot be
increased by subsequent acquisitions by either the Other Holders or Ball,
as the case may be, or their Permitted Transferees of beneficial ownership
of Fully Diluted Shares.
(i) In the event that a vacancy in the Board is created at any time by
the death, disability, retirement, resignation or removal (with or without
cause) of any A Director, B Director, C Director, Company Director or Ball
Director and not as a result of a reduction in the Applicable A Number or
the Applicable B Number or the elimination of designation rights under
Section 2.1(h) above, such vacancy shall be filled by a Director designated
by ITT, the B Holders, the Other Holders, the CEO or Ball, as appropriate.
All other vacancies in the Board, including those resulting from a
reduction in the Applicable A Number or the Applicable B Number or the
elimination of designation rights under Section 2.1(h) above, shall be
filled by Directors elected by a majority of the Directors remaining in
office or, if none, pursuant to the DGCL; provided, however, that ITT, the
B Holders, the other Holders, the CEO or Ball may choose, in its sole
discretion, to leave vacant for any period of time any seat on the Board to
which it has the right to designate for election a Director pursuant to
this Article II.
(j) Any rights of ITT, the B Holders, the Other Holders or Ball
pursuant to Section 2.1(b), (c), (d) or (h), as the case may be, to
designate for election to the Board A Directors, B Directors or
C Directors, as the case may be, shall not be transferable to any other
person, including Permitted Transferees.
(k) Upon and following the earlier to occur of (i) receipt by the
Company of the FCC Approval and (ii) October 31, 1999 and so long as
Telespazio owns at least 50% of the number of Fully-Diluted Shares owned by
Telespazio immediately following the Closing, the Company shall allow one
observer designated by Telespazio to attend all meetings of the Board in a
nonvoting and nonparticipatory capacity, such observer to serve at the
discretion of the Board, and in connection therewith, the
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Company shall give such observer such notices, minutes, consents and other
materials, financial or otherwise, provided to the Directors as the
Company, in its sole discretion, so determines.
Section 2.2 Committee Representation. Upon and following the earlier
to occur of (a) receipt by the Company of the FCC Approval and (b) October 31,
1999 and during the term of this Agreement, the parties hereto and their
Permitted Transferees shall take all necessary action as is required under
applicable law to assure (a) that the Board have exactly three Committees
(Audit, Compensation and Finance), (b) that each such Committee be composed of
five members and (c) that a minimum of one A Director and one B Director be a
member of each such Committee.
ARTICLE III
APPROVAL ITEMS
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Section 3.1 Approval Required for Certain Actions. In addition to
approval by a majority of the Board, the approval of a majority of the A
Directors, if any, and a majority of the B Directors, if any, designated and
elected under Article II shall be required to approve any of the following
actions by the Company:
(a) the amendment of the Certificate of Incorporation or the Bylaws or
other organizational documents of the Company, including without limitation
any and all certificates of designations of any series of preferred stock
of the Company, or the amendment, termination or waiver of any provision
under the Recap Agreement;
(b) other than with respect to shares of New Series C Preferred Stock,
securities convertible or exercisable into shares of New Series C Preferred
Stock or rights or warrants entitling the holders thereof to subscribe for
or purchase shares of New Series C Preferred Stock issued in connection
with the High-Yield Financing, shares of New Common Stock, and New Series A
Preferred Stock, New Series B Preferred Stock and New Series C Preferred
Stock issued pursuant to the Recap Agreement (including any shares
reclassified upon filing of the Amended and Restated Certificate of
Incorporation of the Company and conversion of any shares issued in
accordance with the Recap Agreement or reclassified upon filing of the
Amended and Restated Certificate of Incorporation of the Company) and
shares of Common Stock issued in connection with an Initial Public Offering
or the issuance of securities pursuant to the Waterstone Agreement or the
exercise of the Odetics Warrant or the exercise of options pursuant to the
Existing Stock Option Plan (and related agreements) or the grant or
exercise of options pursuant to the New Equity Plan
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(and related agreements), such grant or exercise under the New Equity Plan,
together with all prior grants or exercises under the New Equity Plan since
the Closing Date, representing in the aggregate no more than 15% of the
Fully-Diluted Shares as of the Closing Date, the issuance, delivery or sale
of any shares or equity interests, or any options, warrants, conversion or
other rights to purchase any such shares or equity interests, or any
securities convertible into or exchangeable for such shares or equity
interests, or the issuance of any other security in respect of or in lieu
of or in substitution for shares or equity interests, or the entry into any
agreements restricting the transfer of, or affecting the rights of holders
of shares or equity interests, the granting of any preemptive or anti-
dilutive rights to any holder of any class of securities, or the granting
of registration rights with respect to any class of securities;
(c) except for the High Yield Financing, the incurrence of any
indebtedness for borrowed money, the making of any guarantee of any such
indebtedness, the issuance or sale of any debt securities, or the
prepayment or refinancing of any indebtedness for borrowed money, in each
case in excess of $25 million in the aggregate;
(d) the replacement of the Company's independent auditors or the
making of any material change in any method of financial accounting or
accounting practice, except for any such change required by reason of a
concurrent change in generally accepted accounting principles; and
(e) the entry into any agreement with respect to the foregoing.
ARTICLE IV
RESTRICTIONS ON TRANSFER OF STOCK
Section 4.1 General Restrictions on Transfer. None of ITT, MS or CapRe
shall directly or indirectly sell, offer, transfer, assign, pledge, hypothecate
or otherwise dispose of any shares of New Series A Preferred Stock or New Series
B Preferred Stock or any shares of the New Common Stock into which such shares
of New Series A Preferred Stock or New Series B Preferred Stock, as the case may
be, shall be converted, in a manner that violates the provisions of this
Agreement or any applicable federal and state securities laws. Except for
transfers made as part of the same transaction or series of transactions to a
broadly distributed group of transferees, no transfer shall be permitted under
this Agreement unless and until the proposed transferee or transferees shall
agree in writing, in form and substance reasonably satisfactory to the non-
transferring parties hereto, to become bound, and becomes bound, by all the
terms of this Agreement. Any transfer of shares of New Series A Preferred Stock
or New Series B Preferred Stock, as the case may be, or shares of New Common
Stock into which such shares of New Series A Preferred Stock or New Series B
Preferred Stock, as the
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case may be, shall be converted in violation of this Agreement shall be void and
of no effect.
Section 4.2 Legend. All certificates representing shares of New Series
A Preferred Stock or New Series B Preferred Stock, or shares of New Common Stock
into which such shares of New Series A Preferred Stock or New Series B Preferred
Stock shall be converted, except for such shares transferred as part of the same
transaction or series of transactions to a broadly distributed group of
transferees pursuant to the second sentence of Section 4.1, shall bear a legend
stamped, typed or otherwise legibly placed on the face or reverse side thereof
substantially in the form set forth below:
NOTICE IS HEREBY GIVEN THAT the securities represented by this certificate
have not been registered under the Securities Act of 1933, as amended, or
the securities laws of any state of the United States or any non-U.S.
jurisdiction. The securities cannot be offered, sold, transferred or
otherwise disposed of except (i) pursuant to an effective registration
statement or amendment thereto under such Act and any other applicable laws
or (ii) pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of such Act and such other applicable laws.
The sale, transfer or other disposition of the securities represented by
this certificate and certain other rights and obligations of the holder of
this certificate are also subject to the Stockholders' Agreement, dated as
of April 8, 1999, by and among EarthWatch Incorporated (the "Company") and
the other parties thereto (copies of which are available for review at the
principal office of the Company), and the Company reserves the right to
refuse the transfer of such securities until all terms and conditions have
been fulfilled with respect to such transfer as set forth in such
agreement.
ARTICLE V
REGISTRATION RIGHTS
Section 5.1 Certain Definitions
(a) "Register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the 1933 Act, and the automatic
effectiveness or the declaration or ordering of effectiveness of such
registration statement or document.
(b) "Registrable Securities" shall mean the shares of New Common Stock
issuable upon conversion of either of the New Series A Preferred Stock, New
Series B Preferred Stock or New Series C Preferred
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Stock; provided, however, that any shares of New Common Stock that are sold
to the public pursuant to a registered public offering or pursuant to Rule
144 under the 1933 Act or another exemption from the registration
requirements of the 1933 Act pursuant to which the shares of New Common
Stock are thereafter freely tradeable without restriction under the 1933
Act, or that cease to be outstanding, shall cease to be Registrable
Securities; provided further, however, that any Registrable Securities
acquired by any Stockholder or any of its Affiliates thereof from another
Stockholder or any of its Affiliates thereof shall continue to be
Registrable Securities.
Section 5.2 Demand Registration
(a) One or more Stockholders which shall have maintained continuous
beneficial ownership, individually or in the aggregate, following the
Closing of at least 10% of the Fully-Diluted Shares (excluding any Fully-
Diluted Shares sold or otherwise disposed of by any Stockholder after the
Closing, if even subsequently reacquired) shall have the right, at any time
after the 90th day following successful launch and commercially viable
operation, for a period of 60 consecutive days, of QuickBird 1, or any
successor to such satellite, to request that the Company register, in an
underwritten public offering or otherwise, under the 1933 Act, Registrable
Securities with an aggregate fair market value of at least $5,000,000 held
by it or them (any registration resulting from such a request a "Demand
Registration," with such Stockholder or Stockholders making such request
the "Demanding Stockholder"); provided, however, that the Other Holders
shall have no right to request a Demand Registration prior to 180 days
following an Initial Public Offering. A request for a Demand Registration
shall specify the number of shares of Registrable Securities proposed to be
sold. A registration made pursuant to such a request shall not qualify as a
Demand Registration hereunder until (a) the registration statement relating
thereto has been declared effective by the SEC and (b) the Demanding
Stockholder is able to register and sell at least 75% of the Registrable
Securities requested to be included in such registration. The Company shall
not be required to effect, and each of ITT, the B Holders and the Other
Holders shall not be entitled to request, more than three registrations
each per ITT, the B Holders and the Other Holders under this Section 5.2.
(b) Promptly (but in no event more than ten days) after receipt of a
request for a Demand Registration, the Company shall provide notice of such
request to the non-Demanding Stockholders, and such non-Demanding
Stockholder shall have the right, within 10 days after the date of receipt
of such notice from the Company, to request that the Company include in the
offering to which the Demand Registration relates all or a portion of such
non-Demanding Stockholders' Registrable Securities.
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(c) The Company shall not include in any Demand Registration any
securities that are not Registrable Securities without the prior written
consent of the Demanding Stockholder. If a Demand Registration is an
underwritten offering and the managing underwriters advise the Company in
writing that, in their opinion, the number or class of Registrable
Securities and, if permitted hereunder, other securities requested to be
included in such offering, exceeds the number or class of Registrable
Securities and other securities, if any, which can be sold therein without
adversely affecting the marketability of the offering, the Company shall
include in such Demand Registration (A) first, the number of Registrable
Securities requested to be included in such registration by any
Stockholders pro rata, if necessary, among such Stockholders based on the
number of Registrable Securities owned by each such Stockholder, (B)
second, the number of equity securities to be registered for the account of
the Company, and (C) third, any other securities of the Company requested
to be included in such registration pro rata, if necessary, on the basis of
the number of such other securities owned by each holder of such other
securities.
(d) Notwithstanding the foregoing, if the Company shall furnish to the
Demanding Stockholder a certificate signed by an officer of the Company
stating that, in the reasonable good faith judgment of the Board, it would
not be in the best interests of the Company and its stockholders for such
registration to be effected (because the Company is engaging in or intends
to engage in an acquisition, divestiture or other material transaction or
due to other extraordinary events relating to the Company, but, in any
case, not including for purposes of the Company avoiding its obligations
hereunder), then the Company shall have the right to defer such
registration for a period of not more than 90 days after receipt of the
request of the Demanding Stockholder; provided, however, that (i) the
Company shall not be entitled to defer its obligation to effect a
registration for an aggregate of more than 180 days within any 365-day
period and (ii) the Company shall make and communicate to the selling
Stockholders its determinations under this paragraph in respect of a
registration under this Section 5.2 within 15 days of the Company's receipt
of the Demand Registration notice in respect of such registration or, to
the extent reasonably practicable, promptly after becoming aware of such
transaction.
(e) The Demanding Stockholder shall select the book-running and other
managing underwriters in connection with an offering pursuant to a Demand
Registration, and any additional investment bankers and managers to be used
in connection with the offering, in each case which shall be reasonably
satisfactory to the Company.
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Section 5.3 Piggyback Registration
(a) At any time that the Company proposes to register any shares of
Common Stock under the 1933 Act for sale solely for cash, for its own
account or pursuant to a Demand Registration, and the registration form to
be used may be used for the registration of Registrable Securities (each a
"Piggyback Registration"), the Company shall give written notice of such
proposed registration to the Stockholders and the Non-party Holders as soon
as practicable (but in no event less than 20 days before the anticipated
filing date of the registration statement effecting such registration), and
the Company shall include in any such registration by it all Registrable
Securities with respect to which it has received written requests for
inclusion therein within 10 days after receipt by such Stockholders or by
such Non-party Holders of such written notice from the Company. If any
Piggyback Registration is an underwritten offering, the Company shall
select the book-running and other managing underwriters in connection with
such offering and any additional investment bankers and managers to be used
in connection with the offering.
(b) If a Piggyback Registration is an underwritten primary
registration on behalf of the Company, the Company shall include in such
registration all securities requested to be included in such registration;
provided, however, that if the managing underwriters advise the Company in
writing that in their opinion the number or class of such securities
requested to be included in such registration exceeds the number or class
which can be sold in such offering without adversely affecting the
marketability of the offering, the Company shall include in such
registration (1) first, the securities that the Company proposes to sell,
(2) second, to the extent Registrable Securities requested for inclusion
therein need to be reduced as a result of such advice, the Registrable
Securities requested to be included in such registration, pro rata among
the Stockholders of such Registrable Securities on the basis of the number
of Registrable Securities owned by each such Stockholder, (3) third, the
Registrable Securities requested to be included in such registration, pro
rata among the Non-party Holders of such Registrable Securities on the
basis of the number of Registrable Securities owned by each such Non-party
Holder and (4) fourth, other securities, if any, requested to be included
in such registration, pro rata among the holders of such securities on the
basis of the number of such securities owned by each such holder.
(c) If a Piggyback Registration is in connection with a Demand
Registration, the restrictions set forth in Section 5.2(c) shall apply. If
a Piggyback Registration is an underwritten secondary registration on
behalf of holders of securities of the Company (and is not a Demand
Registration) and the managing underwriters advise the Company in writing
that in
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their opinion the number or class of securities requested to be included in
such registration exceeds the number or class which can be sold in such
offering without adversely affecting the marketability of the offering, the
Company shall include in such registration (1) first, the Registrable
Securities requested to be included in such registration, pro rata among
the Stockholders of such Registrable Securities on the basis of the number
of Registrable Securities owned by each such Stockholder, (2) second, the
Registrable Securities requested to be included in such registration, pro
rata among the Non-party Holders of such Registrable Securities on the
basis of the number of Registrable Securities owned by each such Nonparty
Holder and (3) third, any other securities requested to be included in such
registration not covered by clause (1) above pro rata among the holders of
such securities on the basis of the number of such securities owned by each
such holder.
(d) The Company shall not be obligated to include any Registrable
Securities in a registration statement (1) filed on Forms S-4 or S-8 or
such other similar successor forms then in effect under the 1933 Act, (2)
pursuant to which the Company is offering to exchange its own securities or
(3) relating solely to dividend reinvestment plans.
(e) Any Piggyback Registration relating to a sale of securities by the
Company for its own account shall be managed by the Company; the Company
shall have the power to select the managing underwriter(s) for such
offering, and shall in consultation with the managing underwriter(s) have
the power to determine the offering price, the underwriting discounts and
commissions, the terms of the underwriting agreement, the timing of the
registration and related offering, counsel to the Company, and all other
administrative matters related to the registration and related offering. To
the extent that the Stockholders or Non-party Holders participate in such a
registration and related offering, such Stockholders or Non-party Holders
shall enter into, and sell their Registrable Securities only pursuant to,
the underwriting arranged by the Company, and shall either commit to attend
the closing of the offering and take such other actions as may be
reasonably necessary to effect their participation in the offering and to
provide any assurances reasonably requested by the Company and the managing
underwriter(s) in that regard, or shall deliver to the Company in custody
certificates representing all Registrable Securities to be included in the
registration and shall execute and deliver to the Company a custody
agreement and a power of attorney, each in form and substance appropriate
for the purpose of effecting their participation in such registration.
Section 5.4 Registration Procedures. Subject to the limitations in
Sections 5.2 and 5.3, whenever the Stockholders or Non-party Holders have
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requested that any Registrable Securities be registered pursuant to this
Agreement, the Company shall use its reasonable best efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as practicable:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its reasonable best efforts
to cause such registration statement to become effective;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for the
applicable period and comply with the provisions of the 1933 Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration
statement;
(c) if requested, prior to filing such registration statement or any
amendment or supplement thereto, furnish to the selling Stockholders and
Non-party Holders and each managing underwriter, if any, copies thereof,
and thereafter furnish to the selling Stockholders and Non-party Holders
and each such underwriter, if any, such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including without limitation all exhibits thereto and documents
incorporated by reference therein) and the prospectus included in such
registration statement (including without limitation each preliminary
prospectus) as such Stockholders or Non-party Holders or such underwriter
may reasonably request in order to facilitate the sale of the Registrable
Securities;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; provided, that the Company
shall not be required to (1) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this subsection, (2) subject itself to taxation in any such jurisdiction,
or (3) consent to general service of process (i.e., service of process
which is not limited solely to securities law violations) in any such
jurisdiction;
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
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1933 Act, of the happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, promptly prepare a
supplement or amendment to such prospectus so that, as thereafter delivered
to the purchasers of such Registrable Securities, such prospectus shall not
contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
(f) notify each seller of such Registrable Securities and, if
requested by any such seller of Registrable Securities, confirm such notice
in writing, (1) when the prospectus or any prospectus supplement or
post-effective amendment included in such registration statement has been
filed, and, with respect to any registration statement or any post-
effective amendment thereto, when the same has become effective, (2) of any
request by the SEC for amendments to such registration statement or
amendments or supplements to the prospectus or for additional information
relating thereto, (3) of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement under the 1933
Act or of the suspension by any state securities commission of the
qualification of such Registrable Securities, as applicable, for offering
or sale in any jurisdiction, or the initiation of any proceeding for any of
the preceding purposes;
(g) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are
then listed and, if not so listed, to be listed on the NASDAQ (or such
other national securities exchange as the Board determines provides the
best liquidity on which such Registrable Securities may be listed), if so
requested by the holders of a majority of the Registrable Securities being
sold, or if so requested by the managing underwriter of an offering
pursuant to such registration statement;
(h) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration
statement;
(i) enter into such customary agreements (including without limitation
underwriting agreements in customary form) and take all such other actions
as the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(j) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other agent re-
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tained by any such seller or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
managers, officers, members, employees and independent accountants of the
Company to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such
registration statement;
(k) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day
of the first full calendar quarter of the Company after the effective date
of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 promulgated
thereunder;
(l) permit any selling Stockholder or Non-party Holder (which
Stockholder or Non-party Holder, in the Company's sole and exclusive
judgment, might be deemed to be an underwriter or a controlling person of
the Company) to participate in the preparation of such registration or
comparable statement and to require the insertion therein of material,
furnished to the Company in writing, which in the reasonable judgment of
such Stockholder or Non-party Holder and its counsel should be included;
(m) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any securities included in such registration statement for
sale in any jurisdiction, use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(n) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the sellers thereof to consummate the disposition of
such Registrable Securities;
(o) obtain a "cold comfort" letter from the independent public
accountants of the Company in customary form and covering such matters of
the type customarily covered by "cold comfort" letters as the holders of a
majority of the Registrable Securities being sold reasonably request;
(p) cooperate, and cause its management to cooperate, in the selling
effort of such offering, and, if the holders owning a majority of the
Registrable Securities being sold in such offering reasonably request,
coordinate and conduct a "road show" in connection with such offering; and
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(q) otherwise facilitate such registration and related offering.
The Company may require the Stockholders or the Non-party Holders
promptly to furnish in writing to the Company such information regarding the
Stockholders' or the Non-party Holders' plan of distribution of the Registrable
Securities and other information as the Company may from time to time reasonably
request or as may be legally required in connection with such registration.
Section 5.5 Registration Expenses. In connection with any Demand
Registration or Piggyback Registration, each selling Stockholder or Non-party
Holder shall be responsible for any underwriting discounts or commission that
may be payable in connection with the sale of its respective securities. The
Company shall pay all other expenses incurred in connection with such
registration, including without limitation (1) all filing fees with the SEC,
(2) fees and expenses of compliance with securities or blue sky laws (including
without limitation reasonable fees and disbursements of counsel in connection
with blue sky qualifications of the securities), (3) printing expenses, (4) the
fees and expenses incurred in connection with the listing of the securities,
(5) fees and expenses of counsel and independent certified public accountants
for the Company (including without limitation the expenses of any comfort
letters pursuant to Section 5.4(o) hereof), (6) the reasonable fees and expenses
of any additional experts retained by the Company in connection with such
registration and (7) fees and expenses of one counsel to the selling
Stockholders and Non-party Holders to be mutually agreed upon.
Section 5.6 Indemnification by the Company. The Company agrees to
indemnify and hold harmless each person who participates as an underwriter,
each Stockholder and their respective partners, directors, officers and
employees and each person, if any, who controls any Stockholder or Non-party
Holder or underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(a) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any registration statement pursuant to which Registrable
Securities were registered under the 1933 Act, including without limitation
all documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any prospectus, including without limitation all documents
incorporated therein by reference, or the omission or alleged omission
therefrom of a
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material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(b) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, investigation or
proceeding by any governmental agency or body, commenced or threatened, or
of any other claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(c) against any and all reasonable expense whatsoever, as incurred
(including without limitation fees and disbursements of counsel), incurred
in investigating, preparing or defending against any litigation,
investigation or proceeding, commenced or threatened, in each case whether
or not such person is a party, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (a) or (b) above;
provided, however, that this indemnity agreement (i) does not apply to any
Stockholder or Non-party Holder or underwriter with respect to any loss,
liability, claim, damage, judgment or expense to the extent arising out of any
untrue statement or alleged untrue statement of a material fact contained in any
prospectus, or the omission or alleged omission therefrom of a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in any such case made in reliance
upon and in conformity with written information furnished to the Company by such
Stockholder or Non-party Holder or underwriter expressly for use in a
registration statement (or any amendment thereto) or any prospectus (or any
amendment or supplement thereto) and (ii) shall not inure to the benefit of any
Stockholder or Non-party Holder or underwriter if a copy of the current
prospectus was not provided to a purchaser and such current prospectus would
have cured the defect giving rise to such loss, claim, damage, liability,
judgment or expense.
Section 5.7 Indemnification by Stockholders. Each selling Stockholder
and Non-party Holder severally agrees to indemnify and hold harmless the
Company, each underwriter and the other selling Stockholders and Non-party
Holders, and each of their respective partners, directors, officers and
employees (including without limitation each officer of the Company who signed
the registration statement), and each person, if any, who controls the Company,
any underwriter or any other selling Stockholder or Non-party Holder within the
meaning of Section 15 of the 1933 Act, against any and all losses, liabilities,
claims, damages, judgments and expenses described in the indemnity contained in
Section 5.6 (provided that any settlement of the type described therein is
effected
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with the written consent of such selling Stockholder or such Non-party Holder),
as incurred, but only with respect to untrue statements or alleged untrue
statements of a material fact contained in any prospectus or the omissions, or
alleged omissions therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in any such case made in reliance upon and in conformity with
written information furnished to the Company by such selling Stockholder or such
Non-party Holder expressly for use in such registration statement (or any
amendment thereto) or such prospectus (or any amendment or supplement thereto).
Section 5.8 Conduct of Indemnification Proceedings. Each indemnified
party shall give reasonably prompt notice to each indemnifying party of any
action or proceeding commenced against it in respect of which indemnity may be
sought hereunder; provided, however, that failure so to notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have under this indemnity agreement, except to the extent that the indemnifying
party is materially prejudiced by such failure to give notice. If the
indemnifying party so elects within a reasonable time after receipt of such
notice, such indemnifying party may assume the defense of such action or
proceeding at such indemnifying party's expense with counsel chosen by the
indemnifying party and approved by the indemnified party defendant in such
action or proceeding, which approval shall not be unreasonably withheld;
provided, however, that, if such indemnified party determines in good faith that
a conflict of interest exists and that therefore it is advisable for such
indemnified party to be represented by separate counsel or that, upon advice of
counsel, there may be legal defenses available to it which are different from or
in addition to those available to the indemnifying party, then the indemnifying
party shall not be entitled to assume such defense and the indemnified party
shall be entitled to separate counsel (limited in each jurisdiction to one
counsel for all underwriters and another counsel for all other indemnified
parties under this Agreement) at the indemnifying party's expense. If an
indemnifying party is not so entitled to assume the defense of such action or
does not assume such defense, after having received the notice referred to in
the first sentence of this paragraph, the indemnifying party will pay the
reasonable fees and expenses of counsel for the indemnified party (limited in
each jurisdiction to one counsel for all underwriters and another counsel for
all other indemnified parties under this Agreement). No indemnifying party will
be liable for any settlement effected without the written consent of such
indemnifying party, which consent shall not be unreasonably withheld. If an
indemnifying party is entitled to assume, and assumes, the defense of such
action or proceeding in accordance with this paragraph, such indemnifying party
shall not, except as otherwise provided in this Section 5.8, be liable for any
fees and expenses of counsel for the indemnified party incurred thereafter in
connection with such action or proceeding.
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Section 5.9 Contribution.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Sections 5.6
through 5.8 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms in respect of any
losses, liabilities, claims, damages, judgments and expenses suffered by an
indemnified party referred to therein, each applicable 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, liabilities, claims, damages, judgments and expenses in such
proportion as is appropriate to reflect the relative fault of the Company
on the one hand and of the liable selling Stockholders and Non-party
Holders (including without limitation, in each case, that of their
respective officers, directors, employees and agents) on the other in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages, judgments or expenses, as well as any other
relevant equitable considerations. The relative fault of the Company on the
one hand and of the liable selling Stockholders and Non-party Holders
(including without limitation, in each case, that of their respective
officers, directors, employees and agents) on the other 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 or on behalf of the selling Stockholders and Non-party Holders,
on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
liabilities, claims, damages, judgments and expenses referred to above
shall be deemed to include, subject to the limitations set forth in
Section 5.8, any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or
claim.
(b) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 5.9 were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in subparagraph (a) above.
Notwithstanding the provisions of this Section 5.9, in the case of
distributions to the public, an indemnifying Stockholder or Non-party
Holder shall not be required to contribute any amount in excess of the
amount by which (A) the total price at which the Registrable Securities
sold by such indemnifying Stockholder or Non-party Holder and its
affiliated indemnifying Stockholders and Non-party Holders and distributed
to the public were offered to the public exceeds (B) the amount of any
damages which such indemnifying Stockholder or Non-party Holder has
otherwise been required
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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 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(c) For purposes of Section 5.6 through this Section 5.9, each person,
if any, who controls a Stockholder or Non-party Holder or an underwriter
within the meaning of Section 15 of the 1933 Act (and their respective
partners, directors, officers and employees) shall have the same rights to
contribution as such Stockholder or Non-party Holder or underwriter; and
each director of the Company, each officer of the Company who signed the
registration statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act, shall have the same
rights to contribution as the Company.
Section 5.10 Participation in Underwritten Registrations. No
Stockholder or Non-party Holder may participate in any underwritten registered
offering contemplated hereunder unless such Stockholder or Non-party Holder
(a) agrees to sell its securities on the basis provided in any underwriting
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up agreements and other
documents reasonably required under the terms hereof and of such underwriting
arrangements.
Section 5.11 Rule 144. The Company covenants that from and after an
Initial Public Offering it shall file any reports required to be filed by it
under the 1933 Act and the 1934 Act and that it shall take such further action
as the Stockholders or Non-party Holders may reasonably request, all to the
extent required from time to time to enable the Stockholders or Non-party
Holders to sell Registrable Securities without registration under the 1933 Act
within the limitation of the exemptions provided by Rule 144 under the 1933 Act,
as such rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Stockholder or Non-party
Holder, the Company shall promptly deliver to the Stockholders and Non-party
Holders a written statement as to whether it has complied with such
requirements.
Section 5.12 Holdback Agreements.
(a) To the extent not inconsistent with applicable law, each
Stockholder and Non-party Holder agrees not to effect any public sale or
distribution (including without limitation sales pursuant to Rule 144) of
equity securities of the Company or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days
prior to and the period of up to 180 days beginning on the effective date
of any Demand Registration or Piggyback Registration for a public offering
to be
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underwritten on a firm commitment basis in which Registrable Securities are
included (except as part of such underwritten registration), unless the
underwriters managing the registered public offering otherwise agree.
(b) The Company agrees (1) not to effect any public sale or
distribution (including without limitation sales pursuant to Rule 144) of
its equity securities or any securities convertible into or exchangeable or
exercisable for such equity securities, during the seven days prior to and
the period of up to 180 days beginning on the effective date of any Demand
Registration or Piggyback Registration for a public offering to be
underwritten on a firm commitment basis in which Registrable Securities are
included (except as part of such underwritten registration or pursuant to
registrations on Forms S-4 or S-8 or any successor forms), unless the
underwriters managing the registered public offering otherwise agree, and
(2) to use its reasonable best efforts to cause each other stockholder of
at least 5% of the Fully-Diluted Shares to agree not to effect any public
sale or distribution (including without limitation sales pursuant to Rule
144) of any such securities during such period (except as part of such
underwritten registration, if otherwise permitted), unless the underwriters
managing the registered public offering otherwise agree.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 6.1 Representations and Warranties of the Company. The
Company represents and warrants to each of MS, CapRe and ITT as follows:
(a) Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) Authority. The Company has full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated on its part hereby. The execution, delivery and performance by
the Company of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on
the part of the Company. No other action on the part of the Company is
necessary to authorize the execution and delivery of this Agreement by the
Company or the performance by the Company of its obligations hereunder.
This Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting creditors' rights generally and subject to general
25
<PAGE>
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(c) No Violation. The execution and delivery of this Agreement by the
Company, the performance by the Company of its obligations hereunder and
the consummation by the Company of the transactions contemplated hereby,
will not (i) violate any provision of law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award applicable to the
Company, (ii) require the consent, waiver, approval, license or
authorization of or any filing by the Company with any governmental
authority (other than any filings required under the 1934 Act) or (iii)
violate, result (with or without notice or the passage of time, or both) in
a breach of or give rise to the right to accelerate, terminate or cancel
any obligation under or constitute (with or without notice or the passage
of time, or both) a default under, any of the terms or provisions of any
charter document or bylaw, agreement, note, indenture, mortgage, contract,
order, judgment, ordinance, regulation or decree to which the Company is
subject or by which the Company is bound and which would have a material
adverse effect on the ability of the Company to perform its obligations
under this Agreement.
Section 6.2 MS Representations and Warranties. MS represents and
warrants to each of the Company, CapRe and ITT as follows:
(a) Authority. MS has full power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated on its part
hereby. This Agreement has been duly executed and delivered by MS and
constitutes a legal, valid and binding agreement of MS, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws affecting creditors'
rights generally and subject to general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(b) No Violation. The execution and delivery of this Agreement by MS,
the performance by MS of its obligations hereunder and the consummation by
MS of the transactions contemplated hereby will not (i) violate any
provision of law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award applicable to MS, (ii) require the consent,
waiver, approval, license or authorization of or any filing by MS with any
governmental authority (other than any filings required under the 1934 Act)
or (iii) violate, result (with or without notice or the passage of time, or
both) in a breach of or give rise to the right to accelerate, terminate or
cancel any obligation under or constitute (with or without notice or the
passage of time, or both) a default under, any of the terms or provi-
26
<PAGE>
sions of any charter document or bylaw, agreement, note, indenture,
mortgage, contract, order, judgment, ordinance, regulation or decree to
which MS is subject or by which MS is bound and which would have a material
adverse effect on the ability of MS to perform its obligations under this
Agreement.
Section 6.3 CapRe Representations and Warranties. CapRe represents and
warrants to each of the Company, MS and ITT as follows:
(a) Authority. CapRe has full power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated on
its part hereby. This Agreement has been duly executed and delivered by
CapRe and constitutes a legal, valid and binding agreement of CapRe,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting creditors' rights generally and subject to general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(b) No Violation. The execution and delivery of this Agreement by
CapRe, the performance by CapRe of its obligations hereunder and the
consummation by CapRe of the transactions contemplated hereby will not (i)
violate any provision of law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award applicable to CapRe, (ii)
require the consent, waiver, approval, license or authorization of or any
filing by CapRe with any governmental authority (other than any filings
required under the 1934 Act) or (iii) violate, result (with or without
notice or the passage of time, or both) in a breach of or give rise to the
right to accelerate, terminate or cancel any obligation under or constitute
(with or without notice or the passage of time, or both) a default under,
any of the terms or provisions of any agreement, note, indenture, mortgage,
contract, order, judgment, ordinance, regulation or decree to which CapRe
is subject or by which CapRe is bound and which would have a material
adverse effect on the ability of CapRe to perform its obligations under
this Agreement.
Section 6.4 ITT Representations and Warranties. ITT represents and
warrants to each of the Company, MS and CapRe as follows:
(a) Authority. ITT has full power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated on its part
hereby. This Agreement has been duly executed and delivered by ITT and
constitutes a legal, valid and binding agreement of ITT, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws af-
27
<PAGE>
fecting creditors' rights generally and subject to general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(b) No Violation. The execution and delivery of this Agreement by ITT,
the performance by ITT of its obligations hereunder and the consummation by ITT
of the transactions contemplated hereby will not (i) violate any provision of
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award applicable to ITT, (ii) require the consent, waiver, approval, license
or authorization of or any filing by ITT with any governmental authority (other
than any filings required under the 1934 Act) or (iii) violate, result (with or
without notice or the passage of time, or both) in a breach of or give rise to
the right to accelerate, terminate or cancel any obligation under or constitute
(with or without notice or the passage of time, or both) a default under, any of
the terms or provisions of any agreement, note, indenture, mortgage, contract,
order, judgment, ordinance, regulation or decree to which ITT is subject or by
which ITT is bound and which would have a material adverse effect on the ability
of ITT to perform its obligations under this Agreement.
ARTICLE VII
GENERAL PROVISIONS
------------------
Section 7.1 License Activities.
(a) Notwithstanding anything to the contrary contained in this Agreement,
the Recap Agreement or the certificates of designations of any series of
preferred stock of the Company, neither the Company nor any party hereto shall,
without first obtaining the approval or consent of the FCC, take any action
pursuant to this Agreement, the Recap Agreement or the certificates of
designations of any series of preferred stock of the Company which would be
reasonably likely to cause or result in any acquisition or transfer of ownership
of the Company or its assets, assignment of any FCC License or any change of
control that would require, under then existing law (including the
Communications Act of 1934, as amended), the prior approval of the FCC;
provided, however, that the preceding clause shall not preclude any of MS, CapRe
or ITT, as the case may be, from exercising its rights under Article III of this
Agreement, Articles 5. 1 (a) and (b) of the Recap Agreement and Article IV,
Sections B(7)(d) and C(7)(d) of the Amended and Restated Certificate of
Incorporation of the Company.
(b) In the event the FCC Approval has not been received by the Company on
or prior to October 31, 1999, the Company, promptly upon
28
<PAGE>
the request of each of ITT, MS and CapRe, shall take all actions as are
reasonably necessary to surrender or abandon the FCC Licenses.
Section 7.2 Termination. This Agreement shall terminate upon the
earliest to occur of
(a) a mutual agreement among all the parties hereto to terminate this
Agreement;
(b) as to any of ITT, MS or CapRe, at such time as such party ceases
to own any shares of New Series A Preferred Stock, in the case of ITT, or
New Series B Preferred Stock, in the case of MS and CapRe, or any shares of
New Common Stock into which such shares of New Series A Preferred Stock or
New Series B Preferred Stock shall be converted; provided, however, that
the provisions hereof will continue to apply to any Permitted Transferees
of ITT, MS or CapRe even after such provisions terminate with respect to
such parties; and
(c) March 31, 2009.
Section 7.3 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties. Copies of executed
counterparts transmitted by telecopy, telefax. or other electronic transmission
service shall be considered original executed counterparts for purposes of this
Section, provided receipt of copies of such counterparts is confirmed.
Section 7.4 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO THE CHOICE OF LAW PRINCIPLES THEREOF.
Section 7.5 Entire Agreemment. Except for any agreements,
understanding, representations or warranties set forth in the Recap Agreement,
this Agreement contains the entire agreement between the parties with respect to
the subject matter hereof and there are no agreements, understandings,
representations or warranties between the parties other than those set forth or
referred to herein. This Agreement is not intended to confer upon any person not
a party hereto (and their successors and assigns) any rights or remedies
hereunder.
Section 7.6 Specific Performance. The parties hereto each acknowledge
that, in view of the uniqueness of arrangements contemplated by this Agreement,
the parties hereto would not have an adequate remedy at law for money damages in
the event that this Agreement were not performed in accordance with its terms,
and therefore agree that the parties hereto shall be entitled to
29
<PAGE>
specific enforcement of the terms hereof in addition to any other remedy to
which the parties hereto may be entitled at law or in equity.
Section 7.7 Notices. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party when
delivered by hand, by messenger, or by a nationally recognized overnight
delivery company, when delivered by telecopy and confirmed by return telecopy,
or when delivered by first-class mail, postage prepaid and return receipt
requested, in each case to the applicable addresses set forth below (or such
other addresses as a party may designate by written notice to each other party).
(a) Notices to the Company shall be addressed to:
EarthWatch Incorporated
1900 Pike Road
Longmont, Colorado 80501-6700
Telecopy: (303) 682-3808
Attention: Herbert F. Satterlee, III
with a copy to:
Cooley Godward LLP
2595 Canyon Boulevard, Suite 250
Boulder, Colorado 80302-6737
Telecopy: (303) 546-4099
Attention: James C.T. Linfield, Esq.
(b) Notices to MS shall be addressed to:
Morgan Stanley & Co., Incorporated
1585 Broadway
New York, New York 10036
Telecopy: (212) 761-0672
Attention: Michael Petrick
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Telecopy: (212) 403-2000
Attention: Scott K. Charles, Esq.
30
<PAGE>
(c) Notices to CapRe shall be addressed to:
Capital Research and Management Company
11100 Santa Monica Blvd., Suite 1500
Los Angeles, California 90025
Telecopy: (310) 996-6022
Attention: David Daigle
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Telecopy: (212) 403-2000
Attention: Scott K. Charles, Esq.
(d) Notices to ITT shall be addressed to:
ITT Industries, Inc.
4 West Red Oak Lane
White Plains, New York 10604
Telecopy: (914) 696-2963
Attention: Martin Kamber
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Telecopy: (212) 455-2502
Attention: Gary L. Sellers, Esq.
Section 7.8 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors; provided, however, that except as set forth in the next sentence, no
party may assign its rights and obligations hereunder. Each party may assign its
rights and obligations hereunder to one or more majority-owned, direct or
indirect subsidiaries or other Affiliates.
Section 7.9 Headings. The Section, Article and other headings
contained in this Agreement are inserted for convenience of reference only and
will not affect the meaning or interpretation of this Agreement. All references
to Sections or Articles contained herein mean Sections or Articles of this
Agreement unless otherwise stated.
31
<PAGE>
Section 7.10 Amendments and Waivers. This Agreement may not be
modified or amended except by an instrument or instruments in writing signed by
the parties against whom enforcement of any such modification or amendment is
sought; provided, however, that the provisions set forth in Article V may be
amended by an instrument or instruments in writing signed by a majority of the
holders of the shares of each of the Series A Preferred Stock, the Series B
Preferred Stock and the Series C Preferred Stock. Any party hereto may, only by
an instrument in writing, waive compliance by the other parties hereto with any
term or provision hereof on the part of such other parties hereto to be
performed or complied with. The waiver by any party hereto of a breach of any
term or provision hereof shall not be construed as a waiver of any subsequent
breach.
Section 7.11 Interpretation; Absence of Presumption.
(a) For the purposes hereof, (i) words in the singular shall be held
to include the plural and vice versa and words of one gender shall be held
to include the other gender as the context requires, (ii) the terms
"hereof," "herein," and "herewith" and words of similar import shall,
unless otherwise stated, be construed to refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Article, Section
and paragraph references are to the Articles, Sections and paragraphs to
this Agreement unless otherwise specified, (iii) the word "including" and
words of similar import when used in this Agreement shall mean "including,
without limitation," unless the context otherwise requires or unless
otherwise specified, (iv) the word "or" shall not be exclusive, and (v)
provisions shall apply, when appropriate, to successive events and
transactions.
(b) This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the
party drafting or causing any instrument to be drafted.
Section 7.12 Severability. Any provision hereof which is invalid or
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
Section 7.13 Further Assurances. The parties hereto agree that, from
time to time, each of them will, and will cause their respective Affiliates to,
execute and deliver such further instruments and take such other action as may
be necessary to carry out the purposes and intents hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
32
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By: /S/ Herbert F. Satterlee
---------------------------------------
Name: Herbert F. Satterlee
Title: President and CEO
MORGAN STANLEY & CO., INCORPORATED
By: /S/ Michael Petrick
---------------------------------------
Name: Michael Petrick
Title: Managing Director
AMERICAN HIGH-INCOME TRUST
By Capital Research and Management Company
By: /S/ Paul G. Haaga, Jr.
---------------------------------------
Name: Paul G. Haaga, Jr.
Title: Executive Vice President
AMERICAN VARIABLE INSURANCE SERIES ASSET
ALLOCATION FUND
By Capital Research and Management Company
By: /S/ Paul G. Haaga
---------------------------------------
Name: Paul G. Haaga
Title: Executive Vice President
AMERICAN VARIABLE INSURANCE SERIES BOND
FUND
By Capital Research and Management Company
By: /S/ Paul G. Haaga
---------------------------------------
Name: Paul G. Haaga
Title: Executive Vice President
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
AMERICAN VARIABLE INSURANCE SERIES HIGH-
YIELD BOND FUND
By Capital Research and Management Company
By: /S/ Paul G. Haaga, Jr.
---------------------------------------
Name: Paul G. Haaga, Jr.
Title: Executive Vice President
THE BOND FUND OF AMERICA, INC.
By Capital Research and Management Company
By: /S/ Paul G. Haaga, Jr.
---------------------------------------
Name: Paul G. Haaga, Jr.
Title: Executive Vice President
ITT INDUSTRIES, INC.
By:
---------------------------------------
Name:
Title:
------------------------------------------
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY
By:
------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By: /S/ Martin Kamber
------------------------------
Name: Martin Kamber
Title: Senior Vice President
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
AMERICAN VARIABLE INSURANCE SERIES HIGH-
YIELD BOND FUND
By Capital Research and Management Company
By:
---------------------------------------
Name:
Title:
THE BOND FUND OF AMERICA, INC.
By Capital Research and Management Company
By:
---------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
---------------------------------------
Name:
Title:
BALL TECHNOLOGIES HOLDINGS CORP.
------------------------------------------
By: /S/ Donald W. Vanlandingham
---------------------------------------
Name: Donald W. Vanlandingham
Title: President
------------------------------------------
By:
---------------------------------------
Name:
Title:
------------------------------------------
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of the
parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
---------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY,
for the benefit of American High-Income
Trust, American Variable Insurance Series
High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
---------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
---------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
Alta V Limited Partnership
By: Alta V Management Partners, L.P.
By: /s/ [ SIGNATURE ILLEGIBLE]^^
---------------------------------------
General Partner
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
Customs House Partners
By: /s/ [SIGNATURE ILLEGIBLE]^^
-----------------------------
Under Power of Attorney
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Amedeo Natali
-----------------------------
Name: Amedeo Natali
Title: Director General Telespazio S.P.A.
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
CEDC & Co. c/o Bankers Trust DTC #903 on behalf
of CM Capital for benefit of LA Fire & Police
By:
-----------------------------
Name: Jeff Donohue
Title: Asst Treasurer
B7 Sepuiues TN
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ [SIGNATURE ILLEGIBLE]^^
-----------------------------
Name: [ILLEGIBLE COPY]
Title: General Partner
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
--------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Williams Jones
--------------------------------
Name:
Title: President of Williams Jones &
Assoc. Inc discretionary manager
of PDC Fund
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
--------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Rafael Fogul
--------------------------------
Name: Rafael Fogul
Title: Authorized Agent
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
--------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
Oppenheimer Strategic Income Fund
By: /s/ David Negri
--------------------------------
Name: David Negri
Title: Vice President
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
Oppenheimer High Yield Fund
By: /s/ David Negri
-----------------------------
Name: David Negri
Title: Vice President
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
Oppenheimer Champion Income Fund
By: /s/ David Negri
-----------------------------
Name: David Negri
Title: Vice President
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
Oppenheimer Strategic Bond Fund for its
Variable Accounts Funds
By: /s/ David Negri
-----------------------------
Name: David Negri
Title: Vice President
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
SERIES C PREFERRED STOCKHOLDERS
Morgan Guaranty Trust Company of New York,
as Trustee of the Commingled Pension Trust Fund
(Multi-Market Special Investment Fund II)
of Morgan Guaranty Trust Company of New York
By: /s/ Robert B. Ross
--------------------------------
Name: Robert B. Ross
Title: Vice President
Morgan Guaranty Trust Company of New York,
as Investment Manager and Agent for The Alfred P.
Sloan Foundation (Multi-Market Account)
By: /s/ Robert B. Ross
--------------------------------
Name: Robert B. Ross
Title: Vice President
Morgan Guaranty Trust Company of New York,
as Trustee of the Multi-Market Special Investment
Trust Fund of Morgan Guaranty Trust Company
of New York
By: /s/ Robert B. Ross
--------------------------------
Name: Robert B. Ross
Title: Vice President
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Gerald B. Untomor
-----------------------------
Name: Gerald B. Untomor
Title:
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
------------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
------------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for the
benefit of American High-Income Trust, American
Variable Insurance Series High-Yield Bond Fund and
Bond Fund of America, Inc.
By:
-------------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-------------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Alexander S. Lushtak
-------------------------------------------
Name: Alexander S. Lushtak
Title: Individual
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
Alta V Limited Partnership
By: Alta V Management Partners, L.P.
By: /s/ [SIGNATURE ILLEGIBLE]^^
-----------------------------
General Partner
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
-----------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
-----------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for the
benefit of American High-Income Trust, American
Variable Insurance Series High-Yield Bond Fund and
Bond Fund of America, Inc.
By:
----------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
----------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Andrew Hoffman
----------------------------------------
Name: Andrew Hoffman
Title: Informaton Systems Manager
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
-----------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
-----------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for the
benefit of American High-Income Trust, American
Variable Insurance Series High-Yield Bond Fund and
Bond Fund of America, Inc.
By:
----------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
----------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Blaine Blaesing
----------------------------------------
Name: Blaine Blaesing
Title:
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
-----------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
-----------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for the
benefit of American High-Income Trust, American
Variable Insurance Series High-Yield Bond Fund and
Bond Fund of America, Inc.
By:
----------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
----------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Cheih Chang
----------------------------------------
Name: Chieh Chang
Title:
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
-----------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
-----------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for the
benefit of American High-Income Trust, American
Variable Insurance Series High-Yield Bond Fund and
Bond Fund of America, Inc.
By:
----------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
----------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ David W. Thompson
----------------------------------------
Name: David W. Thompson
Title: CEO and President
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
Customs House Partners
By: /s/ Elaine Walker
-----------------------------
Under Power of Attorney
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
-----------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
-----------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for the
benefit of American High-Income Trust, American
Variable Insurance Series High-Yield Bond Fund and
Bond Fund of America, Inc.
By:
-----------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
Datron/Transco Inc.
By: /s/ William L. Stephan
-----------------------------------------
Name: William L. Stephan
Title: Secretary/Treasurer
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
----------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for the
benefit of American High-Income Trust, American
Variable Insurance Series High-Yield Bond Fund and
Bond Fund of America, Inc.
By:
----------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
----------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ David J. Pabley 3/31/1999
----------------------------------------
Name: David J. Pabley
Title:
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Debbie Foudray
-----------------------------
Name: Debbie Foudray
Title:
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Debra J. Heimmermann
-----------------------------
Name: Debra J. Heimmermann
Title:
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
----------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for the
benefit of American High-Income Trust, American
Variable Insurance Series High-Yield Bond Fund and
Bond Fund of America, Inc.
By:
----------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
----------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Denise J. Winslow
----------------------------------------
Name: Denise J. Winslow
Title:
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Donald H. Ferguson
-----------------------------
Name: Donald H. Ferguson
Title: Shareholder
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
-----------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
-----------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for the
benefit of American High-Income Trust, American
Variable Insurance Series High-Yield Bond Fund and
Bond Fund of America, Inc.
By:
----------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
----------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Donovan B. Hicks
----------------------------------------
Name: Donovan B. Hicks
Title:
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
----------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for the
benefit of American High-Income Trust, American
Variable Insurance Series High-Yield Bond Fund
and Bond Fund of America, Inc.
By:
----------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
----------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Douglas B. Gerull
----------------------------------------
Name: Douglas B. Gerull
Title:
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
----------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for the
benefit of American High-Income Trust, American
Variable Insurance Series High-Yield Bond Fund
and Bond Fund of America, Inc.
By:
----------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
----------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Earl D. McNamee
----------------------------------------
Name: Earl D. McNamee
Title:
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
----------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for the
benefit of American High-Income Trust, American
Variable Insurance Series High-Yield Bond Fund
and Bond Fund of America, Inc.
By:
----------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
----------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Robert R. Tillman
----------------------------------------
Name: Robert R. Tillman, as trustee
of the Alexander S. Lushtak
Gift Trust dated 11/20/92
Title:
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for the
benefit of American High-Income Trust, American
Variable Insurance Series High-Yield Bond Fund and
Bond Fund of America, Inc.
By:
----------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
----------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Eric Parker
----------------------------------------
Name: Eric Parker
Title:
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ G. Richard Wirtenson
By: /s/ Helen M. Wirtenson
-----------------------------
Names: G. Richard Wirtenson
Helen M. Wirtenson
Title: Trustees of the Wirtenson
Family Trust
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
----------------------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for the
benefit of American High-Income Trust, American
Variable Insurance Series High-Yield Bond Fund and
Bond Fund of America, Inc.
By:
----------------------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
----------------------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Gordon Yue 3/31/99
----------------------------------------
Name: Gordon Yue
Title:
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
EARTHWATCH INCORPORATED
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO., INCORPORATED
By:
----------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, for the benefit of American
High-Income Trust, American Variable Insurance
Series High-Yield Bond Fund and Bond Fund of
America, Inc.
By:
-----------------------------
Name:
Title:
ITT INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
SERIES C PREFERRED STOCKHOLDER
By: /s/ Gregory P. Lim
-----------------------------
Name: Gregory P. Lim
Title:
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
