<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 27, 1997
REGISTRATION NO. 333-19167
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ORION NETWORK SYSTEMS, INC.*
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
Delaware ................... 4899 52-2008654
(State of organization) ... (Primary S.I.C. Code Number) (I.R.S. Employer & Identification Number)
</TABLE>
2440 RESEARCH BOULEVARD, SUITE 400, ROCKVILLE, MARYLAND 20850, (301) 258-8101
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
RICHARD H. SHAY, ESQ.
2440 RESEARCH BOULEVARD, SUITE 400, ROCKVILLE, MARYLAND 20850, (301) 258-8101
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
For Information regarding additional registrants, see "Table of Additional
Registrants."
Copies to:
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<S> <C>
Anthony S. Harrington, Esq. Jerry V. Elliott, Esq.
Steven M. Kaufman, Esq. James S. Scott, Sr., Esq.
HOGAN & HARTSON L.L.P. SHEARMAN & STERLING
555 Thirteenth Street, N.W., Washington, D.C. 20004-1109 599 Lexington Avenue, New York, New York 10022
(202) 637-5600 (212) 848-4000
</TABLE>
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, check the following box: [ ]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration number of the earlier effective registration
statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of this prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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---------------------------------------------------------------------------------------------
Proposed Maximum Amount of
Aggregate Offering Registration
Title of Securities Being Registered Price (1) Fee
- ------------------------------------ -------------------- ----------------
<S> <C> <C>
Senior Note Units and Senior Discount Note
Units (2).......................................... $600,000,000 $181,818(3)
Senior Notes due 2007.............................. N/A (4)
Senior Discount Notes due 2007..................... N/A (4)
Warrants to Purchase Common Stock (5).............. N/A (4)
Common Stock....................................... N/A (4)
Subsidiary Guarantees of the Additional
Registrants........................................ N/A (4)
===============================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
(2) Each Senior Note Unit will consist of a Senior Note due 2007 and a Warrant
to purchase Common Stock. The Senior Notes and Warrants will be offered only
in Units. Each Senior Discount Note Unit will consist of a Senior Discount
Note due 2007 and a Warrant to purchase Common Stock. The Senior Discount
Notes and Warrants will be offered only in Units.
(3) Includes $97,577 paid previously in connection with the filing of the
Registration Statement on January 2, 1997 and $8,787 paid previously in
connection with the filing of Amendment No. 1 to the Registration Statement
on January 15, 1997.
(4) As such securities are to be provided without additional cost to the
purchasers, no registration fee is required with respect thereto.
(5) Also being registered are such number of shares of Common Stock as may be
issuable upon exercise of the Warrants.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE>
INFORMATION REGARDING ADDITIONAL REGISTRANTS
The following additional registrants will be, after the merger and exchange
transaction that will occur prior to or simultaneously with the sale of the
securities registered hereby (as described in the registration statement and
included prospectus and in a merger proxy statement that will be sent to
stockholders prior to the sale of the securities registered hereby),
subsidiaries of the issuer of the Units and guarantors of the Senior Notes and
Senior Discount Notes:
<TABLE>
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PRIMARY STANDARD
INDUSTRIAL CLASSIFICATION I.R.S. EMPLOYER &
NAME STATE OF ORGANIZATION CODE NUMBER IDENTIFICATION NUMBER
- ------------------------------------ ---------------------- -------------------------- ----------------------
<S> <C> <C> <C>
Orion Network Systems, Inc.* ...... Delaware 4899 52-1271418
Orion Satellite Corporation ....... Delaware 4899 52-1564318
International Private Satellite
Partners, L.P. ..................... Delaware 4899 52-1648586
OrionNet, Inc. ..................... Delaware 4899 52-1564601
Orion Asia Pacific Corporation .... Delaware 4899 52-1959361
Asia Pacific Space and
Communications, Ltd. ............... Delaware 4899 52-1611027
Orion Atlantic Europe, Inc. ....... Delaware 4899 52-1959360
OrionNet Finance Corporation ...... Delaware 4899 52-1959361
</TABLE>
The address and telephone number of the principal executive offices and the
agent for service for each of the additional registrants are the same as for
Orion Network Systems, Inc., as set forth on the facing page of this
Registration Statement.
- ----------
* The issuer of the Units is a newly-formed Delaware corporation presently
named Orion Newco Services, Inc., but will become the parent holding company of
an existing public company, Orion Network Systems, Inc., and will change its
name to Orion Network Systems, Inc., in a merger and exchange transaction that
will occur prior to or simultaneously with the closing of the sale of the
securities registered hereby (as described in the registration statement and
included prospectus and in a merger proxy statement that will be sent to
stockholders prior to the sale of the securities registered hereby). Since the
issuer of the Units, on a consolidated basis (through the existing public
company which will become its wholly-owned subsidiary), will succeed to and
continue the business of the existing public company Orion Network Systems,
Inc., the issuer of the Units believes that it is more informative and less
confusing for potential investors and existing stockholders if this registration
statement and the prospectus included herein refer to the issuer of the Units as
Orion Network Systems, Inc.
<PAGE>
PROSPECTUS (SUBJECT TO COMPLETION)
ISSUED JANUARY 27, 1997 [LOGO]
ORION NETWORK SYSTEMS, INC.
$ REPRESENTING UNITS, EACH UNIT CONSISTING OF ONE %
SENIOR NOTE DUE 2007 AND ONE WARRANT
TO PURCHASE COMMON STOCK
$ REPRESENTING UNITS, EACH UNIT CONSISTING OF ONE %
SENIOR DISCOUNT NOTE DUE 2007 AND ONE WARRANT
TO PURCHASE COMMON STOCK
----------
Orion Network Systems, Inc. is offering Senior Note Units, each of which
consists of one % Senior Note due 2007 of the Company guaranteed by each
Restricted Subsidiary (as defined herein) of the Company (a "Senior Note") and
one Warrant to purchase shares of common stock, par value $.01 per share
("Common Stock") of the Company (a "Senior Note Warrant"), and Senior Discount
Note Units, each of which consists of one % Senior Discount Note due 2007 of the
Company guaranteed by each Restricted Subsidiary of the Company (a "Senior
Discount Note," and together with the Senior Notes, the "Notes") and one Warrant
to purchase shares of Common Stock (a "Senior Discount Note Warrant," and
together with the Senior Note Warrants, the "Warrants"). Orion's Common Stock is
quoted on the Nasdaq National Market under the symbol "ONSI."
Interest on the Senior Notes will be payable semi-annually in cash on and of
each year, commencing , 1997. The Senior Discount Notes will not
accrue cash interest prior to , 2002. Thereafter, cash interest
will accrue until maturity at an annual rate of % payable semi-annually on and
of each year, commencing , 2002. See "Certain United States Federal Income Tax
Consequences." The Notes will be redeemable, at the Company's option, in whole
or in part, at any time on or after , 2002 at the redemption prices
set forth herein, plus accrued and unpaid interest, if any, to the redemption
date. The Notes will have the benefit of unsubordinated unsecured guarantees
(the "Guarantees") by each of the Restricted Subsidiaries of the Company (the
"Guarantors").
On the closing date, the Company will use a portion of the proceeds from the
Senior Notes to purchase a portfolio of Pledged Securities, consisting of U.S.
government securities, that will be pledged as security for the first six
scheduled interest payments on the Senior Notes.
----------
The exercise price for the Warrants will be $ per share of Common Stock. The
shares of Common Stock of Orion initially issuable upon exercise of all the
Warrants represent approximately % of the outstanding Common Stock of Orion on a
fully diluted basis as of the closing date.
----------
The indebtedness evidenced by the Notes and the Guarantees will rank pari passu
in right of payment with all existing and future unsubordinated unsecured
indebtedness of the Company and the Guarantors, respectively, and senior in
right of payment to all existing and future subordinated indebtedness of the
Company and the Guarantors, respectively. After giving pro forma effect to the
Transactions (as defined), as of September 30, 1996, the Company would have had
(on an unconsolidated basis) $60.0 million of indebtedness (other than the
Notes) outstanding, all of which would have been subordinated indebtedness, and
the Guarantors, collectively, would have had $24.9 million of indebtedness
(other than the Guarantees) outstanding, all of which would have been
unsubordinated indebtedness ($7.2 million of which would have been secured by
the Company's satellite control facility) and no subordinated indebtedness. The
Guarantees will be effectively subordinated to such secured indebtedness to the
extent of the collateral therefor.
----------
SEE "RISK FACTORS" BEGINNING ON PAGE 15 FOR INFORMATION THAT SHOULD
BE CONSIDERED BY PROSPECTIVE INVESTORS.
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
----------
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UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC(1) COMMISSIONS(2) COMPANY(1)(3)
----------- ----------------- ---------------
<S> <C> <C> <C>
Per Senior Note Unit .................... % % %
Total for Senior Note Units ............. $ $ $
Per Senior Discount Note Unit ........... % % %
Total for Senior Discount Note Units ... $ $ $
Total ................................... $ $ $
</TABLE>
- ----------
(1) Plus accrued interest or accretion of original issue discount, if any, from
, 1997.
(2) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933. See
"Underwriters."
(3) Before deducting expenses payable by the Company estimated to be $ million.
The Units are offered, subject to prior sale, when, as and if accepted by the
Underwriters and subject to approval of certain legal matters by Shearman &
Sterling, counsel for the Underwriters. It is expected that delivery of the
Units will be made on or about , 1997 at the offices of Morgan Stanley & Co.
Incorporated, New York, New York, against payment therefor in immediately
available funds.
----------
MORGAN STANLEY & CO. MERRILL LYNCH & CO.
Incorporated
, 1997
<PAGE>
No dealer, salesperson or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made by this Prospectus and, if given or
made, such information or representations must not be relied upon as having been
authorized by the Company or any of the Underwriters. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under any circumstances,
create any implication that there has been no change in the affairs of the
Company since the dates as of which information is given in this Prospectus.
This Prospectus does not constitute an offer or solicitation by anyone in any
jurisdiction in which such offer or solicitation is not authorized or in which
the person making such offer or solicitation is not qualified to do so or to any
person to whom it is unlawful to make such solicitation.
TABLE OF CONTENTS
<TABLE>
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PAGE
------
<S> <C>
Prospectus Summary........................ 3
Risk Factors.............................. 15
The Company............................... 26
The Merger and the Exchange............... 27
Use of Proceeds........................... 28
Capitalization............................ 29
Pro Forma Condensed Consolidated
Financial Statements...................... 30
Selected Consolidated Financial and
Operational Data.......................... 37
Management's Discussion and Analysis of
Financial Condition and Results of
Operations................................ 39
Business.................................. 46
Management................................ 78
Certain Transactions...................... 89
Principal Stockholders.................... 91
Market Prices for Orion Common Stock and
Dividends Policy.......................... 95
Description of Units...................... 96
Description of Notes...................... 96
Description of Warrants................... 122
Book-Entry System; Settlement; Delivery
and Form.................................. 124
Certain United States Federal Income Tax
Consequences.............................. 126
Description of Certain Indebtedness ...... 134
Description of Capital Stock.............. 136
Shares Eligible for Future Sale........... 143
Underwriters.............................. 144
Forward looking Statements................ 145
Validity of the Notes..................... 145
Experts................................... 145
Additional Information.................... 147
Appraisal of Ascent Communications
Advisors L.P.............................. A-1
Index to Consolidated Financial
Statements................................ F-1
Glossary.................................. G-1
</TABLE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE UNITS OFFERED
HEREBY OR THE COMMON STOCK AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL
IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NASDAQ STOCK MARKET
OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
2
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information, pro forma financial information, and financial statements and notes
thereto appearing elsewhere in this Prospectus. As used herein, unless the
context otherwise requires, "Orion" or the "Company" refers to (1) the combined
operations of the registrant's predecessor, Orion Network Systems, Inc., a
Delaware corporation that is an existing public company ("Old ONSI"), prior to
the Merger and the Exchange (as defined and discussed below under the caption
"The Merger and the Exchange"), and (2) the issuer of the Units, a
recently-formed Delaware corporation ("New ONSI") that will be the parent
company of Old ONSI following the Merger and the Exchange and will be renamed
Orion Network Systems, Inc. promptly following the closing of this Offering, in
each case together with its subsidiaries. Statements contained in this
Prospectus regarding Orion's expectations with respect to Orion 2 and Orion 3,
related financing, future operations and other information, which can be
identified by the use of forward looking terminology, such as "may," "will,"
"expect," "anticipate," "estimate," or "continue" or the negative thereof or
other variations thereon or comparable terminology, are forward looking
statements. See "Risk Factors" for cautionary statements identifying important
factors with respect to such forward looking statements, including certain risks
and uncertainties, that could cause actual results to differ materially from
results referred to in forward looking statements. There can be no assurance
that Orion's expectations regarding any of these matters will be fulfilled. See
"Glossary" beginning at page G-1 for certain defined terms and certain technical
terms used in this Prospectus.
THE COMPANY
Orion is a rapidly growing provider of satellite-based communications
services, focused primarily on (i) private communications network services, (ii)
Internet services and (iii) video distribution and other satellite transmission
services. Orion provides multinational corporations with private communications
networks designed to carry high speed data, fax, video teleconferencing, voice
and other specialized services. The Orion satellite's ubiquitous coverage
reaches all locations within its footprint, enabling the delivery of high speed
data to customers in emerging markets and remote locations which lack the
necessary infrastructure to support these services. The Company also offers high
speed Internet access and transmission services to companies outside the United
States seeking to avoid "last mile" terrestrial connections and bypass congested
regional Internet network routes. In addition, Orion provides satellite capacity
for video distribution, satellite news gathering and other satellite services
primarily to broadcasters, news organizations and telecommunications service
providers. The Company provides its services directly to customer premises using
very small aperture terminals ("VSATs").
The Company commenced operations of Orion 1, a high power Ku-band satellite,
in January 1995. As of September 30, 1996, Orion serviced 167 customers through
304 points of service. The Company's customers include Amoco Poland Limited,
Amway Corporation, AT&T Corp., BBC, British Telecom, CNN, Citibank, N.A., Deere
& Co., Global One, GTECH Corporation, Hungarian Broadcasting, News International
Limited, RTL Television, Pepsi-Cola International, Sprint Communications, Viacom
International Inc., Westinghouse Communications, World Wide Television News and
Xerox Corporation, or certain of their subsidiaries. As of September 30, 1996,
Orion's contract backlog was $123 million (after pro forma adjustments for the
Exchange). Substantially all of Orion's current contracts with customers are
denominated in U.S. Dollars. For the three months ended September 1996, the
Company generated revenues of $12.2 million and EBITDA (as defined below) of
$1.7 million. For the first nine months of 1996, the Company generated revenues
of $30.0 million and EBITDA of $0.1 million.
The Company owns and operates the Orion 1 satellite, which provides coverage
of 34 European countries, much of the United States and parts of Canada, Mexico
and North Africa. Through arrangements with local ground operators, Orion
currently has the ability to deliver network ser-
3
<PAGE>
vices to and among points in 27 European countries, portions of the United
States and a limited number of Latin American countries. Orion 2, expected to be
launched in the second quarter of 1999, will increase significantly the
Company's pan-European capacity and provide coverage of Central and South
America. Orion 3, expected to be launched in the fourth quarter of 1998, will
cover broad areas of the Asia Pacific region including China, Japan, Korea,
India, Southeast Asia, Australia, New Zealand, Eastern Russia and Hawaii. In the
aggregate, the footprints of Orion 1, Orion 2 and Orion 3 will cover over 85% of
the world's population.
The Company believes that demand for satellite-based communications services
will continue to grow due to (i) the expansion of businesses beyond the limits
of wide bandwidth terrestrial infrastructure, (ii) accelerating demand for high
speed data services, (iii) growing demand for Internet and intranet services,
especially outside the U.S., (iv) increased size and scope of television
programming distribution, (v) worldwide deregulation of telecommunications
markets and (vi) continuing technological advancements. Satellites are able to
provide reliable, high bandwidth services anywhere in their coverage areas and
the Company believes that it is well positioned to satisfy market demand for
these services.
THE ORION STRATEGY
Orion's strategy is to maximize its revenues per satellite transponder
through the delivery of value-added services to end users. To quickly establish
a stable base of revenues, Orion sells transponder capacity to video
broadcasters and telecommunications service providers. However, Orion's
long-term strategic focus is on value-added private network services, which
include network design, VSAT installation, support and monitoring, in addition
to basic satellite capacity service. The implementation of Orion's strategy is
based on the following elements:
o Focus on Specialized Communications Needs of Multinational Organizations
o Bridge to Emerging Markets and Remote Locations
o End-to-End Service
o Global Coverage
o Early Market Entry
o Local Presence
o Ownership of Facilities
FOCUS ON SPECIALIZED COMMUNICATIONS NEEDS OF MULTINATIONAL ORGANIZATIONS
Orion targets the needs of multinational businesses and governmental
customers for customized private network communications services. Advantages of
the Company's satellite-based network services include: (i) transmission over
wide areas to multiple dispersed sites including sites in emerging markets; (ii)
interconnectivity among all sites; (iii) wide bandwidth and high data speeds;
(iv) transmission of data, fax, teleconferencing and voice over the same
network; (v) high transmission reliability, quality and security; (vi) Internet
access; and (vii) rapid implementation, both for the initial installation and
for later network modifications. Due to the flexibility of the network, Orion is
able to provide companies with customized solutions to link multiple locations.
BRIDGE TO EMERGING MARKETS AND REMOTE LOCATIONS
Orion targets customers doing business in emerging markets and remote
locations of developed markets which often lack the fiber optic and digital
infrastructure required for wide bandwidth, high speed data applications.
Terrestrial transmissions in many emerging markets must often pass through
local, poorly developed network segments before reaching the customer premises,
making it difficult to send and receive high speed data. In contrast, Orion's
satellite system completely avoids such "bottlenecks" in local network segments
by sending and receiving transmissions directly to and from customers, avoiding
the need to interconnect with the local infrastruc-
4
<PAGE>
ture. A significant portion of Orion's private communications network customers
transmit high-speed data to and from locations in Central and Eastern Europe.
Orion 2 and Orion 3 will extend coverage to the Commonwealth of Independent
States, Latin America and the Asia Pacific Region.
[Document Contains A Diagram Of An Orion Customer Network
Showing Direct Service To Customer Premises.]
END-TO-END SERVICE
Orion provides its services directly to and among customer locations using
satellite transmission and VSATs installed at customer premises. Offering
end-to-end services and bypassing terrestrial infrastructure allows Orion to
offer higher reliability and higher quality services than some terrestrial
facilities by bypassing multiple telecommunications service providers and local
networks and avoiding related toll charges. It also permits Orion to install
networks more quickly than many of its competitors, who must deal with multiple
vendors and multiple communications technologies. Orion offers its customers
one-stop shopping. This includes a single point of contact, an all-inclusive
contract and consistent quality of service throughout the network.
GLOBAL COVERAGE
Orion believes that providing global coverage is a competitive advantage in
marketing to multinational corporations. Orion 1 covers 34 European countries,
much of the U.S. and portions of Canada, Mexico and North Africa. Orion uses
capacity leased from other carriers to supplement its network coverage area
(such as to areas of Russia and Latin America). Orion estimates that when Orion
2 (with coverage of Europe, Russia, the eastern United States, Latin America,
North Africa and the Middle East) and Orion 3 (with coverage of the Asia Pacific
region) are deployed, the satellite footprints in the aggregate will cover an
area inhabited by over 85% of the world's population. This coverage will enable
Orion to offer its customers a single source for service offerings and a greater
measure of network quality control than terrestrial alternatives.
EARLY MARKET ENTRY
Orion develops an early market presence in targeted geographic areas prior to
satellite launch in order to build its customer base. To accomplish this, Orion
hires sales people, develops relationships with ground operators, and delivers
its services using leased satellite capacity. Orion employed this strategy prior
to the commercial operation of the Orion 1 satellite and is pursuing the same
approach with Orion 2 and Orion 3. For example, the Company is currently
providing service in Latin America and Russia over leased satellite capacity.
5
<PAGE>
LOCAL PRESENCE
Orion has arrangements with 30 local ground operators covering most countries
within the Orion 1 footprint, and is entering into additional arrangements as it
offers services in new areas. These ground operators are critical to providing
integrated service because they obtain necessary licenses, install and maintain
the customers' networks, provide in-country business experience and often
facilitate market entry.
OWNERSHIP OF FACILITIES
Orion believes it is strategically important to own its satellite facilities.
Orion believes that over the long-term ownership of satellite facilities
provides a cost advantage over resellers and other private service providers
that must lease satellite capacity to provide services to customers. The
Company's satellite ownership enables it to control the quality and reliability
of its network solutions, maintain the flexibility to rapidly add capacity, new
locations and new features to its customer networks, and respond quickly to
customer requests.
BACKGROUND
The Company was formed in 1982 to pursue authorization from the U.S. Federal
Communications Commission (the "FCC") to operate a transatlantic communications
satellite system. Orion and seven limited partners, British Aerospace, Com Dev,
Kingston Communications, Lockheed Martin CLS, Matra Hachette, Nissho Iwai and
STET, formed International Private Satellite Partners, L.P. ("Orion Atlantic")
in 1991 to own and operate Orion 1. The limited partners (including the Company)
invested $90 million in Orion Atlantic and provided credit support for the Orion
1 credit facility (the "Orion 1 Credit Facility"). Concurrently with the closing
of the Offering, the Company will acquire the remaining interests in Orion
Atlantic and Orion Atlantic will become a wholly-owned subsidiary of the
Company.
RECENT DEVELOPMENTS
EXCHANGE AGREEMENT AND RELATED TRANSACTIONS
Exchange Agreement. Orion has entered into an Exchange Agreement (the
"Exchange Agreement") with all of the existing limited partners in Orion
Atlantic (the "Limited Partners"). Orion Atlantic was formed as a limited
partnership to comply with then-applicable requirements of the FCC with regard
to foreign ownership and control. However, Orion believes the partnership
structure limited its access to the capital markets. Accordingly, under the
Exchange Agreement, Orion will become the owner of 100% of Orion Atlantic and
acquire approximately $37.5 million of obligations of Orion Atlantic to Limited
Partners in return for the issuance to the Limited Partners of redeemable
convertible preferred stock in Orion and the release of certain credit support
obligations of the Limited Partners (the "Exchange"). As a result of the
Exchange (and the OAP Acquisition described below), Orion will own 100% of its
significant subsidiaries and will have greatly simplified its corporate
structure. See "The Merger and The Exchange."
$60 million British Aerospace and Matra Marconi Space Investments.
Concurrently with the Offering, $50 million of junior subordinated convertible
debentures (the "Junior Subordinated Debentures") will be purchased by a
subsidiary of British Aerospace Public Limited Company (British Aerospace Public
Limited Company collectively with its affiliates, "British Aerospace"), who will
be the largest beneficial owner of Orion Common Stock as of the closing of the
Offering (the "British Aerospace Investment"). The Junior Subordinated
Debentures will mature in 2012, and will bear interest at a rate of 8.75% per
annum to be paid semi-annually in arrears solely in Orion Common Stock. The
Junior Subordinated Debentures will be subordinated to all other
6
<PAGE>
indebtedness of the Company, including the Notes. Also concurrently with the
Offering, Matra Marconi Space U.K. Limited ("Matra Marconi Space") will
re-invest in Orion $10 million of the $13 million of satellite incentive
payments it will receive (as the Orion 1 manufacturer) upon consummation of the
Offering. Such re-investment will be in Junior Subordinated Debentures (the
"Matra Marconi Investment," and together with the British Aerospace Investment,
the "Debenture Investments"). See "Description of Certain Indebtedness."
Acquisition of Minority Interest. Orion has acquired from British Aerospace
the only outstanding minority interest in Orion Asia Pacific (which has rights
to certain orbital slots) for approximately 86,000 shares of Orion Common Stock
(the "OAP Acquisition").
ORION 2 AND ORION 3 CONTRACTS
Orion 2 and Orion 3 Construction Contracts. Orion has entered into a
satellite procurement contract with Matra Marconi Space for Orion 2 (the "Orion
2 Satellite Contract"). Orion has entered into a satellite contract with Hughes
Space and Communications International, Inc. ("Hughes Space") for Orion 3 (the
"Orion 3 Satellite Contract"), and commenced construction of Orion 3 in
mid-December 1996. Orion expects to commence the construction of Orion 2
immediately following completion of this Offering.
Pre-Construction Lease on Orion 3. Orion has entered into a contract with
DACOM Corp., a Korean communications company ("DACOM"), under which DACOM will,
subject to certain conditions, lease eight dedicated transponders on Orion 3 for
13 years, in return for approximately $89 million, payable over a period from
December 1996 through seven months following the lease commencement date for the
transponders (which is scheduled to occur by January 1999). Payments are subject
to refund unless Orion 3 commences commercial operation by June 30, 1999.
THE OFFERING
The offering of Units made hereby (the "Offering") is conditioned on
consummation of the Merger (as defined below), the Exchange, repayment of the
Orion 1 Credit Facility with proceeds of the Offering and the Debenture
Investments; the Exchange is conditioned on, among other things, the approval of
the Orion stockholders, which will occur prior to the closing of the Offering.
The pro forma financial information included in this Prospectus gives effect to
the Offering and the transactions on which it is conditioned (collectively, the
"Transactions"), including the Merger and the Exchange, the Debenture
Investments, the OAP Acquisition, the application of the net proceeds of the
Offering to repay the Orion 1 Credit Facility and repayment of amounts owed to
STET, a former limited partner of Orion Atlantic, and the use of the proceeds of
the Debenture Investments to make a $1 million initial payment with respect to
construction of Orion 2. See "Pro Forma Condensed Consolidated Financial
Statements."
7
<PAGE>
THE OFFERING
THE UNITS
Securities Offered..................... Senior Note Units (the "Senior Note
Units"), each consisting of one
Senior Note and one Warrant, and
Senior Discount Note Units (the
"Senior Discount Note Units" and,
together with the Senior Note Units,
the "Units"), each consisting of one
Senior Discount Note and one Warrant.
See "Description of Units,"
"Description of Notes," "Description
of Warrants," and "Description of
Capital Stock."
Separability........................... The Notes and Warrants will become
separately transferable on the
earlier of (i) six months from the
date of issuance, (ii) such date as
the Underwriters may, in their
discretion, deem appropriate and
(iii) in the event of an Offer to
Purchase (as defined in "Description
of Notes -- Certain Definitions"),
the date the Company mails notice
thereof to holders of the Notes (the
"Separation Date").
Use of Proceeds....................... A substantial majority of the net
proceeds from the sale of the Units
will be applied to repay the Orion 1
Credit Facility, and the remainder
will be used to repay certain
indebtedness and other obligations of
the Company and for working capital
and other general corporate purposes.
See "Use of Proceeds."
THE NOTES
Notes Offered......................... $ principal amount of % Senior Notes
due 2007 and $ principal amount at
maturity ($ initial accreted value)
of % Senior Discount Notes due 2007.
Maturity.............................. , 2007.
Yield and Interest.................... % per annum in the case of the Senior
Notes, and % per annum in the case of
the Senior Discount Notes. The Senior
Discount Notes are being sold at a
substantial discount from their
principal amount at maturity, and
there will not be any payment of
interest on the Senior Discount Note
prior to , 2002. For a discussion of
the federal income tax treatment of
the Senior Discount Notes under the
original issue discount rules, see
"Certain United States Federal Income
Tax Consequences."
Interest Payment Dates................ Interest on the Senior Notes will be
payable semi-annually in cash on and
of each year, commencing , 1997. No
interest will be payable on the
Senior Discount Notes prior to ,
2002. From and after , 2002, the
Senior Discount Notes will pay
interest semi-annually in cash on and
of each year.
Guarantees............................ The Notes will have the benefit of
the Guarantees issued by each of the
Restricted Subsidiaries of the
Company.
Security.............................. The Senior Notes initially will be
secured by the Pledged Securities (as
defined below) until the Company
makes the first six scheduled
interest payments on the Senior Notes
and thereafter
8
<PAGE>
the Senior Notes will be unsecured.
The Senior Discount Notes will be
unsecured.
Pledged Securities.................... The Indenture relating to the Senior
Notes (the "Senior Notes Indenture")
will provide that on the closing date
of the Offering (the "Closing Date"),
the Company must purchase and pledge
to the Senior Notes trustee (the
"Trustee") for the benefit of the
holders of the Senior Notes, Pledged
Securities (consisting of U.S.
government obligations) in such
amount as will be sufficient, upon
receipt of scheduled interest and
principal payments of such
securities, to provide for payment in
full of the first six scheduled
interest payments due on the Senior
Notes. The Company expects to use
approximately $118.8 million of the
net proceeds of the Offering to
acquire the Pledged Securities;
however, the precise amount of
securities to be acquired will depend
upon the interest rate on the Senior
Notes and on market interest rates
prevailing on the Closing Date. A
failure by the Company to pay
interest on the Senior Notes in a
timely manner through the first six
scheduled interest payment dates will
constitute an immediate Event of
Default under the Senior Notes
Indenture, with no grace or cure
period. See "Description of Notes --
Security."
Optional Redemption................... The Notes will be redeemable, at the
Company's option, in whole or in
part, at any time on or after , 2002
at the redemption prices set forth
herein, plus accrued and unpaid
interest, if any, to the redemption
date. See "Description of Notes --
Optional Redemption."
Change of Control..................... In the event of a Change of Control
(as defined herein), the Company will
be obligated to make an offer to
purchase all outstanding Notes at a
purchase price equal to 101% of their
principal amount (in the case of the
Senior Notes) or 101% of their
Accreted Value (in the case of the
Senior Discount Notes), in each case
plus accrued and unpaid interest
thereon to the repurchase date. See
"Description of Notes -- Repurchase
of Notes Upon a Change of Control."
If a Change of Control occurs when
less than $50 million of the Notes
remain outstanding, the holders of
the Junior Subordinated Debentures
will have the right to sell such
securities to the Company. However,
the Indentures contain a covenant
which will effectively prohibit the
Company from honoring such right. See
"Description of Certain
Indebtedness."
Ranking............................... The indebtedness evidenced by the
Notes and the Guarantees will rank
pari passu in right of payment with
all existing and future
unsubordinated indebtedness of the
Company and the Guarantors,
respectively, and senior in right of
payment to all existing and future
subordinated indebtedness of the
Company and the Guarantors,
respectively. After giving pro forma
effect to the Transactions, as of
September 30, 1996, the Company would
have had (on an unconsolidated basis)
$60.0 million of indebtedness (other
than the Notes) outstanding, all of
which would have been subordinated
indebtedness, and the Guarantors,
collectively, would have had $24.9
million of indebtedness (other than
the Guarantees) outstanding, all of
which would have been senior
indebtedness ($7.2 million of which
9
<PAGE>
would have been secured by the
Company's satellite control facility)
and no subordinated indebtedness. The
Guarantees will be effectively
subordinated to such secured
indebtedness to the extent of the
collateral therefor.
Certain Covenants..................... The Senior Notes Indenture and the
Indenture relating to the Senior
Discount Notes (the "Senior Discount
Notes Indenture" and collectively,
the "Indentures") will contain
certain covenants which, among other
things, will restrict distributions
to stockholders of the Company, the
repurchase of equity interests in the
Company and the making of certain
other investments and restricted
payments, the incurrence of
additional indebtedness by the
Company and its restricted
subsidiaries, the creation of certain
liens, certain asset sales,
transactions with affiliates and
related parties, and mergers and
consolidations. See "Description of
Notes -- Covenants" and "Description
of Notes -- Consolidation, Merger and
Sale of Assets."
THE WARRANTS
Warrants Offered...................... Senior Note Warrants to purchase an
aggregate of shares of Common Stock
(the "Senior Note Warrant Shares"),
representing approximately % of the
fully diluted Common Stock (after
giving effect to the Transactions),
and Senior Discount Note Warrants to
purchase an aggregate of shares of
Common Stock (the "Senior Discount
Note Warrant Shares" and, together
with the Senior Note Warrant Shares,
the "Warrant Shares"), representing
approximately % of the fully diluted
Common Stock (after giving effect to
the Transactions). See "Description
of Warrants" and "Description of
Capital Stock."
Exercise.............................. Each Warrant shall entitle the holder
thereof to purchase shares of Common
Stock of Orion at an exercise price
of $ per share, subject to adjustment
in certain events as provided in the
warrant agreement relating to the
Warrants (the "Warrant Agreement").
The Warrants are not exercisable
prior to six months after the Closing
Date. The Warrants will expire on the
tenth anniversary of the Closing
Date. See "Description of Warrants."
Registration Rights................... The Company is required to use its
best efforts to maintain the
effectiveness of a registration
statement with respect to the
issuance of the Warrant Shares until
the earlier of the tenth anniversary
of the Closing Date and the date all
Warrants have been exercised. See
"Description of Warrants --
Registration Requirements."
RISK FACTORS
An investment in the Units is highly speculative and involves significant
risks that a prospective investor should consider carefully. See "Risk Factors."
10
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL AND OPERATIONAL DATA
The following table sets forth summary consolidated financial and operational
data of the Company as of and for the years ended December 31, 1994 and 1995 and
for the nine months ended September 30, 1995 and 1996. The data should be read
in conjunction with "Management's Discussion and Analysis of Financial Condition
and Results of Operations," the Pro Forma Condensed Consolidated Financial
Statements and the Consolidated Financial Statements of the Company and the
related notes included elsewhere in this Prospectus. The summary consolidated
financial data under the captions "Consolidated Statements of Operations Data"
for the years ended December 31, 1994 and 1995, with the exception of the Pro
Forma data, were derived from the audited consolidated financial statements of
the Company. The summary consolidated financial data as of September 30, 1996
and for the nine months ended September 30, 1995 and 1996 with the exception of
the Pro Forma data are derived from the Company's unaudited consolidated
financial statements. The Pro Forma data are not necessarily indicative of the
results that would have been achieved, nor are they indicative of the Company's
future results.
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED DECEMBER 31, ENDED SEPTEMBER 30,
----------------------------------- --------------------------------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
1995 PRO 1996 PRO
1994 1995 FORMA(1) 1995 1996 FORMA(1)
----------- ----------- ----------- ----------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C>
Consolidated Statements of
Operations Data:
Revenues............................. $ 3,415 $ 22,284 $ 22,284 $ 13,947 $ 30,016 $ 30,016
Interest expense..................... 61 24,738 82,888 17,080 20,229 64,808
Net loss(2).......................... (7,965) (26,915) (135,407) (19,985) (19,807) (92,550)
Net loss per common share............ $ (0.86) $ (3.07) $ (15.38) $ (2.42) $ (1.90) $ (8.00)
Shares used in calculating per share
data (3)............................. 9,272,166 9,103,505 9,379,137 8,522,067 10,943,287 12,427,052
Ratio of earnings to fixed
charges (4).......................... -- -- -- -- -- --
Other Operating Data:
Number of customers.................. 34 109 79 167
Capital expenditures................. $ 51,103 $ 9,060 $ 3,863 $ 10,266
Customer contract backlog (5) ....... $ 39,122 $ 120,612 $ 94,890 $ 134,320 $ 123,000
Points of service (6)................ 57 151 124 304
EBITDA (7)........................... $ (14,014) $ (15,427) $ (15,177) $ 134
</TABLE>
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30,
1996
-----------------------
ACTUAL PRO FORMA(1)
--------- -------------
<S> <C> <C>
Consolidated Balance Sheet Data:
Cash and cash equivalents............ $ 36,657 $142,214
Restricted and segregated cash(8) ... -- 297,000
Total assets......................... 355,977 816,292
Long-term debt (less current
portion)............................. 221,781 678,513
Limited Partners' interest in Orion
Atlantic(9).......................... 19,961 --
Redeemable preferred stock........... 20,539 111,539
Total stockholders' equity........... 6,891 967
Book value per share................. .63 .09
</TABLE>
(1) Adjusted to reflect the pro forma effects of the Transactions (see "Pro
Forma Condensed Consolidated Financial Statements"), assuming such events
occurred, in the case of Consolidated Statements of Operations Data, on
January 1, 1995 and, in the case of Consolidated Balance Sheet Data, on
September 30, 1996.
11
<PAGE>
(2) As required by generally accepted accounting principles ("GAAP"), net loss
is presented before accretion of preferred stock and preferred stock
dividends. For the years ended 1994, 1995, 1995 (pro forma) and the nine
months ended September 30, 1995, 1996 and 1996 (pro forma), accretion of
preferred stock and preferred stock dividends are $.6 million, $1.3 million,
$9.1 million, $1.0 million, $1.0 million and $6.9 million, respectively.
(3) Computed on the basis described for net loss per common share in Note 2 to
the Consolidated Financial Statements.
(4) For purposes of the ratio of earnings to fixed charges, earnings consist of
earnings from continuing operations, plus fixed charges, reduced by the
amount of unamortized interest capitalized. Fixed charges consist of
interest on all indebtedness (including commitment fees and amortization of
deferred financing costs) plus the portion of rent expense representing
interest (estimated to be one-third of such expense). For the years ended
December 31, 1994 and 1995, and the nine months ended September 30, 1995 and
1996, earnings were inadequate to cover fixed charges by $35.2 million,
$28.2 million, $21.3 million and $19.8 million, respectively. On a pro forma
basis assuming consummation of the Transactions, earnings would not have
been sufficient to cover fixed charges by $137.7 million and $95.8 million
for the year ended December 31, 1995 and the nine months ended September 30,
1996, respectively. A .5% increase in the assumed interest rates on the
Notes would result in pro forma deficiencies of earnings to cover fixed
charges of approximately $140.7 million for the year ended December 31, 1995
and $98.0 million for the nine months ended September 30, 1996.
(5) Backlog represents future revenues under contract. See "Risk Factors --
Uncertainties Relating to Backlog."
(6) Points of service includes installed VSATs and additional transmission
destinations (such as customer premises) that share a VSAT.
(7) "EBITDA" represents earnings before minority interests, interest income,
interest expense, other expense (income), income taxes, depreciation and
amortization. EBITDA is commonly used in the communications industry to
analyze companies on the basis of operating performance, leverage and
liquidity. EBITDA is not intended to represent cash flows for the period and
should not be considered as an alternative to cash flows from operating,
investing or financing activities as determined in accordance with GAAP.
EBITDA is not a measurement under GAAP and may not be comparable to other
similarly titled measures of other companies. Other expense (income)
includes gains on sale of equipment, less the write-off of costs relating to
an attempted financing (the "1995 Attempted Financing") of $3.4 million in
the fourth quarter of 1995.
(8) Restricted and segregated cash represents (i) the estimated $118.8 million
that will be placed in escrow on the Closing Date to pre-fund the payment of
the first six scheduled payments of interest on the Senior Notes and (ii)
$178.2 million that will be segregated by the Company and used only to
invest in certain high quality short term investments, to make payments for
additional satellites and certain related costs and to pay interest and
principal on the Notes. See "Description of Notes -- Covenants -- Funding
for Additional Satellites." The actual amount to be placed in escrow,
reflected as restricted cash and used for such interest payments will depend
on the market interest rates on government securities on the Closing Date.
(9) Represents amounts invested by Limited Partners (net of syndication costs
related to the investments), adjusted for such Limited Partners' share of
net losses. The interests of the Limited Partners will be acquired by the
Company in the Exchange.
12
<PAGE>
SUMMARY SATELLITE DATA
<TABLE>
<CAPTION>
ORION 1 ORION 2* ORION 3*
---------------------------- ------------------------------- ---------------------------
<S> <C> <C> <C>
Region Covered...................... Europe, Southeastern Eastern U.S., Southeastern China, Japan, Korea,
Canada, U.S. East of the Canada, Europe, India, Hawaii,
Rockies and parts of Commonwealth of Independent Southeast Asia,
Mexico States, Middle East, North Australia, New Zealand
Africa and Latin America and Eastern Russia
Expected Launch..................... Operational(1) Second Quarter 1999 Fourth Quarter of 1998
Satellite Manufacturer.............. MMS Space Systems Matra Marconi Space Hughes Space
(subsidiary of Matra
Marconi Space)
Transponders(2)..................... 34 30 43
Ku-Band(3).......................... 28@54 MHz 30@54 MHz 23@54 MHz
6@36 MHz 2@27 MHz
8@36 MHz(4)
C-Band(5)........................... -- -- 10@36 MHz
Usable Bandwidth(6)................. 1728 MHz 1620 MHz 1944 MHz
EIRP(7)............................. 47 to 52 dBW 47 to 50 dBW 44 to 52
for Ku-Band;
34 to 38
for C-band
Total Prime Power(8)................ 4500 Watts 7000 Watts 8000 Watts
Expected End of Useful Life(9) ..... 2005 2012 2013
Approximate Percentage of World
Population Covered by
Satellite(10)....................... 17.9% 27.0% 57.0%
</TABLE>
- ----------
* All information relating to Orion 2 and Orion 3 is based on currently
proposed satellite designs. Such designs are not finalized and, therefore,
particular features of Orion 2 and Orion 3 are subject to change, although
changes are not expected to have a material impact on the operating
specifications of the satellites.
(1) Orion 1 was launched on November 29, 1994 and commenced commercial
operations on January 20, 1995.
(2) Satellite transponders receive signals up from earth stations and then
convert, amplify and transmit the signals back down to other earth stations.
(3) Ku-band frequencies are higher than C-band frequencies and are used
worldwide for commercial satellite communications.
(4) Orion has entered into a contract with DACOM under which Orion will provide
eight dedicated transponders on Orion 3 for direct-to-home television
service and other satellite services, provided that Orion 3 is delivered in
orbit and fully operational by June 30, 1999.
(5) C-band frequencies minimize interference from atmospheric conditions such as
rain. C-band satellites share frequencies with terrestrial based microwave
systems and therefore require more on-ground coordination to avoid
interference problems and generally are lower power, requiring the use of
large earth stations to receive signals. A portion of Orion 3 is designed to
transmit over C-band frequencies since Orion 3 is to cover areas of Asia
where satellite signals experience significant interference from rain during
several months of the year.
(6) Bandwidth is a measure of the transponder resource which determines the
information carrying capacity. The actual information carrying capacity of a
transponder is determined by a combination of the transponder's bandwidth
and radio-frequency ("RF") power.
(7) Equivalent isotropic radiated power ("EIRP") is a measure of the RF power of
each transponder. Smaller and less expensive earth terminal antennas can be
used with higher EIRP transponders.
(8) Total prime power is the total amount of power that is required to support
all of the communications and electronics functions of the satellite.
(9) The expected end of a satellite's in-orbit useful life is based on the
period during which the satellite's on board fuel permits proper station
keeping maneuvers for the satellite. The information for Orion 1 is based on
fuel level estimates on February 5, 1996. The information for Orion 2 and
Orion 3 is based on their expected launch dates and their expected satellite
designs, internal studies, the Orion 2 Satellite Contract and the Orion 3
Satellite Contract.
(10)The approximate percentages of world population covered or to be covered by
the Orion satellites are not additive. In the aggregate, the footprints of
the Orion satellites would cover over 85% of the world's population.
13
<PAGE>
APPRAISAL
Ascent Communications Advisors, L.P. has delivered an appraisal to the
Company valuing Orion 1 at approximately $304 million as of December 1, 1996.
See "Business -- Appraisal."
14
<PAGE>
RISK FACTORS
In addition to the other information contained in this Prospectus, the
following factors should be considered carefully in evaluating an investment in
the Units, which involves a high degree of risk. Statements contained in this
Prospectus regarding Orion's expectations with respect to Orion 2 and Orion 3,
related financings, future operations and other information, which can be
identified by the use of forward looking terminology, such as "may," "will,"
"expect," "anticipate," "estimate," or "continue" or the negative thereof or
other variations thereon or comparable terminology, are forward looking
statements. See "Forward Looking Statements." The discussions set forth below
constitute cautionary statements identifying important factors with respect to
such forward looking statements, including certain risks and uncertainties, that
could cause actual results to differ materially from results referred to in
forward looking statements. There can be no assurance that Orion's expectations
regarding any of these matters will be fulfilled.
LIMITED OPERATIONS; HISTORY OF LOSSES AND NEGATIVE EBITDA; EXPECTATION OF
FUTURE LOSSES
From its inception in 1982 through January 20, 1995, when Orion 1 commenced
commercial operations, Orion was a development stage company. Accordingly, Orion
has limited experience operating its business. Orion has experienced net losses
in each fiscal year since its inception, including a net loss of approximately
$26.9 million and negative EBITDA of $15.4 million during 1995, and a net loss
of $19.8 million during the nine months ended September 30, 1996. On a pro forma
basis, giving effect to the Transactions, the Company would have had a net loss
of $135.4 million and $92.5 million for 1995 and the nine months ended September
30, 1996, respectively. The increase in net loss on a pro forma basis is
associated with the depreciation on the step up in the basis of the Orion 1
satellite and the amortization of excess cost over fair value resulting from the
acquisition of the Limited Partners' partnership interests in Orion Atlantic,
the net increase to interest expense as a result of the Transactions, and the
elimination of minority interest as a result of the Exchange. See Notes to Pro
Forma Condensed Consolidated Statements of Operations. The implementation of
Orion's business plan regarding Orion 2 and Orion 3 will require substantial
additional capital for the construction, launch, insurance, financing and
start-up costs of those satellites. A substantial portion of these costs may be
financed with indebtedness, which would substantially increase interest costs.
The Company's negative cash flow (after payments for capital expenditures and
interest) has been substantial and net losses and negative cash flows (after
payments for capital expenditures and interest) are expected to increase over
the next few years.
NEED FOR SUBSTANTIAL ADDITIONAL CAPITAL
The Company will need a substantial amount of capital over the next three
years (and possibly thereafter) to fund the costs of Orion 2 and Orion 3, the
purchase of VSATs and other capital expenditures and to make various other
payments, such as principal and interest payments with respect to the TT&C
Financing (as defined below), the Notes and any indebtedness incurred to finance
Orion 2 or Orion 3. The Company's cash flows will be inadequate to cover its
cash needs and the Company will seek financing from outside sources. Sources of
additional capital may include public or private debt or equity financings. The
Company is often involved in discussions or negotiations with respect to such
potential financings and, because of its substantial capital needs, may
consummate any such financings at any time. The Company has commenced
construction of Orion 3 and intends to commence construction of Orion 2
immediately after consummation of the Offering, despite the fact that it does
not have any commitment from any outside source to provide such financing. If
the Company is unable to obtain financing from outside sources in the amounts
and at the times needed, it could forfeit payments made on Orion 2 and Orion 3
and its rights to Orion 2 and Orion 3 under the Orion 2 Satellite Contract and
Orion 3 Satellite Contract. Such a forfeiture would have a material adverse
effect on the Company's ability to make payments on its indebtedness, including
the Notes, and on the value of the Warrants and Common Stock.
Expected payments prior to launch under the Orion 2 Satellite Contract and
Orion 3 Satellite Contract and for launch insurance for Orion 2 and Orion 3
aggregate approximately $500 million. Of this amount, $3 million was paid in the
fourth quarter of 1996, and Orion is required to make payments
15
<PAGE>
of approximately $98 million, $350 million and $50 million in 1997, 1998 and
1999, respectively. These amounts include the Company's estimate regarding the
cost of launch insurance (but not in-orbit insurance, which the Company
presently estimates will cost approximately $5 million to $6 million per annum
per satellite), which estimate is based upon industry figures but not upon
discussions with potential insurers or any commitment to provide insurance. The
Company's actual payments could be substantially higher due to any change orders
for the satellites, higher than expected insurance rates, delays and other
factors. In addition, the Company expects to expend approximately $22 million,
$30 million and $34 million on VSATs and other capital expenditures in 1997,
1998 and 1999, respectively. However, there can be no assurance that these
amounts will not be substantially higher. The Company believes the costs of
VSATs and other capital expenditures can be financed through capital leases or
other secured financing arrangements. However, the Company has not engaged in
material discussions with potential lenders and there can be no assurance that
such financing can be obtained. The Company also expects to incur an aggregate
of approximately $40 million of start-up losses and financing costs in
connection with Orion 2 and Orion 3.
Under the Orion 1 Satellite Contract, the contractor is entitled to receive
incentive payments based upon the performance of Orion 1 in orbit. These
incentive payments could reach an aggregate of approximately $44 million through
2007, if the transponders on Orion 1 continue to operate in accordance with
specification during that period. As of September 30, 1996 Orion had obligations
with a present value of approximately $21.7 million with respect to incentive
payments. Orion will pay $13 million in satellite incentives concurrently with
the closing of the Offering, of which $10 million will be re-invested in Orion
in the Matra Marconi Investment. Under the Orion 2 Satellite Contract, Orion is
obligated to pay $25,000 per day that the satellite is delivered prior to the
scheduled delivery date.
The foregoing estimates do not include any amounts for other possible
financing requirements. The Company may from time to time enter into joint
ventures and make acquisitions of complementary businesses and is often engaged
in discussions or negotiations with regard to such potential joint ventures and
acquisitions. Such joint ventures or acquisitions would need to be financed,
which would increase the Company's need for additional capital. In addition,
Orion intends to replace Orion 1 at the end of its useful life (expected to be
in October 2005). Such replacement likely will require additional financing if
the cash flow from Orion's operations is not sufficient to fund a replacement
satellite.
The Company's ability to raise public equity financing may be limited by the
registration rights it has granted to certain investors. See "-- Potential
Adverse Effect of Shares Eligible for Future Sale."
SUBSTANTIAL LEVERAGE; SECURED INDEBTEDNESS
As of September 30, 1996, after giving pro forma effect to the Transactions,
Orion would have had approximately $679 million of long-term indebtedness, and
will be highly leveraged. The accretion of original issue discount on the Senior
Discount Notes will substantially increase Orion's liabilities. The Company also
expects to incur substantial additional amounts of indebtedness. The Company
will deposit approximately $118.8 million in escrow to pre-fund the first six
scheduled payments of interest on the Senior Notes. However, the Company
ultimately will need to service the cash interest expense on a very substantial
amount of indebtedness (including the Notes) with cash generated by its
operations. For 1995 and the three and nine months ended September 30, 1996 the
Company had EBITDA of $(15.4) million, $1.7 million and $0.1 million and, on a
pro forma basis, giving effect to the Transactions, interest costs of $82.9
million and $64.8 million for 1995 and the nine months ended September 30, 1996,
respectively. Interest costs will increase substantially if, as expected, the
Company incurs additional indebtedness, as described above under the caption
"Need for Substantial Additional Capital." The Company does not have a revolving
credit facility or other source of readily available capital.
The Indentures will not limit the amount of secured indebtedness the Company
may incur to finance the acquisition of VSATs and other equipment. However, the
Indentures will prohibit the Company from using Orion 1, Orion 2 or Orion 3 as
collateral for indebtedness for money borrowed. In the event of a default on the
Notes or a bankruptcy, liquidation or reorganization of the Company, the
16
<PAGE>
assets pledged to secured indebtedness will be available to satisfy obligations
of the secured debt before such assets could be used to make any payment on the
Notes. Accordingly, there may only be a limited amount of assets available to
satisfy any claims of the holders of the Notes upon an acceleration of the
Notes. In addition, to the extent that the value of such collateral is
insufficient to satisfy such secured indebtedness, holders of such secured
indebtedness would be entitled to share pari passu with the Notes with respect
to any other assets of the Company. As of September 30, 1996 after giving pro
forma effect to the Transactions, the Company would have had $7.2 million of
secured indebtedness on a consolidated basis (secured by the Company's satellite
control facility).
The level of the Company's indebtedness could have important consequences to
holders of Units, Notes or Warrants including the following: (i) the ability of
the Company to obtain any necessary financing in the future for capital
expenditures, working capital, debt service requirements or other purposes may
be limited; (ii) a substantial portion of the Company's cash flow from
operations, if any, must be dedicated to the payment of principal of and
interest on its indebtedness and other obligations and will not be available for
use in the Company's business; (iii) the Company's level of indebtedness could
limit its flexibility in planning for, or reacting to changes in, its business;
(iv) the Company will be more highly leveraged than some of its competitors,
which may place it at a competitive disadvantage; and (v) the Company's high
degree of indebtedness will make it more vulnerable to a default and the
consequences thereof (such as bankruptcy workout) in the event of a downturn in
its business. See "Management's Discussion and Analysis of Financial Condition
and Results of Operations -- Liquidity and Capital Resources -- Current Funding
Requirements" and "Description of Certain Indebtedness."
RISKS OF SATELLITE LOSS OR REDUCED PERFORMANCE
Satellite Loss or Reduced Performance. Satellites are subject to significant
risks, including launch failure, damage that impairs commercial performance,
failure to achieve correct orbital placement during launch, loss of fuel that
reduces satellite life, and satellite in-orbit risks. Although Orion 1 has been
successfully launched and is in commercial operation, and although Orion
maintains satellite in-orbit insurance on Orion 1, any loss in orbit or reduced
performance of Orion 1 would have a material adverse effect on Orion. In
addition, no assurance can be given that the launch of Orion 2 or Orion 3 will
be successful. Although various sources of data permit differing conclusions,
Orion is aware of sources indicating that the historical loss rate for all
commercial geosynchronous satellite launches may be as high as 15%. Launch risks
vary based upon the launch vehicle used. The Delta III launcher to be used for
Orion 3 is new and has no significant launch history. Even though the Delta III
is based upon earlier Delta launch vehicles, the new technology used in Delta
III could affect its launch success rate. A Delta II launch vehicle exploded on
January 17, 1997.
Orion may have to change launch vehicles and could be subject to delays and
higher costs of launch insurance if, for example, one of its selected vehicles
experiences a launch failure with respect to another satellite. In such event,
delays in the launch of one of Orion's satellites could result from the
manufacturer's need to investigate the reasons for the failure of the launch
vehicle and address any design or manufacturing concerns that are identified. It
is not possible to predict the duration of any such potential delays. With
respect to the risk of launch failure of Orion's satellites, Orion has an option
to purchase an additional satellite (which may be used as a replacement
satellite) to be delivered in orbit, in the case of Orion 3, within 12, 15 or 19
months (at Orion's election) after it exercises the option, or, in the case of
Orion 2, within 21 1/4 months after it exercises the option. Therefore, an
unsuccessful launch of Orion 2 or Orion 3 would involve a delay in revenues for
at least one year, and perhaps substantially longer. Any loss or delay of
revenue from any of the Company's satellites would have a material adverse
effect on its ability to service its indebtedness, including the Notes, and the
value of the Warrants and the Common Stock.
In November 1995, one of Orion 1's components supporting nine transponders of
dedicated capacity serving the European portion of the Orion 1 footprint
experienced an anomaly that resulted in a temporary service interruption,
lasting approximately two hours. Full service to all affected customers was
restored using redundant equipment on the satellite. These transponders
currently generate a majority of Orion's revenues. Orion believes, based on the
data received to date by Orion from its own investigations and from the
manufacturer, and based upon advice from Orion's independent engineering
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consultant, Telesat Canada, that because the redundant component is functioning
fully in accordance with specifications and the performance record of similar
components is strong, the anomalous behavior is unlikely to affect the expected
performance of the satellite over its useful life. Furthermore, there has been
no further effect on Orion's ability to provide services to customers. However,
in the event that the currently operating component fails, Orion 1 would
experience a significant loss of usable capacity. In such event, while Orion
would be entitled to insurance proceeds of approximately $47 million and could
lease replacement capacity and function as a reseller with respect to such
capacity (at substantially reduced gross margins), the loss of capacity would
have a material adverse effect on the Company, on its ability to service its
indebtedness, including the Notes, and the value of the Warrants and Common
Stock. See "Business -- Implementation of the Orion Satellite System -- Orion
1."
At the time of Orion's 1 delivery from its manufacturer, one of the six 36
MHz transponders covering the United States was not performing in accordance
with contract specifications based on then-available data. To date, Orion has
not used such transponder to provide services under any commercial contract, and
there can be no assurance that such transponder will ever be used. Although
Orion settled the matter with the manufacturer for a one-time refund of
approximately $2.75 million and monthly payments of $7,000, there can be no
assurance that such payments adequately compensated Orion for the loss of such
transponder.
Limited Insurance for Satellite Launch and Operation. The in-orbit insurance
of Orion 1 and the launch and in-orbit insurance for Orion 2 and Orion 3 will
not protect the Company against business interruption, loss or delay of revenues
and similar losses and may not fully reimburse the Company for its expenditures.
In addition, such insurance includes or can be expected to include certain
contract terms, exclusions, deductibles and material change conditions that are
customary in the industry. Accordingly, an unsuccessful launch of Orion 2 or
Orion 3 or any significant loss of performance with respect to any of its
satellites would have a material adverse effect on Orion, its ability to make
payments on its indebtedness and the value of the Warrants and Common Stock.
Although Orion intends to procure insurance for the construction, launch and
insurance costs of Orion 2 and Orion 3, Orion has not obtained any commitment
from insurance underwriters to provide launch insurance for Orion 2 or Orion 3.
There can be no assurance that such insurance will be available or that the
price of such insurance or the terms and exclusions in the actual insurance
policy will be favorable to the Company. A failure of one of the launch vehicles
selected by Orion prior to the launch of Orion 2 or Orion 3 could substantially
increase the cost of launch insurance for Orion. See "Business -- Insurance."
Limited Life of Satellites. While Orion 1 is expected to have an orbital life
of approximately 10.7 years (through October 2005), and Orion 2 and Orion 3 are
expected to have orbital lives of approximately 13 years and 15 years,
respectively, there can be no assurance as to the actual longevity of the
satellites. A number of factors will affect the useful life of each satellite,
including the rate of fuel consumption in achieving correct orbital placement
during launch, the quality of its construction and the durability of its
component parts. There is a significant possibility that one or more
transponders on a satellite may cease to function in accordance with
specifications during its estimated useful life and there is no assurance that
service could be restored through redundant transponders. In addition, while
Orion plans to replace each satellite at the end of its useful life, there can
be no assurance that the required financing and regulatory approvals to do so
will be available.
LAUNCH OF ORION 2 AND ORION 3 SUBJECT TO SIGNIFICANT UNCERTAINTIES
Cost Uncertainties. Based on the current designs of and current construction
schedules for Orion 2 and Orion 3, the total costs of Orion 2 and Orion 3,
including construction, launch, launch insurance, financing costs and start-up
expenses, are presently estimated to be approximately $265 million and $275
million, respectively. These costs may increase as a result of changes that may
occur during the construction of the satellites or if the cost of insurance
exceeds the Company's expectations. See "Business -- Implementation of the
Orion Satellite System." There can be no assurance that the actual costs of
these satellites will not be materially greater than these estimates.
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Substantial Financing Requirements. Completion of Orion 2 and Orion 3 will
require substantial additional financing beyond the funds expected to be raised
in this Offering and the British Aerospace Investment. Failure to raise such
financing would have a material adverse effect on Orion, its ability to make
payments on its indebtedness, including the Notes, and the value of the Warrants
and the Common Stock, as discussed in more detail above under the caption "Need
for Substantial Additional Capital."
Timing Uncertainties. Orion presently plans to launch Orion 2 in the second
quarter of 1999 and plans to launch Orion 3 in the fourth quarter of 1998, based
upon the construction and launch schedules set forth in the satellite contracts.
To meet these schedules, Orion must raise the financing needed for payments to
the satellite manufacturers, receive certain regulatory approvals, finalize the
satellite designs and take other necessary steps. Failure to meet the
construction and launch schedules could increase the cost of Orion 2 or Orion 3,
requiring additional financing, as described above under the caption "Need for
Substantial Additional Capital." Although the Orion 2 Satellite Contract and the
Orion 3 Satellite Contract are fixed-price contracts with firm schedules for
construction, delivery and launch, there can be no assurance that increases in
costs due to change orders or delay will not occur. See "Business --
Implementation of the Orion Satellite System." There can be no assurance that
the launch of Orion 2 or Orion 3 will take place as scheduled. Delays in
launching satellites are quite common, and a significant delay in the delivery
or launch of Orion 2 or Orion 3 would have a material adverse effect on Orion's
marketing plan for such satellites, its ability to generate revenue and service
its indebtedness, including the Notes, and on the value of the Warrants and the
Common Stock.
Risks of Proceeding With Construction Prior to Obtaining all Regulatory
Approvals for Orion 2 and Orion 3. Orion has commenced construction of Orion 3
and will commence construction of Orion 2 prior to completion of the required
consultation with INTELSAT and EUTELSAT (as defined), receipt of final authority
from the FCC (in the case of Orion 2) and completion of the International
Telecommunication Union ("ITU") coordination process. Failure to obtain one more
necessary approvals in a timely manner would likely have a material adverse
effect on the Company. See "Approvals Needed; Regulation of Industry" below.
RISKS RELATING TO POTENTIAL LACK OF MARKET ACCEPTANCE AND DEMAND; GROUND
OPERATIONS
Orion's success will depend in part on the continued growth in demand for
international private network services, which to date have not been a primary
focus of satellite companies, and on Orion's ability to market such services
effectively. Marketing will be critical to Orion's success. However, Orion has
limited experience in marketing, having commenced full commercial operations
only in 1995. Orion's marketing program until recently consisted of direct sales
using a U.S.-based sales force, and indirect sales channels, including Limited
Partner sales representatives, for sales in Europe. During 1996, certain of
Orion's indirect sales channels in Europe did not meet expectations, and Orion
is seeking to supplement its sales in Europe by significantly increasing its
direct sales capabilities in Europe, particularly with respect to sales of
private network services. However, there can be no assurance that this effort
will be successful. Sales of Orion's services generally involve a long-term,
complex sales process, and new contract bookings will vary from quarter to
quarter. In addition, as an early provider of international network services
using VSATs, Orion is subject to the uncertainties associated with the
development of new services, including uncertainties regarding customer interest
in and acceptance of higher data speed communications, the need to develop and
convince customers of the attractiveness of new applications, and customer
acceptance of the ability of Orion (as a new market entrant) to provide service.
In addition, Orion's operations will continue to depend significantly on Orion's
ability to provide ground operations for private network services using ground
operators throughout the footprint of Orion's satellites. In the event that its
network of ground operators is not maintained and expanded or fails to perform
as expected, Orion's ability to offer private network services will be impaired.
See "Business -- Network Operations; Local Ground Operators."
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RISKS CONCERNING ABILITY TO MANAGE GROWTH
The Company's future performance will depend, in part, upon its ability to
manage its growth effectively, which will require it to continue to implement
and improve its marketing, operating, financial and accounting systems and to
expand, train and manage its employee base and manage its relationships with its
local ground operators. For example, Orion is in the process of seeking to
integrate a significant number of newly hired direct sales personnel, and
expects the process to continue as it seeks to increase its sales force during
1997. Furthermore, the Company may from time to time enter into joint ventures
and acquire complementary businesses and is often engaged in discussions or
negotiations with regard to such potential joint ventures and acquisitions. Such
joint ventures and acquired businesses would need to be integrated with the
Company, which would place an additional burden on the Company's internal
systems and its ability to manage its employees and its relationships with its
local ground operators. In addition, the Company's ability to attract new orders
is subject to substantial variations from quarter to quarter. If the Company
fails either to expand in accordance with its plans or to manage its growth
effectively there could be a material adverse effect on its business, growth,
financial condition and results of operations, its ability to service its
indebtedness, including the Notes, and the value of the Warrants and Common
Stock.
POTENTIAL ADVERSE EFFECTS OF COMPETITION
The international telecommunications industry is highly competitive. In
providing international telecommunications services, Orion competes with
established satellite and other transmission facilities providers, including
INTELSAT, EUTELSAT, PanAmSat and consortia of major telephone carriers operating
undersea fiber optic cables. In addition, Orion competes with certain
established telephone carriers, such as AT&T, MCI, Sprint, British Telecom,
Cable & Wireless, Deutsche Telekom, France Telecom and Kokusai Denshin Denwa, as
well as resellers of satellite capacity, such as companies similar to Impsat, in
providing private network communications services. Many of these competitors
have significant competitive advantages, including long-standing customer
relationships, close ties with regulatory authorities, control over connections
to local telephone lines and the ability to subsidize competitive services with
revenues from services they provide as a dominant or monopoly carrier, and are
substantially larger than Orion and have financial resources, experience,
marketing capabilities and name recognition that are substantially greater than
those of Orion. The Company believes that competition in emerging markets,
particularly with respect to private network services, will intensify as
dominant and monopoly long distance providers adapt to a competitive environment
and large carriers increase their presence in these markets. The Company also
believes that competition in more developed markets will intensify as large
carriers consolidate, enhance their international alliances and increase their
focus on private network services. For example, the recently announced merger
involving MCI and British Telecom may substantially increase the ability of the
resulting businesses to provide trans-Atlantic private network services. The
ability of Orion to compete with these organizations will depend in part on
Orion's ability to price its services at a significant discount to terrestrial
service providers, its level of customer support and service, and the technical
advantages of its systems.
The services provided by the Company have been subject to decreasing prices
over recent years and this pricing pressure is expected to continue (and may
accelerate) for the foreseeable future. Orion will need to increase its volume
of sales in order to compensate for such price reductions. Orion believes that
customers will increase the data speeds in their communications networks to
support new applications, and that such upgrading of customer networks will lead
to increased revenues that will mitigate the effect of price reductions.
However, there can be no assurance that this will occur. In addition, a large
portion of satellite capacity globally is currently used for video distribution.
As an increasing portion of satellite capacity is used for providing private
network services, prices for these services may decline. Compressed digital
video ("CDV"), which substantially increases transmission capacity per channel,
is beginning to be used for video distribution. As CDV becomes more prevalent,
the supply of effective video capacity could increase significantly, which could
result in lower prices.
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The Company is aware of a substantial number of new satellites that are in
construction or in the planning stages. Most of these satellites will cover
areas within the footprint of Orion 1 and/or the proposed footprints of Orion 2
and Orion 3. As these new satellites (other than replacement satellites not
significantly larger than the ones they replace) commence operations, they will
substantially increase the capacity available for the provision of services that
compete with the Company's services. After a satellite has been successfully
delivered in orbit, the variable cost of transmitting additional data via the
satellite is limited. Accordingly, absent a corresponding increase in demand,
this new capacity can be expected to result in significant additional price
reductions. Continued price reductions could have a material adverse effect on
Orion's ability to service its indebtedness, including the Notes, and on the
value of the Warrants and the Common Stock. See "Business -- Competition."
APPROVALS NEEDED; REGULATION OF INDUSTRY
Telecommunications Regulatory Policy. Orion is subject to the U.S.
Communications Act of 1934, as amended (the "Communications Act"), and
regulation by the FCC (and, to a limited extent, by the U.S. Department of
Commerce) and by the national and local governments of other countries. The FCC
regulates terms and conditions of communications services, including among other
things changes in control or assignment of licenses. The business prospects of
Orion could be adversely affected by the adoption of new laws, policies or
regulations, or changes in the interpretation or application of existing laws,
policies or regulations, that modify the present regulatory environment or
conditions of the licenses granted by the FCC to Orion.
Additional Regulatory Approvals Needed. The launch and operation of Orion 2
and Orion 3 will require a number of additional regulatory approvals, including
the following: (i) approvals of the FCC (in the case of Orion 2); (ii)
completion of successful consultations with INTELSAT and, in the case of Orion
2, with EUTELSAT; (iii) satellite "landing" rights in countries that are not
INTELSAT signatories or that require additional approvals to provide satellite
or VSAT services; and (iv) other regulatory approvals. Obtaining the necessary
licenses and approvals involves significant time and expense, and receipt of
such licenses and approvals cannot be assured. Although the FCC has
conditionally authorized the construction, launch and operation of Orion 2
(subject to completion of an INTELSAT consultation and required showing of
ability to finance the construction, launch and operation for one year of the
satellite, which requirements generally must be satisfied for final FCC
authorization of all FCC satellite licenses), and Orion will apply for certain
other approvals for Orion 2 and Orion 3, the FCC authorization for Orion 2 has
not become final (since Orion has not yet satisfied the conditions) and most of
the other requisite approvals have not yet been obtained. Failure to obtain such
approvals would have a material adverse effect on Orion and on its ability to
service its indebtedness, including the Notes, and the value of the Warrants and
Common Stock. In addition, Orion is required to obtain approvals from numerous
national and local authorities in the ordinary course of its business in
connection with most arrangements for the provision of services. Within Orion
1's footprint, such approvals generally have not been difficult for Orion to
obtain in a timely manner, but the failure to obtain particular approvals has
delayed, and in the future may delay, the provision of services by Orion. The
Orion 1 license from the FCC expires in January 2005. Although Orion has no
reason to believe that its licenses will not be renewed (or new licenses
obtained) at the expiration of the license term, there can be no assurance of
renewal. In addition, Orion will need to comply with the national laws of each
country in which it provides services. Laws with respect to satellite services
are currently unclear in certain jurisdictions, particularly within the Orion 3
footprint. In certain of these jurisdictions, satellite services may only be
provided via domestic satellites. The Company believes that certain of these
restrictions may change and that it can structure its operations to comply with
the remaining restrictions. However, there can be no assurance in this regard.
See "Business -- Regulation."
ITU Coordination Process. An international treaty to which the U.S. and the
Republic of the Marshall Islands (through which the Company has applied for the
Orion 3 orbital slot) are parties requires ITU coordination of satellite orbital
slots. Various non-U.S. governments or telecommunications authorities have
commenced coordination procedures pursuant to ITU regulations for proposed
satellites at orbital locations and in frequency bands that are in close
proximity to those proposed for
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Orion 2 and Orion 3. Existing satellites and any proposed satellites that are
launched prior to Orion 2 and Orion 3 will effectively have priority over
Orion's satellites. Orion's proposed use for Orion 2 and Orion 3 conflicts to
some extent with the use or proposed use of certain existing or proposed
satellites. While Orion believes that it can successfully coordinate the use of
the orbital locations and frequency bands proposed for Orion 2 and Orion 3,
there can be no assurance that coordination will be achieved. The Company has
commenced construction of Orion 3 and will commence construction of Orion 2
promptly following completion of the Offering, which will be prior to completion
of ITU coordination. There can be no assurance that ITU coordination will be
completed. In the event that successful coordination cannot be achieved, Orion
may have to modify the satellite design for Orion 2 or Orion 3 in order to
minimize the extent of any potential interference with other proposed satellites
using those orbital locations or frequency bands. Any such modifications could
increase the cost or delay the launch of the satellites (if significant changes
to the satellite are required) and may result in limitations on the use of one
or more transponders on Orion 2 or Orion 3, which could affect the amount of
revenue realized from such transponders. If interference occurs with satellites
that are in close proximity to Orion 2 or Orion 3, or with satellites that are
subsequently launched into locations in close proximity before completion of ITU
coordination procedures, such interference would have an adverse effect on the
proposed use of the satellites and on Orion's business and financial
performance. Orion cannot predict the extent of any adverse effect on Orion from
any such occurrences. See "Business -- Orbital Slots."
UNCERTAINTIES RELATING TO BACKLOG
The Company's current backlog consists of a mix of large and small contracts
for private communications networks and transmission capacity for video and
other satellite transmission services with a variety of customers. Although many
of the Company's customers, especially customers under large and long-term
contracts, are large corporations with substantial financial resources, other
contracts are with companies that may be subject to business or financial risks
affecting their credit worthiness. If customers are unable or unwilling to make
required payments, the Company may be required to reduce its backlog figures
(which would result in a reduction in future revenues of the Company), and such
reductions could be substantial. In the second quarter of 1996, the Company
determined that one large customer under a long-term contract (accounting for
backlog of approximately $19.9 million) was not likely to raise the financing to
commence its service in the near future, and accordingly the Company no longer
considers such contract part of its backlog. Also in the second quarter of 1996,
the Company removed from its backlog a contract with a customer (accounting for
backlog of approximately $4.5 million) which had ceased paying for the Company's
services. In the fourth quarter of 1996, the Company removed $10.4 million from
its backlog related to contracts under which customers failed to use the
contracted service or failed to make timely payment. Orion presently anticipates
that at least $86.4 million of its $123 million in backlog (as of September 30,
1996 after pro forma adjustments for the Exchange) will be realized after 1997.
The Company's contracts commence and terminate on fixed dates. If the Company is
delayed in commencing service or does not provide the required service under any
particular contract, as it has occasionally done in the past, it may not be able
to recognize all the revenue it initially includes in backlog under that
contract. In addition, the current backlog contains some contracts for the
useful life of Orion 1; if the useful life of Orion 1 is shorter than expected,
some portion of backlog may not be realized unless services satisfactory to the
customer can be provided over another satellite.
TECHNOLOGICAL CHANGES
Although Orion believes that Orion 1 does employ, and Orion 2 and Orion 3
will employ, advanced technologies, the telecommunications industry continues to
experience substantial technological changes. The Company believes that there
are numerous telecommunications companies that are seeking ways to improve the
data transmission capacity of the existing terrestrial infrastructure. Any
significant improvement of such capacity, particularly with respect to copper
wire, would have a material adverse effect on Orion. There can be no assurance
that other changes will not adversely affect the prospects or proposed
operations or expenses of Orion.
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RISKS OF CONDUCTING INTERNATIONAL BUSINESS
The Company's international service contracts are generally denominated in
U.S. dollars, but it is possible that the portion of contracts denominated in
non-U.S. currencies will increase over time. The vast majority of the Company's
costs (including interest and principal of the Notes, other indebtedness and the
costs for VSATs, Orion 2 and Orion 3) are denominated in U.S. dollars.
Accordingly, an increase in the value of U.S. dollars relative to other
currencies could have an adverse effect on the Company. International operations
are also subject to certain risks such as changes in domestic and foreign
government regulations and telecommunication standards, licensing requirements,
tariffs or taxes and other trade barriers and political and economic
instability.
DEPENDENCE OF ORION ON KEY PERSONNEL
Orion's business is dependent on its executive and other officers and other
key personnel. Orion presently does not have employment contracts with, or key
man life insurance covering, such key officers or other personnel. The loss of
key officers or personnel could have an adverse effect on Orion. See
"Management."
CONTROL OF ORION BY PRINCIPAL STOCKHOLDERS
Executive officers, directors and their affiliates are expected to own
beneficially approximately 8.0 million shares or approximately 40% of the Orion
voting stock that will be outstanding after the Transactions (12 million shares
or approximately 46% of the voting stock that will be outstanding after the
Transactions on a fully diluted basis), assuming the closing of the Transactions
as of January 30, 1997. As a result of their stock ownership and, in the case of
stockholders with representation on the Board of Directors, the incumbency of
directors affiliated with them, such stockholders are and will continue to be in
a position to elect the Board of Directors and thereby control the affairs and
management of Orion.
RISKS RELATING TO SENIOR PREFERRED STOCK
The Company has outstanding approximately $15.8 million (including accrued
dividends) of Orion Series A 8% Cumulative Redeemable Convertible Preferred
Stock (the "Series A Preferred Stock") and approximately $4.7 million (including
accrued dividends) of Orion Series B 8% Cumulative Redeemable Convertible
Preferred Stock (the "Series B Preferred Stock," and together with the Series A
Preferred Stock, the "Senior Preferred Stock"). Although Orion expects the
holders of the Senior Preferred Stock to agree not to exercise any such
mandatory redemption or repurchase rights while the Notes or the Junior
Subordinated Debentures are outstanding, such holders have the right to require
Orion to repurchase the shares of Common Stock received as a result of
conversion of the Senior Preferred Stock upon, among other things, certain
mergers, changes of control or sales of substantially all the assets of Orion at
the pro rata interest of the holders of such stock in the consideration received
or, in the case of certain fundamental changes, fair market value; and,
beginning in June 1999 such holders have the right to require Orion to
repurchase Senior Preferred Stock (and any Common Stock received upon the
conversion thereof) at the fair market value (in the case of Common Stock) or
liquidation value, including accrued and unpaid dividends (in the case of Senior
Preferred Stock). In addition, the documents relating to the Senior Preferred
Stock impose certain covenants on Orion, and failure to comply with those
covenants could have an adverse effect on Orion. See "Description of Capital
Stock -- Preferred Stock" and "Description of Notes -- Covenants -- Limitation
on Restricted Payments."
CONSEQUENCES OF ORIGINAL ISSUE DISCOUNT ON SENIOR DISCOUNT NOTES
The Senior Discount Notes will be issued at a substantial discount from their
principal amount. Consequently, purchasers of the Senior Discount Notes
generally will be required to include amounts in gross income for federal income
tax purposes in advance of receipt of the cash payments to which the income is
attributable and no cash payments of interest will be made until
, 2002.
Moreover, the Senior Discount Notes will constitute "applicable high yield
discount obligations" ("AHYDOs") if the yield to maturity of the Senior Discount
Notes exceeds the relevant applicable
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federal rate (the "AFR") at the time of issue by more than 5 percentage points.
If the Senior Discount Notes constitute AHYDOs then the Company will not be
entitled to deduct original issue discount ("OID") accruing with respect thereto
until such amounts are actually paid. In addition, if the yield to maturity of
the Senior Discount Notes exceeds the AFR by more than 6 percentage points, then
such excess (i) will not be deductible by the Company at any time and (ii) may
be eligible for the dividends received deduction available to corporate holders
in certain circumstances. See "Certain United States Federal Income Tax
Consequences" for a more detailed discussion of the federal income tax
consequences to purchasers of the Senior Discount Notes.
If a bankruptcy proceeding is commenced by or against the Company under the
United States Bankruptcy Code after the issuance of the Senior Discount Notes,
the claim of a holder of Senior Discount Notes with respect of the principal
amount thereof may be limited to an amount equal to the sum of (i) the initial
public offering price for the Senior Discount Notes and (ii) that portion of the
original issue discount that is not deemed to constitute "unmatured interest"
for purposes of the United States Bankruptcy Code. Any original issue discount
that was not amortized as of the commencement of any such bankruptcy proceeding
would constitute "unmatured interest."
NO PRIOR PUBLIC MARKET
There is no existing market for the Units, Notes or Warrants, and there can
be no assurance as to the liquidity of any market that may develop for the
Units, Notes or Warrants; the ability of holders of the Units, Notes or Warrants
to sell such securities, and the price at which such holders would be able to
sell such securities cannot be predicted. If such a market were to develop, such
securities could trade at prices that might be lower than the initial offering
price thereof depending upon many factors, including prevailing interest rates,
the Company's operating results and prospects and the market for similar
securities. The Underwriters have advised the Company that they currently intend
to make a market in the Units, Notes and Warrants; however, they are not
obligated to do so and any market making may be discontinued at any time without
notice. The Company does not intend to apply for listing for the Units, Notes or
Warrants on any securities exchange.
LIMITATIONS ON PAYING DIVIDENDS ON COMMON STOCK
Orion has never paid any cash dividends on its Common Stock and does not
anticipate paying cash dividends in the foreseeable future. Orion is not
permitted to pay dividends on the Common Stock as long as the Preferred Stock is
outstanding, subject to certain limited exceptions. The Indentures will
effectively prohibit the payment of cash dividends on the Common Stock for the
foreseeable future. See "Market Prices for Orion Common Stock and Dividend
Policy."
POTENTIAL ADVERSE EFFECT OF SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of the Transactions, there will be approximately 25.9 million
shares of Common Stock outstanding on a fully diluted basis, assuming a closing
of the Transactions as of January 30, 1997. Orion's current stockholders will
hold approximately 14.5 million of these shares, all of which will be freely
transferable without restriction or further registration under the Securities
Act, other than the 5.5 million shares held by "affiliates" of the Company, as
that term is defined under the Securities Act. The shares held by affiliates are
expected to be eligible for sale pursuant to Rule 144 under the Securities Act.
The Limited Partners, as owners of the Series C Preferred Stock, and British
Aerospace and Matra Marconi Space, as owners of the Junior Subordinated
Debentures, will own the remaining 11.4 million of such shares of Common Stock,
which will be issuable upon conversion of such securities. All of such remaining
shares will be deemed to be "restricted securities" as that term is defined in
Rule 144. However, the Limited Partners, British Aerospace and Matra Marconi
Space will be granted certain shelf, demand and "piggy-back" registration rights
with respect to the Common Stock issuable to them upon conversion, pursuant to
which (in the case of the Limited Partners) the Company will be required to
prepare and cause to be filed, as soon as practicable after 180 days following
consummation of the Merger, a "shelf" registration statement which will cover
the registration of certain Eligible Registrable Securities (as defined to
include approximately 25% of the Common Stock issuable to the Limited
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Partners upon conversion). The Company will also be required to file certain
additional shelf registration statements for the Limited Partners so that they
will be able to sell, each quarter, up to 25% of the Common Stock issuable to
them upon conversion, on a non-cumulative basis, and certain additional shelf
registration statements for the holders of the Junior Subordinated Debentures.
No predictions can be made as to the effect, if any, that sales of Common Stock
or the availability of additional shares of Common Stock for sale would have on
the market price of such securities. Nevertheless, the foregoing could adversely
affect the market prices of the Warrants and Common Stock and the ability of the
Company to raise equity financing. See "Shares Eligible for Future Sale."
ANTI-TAKEOVER AND OTHER PROVISIONS OF THE CERTIFICATE OF INCORPORATION
Orion's Certificate of Incorporation includes provisions that may discourage
or prevent certain types of transactions involving an actual or potential change
in control of Orion, including transactions in which the stockholders might
otherwise receive a premium for their shares over then current market prices. In
addition, the Board of Directors has the authority to fix the rights and
preferences of and issue shares of preferred stock, which may have the effect of
delaying or preventing a change in control of Orion without action by the
stockholders. The staggered terms of the Company's Board of Directors could also
discourage any potential acquirer. Orion's Certificate of Incorporation also
permits the redemption of Common Stock from stockholders where necessary to
protect Orion's regulatory licenses. See "Description of Capital Stock --
Certain Anti-takeover Effects." In addition, any change of control of Orion is
subject to the prior approval of the FCC. See "Business -- Regulation -- United
States Regulatory Restrictions -- Unauthorized Transfer of Control."
25
<PAGE>
THE COMPANY
The Company was incorporated in Delaware in 1982 to pursue authorization from
the FCC to operate a transatlantic satellite system and changed its name to
Orion Network Systems, Inc. in January 1988. Prior to the successful launch of
Orion 1 in November 1994, significant milestones included: (i) receipt of
initial conditional authorization from the FCC for Orion 1 in 1985, completion
of the consultation process relating to Orion 1 with INTELSAT in 1989 and
receipt of final authorization for Orion 1 from the FCC in 1991; (ii) the
formation of Orion Atlantic and commencement of construction of Orion 1 in 1991;
and (iii) the commencement of VSAT services, using leased capacity, in Eastern
Europe in 1992. In 1991, Orion and the Limited Partners (plus STET, a former
limited partner) formed Orion Atlantic to finance the construction, launch and
operation of two communications satellites. In 1991, the Limited Partners
invested, either directly or through subsidiaries, $90 million in Orion Atlantic
and entered into firm and contingent capacity leases over seven years to support
the Orion 1 Credit Facility. The combination of the equity contributions and the
Orion 1 Credit Facility fully financed Orion 1.
Orion principally operates through subsidiaries. Orion Atlantic, which Orion
controls and operates through its subsidiary Orion Satellite Corporation
("OrionSat"), a Delaware corporation and the sole general partner of Orion
Atlantic, owns and operates Orion 1 and will own and operate Orion 2. Orion
Atlantic Europe, Inc., a Delaware corporation, conducts certain operations of
Orion Atlantic in Europe. OrionNet, Inc., a Delaware corporation ("OrionNet"),
serves as a representative agent of Orion Atlantic for sales of network services
and ground operations in the United States, and OrionNet Finance Corporation, a
Delaware corporation, conducts certain limited VSAT financing activities for
OrionNet. Asia Pacific Space and Communications, Ltd. and Orion Asia Pacific
Corporation, Delaware corporations (collectively, "Orion Asia Pacific"), will
own and operate Orion 3. Upon consummation of the Transactions, including the
Exchange (discussed below), the Company will own, directly or indirectly, 100%
of each of the subsidiaries described above, each of which will be a Guarantor
with respect to the Notes. See "The Merger and the Exchange."
The Company's executive offices are located at 2440 Research Boulevard, Suite
400, Rockville, Maryland 20850, and its telephone number is (301) 258-8101.
26
<PAGE>
THE MERGER AND THE EXCHANGE
Concurrently with consummation of the Offering, the Company will consummate
the Merger and the Exchange. The purposes of the Merger and the Exchange are (i)
to consolidate outside investor ownership of the Company at the Orion level,
(ii) improve the speed and efficiency of the Company's decision making, (iii)
provide Orion with 100% ownership of all of its material subsidiaries, (iv)
allow Orion to pursue its business plans and financings for all of its
satellites, (v) eliminate approximately $37.5 million of obligations Orion
Atlantic owes to certain of the Limited Partners, and (vi) increase the
Company's overall market capitalization.
Under the Exchange Agreement, the Limited Partners have agreed to transfer
their limited partnership interests in Orion Atlantic and other rights relating
thereto to the Company in exchange (collectively, the "Exchange") for 123,172
shares of a newly created class of the Company's Series C 6% Cumulative
Convertible Redeemable Preferred Stock (the "Series C Preferred Stock"). Upon
consummation of the Exchange, the Company will own all of Orion Atlantic. In
addition, the Company will acquire certain rights held by certain of the Limited
Partners, including certain of the Limited Partners' rights to receive repayment
of various advances (aggregating approximately $37.5 million at September 30,
1996). The 123,172 shares of Series C Preferred Stock to be issued in the
Exchange will be convertible as of the issuance date into approximately 7
million shares of the Company's Common Stock. As a result of the Exchange,
certain of the Limited Partners will be principal stockholders of the Company.
See "Description of Capital Stock" and "Principal Stockholders" for a
description of the Series C Preferred Stock and security ownership of Orion
following the Exchange.
Simultaneously with the Exchange, under an Agreement and Plan of Merger, Old
ONSI will merge (the "Merger") with a wholly owned subsidiary ("Merger Sub") of
a newly formed Delaware corporation, New ONSI, which will have corporate
governance documents, management structure, and other features substantially
similar to those of the Company. New ONSI will be the issuer of the Units, Notes
and Warrants offered hereby. Old ONSI will be the surviving corporation in the
Merger and will thereby become a wholly owned subsidiary of New ONSI, and the
holders of preferred and common stock of Old ONSI will receive substantially
identical preferred and common stock of New ONSI in exchange for such stock. New
ONSI will be re-named Orion Network Systems, Inc. concurrently with the
effectiveness of the Merger. New ONSI's stockholders will have substantially the
same securities and rights as before the Merger, although their ownership of New
ONSI will be diluted by the Exchange.
The closing of the Offering is conditioned upon the prior or concurrent
closing of the Merger and the Exchange. Occurrence of the Merger and the
Exchange are subject, among other things, to the satisfaction or waiver by the
Company and the Limited Partners of the following conditions: (a) completion of
a refinancing of the indebtedness of Orion Atlantic outstanding under the Orion
1 Credit Facility among Orion Atlantic, the Banks named therein (the "Banks")
and Chase Manhattan Bank (National Association), as Agent ("Chase") with the
proceeds of the Offering, (b) the termination of all agreements between or among
the Banks and Chase, on the one hand, and one or more of Orion, Orion Atlantic,
OrionSat, Orion and the Limited Partners and/or their affiliates on the other
hand, relating to the Orion 1 Credit Facility or the security or credit support
thereof, (c) the release of the Limited Partners' (and their affiliates)
existing commitments under their firm and contingent capacity leases and various
guarantees or other commitments supporting the Orion 1 Credit Facility, (d) the
ratification or approval and adoption by Orion stockholders of the Merger and
the Exchange, and (e) the issuance of $60 million of Orion junior subordinated
convertible debentures in the Debenture Investments.
27
<PAGE>
USE OF PROCEEDS
The net proceeds of the Offering to the Company are estimated to be
approximately $577 million. Other than the $118.8 million to be placed in escrow
to pre-fund the first six interest payments on the Senior Notes, the net
proceeds will be used to repay the Orion 1 Credit Facility (including
approximately $8 million of accrued interest and $7 million of interest rate
hedge breakage costs related to the Orion 1 Credit Facility), to pay accrued
satellite incentive fees, to pay amounts owing to STET, a former limited partner
of Orion Atlantic, and for working capital and other general corporate purposes,
including $178.2 million that will be segregated by the Company and used only to
invest in certain high quality short term investments, to make payments for
additional satellites and certain related costs and to pay interest and
principal on the Notes. See "Certain Transactions" and "Description of Notes --
Covenants -- Funding for Additional Satellites." The outstanding principal
amount under the Orion 1 Credit Facility at September 30, 1996 was $207.7
million, which bears interest at 1.75% over LIBOR. The loan under the Orion 1
Credit Facility is repayable over seven years in graduated semi-annual
installments ranging from the $11.9 million installment paid in July 1996 to the
$22.9 million semi-annual installments due in 2001 (and thereafter).
Set forth below are the sources and uses of funds in the Transactions, based
on a Closing Date of January 31, 1997. The amounts are approximate with respect
to the Orion 1 Credit Facility and STET Note, and will vary depending on the
date of repayment.
Sources Uses
(in millions)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Senior Note Units.................... $381 Credit Facility Repayment............ $223(1)
Senior Discount Note Units........... 219 Initial Payments for Orion 2 (2) .... 25
BAe Investment....................... 50 Interest escrow...................... 119
Matra Investment..................... 10 STET Note Repayment.................. 4
Orion 1 Incentive Payments........... 13
Transaction fees .................... 23
Working capital, general corporate
purposes and segregated cash ....... 253(3)
---------- ----------
Total ............................... $660 Total............................... $660
========== ==========
</TABLE>
- ----------
(1) The Limited Partners will make guarantee payments on January 30, 1997 to the
Banks under their capacity leases that support the Orion 1 Credit Facility.
As a result, the $223 million will be used first to repay the Banks and the
remainder will be used to repay the Limited Partners the amounts paid to the
Banks on January 30, 1997.
(2) Initial payments (of $15 million, through May 1997) for Orion 3 are expected
to be made from segregated cash or cash on hand.
(3) Most of the $75 million of working capital (excluding the $178 million of
segregated cash as described above), plus cash on hand and cash flow from
operations, will be used to make payments on Orion 2 and Orion 3 and for
VSATs and other capital expenditures. The Company does not have a revolving
credit facility or other source of readily available capital.
28
<PAGE>
CAPITALIZATION
The following table sets forth as of September 30, 1996 (1) the
capitalization of the Company and (2) the pro forma capitalization of the
Company adjusted to give effect to the Transactions (assuming such events
occurred on September 30, 1996). See "Pro Forma Condensed Consolidated Financial
Statements," "Management's Discussion and Analysis of Financial Condition and
Results of Operations," and the Consolidated Financial Statements and Notes
thereto.
<TABLE>
<CAPTION>
SEPTEMBER 30, 1996
-------------------------
ACTUAL PRO FORMA
---------- --------------
(IN THOUSANDS, EXCEPT SHARES)
<S> <C> <C>
Long term debt(1):
Orion 1 Credit Facility.................................................. $207,715 $ --
Senior Notes offered hereby.............................................. -- 381,300 (2)
Senior Discount Notes offered hereby..................................... -- 218,700 (2)
Other long-term debt..................................................... 47,940 24,890
---------- --------------
Total long-term debt..................................................... 255,655 624,890
Junior Subordinated Convertible Debentures................................ -- 60,000
Other long term liabilities............................................... 32,931 1,935
Limited Partners' interest in Orion Atlantic(3)........................... 19,961 --
Redeemable preferred stock:
Series A 8% Cumulative Redeemable Convertible Preferred Stock $.01 par
value, 15,000 shares authorized; 13,871 shares issued and outstanding,
plus accrued dividends.................................................. 15,820 15,820
Series B 8% Cumulative Redeemable Convertible Preferred Stock, $.01 par
value, 5,000 shares authorized; 4,298 shares issued and outstanding,
plus accrued dividends................................................... 4,719 4,719
Series C 6% Cumulative Redeemable Convertible Preferred Stock, $.01 par
value, 150,000 shares authorized; 123,172 pro forma shares issued and
outstanding, net of issuance costs of $3 million........................ -- 91,000
Stockholders' equity:
Common stock, $.01 par value, 40,000,000 shares authorized; 11,232,533
shares issued, 10,973,018 shares outstanding; and 259,515 held as treasury
shares (held at no cost); 11,058,732 shares outstanding pro forma(4).... 112 113
Capital in excess of par value........................................... 86,509 87,708 (2)
Accumulated deficit...................................................... (79,730) (86,854)
---------- --------------
Total stockholders' equity............................................... 6,891 967
---------- --------------
Total capitalization.................................................... $335,977 $ 799,331
========== ==============
</TABLE>
- ----------
(1) Includes current portion of long-term debt of $33.9 million (actual) and
$6.4 million (pro forma). As of January 30, 1997, the aggregate principal,
interest outstanding and interest rate swap breakage costs under the Orion 1
Facility is estimated to be approximately $223 million.
(2) Of the $600 million gross proceeds from issuance of the Units offered
hereby, $ million has been allocated to the Senior Notes, $ million has been
allocated to the Senior Discount Notes and $ million has been allocated to
capital in excess of par to reflect the issuance of the Warrants. No
assurance can be given that the value allocated to the Warrants is
indicative of the price at which the Warrants may actually trade.
(3) Represents amounts invested by Limited Partners other than the Company (net
of syndication costs related to the investments), adjusted for those Limited
Partners' share of net losses.
(4) Excludes 1,486,364 shares issuable upon exercise of options and warrants
outstanding as of September 30, 1996, at an average exercise price of $9.55
per share, 1,631,882 shares issuable upon conversion of outstanding Series A
Preferred Stock, 421,373 shares issuable upon conversion of outstanding
Series B Preferred Stock, 7,038,398 shares issuable upon conversion of
Series C Preferred Stock issued concurrently with this Offering as part of
the Exchange, shares of Common Stock issuable upon exercise of the Warrants,
and 4,285,714 shares issuable upon conversion of the $60 million Debenture
Investments.
29
<PAGE>
PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
As discussed more fully under the caption "The Merger and the Exchange,"
pursuant to the Merger, each share of Old ONSI common stock, Series A Preferred
Stock and Series B Preferred Stock will be converted into the right to receive
one share of Orion Common Stock, Orion Series A Preferred Stock and Orion Series
B Preferred Stock, respectively. In addition, pursuant to the Exchange, New ONSI
will issue shares of Series C Preferred Stock for the Limited Partners' limited
partnership interests in Orion Atlantic, a consolidated subsidiary of Orion, as
a result of which, among other things, Orion will become the owner of all the
partnership interests in Orion Atlantic. Orion will also acquire approximately
$37.5 million of Orion Atlantic's obligations to the Limited Partners.
The Merger will be accounted for as a reorganization of entities under common
control. As a result, the assets and liabilities transferred pursuant to the
Merger will be accounted for at historical cost in a manner similar to a pooling
of interests. The Exchange will be accounted for as an acquisition of minority
interests using purchase accounting. As a result, the assets and liabilities of
Orion Atlantic will be revalued to fair value to the extent of the Limited
Partners' interests acquired as a result of the Exchange. The determination of
the fair value of the Series C Preferred Stock has been based on a fairness
opinion issued by a major investment banking firm dated December 10, 1996. Such
value has been allocated to Orion Atlantic's assets and liabilities based on the
estimate of the fair market value of the Orion 1 satellite as of December 1,
1996 of $304 million provided in an appraisal dated December 20, 1996 from
Ascent Communications Advisors, L.P., and management's estimate of fair value
for other assets and liabilities of Orion Atlantic.
In addition to the Merger, the Exchange and the Debenture Investments, the
pro forma condensed consolidated balance sheet at September 30, 1996 gives
effect to the following transactions, which are, directly or indirectly,
conditions precedent to the Merger, the Exchange and the Debenture Investments
as described above, as if they took place on that date: (i) the Offering
(including the use of the net proceeds therefrom to repay indebtedness under the
Orion 1 Credit Facility and to prefund the first six scheduled interest payments
and to pay interest rate hedge breakage costs associated with the Orion 1 Credit
Facility), (ii) the British Aerospace Investment, with gross proceeds of $50
million (and the application of $1 million of the proceeds thereof to make
initial payments under the Orion 2 Satelite Contract), (iii) the satisfaction of
$13 million owed to Matra Marconi Space through the Matra Marconi Space
Investment of $10 million and $3 million of cash, (iv) the acquisition by Orion
of British Aerospace's 17% ownership of Orion Asia Pacific for approximately
86,000 shares of Common Stock (v) payments of approximately $3.9 million
including accrued interest, owed to STET, a former limited partner and (vi) the
write-off of deferred financing fees (such transactions collectively with the
Merger and the Exchange, the "Transactions"). The pro forma condensed
consolidated statements of operations for the year ended December 31, 1995 and
the nine months ended September 30, 1996 have been prepared as if the
Transactions took place on January 1, 1995. The unaudited pro forma condensed
consolidated financial statements do not purport to present the actual financial
position or results of operations of the Company had the Transactions in fact
occurred on the dates specified, nor are they indicative of the results of
operations that may be achieved in the future. The unaudited pro forma condensed
consolidated financial statements are based on the assumptions and adjustments
further described herein.
30
<PAGE>
ORION NETWORK SYSTEMS
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 1996
(UNAUDITED)
<TABLE>
<CAPTION>
ACTUAL DEBIT CREDIT PRO FORMA
-------------- ---------------- ---------------- --------------
<S> <C> <C> <C> <C>
Current assets:
Cash and cash equivalents........... $ 36,656,619 $283,000,000 (1) $ 3,000,000 (1) $142,213,532
48,750,000 (3) 216,280,254 (2)
3,050,000 (4)
3,862,833 (5)
Accounts receivable................. 5,808,568 5,808,568
Accrued interest.................... 157,125 157,125
Prepaid expenses and other.......... 5,584,196 5,584,196
-------------- ---------------- ---------------- --------------
Total current assets................ 48,206,508 331,750,000 226,193,087 153,763,421
Property and equipment:
Land................................ 73,911 73,911
Telecommunications.................. 22,707,786 22,707,786
Furniture and computer.............. 4,598,505 4,598,505
Satellite and related............... 322,450,415 1,000,000 (3) 27,751,744 (6) 323,466,583
27,767,912 (6)
-------------- ---------------- ---------------- --------------
349,830,617 28,767,912 27,751,744 350,846,785
Less accumulated depreciation ...... (57,914,578) 27,751,744 (6) (30,162,834)
-------------- ---------------- ---------------- --------------
Net property and equipment.......... 291,916,039 56,519,656 27,751,744 320,683,951
Deferred financing costs............ 11,208,678 20,000,000 (1) 11,208,678 (2) 20,300,000
250,000 (3)
50,000 (4)
Restricted and segregated cash .... 297,000,000 (1) 297,000,000
Other assets........................ 4,645,948 1,200,000 (3) 24,544,477
18,698,529 (6)
-------------- ---------------- ---------------- --------------
Total assets........................ $355,977,173 $725,468,185 $265,153,509 $816,291,849
============== ================ ================ ==============
Current liabilities:
Accounts payable.................... $ 4,094,026 $ 4,094,026
Accrued liabilities................. 7,374,884 7,374,884
Other current liabilities........... 5,402,117 5,402,117
Interest payable.................... 3,128,365 $ 3,038,858 (2,5) 89,507
Current portion of long term debt .. 33,873,930 27,496,124 (2) 6,377,806
-------------- ---------------- ---------------- --------------
Total current liabilities........... 53,873,322 30,534,982 23,338,340
Long term debt...................... 221,781,393 180,218,718 (2) $600,000,000 (1) 678,512,675
13,000,000 (4) 10,000,000 (4)
3,500,000 (5) 50,000,000 (3)
6,550,000 (6)
Other liabilities................... 32,878,061 30,995,875 (6) 1,882,186
Minority interest Orion Atlantic ... 19,961,032 9,974,466 (2) --
9,986,566 (6)
Minority interests in other
entities............................ 52,984 52,984
Redeemable preferred stock:
Series A........................... 15,820,460 15,820,460
Series B........................... 4,718,526 4,718,526
Series C........................... 91,000,000 (6) 91,000,000
Stockholders' equity:
Common stock........................ 112,325 857 (3) 113,182
Capital in excess of par............ 86,508,773 1,199,143 (3) 87,707,916
Accumulated deficit................. (79,729,703) 7,124,717 (2) (86,854,420)
-------------- ---------------- ---------------- --------------
Total stockholders' equity.......... 6,891,395 7,124,717 1,200,000 966,678
-------------- ---------------- ---------------- --------------
Total liabilities and equity ....... $355,977,173 $291,885,324 $752,200,000 $816,291,849
============== ================ ================ ==============
</TABLE>
31
<PAGE>
ORION NETWORK SYSTEMS, INC.
NOTES TO PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 1996
(UNAUDITED)
1. To reflect the estimated proceeds from the Offering of $577 million, net of
estimated financing costs of approximately $20 million and costs associated
with the issuance of the Series C Preferred Stock of $3 million. Of the $600
million of gross proceeds from the Offering, $ million has been allocated to
the Senior Notes, $ million to the Senior Discount Notes and $ million to
capital in excess of par value to reflect the issuance of the Warrants based
on the estimated relative fair values of the Senior Notes, the Senior
Discount Notes and the Warrants. The Senior Notes and Senior Discount Notes
are assumed to bear interest at 11.875% and 13.125% per annum, respectively,
and are due in 2007. No assurance can be given that the value allocated to
the Warrants is indicative of the price at which the Warrants may actually
trade. Of the proceeds from the Offering, approximately $118.8 million will
be placed in an escrow account to fund the first six scheduled interest
payments on the Senior Notes and $178.2 million will be segregated by the
Company and used only to invest in certain high quality short term
investments to make payments for additional satellites and certain related
costs and to pay interest and principal on the Notes. See "Description of
Notes -- Covenants -- Funding for Additional Satellites." Such amounts,
aggregating $297 million have been reflected as restricted and segregated
cash. The actual amount placed in escrow will depend on the market interest
rates on government securities on the Closing Date.
2. To reflect the repayment of $207.7 million plus accrued interest of $2.7
million (as of September 30, 1996) under the Orion 1 Credit Facility, the
write-off of unamortized deferred financing costs of $11.2 million and
interest rate hedge breakage costs of $5.9 million, and the pro rata
allocation of such costs to the minority interests of Orion Atlantic. At
January 30, 1997, the aggregate principal, interest outstanding and interest
rate swap breakage costs under the Orion 1 Credit Facility is estimated to
be approximately $222 million.
3. To reflect (i) the estimated proceeds from the British Aerospace Investment
of $49.8 million, net of estimated financing costs of $.2 million, (ii) the
initial down payment of $1 million to Matra Marconi Space to begin
construction of Orion 2 and (iii) the acquisition by Orion of British
Aerospace's 17% common stock interest in Orion Asia Pacific, a consolidated
subsidiary (for approximately $1.2 million in Common Stock), which will be
completed in connection with the Transactions.
4. To record the payment of accrued satellite incentive obligations to Matra
Hachette of $13 million, Matra Marconi Space's corresponding reinvestment of
$10 million in Junior Subordinated Debentures, and financing costs of
$50,000.
5. To reflect the repayment of $3.5 million of promissory notes and $0.4
million of accrued interest (as of September 30, 1996) thereon to STET, a
former limited partner, required to be paid as a result of the Exchange. See
"Certain Transactions."
6. To reflect the effects of the Exchange Agreement, including the acquisition
by Orion of certain obligations to the Limited Partners aggregating
approximately $37.5 million through the exchange of the Limited Partners'
partnership interests in Orion Atlantic for Series C Preferred Stock of
Orion. The Series C Preferred Stock has been valued at approximately $94
million based on a fairness opinion prepared by a major investment banking
firm dated December 10, 1996 using an underlying Common Stock price of $12
per common share less $3 million in estimated issuance costs. Such amount
has been allocated to the obligations acquired and the 58.7% interest of
Orion Atlantic previously held by the exchanging Limited Partners. Such
allocation results in a step up in basis of approximately $46.5 million, of
which $27.8 million has been allocated to the Orion 1 satellite based on an
appraisal prepared by Ascent Communications Advisors, L.P. estimating the
fair value of the Orion 1 satellite to be $304 million. The remaining step
up of $18.7 has been allocated to costs in excess of fair value of net
assets acquired and is included in Other Assets in the accompanying Pro
Forma Condensed Consolidated Balance Sheet. Accumulated depreciation of
$27.8 million relating to the portion of the satellite revalued to fair
value has been offset against the basis of the satellite.
32
<PAGE>
ORION NETWORK SYSTEMS, INC.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1996
(UNAUDITED)
<TABLE>
<CAPTION>
ACTUAL DEBIT CREDIT PRO FORMA
--------------- ---------------- --------- ----------------
<S> <C> <C> <C> <C>
Revenues.................................... $ 30,015,517 $ 30,015,517
Operating expenses:
Direct...................................... 4,285,834 4,285,834
Sales and marketing......................... 7,792,666 7,792,666
Engineering and technical services.......... 6,333,525 6,333,525
General and administrative.................. 11,469,235 11,469,235
Depreciation and amortization............... 26,402,947 $ 3,362,919 (1) 29,765,866
--------------- ---------------- --------- ----------------
Total....................................... 56,284,207 3,362,919 59,647,126
--------------- ---------------- --------- ----------------
Loss from operations........................ (26,268,690) 3,362,919 (29,631,609)
Other expense (income):
Interest income............................. (1,841,868) (1,841,868)
Interest expense............................ 20,228,519 44,579,839 (2) 64,808,358
Other....................................... (48,356) (48,356)
--------------- ---------------- --------- ----------------
Total other expense (income)................ 18,338,295 44,579,839 62,918,134
--------------- ---------------- --------- ----------------
Loss before minority interest............... (44,606,985) 47,942,758 (92,549,743)
Minority interest........................... 24,799,698 24,799,698 (3) --
--------------- ---------------- --------- ----------------
Net loss.................................... (19,807,287) 72,742,456 (92,549,743)
Preferred stock dividend and accretion ..... 1,006,285 5,872,500(4) 6,878,785
--------------- ---------------- --------- ----------------
Net loss attributable to common
shareholders................................ $(20,813,572) $78,614,956 $(99,428,528)
=============== ================ ========= ================
Net loss per common share................... $ (1.90) $ (8.00)
=============== ================
Weighted average common shares outstanding . 10,943,287 12,427,052(5)
=============== ================
</TABLE>
33
<PAGE>
ORION NETWORK SYSTEMS, INC.
NOTES TO PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1996
(UNAUDITED)
1. To reflect depreciation on the step up in basis on the Orion 1 satellite of
$2.0 million and the amortization of excess cost over fair value of net
assets acquired of $1.3 million resulting from the acquisition of the
Limited Partners' interest in Orion Atlantic over the estimated useful life
of the satellite of 10.5 years.
2. To reflect the adjustment to interest as follows:
<TABLE>
<CAPTION>
<S> <C>
Reduction in Orion 1 Credit Facility interest expense...................... $(12,096,466)
Reduction in Orion 1 Credit Facility interest rate cap expense ............ (1,067,500)
Reduction in amortization of deferred financing costs on the Orion 1
Credit Facility........................................................... (1,597,941)
Interest expense on Senior Notes........................................... 33,959,531
Interest expense on Senior Discount Notes.................................. 24,981,352
Interest expense on Junior Subordinated Debentures, net of amounts
capitalized related to construction of Orion 2 of $3.2 million ............ 695,625
Interest expense from amortization of deferred financing costs on new
borrowings................................................................. 1,500,000
Reduction in interest expense relating to repayment of other obligations
to Limited Partners........................................................ (1,794,762)
---------------
Net increase in pro forma interest expense................................ $ 44,579,839
===============
</TABLE>
Of the $600 million of gross proceeds from the Offering, $ million has been
allocated to the Senior Notes, $ million to the Senior Discount Notes and $
million to capital in excess of par value to reflect the issuance of the
Warrants based on the estimated relative fair values of the Senior Notes,
the Senior Discount Notes and the Warrants. The Senior Notes and Senior
Discount Notes are assumed to bear interest at a rate of 11.875% and
13.125%, respectively, per annum. A change in the interest rate on the Notes
of .5% would result in a change of $2.3 million in interest expense for the
nine months ended September 30, 1996.
3. Elimination of minority interest as a result of the Exchange.
4. To record the dividend requirement on the Series C Preferred Stock issued as
a result of the Exchange as well as pro rata accretion to redemption value
over a 25-year period.
5. Pro forma weighted average shares outstanding for the nine months ended
September 30, 1996 consist of:
<TABLE>
<CAPTION>
<S> <C>
Historical weighted average shares outstanding............................. 10,943,287
Pro forma issuance of shares to British Aerospace and Matra for interest
on $60 million Junior Subordinated Debentures ............................ 515,625
Pro forma issuance of shares to BAe for purchase of 17% minority interest
in Orion Asia Pacific..................................................... 85,714
------------
Pro forma issuance of Common Stock on December 31, 1995 for Series C
Preferred Stock dividend at assumed price of $8.38 per share ............. 882,426
Total pro forma weighted average shares outstanding........................ 12,427,052
============
</TABLE>
34
<PAGE>
ORION NETWORK SYSTEMS, INC.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1995
(UNAUDITED)
<TABLE>
<CAPTION>
ACTUAL DEBIT CREDIT PRO FORMA
--------------- ---------------- --------- ---------------
<S> <C> <C> <C> <C>
Revenues ................................... $ 22,283,882 $ 22,283,882
Operating expenses:
Direct ..................................... 10,485,745 10,485,745
Sales and marketing......................... 8,613,399 8,613,399
Engineering and technical services.......... 8,539,644 8,539,644
General and administration.................. 10,072,429 10,072,429
Depreciation and amortization............... 31,403,376 $ 4,253,528 (1) 35,656,904
--------------- ---------------- --------- ---------------
Total....................................... 69,114,593 4,253,528 73,368,121
--------------- ---------------- --------- ---------------
Loss from operations........................ (46,830,711) 4,253,528 (51,084,239)
Other expense (income):.....................
Interest income............................. (1,924,822) (1,924,822)
Interest expense............................ 24,738,446 58,149,132 (2) 82,887,578
Other....................................... 3,359,853 3,359,853
--------------- ---------------- --------- ---------------
Total other expense (income)................ 26,173,477 58,149,132 84,322,609
--------------- ---------------- --------- ---------------
Loss before minority interest............... (73,004,188) 62,402,660 (135,406,848)
Minority interest........................... 46,089,010 46,089,010 (3) --
--------------- ---------------- --------- ---------------
Net loss.................................... (26,915,178) 108,491,670 (135,406,848)
Preferred stock dividend and accretion ..... 1,329,007 7,795,307 (4) 9,124,314
--------------- ---------------- --------- ---------------
Net loss attributable to common
shareholders................................ $(28,244,185) $116,286,977 $(144,531,162)
=============== ================ ========= ===============
Net loss per common share................... $ (3.07) $ (15.38)
=============== ===============
Weighted average common shares outstanding.. 9,103,505 9,379,137(5)
=============== ===============
</TABLE>
35
<PAGE>
ORION NETWORK SYSTEMS, INC.
NOTES TO PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1995
(UNAUDITED)
1. To reflect depreciation on the step up in basis on the Orion 1 satellite of
$2.5 million and the amortization of excess cost over fair value of net
assets acquired of $1.7 million resulting from the acquisition of the Limited
Partners' interests in Orion Atlantic over the estimated useful life of the
satellite of 10.5 years.
2. To reflect the adjustment to interest expense as follows:
<TABLE>
<CAPTION>
<S> <C>
Reduction in Orion 1 Credit Facility interest expense...................... $(17,437,104)
Reduction in Orion 1 Credit Facility interest rate cap expense ............ (426,250)
Reduction in amortization of deferred financing costs on the Orion 1
Credit Facility............................................................ (2,012,222)
Interest expense on Senior Notes .......................................... 45,279,375
Interest expense on Senior Discount Notes.................................. 29,646,237
Interest expense on Junior Subordinated Debentures net of amounts
capitalized related to construction of Orion 2 of $2.3 million ........... 2,993,219
Interest expense from amortization of deferred financing costs on new
borrowings................................................................ 2,000,000
Reduction in interest expense relating to repayment of other obligations
to Limited Partners....................................................... (1,894,123)
---------------
Net increase in pro forma interest expense................................. $ 58,149,132
===============
</TABLE>
Of the $600 million of gross proceeds from the Offering, $ million has been
allocated to the Senior Notes, $ million to the Senior Discount Notes and $
million to capital in excess of par value to reflect the issuance of the
Warrants based on the estimated relative fair values of the Senior Notes, the
Senior Discount Notes and the Warrants. The Senior Notes and Senior Discount
Notes are assumed to bear interest at a rate of 11.875% and 13.125%,
respectively, per annum. A change in the interest rate on the Notes of .5%
would result in a change of $3.0 million in interest expense for the year
ended December 31, 1995.
3. Elimination of minority interest as a result of the Exchange.
4. To record the dividend requirement on the Series C Preferred Stock issued as
a result of the Exchange as well as pro rata accretion to redemption value
over a 25-year period.
5. Pro forma weighted average shares outstanding for the year ended December 31,
1995 consist of:
<TABLE>
<CAPTION>
<S> <C>
Historical weighted average shares outstanding............................. 9,103,505
Pro forma issuance of shares to British Aerospace and Matra for interest
on $60 million Junior Subordinated Debentures............................. 187,500
Pro forma issuance of shares to British Aerospace for purchase of 17%
minority interest in Orion Asia Pacific................................... 85,714
------------
Pro forma issuance of Common Stock on December 31, 1995 for Series C
Preferred Stock dividend at assumed price of $8.38 per share .............. 2,418
Total pro forma weighted average shares outstanding........................ 9,379,137
============
</TABLE>
36
<PAGE>
SELECTED CONSOLIDATED FINANCIAL AND OPERATIONAL DATA
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
The following selected consolidated statements of operations and balance
sheet data as of and for the years ended December 31, 1991, 1992, 1993, 1994 and
1995 are derived from the Company's audited consolidated financial statements.
The selected consolidated statements of operations and balance sheet data as of
September 30, 1996 and for the nine months ended September 30, 1995 and 1996 are
derived from the unaudited consolidated financial statements of the Company and,
in the opinion of the Company, include all adjustments, consisting of normal
recurring accruals, necessary for a fair presentation of such information.
Operating results for the nine months ended September 30, 1996 are not
necessarily indicative of the results that may be achieved for the year ending
December 31, 1996. The pro forma consolidated statements of operations and
balance sheet data are derived from the unaudited Pro Forma Condensed
Consolidated Financial Statements included herein. The pro forma data are not
necessarily indicative of the results that would have been achieved nor are they
indicative of the Company's future results. The data should be read in
conjunction with the Pro Forma Condensed Consolidated Financial Statements and
the Consolidated Financial Statements, related notes and other financial
information included herein. From its inception in 1982 through January 20,
1995, when Orion 1 commenced commercial operations, Orion was a development
stage enterprise. Because of Orion's exclusive management and control of Orion
Atlantic as its sole general partner (subject to certain rights of approval by
the Limited Partners), and Orion's aggregate 33 1/3% (through November 1995, 41
2/3% from December 1995 through the present) partnership interest, the financial
statements of Orion Atlantic are consolidated with the financial statements of
Orion. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Pro Forma Condensed Consolidated Financial Statements"
and the Consolidated Financial Statements and Notes thereto.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------------------------
1995 PRO
1991 1992 1993 (1) 1994 1995 FORMA(2)
----------- ----------- ----------- ----------- ----------- ----------- -
<S> <C> <C> <C> <C> <C> <C>
Consolidated Statements of
Operations Data:
Revenues........................ $ 648 $ 1,403 $ 2,006 $ 3,415 $ 22,284 $ 22,284
Interest expense................ 456 180 133 61 24,738 82,888
Net loss(3)..................... (2,573) (3,295) (7,886) (7,965) (26,915) (135,407)
Net loss per common share ...... $ (0.35) $ (0.40) $ (0.85) $ (0.86) $ (3.07) $ (15.38)
Shares used in calculating per
share data(4)................... 7,318,147 8,232,548 9,266,445 9,272,166 9,103,505 9,379,137
Ratio of earnings to fixed
charges(5)...................... -- -- -- -- -- --
Other Operating Data:
Number of customers............. 3 5 10 34 109
Capital expenditures............ $ 44,036 $ 78,429 $ 44,130 $ 51,103 $ 9,060
Customer contract backlog(6) ... $ 4,572 $ 9,402 $ 18,185 $ 39,122 $ 120,612
Points of Service(7)............ -- 57 151
EBITDA(8)....................... $ (1,758) $ (6,243) $ (9,069) $ (14,014) $ (15,427)
</TABLE>
NINE MONTHS
ENDED SEPTEMBER 30,
---------------------------------------
1996 PRO
1995 1996 FORMA(2)
----------- ------------ -------------
Consolidated Statements of
Operations Data:
Revenues........................ $ 13,947 $ 30,016 $ 30,016
Interest expense................ 17,080 20,229 64,808
Net loss(3)..................... (19,985) (19,807) (92,550)
Net loss per common share ...... $ (2.42) $ (1.90) $ (8.00)
Shares used in calculating per
share data(4)................... 8,522,067 10,943,287 12,427,052
Ratio of earnings to fixed
charges(5)...................... -- -- --
Other Operating Data:
Number of customers............. 79 167
Capital expenditures............ $ 3,863 $ 10,266
Customer contract backlog(6) ... $ 94,890 $ 134,320 $ 123,000
Points of Service(7)............ 124 304
EBITDA(8)....................... $ (15,177) $ 134
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30,
1996
-----------------------
ACTUAL PRO FORMA(2)
--------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated Balance Sheet Data:
Cash and cash equivalents........... $ 26,507 $ 7,668 $ 3,404 $ 11,219 $ 55,112 $ 36,657 $142,214
Restricted and segregated cash(9) .. -- -- -- -- -- -- 297,000
Total assets........................ 106,712 204,975 271,522 340,176 389,075 355,977 816,292
Long-term debt (less current
portion)............................ -- 106,821 185,294 230,175 250,669 221,781 678,513
Limited Partners' interest in Orion
Atlantic(10)........................ 77,683 77,753 69,909 62,519 14,626 19,961 --
Redeemable preferred stock.......... -- -- -- 14,555 20,358 20,539 111,539
Total stockholders' equity
(deficit)........................... 2,559 14,478 8,400 3,351 26,681 6,891 967
Book value per share................ .59 2.36 1.33 .49 2.46 .63 .09
</TABLE>
(1) In 1993, Orion Atlantic terminated its commitment to purchase a second
satellite from MMS Space Systems, resulting in a termination charge of $5
million. See Note 3 to the Consolidated Financial Statements.
(2) Adjusted to reflect the pro forma effects of the Transactions (see "Pro
Forma Condensed Consolidated Financial Statements"), assuming such events
occurred, in the case of the Consolidated Statements of Operations Data, on
January 1, 1995 and, in the case of the Consolidated Balance Sheet Data, on
September 30, 1996.
(3) As required by GAAP, net loss is presented before accretion of preferred
stock and preferred stock dividends. For the years ended December 31, 1991,
1992, 1993, 1994, 1995, 1995 (pro forma) and the nine months ended September 30,
1995, 1996 and 1996 (pro forma), preferred stock dividends and accretion are $0,
$0, $0, $.6 million, $1.3 million, $9.1 million, $1.0 million, $1.0 million and
$6.9 million, respectively. See Note 2 to the Consolidated Financial Statements.
37
<PAGE>
(4) Computed on the basis described for net loss per common share in Note 2
to the Consolidated Financial Statements.
(5) For purposes of the ratio of earnings to fixed charges, earnings consist
of earnings from continuing operations, plus fixed charges reduced by the amount
of unamortized interest capitalized. Fixed charges consist of interest on all
indebtedness (including commitment fees and amortization of deferred financing
costs) plus the portion of rent expense representing interest (estimated to be
one-third of such expense). For the years ended December 31, 1991, 1992, 1993,
1994 and 1995, and the nine months ended September 30, 1995 and 1996, earnings
were inadequate to cover fixed charges by $2.6 million, $8.8 million, $24.0
million, $35.2 million, $28.2 million, $21.3 million and $19.8 million,
respectively. On a pro forma basis assuming consummation of the Transactions,
earnings would not have been sufficient to cover fixed charges by $137.7 million
and $95.8 million for the year ended December 31, 1995 and the nine months ended
September 30, 1996, respectively. A 0.5% increase in the assumed interest rates
on the Notes would result in pro forma deficiencies of earnings to cover fixed
charges of approximately $140.7 million for the year ended December 31, 1995 and
$98.0 million for the nine months ended September 30, 1996.
(6) Backlog represents future revenues under contract. See "Risk Factors --
Uncertainties Relating to Backlog."
(7) Points of service includes installed VSATs and additional transmission
destinations (such as customer premises) that share a VSAT.
(8) "EBITDA" represents earnings before minority interests, interest income,
interest expense, other expense (income), income taxes, depreciation and
amortization. EBITDA is commonly used in the communications industry to analyze
companies on the basis of operating performance, leverage and liquidity. EBITDA
is not intended to represent cash flows for the period and should not be
considered as an alternative to cash flows from operating, investing or
financing activities as determined in accordance with GAAP. EBITDA is not a
measurement under GAAP and may not be comparable to other similarly titled
measures of other companies. Other expense (income) includes gains on sale of
equipment, less costs of $5 million in 1993 associated with the termination of
the Company's commitment to purchase a second satellite and the write-off of
costs relating to the 1995 Attempted Financing of $3.4 million in the fourth
quarter of 1995.
(9) Restricted and segregated cash represents (i) the estimated $118.8
million that will be placed in escrow on the Closing Date to fund the payment of
the first six scheduled payments of interest on the Senior Notes. and (ii)
$178.2 million that will be segregated by the Company and used only to invest in
certain high quality short term investments to make payments for additional
satellites and certain related costs and to pay interest and principal on the
Notes. See "Description of Notes - Covenants -- Funding for Additional
Satellites." The actual amount to be placed in escrow, and reflected as
restricted cash and used for such interest payments will depend on the market
interest rates on government securities on the Closing Date.
(10) Represents amounts invested by Limited Partners (net of syndication
costs related to the investments), adjusted for such Limited Partners' share of
net losses. The interests of the Limited Partners will be acquired by the
Company in the Exchange.
38
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
GENERAL
Orion's principal business is the provision of satellite communications for
private communications networks and video distribution and other satellite
transmission services. From its inception in 1982 through January 20, 1995, when
Orion 1 commenced commercial operations, Orion was a development stage
enterprise. Prior to January 1995, Orion's efforts were devoted primarily to
monitoring the construction, launch and in-orbit testing of Orion 1, product
development, marketing and sales of interim private communications network
services, raising financing and planning Orion 2 and Orion 3.
OrionSat is the sole general partner in Orion Atlantic and Orion has a 41
2/3% equity interest in Orion Atlantic. Orion will become the 100% owner of
Orion Atlantic upon consummation of the Exchange.
As a result of Orion's control of Orion Atlantic, Orion's consolidated
financial statements include the accounts of Orion Atlantic. All of Orion
Atlantic's revenues and expenses are included in Orion's consolidated financial
statements, with appropriate adjustment to reflect the interests of the Limited
Partners in Orion Atlantic's losses prior to the Exchange. The assets and
liabilities reported in the consolidated balance sheets at September 30, 1996,
December 31, 1995 and December 31, 1994 primarily pertain to Orion Atlantic.
OVERVIEW
Orion's revenues are principally generated under three to four year contracts
for delivery of communications services. Such revenues, substantially all of
which are generated through Orion Atlantic, are derived principally from
recurring monthly fees from its customers, although many contracts include
initial non-recurring installation and other fees. These non-recurring fees
generally are structured to cover the Company's actual costs of installation of
the customer's site-based equipment. The revenues from each contract vary,
depending upon the type of service, amount of capacity, data handling ability of
the network, the number of VSATs (which generally are owned by Orion),
value-added services and other factors. Depending on the complexity of the
services to be provided to a customer, the period between the date of signature
of a contract and the commencement of actual services (and receipt of fees)
typically ranges from 30 days to six months. Substantially all of Orion's
contracts are denominated in U.S. dollars, although some contracts are
denominated in pounds sterling, deutschemarks, Austrian shillings or French
francs. See "Risk Factors -- Risks of Conducting International Business." Orion
begins to record revenues under its contracts upon service commencement to the
customer.
The services provided by Orion have been subject to decreasing prices over
recent years and this pricing pressure is expected to continue (and may
accelerate) for the foreseeable future, particularly if, as expected, capacity
continues to increase. Orion will need to increase its volume of sales in order
to compensate for such price reductions. Orion believes that customers will
increase the data speeds in their communications networks to support new
applications, and that such upgrading of customer networks will lead to
increased revenues that will mitigate the effect of price reductions. However,
there can be no assurance that this will occur. See "Risk Factors -- Potential
Adverse Effects of Competition." Orion expects to continue to incur increasing
net losses and negative cash flow (after payments for capital expenditures and
interest) for the foreseeable future.
Orion's direct cost of services includes principally (i) costs relating to
the installation, maintenance and licensing of VSAT earth stations at its
customers' premises; (ii) satellite lease payments for transponder capacity
(generally for services outside of the Orion 1 footprint); and (iii) associated
miscellaneous expenses. Sales and marketing expenses consist of salaries, sales
commissions (including commissions to third party sales representatives), travel
and promotional expenses. The Company has recently commenced a significant
expansion of its marketing program and expects to continue this expansion
through 1997. Due to the complexity of the Company's services, and the expected
turnover of new sales personnel, sales and marketing expense is expected to
increase significantly during 1997. Engineering and technical expenses,
consisting principally of personnel costs and travel, relate to TT&C,
39
<PAGE>
network monitoring, network design and similar activities. The Company
constructed its TT&C facilities to control two satellites. As a result, the
Company anticipates a slight increase in costs with Orion 2 and a more
substantial increase in costs with Orion 3, which will require separate TT&C
facilities. General and administrative expenses consist of in-orbit insurance
premiums, personnel costs other than for selling and engineering, information
systems, professional services, and occupancy costs. These costs will increase
generally as the Company's operations expand. Specifically, in-orbit insurance
costs will increase significantly following the launches of Orion 2 and Orion 3.
Depreciation and amortization expenses result mainly from the depreciation of
the Orion 1 satellite, VSATs and the related equipment to service the expansion
of the private network communication services business (see Note 2 of the Notes
to Consolidated Financial Statements) and will increase substantially after the
launch of Orion 2 and Orion 3. Interest income is primarily the result of
interest earned on the proceeds from Orion's private and public equity
offerings. Interest costs will increase substantially as a result of the
Offering and will increase again after additional financing for Orion 2 and
Orion 3 is obtained. Such financing will be required substantially in advance of
the anticipated revenues from Orion 2 or Orion 3. Orion's costs (other than
sales commissions) generally do not vary substantially with the amount of
revenue from the Orion 1 satellite.
RESULTS OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1996 COMPARED TO THE NINE MONTHS ENDED
SEPTEMBER 30, 1995
Revenue. Total revenue for the nine months ended September 30, 1996 was $30.0
million, compared to $13.9 million for the same period in 1995, an increase of
116%, resulting from increased volume of sales. Revenues from private
communications network services were $11.8 million for the first nine months of
1996 compared to $5.5 million for the comparable period in 1995, as the number
of points of service increased to 304 as of September 30, 1996 from 124 at
September 30, 1995. Revenues from video distribution and other satellite
transmission services were $18.2 million for the first nine months of 1996
compared to $8.4 million for the same period in 1995 resulting from a
substantial increase in customers for these services in 1996.
OPERATING EXPENSES
Direct expenses. Direct expenses for the nine months ended September 30,
1996, were $4.3 million compared to $10.0 million for the same period in 1995.
The decrease of $5.7 million, or 57%, was primarily attributable to accruals for
satellite incentive obligations owed by Orion to the contractor under the Orion
1 Satellite Contract during the initial satellite deployment period from January
20, 1995 through June 30, 1995. The Company capitalized the present value of the
remaining satellite incentive obligation of approximately $14.8 million,
effective July 1, 1995, as part of the cost of the satellite. As of September
30, 1996, Orion had obligations with a present value of approximately $21.7
million with respect to satellite incentives.
Sales and marketing expenses. Sales and marketing expenses were $7.8 million
for the nine months ended September 30, 1996, as compared to $5.9 million in the
same period of 1995. The increase of $1.9 million, or 32% is primarily
attributable to sales commissions, third party sales representative fees and
ground operator fees associated with the growth in the private communications
network service business.
Engineering and technical expenses. Engineering and technical expenses were
$6.3 million in the nine months ended September 30, 1996, as compared to $6.0
million for the comparable period in 1995. The increase was due to customer
engineering functions in support of network services.
General and administrative expenses. General and administrative expenses were
$11.5 million for the nine months ended September 30, 1996, compared to $7.2
million for the period ended September 30, 1995. The increase of $4.3 million,
or 60%, for the nine months ended September 30, 1996 was primarily due to the
inclusion of the cost of in-orbit life insurance for the entire period during
1996. The policy became effective in May 1995.
40
<PAGE>
Depreciation and amortization. Depreciation and amortization expense for the
nine months ended September 30, 1996 was $26.4 million, an increase of $4.1
million, or 18%, over the same period in 1995. The increase is primarily a
result from depreciation of VSATs and other ground equipment to service the
expansion of the private network services business and depreciation of the Orion
1 satellite, which was placed in service January 20, 1995.
Interest. Interest income was $1.8 million for the nine months ended
September 30, 1996, compared to $1.1 million for the nine months ended September
30, 1995. The increase in interest income ($0.7 million or 64%) during the first
three quarters of 1996 is primarily a result of interest earned on the proceeds
from the Company's initial public offering in August 1995. Interest expense, net
of capitalized interest, was $20.2 million for the nine months ended September
30, 1996, compared to $17.1 million for the comparable period in 1995. The
increase in interest expense of $3.1 million in the first three quarters of 1996
is attributable to expensing interest (including commitment fees, interest
accretion associated with the Orion 1 satellite incentive obligation and
amortization of deferred financing costs) from the in-service date of Orion 1
and the impact of an interest rate cap agreement in 1996. Prior to the
in-service date of Orion 1, substantially all interest expense was capitalized.
Interest expense will substantially increase as a result of the Offering.
Net Loss. The Company incurred a net loss of $19.8 million, compared to a net
loss of $20.0 million for the nine months ended September 30, 1996 and 1995,
respectively, after deduction of the limited partners' and minority interests'
share in the Company's losses before minority interests' of $24.8 million and
$33.4 million, respectively. Net loss is expected to increase substantially in
subsequent periods as a result of interest expense on the Notes and elimination
of the minority interests in Orion Atlantic.
YEAR ENDED DECEMBER 31, 1995 COMPARED TO THE YEAR ENDED DECEMBER 31, 1994
Revenue. Services revenue for 1995 was $22.3 million compared to $3.4 million
for 1994. Revenues from private communications network services were $10.0
million from 72 customers in 1995 and $3.4 million from 18 customers in 1994, as
the number of sites in service increased to 143 from 53. Revenues from
transmission capacity and video distribution services were $12.3 million during
1995. There were no revenues from these services during 1994, as Orion 1
commenced operations on January 20, 1995.
OPERATING EXPENSES
Direct expenses. Direct expenses were $10.5 million and $3.5 million in 1995
and 1994, respectively. The increase of $7.0 million, or 199%, was primarily
attributable to accruals for satellite incentives during 1995, which were not
applicable prior to launch in November 1994, costs associated with equipment
sales ($2.5 million in 1995, $0 in 1994), and installation and maintenance costs
in connection with higher volumes of customer sites placed in service during
1995 ($1.3 million in 1995, $0.5 million in 1994). These increases were
partially offset by a reduction in leased transponder capacity costs as
customers were transferred from leased capacity to Orion 1. No equipment sales
occurred during 1994.
Sales and marketing expenses. Sales and marketing expenses were $8.6 million
in 1995, as compared to $5.9 million in 1994, an increase of $2.7 million or
47%. The increase is due to the hiring of additional sales personnel, increased
advertising and promotion expenses associated with increased sales and equipment
sales commissions.
Engineering and technical expenses. Engineering and technical expenses were
$8.5 million in 1995, as compared to $3.0 million for 1994, an increase of $5.5
million or approximately 184%. The increase is attributable to increased
staffing requirements related to control and operation of the satellite, and
customer engineering functions in support of the expansion of the network
services business.
General and administrative expenses. General and administrative expenses were
$10.1 million for 1995 compared to $5.1 million for 1994. The increase of $5.0
million or 99% was primarily due to the cost of in-orbit insurance for Orion 1,
beginning in May 1995, and other costs associated with Orion's commencement of
full commercial operations.
41
<PAGE>
Depreciation and amortization. Depreciation and amortization was $31.4
million in 1995, an increase of $29.7 million, as compared to $1.7 million for
1994. The increase primarily resulted from the commencement of depreciation of
Orion 1 upon being placed in service January 20, 1995.
Interest. Interest income was $1.9 million for 1995, compared to $0.4 million
for the prior year. The increase in interest income during 1995 is primarily a
result of interest earned on proceeds from Orion's initial public offering in
August 1995. Interest expense, net of capitalized interest, increased from $0.06
million for 1994 to $24.7 million for 1995. The increase in interest expense in
1995 is attributable to expensing interest (including commitment fees and
amortization of deferred financing costs) from the in-service date of Orion 1.
Prior to that date, substantially all interest expense was capitalized as part
of the cost of Orion 1.
Other. Other expenses of $3.4 million for the year-ended December 31, 1995
are primarily related to costs incurred in connection with Orion Atlantic's
plans to raise financing for Orion 2, which plans were deferred in November
1995.
Net loss. The Company incurred a net loss of $26.9 million and $8.0 million
for 1995 and 1994, respectively, after deduction of the Limited Partners' and
minority interests' share in the Company's results of operations of $46.1
million and $7.4 million, respectively.
YEAR ENDED DECEMBER 31, 1994 COMPARED TO YEAR ENDED DECEMBER 31, 1993
Revenue. Services revenue for the year ended December 31, 1994 was $3.4
million compared to $2.0 million for the year ended December 31, 1993. The
increased revenue reflects an increase in the number of private network
customers from 12 in 1993 to 18 in 1994.
OPERATING EXPENSES
Direct expenses. Direct expenses were $3.5 million and $2.6 million in the
years ended December 31, 1994 and 1993, respectively. Direct expenses increased
$0.9 million or 32% which was primarily attributable to the increased revenue
generated by private network services.
Sales and marketing expenses. Sales and marketing expenses were $5.9 million
in the year ended December 31, 1994, as compared to $1.9 million in 1993
primarily due to the Company's increased selling efforts in private network
services.
Engineering and technical expenses. Engineering and technical expenses were
$3.0 million in the year ended December 31, 1994, as compared to $1.8 million
for the year ended December 31, 1993. Engineering and technical services
increased $1.2 million due to the increased support requirements of private
network services.
General and administrative expenses. General and administrative expenses were
$5.1 million for the year ended December 31, 1994 compared to $4.7 million for
the year ended December 31, 1993. Orion Atlantic entered into interest rate
hedging arrangements which fixed the maximum interest rate through November 1995
at 11.54%. Thereafter, an interest cap agreement is in place relating to a
notional amount declining every nine months from $150 million effective November
30, 1993. General and administrative expenses increased $0.4 million principally
due to the increased staffing requirements of the Company's management team in
anticipation of higher operating levels.
Interest. During the year ended December 31, 1994, Orion incurred $27.0
million of interest costs (including commitment fees and amortization of
deferred financing costs) compared to $16.3 million for the comparable period in
1993, substantially all of which was capitalized. The increase in interest is
attributable to additional borrowings related to the construction of Orion 1 and
subordinated borrowings beginning in late 1993 from the Limited Partners to fund
the development of the Orion Atlantic network services business.
Other. Other income was $0.05 million in the year ended December 31, 1994,
compared to expense of $4.9 million for the year ended December 31, 1993. The
increase in other income is related to the April 1993 termination by Orion
Atlantic of its commitment to purchase a second satellite from Space
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Systems (due to a reassessment of the satellite design and target markets) which
resulted in the forfeiture of $5.0 million which was then expensed as a
termination charge.
Net loss. The Company incurred net losses of $8.0 million and $7.9 million
for the years ended December 31, 1994 and 1993, respectively, after deducting
the Limited Partners' and minority interests' share in Orion's results of
operations of $7.4 million and $7.8 million, respectively.
LIQUIDITY AND CAPITAL RESOURCES
Funding to date. Orion has required significant capital for operating and
investing activities in the development of its business, and will need
significant additional capital in the future to develop fully its global
satellite communications system. The Company's funding has been provided
primarily by the sale of equity securities, including the completion of its
initial public offering in August 1995 which generated proceeds to the Company
of approximately $52 million (net of underwriting discounts), bank loans, vendor
financing, lease arrangements and short-term loans from its investors. As of
September 30, 1996, Orion had a working capital deficiency of $5.7 million and
the net cash used in operations for the nine months ended September 30, 1995 and
1996, was $30.4 million and $25.0 million, respectively.
Funding for the construction and launch of the Orion 1 satellite and related
facilities was fully committed through $90 million of equity from the limited
partners of Orion Atlantic, an aggregate of $251 million under the Orion 1
Credit Facility and approximately $11 million under other debt facilities,
dedicated primarily to the construction of the TT&C facility, which is being
used to control Orion 1.
At September 30, 1996, the Company had outstanding indebtedness of
approximately $7.2 million under a seven year term loan provided by General
Electric Capital Corporation ("GECC") for the TT&C facility, which is secured by
the TT&C facility and various assets relating thereto. Additionally, at
September 30, 1996 the Company had obligations with a present value of $21.7
million, which are payable to the manufacturer of Orion 1 through 2006 (of which
$13 million will be paid in cash on the Closing Date, $10 million of which will
be reinvested in the Junior Subordinated Debentures) and $8.0 million payable to
a former partner in Orion Atlantic through 1997. Of this $8.0 million,
approximately $3.5 million (plus interest of approximately $500,000 as of
January 30, 1997) will be paid with proceeds of the Offering.
Current Funding Requirements. The Company will need a substantial amount of
capital over the next three years (and possibly thereafter) to fund the costs of
Orion 2 and Orion 3, the purchase of VSATs and other capital expenditures and to
make various other payments, such as principal and interest payments with
respect to the TT&C Financing, and any indebtedness incurred to finance Orion 2
or Orion 3. The Company's cash flows will be inadequate to cover its cash needs,
and the Company will seek financing from outside sources. The Company does not
have a revolving credit facility or other source of readily available capital.
Sources of additional capital may include public or private debt or equity
financings. The Company is often involved in discussions or negotiations with
respect to such potential financings and, because of its substantial capital
needs, may consummate any such financing at any time. The Company has commenced
construction of Orion 3 and intends to commence construction of Orion 2
immediately after consummation of the Offering, despite the fact that it does
not have any commitment from any outside source to provide the additional
financing necessary to complete the construction of Orion 2 and Orion 3. If the
Company is unable to obtain financing from outside sources in the amounts and at
the times needed, it could forfeit payments made on Orion 2 and Orion 3 and its
rights to Orion 2 and Orion 3 under the Orion 2 Satellite Contract and Orion 3
Satellite Contract and there would be a material adverse effect on the Company's
ability to make payments on its indebtedness, including the Notes, and the value
of the Warrants and Common Stock.
Expected payments prior to launch under the Orion 2 Satellite Contract and
Orion 3 Satellite Contract and for launch insurance for Orion 2 and Orion 3
aggregate approximately $500 million. In addition to the $3 million paid in the
fourth quarter of 1996, Orion will need to make payments of approximately $98
million, $350 million and $50 million in 1997, 1998 and 1999, respectively.
These amounts include the Company's estimate regarding the cost of launch
insurance (but not in-orbit insurance, which the Company presently estimates
will cost approximately $5 million to $6 million per annum
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per satellite), although the Company has not had material discussions with
potential insurers and has not received any commitment to provide insurance. The
Company's actual payments could be substantially higher due to any change orders
for the satellites, insurance rates, delays and other factors. In addition, the
Company expects to expend approximately $22 million, $30 million and $34 million
on VSATs and other capital expenditures in 1997, 1998 and 1999, respectively.
The Company believes these VSAT and other capital expenditures can be financed
through capital leases or other secured financing arrangements. However, the
Company has not engaged in material discussions with potential lenders and there
can be no assurance that such financing can be obtained.
Under the Orion 1 Satellite Contract, the contractor is entitled to receive
incentive payments based upon the performance of Orion 1 in orbit. These
incentive payments could reach an aggregate of approximately $44 million through
2007, if the transponders on Orion 1 continue to operate in accordance with
specification during that period. As of September 30, 1996 Orion had obligations
with a present value of approximately $21.7 million with respect to incentive
payments. Orion will pay $13 million in satellite incentives following
completion of the Offering, of which $10 million will be re-invested in Junior
Subordinated Debentures of Orion in the Matra Marconi Investment.
The foregoing estimates do not include any amounts for other possible
financing requirements. The Company may from time to time enter into joint
ventures and make acquisitions of complimentary businesses and is often engaged
in discussions or negotiations with regard to such potential joint ventures and
acquisitions. Such joint ventures or acquisitions would need to be financed,
which would increase the Company's need for additional capital. In addition,
Orion intends to replace Orion 1 at the end of its useful life (expected to be
in October 2005). Such replacement likely will require additional financing if
the cash flow from Orion's operations is not sufficient to fund a replacement
satellite. See "Risk Factors -- Need for Substantial Additional Capital" and
"Risk Factors -- Launch of Orion 2 and Orion 3 Subject to Significant
Uncertainties -- Substantial Financing Requirements; Risks of Commencing
Construction Prior to Completing Financing."
TAXES
As of December 31, 1995, Orion had net operating loss carryforwards for
federal tax purposes of approximately $51.2 million. The ability of Orion to
benefit from net operating losses for federal income tax purposes will depend on
a number of factors, including whether Orion has sufficient income from which to
deduct the losses, limitations that may arise as a result of changes in the
ownership of Orion, including as a result of the Transactions and other factors,
and certain other limitations which may significantly reduce the economic
benefit of those losses to Orion. Due to uncertainty regarding its ability to
realize the benefits of such net operating loss carryforwards, the Company has
established a valuation allowance for the full amount of its net operating loss
carryforwards. Of Orion's net operating losses, approximately $31.2 million was
incurred by Orion Atlantic and allocated to Orion. Orion Atlantic is structured
as a partnership for U.S. income tax purposes. As a result, Orion Atlantic
itself generally should not be subject to federal income taxation. Instead, the
partners of Orion Atlantic, including Orion and OrionSat, will separately report
their allocable shares of Orion Atlantic's net income, loss, gain, deductions,
and credits, as determined under the allocation provisions of the Partnership
Agreement. Orion Atlantic may, however, be subject to income tax on a portion of
its income in certain states and other countries in which it has operations.
Under the Partnership Agreement, the first $20 million of any losses was
allocated to OrionSat, and any losses in excess of that amount generally have
been allocated to the partners, including Orion and OrionSat, in proportion to
their respective percentage interests. Subsequent to consummation of the
Exchange, all losses will be allocated to Orion.
EFFECT OF INFLATION
Orion believes that inflation has not had a material effect on the results of
operations to date.
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EFFECT OF RECENTLY ISSUED FINANCIAL ACCOUNTING STANDARDS
In March 1995, the FASB issued Statement No. 121, Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of,
which requires impairment losses to be recorded on long-lived assets used in
operations when indicators of impairment are present and the undiscounted cash
flows estimated to be generated by those assets are less than the assets'
carrying amount. Statement No. 121 also addresses the accounting for long-lived
assets that are expected to be disposed of. Orion adopted Statement No. 121 in
the first quarter of 1996. The effect of adoption was not material to its
financial condition or results of operations.
In October 1995, the FASB issued Statement No. 123, Accounting for Stock
Based Compensation, which is effective for awards after January 1, 1996. Orion
has elected to continue to follow Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees" (APB 25) and related Interpretations
in accounting for its employee stock based award programs, because the
alternative fair value accounting provided for under FASB Statement No. 123
requires use of option valuation models that were not developed for use in
valuing employee stock options. Under APB 25, when the exercise price of the
employee award equals the market price of the underlying stock on the date of
grant, as has been the case historically with Orion's awards, no compensation
expense is recognized.
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BUSINESS
OVERVIEW
Orion is a rapidly growing provider of satellite-based communications
services, focused primarily on (i) private communications network services, (ii)
Internet services and (iii) video distribution and other satellite transmission
services. Orion provides multinational corporations with private communications
networks designed to carry high speed data, fax, video teleconferencing, voice
and other specialized services. The Orion satellite's ubiquitous coverage
reaches all locations within its footprint, enabling the delivery of high speed
data to customers in emerging markets and remote locations which lack the
necessary infrastructure to support these services. The Company also offers high
speed Internet access and transmission services to companies outside the United
States seeking to avoid "last mile" terrestrial connections and bypass congested
regional Internet network routes. In addition, Orion provides satellite capacity
for video distribution, satellite news gathering and other satellite services
primarily to broadcasters, news organizations and telecommunications service
providers. The Company provides its services directly to customer premises using
VSATs.
The Company commenced operations of Orion 1, a high power Ku-band satellite
in January 1995. As of September 30, 1996, Orion serviced 167 customers through
304 points of service. The Company's customers include Amoco Poland Limited,
Amway Corporation, AT&T Corp., BBC, British Telecom, CNN, Citibank, N.A., Deere
& Co., Global One, GTECH Corporation, Hungarian Broadcasting, News International
Limited, RTL Television, Pepsi-Cola International, Sprint Communications, Viacom
International Inc., Westinghouse Communications, World Wide Television News and
Xerox Corporation, or certain of their subsidiaries. As of September 30, 1996,
Orion's contract backlog was $123 million (after pro forma adjustments for the
Exchange). Substantially all of Orion's current contracts with customers are
denominated in U.S. Dollars. For the three months ended September 30, 1996, the
Company generated revenues of $12.2 million and had a loss from operations, net
loss and EBITDA (as defined below) of $(7.2) million, $(5.8) million and $1.7
million, respectively. For the first nine months of 1996, the Company generated
revenues of $30.0 million and had a loss from operations, net loss, net cash
used in operating actives and EBITDA of $(26.3) million, $(19.8) million,
$(25.0) million and $0.1 million, respectively. "EBITDA" represents earnings
before minority interests, interest income, interest expense, other expense
(income), income taxes, depreciation and amortization. EBITDA is commonly used
in the communications industry to analyze companies on the basis of operating
performance, leverage and liquidity. EBITDA is not intended to represent cash
flows for the period and should not be considered as an alternative to cash
flows from operating, investing or financing activities as determined in
accordance with GAAP. EBITDA is not a measurement under GAAP and may not be
comparable to other similarly titled measures of other companies.
The Company believes that demand for satellite-based communications services
will continue to grow due to (i) the expansion of businesses beyond the limits
of wide bandwidth terrestrial infrastructure, (ii) accelerating demand for high
speed data services, (iii) growing demand for Internet and intranet services,
especially outside the U.S., (iv) increased size and scope of television
programming distribution, (v) worldwide deregulation of telecommunications
markets and (vi) continuing technological advancements. Satellites are able to
provide reliable, high bandwidth services anywhere in their coverage areas, and
the Company believes that it is well positioned to satisfy market demand for
these services.
THE ORION SATELLITE SYSTEM
The Company launched Orion 1, a high power satellite with 34 Ku-band
transponders, in November of 1994. Orion 1 provides coverage of 34 European
countries, much of the United States and parts of Canada, Mexico and North
Africa. Through arrangements with local ground operators, Orion currently has
the ability to deliver network services to and among points in 27 European
countries, portions of the United States and a limited number of Latin American
countries.
The Company has recently signed a contract with Matra Marconi Space for the
construction and launch of Orion 2. Orion 2 will expand the Company's European
coverage and extend coverage to portions of the Commonwealth of Independent
States, Latin America and the Middle East, as shown in
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more detail in the footprint set forth below under the caption "--
Implementation of the Orion Satellite System -- Orion 2." Orion 2 will increase
significantly the Company's pan-European capacity, currently the area of
strongest demand for the Company's services. The Company recently commenced
selling services in certain areas of Latin America. Orion 2 is scheduled to be
launched in the second quarter of 1999.
The Company has recently entered into a satellite procurement contract with
Hughes Space for the construction and launch of Orion 3 and has commenced
construction of Orion 3. Orion 3 will cover broad areas of the Asia Pacific
region including China, Japan, Korea, India, Southeast Asia, Australia, New
Zealand, Eastern Russia and Hawaii, as shown in more detail in the footprint set
forth below under the caption "-- Implementation of the Orion Satellite System
- -- Orion 3." Orion 3's footprint will provide the Company with the ability to
redistribute programming from the United States via Hawaii to most of the Asia
Pacific region. The Company has already taken a number of steps to establish an
early market presence in Asia, and has entered into an $89 million lease for
eight of Orion 3's 43 transponders. Orion 3 is scheduled to be launched in the
fourth quarter of 1998.
In the aggregate, the footprints of Orion 1, Orion 2 and Orion 3 will cover
over 85% of the world's population. Maps of the footprints of Orion 1, Orion 2
and Orion 3 are set forth below under the caption "Implementation of the Orion
Satellite System."
THE ORION STRATEGY
Orion's strategy is to maximize its revenues per satellite transponder
through the delivery of value-added services to end users. To quickly establish
a stable base of revenues, Orion sells transponder capacity to video
broadcasters and telecommunications service providers. However, Orion's
long-term strategic focus is on value-added private network services, which
include network design, VSAT installation, support and monitoring, in addition
to basic satellite capacity service. The implementation of Orion's strategy is
based on the following elements:
o Focus on Specialized Communications Needs of Multinational Organizations
o Bridge to Emerging Markets and Remote Locations
o End-to-End Service
o Global Coverage
o Early Market Entry
o Local Presence
o Ownership of Facilities
FOCUS ON SPECIALIZED COMMUNICATIONS NEEDS OF MULTINATIONAL ORGANIZATIONS
Orion targets the needs of multinational businesses and governmental
customers for customized private network communications services. Advantages of
the Company's satellite-based network services include: (i) transmission over
wide areas to multiple dispersed sites including sites in emerging markets; (ii)
interconnectivity among all sites; (iii) wide bandwidth and high data speeds;
(iv) transmission of data, fax, teleconferencing and voice over the same
network; (v) high transmission reliability, quality and security; (vi) Internet
access; and (vii) rapid implementation, both for the initial installation and
for later network modifications. Due to the flexibility of the network, Orion is
able to provide companies with customized solutions to link multiple locations.
BRIDGE TO EMERGING MARKETS AND REMOTE LOCATIONS
Orion targets customers doing business in emerging markets and remote
locations of developed markets which often lack the fiber optic and digital
infrastructure required for wide bandwidth, high speed data applications.
Terrestrial transmissions in many emerging markets must often pass through
local, poorly developed network segments before reaching the customer premises,
making it difficult to
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send and receive high speed data. In contrast, Orion's satellite system
completely avoids such "bottlenecks" in local network segments by sending and
receiving transmissions directly to and from customers, avoiding the need to
interconnect with the local infrastructure. A significant portion of Orion's
private communications network customers transmit high-speed data to and from
locations in Central and Eastern Europe. Orion 2 and Orion 3 will extend
coverage to the Commonwealth of Independent States, Latin America and the Asia
Pacific Region.
END-TO-END SERVICE
Orion provides its services directly to and among customer locations using
satellite transmission and VSATs installed at customer premises. Offering
end-to-end services and bypassing terrestrial infrastructure allows Orion to
offer higher reliability and higher quality services than some terrestrial
facilities by bypassing multiple telecommunications service providers and local
networks and avoiding related toll charges. It also permits Orion to install
networks more quickly than many of its competitors, who must deal with multiple
vendors and multiple communications technologies. Orion offers its customers
one-stop shopping. This includes a single point of contact, an all-inclusive
contract and consistent quality of service throughout the network.
GLOBAL COVERAGE
Orion believes that providing global coverage is a competitive advantage in
marketing to multinational corporations. Orion 1 covers 34 European countries,
much of the U.S. and portions of Canada, Mexico and North Africa. Orion uses
capacity leased from other carriers to supplement its network coverage area
(such as to areas of Russia and Latin America). Orion estimates that when Orion
2 (with coverage of Europe, Russia, the eastern United States, Latin America,
North Africa and the Middle East) and Orion 3 (with coverage of the Asia Pacific
region) are deployed, the satellite footprints in the aggregate will cover an
area inhabited by over 85% of the world's population. This coverage will enable
Orion to offer its customers a single source for service offerings and a greater
measure of network quality control than terrestrial alternatives.
EARLY MARKET ENTRY
Orion develops an early market presence in targeted geographic areas prior to
satellite launch in order to build its customer base. To accomplish this, Orion
hires sales people, develops relationships with ground operators, and delivers
its services using leased satellite capacity. Orion employed this strategy prior
to the commercial operation of the Orion 1 satellite and is pursuing the same
approach with Orion 2 and Orion 3. For example, the Company is currently
providing service in Latin America and Russia over leased satellite capacity.
LOCAL PRESENCE
Orion has arrangements with 30 local ground operators covering most countries
within the Orion 1 footprint, and is entering into additional arrangements as it
offers services in new areas. These ground operators are critical to providing
integrated service because they obtain necessary licenses, install and maintain
the customers' networks, provide in-country business experience and often
facilitate market entry.
OWNERSHIP OF FACILITIES
Orion believes it is strategically important to own its satellite facilities.
Orion believes that over the long-term ownership of satellite facilities
provides a cost advantage over resellers and other private service providers
that must lease satellite capacity to provide services to customers. The
Company's satellite ownership enables it to control the quality and reliability
of its network solutions, maintain the flexibility to rapidly add capacity, new
locations and new features to its customer networks, and respond quickly to
customer requests.
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INDUSTRY OVERVIEW
Fixed communications satellites are generally located in geostationary orbit
approximately 22,300 miles above the earth and blanket large geographic areas of
the earth with signal coverage. Satellites are thus well suited for
transmissions that must reach many locations over vast distances simultaneously
(i.e., point-to-multipoint transmissions), such as the distribution of
television programming to cable operators, television stations and directly to
homes. Satellites can be accessed from virtually any location within the
geographic area they cover. This ubiquitous coverage allows the satellite to
transmit voice and data communications to remote locations and emerging markets
where terrestrial infrastructure is not well developed. Historically, satellites
were used primarily for international voice and data traffic, using large earth
stations that enabled lower-power satellites to function as "cables in the sky."
The principal drawback to satellite-based voice transmission is the 1/4 of a
second delay caused by the signal traveling to and from the satellite. In the
U.S., Western Europe and Japan, the use of satellites for voice traffic has
decreased since the early 1980s with the growth of fiber optic cable networks.
Geostationary satellites now are used primarily for television distribution.
However, voice and data traffic remains the dominant use of satellites in
developing countries.
Prior to the late 1970s or early 1980s, most terrestrial infrastructure
consisted of copper wire (and, to a lesser extent, microwave systems), which was
well suited for ordinary telephone service. Today most developed economies
employ fiber optic cables, which provide much wider bandwidth than copper. In
addition, transoceanic cables now link most major industrialized countries.
Fiber optic cables are well suited for carrying large amounts of bulk traffic
between two fixed locations, and unlike copper wire facilities have sufficient
capacity to carry the high speed data communications that comprise an increasing
percentage of communications traffic. However, in many less developed areas,
terrestrial facilities still consist mainly of copper wire. Even in areas with
fiber optic networks, the "last mile" connections to customer premises often
consist of copper wire. As a result, customers with sites in areas which are
underdeveloped or which have not upgraded their "last mile" copper wire to fiber
optic cable often do not have access to the full range of high speed data
communications demanded by many businesses.
Satellites provide a number of advantages over terrestrial facilities for
many high speed communications services. First, satellites provide ubiquitous
service within their footprint and can deliver service directly to customers'
premises. Satellites enable high speed communications service where there is no
suitable terrestrial alternative available. In addition, satellites can
completely bypass terrestrial network congestion points, "last mile" bottlenecks
and unreliable networks of incumbent service providers to provide advanced
services to locations where conventional terrestrial service is available but
inadequate. Second, the cost to provide bandwidth via satellite does not
increase with the distance between sending and receiving stations. Not only must
terrestrial networks add physical capacity to cover additional distances, they
must also continually reamplify transmission signals. Satellites are well suited
for transmission across large distances, for wide bandwidth and for
point-to-multipoint (broadcast) applications. Finally, since VSATs are
relatively easy to install and/or relocate, high power satellite networks can be
rapidly installed, upgraded and reconfigured. In contrast, installation of fiber
optic cable is expensive, time consuming and requires obtaining rights-of-way.
The current generation of high power Ku-band satellites, such as Orion 1, is
particularly well suited to provide high speed business communications services
in addition to video distribution services. The use of the Ku-band frequencies
(as opposed to the C-band used by older generations of satellites) offers
reduced interference with ground communications. This enables satellites to use
the higher broadcasting power necessary to support small, low-cost VSAT earth
stations and makes it cost effective to transmit to or among numerous locations.
DATA NETWORKING
During the past decade, there has been significant growth in data networking
applications. The data networking market includes a number of types of services,
including leased lines for private networks, public data network services,
managed network services, frame relay and other services such as ATM
(asynchronous transfer mode) and WAN (wide area network) services. Ovum, Ltd. (a
U.K.-based con-
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sulting firm) estimates that revenues from the X.25 packet-switched data
networking services in Western Europe alone totaled approximately $2.7 billion
in 1996, excluding revenues from such services as leased lines, frame relay and
ATM. Data networking applications include:
Private network services; intranets. Many companies are utilizing their own
"private" networks to meet their specific communications requirements, including
voice and data communications, business television transmissions, video
teleconferencing, high speed fax and e-mail. Corporate networks offer higher
performance, greater control and security than can be provided through the
public network. Corporations are also taking advantage of intranets to
distribute information within their own companies using Internet technologies.
Data inquiry, collection and retrieval. Hotel and travel reservation systems
and financial enterprises use private communications networks for database
inquiries and retrieval of information stored on computers. Banks use such
networks to verify account balances and connect automatic teller machines to
computers. Retail establishments verify credit standing and gather inventory
information. Other businesses use private communications networks to gather data
from multiple locations and transport it to central locations for analysis.
Internet. Business and consumers rely on the Internet for a growing number of
services, including research, e-mail, data exchange, software and graphics,
financial services and shopping, and even voice communications. These
applications are predicted to continue to expand and diversify in the future as
enabling technologies mature.
Image transmissions. Manufacturing, publishing, research and medical
industries use dedicated communications networks for high-resolution image
transmissions requiring large amounts of bandwidth.
Government networks. Network telecommunications are employed for complex
military and nonmilitary government applications, including administrative and
logistical functions, that require high security and customer network control.
Orion believes that the demand for international data networking will
continue to grow as a result of (i) the shift to client/server computing, (ii)
the proliferation of bandwidth intensive applications and the development of
protocols such as frame relay to handle these applications, and (iii) use of the
Internet and intranets as part of main-stream corporate communications.
(i) Shift to client/server computing. Businesses are increasingly
shifting from using large host computers and centralized data network
architectures to distributed PC and workstation based platforms. As a
result, businesses require more private network infrastructure to establish
and interconnect local and wide area networks. As businesses expand, the
ability to link multiple locations becomes more important.
(ii) Proliferation of bandwidth intensive applications; frame relay.
Companies are relying more heavily on applications such as CAD/CAM and
image transfer that require more bandwidth and result in traffic patterns
that involve bursts of transmissions. In addition, there is increasing
demand for near-instantaneous response time and more reliable data
transport. Frame relay services support these applications and reduce the
cost of fully and partially meshed networks. The Company expects that
demand for frame relay services will experience rapid growth through the
year 2000.
(iii) Expansion in Internet and intranet services. The Internet is
becoming a major vehicle for economic and social activity enabling broad,
global access to financial and business information, research material, and
information on leisure, arts and general interest topics. Business uses of
the Internet include communication within and among businesses, electronic
commerce, advertising and merchandising. Internet usage has also led to
increased demand for "intranet" services for corporate applications.
Intranet servers are used for publishing information, processing data and
data-based applications and collaboration among employees, vendors, and
customers.
The significant growth in data networking services has led to rapid growth in
demand for satellite-based networks. Multinational companies are not always able
to implement client/server architectures, install wide bandwidth applications or
employ Internet and intranet solutions in every market due to
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underdeveloped terrestrial communications infrastructure. Therefore, a growing
use of VSATs is to provide wide bandwidth capacity to industrial sites in
emerging markets and remote locations. Recent Comsys and Price Waterhouse
reports have identified an installed base of 140,000 to 160,000 VSATs and
predict significant worldwide growth over the next few years.
ORION MARKET OPPORTUNITY
The Company believes that demand for satellite-based communications services
will continue to grow because of (i) the expansion of businesses beyond the
limits of wide bandwidth terrestrial infrastructure, (ii) accelerating demand
for high speed data services, (iii) growing demand for Internet and intranet
services, especially outside the U.S., (iv) increased size and scope of
television programming distribution, (v) worldwide deregulation of
telecommunications markets and (vi) continuing technological advancements.
(i) Expansion of business beyond the limits of wide bandwidth
terrestrial infrastructure. Overall growth in the international
telecommunications market reflects the increasingly international nature of
business, the increasing importance of emerging and newly industrialized
economies and the increase in international trade. International businesses
expanding into emerging markets often rely on the incumbent communications
service providers for voice circuits. However, as large organizations
increasingly rely on more sophisticated, high speed communications services
to run their businesses, many of these companies face operational
bottlenecks when attempting to implement more sophisticated communications
networks. These problems are faced both by companies in emerging markets
and companies in developed markets that rely on "last mile" copper
infrastructure to interconnect with a fiber optic network. Satellites
provide wide bandwidth end-to-end service directly connecting customer
premises and bypassing the limitations of terrestrial facilities.
(ii) Accelerating demand for high speed data services. The growth of
graphical user interfaces, the popularity of bandwidth-intensive
applications such as CAD/CAM, the incorporation of high-resolution
electronic images into business processes and video teleconferencing have
necessitated major upgrades of corporate data networks to accommodate the
high data transfer requirements of these applications. Most of these high
speed data services require fiber optic cable or other high bandwidth
connections to the customer premises. Even in developed markets, the "last
mile" connection to the customer premises often consists of copper wire,
which cannot support many high speed data services. Satellites are well
positioned to take advantage of this trend because they provide reliable
high bandwidth service everywhere in their coverage areas, reaching sites
in underdeveloped areas, and bypass "last mile" copper wire facilities that
are unable to support high speed communications.
(iii) Demand for Internet and intranet services. The growth in Internet
and intranet services has further strained corporate network
infrastructures. The utility of Internet services to users is often
constrained by the lack of sufficient bandwidth to support high-resolution
graphical applications and images. Even where infrastructure quality is
high, the rapid growth of the Internet continues to create network
congestion. Users are sometimes unable to use current-generation software
or gain high speed access to the Internet due to the poor quality of their
local terrestrial infrastructure. Satellites have many advantages in
delivering Internet services. Satellite-based networks provide services
directly to customer premises, bypassing terrestrial bottlenecks and
congested Internet routing facilities. In addition, satellite based
networks can be designed to support asymmetric and multicast Internet
traffic much more efficiently than terrestrial networks.
(iv) Increased size and scope of television programming distribution.
The global television market is experiencing significant growth, both in
terms of the number of broadcasters creating programming and the number of
channels available to viewers. Within the U.S., the number of television
broadcast and cable television program networks grew from three in 1970 to
over 100 in 1993 and to approximately 200 in 1996. U.S. and international
broadcasters are seeking to expand into each others' markets, increasing
the need for satellite transmission capacity. Non-U.S. broadcasters are
using international satellites to distribute domestic programming to U.S.
and other overseas audiences of similar cultural heritage. Furthermore, the
Company believes that as the number
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of broadcasters and channels increases, individual competitors will have a
greater need for competitive differentiation which will increase the use of live
transmissions and expand television coverage. Multichannel programming is
expanding rapidly in Eastern Europe, Latin America and Asia. The growth in
multichannel programming has increased the demand for international programming
such as news and sports. Orion is well positioned to take advantage of this
growth due to its high-power Ku-band satellite and transatlantic footprint.
(v) Worldwide deregulation of telecommunications markets. During the past
decade many countries have liberalized their telecommunications markets in order
to permit new competitors to provide facilities and services. These changes have
been particularly apparent in Europe, where Orion currently has the ability to
deliver network service to and among points in 27 countries. Deregulation is
also creating new competitors to national telecommunications companies, which
represent potential additional customers for the Company's services.
(vi) Continuing technological advancements. The following recent
technological advances are expected to increase capacity, efficiency and demand
for satellite services:
1. High Power Satellites. The ability of service providers to deliver
high quality services directly to customer premises has greatly improved
with the development of high power satellites. Older, lower power
satellites require large, expensive earth stations to receive
transmissions. Typically these earth stations were located outside urban
areas and required interconnection with public telephone systems. High
power satellites, such as Orion 1, enable the use of small, inexpensive
VSAT earth stations that may be installed at customer locations, thereby
reducing customer costs and bypassing all terrestrial facilities.
2. Meshed Network Services. Traditional VSAT networks employ a hub/star
architecture anchored by an expensive hub earth station that controls the
network and communicates with each of the VSATs. Recent advances in VSAT
technology have led to the creation of fully meshed satellite-based
networks. These networks offer less transmission delay than hub/star
networks by enabling any network node to communicate with any other network
node directly through the satellite without having to transmit through a
central network control point.
3. Frame Relay. The Company believes that despite rapid advances in
network services and application software, many companies hesitated to
implement meshed data networks due to high overhead costs generated by
descriptive and routing commands required to travel with the data traffic.
Frame relay technology reduces the number and complexity of commands needed
to send data, and enables companies to implement more cost-effective meshed
networks. To meet customers' demands for fully meshed frame relay network
services, the Company has developed its VISN service.
4. Compressed Digital Video. CDV technology is designed to compress up
to ten high-quality video channels into the same bandwidth that previously
carried one or two analog channels. This technology is creating a rapid
expansion in the number of available video channels with improved
transmission quality. CDV lowers the per-channel cost of delivering
programming via satellite and cable television systems, thereby enabling
more programming options to be provided to smaller markets. The Company
believes that CDV will enable continued growth in the number of video
channels and also accelerate broadcasters' efforts to distribute their
programming internationally. The Company also believes that CDV will result
in higher total revenues per transponder as more customers can be served
per transponder. However, CDV may also in effect increase the supply of
satellite transponders, causing prices to decline. See "Risk Factors --
Potential Adverse Effects of Competition." Although CDV is just beginning
to be adopted in the industry, as of September 30, 1996, approximately 63%
of Orion's video customers used CDV technology.
ORION SERVICES
Orion provides satellite-based digital communications services comprised of:
(i) private network services for multinational business and governmental
customers, (ii) Internet backbone and access ser-
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vices and (iii) satellite transmission capacity services, including video
distribution services for broadcasters, news organizations and international
carriers. As indicated by the charts below, 61% of revenues for the nine months
ended September 30, 1996 were derived from the sale of satellite capacity
(primarily for video distribution services). However, 62% of bookings for the
nine months ended September 30, 1996 were from private network and Internet
services. These figures are consistent with the Company's strategy of building a
stable base of revenues through sales of transmission capacity and then focusing
on the delivery of value-added private network services to end-users.
[GRAPHIC]
- ----------
* Bookings represent new customer contracts executed during the period. See
"Risk Factors -- Uncertainties Relating to Backlog."
PRIVATE COMMUNICATIONS NETWORK SERVICES
International Leased Line Services. Orion's international leased line
services include Digital Link and Digital Channelized Link. Digital Link can be
designed as a "point-to-point" private network service directly connecting
customer locations or as a "point-to-multipoint" service for customers seeking
to transmit communications from a central location to numerous remote sites.
Orion also offers Digital Channelized Link, a multiplexed version of Digital
Link that integrates digitally compressed voice, fax and data traffic into a
single channel. Digital Link and Digital Channelized Link services have been
offered by Orion since 1993. International leased line services have constituted
a majority of Orion's bookings of private communications network services to
date.
One customer, a major multinational consumer goods company, required
voice/fax and data connectivity from nine offices in Central and Eastern Europe
to the company's U.S. headquarters, utilizing data speeds of up to 128 Kbps. The
sites are manufacturing centers for the customer's soap and toiletry products
and the customer uses Orion's service for managing inventory and "just-in-time"
order entry. The customer was seeking a "one-stop shopping" solution delivered
by a single network service provider. The customer investigated two alternative
networking solutions and selected satellite connectivity provided by Orion over
terrestrial facilities provided by the local PTTs due to superior quality.
International Data Networking Services. Orion's fully-meshed frame relay
based international data networking service, "Virtual Integrated Sky Network"
("VISN"), allows customers to transmit and receive voice, fax and data
communications, including intranet services, among multiple locations
simultaneously. VISN was developed by Orion and is produced by Nortel Dasa (a
joint venture among Northern Telecom, Dornier GmbH, and Daimler Benz Aerospace
AG). The first phase of this service became available to customers commencing in
the third quarter of 1995, and subsequent phases of the service have been
introduced during 1996 and are expected to be introduced during 1997, including
the addition of video teleconferencing. VISN offers customers bandwidth on
demand for data, voice and fax and, following the introduction of in-process and
future releases, customers will have the option to be charged on a "pay per use"
basis (e.g., minutes of use for voice and volume for data). VISN employs TDMA
technology, which further increase the effective bandwidth available for data
transmission. The VISN
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product was awarded "Best New Transport Technology Product" at the 1995 ComNet
New Product Achievement Awards Competition. Most customers have between four and
ten sites, and generally have minimum data rates with the ability to use
substantially greater bandwidth for bursts of traffic.
A VISN customer, Creditanstalt Bankverein, Austria's second largest bank,
needed a voice and data network among all of its branches in Central and Eastern
Europe. Data applications varied from electronic mail to transfer transactions
to its data center in Vienna, along with voice requirements for interoffice
telephone calls and facsimile transmission. Creditanstalt investigated
terrestrial leased line and dial-up services to satisfy its requirements.
Orion's VISN service offered full meshed, frame relay network service which
supports both voice/fax and data transmission simultaneously. Creditanstalt
replaced its terrestrial network with a nine site VISN network using data speeds
of up to 256 Kbps.
INTERNET BACKBONE AND ACCESS SERVICES
The Company believes that the rapid growth of the Internet has created
substantial opportunities for Orion. First, the United States has become the
residence of the majority of the world's Internet content. Companies are looking
for reliable, wide bandwidth connections which bypass congested Internet network
segments. Orion's transatlantic capacity is well suited for companies in Europe,
including Internet Service Providers ("ISPs"), seeking high-speed access to the
U.S. Internet. Second, the Internet has begun to evolve from a user centered
"pull" environment (users requesting information) to a content provider centered
"push" environment (information delivered to users without concurrent request).
Broadly distributed entertainment, information and advertising via the Internet
are well suited for broadcast, point-to-multipoint communications facilities,
such as satellite. By using satellite broadcasts to transmit the most popular
Internet content to regional locations, ISPs can reduce their costs and relieve
network congestion. Finally, Internet data communications are typically
asymmetric. A typical, large Internet data transmission is predicated by a user
request that comprises only a few bytes of traffic. This interaction is
inefficient when carried over terrestrial full-duplex networks, which carry the
same capacity in both directions. Orion's satellite based solutions can be
designed with different amounts of capacity in each direction, providing an
inexpensive circuit for user requests and high-speed, reliable and available
capacity for the data that flows back to the user.
Although Orion's Internet services were introduced only in the second quarter
of 1996, sales of such services constituted 16% of new service bookings for the
nine months ended September 30, 1996. Orion offers three Internet-related
services, described below.
ISP Backbone Service. Orion's DirectNet I service is designed for European
ISPs. The service combines a dedicated, high speed point-to-point circuit
between the ISP's points of presence in Europe and the North American Internet
through a dedicated, fully redundant backbone connection. Orion also offers
additional features with its DirectNet I service, including 24-hour network
monitoring, control and support and a 99.5% network availability guarantee and
associated downtime credits. Orion is pursuing requirements or joint venture
arrangements with ISPs in which all of their transatlantic traffic would be
carried over Orion 1 as it develops. For example, Orion has an arrangement with
PSINet Inc. in which Orion has agreed to serve as the supplier for PSINet's
backbone, connecting PSINet's various points of presence in Europe to the U.S.
Internet backbone. Orion's ISP customers include, for example, companies such as
Global Ukraine, an ISP based in Kiev. Global Ukraine sought Internet
connectivity to the United States backbone with advanced technical features.
Orion now provides Global Ukraine with a 256 Kbps circuit from the Ukraine to
the United States with a connection into the U.S. Internet at three network
access points, providing route diversity and ensuring fast response time by
avoiding points of potential network congestion. Orion does not expect DirectNet
I to generate more than 10% of its revenues.
Corporate Internet Access. Orion's DirectNet II service is offered to
international corporations requiring high volume data transmission in connection
with World Wide Web browsing and downloading. DirectNet II provides a
point-to-point circuit between the North American Internet and the corporation's
premises. Orion offers large corporations Internet access service by reselling
the Internet access services of several large ISPs, such as DIGEX and UUNet.
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Multicast Satellite-Based Internet Services. Orion recently introduced its
WorldCast service which allows ISPs or corporate users to significantly reduce
Internet bandwidth and ground facility costs. The service is based on an
asymmetric architecture which couples wide bandwidth satellite broadcasting with
narrow bandwidth terrestrial links to the Internet. Furthermore, WorldCast can
provide a single channel that is shared among multiple ISPs, which can remove a
significant amount of traffic from ISP terrestrial networks. The Company has
recently taken orders from customers, but is not currently providing any
customers with this service.
VIDEO DISTRIBUTION AND OTHER SATELLITE TRANSMISSION SERVICES
Orion provides transmission capacity to cable and television programmers,
news and information networks, telecommunications companies and other carriers
for a variety of applications. Approximately two-thirds of Orion's transmission
capacity services consist of video services. The Company offers transmission
capacity services under long term contracts, with approximately 35% of such
services being under contracts of three years or less, 14% being under contracts
of approximately four to six years in duration and approximately 51% being
delivered under longer term contracts (such percentages being based upon
contract values). The remainder consists principally of occasional use services
for periods of up to a few hundred hours.
Video Services -- Contribution. Orion's video services include
"contribution," the long-distance transport of video signals (usually one or
more television channels) to one location. Viacom has leased capacity for one
channel on Orion 1 for the purpose of occasional or full time transmission for
video programming from its U.S. facilities to a broadcast facility in London.
From there it can be inserted into programming and rebroadcast in Europe.
Orion's contribution services also include transport of news programming for
RTL, a major commercial broadcast network in Germany. RTL needed to interconnect
its various news bureaus in Germany and the U.S. to transmit news stories to its
headquarters in Cologne. Orion provided 24 MHz of transatlantic transmission
capacity service allowing transmission of RTL's programming in compressed
digital video format.
Video Services -- Distribution. Cable and television programmers use Orion's
satellite transmission services for distribution of television programming to
local broadcast stations, cable head-ends, MMDS (multichannel microwave
distribution) systems and SMATV (satellite master antenna television). Orion has
a joint marketing agreement with NTL, which operates one of the largest video
gateways in Europe, located in downtown London. Orion and NTL offer programmers
uplink, compression and distribution to cable head-ends throughout the United
Kingdom and to locations in Europe. Orion's ability to offer video distribution
services is aided by the transponder switching capabilities of Orion 1, which
are (and those of Orion 2 and Orion 3 are expected to be) designed to permit
programs to be distributed simultaneously throughout the satellite's coverage
area.
Orion's video distribution customers include Black Entertainment Television,
Inc. ("BET"), which was seeking a video distribution service for the
distribution of its BET On Jazz International Network, an internationally
distributed programming network dedicated to international Jazz and Blues
artists. BET required receipt of its signal at its headquarters in Washington,
D.C., conversion to a European TV standard, digital compression and uplinking of
the compressed digital video signal for distribution to cable head ends in the
United Kingdom and other sites in Europe.
News and Special Events. Orion 1 is used for transmission of special events
or remote feeds to international news bureaus from television stations and
on-location mobile transmitters. Because Orion's Ku-band technology and VSAT
ground segment infrastructure offers high reception sensitivity, the Company is
especially effective in transmitting television signals sent from low-powered
portable transmitters typically used by news organizations and program
distributors. In contrast to video contribution services, news and special
events are characterized by occasional use rather than long-term capacity
contracts. CNN selected Orion's service for its coverage of Bosnia, and Orion
provided service to the European Broadcasting Union for coverage of the Olympics
in Atlanta.
International Carriers. Orion satellite transmission services are used by
international carriers to provide backup for terrestrial lines and to provide
communications services to areas with inadequate telecommunications
capabilities. These carriers resell Orion's capacity as part of their own
services.
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Capacity Sales. Orion sells bulk capacity to resellers who use Orion's
transmission capacity as one component of a customer's end-to-end communications
solution. For example, Orion currently sells capacity to a number of firms that
resell Orion's capacity to governmental organizations.
Orion offers a range of value-added services in conjunction with its video
distribution and other satellite transmission services. Such services may
include the provision of video uplinking and receiving stations, digital
compression equipment and software, transmission monitoring and gateway
interconnection services.
FEATURES AND BENEFITS
Orion's satellite-based services offer customers a number of important
features, which provide significant benefits versus competing alternatives.
Bypass terrestrial network and multiple international connection points.
Orion's ability to bypass terrestrial facilities improves service reliability
and quality by reducing potential points of failure and avoiding "last mile"
limitations. In addition, terrestrial bypass allows Orion to avoid the multiple
in-country toll charges of terrestrial facilities and thereby reduces cost.
Direct end-to-end service to customer sites. Orion provides service from
rooftop to rooftop using VSAT earth stations located on customer premises. This
"end-to-end service" is reliable, rapidly installed, easily upgraded and avoids
the "last mile" limitations of some terrestrial alternatives.
Ubiquitous coverage. Orion delivers wide bandwidth service to emerging
markets and remote locations where there are no effective terrestrial
alternatives.
One-stop shopping. Orion provides its customers with a single point of
contact for customer care, including service, billing and support.
Two-way communications for all sites. Orion's meshed network solutions and
frame relay services promote network efficiency and allow real-time data
transfer among dispersed network points.
Well-suited for asymmetric communications traffic. Orion's network solutions
can be designed to carry asymmetric traffic efficiently, which increases
performance and lowers cost to customers for services such as Internet services.
Point to multipoint capability. Orion's ability to broadcast video, data and
voice to multiple locations simultaneously enables efficient network design.
High power Ku-band transmissions, high reception sensitivity. Orion's high
power transmissions allow customers to lower costs by utilizing small, less
expensive earth station equipment. Orion 1's reception sensitivity allows for
effective reception from portable earth stations, an advantage in satellite news
gathering.
Cost-competitive. Orion prices its services to be competitive with both
satellite-based and terrestrial alternatives.
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CUSTOMERS AND BACKLOG
Customers. As of September 30, 1996, Orion had entered into contracts with
167 customers, principally large multinational corporations, European companies
and governmental agencies. These entitles come from many different industries,
including communications, broadcasting manufacturing, government, banking and
finance, energy, lottery, consumer distribution, Internet access services and
publishing. Selected customers from each service area are set forth below.
<TABLE>
<CAPTION>
<S> <C> <C>
Private Network Services: AT&T Deere & Company
Digital Link/Digital Channelized Amoco EDS
Link Amway GE Americom
Chase Manhattan Bank Global One
Citibank News International Limited
Concert Westinghouse
Private Network Services: Balluff & Co. Pepsi Cola
VISN Creditanstalt Price Waterhouse
Internet-related Am. Univ. of Bulgaria LV Net Teleport
Banknet Spectrum
BITS Terminal Bar
Datac TSSA Nask
Global Ukraine
Video Transmission and Other AsiaNet Hughes Network Systems
Black Entertainment Television Hungarian Broadcasting
Bonneville International MCI
British Telecom RTL Television
CNN Telecom Italia
Comsat Viacom International
</TABLE>
More than half of Orion's customers are based in the U.S., but these
customers have a substantial majority of their points of service in Western and
Eastern Europe, as indicated in the chart below.
[GRAPHIC]
Orion has entered into a contract with DACOM Corp., a Korean communications
company which provides international and long distance telephone and leased line
services, international and domestic data communications and value added network
services. Under the contract, DACOM will, subject to certain conditions, lease
eight dedicated transponders on Orion 3 for 13 years for direct-to-home
television service and other satellite services, for $89 million payable in
installments from December 1996 through seven months following the lease
commencement date of the transponders. DACOM has the right to terminate the
contract before March 1997 (and Orion would retain the $10 million paid) if it
fails to obtain certain approvals. Payments are subject to refund if Orion 3 has
not been successfully
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launched and commenced commercial operation by June 30, 1999. Although Orion 3
is scheduled to be launched in the fourth quarter of 1998, there can be no
assurance that Orion will be able to meet the delivery requirement of this
contract.
Backlog. At September 30, 1996, Orion had approximately $123 million of
contracts in backlog (after giving effect to the Exchange and related
transactions, which will result in changes to arrangements with Limited Partners
that reduce backlog by approximately $11 million), as compared to approximately
$95 million at September 30, 1995. The backlog contracts generally have terms of
between three and four years. Orion presently anticipates that at least $86.4
million of its backlog will be realized after 1997. Orion has begun to receive
contract renewals under expiring contracts (under some of the earliest
contracts, which were entered into in 1993). The size of contracts varies
significantly, depending on the amount of capacity required to provide service,
the geographic location of the network and other services provided. As of
September 30, 1996, Orion had a VSAT installation backlog of 68 units.
Although many of the Company's customers, especially customers under large
and long-term contracts, are large corporations with substantial financial
resources, other contracts are with companies that may be subject to other
business or financial risks. If customers are unable or unwilling to make
required payments, the Company may be required to reduce its backlog figures
(which would result in a reduction in future revenues of the Company), and such
reductions could be substantial. The Company has recently instituted tighter
credit policies, and has taken steps to remove from backlog arrangements with
customers who have not taken service or have not made all required payments. In
the second quarter of 1996, the Company determined that one large customer under
a long-term contract (accounting for backlog of approximately $19.9 million) was
not likely to raise the necessary financing to commence its service in the near
future, and accordingly the Company no longer considers such contract part of
its backlog. Also in the second quarter of 1996, the Company removed from its
backlog contracts with a customer (accounting for backlog of approximately $4.5
million) which had ceased paying for the Company's services. In the fourth
quarter of 1996, the Company removed $10.4 million from its backlog related to
contracts under which customers failed to use the contracted service or failed
to make timely payment. The Company's contracts commence and terminate on fixed
dates. If the Company is delayed in commencing service or does not provide the
required service under any particular contract, as it has occasionally done in
the past, it may not be able to recognize all the revenue it initially includes
in backlog under that contract. In addition, the current backlog contains some
contracts for the useful life of Orion 1; if the useful life of Orion 1 is
shorter than expected, some portion of backlog may not be realized unless
services satisfactory to the customer can be provided over another satellite.
See "Risk Factors -- Uncertainties Relating to Backlog."
SALES AND MARKETING
Orion uses both direct and indirect sales channels. Orion markets its private
communications network services and Internet services through direct sales,
local representatives and distributors in Europe and the United States, and
wholesale arrangements with major carriers, Internet service providers,
resellers and systems integrators. Orion markets its video distribution and
other satellite transmission services primarily through direct sales. Orion also
has established arrangements with local companies in most countries within the
Orion 1 footprint to assist Orion with selling efforts and to provide customer
support and network maintenance functions in those countries (as discussed below
under the caption "Network Operations; Local Ground Operators").
Orion generally will enter into a single contract with customers covering
service to a number of countries. Orion offers the business customer a single
point-of-contact, a single contract and one price for its entire network, which
Orion believes constitutes true "one-stop shopping." Orion prices its services
centrally, using a single, easily administered set of pricing procedures for
customer networks.
Marketing will be critical to Orion's success. However, Orion has limited
experience in marketing, having commenced full commercial operations in 1995.
Orion's marketing program until recently consisted of direct sales using a U.S.
based sales force and indirect sales channels, including Limited Partner sales
representatives, for sales in Europe. The majority of Orion's contract bookings
to date have been
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generated by its direct sales force. Certain of Orion's indirect sales channels
in Europe have not met expectations. Orion has been significantly increasing its
direct sales capabilities in Europe, particularly with respect to sales of
private communications network services. Although Orion believes that the
increase in its European sales capabilities will increase its bookings, there
can be no assurance regarding the timing or amount of such increase. Sales of
Orion's services generally involve a long-term complex sales process, and
Orion's bookings have fluctuated significantly. See "Risk Factors -- Risks
Relating to Potential Lack of Market Acceptance and Demand; Ground Operations."
The Company may from time to time enter into joint ventures or acquire
businesses which provide it with additional customers or which enhance its
marketing capabilities. Although the Company is presently considering one such
possible acquisition, it does not have binding arrangements at the present time.
The Company believes that such acquisition, if consummated, would not have a
material effect on the Company. See "Risk Factors -- Risks Concerning Ability to
Manage Growth."
DIRECT SALES
Orion has assembled a direct sales force of 31 (as of December 15, 1996 as
increased from 26 at June 30, 1996) full-time employees in the United States and
Europe to offer its private communications network and satellite transmission
services. Approximately 68% of the sales force is based in the United States (in
Maryland) and approximately 32% is based in Europe. Orion expects to continue to
expand its sales force significantly throughout 1997, both in the U.S. and
Europe.
INDIRECT SALES CHANNELS
Representatives/Distributors. Orion has entered into agreements for the
marketing of its private communications network services in the United Kingdom,
France, Germany, Austria, Italy and other European countries. These agreements
call for sales, marketing and customer support services in specified
geographical areas, generally on a non-exclusive basis. Generally, the duration
of these agreements is three years. Third party sales representatives receive
commissions and fees for sales and customer support services, each of which are
payable over the life of the customer contracts to which the representative's
services relate and which are based upon the revenues derived. Sales
representatives are supervised by Orion sales managers, who establish marketing
strategies with the representatives, establish pricing, attend certain sales
calls, develop marketing materials and sales training tools, coordinate joint
efforts in promotional events and provide information about Orion's services.
Orion also provides engineering support to its sales representatives. Orion
provides some of these functions to support the sales efforts of its
distributors. Distributors purchase Orion's services at wholesale prices and
resell those services to customers at prices determined by the distributors. Two
Limited Partners who serve as sales representatives (and ground operators) are
entitled to receive additional commissions under a "profit sharing" formula
based on their overall contribution to sales, but no amounts have been paid
under such formula to date. Orion expects that unless Limited Partners sales
representatives increase their sales significantly, payments under the profit
sharing arrangement will not be material.
Major Carriers and Other Wholesalers. Orion has entered into distributor
resale arrangements with major carriers, teleport operators, resellers and other
companies in the United States and internationally. These distributors typically
purchase communications network services from Orion at a wholesale rate for
resale to their customers. This represents an important sales channel for the
Company, and the Company is focusing on strengthening these relationships. Major
carriers employ substantial sales forces and have the advantage of being
existing providers to many of Orion's target customers, which makes marketing
easier and increases awareness of customer needs.
NETWORK OPERATIONS; LOCAL GROUND OPERATORS
Orion has a centralized network operations function at its corporate
headquarters in Rockville, Maryland, supported by arrangements with local
companies in most countries within the Orion 1 footprint who assist Orion with
selling efforts and perform customer support and network maintenance functions.
Orion's relationships with ground operators are critical to providing integrated
service be-
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cause ground operators obtain necessary licenses, install and maintain the
customers' networks, provide in-country business experience and often facilitate
market entry.
Network Operations. Once the Company enters into a contract with a customer,
it finalizes the design of the customer's network, acquires the required
equipment and arranges for the installation and commissioning of the network.
Upon commencement of service, Orion also monitors the performance of the
networks through its U.S. based network management center, located at its
corporate headquarters in Rockville, Maryland, and from facilities in Europe.
The network management center allows Orion to perform diagnostic procedures on
customer networks and to reconfigure networks to alter data speeds, change
frequencies and provide additional bandwidth.
Ground Operators. Through arrangements with 30 local ground operators, Orion
currently has the ability to deliver network services (through Orion 1 or leased
capacity on other satellites) to or among points in 27 European countries, the
United States and Mexico (which comprise substantially all of the countries
within the coverage area of Orion 1), as well as arrangements to deliver network
services in certain other Latin American countries. The ground operator
agreements call for installation and maintenance of VSATs and other equipment,
customer support and other functions in designated geographical areas, generally
on a non-exclusive basis. Generally, such ground operations agreements last
three years. Orion coordinates ground operations services (including service
calls) by its local agents through centralized customer service centers located
at Orion's corporate headquarters and at its facilities in Amsterdam. Orion also
provides its ground operators with installation and maintenance training
materials and support. Ground operators receive fixed fees for installation,
maintenance and other services, which vary depending on the level of services
and the geographic area. Certain ground operators receive payments for customer
support over the life of the related customer contract, based upon the revenues
derived. Two Limited Partner ground operators are entitled to receive additional
fees under a profit sharing formula, but no amounts have been paid under such
formula to date and Orion expects that, unless such Limited Partners
significantly increase the number of VSATs they maintain on behalf of Orion for
Orion's customers, profit sharing payments will not be material. Orion's
operations will continue to depend significantly on Orion being able to provide
ground operations for private network services using representatives and
distributors throughout the footprint of Orion's satellites. In the event that
its network of ground operators is not maintained and expanded, or fails to
perform as expected, Orion's ability to offer private network services will be
impaired. See "Risk Factors -- Risks Relating to Potential Lack of Market
Acceptance and Demand; Ground Operations."
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Set forth below is a map showing the locations of Orion's existing European
ground operators and potential new ground operators.
[Document contains a map of Europe indicating where Orion has ground operators
and where Orion is negotiating the hiring of additional ground operators]
MIGRATION PLAN FOR NEW MARKETS
Prior to the launch of Orion 1, the Company began providing private
communications network services to customers over satellite capacity leased from
others. This early market entry strategy is being extended to Latin America and
Asia with the execution of the Orion 2 Satellite Contract and commencement of
construction of Orion 3 in December 1996. By developing an early market
presence, Orion builds its customer base, establishes relationships with ground
operators and becomes familiar with the regulations and practices in its new
markets prior to launch of its satellites. Upon the launch of Orion 1, Orion
migrated its customer base to its own satellite, and Orion expects to pursue the
same approach for Orion 2 and Orion 3.
In Latin America, the Company has a relationship with a ground operator in
Mexico and is currently providing service to customers in Mexico, Colombia and
Paraguay over leased capacity. The Company intends to migrate such services to
Orion 2 after it commences operations, as Orion did with its Orion 1 satellite.
The Company has three U.S-based direct sales personnel focused on selling in
Latin America, and is pursuing relationships with other potential ground
operators and joint venture partners.
In Asia, the Company has assigned two full time personnel to pursue
arrangements with potential ground operators and joint venture partners, and has
commenced discussions with such entities in a number of Asian countries. Orion
has begun the process of identifying potential sales representatives in
countries within the Orion 3 footprint. The Company has also begun discussions
with existing customers who have
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operations within the Orion 3 footprint and have expressed an interest in
procuring Orion's services in Asia. Orion has started to identify other
potential multinational and Asia-based customers, and plans to open a regional
office in Asia in the second half of 1997. The Company expects its marketing for
Orion 3 will be assisted by the $89 million pre-construction lease by DACOM, a
Korean communications company, of eight of Orion 3's transponders for
direct-to-home service and other satellite services. See "-- Implementation of
the Orion Satellite System -- Orion 3 -- Pre-Construction Customer."
IMPLEMENTATION OF THE ORION SATELLITE SYSTEM
Orion currently provides its services with Orion 1 and with facilities leased
from other providers covering areas outside the satellite's footprint.
Ultimately the Company will provide these services with three satellites,
together with facilities leased outside of its footprints. Orion 1 provides
coverage of the Northern Atlantic Ocean region. Orion 2 is being designed to
cover the Atlantic Ocean region but with coverage of points further East (into
the Commonwealth of Independent States) and South (into Latin America and
Africa), and Orion 3 is being designed to cover the Asia Pacific region.
The design, construction, launch and in-orbit delivery of a satellite is a
long and capital-intensive process. Satellites comparable to Orion's typically
cost in excess of $200 million (exclusive of development, financing and other
costs) and take two to three years to construct, launch and place in orbit.
Prior to launch, the owner generally must obtain a number of licenses and
approvals, including approval of the host country's national telecommunications
authorities to construct and launch the satellite, coordination and registration
of an orbital slot (of which there are a limited number) through the ITU to
avoid interference with other communications systems and a consultation on
interference with INTELSAT (and EUTELSAT in the case of European satellites).
Obtaining the necessary consents can involve significant time and expense, and
in the case of the United States, requires a showing that the owner has the
financial ability to fund the construction and launch of the satellite and to
operate for one year. The Company has commenced construction of Orion 3 and
plans to commence construction of Orion 2 prior to receipt of all regulatory
approvals. Failure to obtain such approvals prior to launch would have a
material adverse effect on the Company. See "Risk Factors -- Approvals Needed;
Regulation of Industry" and "Regulation" below.
Orion 1 is expected to have an in-orbit useful life of approximately 10.7
years, estimated to end in October 2005, and Orion 2 and Orion 3 are expected to
have in-orbit useful lives of 13 years and 15 years, respectively (based upon
present design). While there can be no assurances that adequate financing and
regulatory approvals will be obtained, Orion plans to launch replacement
satellites as its satellites reach the end of their useful lives.
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ORION 1
Orion 1 was launched in November 1994 and commenced commercial operations in
January 1995.
Satellite Design and Footprint. Orion 1, which is in geosynchronous orbit at
37.5' West longitude, is a high power Ku-band telecommunications satellite
that contains 28 transponders of 54 MHz bandwidth and six transponders of 36 MHz
bandwidth (although one of these transponders has not operated in accordance
with specifications, as described below). The footprint of Orion 1 is shown
below (although certain transponders of Orion 1 can be reconfigured to match
changing business and telecommunications requirements).
[GRAPHIC]
Satellite Construction and Performance. Orion 1 was constructed by Matra
Marconi Space's subsidiary MMS Space Systems Limited, one of the major satellite
contractors in Europe. Orion 1 was designed both for the delivery of high-speed
data and for high-powered digital video transmission to corporate users. In
particular, Orion 1 was designed with high reception sensitivity, which enables
two-way transmission from and to small earth stations, reducing the equipment
and transmission cost to customers. Orion 1 has transatlantic networking
capability, which allows users to uplink data in the U.S. or Europe and downlink
that transmission simultaneously to the U.S.
and Europe.
This configuration simplifies customers' transatlantic networking solutions.
Orion believes that Orion 1's Ku-band technology and VSAT ground segment
infrastructure is among the least expensive, most flexible technologies for
interactive satellite transmissions in the North Atlantic market. Like most
recent satellites, Orion 1 offers digitally compressed transmission, in addition
to analog transmission, which allows the satellite to increase by up to ten fold
its usable bandwidth per transponder, leading to greater revenue per transponder
and greater network availability to customers in need of bandwidth on demand.
When Orion 1 was delivered into orbit, one of the 36 MHz transponders with
coverage of the United States did not perform in accordance with contract
specifications. Orion settled the matter with the manufacturer for a one time
refund of $2.75 million (which amount was applied as a mandatory prepayment
under the existing Orion 1 Credit Facility). In addition, the manufacturer will
pay Orion approximately $7,000 per month for the life of the satellite under the
warranty to the extent the transponder is not used to generate revenue. Orion
believes that the failure of such transponder to perform in accordance with
specifications will not have a significant impact on Orion's ability to offer
its services.
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In November 1995, one of Orion 1's components supporting nine transponders of
dedicated capacity serving the European portion of the Orion 1 footprint
experienced an anomaly that resulted in a temporary service interruption,
lasting approximately two hours. Full service to all affected customers was
restored using redundant equipment on the satellite. The redundant equipment
currently generates a majority of Orion's revenues. Orion believes, based on the
data received to date by Orion from its own investigations and from the
manufacturer, and based upon advice from Orion's independent engineering
consultant, Telesat Canada, that because the redundant component is functioning
fully in accordance with specifications and the performance record of similar
components is strong, the anomalous behavior is unlikely to affect the expected
performance of the satellite over its useful life. Furthermore, there has been
no effect on Orion's ability to provide services to customers. However, in the
event that the redundant component fails, Orion 1 would experience a significant
loss of usable capacity. In such event, while Orion would be entitled to
insurance proceeds of approximately $47 million and could lease replacement
capacity and function as a reseller with respect to such capacity (at
substantially reduced gross margins), the loss of capacity would have a material
adverse effect on Orion. See "Risk Factors -- Risks of Satellite Loss or Reduced
Performance."
Control of Satellite. Orion uses its tracking, telemetry and command facility
in Mt. Jackson, Virginia (the "TT&C facility") to control Orion 1, and has in
place backup facilities at its headquarters in Rockville, Maryland. In addition,
Orion has a satellite control center at Orion's headquarters in Rockville,
Maryland, from which commands can be sent to the satellite, directly, or
remotely through the TT&C facility. Orion also has constructed a network
management center at its headquarters to monitor the performance of Orion 1 and
to perform diagnostic procedures on and to reconfigure its communications
networks. Orion leases additional facilities in Europe for backup tracking,
telemetry and command and network monitoring functions.
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ORION 2
Schedule and Footprint. Orion intends to launch Orion 2 in the Atlantic Ocean
region to bolster its European capacity and to expand its coverage area in the
Commonwealth of Independent States, Latin America and parts of Africa. Orion 2
will be a high power Ku-band communications satellite which will contain
approximately 30 transponders of 54 MHz bandwidth. Orion has obtained
conditional authorization from the FCC for the orbital slot at 12' West
longitude for operation of Orion 2. The FCC has commenced the coordination
process through the ITU and will commence consultation with INTELSAT upon
request from Orion. Orion currently plans to commence construction of Orion 2
immediately after completion of the Offering and launch Orion 2 late in the
second quarter of 1999. See "-- Satellite Construction, Launch and Performance"
and "Risk Factors -- Launch of Orion 2 and Orion 3 Subject to Significant
Uncertainties."
[Document contains a map of North America, Latin America, Europe, Africa and
Asia showing in shaded areas the proposed coverage footprint of Orion 2]
Satellite Construction, Launch and Performance. Matra Marconi Space and MMS
Space Systems are the prime contractors for Orion 2 and will use MMS Space
Systems' EUROSTAR satellite platform for Orion 2. This platform was previously
used for Inmarsat 2, Telecom 2, Hispasat and Orion 1. Lockheed Martin CLS will
provide launch services for Orion 2 using the Atlas II A-S launch vehicle. Atlas
II A-S, which is larger than the launch vehicle used for the launch of Orion 1,
is an expanded version of Atlas II. All 26 of the Atlas II, II A and II A-S
launches have been successful. There have been more than 500 Atlas flights since
the first research and development launch in 1957. For a discussion of the
Company's financing needs with respect to Orion 2, and related risks, see
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources" and "Risk Factors -- Launch of
Orion 2 and Orion 3 Subject to Significant Uncertainties -- Substantial
Financing Requirements."
The Orion 2 satellite will be tested extensively prior to launch. Matra
Marconi Space is obligated to correct all defects in the satellite or its
components discovered prior to the launch. If Orion 2 is launched
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but fails to meet the specified performance criteria following launch, or fails
to arrive at its designated orbit within 180 days of launch, or is completely
destroyed or incapable of operation, Orion 2 will be deemed a "constructive
total loss." Upon a constructive total loss of Orion 2, Orion would generally be
entitled to order from Matra Marconi Space a replacement satellite on
substantially the same terms and conditions as set forth in the Orion 2
Satellite Contract, subject to certain pricing adjustments. If Orion 2 is
substantially able to perform but fails to meet certain criteria for full
acceptance, Orion 2 will be deemed a "partial loss." Upon a partial loss of
Orion 2, Orion would be entitled to receive a partial refund based on
calculations of Orion 2's performance capabilities. If Orion 2 is not a
constructive total loss or partial loss, but does not meet the specified
performance requirements at final acceptance or for five years thereafter, Matra
Marconi Space may be required to make certain refund payments to Orion up to a
maximum of approximately $10 million. Orion's principal remedy in the case of a
constructive total loss or partial loss will be under the launch insurance the
Company is to obtain. The Orion 2 Satellite Contract provides Orion with an
option to purchase a replacement satellite. Under the contract, Orion has an
option to purchase a replacement satellite for Orion 2, to be delivered in orbit
no later than 21 1/4 months after Orion's exercise of the option. A total or
partial loss will involve delays and loss of revenue, which will impair Orion's
ability to service its indebtedness, including the Notes, and such insurance
will not protect Orion against business interruption, loss or delay of revenues
or similar losses and may not fully reimburse the Company for its expenditures.
See "Insurance" below and "Risk Factors -- Risks of Satellite Loss or Reduced
Performance -- Limited Insurance for Satellite Launch and Operation."
The Orion 2 Satellite Contract provides for incentive payments to encourage
early delivery and limited liquidated damages payable in the event of late
delivery. The incentive payments would equal $25,000 per day for each day that
Orion 2 is delivered prior to the scheduled delivery date. Liquidated damages in
the event of a late delivery of Orion 2 also would be calculated on a daily
basis, with the aggregate amount not to exceed approximately $12 million. These
liquidated damages would be Orion's exclusive remedy for late delivery.
Control of Satellite. Orion expects to use the TT&C facility to control Orion
2, and to use its existing network monitoring facilities in Rockville, Maryland
and backup facilities in Europe.
There can be no assurance that Orion 2 will be launched successfully. See
"Risk Factors -- Launch of Orion 2 and Orion 3 Subject to Significant
Uncertainties."
ORION 3
Schedule and Footprint. Orion intends to launch Orion 3 in the Asia Pacific
region. Orion 3 is expected to cover all or portions of China, Japan, Korea,
India, Hawaii, Southeast Asia, Australia, New Zealand, and Eastern Russia. Orion
3 is expected to be a high-power satellite with 23 54 MHz and two 27 MHz
equivalent Ku-band transponders, 10 36 MHz C-band transponders for use by Orion,
and eight Ku-band transponders to be used by DACOM, a large Asian customer, for
direct-to-home television services and other satellite services. Orion, through
the Republic of the Marshall Islands, has filed the appropriate documentation to
begin the ITU process to coordinate an orbital slot at 139|SD East longitude.
Orion has not commenced the consultation process with INTELSAT with respect to
such orbital slot. Orion commenced construction of Orion 3 in December 1996.
Orion 3 is scheduled to be launched in the fourth quarter of 1998. See "Risk
Factors -- Launch of Orion 2 and Orion 3 Subject to Significant Uncertainties."
For a discussion of Orion's financing needs with respect to Orion 3, see
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources" and "Risk Factors -- Need for
Substantial Additional Capital" and "Risk Factors -- Launch of Orion 2 and Orion
3 Subject to Significant Uncertainties -- Substantial Financing Requirements."
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The proposed coverage of Orion 3 is shown below.
[GRAPHIC]
Pre-Construction Customer. Orion has entered into a contract with DACOM
Corp., a Korean communications company which provides international and long
distance telephone and leased line services, international and domestic data
communications and value added network services. Under the contract, DACOM will
lease eight dedicated transponders on Orion 3 for 13 years for direct-to-home
television service and satellite services, in return for payment of
approximately $89 million payable over a period from December 1996 through seven
months following the lease commencement date for the transponders. DACOM has the
right to terminate the contract before March 1997 (and Orion would retain the
$10 million paid) if it fails to obtain certain approvals. Payments are subject
to refund if the successful launch and commencement of commercial operations of
Orion 3 has not occured by June 30, 1999. Although Orion 3 is scheduled to be
launched in the fourth quarter of 1998, there can be no assurance that Orion
will meet the delivery requirements of this contract. See "Risk Factors --
Launch of Orion 2 and Orion 3 Subject to Significant Uncertainties -- Timing
Uncertainties." As part of the arrangements with DACOM, Orion granted DACOM a
warrant to purchase 50,000 shares of Common Stock at $14 per share.
Satellite Construction, Launch and Performance. Orion has selected Hughes
Space as the prime contractor for Orion 3 and will use a Hughes Space HS 601 HP
satellite platform for Orion 3. Launch services for Orion 3 will be provided
using the McDonnell Douglas Delta III launch vehicle. Delta III,
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which is larger than the launch vehicle used for the launch of Orion 1, is an
expanded version of the Delta II launch vehicle which has had 53 successful
launches with a failure rate of less than 4%. The most recent launch of a Delta
II (on January 17, 1997) resulted in launch explosion. There have been no Delta
III flights to date, and the Company expects its launch to be the third Delta
III flight based upon information provided by the launch vehicle manufacturer
regarding its present flight schedules. For a discussion of the Company's
financing needs with respect to Orion 3, and related risks, see "Management's
Discussion and Analysis of Financial Condition and Results of Operations --
Liquidity" and "Risk Factors -- Launch of Orion 2 and Orion 3 Subject to
Significant Uncertainties -- Substantial Financing Requirements."
Under the Orion 3 Satellite Contract, the Orion 3 satellite will be tested
extensively prior to launch. Hughes Space is obligated to correct all defects in
the satellite or its components discovered prior to the launch. The risk of loss
or damage to Orion 3 passes from Hughes Space to Orion at the time of
intentional ignition of Orion 3. After Orion 3 is launched and meets the
specified performance criteria following launch, and has not suffered damage
caused by any failure or malfunction of the launch vehicle, Hughes Space is
required to perform in-orbit testing of Orion 3 to determine whether the
transponders meet the specified performance criteria. If the transponders meet
the specified performance criteria, Hughes Space is entitled to retain the full
satellite performance payments described below. See "-- Insurance" and "Risk
Factors -- Risks of Satellite Loss or Reduced Performance -- Limited Insurance
for Satellite Launch and Operation."
Orion has an option to purchase an additional satellite (which may be used as
a replacement satellite) to be launched within 12 to 19 months after Orion
exercises such option. Orion must pay a fee if it exercises this option; the
size of the fee will depend on whether the additional satellite is required to
be delivered in 12, 15 or 19 months. Hughes Space is obligated to furnish the
replacement satellite on terms substantially similar to those contained in the
Orion 3 Satellite Contract.
The Orion 3 Satellite Contract provides for incentive payments to encourage
satellite performance and limited liquidated damages payable in the event of
late delivery. The incentive payments could total $18 million depending on the
satellite's performance, of which $10 million could be payable upon acceptance
of the Orion 3 satellite and $8 million is payable over the course of the
satellite's operational lifetime. In the event that it is determined during the
Orion 3's operational lifetime that a transponder is not successfully operating,
Orion is entitled to receive payment refunds under the Orion 3 Satellite
Contract. Liquidated damages in the event of a late delivery of Orion 3 also
would be calculated on a daily basis, with the aggregate amount not to exceed
approximately $6 million. These liquidated damages would be Orion's exclusive
remedy for late delivery.
Control of Satellite. Orion expects to lease a tracking, telemetry and
command facility in Asia to control Orion 3 and to maintain backup facilities in
Korea, pursuant to arrangements with DACOM.
There can be no assurance that Orion 3 will be launched successfully. See
"Risk Factors -- Launch of Orion 2 and Orion 3 Subject to Significant
Uncertainties."
ORBITAL SLOTS
Orion 1. Orion has been licensed by the FCC and has completed the
coordination process with INTELSAT to operate Orion 1 in geostationary orbit at
37.5' West longitude.
Orion 2. Orion has obtained conditional authorization from the FCC for the
construction, launch and operation of Orion 2 at 12' West longitude. On behalf
of Orion, the FCC has commenced the orbital slot coordination process through
the ITU. Orion believes that its use of the 12' West longitude slot for Orion 2
is not likely to interfere with proposed uses of adjacent slots filed for by
other governments, except for a possible overlap of 75 MHz with one such filing
as discussed more fully below under the caption "-- ITU Coordination Process."
Orion will consult with INTELSAT regarding Orion 2, and believes that since
there are no INTELSAT satellites located adjacent to the 12' West longitude
orbital slot, the INTELSAT coordination should be obtained in due course.
Orion 3. Orion, through the Republic of the Marshall Islands, has filed the
appropriate documentation with the ITU to begin the ITU coordination process for
Orion 3 at 139' East longitude. Based
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upon the time of filing by the Republic of the Marshall Islands, Orion believes
that the proposed orbital slot for Orion 3 would have effective priority under
ITU procedures with respect to the 139' East longitude orbital slot, but some
proposals for adjacent slots would be entitled to priority over the Company's
proposal (through the Republic of the Marshall Islands) with respect to possible
interference. Orion believes, based upon its monitoring of the other proposals
and information in the industry regarding their progress, that none of the
entities with effective priority over the Company's proposal (through the
Republic of the Marshall Islands) will be able to launch a satellite prior to
launch of Orion 3 to take advantage of such priority. Orion has not commenced
the consultation process with INTELSAT with respect to Orion 3, but as in the
case of Orion 2 expects to complete the INTELSAT coordination in due course.
Other Orbital Slots. Orion has received an authorization from the FCC for a
Ku-band satellite in geostationary orbit at 47' West longitude, and has
coordinated this orbital position with INTELSAT. Orion has also filed an
application with the FCC to operate a satellite at 126' East longitude. The FCC
has filed documentation with the ITU to commence the coordination process for
this slot. In May 1996, in response to Orion's application, the FCC assigned the
U.S. domestic orbital location of 135' West longitude to Orion. In November
1996, the FCC granted authorization to Orion to utilize the slot, conditioned on
Orion submitting financial qualification information, or documentation
justifying a waiver of the financial requirements, within 120 days after the
release of the individual order with respect to Orion's application. Orion
presently intends to seek a waiver with respect to this 120-day requirement, but
believes failure to obtain a waiver would not have a material affect on Orion or
its business. Such 120-day requirement does not apply to authorization
previously granted to Orion, such as for the 12' West longitude orbital slot
proposed to be used for Orion 2.
In September 1995, Orion filed applications for authority to construct,
launch and operate Ka-band satellites at 78.0' East longitude, 93.0' West
longitude, and 83.0' West longitude, and an amendment to its pending application
to construct, launch and operate a Ku-band satellite at 127' West longitude to
add a Ka-band payload. In addition, Orion filed an application to modify its
authority to construct, launch and operate a Ku-band satellite at 47' West
longitude to include a North/South beam configuration. On November 9, 1995,
Orion filed an application for authority to construct, launch and operate a
Ka-band satellite at 12' West longitude. In May 1996, the FCC assigned Ka-band
orbital locations for 33 U.S. companies for international orbital locations,
including two assigned to Orion at 78' East longitude and 126.5' East longitude,
and one at 47' West longitude. This orbital assignment plan was conditioned upon
authorization of the domestic portion of the proposed satellite systems. At
approximately the same time the FCC made ITU filings for these satellites. The
FCC order does not license these satellites, and some of the applications to use
the orbital assignments are subject to further FCC processing. There are ongoing
negotiations among the applicants concerning a consensual Ka-band orbital
assignment plan to be submitted to the FCC to resolve a number of mutually
exclusive orbital assignment requests, including Orion's pending Ka-band
application for 93.0' West longitude, 83.0' West longitude and 127' West
longitude. The FCC has indicated that if a consensus cannot be reached by the
applicants, the FCC will itself resolve these orbital conflicts in the
processing of these applications, and such processing will be in conformity with
yet-to-be adopted Ka-band service rules. There can be no assurance that Orion
will receive final licenses to operate at these orbital positions, or that the
FCC will act favorably on Orion's other satellite filings.
ITU Coordination Process. An international treaty to which the U.S. and the
Republic of the Marshall Islands are parties requires coordination of satellite
orbital slots through the procedures of the ITU. There are only a limited number
of such orbital slots. ITU procedures provide for a priority to attach to
proposals that are submitted first for a particular orbital slot and associated
frequencies, and provide for protection from interference by satellites in
adjacent slots. This priority does not establish legally-binding rights, but at
a minimum establishes certain procedural rights and obligations for and with
respect to the party that first submits its proposal.
Over the past decade, a substantial increase in satellite proposals
introduced into the ITU coordination process has caused delays in that process.
In addition, many proposals are submitted to the ITU for registration of
satellite systems that ultimately are not constructed or launched. As a result,
the ITU is investigating ways to improve or streamline the filing process for
registration of orbital slots. In the
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meantime, it has become international practice for operators who propose to use
a certain orbital slot to investigate and evaluate whether proposals to launch
satellites into the same or a nearby orbital location are likely to result in
actual operation, and for operators to negotiate with other countries or
operators that propose to use the same or a nearby orbital location. There can
be no assurance of the outcome of any objections to this international practice
or as to the results of the ITU's investigations.
Orion is involved in discussions with certain governments concerning their
proposals to use orbital slots. While Orion believes that it can successfully
coordinate and resolve any interference concerns regarding the use of the
orbital locations and frequency bands proposed for Orion 2 and Orion 3, there
can be no assurance that this will be achieved, nor can there be assurance that
ITU coordination will be completed by the scheduled launch dates for Orion 2 and
Orion 3.
In the event that successful coordination cannot be achieved, Orion may have
to modify the satellite design for Orion 2 or Orion 3 in order to minimize the
extent of any potential interference with other proposed satellites using those
orbital locations or frequency bands. Any such modifications may result in
certain features of Orion 2 and Orion 3 differing from those described in this
Prospectus and may result in limitations on the use of one or more transponders
on Orion 2 or Orion 3 or delays in the launch of Orion 2 or Orion 3. In order to
achieve successful coordination, Orion may also have to modify the operation of
the satellites, or enter into commercial arrangements with operators of other
satellites, in order to protect against harmful interference to Orion's
operations. If interference occurs with satellites that are in close proximity
to Orion 2 and Orion 3, or with satellites that are subsequently launched into
locations in close proximity without completing ITU coordination procedures,
such interference would have an adverse effect on the proposed use of the
satellites and on Orion's business and financial performance. See "Risk Factors
- -- Approvals Needed; Regulation of Industry."
APPRAISAL
Ascent Communications Advisors, L.P. ("Ascent") has delivered an appraisal to
the Company valuing Orion 1 at approximately $304 million as of December 1,
1996. In preparing this appraisal Ascent took into consideration the design,
location and capability of Orion 1, supply and demand for transponders and the
market size and growth in each market Orion Atlantic is serving or plans to
serve and the principal competition and revenues and operating costs of Orion 1.
Ascent's appraisal was based on projecting and discounting transponder lease
rates, adjusted for appropriate costs, to derive the present value of the cash
flows associated with the ownership of the transponder capacity of Orion 1.
Ascent considered but rejected the use of replacement cost because, in its
experience, in-orbit transponders often trade at prices substantially in excess
of replacement cost. Ascent also noted that the most accurate way to value Orion
1 would be to identify recent, closely comparable sales of transponders or
satellites serving similar markets. Ascent did not use this method since it was
unable to identify any closely comparable sales. However, Ascent's did identify
the most comparable satellite sales as a check on approach in appraising Orion
1.
Because events and circumstances frequently do not occur as expected and for
the reasons described under "Risk Factors" and elsewhere in this Prospectus,
there will usually be differences between assumed and actual results, and those
differences may be material. Therefore, no assurance may be given that the
appraised value of Orion 1 will be achieved and reliance should not be placed on
such appraised value.
The Company has obtained an appraisal from Ascent because it believes that
the value of Orion 1 may be of interest to purchasers of the Notes as creditors
of the Company, and that such purchasers might be interested in an expert
appraiser's assessment of the value of Orion 1.
INSURANCE
Orion has obtained satellite in-orbit life insurance for Orion 1 covering the
period from May 1996 to May 1997 in an initial amount of approximately $245
million providing protection against partial or total loss of the satellite's
communications capability, including loss of transponders, power or ability to
control the positioning of the satellite. The aggregate premium for in-orbit
insurance for Orion 1 is approximately $6 million per annum.
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Orion intends to procure launch insurance for the construction, launch and
insurance costs of Orion 2 and Orion 3. In the past, satellite launch insurance
was generally procured approximately six months prior to launch. Recently, it
has become possible to obtain a commitment from insurance underwriters well
before that time, which fixes the rate and certain terms of launch insurance.
Orion intends shortly to seek such a commitment from insurance underwriters to
provide launch insurance for Orion 2 and Orion 3. Such insurance is expected to
be quite costly, with present insurance rates ranging at or above 16% of the
insured amount, depending upon such factors as the launch history and recent
performance of the launch vehicle to be used and general availability of launch
insurance in the insurance marketplace (although such rates have reached 20% or
higher in the past several years). Such insurance can be expected to include
certain contract terms, exclusions, deductibles and material change conditions
that are customary in the industry. After launch of Orion 2 and Orion 3, the
Company will need to procure satellite in-orbit life insurance for Orion 2 and
Orion 3. There can be no assurance that such insurance will be available or that
the price of such insurance or the terms and exclusions in the actual insurance
policies will be favorable to the Company. Launch and in-orbit insurance for its
satellites will not protect the Company against business interruption, loss or
delay of revenues and similar losses and may not fully reimburse the Company for
its expenditures. Accordingly, an unsuccessful launch of Orion 2 or Orion 3 or
any significant loss of performance with respect to any of its satellites would
have a material adverse effect on Orion and would impair Orion's ability to
service its indebtedness, including the Notes, and on the value of the Warrants
and Common Stock. See "Risk Factors -- Risks of Satellite Loss or Reduced
Performance -- Limited Insurance for Satellite Launch and Operation."
COMPETITION
As a provider of data networking and Internet-related services, Orion
competes with a large number of telecommunications service providers and
value-added resellers of transmission capacity. As a provider of satellite
transmission capacity, Orion competes with other providers of satellite and
terrestrial facilities.
Many of these competitors have significant competitive advantages, including
long-standing customer relationships, close ties with regulatory and local
authorities, control over connections to local telephone networks and have
financial resources, experience, marketing capabilities and name recognition
that are substantially greater than those of Orion. The Company believes that
competition in emerging markets will intensify as incumbent service providers
adapt to a competitive environment and international carriers increase their
presence in these markets. The Company also believes that competition in more
developed markets will intensify as larger carriers consolidate, enhance their
international alliances and increase their focus on data networking. Orion's
ability to compete with these organizations will depend in part on Orion's
ability to price its services at a significant discount to terrestrial service
providers, its marketing effectiveness, its level of customer support and
service and the technical advantages of its systems.
SERVICE PROVIDERS
Orion has encountered strong competition from major established carriers such
as AT&T, MCI, Sprint, British Telecom, Cable & Wireless, Deutsche Telekom,
France Telecom and Kokusai Denshin Denwa, which provide international telephone,
private line and private network services using their national telephone
networks and link to those of other carriers. A number of these carriers have
formed global consortia to provide private network services, including AT&T --
Unisource Services Company (AT&T, PTT Telecom Netherlands, Telia (Sweden), Swiss
Telecom PTT and Telefonica of Spain), Concert (British Telecom and MCI), and
Global One (Sprint, France Telecom and Deutsche Telekom). Other service
providers include MFS Worldcom (which acquired IDB Communications Group, Inc.
and Wiltel International, Inc.), Infonet, SITA, Telemedia International,
Spaceline, ANT Bosch (which is being acquired by General Electric), Teleport
Europe, Impsat, and various local resellers of satellite capacity. Finally,
service organizations that purchase satellite capacity, VSAT and other hardware
and install their own networks may be considered competitors of the Company with
respect to their own
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networks. Although these carriers and service providers are competitors, some
are also Orion's customers. Orion believes that all network service providers
are potential users of Orion's satellite capacity for the network services they
offer their customers. See "Risk Factors -- Potential Adverse Effects of
Competition."
SATELLITE CAPACITY
Orion provides fixed satellite service and does not intend to compete with
most proposed mobile satellites or mobile low earth orbit systems ("LEO") such
as Globalstar, Iridium or Odyssey (although the Company expects to compete with
Teledesic, a proposed LEO system), or, with the exception of the pre-leased
transponders on Orion 3 to be used for video transmissions, with direct-to-home
satellite systems such as Primestar, DirectTV or EchoStar. Mobile satellite
services are characterized by voice and data transmission to and from mobile
terminals on platforms such as ships or aircraft. Direct-to-home services are
characterized by the transmission of television and entertainment services
directly to consumers. Orion's satellites will compete with trans-Atlantic fixed
satellite systems, European regional and domestic systems and Asian systems.
Existing International and Trans-Atlantic Satellite Systems. The market for
international fixed satellite communications capacity has been dominated by
INTELSAT for thirty years, and INTELSAT can be expected to continue to dominate
this market for the foreseeable future. INTELSAT, a consortium of approximately
140 countries established by international treaty in 1964, owns and operates the
largest fleet of commercial geosynchronous satellites in the world (25
satellites, with additional satellites on order). INTELSAT's satellites have
historically been general purpose, lower-power satellites designed to serve
large areas with public telephone service transmitted between expensive gateway
earth stations. INTELSAT generally provides capacity directly to its signatories
who then market such capacity to their customers. The availability of new
services generally is subject to the discretion of each country's signatory and
INTELSAT is required under its charter to set its pricing in order to achieve a
fixed pre-tax return on equity that is established from time to time by
INTELSAT's board of governors. INTELSAT is considering a restructuring and it is
expected that the Intelsat Assembly of Parties will decide on a new structure
for the organization in 1997. Any restructuring of INTELSAT that increases its
marketing flexibility could materially impact Orion's ability to compete in the
market for private satellite delivered services.
PanAmSat currently operates four satellites, with one satellite providing
coverage in each of the Atlantic Ocean region, the Asia Pacific region and
Indian Ocean region (the fourth covers the Atlantic Ocean region but is near the
end of its useful life). These satellites primarily provide broadcasting
services, such as television programming and backhaul operations. PAS 3,
launched in January 1996, with coverage of the Atlantic Ocean, competes directly
with Orion 1. It has performance attributes which are generally comparable to
those of Orion 1 and carries 16 Ku-band transponders, of which 8 transponders
are capable of providing service to or within Europe, and 16 C-band
transponders. PanAmSat has announced that it intends to launch four additional
satellites, two in 1997 that will provide coverage of the U.S., Central America
and Mexico, and two that will provide coverage of the Indian and Pacific Ocean
regions, respectively, in 1997 and early 1998. PanAmSat is in the process of
selling a controlling interest to Hughes Electronics Corp., which is the largest
private space-related company in the world. This transaction will enhance
PanAmSat's ability to compete with Orion.
Existing European Regional and Domestic Satellite Systems. In Europe, Orion
competes with certain regional satellites systems and may compete with domestic
satellite systems. Regional and domestic satellite systems generally have
limited ability to serve customers with needs for extensive international
networks. Orion's primary competitor in Europe is the major regional satellite
system operated by EUTELSAT. EUTELSAT, established in 1977, presently comprises
over approximately 45 member countries. EUTELSAT operates seven satellites,
providing telephony, television, radio and data services, and has announced a
plan to launch five new satellites through 1998.
Asian Pacific Region Satellite Systems. Orion believes that
currently-operating satellite systems in the Asia Pacific region generally are
limited in their ability to provide private network and similar services at an
acceptable performance level due to insufficient power, limited Ku-band capacity
and
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limited geographic coverage. Nevertheless, there is a large number of satellite
systems operating in Asia. The major Asia Pacific regional satellite systems
include the AsiaSat system licensed in Hong Kong (with two satellites in
operation and a third planned for launch in 1997), the Chinese Apstar system
(also with two satellites in operation and a third planned for launch near the
end of 1997) and the Indonesian Palapa system (with three satellites in orbit
and plans to launch at least three more satellites through 1999). Japan has
licensed several satellite networks for domestic and international service,
including the JCSat series (three satellites in operation and a fourth planned
for launch in 1997), NTT's two N-Star satellites, and Space Communications
Corporation's Superbird A and B (with a third planned for 1997). Optus operates
four Australian domestic satellites that offer limited international coverage
and plans several follow-on satellites. Korea operates Koreasat 1 and 2,
primarily for domestic service, with plans for a third satellite that would
offer expanded regional service in 1999. Thailand has licensed the Thaicom
system, with two domestic satellites in operation, and plans two new satellites
in 1997 offering regional coverage. Measat operates a Malaysian system
consisting of two satellites providing DTH service to Malaysia and parts of
Asia.
Other Satellite Systems. There are numerous satellites other than the ones
discussed above that compete to some extent with Orion. In addition, the Company
is aware of a substantial number of satellites that are in construction or in
the planning stages. Most of these satellites will cover areas within the
footprint of Orion 1 and/or the proposed footprints of Orion 2 and Orion 3. As
these new satellites commence operations, they (other than replacement
satellites not significantly larger than the ones they replace) will
substantially increase the capacity available for sale in the company's markets.
After a satellite has been successfully delivered in orbit, the variable cost of
transmitting additional data via the satellite is limited. Accordingly, absent a
corresponding increase in demand, this new capacity can be expected to result in
significant additional price reductions. For example, Teledesic Corporation
proposes to operate up to 840 low earth orbit small satellites by 2001 to
provide global satellite services (including voice, data and broadband
transmission services). Although Orion cannot assess to what degree, if any,
these proposed satellites might compete with Orion in the future, Teledesic
could provide significant competition to the Company. See "Risk Factors --
Potential Adverse Effects of Competition."
TERRESTRIAL CAPACITY
Orion competes with terrestrial facilities for intra-Europe and
trans-Atlantic capacity.
European Facilities. Orion's services compete with terrestrial
telecommunications delivery services, which are being improved gradually through
the build-out of fiber optic networks and a move from analog to digital
switching. As fiber networks and digital network switching become more
prevalent, the resulting improved and less expensive terrestrial capacity is
increasingly competitive with Orion's services.
Undersea Cable. Undersea fiber optic cable capacity has increased
substantially in recent years. Although Orion believes that undersea cable
capacity is not as well suited as satellite capacity to serve the requirements
of video broadcasters or the demand for multi-point private network services,
fiber optic and coaxial cables are well suited for carrying large amounts of
bulk traffic, such as long distance telephone calls, between two locations.
Operators of undersea fiber optic cable systems typically are joint ventures
among major telecommunications companies. Orion expects strong competition from
these carriers in providing private network services.
REGULATION
REGULATORY OVERVIEW
The international telecommunications environment is highly regulated. As an
operator of privately owned international satellite systems licensed by the
United States, Orion is subject to the regulatory authority of the United States
(primarily the FCC) and the national communications authorities of the countries
in which it provides service. Each of these entities can potentially impose
operational restrictions on Orion. In addition, Orion is subject to the INTELSAT
and EUTELSAT consultation processes.
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The changing policies and regulations of the United States and other countries
will continue to affect the international telecommunications industry. Orion
cannot predict the impact that these changes will have on its business or
whether the general deregulatory trend in recent years will continue. Orion
believes that continued deregulation would be beneficial to Orion, but
deregulation also could reduce the limitations facing many of its existing
competitors and potential new competitors.
The operation of Orion 2 and Orion 3 will require a number of regulatory
approvals, including (i) the approvals of the FCC (in the case of Orion 2), (ii)
completion of successful consultations with INTELSAT and, in the case of Orion
2, with EUTELSAT; (iii) satellite "landing" rights in countries that are not
INTELSAT signatories or that require additional approvals to provide satellite
or VSAT services; and (iv) other regulatory approvals. Obtaining the necessary
licenses and approvals involves significant time and expense, and receipt of
such licenses and approvals cannot be assured. Failure to obtain such approvals
would have a material adverse effect on Orion and on its ability to service its
indebtedness, including the Notes, and the value of the Warrants and Common
Stock. In addition, Orion is required to obtain approvals from numerous national
local authorities in the ordinary course of its business in connection with most
arrangements for the provision of services. Within Orion 1's footprint, such
approvals generally have not been difficult for Orion to obtain in a timely
manner. However, the failure to obtain particular approvals has delayed, and in
the future may delay, the provision of services by Orion. See "Risk Factors --
Approvals Needed; Regulation of Industry."
AUTHORITY TO CONSTRUCT, LAUNCH AND OPERATE SATELLITES
Orion 1. In June 1991, Orion received final authorization from the FCC (the
"Orion 1 License") to construct, launch and operate a Ku-band satellite in
geostationary orbit at 37.5' West longitude in accordance with the terms,
conditions and technical specifications submitted in its application to the FCC.
The Orion 1 license from the FCC expires in January 2005. Although Orion has no
reason to believe that its licenses will not be renewed (or new licenses
obtained) at the expiration of the license term, there can be no assurance of
renewal.
Orion 2. Orion has obtained conditional authorization from the FCC for the
orbital slot at 12' West longitude for operation of Orion 2. The Orion 2
authorization will not become final until Orion completes a consultation with
INTELSAT and demonstration to the FCC of its financial ability to meet the costs
of construction, the launch of its satellite and operating expenses for one year
following launch. Orion has not yet met the required financial qualifications
demonstration to the FCC. It is required to make such showing within 90 days
after completion of INTELSAT consultation, and accordingly intends to commence
consultation with INTELSAT after it has obtained additional financing and
believes it can make the required financial showing. The application filed with
the FCC for Orion 2 contains a technical proposal different than that currently
being coordinated with the ITU, and will need to be amended. Orion has no reason
to believe that the FCC will not approve such amendment or that the amendment
will cause material delay in obtaining final FCC authority for Orion 2.
Orion 3. Orion is pursuing an orbital slot at 139' East longitude through the
Republic of the Marshall Islands. Under an agreement with the Republic of the
Marshall Islands entered into in 1990, the Republic of the Marshall Islands
agreed to file with the ITU all documents necessary to secure authorization for
Orion to operate a satellite in geo-stationary orbit. In return for the right to
utilize any orbital slots secured by the Republic of the Marshall Islands, Orion
must, among other things, (i) commence construction of a functioning operating
center for satellites serving the Pacific Island portion of the Orion Asia
Pacific network at least a year prior to the operation of an Orion satellite,
(ii) train and support certain employees designated by the Republic of the
Marshall Islands at least a year prior to the operation of an Orion Asia Pacific
satellite, and (iii) construct, equip and install (except for power supply or
back-up) four earth stations capable of handling a "T-1" circuit for operation
with the Orion Asia Pacific system prior to the operation of an Orion Asia
Pacific satellite.
CONSULTATION WITH INTELSAT AND EUTELSAT
Orion 1. Prior to receiving final licensing and launch authority for Orion 1,
Orion successfully completed its consultation with INTELSAT pursuant to the
INTELSAT Treaty. A similar consultation
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for Orion 1 was completed with EUTELSAT in May 1994. Additional consultations or
other approvals may be needed in individual countries for the use of VSATs.
Orion 2. Orion has not commenced consultations with INTELSAT or EUTELSAT for
Orion 2, and intends to commence such consultation with INTELSAT for Orion 2
when it is ready to make its financial showing to the FCC, as discussed above.
Orion believes that since there are no INTELSAT or EUTELSAT satellites located
adjacent to the 12' West longitude orbital slot, the INTELSAT and
EUTELSATcoordination should be obtained in due course.
Orion 3. Orion has not commenced consultations with INTELSAT for Orion 3, but
Orion believes that since there are no INTELSAT satellites located adjacent to
the 139' East longitude orbital slot, the INTELSAT coordination should be
obtained in due course.
INTERNATIONAL TELECOMMUNICATION UNION
An international treaty to which the U.S. and the Republic of the Marshall
Islands are parties requires coordination of satellite orbital slots through the
procedures of the ITU. The process for coordinating orbital slots through the
ITU is discussed under the caption " -- Orbital Slots -- ITU Coordination
Process."
Orion 1. After Orion 1 reached its orbital position and commenced operation,
the FCC notified the ITU. This concluded the process for coordination of the
Orion 1 orbital slot.
Orion 2. On behalf of Orion, the FCC has commenced the orbital slot
coordination process through the ITU. Orion believes that its use of the 12'
West longitude slot for Orion 2 is not likely to interfere with proposed uses of
adjacent slots filed for by other governments, except for a possible overlap of
75 MHz with one proposal as discussed more fully under the caption "-- Orbital
Slots -- ITU Coordination Process."
Orion 3. Orion, through the Republic of the Marshall Islands, has filed the
appropriate documentation with the ITU to begin the ITU coordination process for
Orion 3 at 139' East longitude. As discussed more fully under the caption "--
Orbital Slots -- ITU Coordination Process," based upon the time of filing by the
Republic of the Marshall Islands, Orion believes that the proposed orbital slot
for Orion 3 would have priority under ITU procedures with respect to the 139'
East longitude orbital slot, but some proposals by other administrations for
adjacent slots would be entitled to effective priority over the proposal by the
Republic of the Marshall Islands with respect to possible interference. Orion
believes, based upon its monitoring of the proposals of other administrations
and information in the industry regarding their progress, that none of the
administrations with effective priority over the proposal by the Republic of the
Marshall Islands will be able to launch a satellite prior to launch of Orion 3
to take advantage of such priority. Orion also believes that it can complete the
ITU coordination process for Orion 3 at 139' East longitude, however, there can
be no assurance that this will be achieved.
UNITED STATES REGULATORY RESTRICTIONS
Orion is subject to regulation under the Communications Act, the FCC's July
1985 Separate Systems decision as modified by subsequent FCC decisions, other
FCC regulations, and the terms of the various orders issued by the FCC with
respect to Orion and its subsidiaries, including the terms of the Orion 1
License. These regulations, orders and authorizations impose various
restrictions on Orion and on other similarly situated companies. Certain
important restrictions are described below.
Limited Interconnection with Public Switched Message Networks. Under current
U.S. policies concerning "separate satellite systems," such systems may provide:
(i) all services not interconnected with the public switched network ("PSN");
(ii) emergency restoration services and up to 8,000 64 kbps equivalent circuits
per satellite interconnected with the PSN for common carrier public switched
international services; and (iii) interconnected private line services. Under
applicable FCC orders, Orion has been authorized to provide up to 8,000 64 kbps
equivalent circuits interconnected to the PSN for public switched services. All
U.S. restrictions on the interconnection of public switched networks with
separate satellite systems are expected to terminate in the first quarter of
1997. Orion's networking business is
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intended to be non-common carrier service, and accordingly it will not be
permitted to provide interconnected switched services, but will be permitted to
sell this capacity to common carriers.
Use of the Orion 1 Satellite System for U.S. Domestic Services. In January
1996, the FCC eliminated certain distinctions between U.S. licensed domestic
satellites and separate satellite systems. It authorized both sets of U.S.
licensed satellite operators to provide both domestic and international
services. Domestic operators have designed their current satellite facilities
principally for continental U.S. coverage of the United States, and thus may as
a general matter offer only limited competition for international services at
the outset. However, future satellite designs of domestic satellite operators
could be modified to more directly compete in the international market.
New Orbital Locations. The FCC now requires applicants, at the time of filing
for an orbital position (either domestic arc or international orbital position),
to demonstrate the financial ability to construct, launch and operate that
satellite for a one year period. This new requirement will have no change in the
licensing of Orion's orbital positions at 37.5' West, 12' West, 47' West
longitude and 126' East longitude (the orbital slot at 139' East longitude is
not being pursued through the FCC and is not subject to the financial showing
requirement). To the extent that Orion is seeking an orbital location through
the FCC, Orion will need to have significant financing on hand at the time of
application or obtain a waiver of the required financial demonstration. There is
no assurance that Orion will be able to obtain such waiver.
Unauthorized Transfer of Control. The Communications Act bars a change in
control of the holder of FCC licenses without prior approval from the FCC. Any
finding that a change of control without prior FCC approval had occurred could
have a significant adverse effect on Orion's ability to implement its business
plan.
INTERNATIONAL REGULATION
Orion will need to comply with the applicable laws and obtain the approval of
the regulatory authority of each country in which it proposes to provide network
services or operate VSATs. The laws and regulatory requirements regulating
access to satellite systems vary from country to country. Some countries have
substantially deregulated satellite communications, making customer access to
Orion services a simple procedure, while other countries maintain strict
monopoly regimes. The application procedure can be time-consuming and costly,
and the terms of licenses vary for different countries.
Orion provides service using the licenses it obtains or that are obtained by
local ground operators or, in certain cases, through customer-obtained
authorizations. For example, Orion's representatives in the United Kingdom
(Kingston Communications), France (Matra Hachette), Germany (Nortel Dasa) and
Italy (Telecom Italia) have licenses in such countries. Orion also has obtained
"landing rights" through the INTELSAT treaty (although each INTELSAT signatory
country retains sovereignty over the transmission of satellite signals and
retains the right to object to the use of satellites within its borders). Orion
is now authorized, either directly or through its ground operators, to provide
service in 27 European countries.
Orion expects to pursue a similar strategy in Asia and Latin America. In
addition, Orion will need to comply with the national laws of each country in
which it provides services. Laws with respect to satellite services are
currently unclear in certain jurisdictions, particularly within the Orion 3
footprint. In certain of these jurisdictions, satellite services may only be
provided via domestic satellites. The Company believes that certain of these
restrictions may change and that it can structure its operations to comply with
the remaining restrictions. However, there can be no assurance in this regard.
See "Risk Factors -- Approvals Needed; Regulation of Industry."
HUMAN RESOURCES
As of October 31, 1996, Orion and its subsidiaries had 175 full-time
employees. Of its total work force, six are part of management, 44 are in
engineering or satellite control operations, 75 are in marketing, sales and
sales support, and 50 are devoted to support and administrative activities.
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LEGAL PROCEEDINGS
In October 1995, Skydata Corporation ("Skydata"), a former contractor, filed
suit against Orion Atlantic, Orion Satellite Corporation and Orion, in the
United States District Court for the Middle District of Florida, claiming that
certain Orion Atlantic operations using frame relay switches infringe a Skydata
patent. Skydata's suit sought damages in excess of $10 million and asked that
any damages assessed be trebled. On December 11, 1995, the Orion parties filed a
motion to dismiss the lawsuit on the grounds of lack of jurisdiction and
violation of a mandatory arbitration agreement. In addition, on December 19,
1995, the Orion parties filed a Demand for Arbitration against Skydata with the
American Arbitration Association in Atlanta, Georgia, requesting damages in
excess of $100,000 for breach of contract and declarations, among other things,
that Orion and Orion Atlantic own a royalty-free license to the patent, that the
patent is invalid and unenforceable and that Orion and Orion Atlantic have not
infringed on the patent. On March 5, 1996, the court granted the Company's
motion to dismiss the lawsuit on the basis that Skydata's claims are subject to
arbitration. Skydata appealed the dismissal to the United States Court of
Appeals for the Federal Circuit. Skydata also filed a counterclaim in the
arbitration proceedings asserting a claim for $2 million damages as a result of
the conduct of Orion and its affiliates. On May 15, 1996, the arbitrator granted
the Orion parties' request for an initial hearing on claims relating to the
Orion parties' rights to the patent, including the co-ownership claim and other
contractual claims.
On November 9, 1996, Orion and Skydata executed a letter with respect to the
settlement in full the pending litigation and arbitration. As part of the
settlement, the parties are to release all claims by either side relating in any
way to the patent and/or the pending litigation and arbitration. In addition,
Skydata is to grant Orion (and its affiliates) an unrestricted, world-wide
paid-up license to make, have made, use or sell products or methods under the
patent and all other corresponding continuation and reissue patents. Orion is to
pay Skydata $437,000 over a period of two years as part of the settlement. The
parties are in the process of documenting the terms of the settlement in a
formal settlement agreement.
While Orion is party to regulatory proceedings incident to its business,
there are no material legal proceedings pending or, to the knowledge of
management, threatened against Orion or its subsidiaries.
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MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
Orion's Board is divided into three classes of directors, serving staggered
three-year terms. The directors and executive officers of Orion and their ages
and (in the case of directors) terms as of November 15, 1996 are as follows:
<TABLE>
<CAPTION>
TERM EXPIRES
NAME AGE POSITION WITH ORION (DIRECTORS)
- -------------------- ----- ------------------------------------------- --------------
<S> <C> <C> <C>
Gustave M. Hauser .. 67 Chairman, Director 1998
W. Neil Bauer....... 50 President and Chief Executive Officer, 1999
Director (Principal Executive Officer)
David J. Frear...... 40 Vice President, Chief Financial Officer
and Treasurer (Principal Financial Officer
and Principal Accounting Officer)
Richard H. Shay..... 55 Vice President, Corporate and Legal
Affairs, and Secretary
Denis Curtin........ 57 Senior Vice President, Orion Satellite
Corporation and General Manager,
Engineering and Satellite Operations
Hans C. Giner....... 57 Vice President of Orion and President,
Orion Asia Pacific Corporation
Douglas H. Newman .. 57 Vice President of Orion and
President, Orion Satellite Corporation
Richard J. Brekka .. 35 Director 1997
Warren B. French,
Jr.................. 73 Director 1997
Barry Horowitz...... 52 Director 1998
Sidney S. Kahn...... 59 Director 1999
John G. Puente...... 66 Director 1998
W. Anthony Rice..... 44 Director 1997
John V. Saeman...... 60 Director 1998
Robert M. Van
Degna............... 52 Director 1999
</TABLE>
BACKGROUND OF DIRECTORS AND EXECUTIVE OFFICERS
Information with respect to the business experience and the affiliations of
the directors and executive officers of Orion is set forth below.
Gustave M. Hauser has been Chairman of Orion since January 1996 and has been
a director of Orion since December 1982. Since 1983, he has been Chairman and
Chief Executive Officer of Hauser Communications, Inc., an investment and
operating firm specializing in cable television and other electronic
communications. From 1973 to 1983 he served as Chairman and Chief Executive
Officer of Warner-Amex Cable Communications, Inc. (formerly Warner Cable
Communications, Inc.), a major multiple system operator of cable television
systems and originator of satellite delivered video programming. He is a trustee
of the Museum of Television and Radio. He is a past Vice Chairman of the
National Cable Television Association, and from 1970 to 1977 he served, by
appointment of the President of the United States, as a director of the Overseas
Private Investment Corporation.
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W. Neil Bauer has been President of Orion since March 1993, and has been
Chief Executive Officer and a director since September 1993. From 1989 to
February 1993, Mr. Bauer was employed by GE American Communications, Inc., where
he served as Senior Vice President and General Manager of Commercial Operations.
Prior to 1989, Mr. Bauer was Chief Financial Officer of GE American
Communications, Inc. and later head of commercial sales. He held several key
financial planning positions at GE/RCA from 1984 through 1986 focused on
operational and business analysis of diverse business units including all
communications units. From 1974-1983, he was employed by RCA Global
Communications, an international record carrier. During this period, he held
several financial and operational positions and was responsible for financial
and business planning.
David J. Frear has been Vice President and Chief Financial Officer of Orion
since November 1993 and Treasurer of Orion since January 1994. From September
1990 through April 1993, Mr. Frear served as Vice President and Chief Financial
Officer of Millicom Incorporated, an international telecommunications service
company. From January 1988 to September 1990, Mr. Frear held various positions
in the investment banking department at Bear, Stearns & Co. Inc. Mr. Frear
received his CPA in 1979.
Richard H. Shay has been Secretary of Orion since January 1993 and a Vice
President since April 1992. From July 1981 until September 1985, Mr. Shay served
as Chief Counsel to the National Telecommunications and Information
Administration ("NTIA") of the U.S. Department of Commerce and then as Deputy
General Counsel to the Department, where he was responsible for the legal
matters of the Department's agencies. In his capacity as Chief Counsel to NTIA,
Mr. Shay also served as Acting Director of its Office of International Policy,
served on the official U.S. delegation to the 1982 Nairobi Plenipotentiary
Conference of the ITU and was involved in preparation for the 1983 ITU Direct
Broadcast Satellite World Administrative Radio Conference.
Denis J. Curtin is Senior Vice President, OrionSat and General Manager,
Engineering and Satellite Operations. He joined the Company in September 1988 as
Vice President, Engineering. He previously was Senior Director of Satellite
Engineering of COMSAT's Systems Division. While at COMSAT, Dr. Curtin served for
over 21 years in the systems engineering, program and engineering management of
both domestic and international satellite systems. He has an MS in Physics, a
Ph.D. in Mechanical Engineering, and has published numerous papers on solar cell
and solar array technology, is the editor of the Trends in Satellite
Communications and is a Fellow of the American Institute of Astronautics and
Aeronautics.
Hans C. Giner became President of Orion Asia Pacific Corporation, Orion's
subsidiary devoted to pursuing construction and launch of a satellite covering
the Asia Pacific region, in the fourth quarter of 1995 and a Vice President of
Orion in the first quarter of 1996. Mr. Giner served as a consultant to Orion
from October 1995 through January 1996 relating to similar matters. Prior
thereto, he held senior positions in the satellite and telecommunications
industries for more than 20 years. Most recently, from April 1994 through
September 1995 he served as President of Stellar One Corporation, a high-tech
company designing, manufacturing and distributing technologies for
telecommunications groups, particularly local telephone and cable television
companies. Prior to that, from November 1987 through March 1994, Mr. Giner held
several positions for, and ultimately served as president and CEO of Millisat
Holdings, Inc., a member of the Millicom Group, with worldwide responsibility
for development of media and telecommunications properties, including broadcast,
cable and wireless television.
Douglas H. Newman has been President of Orion Satellite Corporation since
October 16, 1995. Mr. Newman was with Sprint International as Vice President and
General Manager Asia-Pacific Division from July 1993 until October 1994. He
served as Vice President World Wide Sales and Marketing for Analog Devices Inc.
from December 1988 to July 1993. Prior to that he was a Vice President of
National Semiconductor Corporation both in Europe and the United States from May
1979 until December 1988. Earlier, he spent 15 years at Texas Instruments Inc.'s
European Semiconductor Division in a variety of management positions in
engineering, marketing and sales.
Richard J. Brekka has been a director of Orion since June 1994. He is a
Managing Director of CIBC Wood Gundy Capital ("CIBC-WG"), the merchant banking
division of Canadian Imperial Bank of Commerce and is a Director and the
President of CIBC Wood Gundy Ventures, Inc., an indirect wholly
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owned subsidiary of Canadian Imperial Bank of Commerce. Mr. Brekka joined
CIBC-WG in February 1992. Prior to joining CIBC-WG, Mr. Brekka was an officer of
Chase Manhattan Bank's merchant banking group from February 1988 until February
1992.
Warren B. French, Jr. has been a director of Orion since August 1988. He was
President and a director of Shenandoah Telephone Company of Edinburg, Virginia
from 1973 to 1988 and President and a director of Shenandoah Telecommunications
Company, the parent company of Shenandoah Telephone Company, from 1981 to 1988.
From 1988 through 1995, he was Chairman and a director of Shenandoah
Telecommunications Company. He is a past Chairman of the United States Telephone
Association and is a former director of First National Corporation.
Barry Horowitz has been a director of Orion since May 1996. He is President
and Chief Executive Officer of Mitretek Systems, Inc. Mitretek works with
federal, state and local governments as well as other non-profit public interest
organizations on technology-based research and development programs. Mitretek
was incorporated in December 1995 as a result of a restructuring with The MITRE
Corporation. Principal capabilities are related to information and environmental
system technologies. In addition, Dr. Horowitz is President and Chief Executive
Officer of Concept 5 Technologies, Inc., a subsidiary of Mitretek, which
provides technical services to commercial clients, with its initial focus on the
financial community. Prior to the restructuring and since 1969, Dr. Horowitz
served MITRE in several capacities, including Trustee and President and CEO.
Sidney S. Kahn has been a director of Orion since July 1987. He is presently
a private investor. From 1977 to December 1989, he was Senior Vice President of
E.F. Hutton Company, Inc., a wholly owned subsidiary of the E.F. Hutton Group,
Inc. He is also a director of Delia's, Inc.
John G. Puente has been a director since 1984. Mr. Puente was Chairman of
Orion from April 1987 through January 1996, and since July, 1996 has been
serving as a consultant to the Company and chairman of the Company's Executive
Committee. He served as Chief Executive Officer of Orion from April 1987 through
September 1993. He was a director and, from 1978 to April 1987, served as Senior
Vice President, Executive Vice President or Vice Chairman of M/A-COM, Inc., a
diversified telecommunications and manufacturing company. He was a founder of
SouthernNet, Inc., a fiber optic long distance communications company and one of
the two companies that merged to form Telecom*USA, Inc. (which was later
acquired by MCI), serving as a director of SouthernNet from July 1984 until
August 1987, and Chairman of the Board of SouthernNet from July 1984 until
December 1986. During his tenure as Chairman of the Board of SouthernNet, Mr.
Puente was instrumental in the founding of the National Telecommunications
Network, a national consortium of long distance fiber optic communications
companies, and was its first chairman. In 1972, Mr. Puente was a founder of DCC,
Inc., of which he became Chairman and CEO. In 1978, DCC, Inc. was acquired by
Microwave Associates to form M/A-COM, Inc.; DCC, Inc., subsequently was acquired
by Hughes Aircraft Company and became Hughes Network Systems, Inc. Mr. Puente
also played a prominent role in the early development of the communications
satellite industry, holding technical and executive positions in COMSAT and
American Satellite Corporation.
W. Anthony Rice has been a director of Orion since January 1994. Mr. Rice is
Chief Executive Officer of British Aerospace Asset Management, the business unit
responsible for all of the company's activities in respect of commercial
aircraft leasing and financing. Previously, he served as Group Treasurer of
British Aerospace Public Limited Company from 1991 until the end of 1995.
British Aerospace is Europe's leading defense and aerospace company.
John V. Saeman has been a director of Orion since December 1982. He is an
owner of Medallion Enterprises LLC, a private investment firm located in Denver,
Colorado. Mr. Saeman was Vice Chairman and Chief Executive Officer of Daniels &
Associates, Inc. and its related entities in the telecommunications field from
1980 to 1988. He is former director as well as past Chairman of Cable Satellite
Public Affairs Network (C-Span) as well as a former director and past Chairman
of the National Cable Television Association. Mr. Saeman was a director of
Celerex Corporation and is a director of Nordstrom National Credit Bank. Celerex
Corporation filed a petition for reorganization under Chapter 11 of the United
States Bankruptcy Code in 1995.
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Robert M. Van Degna has been a director of Orion since June 1994. He is the
managing general partner of Fleet Equity Partners. Mr. Van Degna joined Fleet
Financial Group in 1971 and has held a variety of lending and management
positions until he organized Fleet Equity Partners in 1982 and became its
managing general partner. Mr. Van Degna also serves as a director of ACC
Corporation and Preferred Networks, Inc.
Orion's Certificate of Incorporation and Bylaws provide that the Board of
Directors of Orion, which presently consists of eleven 11 members (including one
vacancy), shall consist of that number of directors determined by resolution of
the Board of Directors. The Certificate of Incorporation provides that the Board
of Directors shall be divided into three classes, each consisting of
approximately one-third of the total number of directors. Class I Directors,
consisting of Messrs. Hauser, Horowitz, Puente and Saeman, will hold office
until the 1998 annual meeting of stockholders; Class II Directors, consisting of
Messrs. Bauer, Kahn and Van Degna will hold office until the 1999 annual meeting
of stockholders; and Class III Directors consisting of Messrs. Brekka, Rice and
French will hold office until the 1997 annual meeting of stockholders. There are
no family relationships among any of the directors or officers of Orion.
Executive Officers serve at the discretion of the Board of Directors.
Three directors, Messrs. Rice, Brekka and Van Degna, were elected pursuant to
agreements with each of British Aerospace, CIBC and Fleet, respectively, which
terminated in August 1995 when the Common Stock became publicly traded.
COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors has established a Committee on Auditing, Corporate
Responsibility and Ethics (the "Audit Committee"), a Committee on Human
Resources and Compensation (the "Compensation Committee"), an Executive
Committee, a Finance Committee and a Nominating Committee.
The Audit Committee is composed of Messrs. Van Degna (chairman), Hauser and
Kahn. The Audit Committee examines and considers matters relating to the
financial affairs of Orion, including reviewing Orion's annual financial
statements, the scope of the independent annual audit and the independent
auditors' letter to management concerning the effectiveness of Orion's internal
financial and accounting controls. From the time Orion became subject to the
Exchange Act through December 31, 1995 (the "1995 Public Company Period"), the
Audit Committee held one meeting.
The Compensation Committee is composed of Messrs. Brekka (chairman), French,
Saeman and Van Degna. The Compensation Committee considers and makes
recommendations to Orion's Board of Directors with respect to programs for human
resource development and management organization and succession, approves
changes in senior executive compensation, considers and makes recommendations to
Orion's Board of Directors with respect to compensation matters and policies and
employee benefit and incentive plans and exercises authority granted to it to
administer such plans and administers Orion's stock option and grants of stock
options under the stock option plans. During the 1995 Public Company Period, the
Compensation Committee held two meetings. Three of the four members attended
both meetings; Mr. Brekka attended one of the two meetings.
The Executive Committee is composed of Messrs. Hauser, Kahn, Puente
(chairman), Saeman and Van Degna. The Executive Committee provides strategic
direction with respect to financing, strategic partners, acquisitions and market
focus, subject to approval by the Board of Directors of all significant actions.
The Executive Committee was formed in July 1996 and has met numerous times with
regard to the Transactions and other matters. Mr. Puente has been actively
engaged as chairman of the Executive Committee in connection with the
Transactions.
The Finance Committee is composed of Messrs. Brekka, Hauser, Kahn (chairman),
Puente, Rice and Saeman. The Finance Committee considers and makes
recommendations to the Board of Directors with respect to the financial affairs
of Orion, including matters relating to capital structure and requirements,
financial performance, dividend policy, capital and expense budgets and
significant capital commitments. During the 1995 Public Company Period, the
Finance Committee held ten meetings. Four of the members attended at least eight
of these meetings; Messrs. Rice and Brekka attended fewer than that number.
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The Nominating Committee is composed of Messrs. French, Puente and Saeman
(chairman). The Nominating Committee recommends to the Board of Directors
qualified candidates for election as directors of Orion and considers
candidates, if any, recommended by stockholders. During the 1995 Public Company
Period, the Nominating Committee held one meeting. Each member of the Nominating
Committee attended this meeting.
LIMITS ON LIABILITY; INDEMNIFICATION
Orion's Certificate of Incorporation provides that Orion's directors will not
be liable for monetary damages for breach of the directors' fiduciary duty of
care to Orion and its stockholders. This provision in the Certificate of
Incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under Delaware law. In accordance
with the requirements of Delaware law, Orion's directors remain subject to
liability for monetary damages (i) for any breach of their duty of loyalty to
Orion or its stockholders, (ii) for acts or omissions not in good faith or
involving intentional misconduct or knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law for approval of an unlawful
dividend or an unlawful stock purchase or redemption and (iv) for any
transaction from which the director derived an improper personal benefit. This
provision also does not affect a director's responsibilities under any other
laws, such as the federal securities laws or state or federal environmental
laws.
Orion's Certificate of Incorporation also provides that, except as expressly
prohibited by law, Orion shall indemnify any person who was or is a party (or
threatened to be made a party) to any threatened, pending or completed action,
suit or proceeding by reason of the fact that such person is or was a director
or officer of Orion (or is or was serving at the request of Orion as a director
or officer of another enterprise), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and a manner such person reasonably believed to be in or not
opposed to the best interests of Orion, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. Such indemnification shall not be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to Orion
unless (and only to the extent that) the Delaware Court of Chancery or the court
in which such action or suit was brought determines that, in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity.
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SUMMARY COMPENSATION TABLE
The following table sets forth a summary of total compensation, including
bonuses, paid to the Chief Executive Officer and the four other most highly paid
executive officers (the "named executive officers") for services in all
capacities to Orion and its subsidiaries for the fiscal years ended December 31,
1996, 1995 and 1994.
<TABLE>
<CAPTION>
ANNUAL COMPENSATION LONG TERM COMPENSATION
------------------------------------ --------------------------------------
AWARDS PAYOUTS
----------------------- --------------
OTHER SECURITIES
ANNUAL RESTRICTED UNDERLYING ALL OTHER
NAME AND COMPEN- STOCK OPTIONS/ LTIP COMPEN-
PRINCIPAL POSITION YEAR SALARY($) BONUS($) SATION($)(1) AWARD(S)($) SARS(#) PAYOUTS($) SATION($)
- ------------------------------ ------ ---------- -------- ------------- ----------- ---------- ------------- ------------
<S> <C> <C> <C> <C> <C>
W. NEIL BAUER,................ 1996 $278,160 $ -- $ --
PRESIDENT AND CHIEF 1995 265,000 90,000 110,294
EXECUTIVE OFFICER 1994 250,000 100,000 100,684
DAVID J. FREAR, .............. 1996 185,996 -- --
VICE PRESIDENT, TREASURER 1995 179,005 40,000 4,570 55,147
AND CHIEF FINANCIAL OFFICER 1994 170,000 51,000 25,715
DOUGLAS H. NEWMAN ............ 1996 201,091 -- --
VICE PRESIDENT OF ORION 1995 34,816 14,000 50,000
AND PRESIDENT, ORION SATELLITE 1994 --
CORPORATION
HANS C. GINER................. 1996 137,902 35,000
VICE PRESIDENT OF ORION AND 1995 --
PRESIDENT, ORION ASIA PACIFIC 1994 --
CORPORATION
DENIS J. CURTIN,.............. 1996 154,956 5,000
SENIOR VICE PRESIDENT OF 1995 151,081 38,000 24,705
ORION SATELLITE CORPORATION 1994 133,850 35,700
</TABLE>
- ----------
(1) Relocation expenses.
OPTION GRANTS IN LAST FISCAL YEAR
Orion has adopted a 1987 Employee Stock Option Plan (the "1987 Employee Stock
Option Plan"). Under the 1987 Employee Stock Option Plan, options to purchase up
to an aggregate of 1,470,588 shares of Orion Common Stock are available for
grants to employees of Orion. Orion has also adopted a Non-Employee Director
Stock Option Plan. The following table sets forth information concerning grants
of stock options to the named executive officers pursuant to the 1987 Employee
Stock Option Plan during the year ended December 31, 1996.
<TABLE>
<CAPTION>
Potential Realized
Value at Assumed
Annual Rates
of Stock Price
Appreciation
Individual Grants for Option Term
---------------------------------------------------------- ----------------
Number of % of Total
Securities Options Exercise or
Underlying Granted to Base Price
Options Employees in Per Share in Expiration
Name Granted Fiscal Year ($/Sh)(1) Date 5%($) 10%($)
- ---- ------- ----------- ------------- ----------- ----- ------
<S> <C> <C> <C> <C> <C> <C>
W. Neil Bauer.... -- --
David J. Frear .. -- --
Douglas H.
Newman........... -- --
Hans C. Giner ... 25,000 20% 8.49 01/16/03 (2) 86,386 201,425
10,000 8% 10.78 11/19/03 (2) 43,875 102,302
Denis J. Curtin . 5,000 4% 10.2 11/19/03 (2) 21,937 51,151
</TABLE>
(1) The option exercise price is equal to one hundred percent of the fair market
value of the Orion Common Stock on the date the option was granted.
(2) The options will vest in equal installments over a five-year period from the
date of grant.
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OPTION EXERCISES IN LAST FISCAL YEAR AND YEAR-END OPTION VALUES
The following table sets forth the value of all unexercised options held at
year-end 1996 by the named executive officers. No named executive officer
exercised any stock options during the fiscal year.
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
OPTIONS IN-THE-MONEY OPTIONS AT
AT DECEMBER 31, 1996 DECEMBER 31, 1996 (1)
------------------------- -------------------------
NAME EXERCISABLE/UNEXERCISABLE EXERCISABLE/UNEXERCISABLE
---- ------------------------- -------------------------
W. Neil Bauer ..... 97,058/138,235 312,130/279,780
David J. Frear .... 35,293/ 60,294 75,659/ 86,286
Douglas H. Newman . 10,000/ 40,000 32,050/128,200
Hans C. Giner ..... 0/ 35,000 0/130,575
Denis J. Curtin ... 31,284/ 20,661 121,404/ 40,321
- ----------
(1) Based on a per share price of $12.875 on December 31, 1996.
COMPENSATION OF DIRECTORS
Prior to January 1996 (Orion having become a publicly traded company during
1995), directors did not receive compensation for serving on the Board of
Directors or its committees but were reimbursed for their expenses for each
Board of Directors or committee meeting attended. Commencing in January 1996,
directors receive annual compensation of $4,000, $1,500 for each Board of
Directors meeting attended, $750 for each committee meeting attended and per
annum grants of stock options to purchase 10,000 shares of Common Stock under
the 1996 Non-Employee Director Stock Option Plan. An initial grant of options to
purchase 10,000 shares of Common Stock under that plan was made to each
non-employee director in January 1996. In addition, an initial grant of options
to purchase 30,000 shares of Common Stock under that plan was made to Barry
Horowitz, a director, upon his election in March 1996. The option exercise price
of the options granted to each non-employee director in January 1996 and Mr.
Horowitz in March 1996 was equal to the fair market value of Common Stock on the
respective dates the options were granted.
EMPLOYMENT AGREEMENTS AND TERMINATION OF EMPLOYMENT AND CHANGE IN CONTROL
ARRANGEMENTS
Orion has not entered into any employment agreements or any termination of
employment or change in control arrangements with any of its officers, except
for certain change in control vesting provisions in the 1987 Stock Option Plan
described below.
In his capacity as a consultant to the Company, John G. Puente, a director of
the Company and Chairman of the Executive Committee, is compensated at a rate of
$25,000 per month and has been granted non-incentive stock options to purchase
up to an aggregate of 100,000 shares of Common Stock at an exercise price of
$9.83 per share. Of the options granted to Mr. Puente, 50% are vested and 50%
will vest upon the successful completion during Mr. Puente's tenure as Chairman
of the Executive Committee or within six months thereafter, of the Offering. All
options granted to Mr. Puente will vest immediately upon the sale or merger of
the Company during Mr. Puente's tenure as Chairman of the Executive Committee or
within six months thereafter.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Mr. Bauer, the President and Chief Executive Officer of Orion, and Mr.
Puente, then Chairman of Orion, served on the Compensation Committee and
therefore participated in making recommendations to the Board of Directors on
officer compensation matters until June 28, 1995.
STOCK OPTION PLANS
1987 Employee Stock Option Plan. In April 1987, Orion adopted its 1987
Employee Stock Option Plan. Under the 1987 Employee Stock Option Plan, as
amended in March 1995, options to purchase up to an aggregate of 1,470,588
shares of Common Stock may be granted to key employees of Orion and its
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subsidiaries. The 1987 Employee Stock Option Plan provides for the grant both of
incentive stock options intended to qualify as such under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), and nonstatutory stock
options. The 1987 Employee Stock Option Plan will terminate in May 1997, unless
sooner terminated by the Board of Directors.
The 1987 Employee Stock Option Plan is administered by the Board, but the
Board has delegated administration to the Compensation Committee, which is
comprised of disinterested directors. Subject to the limitations set forth in
the 1987 Employee Stock Option Plan, the Compensation Committee has the
authority to select the persons to whom grants are to be made, to designate the
number of shares to be covered by each option and whether such option is an
incentive stock option or a nonstatutory stock option, to establish vesting
schedules, to specify the type of consideration to be paid to Orion upon
exercise and, subject to certain restrictions, to specify other terms of the
options. The maximum term of options granted under the 1987 Employee Stock
Option Plan is ten years. The aggregate fair market value of the stock with
respect to which incentive stock options are first exercisable in any calendar
year may not exceed $100,000 per individual. Options granted under the 1987
Employee Stock Option Plan generally are non-transferable and expire either
upon, or 30 days after, the termination of an optionee's employment relationship
with Orion. In general, if an optionee dies or is permanently disabled during
his or her employment by or service to Orion, such person's option may be
exercised up to one year following such death or disability.
Options granted under the 1987 Employee Stock Option Plan to the executive
officers will immediately vest in the event the optionee's employment is
terminated within two years after a "Change in Control" by Orion other than for
"Cause" or by the optionee for "Good Reason" (as such terms are defined in an
applicable resolution of the Board of Directors). "Cause" for termination of
employment is narrowly defined, including only such matters as fraud, a crime
involving moral turpitude, compromising trade secrets, willfully failing to
perform material assigned duties or gross or willful misconduct that causes
substantial harm to Orion. "Good Reason" means a reduction in the optionee's
base salary, except for a reduction of up to 10% due to a reduction in
compensation generally applicable to executive officers of Orion, a substantial
reduction in responsibilities or required relocation. A "Change in Control"
occurs when any person or entity becomes the beneficial owner, directly or
indirectly, of securities representing 51% or more of the combined voting power
of Orion's then outstanding securities (excluding for purposes of such
computation all securities of Orion beneficially owned by such person or entity
as of March 15, 1995).
The exercise price of incentive stock options must equal at least the fair
market value of the Common Stock on the date of grant. The exercise price of
nonstatutory stock options may be less than the fair market value of the Common
Stock on the date of grant. The exercise price of incentive stock options
granted to any person who at the time of grant owns stock possessing more than
10% of the total combined voting power of all classes of stock must be at least
110% of the fair market value of such stock on the date of grant and the term of
these options cannot exceed five years.
As of September 30, 1996, Orion had options outstanding under the 1987
Employee Stock Option Plan to purchase an aggregate of 891,776 shares held by 86
persons at a weighted average exercise price of $9.77 per share. The exercise
price of all options granted under the 1987 Employee Stock Option Plan has been
at least equal to the fair market value of the Common Stock on the date of the
grant as determined in good faith by the Board of Directors. As of September 30,
1996, options to purchase 129,755 shares of Common Stock granted pursuant to the
Plan had been exercised. There are 449,057 shares of Common Stock available for
future grants under the 1987 Employee Stock Option Plan.
The 1987 Employee Stock Option Plan may be amended by the Board, subject to
stockholder approval if such approval is then required by applicable law or in
order for the 1987 Employee Stock Option Plan to continue to satisfy the
requirements of Rule 16b-3 under the Exchange Act.
Non-Employee Director Stock Option Plan. In January 1996, Orion adopted its
Non-Employee Director Stock Option Plan ("Non-Employee Director Stock Option
Plan") and up to 380,000 shares of Common Stock are reserved for issuance
thereunder. The stock options granted under the Non-Employee Director Stock
Option Plan are non-incentive options.
Under the terms of the Non-Employee Director Stock Option Plan, each
Non-Employee Director (as defined) generally will receive or have vest options
to purchase 10,000 shares of Common Stock for each year that such Non-Employee
Director serves as a director of Orion. Each current Non-Employee
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Director has a vested option to purchase 10,000 shares of Common Stock, and an
unvested option to purchase 10,000 shares of Common Stock which will vest at the
next annual meeting of stockholders (expected to be held in May 1997) if such
director remains in office until such date. In addition, Mr. Horowitz, who
became a director on May 20, 1996, has an additional option to purchase 10,000
shares which will vest if he remains in office until the 1998 annual
stockholders meeting. Each current Non-Employee Director will be annually
granted an additional option to purchase 10,000 shares of Common Stock each year
after the annual meeting of stockholders if he or she is then a Non-Employee
Director.
Each new Non-Employee Director whose commencement of service is after March
20, 1996 will be granted an initial option to purchase the number of shares of
Common Stock equal to (i) the number of complete and partial years in the term
to which such Non-Employee Director was elected or appointed, multiplied by (ii)
10,000. Each Non-Employee Director also will be annually granted an additional
option to purchase 10,000 shares of Common Stock as of each of (i) the day after
the Non-Employee Director's first re-election to the Board of Directors and (ii)
each year after the annual meeting of stockholders if he or she is then a
Non-Employee Director.
Each option will be exercisable from and after the day of the first annual
meeting of stockholders after grant of the option. In the case of an initial
option to purchase of more than 10,000 shares, the option will be exercisable to
the extent of 10,000 shares from and after the day of the first annual meeting
of stockholders after grant of the option, in respect of an additional 10,000
shares from and after the day of the second annual meeting of stockholders after
grant of the option, and (if the option is to purchase of more than 20,000
shares), in respect of an additional 10,000 shares from and after the day of the
third annual meeting of stockholders after grant of the option. Upon the
termination of service of a Non-Employee Director in all capacities as an
employee and/or director of Orion and all of its affiliated companies other than
by reason of the death or permanent and total disability, any option granted to
such Non-Employee Director pursuant to the Non-Employee Director Stock Option
Plan shall terminate to the extent it is not then exercisable. If the
termination of service is by reason of the death or permanent and total
disability of a Non-Employee Director, the options held by such Non-Employee
Director shall be exercisable in respect of all shares subject to such options
for a period of one year from the date of such termination of service or until
expiration of the option, if earlier.
The option exercise price under the Non-Employee Director Stock Option Plan
is equal to 100% of the fair market value of Common Stock on the date the option
is granted. Options granted under the Non-Employee Director Stock Option Plan
expire if not exercised within five years from the date of grant.
Payment for shares purchased under the Non-Employee Director Stock Option
Plan may be made either in cash or cash equivalents, in shares of Common Stock
with a fair market value equal to the option price, or a combination of cash and
shares of Common Stock. The Non-Employee Director Stock Option Plan also allows
for "cashless exercise," in which a licensed broker tenders to Orion cash equal
to the exercise price (plus taxes required to be withheld) at the time Orion
issues the stock certificates.
The Non-Employee Director Stock Option Plan will terminate automatically on
March 20, 2006, unless previously terminated. No termination, suspension or
amendment of the Non-Employee Director Stock Option Plan may, without the
consent of the optionee to whom an option has been granted, adversely affect the
rights of the holder of the option.
Other Stock Options. From time to time, the Board of Directors of Orion may
grant options to purchase shares of Common Stock outside of the 1987 Employee
Stock Option Plan and Non-Employee Director Stock Option Plan. As of November
30, 1996, options to purchase an aggregate of 123,987 shares of Common Stock
were outstanding outside of such plans at an average exercise price of $8.30.
During 1995, 6,463 options granted outside of such plans were exercised.
OTHER EMPLOYEE BENEFIT PLANS
1997 Employee Stock Purchase Plan. In September 1996, Orion adopted its 1997
Employee Stock Purchase Plan (the "Stock Purchase Plan"). Under the Stock
Purchase Plan, eligible employees may purchase up to an aggregate of 500,000
shares of Common Stock through payroll deductions. Eligible employees include
all employees except those who have been employed by Orion for less than three
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months, those who work less than five months per calendar year or less than 20
hours per week, and those who would own 5% or more of the total combined voting
power of all classes of Orion's capital stock upon their participation in the
Stock Purchase Plan. The Stock Purchase Plan will terminate at the sooner of
September 2006 or such time as all shares of Common Stock available under the
Stock Purchase Plan have been issued.
The Stock Purchase Plan is administered by the Board, but the Board has
delegated administration to its Human Resources and Compensation Committee.
Employees may commence participation in the Stock Purchase Plan or change their
payroll deduction percentages effective at the beginning of each calendar
quarter. On the last day of each quarter, all funds accumulated in an employee's
account are used to purchase shares of Common Stock at a purchase price equal to
the lesser of 85% of the fair market value of such Common Stock (i) on the first
trading day of the quarter or (ii) on the last trading day of the quarter, but
in no event shall the per-share price be less than the par value of the Common
Stock ($.01). No employee may purchase in any one calendar year shares of Common
Stock having an aggregate fair market value in excess of $25,000. Common Stock
purchased under the Stock Purchase Plan is entitled to full dividend
participation.
An employee's participation in the Stock Purchase Plan terminates in the
event the employee voluntarily terminates such participation, ceases to be
employed by Orion or ceases to be eligible to participate in the Stock Purchase
Plan, or in the event the Board elects to terminate the Stock Purchase Plan. An
employee who retires, is laid off, takes a leave of absence, dies or suffers a
disability may directly or, in the case of death, through the employee's estate
withdraw any payroll deductions remaining in the employee's account, receive
that number of shares of Common Stock which may be purchased with the amount
then credited to the employees account, or make up any deficiency resulting from
missed payroll deductions through an immediate cash payment. Participation in
the Stock Purchase Plan may resume at the beginning of the next quarter if the
employee again becomes eligible to participate.
The Stock Purchase Plan is not subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), nor is it qualified under Section
401(a) of the Code. As of November 15, 1996, no shares of Common Stock have been
purchased or issued under the Stock Purchase Plan.
1997 401(k) Profit Sharing Plan. In September 1996, Orion adopted its 1997
401(k) Profit Sharing Plan (the "401(k) Plan"). Under the 401(k) Plan, eligible
employees may elect to have a portion of their pay deducted for investment in a
variety of mutual funds that invest in equity and debt securities and a money
market account. In addition, Orion may in its discretion make matching
contributions in the form of cash or in the equivalent amount of Common Stock,
and may make profit sharing contributions. Up to 100,000 shares of Common Stock
are issuable as matching contributions under the 401(k) Plan. The 401(k) Plan
will continue indefinitely unless terminated by Orion at any time in its
discretion. Orion may also suspend matching and profit sharing contributions at
any time in its sole discretion.
The 401(k) Plan is administered under a written trust agreement between Orion
and certain trustees (the "401(k) Trustees"). The 401(k) Trustees oversee the
investment of employee contributions, and Orion administers all other matters in
connection with the day-to-day operation of the 401(k) Plan. Eligible employees
may elect to deduct up to $9,500 of their compensation on a pre-tax basis in a
given calendar year. The 401(k) Trustees have discretion to select among these
investment media, or employees may direct the 401(k) Trustees to invest their
payroll deductions in accordance with specific instructions. At its discretion,
Orion may match all or part of employee payroll deductions in cash or the
equivalent amount of Common Stock. In addition, Orion may also make additional
profit sharing contributions in its discretion by distributing a certain
percentage of its profits to employees pro rata based on the ratio of an
employee's compensation to the total compensation of all 401(k) Plan
participants. Orion is responsible for directing the investment of any matching
or profit sharing contributions it makes to employee accounts.
An employee's payroll deductions (and any rollover contributions into the
401(k) Plan) and earnings thereon are always 100% vested and non-forfeitable.
Matching and profit sharing contributions become 100% vested and non-forfeitable
for any employee who attains age 65, dies, or becomes disabled while working for
Orion. An employee whose employment terminates for any other reason will be
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0% vested in any matching and profit sharing contribution which the employee has
received if the employee has less than two years of service with Orion and 100%
vested in such matching and profit sharing contributions if the employee has two
or more years of service. The 401(k) Plan allows employees to begin receiving
benefits upon age 65 or upon becoming disabled while employed by Orion.
Employees may also withdraw from their account in the event of certain defined
hardships, and may borrow between $1,000 and the lesser of $50,000 or 50% of the
vested amounts in their accounts at the 401(k) Trustee's discretion. An
employee's participation in the 401(k) Plan will terminate in the event of
voluntary termination by the employee, termination of the employee's employment
or eligibility, or Orion's election to terminate the 401(k) Plan.
The 401(k) Plan is qualified under Section 401(a) of the Code and as a
qualified cash or deferred compensation arrangement under Section 401(k) of the
Code. The 401(k) Plan is also subject to certain provisions of ERISA,
principally Title I, relating to protection of employee benefit rights, and to
the provisions of the Code relating to retirement plans. As of November 15,
1996, no shares of Common Stock or other cash matching or profit sharing
contributions have been distributed under the 401(k) Plan.
88
<PAGE>
CERTAIN TRANSACTIONS
The following is a summary of certain transactions among Orion, directors,
officers and certain stockholders of Orion, and related persons. Orion believes
that each of such transactions was on terms no less favorable to Orion than
reasonably could have been obtained in arm's-length transactions with
independent third parties. Orion has a policy requiring that any material
transactions between Orion and persons or entities affiliated with officers,
directors or principal stockholders of Orion be on terms no less favorable to
Orion than reasonably could be obtained in arm's-length transactions with
independent third parties. Orion's policy is to conduct an appropriate review of
all related party transactions and to have the Audit Committee or a comparable
body review potential conflict of interest situations.
Orion is a party to numerous agreements with one or more Limited Partners,
most of which were entered into in December 1991, including the partnership
agreement of Orion Atlantic, firm and contingent capacity leases (most of which
will be terminated in connection with the Exchange), the Orion 1 Satellite
Contract, the Orion 2 Satellite Contract, agreements with STET or its affiliates
concerning the TT&C facility, representative agent agreements and agreements to
make loans or advances to Orion (which will be terminated as part of the
Exchange). See "The Merger and the Exchange."
Orion entered into the Orion 1 Satellite Contract with British Aerospace, an
affiliate of a principal stockholder of Orion and of which Mr. Rice, a director
of Orion, is a Group Treasurer. Under the terms of the Orion 1 Satellite
Contract, Orion has paid an aggregate of $43.4 million in 1991, $72 million in
1992 (plus a $5 million payment upon termination for convenience by Orion of a
second satellite), $26 million in 1993, $89.8 million in 1994 and $0.3 million
in 1995. As of September 30, 1996, Orion Atlantic had obligations of $15 million
to Matra Marconi Space with respect to incentive payments under the Orion 1
Satellite Contract, of which $13 million will be paid on the Closing Date. Of
this amount, $10 million will be re-invested in Orion by Matra Marconi Space in
the Matra Marconi Investment. See "Description of Certain Indebtedness." The
balance of the outstanding obligations are payable 18 months following
commencement of construction under the Orion 2 Satellite Contract, and
subsequent payments of up to $29.4 million may become payable thereafter,
depending on satellite performance. See "Management's Discussion and Analysis of
Financial Condition and Results of Operation -- Liquidity and Capital
Resources."
Orion has engaged certain Limited Partners as representative agents for sales
and ground operations. A joint venture between two Limited Partners (Kingston
Communications and British Aerospace) serves as a ground operations
representative in the United Kingdom, and the affiliate of another Limited
Partner (Matra Hachette) serves as a ground operations representative in France.
Orion paid these Limited Partners an aggregate of $1.6 million in 1996 as
commissions and other fees (including for ground operations and, in the case of
the Kingston Communications/British Aerospace joint venture, satellite capacity,
equipment leasing and other charges), and paid these Limited Partners $1.9
million in 1995 and $1.9 million in 1994 for these services. See "Business --
Sales and Marketing" and " -- Network Operations; Local Ground Operators."
In December 1991, Orion issued 259,515 shares of Common Stock at a value of
$11.56 per share to British Aerospace Space Systems, Inc. in consideration of
British Aerospace Space Systems, Inc.'s agreement to guarantee Orion's
obligations under a $10 million letter of credit (see Note 4 of Notes to
Consolidated Financial Statements). The shares were reconveyed to Orion and are
held in treasury at a value of $0. The shares are pledged as security for
British Aerospace Space Systems, Inc. in the event it is required to fund
amounts under its guarantee and Orion does not provide reimbursement. These
arrangements will be terminated upon the closing of the Transactions.
In December 1993, Orion issued an aggregate of 178,097 shares of Common Stock
as part of a private placement of its Common Stock to certain of its directors
and affiliates of those directors at a purchase price of $10.20 per share. The
terms of such issuance permitted the purchasers to receive the benefit of any
lower price at which Common Stock subsequently was issued in a private placement
or to receive any other security subsequently issued in a private placement. In
June 1994, when Orion issued shares of Common Stock as part of a private
placement of its Common Stock to a limited number of institutions and other
investors (including 64,705 shares to affiliates of directors) at a purchase
price of
89
<PAGE>
$8.50 per share, Orion issued 100,326 additional shares to the directors and
affiliates of directors who purchased Common Stock in December 1993. In
addition, after Orion issued Series A Preferred Stock (along with warrants and
options to make an additional investment) to CIBC, Fleet and Chisholm (each as
defined below) in June 1994, the Directors and affiliates of Directors who
purchased Common Stock in December 1993 each exercised their right to receive
Series A Preferred Stock (along with warrants and options to make an additional
investment) in exchange for the Common Stock previously acquired, and Orion
issued an aggregate of $3,000,000 of Series A Preferred Stock to such persons
and entities.
In April 1994, Orion entered into an agreement with Space Systems/Loral
("SS/L") whereby SS/L purchased 588,235 shares of Common Stock for an aggregate
purchase price of $5,000,000.
In June 1994, CIBC Wood Gundy Ventures, Inc. ("CIBC"), Fleet Venture
Resources, Inc. ("Fleet") and Chisholm Partners, II, L.P. ("Chisholm") purchased
$11.5 million in Series A Preferred Stock. For a description of the Series A
Preferred Stock, see "Description of Capital Stock -- Preferred Stock." In
connection with the transaction, CIBC and Fleet each were granted the right to
elect one member of Orion's Board of Directors. These rights terminated as a
result of the Company's initial public offering.
In June 1994, CIBC, Inc. (an affiliate of CIBC) became a $25,000,000 lender
under the Orion 1 Credit Facility.
In June 1995, CIBC, Fleet and certain directors and affiliates of directors
who purchased Series A Preferred Stock in June 1994 purchased approximately $4.2
million of Series B Preferred Stock of Orion. This purchase was pursuant to an
option granted in June 1994. The Series B Preferred Stock has rights,
designations and preferences substantially similar to those of the Series A
Preferred Stock, and is subject to similar covenants, except that the Series B
Preferred Stock is convertible into Common Stock at an initial price of $10.20
per share, subject to certain anti-dilution adjustments. For a description of
the Series B Preferred Stock, see "Description of Capital Stock -- Preferred
Stock."
In November 1995, Orion Atlantic redeemed the limited partnership interest
previously held by STET for an aggregate of approximately $11.5 million (the
"STET Redemption"), consisting of $3.5 million in cash and $8 million in
promissory notes, $3.5 million (plus accrued interest of approximately $400,000)
of which will be paid on the Closing Date. As part of the STET Redemption,
Telecom Italia, a subsidiary of STET, entered into a representative agreement
and distributor arrangement with Orion providing for sales, marketing, customer
support and ground operations services in Italy. Orion Atlantic funded the STET
Redemption by selling a new limited partnership interest to Orion for $8 million
(including $3.5 million in cash and $4.5 million in promissory notes), $3.5
million (plus accrued interest of approximately $400,000) of which will be paid
on the Closing Date). Orion Atlantic also entered into amendments to existing
contracts with STET that were expected to result in a cash savings by the
Company of approximately $3.5 million over a ten-year period. In connection with
the STET Redemption, Orion agreed to indemnify Telecom Italia for payments which
would be made under its firm and contingent capacity agreements with Orion
Atlantic. Such indemnity will be discontinued on the Closing Date.
In July 1996, Matra Marconi Space, the parent company of MMS Space Systems,
the prime contractor for Orion 1, entered into the Orion 2 Satellite Contract
with Orion regarding construction of Orion 2, which contract was amended in
December 1996. Certain terms of the Orion 2 Satellite Contract are described
above under the caption "Business -- Implementation of the Orion Satellite
System -- Orion 2." Matra Hachette, one of the parent companies of Matra Marconi
Space, will be a more than 5% beneficial owner of Common Stock after the
Exchange and the Merger. See "The Merger and the Exchange."
Effective as of June 1996, Orion and the Limited Partners entered into the
Exchange Agreement. In December 1996 and January 1997, the Limited Partners
agreed to extend to April 30, 1997 the termination date for the Exchange. See
"The Merger and the Exchange."
Effective as of January 13, 1997, Orion and each of British Aerospace and
Matra Marconi Space entered into the Debenture Agreement. The net proceeds of
the Debenture Investments, which will occur concurrently with this Offering, are
estimated to be approximately $59 million. Such net proceeds are expected to be
used for initial payments to the manufacturers under the Orion 2 Satellite
Contract.
90
<PAGE>
PRINCIPAL STOCKHOLDERS
The following table sets forth certain information regarding beneficial
ownership of the Company's Common Stock, as of September 30, 1996, and as
adjusted to reflect the beneficial ownership of Common Stock after the
Transactions, assuming for this purpose that the Transactions close January 30,
1997 (if the Transactions close after such date, the Limited Partners will
beneficially own greater amounts of Common Stock), by (i) each stockholder known
by the Company to be the beneficial owner of more than five percent of the
outstanding Common Stock, (ii) each director of the Company, (iii) each current
executive officer named in the Summary Compensation Table, and (iv) all
directors and executive officers as a group. Except as indicated, the Company
believes that, based on information furnished by such owners, the beneficial
owners of the Common Stock listed below have sole investment and voting power
with respect to such shares, subject to community property laws where
applicable.
<TABLE>
<CAPTION>
AFTER THE TRANSACTIONS
BEFORE THE TRANSACTIONS AFTER THE TRANSACTIONS ON A FULLY DILUTED BASIS(23)
----------------------------- ----------------------------- -----------------------------
PERCENT OF PERCENT OF PERCENT OF
AMOUNT OF TOTAL SHARES OF AMOUNT OF TOTAL SHARES OF AMOUNT OF TOTAL SHARES OF
BENEFICIAL COMMON STOCK BENEFICIAL COMMON STOCK BENEFICIAL COMMON STOCK
OWNERSHIP OUTSTANDING(2) OWNERSHIP OUTSTANDING(2) OWNERSHIP OUTSTANDING (2)
------------ ---------------- ------------ ---------------- ------------ ----------------
<S> <C> <C> <C> <C> <C> <C>
NAME AND ADDRESS OF
BENEFICIAL OWNER (1)
Limited Partners
- ----------------
and Affiliates
--------------
British Aerospace Space 598,183 5.4% 7,153,726 40.6% 7,153,726 27.6%
Systems, Inc. (3)
British Aerospace
Communications, Inc.
British Aerospace
Holdings, Inc.
13873 Park Center Road
Herndon, VA 22071
Lockheed Martin Commercial 239,769 2.2 1,368,340 11.3 1,368,340 5.3
Launch Services, Inc.
P.O. Box 179
MSM DC-1400
Denver, CO 80201-0179
MCN Sat US, Inc * * 1,735,714 13.7 1,735,714 6.7
Matra Marconi Space
UK Limited
37, Avenue Louis Breuget B.P.1.
78146 Velizy Villacoublay Cedez
France
Trans-Atlantic Satellite, Inc. * * 802,514 6.8 802,514 3.1
1211 Avenue of the Americas
41st Floor
New York, NY 10036
Kingston Communications 43,252 * 684,109 5.9 684,109 2.6
International Limited
Telephone House
Carr Lane
Kingston-upon-Hull
HU1 3RE
England
COM DEV Satellite 18,382 * 565,010 4.9 565,010 2.2
Communications Limited
150 Sheldon Drive
Cambridge, Ontario
Canada N1R 7H6
Limited Partners 899,586 8.1 12,309,413 54.7 12,309,413 47.5
and Affiliates
as a group
91
<PAGE>
AFTER THE TRANSACTIONS
BEFORE THE TRANSACTIONS AFTER THE TRANSACTIONS ON A FULLY DILUTED BASIS(23)
----------------------------- ----------------------------- -----------------------------
PERCENT OF PERCENT OF PERCENT OF
AMOUNT OF TOTAL SHARES OF AMOUNT OF TOTAL SHARES OF AMOUNT OF TOTAL SHARES OF
BENEFICIAL COMMON STOCK BENEFICIAL COMMON STOCK BENEFICIAL COMMON STOCK
OWNERSHIP OUTSTANDING(2) OWNERSHIP OUTSTANDING(2) OWNERSHIP OUTSTANDING (2)
------------ ---------------- ------------ ---------------- ------------ ----------------
John V. Saeman 1,486,440 13.4 1,486,440 13.4 1,486,440 5.7
J.V. Saeman & Co.(4)(5)
Medellion Enterprises, LLC
Suite 570
3200 Cherry Creek South Drive
Denver, CO 80209
CIBC Wood Gundy Ventures, Inc. 977,123 8.2 977,123 8.2 977,123 3.8
(4)(6)
425 Lexington Avenue
New York, NY 10017
Cumberland Associates 815,000 7.4 815,000 7.4 815,000 3.1
1114 Avenue of the Americas
New York, NY 10036
Fleet Venture Resources, Inc.(4)(7) 743,428 6.3 743,428 6.3 743,428 2.9
Fleet Equity Partners VI, L.P.
Chisholm Partners II, L.P.
50 Kennedy Plaza
Providence, RI 02903
Dawson-Samberg Capital 637,500 5.8 637,500 5.8 637,500 2.5
Management, Inc.
Pequot General Partners
DS International Partners
Pequot Endowment Partners, L.P.
Dawson-Samberg(8)
354 Pequot Ave.
Southport, CT 06490
Space Systems/Loral, Inc. 588,235 5.4 588,235 5.4 588,235 2.3
3925 Fabian Way
Palo Alto, CA 94303
Gustave M. Hauser(4)(9) 437,517 4.0 437,517 4.0 437,517 1.7
712 Fifth Avenue
New York, New York 01910
John G. Puente (4)(10) 432,181 3.9 432,181 3.9 432,181 1.7
2440 Research Blvd., Suite 400
Rockville, MD 20850
Sidney S. Kahn(4)(11) 254,840 2.3 254,840 2.3 254,840 1.0
14 East 60th Street, Suite 500
New York, New York 10022
W. Neil Bauer (4)(12) 133,821 1.2 133,821 1.2 133,821 *
2440 Research Blvd., Suite 400
Rockville, MD 20850
David J. Frear (4)(13) 60,181 * 60,181 * 60,181 *
2440 Research Blvd., Suite 400
Rockville, MD 20850
Richard H. Shay (14) 35,805 * 35,805 * 35,805 *
2440 Research Blvd., Suite 400
Rockville, MD 20850
Warren B. French, Jr. (15) 15,623 * 15,623 * 15,623 *
124 S. Main Street
Edinburg, VA 22824
93
<PAGE>
AFTER THE TRANSACTIONS
BEFORE THE TRANSACTIONS AFTER THE TRANSACTIONS ON A FULLY DILUTED BASIS(23)
----------------------------- ----------------------------- -----------------------------
PERCENT OF PERCENT OF PERCENT OF
AMOUNT OF TOTAL SHARES OF AMOUNT OF TOTAL SHARES OF AMOUNT OF TOTAL SHARES OF
BENEFICIAL COMMON STOCK BENEFICIAL COMMON STOCK BENEFICIAL COMMON STOCK
OWNERSHIP OUTSTANDING(2) OWNERSHIP OUTSTANDING(2) OWNERSHIP OUTSTANDING (2)
------------ ---------------- ------------ ---------------- ------------ ----------------
Richard J. Brekka (16) 10,000 * 10,000 * 10,000 *
CIBC Wood Gundy Ventures, Inc.
425 Lexington Avenue
New York, NY 10017
Barry Horowitz (17) 10,000 * 10,000 * 10,000 *
Mitretek Systems, Inc.
7525 Colshire Drive
McLean, VA 22102
Douglas H. Newman (18) 20,000 * 20,000 * 20,000 *
2440 Research Blvd., Suite 400
Rockville, MD 20850
W. Anthony Rice (19) 10,000 * 10,000 * 10,000 *
British Aerospace
13873 Park Center Road
Herndon, VA 2207
Robert M. Van Degna (20) 10,000 * 10,000 * 10,000 *
Fleet Equity Partners
50 Kennedy Plaza
Providence, RI 02903
Hans Giner (21) 5,000 * 5,000 * 5,000 *
2440 Research Blvd., Suite 400
Rockville, MD 20850
Dennis J. Curtin (22) 26,039 * 26,039 * 26,039 *
2440 Research Blvd., Suite 400
Rockville, MD 20850
All directors and executive officers 2,947,447 25.6 2,947,447 25.6 2,947,447 11.4
as a group (15 persons)
</TABLE>
- ----------
* Less than 1%.
(1) In accordance with Rule 13d-3 under the Exchange Act, a person is deemed to
be a "beneficial owner" of a security if he or she has or shares the power
to vote or direct the voting of such security or the power to dispose or
direct the disposition of such security. A person is also deemed to be a
beneficial owner of any securities of which that person has the right to
acquire beneficial ownership within 60 days from September 30, 1996. More
than one person may be deemed to be a beneficial owner of the same
securities. All persons shown in the table above have sole voting and
investment power, except as otherwise indicated. This table includes shares
of Common Stock subject to outstanding options granted pursuant to Orion's
Stock Option Plan and the Non-Employee Director Stock Option Plan. The
shares held by the Limited Partners and their affiliates may be deemed to be
beneficially owned by their parent companies, including British Aerospace
Public Limited Company, COM DEV, Limited, Kingston Communications (Hull)
plc, Martin Marietta Technologies, Inc. and Lockheed Martin Corporation,
Matra Hachette and Nissho Iwai Corporation.
(2) For the purpose of computing the percentage ownership of each beneficial
owner, any securities which were not outstanding but which were subject to
options, warrants, rights or conversion privileges held by such beneficial
owner exercisable within 60 days were deemed to be outstanding in
determining the percentage owned by such person but were not deemed
outstanding in determining the percentage owned by any other person.
(3) Includes 511,678 shares held of record and 86,505 shares issuable upon the
exercise of warrants held by British Aerospace Space Systems, Inc. Such
warrants were exercised subsequent to September 30, 1996.
(4) Does not include shares issuable upon exercise of warrants which are
exercisable only in the event that the Senior Preferred Stock is redeemed by
Orion prior to its conversion into Common Stock.
(5) The 1,486,440 shares of Common Stock beneficially owned by John V. Saeman
include 58,823 shares issuable upon conversion of 500 shares of Series A
Preferred Stock and 16,339 shares issuable upon conversion of 166.667 shares
of Series B Preferred Stock. Of the remaining 1,411,278 shares of stock
beneficially owned by John V. Saeman, 814,005 are held by J. V. Saeman &
Co., a general partnership, of which Mr. Saeman and his wife are the sole
partners, 40,196 are held by JCC, Ltd., a limited partnership, of which J.
V. Saeman & Co. is the general partner and 535,523 are held by Medallion
Enterprises, LLC of which Mr. Saeman and his wife are the sole members.
Includes 10,000 shares issuable upon exercise of stock options exercisable
within 60 days.
93
<PAGE>
(6) Includes 764,705 shares issuable upon conversion of 6,500 shares of Series A
Preferred Stock and 212,418 shares issuable upon conversion of 2,166.667
shares of Orion Series B Preferred Stock held by CIBC, which conversion
would increase the number of outstanding shares of Common Stock by 977,123
(8.9%).
(7) Includes 588,234 shares issuable upon conversion of 4,000 shares of Series A
Preferred Stock held by the two Fleet entities (which include, for purposes
of this footnote, Fleet Venture Resources, Inc. and Fleet Equity Partners,
VI, L.P.) and 1,000 shares of Series A Preferred Stock held by Chisholm, and
130,685 shares issuable upon conversion of 1,333 shares of Series B
Preferred Stock held by Fleet and preferred options held by Chisholm which
are convertible into 24,509 shares of Common Stock. Such conversion would
increase the number of shares of outstanding Common Stock by 743,428 (6.8%).
(8) Includes 54,100 shares held by Dawson-Samberg Capital Management, Inc.,
235,400 shares held by Pequot General Partners, 204,100 shares held by DS
International Partners and 143,000 shares held by Pequot Endowment Partners,
L.P.
(9) Includes 58,823 shares issuable upon the conversion of 500 shares of Series
A Preferred Stock and 16,339 shares issuable upon conversion of 166.667
shares of Series B Preferred Stock held by Mr. Hauser and his wife. Includes
10,000 shares issuable upon exercise of stock options exercisable within 60
days.
(10)Includes 58,439 shares held of record and 7,351 shares issuable upon the
exercise of options by Mr. Puente's wife. Also includes 321,501 shares held
of record, 43,087 shares issuable upon the exercise of stock options, 1,411
shares issuable upon the conversion of 12 shares of Series A Preferred Stock
and 392 shares issuable upon conversion of 4 shares of Series B Preferred
Stock held by Mr. Puente. Includes 10,000 shares issuable upon exercise of
stock options exercisable within 60 days.
(11)Includes 29,411 shares issuable upon the exercise of 250 shares of Series A
Preferred Stock and 8,169 shares issuable upon conversion of 83.333 shares
of Series B Preferred Stock. Includes 10,000 shares issuable upon exercise
of stock options exercisable within 60 days.
(12)Includes 133,821 shares issuable upon the exercise of stock options held by
Mr. Bauer exercisable within 60 days. Does not include 10,220 shares held of
record, 1,882 shares issuable upon the conversion of 16 shares of Series A
Preferred Stock, and 522 shares issuable upon conversion of 5.333 shares of
Series B Preferred Stock purchased in June 1995 held by Mr. Bauer's wife.
Mr. Bauer disclaims beneficial ownership of these shares.
(13)Includes 46,321 shares issuable upon the exercise of stock options
exercisable within 60 days, 1,176 shares issuable upon the conversion of 10
shares of Series A Preferred Stock and 326 shares issuable upon conversion
of 3.333 shares of Series B Preferred Stock.
(14)Includes 18,895 shares issuable upon exercise of stock options exercisable
within 60 days.
(15)Does not include 172,520 shares held of record, 29,412 shares issuable upon
the conversion of 250 shares of Series A Preferred Stock or 8,170 shares
issuable upon conversion of 83.334 shares of Series B Preferred Stock held
by Shenandoah Telecommunications Company, of which Mr. French is the former
Chairman and presently a consultant. Mr. French disclaims beneficial
ownership of these shares. Includes 10,000 shares issuable upon exercise of
stock options exercisable within 60 days.
(16)Mr. Brekka disclaims beneficial ownership of all shares of Orion's capital
stock which are owned by CIBC Wood Gundy. Includes 10,000 shares issuable
upon exercise of stock options exercisable within 60 days.
(17)Includes 10,000 shares issuable upon the exercise of stock options
exercisable within 60 days.
(18)Includes 10,000 shares issuable upon the exercise of stock options
exercisable within 60 days.
(19)Does not include 598,183 shares beneficially owned by British Aerospace
Space Systems, Inc. Mr. Rice, a director of Orion and a director of British
Aerospace Space Systems, Inc., disclaims beneficial ownership of these
shares. Includes 10,000 shares issuable upon exercise of stock options
exercisable within 60 days.
(20)Excludes 588,234 shares issuable upon conversion of shares of Series A
Preferred Stock held by Fleet and 1,000 shares of Series A Preferred Stock
held by Chisholm, and 130,685 shares issuable upon conversion of 1,333
shares of Series B Preferred Stock held by Fleet and preferred options held
by Chisholm which are convertible into 24,509 shares of Common Stock. Such
conversion would increase the number of outstanding shares of Common Stock
by 743,428 (6.8%). Mr. Van Degna, a director of Orion, is the chairman and
chief executive officer of each of the managing general partners of Fleet
Equity Partners VI, L.P., is the chairman and chief executive officer of
Fleet Venture Resources, Inc. and is the chairman and chief executive
officer of the corporation that is the general partner of the partnership
that is the general partner of Chisholm Partners II, L.P. Mr. Van Degna
disclaims beneficial ownership of these shares. Includes 10,000 shares
issuable upon exercise of stock options exercisable within 60 days.
(21)Includes 5,000 shares issuable upon the exercise of stock options
exercisable within 60 days.
(22)Includes 14,446 shares issuable upon the exercise of stock options
exercisable within 60 days and 705 shares issuable upon the conversion of 6
shares of Series A Preferred Stock and 196 shares issuable upon conversion
of 2 shares of Series B Preferred Stock.
(23)The percentage ownership of each beneficial owner calculated on a fully
diluted basis assumes conversion or exercise of all derivative securities,
including options, warrants, rights or conversion privileges.
94
<PAGE>
MARKET PRICES FOR ORION COMMON STOCK AND DIVIDEND POLICY
Since completion of Orion's initial public offering in August 1995, the
Common Stock has been quoted on the Nasdaq National Market under the trading
symbol "ONSI." As of December 15, 1996, there were approximately 350
stockholders of record of Orion's Common Stock. The following table summarizes
the high and low closing sale prices of Common Stock by fiscal quarter for 1995,
1996 and 1997 as reported on the Nasdaq National Market.
QUARTER ENDED: 1995
--------------- -------------
August 1 through September 30 ... $10 3/4 TO $14 1/4
December 31...................... 6 3/4 to 12
QUARTER ENDED: 1996
--------------- ------------
March 31......................... $8 1/4 to $14 3/4
June 30.......................... 10 1/4 to 14 1/4
September 30..................... 7 1/4 to 12 1/8
December 31 ..................... 9 1/2 to 135/8
QUARTER ENDED: 1997
-------------- -----------
March 31 (through January 14).... $12 1/2 to $15
Orion has never paid any cash dividends on Common Stock and the Board of
Directors of Orion currently does not anticipate paying cash dividends in the
foreseeable future on shares of Common Stock. The Indentures and agreements
relating to the Senior Preferred Stock contain covenants restricting the payment
of dividends by Orion for the foreseeable future.
95
<PAGE>
DESCRIPTION OF UNITS
The Senior Note Units each consist of a Senior Note with a principal amount
of $1,000 and a Warrant to purchase shares of Common Stock of Orion, and the
Senior Discount Note Units each consist of a Senior Discount Note with a
principal amount of $1,000 at maturity and a Warrant to purchase shares of
Common Stock of Orion.
The Notes and Warrants will become separately transferable on the earlier of
(i) six months after the date of issuance, (ii) such date as the Underwriters
may, in their discretion, deem appropriate and (iii) in the event of an Offer to
Purchase (as defined in "Description of Notes -- Certain Definitions"), the date
the Company mails notice thereof to holders of the Notes.
DESCRIPTION OF NOTES
The Senior Notes are to be issued under an Indenture, to be dated as of the
Closing Date (the "Senior Notes Indenture"), between the Company, as issuer,
each of the Company's Restricted Subsidiaries, as guarantors, and Bankers Trust
Company, as Trustee (in such capacity, the "Senior Notes Trustee"). The Senior
Discount Notes are to be issued under an Indenture, to be dated as of the
Closing Date (the "Senior Discount Notes Indenture"), between the Company, as
issuer, the Guarantors, as guarantors, and Bankers Trust Company, as Trustee (in
such capacity, the "Senior Discount Notes Trustee"). The Senior Notes and the
Senior Discount Notes are hereinafter collectively referred to as the "Notes."
The Senior Notes Indenture and the Senior Discount Notes Indenture are
hereinafter collectively referred to as the "Indentures." The Senior Notes
Trustee and the Senior Discount Notes Trustee are hereinafter collectively
referred to as the "Trustees." The Senior Note Guarantee and the Senior Discount
Note Guarantee are hereinafter collectively referred to as the "Note
Guarantees." Any reference to a "Trustee" means the Senior Notes Trustee or the
Senior Discount Notes Trustee, as the context may require.
A copy of each Indenture has been filed with the Commission as an exhibit to
the Registration Statement of which the Prospectus is a part. The following
summaries of certain provisions of the Indentures do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all the
provisions of the Indentures, including the definitions of certain terms therein
and those terms made a part thereof by reference to the Trust Indenture Act of
1939, as amended. Whenever particular defined terms of the Indentures not
otherwise defined herein are referred to, such defined terms are incorporated
herein by reference. For definitions of certain capitalized terms used in the
following summaries, see "-- Certain Definitions."
GENERAL
The Senior Notes will be unsubordinated obligations of the Company, initially
limited to $ million aggregate principal amount, and will mature on , 2007.
Interest on the Notes will accrue at the rate shown on the front cover of this
Prospectus from the Closing Date or from the most recent interest payment date
to which interest has been paid or provided for, payable semiannually (to
Holders of record at the close of business on the
or immediately preceding the interest payment date) on and
of each year, commencing , 1997.
The Senior Discount Notes will be unsubordinated obligations of the Company,
initially limited to $ million aggregate principal amount at maturity, and will
mature on , 2007. Although for federal income tax purposes a significant amount
of original issue discount, taxable as ordinary income, will be recognized by a
Holder as such discount accrues from the issue date of the Notes, no interest
will be payable on the Notes prior to , 2002. Interest on the Notes will accrue
at the rate shown on the front cover of this Prospectus from the Closing Date or
from the most recent interest payment date to which interest has been paid or
provided for, payable semiannually (to Holders of record at the close of
business on the or immediately preceding the interest payment date) on and
of each year, commencing , 2002.
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Principal of, premium, if any, and interest on the Notes will be payable, and
the Notes may be exchanged or transferred, at the office or agency of the
Company in the Borough of Manhattan, the City of New York (which, for the Senior
Notes, initially will be the corporate trust office of the Senior Notes Trustee
at Bankers Trust Company, 4 Albany Street, New York, NY 16006 and, for the
Senior Discount Notes Trustee, initially will be the corporate trust office of
the Senior Discount Notes Trustee at Bankers Trust Company, 4 Albany Street, New
York, NY 16006); provided that, at the option of the Company, payment of
interest may be made by check mailed to the address of the Holders as such
address appears in the Security Register.
The Notes will be issued only in fully registered form, without coupons, in
denominations of $1,000 of principal amount at maturity and any integral
multiple thereof. See "-Book-Entry; Delivery and Form." No service charge will
be made for any registration of transfer or exchange of Notes, but the Company
may require payment of a sum sufficient to cover any transfer tax or other
similar governmental charge payable in connection therewith.
The Company may, subject to the covenants described below under "Covenants"
and applicable law, issue (i) additional Senior Notes under the Senior Notes
Indenture and (ii) additional Senior Discount Notes under the Senior Discount
Notes Indenture. The Senior Notes offered hereby and any additional Senior Notes
subsequently issued would be treated as a single class for all purposes under
the Senior Notes Indenture. The Senior Discount Notes offered hereby and any
additional Senior Discount Notes subsequently issued would be treated as a
single class for all purposes under the Senior Discount Notes Indenture.
OPTIONAL REDEMPTION
The Notes will be redeemable, at the Company's option, in whole or in part,
at any time or from time to time, on or after , 2002 and prior to maturity, upon
not less than 30 nor more than 60 days' prior notice mailed by first class mail
to each Holders' last address as it appears in the Security Register, at the
following Redemption Prices (expressed in percentages of principal amount at
maturity), plus accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
that is on or prior to the Redemption Date to receive interest due on an
Interest Payment Date), if redeemed during the 12-month period commencing , of
the years set forth below:
For the Senior Notes
Year Redemption Price
------ ---------------------
2002 .................. . %
2003 .................. . %
2004 and thereafter ... 100.000%
For the Senior Discount Notes
Year Redemption Price
----- ---------------------
2002 .................. . %
2003 .................. . %
2004 and thereafter ... 100.000%
In the case of any partial redemption, selection of the Notes for redemption
will be made by the relevant Trustee in compliance with the requirements of the
principal national securities exchange, if any, on which the relevant Notes are
listed or, if such Notes are not listed on a national securities exchange, on a
pro rata basis, by lot or by such other method as such Trustee in its sole
discretion shall deem to be fair and appropriate; provided that no Note of
$1,000 in principal amount at maturity or less shall be redeemed in part. If any
Note is to be redeemed in part only, the notice of redemption relating to such
Note shall state the portion of the principal amount at maturity thereof to be
redeemed. A new Note in principal amount at maturity equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Note.
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SECURITY
The Senior Notes Indenture will provide that on the Closing Date, the Company
must purchase and pledge to the Senior Notes Trustee for the benefit of the
Holders of the Senior Notes the Pledged Securities in such amount as will be
sufficient upon receipt of scheduled interest and principal payments of such
securities, in the opinion of a nationally recognized firm of independent public
accountants selected by the Company, to provide for payment in full of the first
six scheduled interest payments due on the Senior Notes. The Company expects to
use approximately $118.8 million of the net proceeds of the Offering to acquire
the Pledged Securities; however, the precise amount of securities to be acquired
will depend upon the interest rates on Government Securities prevailing on the
Closing Date. The Pledged Securities will be pledged by the Company to the
Senior Notes Trustee for the benefit of the Holders of the Senior Notes pursuant
to the Pledge Agreement and will be held by the Senior Notes Trustee in the
Pledge Account. Pursuant to the Pledge Agreement, immediately prior to an
Interest Payment Date on the Senior Notes, the Company may either deposit with
the Senior Notes Trustee from funds otherwise available to the Company cash
sufficient to pay the interest scheduled to be paid on such date or the Company
may direct the Senior Notes Trustee to release from the Pledge Account proceeds
sufficient to pay interest then due on the Senior Notes. In the event that the
Company exercises the former option, the Company may thereafter direct the
Senior Notes Trustee to release to the Company proceeds or Pledged Securities
from the Pledge Account in like amount. A failure to pay interest on the Senior
Notes in a timely manner through the first six scheduled interest payment dates
will constitute an immediate Event of Default under the Senior Notes Indenture,
with no grace or cure period.
Interest earned on the Pledged Securities will be added to the Pledge
Account. In the event that the funds or Pledged Securities held in the Pledge
Account exceed the amount sufficient, in the opinion of a nationally recognized
firm of independent public accountants selected by the Company, to provide for
payment in full of the first six scheduled interest payments due on the Senior
Notes (or, in the event an interest payment or payments have been made, an
amount sufficient to provide for payment in full of any interest payments
remaining, up to and including the sixth scheduled interest payment), the Senior
Notes Trustee will be permitted to release to the Company at the Company's
request any such excess amount. The Senior Notes will be secured by the Pledged
Securities and in the Pledge Account and, accordingly, the Pledged Securities
and the Pledge Account will also secure repayment of the principal amount of the
Senior Notes to the extent of such security.
Under the Pledge Agreement, assuming that the Company makes the first six
scheduled interest payments on the Senior Notes in a timely manner, all of the
remaining Pledged Securities will be released from the Pledge Account and
thereafter the Senior Notes will be unsecured.
GUARANTEES
The Company's obligations under the Notes are fully and unconditionally
guaranteed on a senior basis by the Guarantors, provided that the Note
Guarantees shall not be enforceable against any Guarantor in an amount in excess
of the net worth of such Guarantor at the time that determination of such net
worth is, under applicable law, relevant to the enforceability of such Note
Guarantees. Such net worth shall include any claim of such Guarantor against the
Company for reimbursement and any claim against any other Guarantor for
contribution.
RANKING
The indebtedness evidenced by the Notes and the Note Guarantees will rank
pari passu in right of payment with all existing and future unsubordinated
indebtedness of the Company and the Guarantors, respectively, and senior in
right of payment to all existing and future subordinated indebtedness of the
Company and the Guarantors, respectively. After giving pro forma effect to the
Transactions, as of September 30, 1996, the Company would have had (on an
unconsolidated basis) $60.0 million of indebtedness (other than the Notes)
outstanding, all of which would have been subordinated indebtedness, and the
Guarantors, collectively, would have had $24.9 million of indebtedness (other
than the Note Guar-
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antees) outstanding, all of which would have been unsubordinated indebtedness
($7.2 million of which would have been secured by the Company's satellite
control facility) and no subordinated indebtedness. The Note Guarantees will be
effectively subordinated to all such secured indebtedness to the extent of the
collateral therefor.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
covenants and other provisions of the Indentures. Reference is made to the
appropriate Indenture for the full definition of all terms as well as any other
capitalized term used herein for which no definition is provided.
"Accreted Value" is defined to mean, for any Specified Date, the amount
calculated pursuant to (i), (ii), (iii) or (iv) for each $1,000 principal amount
at maturity of Senior Discount Notes:
(i) if the Specified Date occurs on one or more of the following dates (each
a "Semi-Annual Accrual Date"), the Accreted Value will equal the amount set
forth below for such Semi-Annual Accrual Date:
SEMI-ANNUAL ACCRETED
ACCRUAL DATE VALUE
----------------- -----
, 1997........... $
, 1998........... $
, 1998........... $
, 1999........... $
, 1999........... $
, 2000........... $
, 2000........... $
, 2001........... $
, 2001........... $
, 2002........... $1,000.00
(ii) if the Specified Date occurs before the first Semi-Annual Accrual
Date, the Accreted Vale will equal the sum of (a) the original issue price
and (b) an amount equal to the product of (1) the Accreted Value for the
first Semi-Annual Accrual Date less the original issue price multiplied by
(2) a fraction, the numerator of which is the number of days from the issue
date of the Senior Discount Notes to the Specified Date, using a 360-day year
of twelve 30-day months, and the denominator of which is the number of days
elapsed from the issue date of the Senior Discount Notes to the first
Semi-Annual Accrual Date, using a 360-day year of twelve 30-day months;
(iii) if the Specified Date occurs between two Semi-Annual Accrual
Dates, the Accreted Value will equal the sum of (a) the Accreted Value for
the Semi-Annual Accrual Date immediately preceding such Specified Date and
(b) an amount equal to the product of (1) the Accreted Value for the
immediately following Semi-Annual Accrual Date less the Accreted Value for
the immediately preceding Semi-Annual Accrual Date multiplied by (2) a
fraction, the numerator of which is the number of days from the immediately
preceding Semi-Annual Accrual Date to the Specified Date, using a 360-day
year of twelve 30-day months, and the denominator of which is 180; or
(iv) if the Specified Date occurs after the last Semi-Annual Accrual
Date, the Accreted Value will equal $1,000.
"Acquired Indebtedness" means Indebtedness of a Person existing at the time
such Person becomes a Restricted Subsidiary or assumed in connection with an
Asset Acquisition by a Restricted Subsidiary and not Incurred in connection
with, or in anticipation of, such Person becoming a Restricted Subsidiary or
such Asset Acquisition; provided that Indebtedness of such Person which is
redeemed, defeased, retired or otherwise repaid at the time of or immediately
upon consummation of the transactions by which such Person becomes a Restricted
Subsidiary or such Asset Acquisition shall not be Acquired Indebtedness.
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"Adjusted Consolidated Net Income" means, for any period, the aggregate net
income (or loss) of the Company and its Subsidiaries for such period determined
in conformity with GAAP; provided that the following items shall be excluded in
computing Adjusted Consolidated Net Income (without duplication): (i) the net
income of any Person (other than net income attributable to a Restricted
Subsidiary) in which any Person (other than the Company or any of its Restricted
Subsidiaries) has a joint interest and the net income (or loss) of any
Unrestricted Subsidiary, except that Adjusted Consolidated Net Income for any
period shall include the amount of dividends or other distributions actually
paid to the Company or any of its Restricted Subsidiaries by such other Person
or such Unrestricted Subsidiary during such period; (ii) solely for the purposes
of calculating the amount of Restricted Payments that may be made pursuant to
clause (C) of the first paragraph of the "Limitation on Restricted Payments"
covenant described below (and in such case, except to the extent includable
pursuant to clause (i) above), the net income (or loss) of any Person accrued
prior to the date it becomes a Restricted Subsidiary or is merged into or
consolidated with the Company or any of its Restricted Subsidiaries or all or
substantially all of the property and assets of such Person are acquired by the
Company or any of its Restricted Subsidiaries; (iii) any gains or losses (on an
after-tax basis) attributable to Asset Sales; (iv) except for purposes of
calculating the amount of Restricted Payments that may be made pursuant to
clause (C) of the first paragraph of the "Limitation on Restricted Payments"
covenant described below, any amount paid or accrued as dividends on Preferred
Stock of the Company or any Restricted Subsidiary owned by Persons other than
the Company and any of its Restricted Subsidiaries; (v) all extraordinary gains
and extraordinary losses; and (vi) any net income (or loss) of any Guarantor
that ceases to be a Guarantor because it is designated an Unrestricted
Subsidiary.
"Adjusted Consolidated Net Tangible Assets" means the total amount of assets
of the Company and its Restricted Subsidiaries (less applicable depreciation,
amortization and other valuation reserves), except to the extent resulting from
write-ups of capital assets (excluding write-ups in connection with accounting
for acquisitions in conformity with GAAP), after deducting therefrom (i) all
current liabilities of the Company and its Restricted Subsidiaries (excluding
intercompany items) and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as set
forth on the most recent quarterly or annual consolidated balance sheet of the
Company and its Restricted Subsidiaries, prepared in conformity with GAAP and
filed with the Commission pursuant to the "Commission Reports and Reports to
Holders" covenant.
"Affiliate" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Asset Acquisition" means (i) an investment by the Company or any of its
Restricted Subsidiaries in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or shall be merged into or consolidated with the
Company or any of its Restricted Subsidiaries; provided that such Person's
primary business is related, ancillary or complementary to the businesses of the
Company and its Restricted Subsidiaries on the date of such investment or (ii)
an acquisition by the Company or any of its Restricted Subsidiaries of the
property and assets of any Person other than the Company or any of its
Restricted Subsidiaries that constitute substantially all of a division or line
of business of such Person; provided that the property and assets acquired are
related, ancillary or complementary to the businesses of the Company and its
Restricted Subsidiaries on the date of such acquisition.
"Asset Disposition" means the sale or other disposition by the Company or any
of its Restricted Subsidiaries (other than to the Company or another Restricted
Subsidiary) of (i) all or substantially all of the Capital Stock of any
Restricted Subsidiary of the Company or (ii) all or substantially all of the
assets that constitute a division or line of business of the Company or any of
its Restricted Subsidiaries.
"Asset Sale" means any sale, transfer or other disposition (including by way
of merger, consolidation or sale-leaseback transaction) in one transaction or a
series of related transactions by the Company or any of its Restricted
Subsidiaries to any Person other than the Company or any of its Restricted
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Subsidiaries of (i) all or any of the Capital Stock of any Restricted
Subsidiary, (ii) all or substantially all of the property and assets of an
operating unit or business of the Company or any of its Restricted Subsidiaries
or (iii) any other property and assets of the Company or any of its Restricted
Subsidiaries outside the ordinary course of business of the Company or such
Restricted Subsidiary and, in each case, that is not governed by the provisions
of the Indentures applicable to mergers, consolidations and sales of assets of
the Company; provided that "Asset Sale" shall not include (a) sales or other
dispositions of inventory, receivables and other current assets or (b) sales or
other dispositions of assets for consideration at least equal to the fair market
value of the assets sold or disposed of, provided that the consideration
received would satisfy clause (B) of the "Limitation on Asset Sales" covenant.
"Average Life" means, at any date of determination with respect to any debt
security, the quotient obtained by dividing (i) the sum of the products of (a)
the number of years from such date of determination to the dates of each
successive scheduled principal payment of such debt security and (b) the amount
of such principal payment by (ii) the sum of all such principal payments.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether now outstanding or
issued after the Closing Date, including, without limitation, all Common Stock
and Preferred Stock.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person; and "Capitalized
Lease Obligations" means the discounted present value of the rental obligations
under such lease.
"Change of Control" means such time as (i) a "person" or "group" (within the
meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) becomes the ultimate
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more
than 35% of the total voting power of the Voting Stock of the Company on a fully
diluted basis and such ownership is greater than the amount of voting power of
the Voting Stock on the Company, on a fully diluted basis, held by the Existing
Stockholders and their Affiliates on such date; (ii) individuals who on the
Closing Date constitute the Board of Directors (together with any new directors
whose election by the Board of Directors or whose nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds of the
members of the Board of Directors then in office who either were members of the
Board of Directors on the Closing Date or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the members of the Board of Directors then in office; or (iii) the
Company does not beneficially own 100% of the equity interests in Orion Atlantic
Partners, L.P. or such other entity as then owns the Orion 1 satellite.
"Closing Date" means the date on which the Notes are originally issued under
the Indentures.
"Consolidated EBITDA" means, for any period, the sum of the amounts for such
period of (i) Adjusted Consolidated Net Income, (ii) Consolidated Interest
Expense, to the extent such amount was deducted in calculating Adjusted
Consolidated Net Income, (iii) income taxes, to the extent such amount was
deducted in calculating Adjusted Consolidated Net Income (other than income
taxes (either positive or negative) attributable to extraordinary and
non-recurring gains or losses or sales of assets), (iv) depreciation expense, to
the extent such amount was deducted in calculating Adjusted Consolidated Net
Income, (v) amortization expense, to the extent such amount was deducted in
calculating Adjusted Consolidated Net Income, and (vi) all other non-cash items
reducing Adjusted Consolidated Net Income (other than items that will require
cash payments and for which an accrual or reserve is, or is required by GAAP to
be, made), less all non-cash items increasing Adjusted Consolidated Net Income,
all as determined on a consolidated basis for the Company and its Restricted
Subsidiaries in conformity with GAAP.
"Consolidated Interest Expense" means, for any period, the aggregate amount
of interest in respect of Indebtedness (including, without limitation,
amortization of original issue discount on any Indebtedness and the interest
portion of any deferred payment obligation, calculated in accordance with the
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effective interest method of accounting; all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers' acceptance
financing; the net costs associated with Interest Rate Agreements; and in
respect of Indebtedness that is Guaranteed or secured by the Company or any of
its Restricted Subsidiaries) and all but the principal component of rentals in
respect of Capitalized Lease Obligations paid, accrued or scheduled to be paid
or to be accrued by the Company and its Restricted Subsidiaries during such
period; excluding, however, any premiums, fees and expenses (and any
amortization thereof) payable in connection with the offering of the Notes, all
as determined on a consolidated basis (without taking into account Unrestricted
Subsidiaries) in conformity with GAAP.
"Consolidated Leverage Ratio" means, on any Transaction Date, the ratio of
(i) the aggregate amount of Indebtedness of the Company and its Restricted
Subsidiaries on a consolidated basis outstanding on such Transaction Date to
(ii) the aggregate amount of Consolidated EBITDA for the then most recent four
fiscal quarters for which financial statements of the Company have been filed
with the Commission pursuant to the "Commission Reports and Reports to Holders"
covenant described below (such four fiscal quarter period being the "Four
Quarter Period"); provided that (A) pro forma effect shall be given to Asset
Dispositions and Asset Acquisitions (including giving pro forma effect to the
application of proceeds of any Asset Disposition) that occur from the beginning
of the Four Quarter Period through the Transaction Date (the "Reference
Period"), as if they had occurred and such proceeds had been applied on the
first day of such Reference Period; and (B) pro forma effect shall be given to
asset dispositions and asset acquisitions (including giving pro forma effect to
the application of proceeds of any asset disposition) that have been made by any
Person that has become a Restricted Subsidiary or has been merged with or into
the Company or any Restricted Subsidiary during such Reference Period and that
would have constituted Asset Dispositions or Asset Acquisitions had such
transactions occurred when such Person was a Restricted Subsidiary as if such
asset dispositions or asset acquisitions were Asset Dispositions or Asset
Acquisitions that occurred on the first day of such Reference Period; provided
that to the extent that clause (A) or (B) of this sentence requires that pro
forma effect be given to an Asset Acquisition or Asset Disposition, such pro
forma calculation shall be based upon the four full fiscal quarters immediately
preceding the Transaction Date of the Person, or division or line of business of
the Person, that is acquired or disposed for which financial information is
available.
"Consolidated Net Worth" means, at any date of determination, stockholders'
equity as set forth on the most recently available quarterly or annual
consolidated balance sheet of the Company and its Restricted Subsidiaries (which
shall be as of a date not more than 90 days prior to the date of such
computation), less any amounts attributable to Disqualified Stock or any equity
security convertible into or exchangeable for Indebtedness, the cost of treasury
stock and the principal amount of any promissory notes receivable from the sale
of the Capital Stock of the Company or any of its Restricted Subsidiaries, each
item to be determined in conformity with GAAP (excluding the effects of foreign
currency exchange adjustments under Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 52).
"Debenture Purchase Agreement" means the agreement, dated as of January 13,
1997, setting forth the terms of the issuance and sale of the Junior
Subordinated Convertible Debentures.
"Default" means any event that is, or after notice or passage of time or both
would be, an Event of Default.
"Disqualified Stock" means any class or series of Capital Stock of any Person
that by its terms or otherwise is (i) required to be redeemed prior to the
Stated Maturity of the Notes, (ii) redeemable at the option of the holder of
such class or series of Capital Stock at any time prior to the Stated Maturity
of the Notes or (iii) convertible into or exchangeable for Capital Stock
referred to in clause (i) or (ii) above or Indebtedness having a scheduled
maturity prior to the Stated Maturity of the Notes; provided that any Capital
Stock that would not constitute Disqualified Stock but for provisions thereof
giving holders thereof the right to require such Person to repurchase or redeem
such Capital Stock upon the occurrence of an "asset sale" or "change of control"
occurring prior to the Stated Maturity of the Notes shall not constitute
Disqualified Stock if the "asset sale" or "change of control" provisions
applicable to such Capital Stock are no more favorable to the holders of such
Capital Stock than the provisions contained
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in "Limitation on Asset Sales" and "Repurchase of Notes upon a Change of
Control" covenants described below and such Capital Stock specifically provides
that such Person will not repurchase or redeem any such stock pursuant to such
provision prior to the Company's repurchase of such Notes as are required to be
repurchased pursuant to the "Limitation on Asset Sales" and "Repurchase of Notes
upon a Change of Control" covenants described below.
"Existing Stockholders" means British Aerospace Space Systems, Inc., Lockheed
Martin Commercial Launch Services, Inc., MCN Sat U.S., Inc., Matra Marconi Space
UK Limited, Trans-Atlantic Satellite, Inc., Kingston Communications
International Limited, COM DEV Satellite Communications Limited, J.V. Saeman &
Co., CIBC Wood Gundy Ventures, Inc, Cumberland Associates, Fleet Venture
Resources, Inc., Dawson-Samberg Capital Management, Inc., Space Systems/Loral
and any Subsidiary or Affiliate of any of the foregoing.
"fair market value" means the price that would be paid in an arm's-length
transaction between an informed and willing seller under no compulsion to sell
and an informed and willing buyer under no compulsion to buy, as determined in
good faith by the Board of Directors, whose determination shall be conclusive if
evidenced by a Board Resolution.
"GAAP" means generally accepted accounting principles in the United States of
America as in effect as of the Transaction Date, including, without limitation,
those set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession. All ratios and computations contained or referred to in
the Indentures shall be computed in conformity with GAAP applied on a consistent
basis, except that calculations made for purposes of determining compliance with
the terms of the covenants and with other provisions of the Indentures shall be
made without giving effect to (i) the amortization of any expenses incurred in
connection with the offering of the Notes and (ii) except as otherwise provided,
the amortization of any amounts required or permitted by Accounting Principles
Board Opinion Nos. 16 and 17.
"Government Securities" means direct obligations of, obligations fully
guaranteed by, or participations in pools consisting solely of obligations of or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States of
America is pledged and which are not callable or redeemable at the option of the
issuer thereof.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness or other obligation of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guarantors" means, collectively, all Restricted Subsidiaries; provided that
any Person that becomes an Unrestricted Subsidiary in compliance with the
"Limitation on Restricted Payments" covenant shall not be included in
"Guarantors" after becoming an Unrestricted Subsidiary.
"Incur" means, with respect to any Indebtedness, to incur, create, issue,
assume, Guarantee or otherwise become liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Indebtedness,
including an "Incurrence" of Indebtedness by reason of a Person becoming a
Restricted Subsidiary of the Company; provided that neither the accrual of
interest nor the accretion of original issue discount shall be considered an
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date of determination
(without duplication), (i) all indebtedness of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) all obligations of such Person in
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respect of letters of credit or other similar instruments (including
reimbursement obligations with respect thereto, but excluding obligations with
respect to letters of credit (including trade letters of credit) securing
obligations (other than obligations described in (i) or (ii) above or (v), (vi)
or (vii) below) entered into in the ordinary course of business of such Person
to the extent such letters of credit are not drawn upon or, if drawn upon, to
the extent such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement), (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, which purchase price is due more than six months after the
date of placing such property in service or taking delivery and title thereto or
the completion of such services, except Trade Payables, (v) all obligations of
such Person as lessee under Capitalized Leases, (vi) all Indebtedness of other
Persons secured by a Lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person; provided that the amount of such
Indebtedness shall be the lesser of (A) the fair market value of such asset at
such date of determination and (B) the amount of such Indebtedness, (vii) all
Indebtedness of other Persons Guaranteed by such Person to the extent such
Indebtedness is Guaranteed by such Person and (viii) to the extent not otherwise
included in this definition, obligations under Currency Agreements and Interest
Rate Agreements. The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the obligation,
provided that (A) the amount outstanding at any time with respect to any
Indebtedness issued with original issue discount is the original issue price of
such Indebtedness, (B) Permitted Customer Advances, Prepayment Supports and any
money borrowed, at the time of the Incurrence of any Indebtedness, in order to
pre-fund the payment of interest on such Indebtedness, shall be deemed not to be
"Indebtedness" and (C) Indebtedness shall not include any liability for federal,
state, local or other taxes.
"Investment" in any Person means any direct or indirect advance, loan or
other extension of credit (including, without limitation, by way of Guarantee or
similar arrangement; but excluding advances to customers in the ordinary course
of business that are, in conformity with GAAP, recorded as accounts receivable
on the balance sheet of the Company or its Restricted Subsidiaries) or capital
contribution to (by means of any transfer of cash or other property to others or
any payment for property or services for the account or use of others), or any
purchase or acquisition of Capital Stock, bonds, notes, debentures or other
similar instruments issued by, such Person and shall include (i) the designation
of a Restricted Subsidiary as an Unrestricted Subsidiary and (ii) the fair
market value of the Capital Stock (or any other Investment), held by the Company
or any of its Restricted Subsidiaries, of (or in) any Person that has ceased to
be a Restricted Subsidiary, including, without limitation, by reason of any
transaction permitted by clause (iii) of the "Limitation on the Issuance and
Sale of Capital Stock of Restricted Subsidiaries" covenant. For purposes of the
definition of "Unrestricted Subsidiary" and the "Limitation on Restricted
Payments" covenant described below, (i) "Investment" shall include the fair
market value of the assets (net of liabilities (other than liabilities to the
Company or any of its Subsidiaries)) of any Restricted Subsidiary at the time
that such Restricted Subsidiary is designated an Unrestricted Subsidiary, (ii)
the fair market value of the assets (net of liabilities (other than liabilities
to the Company or any of its Subsidiaries)) of any Unrestricted Subsidiary at
the time that such Unrestricted Subsidiary is designated a Restricted Subsidiary
shall be considered a reduction in outstanding Investments and (iii) any
property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer.
"Junior Subordinated Convertible Debentures" means the Junior Subordinated
Convertible Debentures of the Company issued on the Closing Date.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including, without limitation, any conditional sale or other
title retention agreement or lease in the nature thereof or any agreement to
give any security interest).
"Merger" means the merger pursuant to an Agreement and Plan of Merger dated
January 8, 1997, of Old ONSI with a Wholly Owned subsidiary of the Company.
"Moody's" means Moody's Investors Service, Inc. and its successors.
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"Net Cash Proceeds" means, (a) with respect to any Asset Sale, the proceeds
of such Asset Sale in the form of cash or cash equivalents, including payments
in respect of deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form of
cash or cash equivalents (except to the extent such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary) and proceeds
from the conversion of other property received when converted to cash or cash
equivalents (including cash or cash equivalents that are deposited in escrow
pending satisfaction of conditions specified in the relevant sale documents or
that secures Prepayment Supports, in each case when such cash or cash
equivalents are released to the Company or a Restricted Subsidiary), net of (i)
brokerage commissions and other fees and expenses (including fees and expenses
of counsel and investment bankers) related to such Asset Sale, (ii) provisions
for all taxes (whether or not such taxes will actually be paid or are payable)
as a result of such Asset Sale without regard to the consolidated results of
operations of the Company and its Restricted Subsidiaries, taken as a whole,
(iii) payments made to repay Indebtedness or any other obligation outstanding at
the time of such Asset Sale that either (A) is secured by a Lien on the property
or assets sold or (B) is required to be paid as a result of such sale and (iv)
appropriate amounts to be provided by the Company or any Restricted Subsidiary
of the Company as a reserve against any liabilities associated with such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale, all as
determined in conformity with GAAP and (b) with respect to any issuance or sale
of Capital Stock, the proceeds of such issuance or sale in the form of cash or
cash equivalents, including payments in respect of deferred payment obligations
(to the extent corresponding to the principal, but not interest, component
thereof) when received in the form of cash or cash equivalents (except to the
extent such obligations are financed or sold with recourse to the Company or any
Restricted Subsidiary of the Company) and proceeds from the conversion of other
property received when converted to cash or cash equivalents, net of attorney's
fees, accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees incurred in connection with
such issuance or sale and net of taxes paid or payable as a result thereof.
"Note Guarantees" means, collectively, the Senior Note Guarantee and the
Senior Discount Note Guarantee.
"Offer to Purchase" means an offer to purchase Notes by the Company from the
Holders commenced by mailing a notice to the relevant Trustee and each Holder
stating: (i) the covenant pursuant to which the offer is being made and that all
Notes validly tendered will be accepted for payment on a pro rata basis; (ii)
the purchase price and the date of purchase (which shall be a Business Day no
earlier than 30 days nor later than 60 days from the date such notice is mailed)
(the "Payment Date"); (iii) that any Note not tendered will continue to accrue
interest (or original issue discount) pursuant to its terms; (iv) that, unless
the Company defaults in the payment of the purchase price, any Note accepted for
payment pursuant to the Offer to Purchase shall cease to accrue interest (or
original issue discount) on and after the Payment Date; (v) that Holders
electing to have a Note purchased pursuant to the Offer to Purchase will be
required to surrender the Note, together with the form entitled "Option of the
Holder to Elect Purchase" on the reverse side of the Note completed, to the
Paying Agent at the address specified in the notice prior to the close of
business on the Business Day immediately preceding the Payment Date; (vi) that
Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the third Business Day
immediately preceding the Payment Date, a telegram, facsimile transmission or
letter setting forth the name of such Holder, the principal amount at maturity
of Notes delivered for purchase and a statement that such Holder is withdrawing
his election to have such Notes purchased; and (vii) that Holders whose Notes
are being purchased only in part will be issued new Notes equal in principal
amount at maturity to the unpurchased portion of the Notes surrendered; provided
that each Note purchased and each new Note issued shall be in a principal amount
at maturity of $1,000 or integral multiples thereof. On the Payment Date, the
Company shall (i) accept for payment on a pro rata basis Notes or portions
thereof tendered pursuant to an Offer to Purchase; (ii) deposit with the Paying
Agent money sufficient to pay the purchase price of all Notes or portions
thereof so accepted; and (iii) deliver, or cause to be delivered, to the
relevant Trustee all Notes or portions thereof so accepted together with an
Officers' Certificate specifying the Notes or
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portions thereof accepted for payment by the Company. The Paying Agent shall
promptly mail to the Holders of Notes so accepted payment in an amount equal to
the purchase price, and the relevant Trustee shall promptly authenticate and
mail to such Holders a new Note equal in principal amount at maturity to any
unpurchased portion of the Note surrendered; provided that each Note purchased
and each new Note issued shall be in a principal amount at maturity of $1,000 or
integral multiples thereof. The Company will publicly announce the results of an
Offer to Purchase as soon as practicable after the Payment Date. The relevant
Trustee shall act as the Paying Agent for an Offer to Purchase. The Company will
comply with Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable,
in the event that the Company is required to repurchase Notes pursuant to an
Offer to Purchase.
"Old ONSI" means the Delaware corporation known as "Orion Network Systems,
Inc." prior to the consummation of the Merger.
"Orion 2" and "Orion 3" mean, respectively, each of the first two satellites
with respect to which the company has a Successful Launch after the Closing
Date, and any replacement for either of such satellites.
"Permitted Customer Advances" means obligations of the Company or any
Restricted Subsidiary to repay money received by the Company or such Restricted
Subsidiary from customers as bona fide prepayment for services to be provided
by, or purchases to be made from, the Company or such Restricted Subsidiary.
"Permitted Investment" means (i) an Investment in the Company or a Restricted
Subsidiary or a Person which will, upon the making of such Investment, become a
Restricted Subsidiary or be merged or consolidated with or into or transfer or
convey all or substantially all its assets to, the Company or a Restricted
Subsidiary; provided that such person's primary business is related, ancillary
or complementary to the businesses of the Company and its Restricted
Subsidiaries on the date of such Investment; (ii) Temporary Cash Investments;
(iii) payroll, travel and similar advances to cover matters that are expected at
the time of such advances ultimately to be treated as expenses in accordance
with GAAP; and (iv) stock, obligations or securities received in satisfaction of
judgments.
"Permitted Liens" means (i) Liens for taxes, assessments, governmental
charges or claims that are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made; (ii) statutory and common law Liens of landlords and
carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other
similar Liens arising in the ordinary course of business and with respect to
amounts not yet delinquent or being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made; (iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security; (iv) Liens incurred or deposits
made to secure the performance of tenders, bids, leases, statutory or regulatory
obligations, bankers' acceptances, surety and appeal bonds, government
contracts, performance and return-of-money bonds and other obligations of a
similar nature incurred in the ordinary course of business (exclusive of
obligations for the payment of borrowed money); (v) easements, rights-of-way,
municipal and zoning ordinances and similar charges, encumbrances, title defects
or other irregularities that do not materially interfere with the ordinary
course of business of the Company or any of its Restricted Subsidiaries; (vi)
Liens (including extensions and renewals thereof) upon real or personal property
acquired after the Closing Date; provided that (a) such Lien is created solely
for the purpose of securing Indebtedness Incurred, in accordance with the
"Limitation on Indebtedness" covenant described below, (1) to finance the cost
(including the cost of improvement, transportation, development and design,
installation, integration or construction) of the item of property or assets
subject thereto and such Lien is created prior to, at the time of or within six
months after the later of the acquisition, the completion of construction or the
commencement of full operation of such property or (2) to refinance any
Indebtedness previously so secured, (b) the principal amount of the Indebtedness
secured by such Lien does not exceed 100% of
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such cost (plus, in the case of any refinancing Indebtedness referred to in
clause (vi)(a)(2) above, premiums, accrued interest, fees and expenses), (c) any
Lien permitted by this clause shall not extend to or cover any property or
assets other than such item of property or assets and any improvements on such
item and (d) such Liens may not relate to Orion 2 or Orion 3; (vii) leases or
subleases granted to others that do not materially interfere with the ordinary
course of business of the Company and its Restricted Subsidiaries, taken as a
whole; (viii) Liens encumbering property or assets under construction arising
from progress or partial payments by a customer of the Company or its Restricted
Subsidiaries relating to such property or assets; (ix) any interest or title of
a lessor in the property subject to any Capitalized Lease or operating lease;
(x) Liens arising from filing Uniform Commercial Code financing statements
regarding leases; (xi) Liens on property of, or on shares of Capital Stock or
Indebtedness of, any Person existing at the time such Person becomes, or becomes
a part of, any Restricted Subsidiary; provided that such Liens do not extend to
or cover any property or assets of the Company or any Restricted Subsidiary
other than the property or assets acquired; (xii) Liens in favor of the Company
or any Restricted Subsidiary; (xiii) Liens arising from the rendering of a final
judgment or order against the Company or any Restricted Subsidiary of the
Company that does not give rise to an Event of Default; (xiv) Liens securing
reimbursement obligations with respect to letters of credit that encumber
documents and other property relating to such letters of credit and the products
and proceeds thereof; (xv) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in connection
with the importation of goods; (xvi) Liens encumbering customary initial
deposits and margin deposits, and other Liens that are within the general
parameters customary in the industry and incurred in the ordinary course of
business, in each case, securing Indebtedness under Interest Rate Agreements and
Currency Agreements and forward contracts, options, future contracts, futures
options or similar agreements or arrangements designed solely to protect the
Company or any of its Restricted Subsidiaries from fluctuations in interest
rates, currencies or the price of commodities; (xvii) Liens arising out of
conditional sale, title retention, consignment or similar arrangements for the
sale of goods entered into by the Company or any of its Restricted Subsidiaries
in the ordinary course of business in accordance with the past practices of the
Company and its Restricted Subsidiaries prior to the Closing Date; (xviii) Liens
on or sales of receivables; (xix) Liens (including Liens securing Prepayment
Supports) on amounts of money or Temporary Cash Investments that each represent
bona fide prepayments of at least $5 million on agreements for the long-term
sale or lease of capacity on any satellite owned by the Company or a Restricted
Subsidiary, but only to the extent that the amount of money or Temporary Cash
Investments subject to any such Lien does not exceed the amount of such
prepayment and reasonable interest thereon; (xx) Liens encumbering contracts
between the Company or any Restricted Subsidiary and any third party customer
relating to the use of a VSAT owned by the Company or any Restricted Subsidiary
but only if, and so long as, the Indebtedness secured by any such Lien is also
secured by a Lien permitted under clause (vi) of this definition encumbering
such VSAT; and (xxi) Liens upon a satellite and components thereof during the
period in which such satellite is being constructed, provided that (a) such
Liens (1) are for the benefit of only the manufacturer of such satellite or
components and (2) secure only the obligation of the Company or any Restricted
Subsidiary to pay the purchase price for such satellite or components and (b)
such Liens are actually released upon, or prior to, the completion of
construction of such satellite and prior to the launch or commencement of full
operations of such satellite.
"Pledge Account" means an account established with the Senior Notes Trustee
pursuant to the terms of the Pledge Agreement for the deposit of the Pledged
Securities purchased by the Company with a portion of the proceeds from the sale
of the Senior Notes.
"Pledge Agreement" means the Collateral Pledge and Security Agreement, dated
as of the date of the Senior Notes Indenture, made by the Company in favor of
the Senior Notes Trustee, governing the disbursement of funds from the Pledge
Account, as such Agreement may be amended, restated, supplemented or otherwise
modified from time to time.
"Pledged Securities" means the securities originally purchased by the Company
with a portion of the proceeds from the sale of the Senior Notes, which shall
consist of Government Securities, to be deposited in the Pledge Account, all in
accordance with the terms of the Pledge Agreement.
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"Prepayment Support" means the reimbursement obligations of the Company or
any Restricted Subsidiary in connection with any fully secured letter of credit
or similar credit support issued by any third party in connection with the
obligations of the Company or such Restricted Subsidiary to repay amounts
received as bona fide prepayments of at least $5 million on agreements for the
long-term sale or lease of capacity on a satellite owned by the Company or a
Restricted Subsidiary.
"Redemption Indebtedness" means Indebtedness of the Company which is (i)
subordinated in right of payment of the Notes on terms substantially similar to
the terms contained, on the Closing Date, in Article 14 of the Debenture
Purchase Agreement (but excluding the terms contained, on the Closing Date, in
Section 14.7 of the Debenture Purchase Agreement) and (ii) Incurred for the sole
purpose of financing the redemption, repurchase or acquisition of shares of
Series A Preferred Stock or Series B Preferred Stock.
"Released Indebtedness" means, with respect to any Asset Sale, Indebtedness
(i) which is owed by the Company or any Restricted Subsidiary (the "Obligors")
prior to such Asset Sale, (ii) which is assumed by the purchaser or any
affiliate thereof in connection with such Asset Sale and (iii) with respect to
the Obligors receive written, unconditional releases from each creditor, no
later than the closing date of such Asset Sale.
"Restricted Subsidiary" means any Subsidiary of the Company other than an
Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Senior Discount Note Guarantee" means the Guarantee by the Guarantors of the
Company's obligations under the Senior Discount Notes and the Senior Discount
Notes Indenture, pursuant to the Senior Discount Notes Indenture, and the
Guarantee by any other Person that becomes a Guarantor of the Company's
obligations under the Senior Discount Notes and the Senior Discount Notes
Indenture.
"Senior Note Guarantee" means the Guarantee by the Guarantors of the
Company's obligations under the Senior Notes and the Senior Notes Indenture,
pursuant to the Senior Notes Indenture, and the Guarantee by any other Person
that becomes a Guarantor of the Company's obligations under the Senior Notes and
the Senior Notes Indenture.
"Series A Preferred Stock" means the Company's Series A 8% Cumulative
Redeemable Convertible Preferred Stock, par value $0.01 per share.
"Series B Preferred Stock" means the Company's Series B 8% Cumulative
Redeemable Convertible Preferred Stock, par value $0.01 per share.
"Significant Subsidiary" means, at any date of determination, any Restricted
Subsidiary that, together with its Subsidiaries, (i) for the most recent fiscal
year of the Company, accounted for more than 10% of the consolidated revenues of
the Company and its Restricted Subsidiaries or (ii) as of the end of such fiscal
year, was the owner of more than 10% of the consolidated assets of the Company
and its Restricted Subsidiaries, all as set forth on the most recently available
consolidated financial statements of the Company for such fiscal year.
"Stated Maturity" means, (i) with respect to any debt security, the date
specified in such debt security as the fixed date on which the final installment
of principal of such debt security is due and payable and (ii) with respect to
any scheduled installment of principal of or interest on any debt security, the
date specified in such debt security as the fixed date on which such installment
is due and payable.
"Subsidiary" means, with respect to any Person, any corporation, association
or other business entity of which more than 50% of the voting power of the
outstanding Voting Stock is owned, directly or indirectly, by such Person and
one or more other Subsidiaries of such Person.
"Successful Launch" means, with respect to any satellite, the placing into
orbit of such satellite in its assigned orbital position with at least 40% of
the transponder capacity fully operational.
"Temporary Cash Investment" means any of the following: (i) direct
obligations of the United States of America or any agency thereof or obligations
fully and unconditionally guaranteed by the United States of America or any
agency thereof, (ii) time deposit accounts, certificates of deposit and
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money market deposits maturing within 180 days of the date of acquisition
thereof issued by a bank or trust company which is organized under the laws of
the United States of America, any state thereof or any foreign country
recognized by the United States, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $50 million (or the
foreign currency equivalent thereof) and has outstanding debt which is rated "A"
(or such similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under the
Securities Act) or any money-market fund sponsored by a registered broker dealer
or mutual fund distributor, (iii) repurchase obligations with a term of not more
than 30 days for underlying securities of the types described in clause (i)
above entered into with a bank meeting the qualifications described in clause
(ii) above, (iv) commercial paper, maturing not more than 90 days after the date
of acquisition, issued by a corporation (other than an Affiliate of the Company)
organized and in existence under the laws of the United States of America, any
state thereof or any foreign country recognized by the United States of America
with a rating at the time as of which any investment therein is made of "P-1"
(or higher) according to Moody's or "A-1" (or higher) according to S&P, and (v)
securities with maturities of six months or less from the date of acquisition
issued or fully and unconditionally guaranteed by any state, commonwealth or
territory of the United States of America, or by any political subdivision or
taxing authority thereof, and rated at least "A" by S&P or Moody's.
"Trade Payables" means, with respect to any Person, any accounts payable or
any other indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person or any of its Subsidiaries arising in the
ordinary course of business in connection with the acquisition of goods or
services.
"Transaction Date" means, with respect to the Incurrence of any Indebtedness
by the Company or any of its Restricted Subsidiaries, the date such Indebtedness
is to be Incurred and, with respect to any Restricted Payment, the date such
Restricted Payment is to be made.
"TT&C Financing" means the agreement, dated November 23, 1993, between
General Electric Capital Corporation and International Satellite Partners, L.P.
("Orion Atlantic"), relating to borrowings by Orion Atlantic.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that at the
time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below, (ii) any Subsidiary of an
Unrestricted Subsidiary and (iii) International Technology Gateway (U.K.)
Limited. The Board of Directors may designate any Restricted Subsidiary
(including any newly acquired or newly formed Subsidiary of the Company) to be
an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Lien on any property of, the Company or any Restricted
Subsidiary; provided that (A) any Guarantee by the Company or any Restricted
Subsidiary of any Indebtedness of the Subsidiary being so designated shall be
deemed an "Incurrence" of such Indebtedness and an "Investment" by the Company
or such Restricted Subsidiary (or both, if applicable) at the time of such
designation; (B) either (I) the Subsidiary to be so designated has total assets
of $1,000 or less or (II) if such Subsidiary has assets greater than $1,000,
such designation would be permitted under the "Limitation on Restricted
Payments" covenant described below, and (C) if applicable, the Incurrence of
Indebtedness and the Investment referred to in clause (A) of this proviso would
be permitted under the "Limitation on Indebtedness" and "Limitation on
Restricted Payments" covenants described below. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that immediately after giving effect to such designation (x) the Company could
Incur $1.00 of additional Indebtedness under the first paragraph of the
"Limitation on Indebtedness" covenant described below and (y) no Default or
Event of Default shall have occurred and be continuing. Any such designation by
the Board of Directors shall be evidenced to the relevant Trustee by promptly
filing with the relevant Trustee a copy of the Board Resolution giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"Voting Stock" means with respect to any Person, Capital Stock of any class
or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
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"Wholly Owned" means, with respect to any Subsidiary of any Person, the
ownership of all of the outstanding Capital Stock of such Subsidiary (other than
any director's qualifying shares or Investments by foreign nationals mandated by
applicable law) by such Person or one or more Wholly Owned Subsidiaries of such
Person.
COVENANTS
The Indentures will contain, among others, the following covenants.
LIMITATION ON INDEBTEDNESS
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, Incur any Indebtedness (other than the Notes and Indebtedness
existing on the Closing Date); provided that the Company may Incur Indebtedness
if, after giving effect to the Incurrence of such Indebtedness and the receipt
and application of the proceeds therefrom, the Consolidated Leverage Ratio would
be greater than zero and less than 6 to 1.
Notwithstanding the foregoing, the Company and any Restricted Subsidiary
(except as specified below) may Incur each and all of the following: (i)
Indebtedness outstanding at any time that is (A) Incurred to finance the
purchase, construction, launch, insurance for and other costs with respect to
Orion 2 and Orion 3 or (B) in an aggregate principal amount not to exceed (1)
until Orion 2 or Orion 3 has been successfully delivered in orbit, $50 million,
(2) after the first of Orion 2 or Orion 3 has been successfully delivered in
orbit, $100 million and (3) after the second of Orion 2 or Orion 3 has been
successfully delivered in orbit, $150 million, in each case under this clause
(i)(B); (ii) Indebtedness owed (A) to the Company or (B) to any of its
Restricted Subsidiaries; provided that any event which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent
transfer of such Indebtedness (other than to the Company or another Restricted
Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such
Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in
exchange for, or the net proceeds of which are used to refinance or refund, then
outstanding Indebtedness, other than Indebtedness Incurred under clause (i)(B),
(ii), (iv), (vi) or (viii) of this paragraph, and any refinancings thereof in an
amount not to exceed the amount so refinanced or refunded (plus premiums,
accrued interest, fees and expenses); provided that Indebtedness the proceeds of
which are used to refinance or refund the Notes, the Note Guarantees or
Indebtedness that is pari passu with, or subordinated in right of payment to,
the Notes shall only be permitted under this clause (iii) if (A) in case the
Notes or the Note Guarantees are refinanced in part or the Indebtedness to be
refinanced is pari passu with the Notes or the Note Guarantees, such new
Indebtedness, by its terms or by the terms of any agreement or instrument
pursuant to which such new Indebtedness is outstanding, is expressly made pari
passu with, or subordinate in right of payment to, the remaining Notes or the
Note Guarantees, as the case may be, (B) in case the Indebtedness to be
refinanced is subordinated in right of payment to the Notes or the Note
Guarantees, such new Indebtedness, by its terms or by the terms of any agreement
or instrument pursuant to which such new Indebtedness is issued or remains
outstanding, is expressly made subordinate in right of payment to the Notes or
the Note Guarantees at least to the extent that the Indebtedness to be
refinanced is subordinated to the Notes or the Note Guarantees, as the case may
be, and (C) such new Indebtedness, determined as of the date of Incurrence of
such new Indebtedness, does not mature prior to the Stated Maturity of the
Indebtedness to be refinanced or refunded, and the Average Life of such new
Indebtedness is at least equal to the remaining Average Life of the Indebtedness
to be refinanced or refunded; (iv) Indebtedness (A) in respect of performance,
surety or appeal bonds provided in the ordinary course of business, (B) under
Currency Agreements and Interest Rate Agreements; provided that such agreements
(a) are designed solely to protect the Company or its Subsidiaries against
fluctuations in foreign currency exchange rates or interest rates and (b) do not
increase the Indebtedness of the obligor outstanding at any time other than as a
result of fluctuations in foreign currency exchange rates or interest rates or
by reason of fees, indemnities and compensation payable thereunder and (C)
arising from agreements providing for indemnification, adjustment of purchase
price or similar obligations, or from Guarantees or letters of credit, surety
bonds or performance bonds securing any obligations of the Company or any of its
Restricted Subsidiaries pursuant to such agreements, in any case Incurred in
connection with the
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disposition of any business, assets or Restricted Subsidiary of the Company
(other than Guarantees of Indebtedness Incurred by any Person acquiring all or
any portion of such business, assets or Restricted Subsidiary of the Company for
the purpose of financing such acquisition), in a principal amount not to exceed
the gross proceeds actually received by the Company or any Restricted Subsidiary
in connection with such disposition; (v) Indebtedness of the Company, to the
extent the net proceeds thereof are promptly (A) used to purchase Notes tendered
in an Offer to Purchase made as a result of a Change in Control or (B) deposited
to defease the Notes as described below under "Defeasance"; (vi) Guarantees of
the Notes and Guarantees of Indebtedness of the Company by any Restricted
Subsidiary provided the Guarantee of such Indebtedness is permitted by and made
in accordance with the "Limitation on Issuance of Guarantees by Restricted
Subsidiaries" covenant described below; (vii) Indebtedness Incurred to finance
the cost (including the cost of design, development, construction, installation,
improvement, transportation or integration) of equipment (other than Orion 2 and
Orion 3) or inventory acquired by the Company or a Restricted Subsidiary after
the Closing Date; (viii) Indebtedness of the Company not to exceed, at any one
time outstanding, two times the Net Cash Proceeds received by the Company after
the Closing Date from the issuance and sale of its Capital Stock (other than
Disqualified Stock) to a Person that is not a Subsidiary of the Company (less
the amount of such proceeds applied as provided in clause (C)(2) of the first
paragraph or clause (iii) or (iv) of the second paragraph of the "Limitation on
Restricted Payments" covenant described below); provided that such Indebtedness
does not mature prior to the Stated Maturity of the Notes and has an Average
Life longer than the Notes; and (ix) Redemption Indebtedness.
(b) Notwithstanding any other provision of this "Limitation on Indebtedness"
covenant, the maximum amount of Indebtedness that the Company or a Restricted
Subsidiary may incur pursuant to this "Limitation on Indebtedness" covenant
shall not be deemed to be exceeded, with respect to any outstanding
Indebtedness, due solely to the result of fluctuations in the exchange rates of
currencies.
(c) For purposes of determining any particular amount of Indebtedness under
this "Limitation on Indebtedness" covenant, (1) Guarantees, Liens or obligations
with respect to letters of credit supporting Indebtedness otherwise included in
the determination of such particular amount shall not be included and (2) any
Liens granted pursuant to the equal and ratable provisions referred to in the
"Limitation on Liens" covenant described below shall not be treated as
Indebtedness. For purposes of determining compliance with this "Limitation on
Indebtedness" covenant, in the event that an item of Indebtedness meets the
criteria of more than one of the types of Indebtedness described in the above
clauses, the Company, in its sole discretion, shall classify such item of
Indebtedness and only be required to include the amount and type of such
Indebtedness in one of such clauses.
(d) In the event that the Company or any Restricted Subsidiary shall repay
any Indebtedness (other than the Notes) pursuant to clause (i)(A) of the
"Limitation on Asset Sales" covenant, the aggregate amount of Indebtedness which
may otherwise be Incurred under clauses (i)(B) and (viii) of the second
paragraph of paragraph (a) of this covenant shall be reduced by the amount of
such repayment. The Company shall designate how much of such reduction shall be
applied to each such clause.
LIMITATION ON RESTRICTED PAYMENTS
The Company will not, and will not permit any Restricted Subsidiary, directly
or indirectly, to (i) declare or pay any dividend or make any distribution on or
with respect to its Capital Stock (other than (x) dividends or distributions
payable solely in shares of its Capital Stock (other than Disqualified Stock) or
in options, warrants or other rights to acquire shares of such Capital Stock and
(y) pro rata dividends or distributions on Common Stock of Restricted
Subsidiaries held by minority stockholders, provided that such dividends do not
in the aggregate exceed the minority stockholders' pro rata share of such
Restricted Subsidiaries' net income from the first day of the fiscal quarter
beginning immediately following the Closing Date) held by Persons other than the
Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or
otherwise acquire for value any shares of Capital Stock of the Company, any
Guarantor or an Unrestricted Subsidiary (including options, warrants or other
rights to acquire such shares of Capital Stock) held by Persons other than the
Company and its Wholly Owned Subsidiaries, (iii) make any voluntary or optional
principal payment, or voluntary or optional redemption, repurchase,
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defeasance, or other acquisition or retirement for value, of Indebtedness of the
Company that is subordinated in right of payment to the Notes or of any
Guarantor that is subordinated to the Note Guarantees (other than, in each case,
the purchase, repurchase or the acquisition of Indebtedness in anticipation of
satisfying a sinking fund obligation, principal installment or final maturity,
in any case due within one year of the date of acquisition) or (iv) make any
Investment, other than a Permitted Investment, in any Person (such payments or
any other actions described in clauses (i) through (iv) being collectively
"Restricted Payments") if, at the time of, and after giving effect to, the
proposed Restricted Payment: (A) a Default or Event of Default shall have
occurred and be continuing, (B) except with respect to Investments and dividends
on the Common Stock of any Guarantor, the Company could not Incur at least $1.00
of Indebtedness under the first paragraph of the "Limitation on Indebtedness"
covenant or (C) the aggregate amount of all Restricted Payments (the amount, if
other than in cash, to be determined in good faith by the Board of Directors,
whose determination shall be conclusive and evidenced by a Board Resolution)
made after the Closing Date shall exceed the sum of (1) 50% of the aggregate
amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated
Net Income is a loss, minus 100% of the amount of such loss) (determined by
excluding income resulting from transfers of assets by the Company or a
Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative
basis during the period (taken as one accounting period) beginning on the first
day of the fiscal quarter immediately following the Closing Date and ending on
the last day of the last fiscal quarter preceding the Transaction Date for which
reports have been filed pursuant to the "Commission Reports and Reports to
Holders" covenant plus (2) the aggregate Net Cash Proceeds received by the
Company or any Guarantor after the Closing Date from the issuance and sale
permitted by the Indentures of its Capital Stock (other than Disqualified Stock)
to a Person who is not a Subsidiary of the Company or any Guarantor or from the
issuance to a Person who is not a Subsidiary of the Company or any Guarantor of
any options, warrants or other rights to acquire Capital Stock of the Company
(in each case, exclusive of any Disqualified Stock or any options, warrants or
other rights that are redeemable at the option of the holder, or are required to
be redeemed, prior to the Stated Maturity of the Notes), in each case except to
the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to
clause (viii) of the second paragraph under the "Limitation on Indebtedness"
covenant described above, plus (3) an amount equal to the net reduction in
Investments (other than reductions in Permitted Investments) in any Person
resulting from payments of interest on Indebtedness, dividends, repayments of
loans or advances, or other transfers of assets, in each case to the Company or
any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any
such Investment (except, in each case, to the extent any such payment or
proceeds are included in the calculation of Adjusted Consolidated Net Income),
or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries
(valued in each case as provided in the definition of "Investments"), not to
exceed, in each case, the amount of Investments previously made by the Company
or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.
The foregoing provision shall not be violated by reason of: (i) the payment
of any dividend within 60 days after the date of declaration thereof if, at said
date of declaration, such payment would comply with the foregoing paragraph;
(ii) the redemption, repurchase, defeasance or other acquisition or retirement
for value of Indebtedness that is subordinated in right of payment to the Notes
including premium, if any, and accrued and unpaid interest, with the proceeds
of, or in exchange for, Indebtedness Incurred under clause (iii) of the second
paragraph of part (a) of the "Limitation on Indebtedness" covenant; (iii) the
repurchase, redemption or other acquisition of Capital Stock of the Company (or
options, warrants or other rights to acquire such Capital Stock) in exchange
for, or out of the proceeds of a substantially concurrent offering of, shares of
Capital Stock (other than Disqualified Stock) of the Company; (iv) the making of
any principal payment or the repurchase, redemption, retirement, defeasance or
other acquisition for value of Indebtedness of the Company which is subordinated
in right of payment to the Notes in exchange for, or out of the proceeds of, a
substantially concurrent offering of, shares of the Capital Stock of the Company
(other than Disqualified Stock); (v) payments or distributions, to dissenting
stockholders pursuant to applicable law, pursuant to or in connection with a
consolidation, merger or transfer of assets that complies with the provisions of
the Indentures applicable to mergers, consolidations and transfers of all or
substantially all of the property and assets of the Company; (vi) the
repurchase, redemption or other acquisition of outstanding shares of Series A
Preferred Stock or Series B Preferred Stock, which shares either (A) were
outstanding on the Closing Date or (B) are shares of
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Series A Preferred Stock which were issued pursuant to the exercise of options
that were outstanding on the Closing Date, in exchange for, or out of the
proceeds of, an issuance of Indebtedness Incurred under clause (ix) of the
second paragraph of part (a) of the "Limitation on Indebtedness" covenant; or
(vii) Investments to the extent the amount invested consists solely of Net Cash
Proceeds received by the Company or any Guarantor, within six months of the
making of such Investment, from the issuance and sale permitted by the
Indentures of its Capital Stock (other than Disqualified Stock) to a Person who
is not a Subsidiary of the Company or any Guarantor; (viii) Investments, the sum
of which does not exceed $5 million at any one time outstanding; (ix) cash
payments, not to exceed $3 million, in lieu of the issuance of fractional shares
of Capital Stock of the Company upon the exercise of the Warrants or any other
warrants to buy, or upon the conversion of any securities convertible into,
Capital Stock of the Company; and (x) a one-time cash payment of up to $3.0
million to the holders of the Junior Subordinated Convertible Debentures in
connection with the disposition of the Junior Subordinated Convertible
Debentures in an underwritten public offering pursuant to Section 11.4 of the
Debenture Purchase Agreement; provided that, except in the case of clauses (i)
and (iii), no Default or Event of Default shall have occurred and be continuing
or occur as a consequence of the actions or payments set forth therein.
Each Restricted Payment permitted pursuant to the preceding paragraph (other
than the Restricted Payment referred to in clause (ii) thereof and an exchange
of Capital Stock for Capital Stock or Indebtedness referred to in clause (iii)
or (iv) thereof) and the Net Cash Proceeds from any issuance of Capital Stock
referred to in clauses (iii) and (iv) shall be included in calculating whether
the conditions of clause (C) of the first paragraph of this "Limitation on
Restricted Payments" covenant have been met with respect to any subsequent
Restricted Payments. In the event the proceeds of an issuance of Capital Stock
of the Company are used for the redemption, repurchase or other acquisition of
the Notes, or Indebtedness that is pari passu with the Notes, then the Net Cash
Proceeds of such issuance shall be included in clause (C) of the first paragraph
of this "Limitation on Restricted Payments" covenant only to the extent such
proceeds are not, within six months, used for such redemption, repurchase or
other acquisition of Indebtedness.
Any Restricted Payments made other than in cash shall be valued at fair
market value. The amount of any Investment "outstanding" at any time shall be
deemed to be equal to the amount of such Investment on the date made, less the
return of capital to the Company and its Restricted Subsidiaries with respect to
such Investment (up to the amount of such Investment on the date made).
LIMITATION ON THE ISSUANCE AND SALE OF CAPITAL STOCK OF RESTRICTED
SUBSIDIARIES
The Company will not sell, and will not permit any Restricted Subsidiary,
directly or indirectly, to issue or sell, any shares of Capital Stock of a
Restricted Subsidiary (including options, warrants or other rights to purchase
shares of such Capital Stock) except (i) to the Company or a Wholly Owned
Restricted Subsidiary; (ii) issuances of director's qualifying shares or sales
to foreign nationals of shares of Capital Stock of foreign Restricted
Subsidiaries, to the extent required by applicable law; (iii) if, immediately
after giving effect to such issuance or sale, such Restricted Subsidiary would
no longer constitute a Restricted Subsidiary, provided any Investment in such
Person remaining after giving effect to such issuance or sale would have been
permitted to be made under the "Limitation on Restricted Payments" covenant, if
made on the date of such issuance or sale; and (iv) issuances or sales of Common
Stock of any Restricted Subsidiary, the Net Cash Proceeds of which are promptly
applied pursuant to clause (A) or (B) of the "Limitation on Asset Sales"
covenant described below; provided that at no time may a Restricted Subsidiary,
the Common Stock of which has been issued or sold pursuant to this clause (iv),
be the owner of a satellite.
ISSUANCES OF GUARANTEES BY NEW RESTRICTED SUBSIDIARIES
The Company will provide to the Trustees, on the date that any Person becomes
a Restricted Subsidiary, a supplemental indenture to each of the Indentures,
executed by such new Restricted Subsidiary, providing for a full and
unconditional guarantee on a senior basis by such new Restricted Subsidiary of
the Company's obligations under the Notes and the Indentures to the same extent
as that
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set forth in the Senior Notes Indenture and the Senior Discount Notes Indenture,
as the case may be; provided that, in the case of any new Restricted Subsidiary
that becomes a Restricted Subsidiary through the acquisition of a majority of
its voting Capital Stock by the Company or any other Restricted Subsidiary, such
guarantee may be subordinated to the extent required by the obligations of such
new Restricted Subsidiary existing on the date of such acquisition that were not
incurred in contemplation of such acquisition.
LIMITATION ON TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, enter into, renew or extend any transaction (including,
without limitation, the purchase, sale, lease or exchange of property or assets,
or the rendering of any service) with any holder (or any Affiliate of such
holder) of 5% or more of any class of Capital Stock of the Company or with any
Affiliate of the Company or any Restricted Subsidiary, except upon fair and
reasonable terms no less favorable to the Company or such Restricted Subsidiary
than could be obtained, at the time of such transaction or, if such transaction
is pursuant to a written agreement, at the time of the execution of the
agreement providing therefor, in a comparable arm's-length transaction with a
Person that is not such a holder or an Affiliate.
The foregoing limitation does not limit, and shall not apply to (i)
transactions (A) approved by a majority of the disinterested members of the
Board of Directors or (B) for which the Company or a Restricted Subsidiary
delivers to the Trustees a written opinion of a nationally recognized investment
banking firm stating that the transaction is fair to the Company or such
Restricted Subsidiary from a financial point of view, (ii) any transaction
solely between the Company and any of its Wholly Owned Restricted Subsidiaries
or solely between Wholly Owned Restricted Subsidiaries, (iii) the payment of
reasonable and customary regular fees to directors of the Company who are not
employees of the Company, (iv) any payments or other transactions pursuant to
any tax-sharing agreement between the Company and any other Person with which
the Company files a consolidated tax return or with which the Company is part of
a consolidated group for tax purposes, (v) any Restricted Payments not
prohibited by the "Limitation on Restricted Payments" covenant or (vii)
Kingston's and Matra's rights to commissions and other payments under sales
representation or ground operations agreements; Matra's rights to payments,
including without limitation incentive payments, under the Orion 1 Satellite
Contract and Orion 2 Satellite Contract; and Kingston's rights to payments for
services under network monitoring contracts, in each case as in effect on the
Closing Date and with such extensions, amendments and renewals that may be
entered into on terms at least as favorable to the Company or its Restricted
Subsidiaries, as the case may be, as the terms of agreements in effect on the
Closing Date. Notwithstanding the foregoing, any transaction covered by the
first paragraph of this "Limitation on Transactions with Shareholders and
Affiliates" covenant and not covered by clauses (ii) through (v) of this
paragraph, the aggregate amount of which exceeds $5 million in value, must be
approved or determined to be fair in the manner provided for in clause (i)(A) or
(B) above.
LIMITATION ON LIENS
The Company will not, and will not permit any Restricted Subsidiary to,
create, incur, assume or suffer to exist any Lien on any of its assets or
properties of any character, or any shares of Capital Stock or Indebtedness of
any Restricted Subsidiary, without making effective provision for all of the
Notes and all other amounts due under the Indentures to be directly secured
equally and ratably with (or, if the obligation or liability to be secured by
such Lien is subordinated in right of payment to the Notes, prior to) the
obligation or liability secured by such Lien.
The foregoing limitation does not apply to (i) Liens existing on the Closing
Date; (ii) Liens granted after the Closing Date on any assets or Capital Stock
of the Company or its Restricted Subsidiaries created in favor of the Holders;
(iii) Liens with respect to the assets of a Restricted Subsidiary granted by
such Restricted Subsidiary to the Company or a Wholly Owned Restricted
Subsidiary to secure Indebtedness owing to the Company or such other Restricted
Subsidiary; (iv) Liens securing Indebtedness which is Incurred to refinance
secured Indebtedness which is permitted to be Incurred under clause
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(iii) of the second paragraph of the "Limitation on Indebtedness" covenant;
provided that such Liens do not extend to or cover any property or assets of the
Company or any Restricted Subsidiary other than the property or assets securing
the Indebtedness being refinanced; or (v) Permitted Liens.
The Company will not, and will not permit any Restricted Subsidiary to,
create, incur, assume or suffer to exist any Lien on Orion 1, Orion 2 or Orion 3
that secures Indebtedness, other than pursuant to clause (xxi) of the definition
of Permitted Liens.
LIMITATION ON SALE-LEASEBACK TRANSACTIONS
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, enter into any sale-leaseback transaction involving any
of its assets or properties whether now owned or hereafter acquired, whereby the
Company or a Restricted Subsidiary sells or transfers such assets or properties
and then or thereafter leases such assets or properties or any part thereof or
any other assets or properties which the Company or such Restricted Subsidiary,
as the case may be, intends to use for substantially the same purpose or
purposes as the assets or properties sold or transferred.
The foregoing restriction does not apply to any sale-leaseback transaction if
(i) the lease is for a period, including renewal rights, of not in excess of
three years; (ii) the lease secures or relates to industrial revenue or
pollution control bonds; (iii) the transaction is solely between the Company and
any Wholly Owned Restricted Subsidiary or solely between Wholly Owned Restricted
Subsidiaries; or (iv) the Company or such Restricted Subsidiary, within twelve
months after the sale or transfer of any assets or properties is completed,
applies an amount not less than the net proceeds received from such sale in
accordance with clause (A) or (B) of the first paragraph of the "Limitation on
Asset Sales" covenant described below.
LIMITATION ON ASSET SALES
The Company will not, and will not permit any Restricted Subsidiary to,
consummate any Asset Sale unless (i) the consideration received by the Company
or such Restricted Subsidiary (including the amount of any Released
Indebtedness) is at least equal to the fair market value of the assets sold or
disposed of and (ii) at least 85% of the consideration received (excluding the
amount of any Released Indebtedness) consists of cash or Temporary Cash
Investments. In the event and to the extent that the Net Cash Proceeds received
by the Company or any of its Restricted Subsidiaries from one or more Asset
Sales occurring on or after the Closing Date in any period of 12 consecutive
months exceed 10% of Adjusted Consolidated Net Tangible Assets (determined as of
the date closest to the commencement of such 12-month period for which a
consolidated balance sheet of the Company and its subsidiaries has been filed
pursuant to the "Commission Reports and Reports to Holders" covenant), then the
Company shall or shall cause the relevant Restricted Subsidiary to (i) within
twelve months after the date Net Cash Proceeds so received exceed 10% of
Adjusted Consolidated Net Tangible Assets (A) apply an amount equal to such
excess Net Cash Proceeds to permanently repay unsubordinated Indebtedness of the
Company or any Restricted Subsidiary owing to a Person other than the Company or
any of its Restricted Subsidiaries or (B) invest an equal amount, or the amount
not so applied pursuant to clause (A) (or enter into a definitive agreement
committing to so invest within twelve months after the date of such agreement),
in property or assets (other than current assets) of a nature or type or that
are used in a business (or in a company having property and assets of a nature
or type, or engaged in a business) similar or related to the nature or type of
the property and assets of, or the business of, the Company and its Restricted
Subsidiaries existing on the date of such investment and (ii) apply (no later
than the end of the twelve-month period referred to in clause (i)) such excess
Net Cash Proceeds (to the extent not applied pursuant to clause (i)) as provided
in the following paragraph of this "Limitation on Asset Sales" covenant. The
amount of such excess Net Cash Proceeds required to be applied (or to be
committed to be applied) during such twelve-month period as set forth in clause
(i) of the preceding sentence and not applied as so required by the end of such
period shall constitute "Excess Proceeds."
If, as of the first day of any calendar month, the aggregate amount of Excess
Proceeds not theretofore subject to an Offer to Purchase pursuant to this
"Limitation on Asset Sales" covenant totals at least $10 million, the Company
must commence, not later than the fifteenth Business Day of such month, and
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consummate an Offer to Purchase from the Holders on a pro rata basis an
aggregate principal amount Notes equal to the Excess Proceeds on such date, at a
purchase price equal to 101% of the principal amount of the Senior Notes and
101% of the Accreted Value of the Senior Discount Notes, plus, in each case,
accrued interest (if any) to the Payment Date.
INSURANCE
The Indentures will provide that the Company will maintain (a) in-orbit
insurance with respect to Orion 1 in an amount at least equal to the cost to
replace such satellite with a satellite of comparable or superior technological
capability (as estimated by the Board of Directors) and having at least as much
transmission capacity as such satellite, and (b) with respect to Orion 2, Orion
3, each other satellite to be launched by the Company or any Restricted
Subsidiary and each replacement satellite therefor, (i) launch insurance with
respect to each such satellite covering the period from the launch of such
satellite to 180 days following such launch in an amount equal to or greater
than the sum of (A) the cost to replace such satellite pursuant to the contract
pursuant to which a replacement satellite will be constructed, (B) the cost to
launch a replacement satellite pursuant to the contract pursuant to which a
replacement satellite will be launched and (C) the cost of launch insurance for
such satellite or, in the event that the Company has reason to believe that the
cost of obtaining comparable insurance for a replacement satellite would be
materially higher, the Company's best estimate of the cost of such comparable
insurance and (ii) at all times subsequent to 180 days after the launch (if it
is a Successful Launch) of each such satellite, in-orbit insurance in an amount
at least equal to the cost to replace such satellite with a satellite of
comparable or superior technological capability (as estimated by the Board of
Directors) and having at least as much transmission capacity as such satellite
was designed to have. The in-orbit insurance required by this paragraph shall
provide that if 50% or more of a satellite's initial capacity is lost, the full
amount of insurance will become due and payable, and that if a satellite is able
to maintain more than 50% but less than 90% of its initial capacity, a pro-rata
portion of such insurance will become due and payable. The insurance required by
this paragraph shall name the Company and/or any Guarantor as the sole loss
payee or payees, as the case may be, thereof.
In the event that the Company (or a Guarantor) receives proceeds from
insurance relating to any satellite, the Company (or a Guarantor) may use a
portion of such proceeds to repay any vendor or third-party purchase money
financing pertaining to such satellite (other than Orion 1) that is required to
be repaid by reason of the loss giving rise to such insurance proceeds. The
Company (or a Guarantor) may use the remainder of such proceeds to develop,
construct, launch and insure a replacement satellite (including components for a
related ground spare) if (i) such replacement satellite is of comparable or
superior technological capability as compared with the satellite being replaced
and has at least as much transmission capacity as the satellite being replaced
and (ii) the Company will have sufficient funds to service the Company's
projected debt service requirements until the scheduled launch of such
replacement satellite and for one year thereafter and to develop, construct,
launch and insure (in the amounts required by the preceding paragraph) such
replacement satellite, provided that such replacement satellite is scheduled to
be launched within 15 months of the receipt of such proceeds. Any such proceeds
not used as permitted by this paragraph shall be applied, within 90 days, to
reduce Indebtedness of the Company or shall constitute "Excess Proceeds" for
purposes of the "Limitation on Asset Sales" covenant.
FUNDING FOR ADDITIONAL SATELLITES
On the Closing Date the Company will segregate $178.2 million (the
"Segregated Proceeds") of the aggregate proceeds from the issuance of the Senior
Notes and the Senior Discount Notes. The Company and its Restricted Subsidiaries
will use the Segregated Proceeds (and any proceeds therefrom or return thereon)
only to (i) invest in Temporary Cash Investments, (ii) make payments with
respect to the purchase, construction, launch, insurance for and other costs
related to additional satellites and (iii) to make payments of principal and
interest on the Notes.
REPURCHASE OF NOTES UPON A CHANGE OF CONTROL
The Company must commence, within 30 days of the occurrence of a Change of
Control, and consummate an Offer to Purchase for all Notes then outstanding, at
a purchase price equal to 101% of
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the principal amount of the Senior Notes and 101% of the Accreted Value of the
Senior Discount Notes, plus accrued interest (if any) to the Payment Date.
There can be no assurance that the Company will have sufficient funds
available at the time of any Change of Control to make any debt payment
(including repurchases of Notes) required by the foregoing covenant (as well as
may be contained in other securities of the Company which might be outstanding
at the time). The above covenant requiring the Company to repurchase the Notes
will, unless consents are obtained, require the Company to repay all
indebtedness then outstanding which by its terms would prohibit such Note
repurchase, either prior to or concurrently with such Note repurchase.
COMMISSION REPORTS AND REPORTS TO HOLDERS
Whether or not the Company is required to file reports with the Commission,
the Company shall file with the Commission all such reports and other
information as it would be required to file with the Commission by Sections
13(a) or 15(d) under the Securities Exchange Act of 1934 if it were subject
thereto. The Company shall supply the Trustees and each Holder or shall supply
to the Trustees for forwarding to each such Holder, without cost to such Holder,
copies of such reports and other information.
EVENTS OF DEFAULT
The following events will be defined as "Events of Default" in the
Indentures: (a) default in the payment of principal of (or premium, if any, on)
any Senior Note or Senior Discount Note, as the case may be, when the same
becomes due and payable at maturity, upon acceleration, redemption or otherwise;
(b) default in the payment of interest on any Senior Note or Senior Discount
Note, as the case may be, when the same becomes due and payable, and such
default continues for a period of 30 days; provided that a failure to make any
of the first six scheduled interest payments on the Senior Notes in a timely
manner will constitute an Event of Default with no grace or cure period; (c)
default in the performance or breach of the provisions of the Indentures
applicable to mergers, consolidations and transfers of all or substantially all
of the assets of the Company or the failure to make or consummate an Offer to
Purchase in accordance with the "Limitation on Asset Sales" or "Repurchase of
Notes upon a Change of Control" covenant; (d) the Company defaults in the
performance of or breaches any other covenant or agreement of the Company in the
Indentures or under the Senior Notes or Senior Discount Notes, as the case may
be (other than a default specified in clause (a), (b) or (c) above) and such
default or breach continues for a period of 30 consecutive days after written
notice by the relevant Trustee or the Holders of 25% or more in aggregate
principal amount at maturity of the Senior Notes or Senior Discount Notes, as
the case may be; (e) there occurs with respect to (A) any issue or issues of
Indebtedness of the Company, any Guarantor or any Significant Subsidiary having
an outstanding principal amount of $10 million or more in the aggregate for all
such issues of all such Persons, whether such Indebtedness now exists or shall
hereafter be created or (B) the TT&C Financing or any refinancing thereof which
is secured by substantially the same collateral, (I) an event of default that
has caused the holder thereof to declare such Indebtedness to be due and payable
prior to its Stated Maturity and such Indebtedness has not been discharged in
full or such acceleration has not been rescinded or annulled within 30 days of
such acceleration and/or (II) the failure to make a principal payment at the
final (but not any interim) fixed maturity and such defaulted payment shall not
have been made, waived or extended within 30 days of such payment default; (f)
any final judgment or order (not covered by insurance) for the payment of money
in excess of $10 million in the aggregate for all such final judgments or orders
against all such Persons (treating any deductibles, self-insurance or retention
as not so covered) shall be rendered against the Company, any Guarantor or any
Significant Subsidiary and shall not be paid or discharged, and there shall be
any period of 30 consecutive days following entry of the final judgment or order
that causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged against all such Persons to exceed $10
million during which a stay of enforcement of such final judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; (g) a court
having jurisdiction in the premises enters a decree or order for (A) relief in
respect of the Company, any Guarantor or any Significant Subsidiary in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, (B) appointment of a receiver,
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liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Company, any Guarantor or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company, any Guarantor or
any Significant Subsidiary or (C) the winding up or liquidation of the affairs
of the Company or any Significant Subsidiary and, in each case, such decree or
order shall remain unstayed and in effect for a period of 30 consecutive days;
(h) the Company, any Guarantor or any Significant Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consents to the entry of an order for relief in
an involuntary case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company, any Guarantor or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company, any Guarantor or any Significant Subsidiary or (C)
effects any general assignment for the benefit of creditors; (i) the Senior
Notes Guarantee or the Senior Discount Notes Guarantee shall cease to be, or
shall be asserted in writing by the Company or any Guarantor not to be, in full
force and effect or enforceable in accordance with their respective terms; or
(j) the occurrence of an "Event of Default" described in paragraph (i), (j),
(k), (l), (m) or (n) of Section 18.1 of the Debenture Purchase Agreement.
If an Event of Default (other than an Event of Default specified in clause
(g) or (h) above that occurs with respect to the Company) occurs and is
continuing under the Indentures, the relevant Trustee or the Holders of at least
25% in aggregate principal amount at maturity of the Senior Notes or Senior
Discount Notes, as the case may be, then outstanding, by written notice to the
Company (and to the Trustee if such notice is given by the Holders), may, and
the relevant Trustee at the request of such Holders shall, declare the principal
amount (in the case of Senior Notes) or Accreted Value (in the case of Senior
Discount Notes) of, premium, if any, and accrued interest on such Notes to be
immediately due and payable. Upon a declaration of acceleration, such principal
amount or Accreted Value of, premium, if any, and accrued interest shall be
immediately due and payable. In the event of a declaration of acceleration
because an Event of Default set forth in clause (e) above has occurred and is
continuing, such declaration of acceleration shall be automatically rescinded
and annulled if the event of default triggering such Event of Default pursuant
to clause (e) shall be remedied or cured by the Company or the relevant
Guarantor or Significant Subsidiary or waived by the holders of the relevant
Indebtedness within 60 days after the declaration of acceleration with respect
thereto. If an Event of Default specified in clause (g) or (h) above occurs with
respect to the Company, the principal amount or Accreted Value, as the case may
be, of, premium, if any, and accrued interest on the Notes then outstanding
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the relevant Trustee or any Holder. The
Holders of at least a majority in principal amount at maturity of the
outstanding Notes by written notice to the Company and to the relevant Trustee,
may waive all past defaults and rescind and annul a declaration of acceleration
and its consequences if (i) all existing Events of Default, other than the
nonpayment of the principal of, premium, if any, and interest on the Notes that
have become due solely by such declaration of acceleration, have been cured or
waived and (ii) the rescission would not conflict with any judgment or decree of
a court of competent jurisdiction. For information as to the waiver of defaults,
see "-Modification and Waiver."
The Holders of at least a majority in aggregate principal amount at maturity
of the outstanding Senior Notes or Senior Discount Notes, as the case may be,
may direct the time, method and place of conducting any proceeding for any
remedy available to the relevant Trustee or exercising any trust or power
conferred on the relevant Trustee. However, the relevant Trustee may refuse to
follow any direction that conflicts with law or the relevant Indenture, that may
involve the relevant Trustee in personal liability, or that the relevant Trustee
determines in good faith may be unduly prejudicial to the rights of Holders of
Senior Notes or Senior Discount Notes, as the case may be, not joining in the
giving of such direction and may take any other action it deems proper that is
not inconsistent with any such direction received from Holders of such Notes. A
Holder may not pursue any remedy with respect to the Indentures or the Notes
unless: (i) the Holder gives the Trustee written notice of a continuing Event of
Default; (ii) the Holders of at least 25% in aggregate principal amount at
maturity of outstanding Notes make a written request to the relevant Trustee to
pursue the remedy; (iii) such Holder or Holders offer the relevant Trustee
indemnity satisfactory to such Trustee against any costs, liability or expense;
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(iv) the relevant Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and (v) during such 60-day
period, the Holders of a majority in aggregate principal amount at maturity of
the outstanding Senior Notes or Senior Discount Notes, as the case may be, do
not give the relevant Trustee a direction that is inconsistent with the request.
However, such limitations do not apply to the right of any Holder of a Note to
receive payment of the principal of, premium, if any, or interest on, such Note
or to bring suit for the enforcement of any such payment, on or after the due
date expressed in the Notes, which right shall not be impaired or affected
without the consent of the Holder.
The Indentures will require certain officers of the Company to certify, on or
before a date not more than 90 days after the end of each fiscal year, that a
review has been conducted of the activities of the Company and its Restricted
Subsidiaries and the Company's and its Restricted Subsidiaries' performance
under the Indentures and that the Company has fulfilled all obligations
thereunder, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default and the nature and status thereof. The
Company will also be obligated to notify the Trustees of any default or defaults
in the performance of any covenants or agreements under the Indentures.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each of the Company and each Guarantor will not consolidate with, merge with
or into, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (as an entirety or substantially an
entirety in one transaction or a series of related transactions) to, any Person
or permit any Person to merge with or into the Company or any Guarantor unless:
(i) the Company or any Guarantor, as the case may be, shall be the continuing
Person, or the Person (if other than the Company or Guarantor) formed by such
consolidation or into which the Company or any Guarantor, as the case may be, is
merged or that acquired or leased such property and assets of the Company or any
Guarantor, as the case may be, shall be a corporation organized and validly
existing under the laws of the United States of America or any jurisdiction
thereof and shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustees, all of the obligations of the Company or any
Guarantor, as the case may be, on all of the Notes and under the Indentures;
(ii) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; (iii) if such transaction
involves the Company or any Significant Subsidiary thereof, immediately after
giving effect to such transaction on a pro forma basis, the Company, or any
Person becoming the successor to the Company as obligor on the Notes shall have
a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of
the Company immediately prior to such transaction; (iv) if such transaction
involves the Company or any Significant Subsidiary thereof, immediately after
giving effect to such transaction on a pro forma basis, the Company, or any
Person becoming the successor obligor of the Notes, as the case may be, could
Incur at least $1.00 of Indebtedness under the first paragraph of the
"Limitation on Indebtedness" covenant; provided that this clause (iv) shall not
apply to a consolidation or merger with or into a Wholly Owned Restricted
Subsidiary with a positive net worth; provided that, in connection with any such
merger or consolidation, no consideration (other than Common Stock in the
surviving Person or the Company) shall be issued or distributed to the
stockholders of the Company; and (v) the Company or Guarantor, as the case may
be, delivers to the Trustees an Officers' Certificate (attaching the arithmetic
computations to demonstrate compliance with clauses (iii) and (iv)) and Opinion
of Counsel, in each case stating that such consolidation, merger or transfer and
such supplemental indenture complies with this provision and that all conditions
precedent provided for herein relating to such transaction have been complied
with; provided, however, that clauses (iii) and (iv) above do not apply if, in
the good faith determination of the Board of Directors of the Company, whose
determination shall be evidenced by a Board Resolution, the principal purpose of
such transaction is to change the state of incorporation of the Company; and
provided further that any such transaction shall not have as one of its purposes
the evasion of the foregoing limitations. Notwithstanding the foregoing, the
provisions of this paragraph shall not apply to the Merger.
DEFEASANCE
Defeasance and Discharge. Each Indenture will provide that the Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Senior Notes or Senior
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Discount Notes, as the case may be, on the 123rd day after the deposit referred
to below, and the provisions of the relevant Indenture will no longer be in
effect with respect to such Notes (except for, among other matters, certain
obligations to register the transfer or exchange of such Notes, to replace
stolen, lost or mutilated Notes, to maintain paying agencies and to hold monies
for payment in trust) if, among other things, (A) the Company has deposited with
the relevant Trustee, in trust, money and/or U.S. Government Obligations that
through the payment of interest and principal in respect thereof in accordance
with their terms will provide money in an amount sufficient to pay the principal
of, premium, if any, and accrued interest on the relevant Notes on the Stated
Maturity of such payments in accordance with the terms of the relevant Indenture
and Notes, (B) the Company has delivered to the relevant Trustee (i) either (x)
an Opinion of Counsel to the effect that Holders will not recognize income, gain
or loss for federal income tax purposes as a result of the Company's exercise of
its option under this "Defeasance" provision and will be subject to federal
income tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit, defeasance and discharge had not
occurred, which Opinion of Counsel must be based upon (and accompanied by a copy
of) a ruling of the Internal Revenue Service to the same effect unless there has
been a change in applicable federal income tax law after the Closing Date such
that a ruling is no longer required or (y) a ruling directed to the relevant
Trustee received from the Internal Revenue Service to the same effect as the
aforementioned Opinion of Counsel and (ii) an Opinion of Counsel to the effect
that the creation of the defeasance trust does not violate the Investment
Company Act of 1940 and, after the passage of 123 days following the deposit,
the trust fund will not be subject to the effect of Section 547 of the United
States Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law,
(C) immediately after giving effect to such deposit on a pro forma basis, no
Event of Default, or event that after the giving of notice or lapse of time or
both would become an Event of Default, shall have occurred and be continuing on
the date of such deposit or during the period ending on the 123rd day after the
date of such deposit, and such deposit shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which the Company, or
any of its Subsidiaries is bound, and (D) if at such time the Notes are listed
on a national securities exchange, the Company has delivered to the relevant
Trustee an Opinion of Counsel to the effect that the Notes will not be delisted
as a result of such deposit, defeasance and discharge.
Defeasance of Certain Covenants and Certain Events of Default. Each Indenture
further will provide that the provisions of such Indenture will no longer be in
effect with respect to clauses (iii) and (iv) under "Consolidation, Merger and
Sale of Assets" and all the covenants described herein under "Covenants,"
clauses (c) and (d) under "Events of Default" with respect to such clauses (iii)
and (iv) under "Consolidation, Merger and Sale of Assets" and such covenants and
clauses (e) and (f) under "Events of Default" shall be deemed not to be Events
of Default, upon, among other things, the deposit with the relevant Trustee, in
trust, of money and/or U.S. Government Obligations that through the payment of
interest and principal in respect thereof in accordance with their terms will
provide money in an amount sufficient to pay the principal of, premium, if any,
and accrued interest on the Senior Notes or Senior Discount Notes, as the case
may be, on the Stated Maturity of such payments in accordance with the terms of
the relevant Indenture and Notes, the satisfaction of the provisions described
in clauses (B)(ii), (C) and (D) of the preceding paragraph and the delivery by
the Company to the relevant Trustee of an Opinion of Counsel to the effect that,
among other things, the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance of
certain covenants and Events of Default and will be subject to federal income
tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred.
Defeasance and Certain Other Events of Default. In the event the Company
exercises its option to omit compliance with certain covenants and provisions of
either Indenture with respect to the Senior Notes or Senior Discount Notes, as
the case may be, as described in the immediately preceding paragraph and such
Notes are declared due and payable because of the occurrence of an Event of
Default that remains applicable, the amount of money and/or U.S. Government
Obligations on deposit with the relevant Trustee will be sufficient to pay
amounts due on such Notes at the time of their Stated Maturity but may not be
sufficient to pay amounts due on such Notes at the time of the acceleration
resulting from such Event of Default. However, the Company will remain liable
for such payments.
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MODIFICATION AND WAIVER
Modifications and amendments of the respective Indentures may be made by the
Company, the Guarantors and the relevant Trustee with the consent of the Holders
of not less than a majority in aggregate principal amount at maturity of the
outstanding Senior Notes or Senior Discount Notes, as the case may be; provided,
however, that no such modification or amendment may, without the consent of each
Holder affected thereby, (i) change the Stated Maturity of the principal of, or
any installment of interest on, any Note, (ii) reduce the principal amount of,
or premium, if any, or interest on, any Note, (iii) change the place or currency
of payment of principal of, or premium, if any, or interest on, any Note, (iv)
impair the right to institute suit for the enforcement of any payment on or
after the Stated Maturity (or, in the case of a redemption, on or after the
Redemption Date) of any Note, (v) reduce the above-stated percentage of
outstanding Senior Notes or Senior Discount Notes, as the case may be, the
consent of whose Holders is necessary to modify or amend the applicable
Indenture, (vi) waive a default in the payment of principal of, premium, if any,
or interest on the Senior Notes or Senior Discount Notes, as the case may be,
(vii) release the Guarantors from the Senior Notes Guarantee or the Senior
Discount Notes Guarantee, as the case may be, or (viii) reduce the percentage or
aggregate principal amount at maturity of outstanding Senior Notes or Senior
Discount Notes, as the case may be, the consent of whose Holders is necessary
for waiver of compliance with certain provisions of the applicable Indenture or
for waiver of certain defaults.
NO PERSONAL LIABILITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS, OR
EMPLOYEES
The Indentures provides that no recourse for the payment of the principal of,
premium, if any, or interest on any of the Notes or for any claim based thereon
or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in the Indentures, the Pledge Agreement or
in any of the Notes or because of the creation of any Indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer, director,
employee or controlling person of the Company or of any successor Person
thereof. Each Holder, by accepting the Notes, waives and releases all such
liability.
CONCERNING THE TRUSTEES
The Indentures provide that, except during the continuance of a Default, the
Trustees will not be liable, except for the performance of such duties as are
specifically set forth in such Indentures. If an Event of Default has occurred
and is continuing, the Trustees will use the same degree of care and skill in
its exercise as a prudent person would exercise under the circumstances in the
conduct of such person's own affairs.
The Indentures and provisions of the Trust Indenture Act of 1939, as amended,
incorporated by reference therein contain limitations on the rights of the
Trustees, should they become creditors of the Company, to obtain payment of
claims in certain cases or to realize on certain property received by it in
respect of any such claims, as security or otherwise. The Trustees are permitted
to engage in other transactions; provided, however, that, if they acquire any
conflicting interest, they must eliminate such conflict or resign.
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DESCRIPTION OF WARRANTS
The Warrants will be issued by Orion pursuant to a warrant agreement (the
"Warrant Agreement") between Orion and Bankers Trust Company, as warrant agent
(in such capacity, the "Warrant Agent"), dated the Closing Date. The summary of
certain provisions of the Warrant Agreement set forth below does not purport to
be complete and is qualified in its entirety by reference to the Warrant
Agreement, including the definition of certain terms therein. A copy of the
Warrant Agreement has been filed with the Commission as an exhibit to the
Registration Statement of which this Prospectus is a part.
GENERAL
Each Warrant, when exercised, will entitle the holder thereof to receive
shares of Common Stock at an exercise price of $ per share (the "Exercise
Price"). The Exercise Price and the number of Warrant Shares issuable on
exercise of a Warrant are both subject to anti-dilutive adjustments in certain
cases. See "-- Adjustments" below. The Warrants are not exercisable prior to six
months after the Closing Date. Unless earlier exercised, the Warrants will
expire on the tenth anniversary of the Closing Date. The Warrants will become
separately transferable from the Notes on the earlier of (i) six months from the
date of issuance, (ii) such date as the Underwriters may, in their discretion,
deem appropriate and (iii) in the event of an Offer to Purchase, the date the
Company mails notice thereof to holders of the Notes.
On the Closing Date, the Senior Note Warrant Shares will represent
approximately % of the fully diluted Common Stock of Orion, and the Senior
Discount Note Warrant Shares will represent approximately % of the fully diluted
Common Stock of Orion.
The Warrants may be exercised by surrendering to Orion the Warrant
certificates evidencing such Warrants with the accompanying form of election to
purchase, properly completed and executed, together with payment of the Exercise
Price. Payment of the Exercise Price by a holder may be made in the form of cash
or a certified or official bank check payable to the order of Orion or the
surrender of unexercised Warrant certificates. Upon surrender of the Warrant
certificate and payment of the Exercise Price, the Warrant Agent will deliver or
cause to be delivered, to or upon the written order of such holder, stock
certificates representing the number of Warrant Shares or other securities or
property to which such holder is entitled under the Warrants and Warrant
Agreement, including, without limitation, at Orion's option, cash payable to
adjust for fractional interests in Warrant Shares issuable upon such exercise in
an amount equal to the Current Market Price (as defined in the Warrant
Agreement) per Warrant Share, as determined on the day immediately preceding the
date the Warrant is presented for exercise, multiplied by such fraction,
computed to the nearest whole cent. If less than all of the Warrants evidenced
by a Warrant certificate are to be exercised, a new Warrant certificate will be
issued for the remaining number of Warrants.
No service charge will be made for registration of transfer or exchange upon
surrender of any Warrant certificate at the office of the Warrant Agent
maintained for that purpose. Orion may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Warrant certificates.
The holders of the Warrants have no right to vote on matters submitted to the
stockholders of Orion or to receive notice of meetings of stockholders or any
other rights of stockholders of Orion, including any right to receive cash
dividends. The holders of the Warrants have no preemptive rights and are not
entitled to share in the assets of Orion in the event of the liquidation,
dissolution or winding up of Orion's affairs.
ADJUSTMENTS
The number of Warrant Shares that may be purchased upon the exercise of the
Warrants and the Exercise Price will both be subject to adjustment in certain
events including (i) the payment by Orion of dividends (or other distributions)
on Common Stock payable in shares of such Common Stock or other shares of
Orion's capital stock, (ii) subdivisions, combinations and certain
reclassifications of Common
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Stock, (iii) the issuance of Common Stock or of rights, options or warrants
entitling the holder to subscribe for shares of Common Stock, or of securities
convertible into or exchangeable for shares of Common Stock, for a consideration
per share which is less than $14.00 per share of the Common Stock, (iv) the
distribution to all holders of Common Stock of any of Orion's assets, debt
securities or any rights or warrants to purchase securities (excluding cash
dividends or other cash distributions from current or retained earnings) and (v)
in the discretion of Orion's Board of Directors. In addition, the Exercise Price
may be reduced in the event of purchase of shares of Common Stock pursuant to a
tender or exchange offer made by Orion or any subsidiary thereof at a price
greater than the Current Market Price of the Common Stock at the time such
tender or exchange offer expires.
In the event of a taxable distribution to holders of Common Stock which
results in an adjustment to the number of shares of Common Stock or other
consideration for which a Warrant may be exercised, the holders of the Warrants
may, in certain circumstances, be deemed to have received a distribution subject
to United States Federal income tax as a dividend. See "Certain United States
Federal Income Tax Consequences."
No adjustment in the Exercise Price will be required unless such adjustment
would require an increase or decrease of at least one percent (1%) in the
Exercise Price; provided, however, that any adjustment which is not made will be
carried forward and taken into account in any subsequent adjustment.
In the case of certain reclassifications, redesignations, reorganizations or
changes in the number of outstanding shares of Common Stock or consolidations or
mergers of Orion or the sale of all or substantially all of the assets of Orion,
each Warrant shall thereafter be exercisable for the right to receive the kind
and amount of shares of stock or other securities or property to which such
holder would have been entitled as a result of such consolidation, merger or
sale had the Warrants been exercised immediately prior thereto.
RESERVATION OF SHARES
At the time of issuance of the Warrants, Orion will have authorized and
reserved for issuance such number of shares of Common Stock as shall be
initially issuable upon the exercise of the Warrants. Such shares of Common
Stock, when paid for and issued must be duly and validly issued, fully paid and
non-assessable, and not subject to any preemptive rights.
AMENDMENT
From time to time, Orion and the Warrant Agent, without the consent of the
holders of the Warrants, may amend or supplement the Warrant Agreement for
certain purposes, including, without limitation, curing defects or
inconsistencies or making any change that does not, in the opinion of Orion's
Board of Directors, have a material adverse effect on the rights of any holder.
Other amendments or supplements to the Warrant Agreement generally require the
written consent of the holders of a majority of the then outstanding Warrants.
The consent of each holder of the Warrants affected shall be required for any
amendment pursuant to which the Exercise Price would be increased or the number
of Warrant Shares purchasable upon exercise of Warrants would be decreased.
REGISTRATION REQUIREMENTS
The Company is required, under the terms of the Warrant Agreement, to use its
best efforts to maintain the effectiveness of a registration statement with
respect to the issuance of the Warrant Shares until the earlier of (i) such time
as all Warrants have been exercised and (ii) the tenth anniversary of the
Closing Date. During any consecutive 365-day period while the Warrants are
exercisable, the Company will have the ability to suspend the availability of
such registration statement for up to two 15-consecutive-day periods (except
during the 30 days immediately prior to the expiration of the Warrants) if the
Company's Board of Directors determines in good faith that there is a valid
purpose for the suspension and provides notice of such determination to the
holders at their addresses appearing in the register of Warrants maintained by
the Warrant Agent.
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REPORTS
So long as any Warrants remain outstanding, and whether or not any Notes
remain outstanding, the Company will cause copies of the reports and other
documents described under "Description of Notes -- Commission Reports and
Reports to Holders" to be filed with the Warrant Agent and mailed to holders of
Warrants at their addresses in the register maintained by the Warrant Agent.
BOOK-ENTRY SYSTEM; SETTLEMENT; DELIVERY AND FORM
GENERAL
The Units will be issued in the form of one or more fully registered Units in
global form ("Global Units"), each comprised of one or more Notes in global form
("Global Notes") and one or more Warrants in global form ("Global Warrants").
The Global Units, Global Notes and Global Warrants are sometimes referred to
herein as the "Global Securities." Except in those limited circumstances
described below, Units, Notes or Warrants in definitive form ("Certificated
Units," "Certificated Notes" and "Certificated Warrants," respectively, and
sometimes referred to collectively as "Certificated Securities") will not be
issued.
Upon issuance of the Global Securities, the Depository or its nominee will
credit, on its book-entry registration and transfer system, the number of Units
represented by such Global Securities to the accounts of institutions that have
accounts with the Depository or its nominee ("participants"). The accounts to be
credited shall be designated by the Underwriters. Ownership of beneficial
interests in the Global Securities will be limited to participants or persons
that may hold interests through participants. Ownership of beneficial interest
in such Global Securities will be shown on, and the transfer of that ownership
will be effected only through, records maintained by the Depository or its
nominee (with respect to participants' interests) for such Global Securities, or
by participants or persons that hold interests through participants (with
respect to interests of persons other than participants). The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such laws may impair the ability
to transfer beneficial interests in the Global Securities.
So long as DTC is the registered holder of any Global Securities, DTC will be
considered the sole owner and holder of such Units, Notes or Warrants, as the
case may be, represented by such Global Securities for all purposes under the
Indentures and the Warrant Agreement and the Units, Notes and Warrants, as the
case may be. No beneficial owner of an interest in any Global Securities will be
able to transfer that interest except in accordance with DTC's applicable
procedures.
Global Units, Global Notes and Global Warrants shall be exchangeable for
corresponding Certificated Securities registered in the name of persons other
than the Depository or its nominee only if (A) the Depository (i) notifies the
Company that it is unwilling or unable to continue as Depository for any of the
Global Securities or (ii) at any time ceases to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an Event
of Default (as defined in the Indentures) with respect to the Notes, or (C) the
Company executes and delivers to the Trustee and or the Warrant Agent, as
appropriate, an order that the Global Units, Global Notes or Global Warrants
shall be so exchangeable. Any Certificated Securities will be issued only in
fully registered form, and in the case of Certificated Notes, shall be issued
without coupons in denominations of $1,000 and integral multiples thereof. Any
Certificated Securities so issued will be registered in such names and in such
denominations as DTC shall request.
Any payment of principal or interest due on the Notes on any Interest Payment
Date or at maturity will be made available by the Company to the relevant
Trustee by such date. As soon as possible thereafter, such Trustee will make
such payments to the Depository or its nominee, as the case may be, as the
registered owner of the Global Notes representing such Notes in accordance with
existing arrangements between the Trustee and the Depository. The Company
expects that the Depository or its nominee, upon receipt of any payment of
principal or interest in respect of the Global Notes, will credit immediately
the accounts of the related participants with payments in amounts proportionate
to their respective beneficial interests in the principal amount of such Global
Notes as shown on the records of
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the Depository. The Company also expects that payments by participants to owners
of beneficial interests in the Global Securities held through such participants
will be governed by standing instructions and customary practices, as is now the
case with securities held for the accounts of customers registered in "street
name," and will be the responsibility of such participants. None of the
Underwriters, the Company, the Trustees, or any payment agent for the Global
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in any of the Global Securities or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Unless and until exchanged in whole or in part for Notes in definitive form
in accordance with the terms of the Notes, the Global Notes may not be
transferred except as a whole by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository of any such nominee to a successor of the
Depository or a nominee of each successor.
THE CLEARING SYSTEM
With respect to the Depository, the Company believes as follows: the
Depository is a limited-purpose trust company organized under the Banking Law of
the State of New York, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and a
"clearing agency" registered pursuant to the provisions of section 17A of the
Exchange Act. The Depository was created to hold securities of its participants
and to facilitate the clearance and settlement of securities transactions among
its participants in such securities through electronic book-entry changes in
accounts of the participants, thereby eliminating the need for physical
movements of securities certificates. The Depository's participants include
securities brokers and dealers (including each of the Underwriters), banks,
trust companies, clearing corporations and certain other organizations, some of
whom (and/or their representatives) own the Depository. Indirect access to the
Depository's book-entry system is also available to others, such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly. The Depository
agrees with and represents to its participants that it will administer its
book-entry system in accordance with its rules and by-laws and requirements of
law.
SETTLEMENT
Initial settlement in the Units will be made in same-day funds.
Investors electing to hold their Units through DTC will follow settlement
practices applicable to United States corporate debt obligations. The securities
custody accounts of investors will be credited with their holdings against
payment in same-day funds on the settlement date.
All payments of principal and interest on the Notes will be made by the
Company in same-day funds. The Notes will trade in the Same-Day Funds Settlement
System of the Depository until maturity. Secondary market trading of the Units,
the Notes and the Warrants between DTC participants (other than the
depositories) will be settled in same-day funds using the procedures applicable
to United States corporate debt obligations.
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CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following discussion summarizes, subject to the limitations set forth
below, the material U.S. federal income tax consequences of the acquisition,
ownership and disposition of Units and the Notes and Warrants that constitute
the Units. The discussion is based upon provisions of the U.S. Internal Revenue
Code of 1986, as amended (the "Code"), its legislative history, judicial
authority, current administrative rulings and practice, and existing and
proposed Treasury Regulations, including regulations concerning the treatment of
debt instruments issued with original issue discount (the "OID Regulations"),
all as in effect and existing on the date hereof. Legislative, judicial or
administrative changes or interpretations may be forthcoming that could alter or
modify the validity of the statements and conclusions set forth below. Any such
changes or interpretations may be retroactive and could adversely affect a
holder of the Notes or Warrants. This discussion assumes that the Notes and
Warrants are or will be held as capital assets (as defined in Section 1221 of
the Code) by the holders thereof. Except as otherwise described herein, this
discussion applies only to a person who is an initial holder purchasing Units
pursuant to this offering at the "issue price" (as defined below) and who is (i)
a citizen or resident of the United States for United States federal income tax
purposes, (ii) a corporation, partnership or other entity created or organized
in or under the laws of the United States or of any political subdivision
thereof, or (iii) an estate or trust the income of which is subject to United
States federal income taxation regardless of its source (a "U.S. Holder"). This
discussion does not purport to deal with all aspects of U.S. federal income
taxation that might be relevant to particular holders in light of their personal
investment circumstances or status, nor does it discuss the U.S. federal income
tax consequences to certain types of holders subject to special treatment under
the U.S. federal income tax laws, such as certain financial institutions,
insurance companies, dealers in securities or foreign currency, tax-exempt
organizations, or persons that hold Notes or Warrants that are a hedge against,
or that are hedged against, currency risk or that are part of a straddle or
conversion transaction, or persons whose functional currency is not the U.S.
dollar. Moreover, the effect of any applicable state, local or foreign tax laws
is not discussed.
Hogan & Hartson L.L.P., tax counsel to the Company, has reviewed the
following discussion and is of the opinion that, to the extent it constitutes
matters of law or legal conclusions or purports to describe certain provisions
of the federal tax laws, the discussion is a correct summary in all material
respects of the matters discussed therein.
THE FOLLOWING DISCUSSION IS FOR GENERAL INFORMATION ONLY. EACH PURCHASER IS
STRONGLY URGED TO CONSULT WITH ITS OWN TAX ADVISORS TO DETERMINE THE IMPACT OF
SUCH PURCHASER'S PERSONAL TAX SITUATION ON THE ANTICIPATED TAX CONSEQUENCES,
INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN OR OTHER TAX LAWS, OF
THE ACQUISITION, OWNERSHIP AND DISPOSITION OF THE NOTES, WARRANTS OR UNITS.
THE UNITS
Each Unit is comprised of a Note and a Warrant. For U.S. federal income tax
purposes, the issue price of a Unit must be allocated between the Note and the
Warrant. Under the OID Regulations, the issue price of a Senior Note Unit or a
Senior Discount Note Unit should be equal to the offering price to the public
(not including any bond house, broker or similar person or organization acting
in the capacity of an underwriter, placement agent or wholesaler) at which a
substantial amount of the Senior Note Units or the Senior Discount Note Units,
as the case may be, are sold. The issue price of a Unit must be allocated
between its component parts based on their relative fair market values on the
date of issuance. Based on the foregoing, the Company intends (i) to treat a
Senior Note as having been originally issued with an issue price of $ and a
Senior Note Warrant as having been originally issued with an issue price of $ ,
and (ii) to treat a Senior Discount Note as having been originally issued with
an issue price of $ and a Senior Discount Note Warrant as having been issued
with an issue price of $ . This allocation by the Company reflects its judgment
as to the relative values of those instruments at the time of original issuance.
No assurance can be given, however, that the IRS will not challenge the
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allocation by the Company of the issue price of the Notes and Warrants. If the
Company's allocation is successfully challenged, the issue price, OID accrual
and gain or loss on sale would be different from that resulting under the
allocation determined by the Company.
The determination by the Company of the issue price of the Notes and Warrants
will be binding on a holder, unless such holder discloses the use of a different
issue price allocation on the applicable form attached to such holder's Federal
income tax return for the taxable year that includes the acquisition date of
such Unit. If a holder acquires a Unit at a price different from that on which
the Company's allocation is based, such holder may be treated as having acquired
its Note for an amount greater or less than the amount allocated to such Note by
the Company as set forth above, thereby resulting in "acquisition premium,"
"amortizable bond premium" or "market discount," as defined below. Holders
intending to use an issue price allocation different from that used by the
Company should consult their own tax advisors as to the consequences to them of
their particular allocation of the issue price of the Units, Notes and Warrants.
SENIOR DISCOUNT NOTES -- ORIGINAL ISSUE DISCOUNT
GENERAL
The Senior Discount Notes will bear OID, and each U.S. Holder will be
required to include in income (regardless of whether such U.S. Holder is a cash
or accrual basis taxpayer) in each year, in advance of the receipt of cash
payments on such Senior Discount Notes, that portion of the OID, computed on a
constant yield basis, attributable to each day during such year on which the
U.S. Holder held the Senior Discount Notes. See "Taxation of Original Issue
Discount" below.
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT
The amount of OID with respect to each Senior Discount Note will be equal to
the excess of (i) its "stated redemption price at maturity" over (ii) its "issue
price" (as discussed above). Under the OID Regulations, the "stated redemption
price at maturity" of each Senior Discount Note will include all payments to be
made in respect thereof, including any stated interest payments. Accordingly,
payments on the Senior Discount Notes (including principal and stated interest
payments) are not separately included in a U.S. Holder's income as interest, but
rather are treated first as payments of previously accrued OID and then as
payments of principal.
TAXATION OF ORIGINAL ISSUE DISCOUNT
A U.S. holder of a debt instrument issued with OID is required to include in
gross income for U.S. federal income tax purposes an amount equal to the sum of
the "daily portions" of such OID for all days during the taxable year on which
the holder holds the debt instrument. The daily portions of OID required to be
included in a holder's gross income in a taxable year will be determined upon a
constant yield basis by allocating to each day during the taxable year on which
the holder holds the debt instrument a pro rata portion of the OID on such debt
instrument which is attributable to the "accrual period" in which such day is
included. Accrual periods with respect to a Senior Discount Note may be of any
length selected by the U.S. Holder and may vary in length over the term of the
Senior Discount Note as long as (i) no accrual period is longer than one year
and (ii) each scheduled payment of interest or principal on the Senior Discount
Note occurs on either the final or first day of an accrual period. The amount of
the OID attributable to each "accrual period" will be the product of (i) the
"adjusted issue price" at the beginning of such accrual period and (ii) the
"yield to maturity" of the debt instrument (stated in a manner appropriately
taking into account the length of the accrual period). The "yield to maturity"
is the discount rate that, when used in computing the present value of all
payments to be made under the Senior Discount Note, produces an amount equal to
the issue price of the Senior Discount Note. The "adjusted issue price" of a
Senior Discount Note at the beginning of an accrual period is generally defined
as the issue price of the Senior Discount Note plus the aggregate amount of OID
that accrued in all prior accrual periods, less any cash payments on the Senior
Discount Note. Accordingly, a U.S. Holder of a Senior Discount Note will be
required to include OID thereon in gross income for U.S.
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federal tax purposes in advance of the receipt of cash in respect of such
income. The amount of OID allocable to an initial short accrual period may be
computed using any reasonable method if all other accrual periods, other than a
final short accrual period, are of equal length. The amount of OID allocable to
the final accrual period at maturity of a Senior Discount Note is the difference
between (x) the amount payable at the maturity of the Senior Discount Note and
(y) the Senior Discount Note's adjusted issue price as of the beginning of the
final accrual period.
EFFECT OF MANDATORY AND OPTIONAL REDEMPTIONS ON OID
In the event of a Change of Control, the Company will be required to offer to
redeem all of the Notes, including the Senior Discount Notes, at redemption
prices specified elsewhere herein. The required offer to redeem the Notes should
not affect, and will not be treated by the Company as affecting, the
determination of the yield or maturity of the Senior Discount Notes.
The Company may redeem the Notes, including the Senior Discount Notes, in
whole or in part, at any time on or after , 2002, at redemption prices specified
elsewhere herein plus accrued and unpaid interest to the date of redemption. The
OID Regulations contain rules for determining the "maturity date" and the stated
redemption price at maturity of an instrument that may be redeemed prior to its
stated maturity date at the option of the issuer. Under the OID Regulations,
solely for purposes of the accrual of OID, it is assumed that the issuer will
exercise any option to redeem a debt instrument if such exercise will lower the
yield-to-maturity of the debt instrument. The Company believes that it will not
be presumed to redeem the Senior Discount Notes prior to their stated maturity
under these rules because the exercise of such option would not lower the
yield-to-maturity of the Senior Discount Notes.
TAX BASIS
A U.S. Holder's initial tax basis in a Senior Discount Note generally will be
equal to the purchase price paid by such U.S. Holder for such Senior Discount
Note. A U.S. Holder's tax basis in a Senior Discount Note will be increased by
the amount of OID that is included in such U.S. Holder's income pursuant to the
foregoing rules and will be decreased by the amount of any cash payments
received.
THE SENIOR NOTES
Stated interest payments on the Senior Notes will be taxable to a U.S. holder
when received or accrued in accordance with such holder's method of tax
accounting. If, as the Company expects, the allocation of issue price to the
Senior Note Warrants and the Senior Notes will generate a discount element for
the Senior Notes that is de minimis, then the Senior Notes will not bear
original issue discount. Under the de minimis rule, there is no original issue
discount on a debt instrument if the debt instrument is originally issued at a
discount that is less than .25% multiplied by the product of its principal
amount and number of complete years to maturity from the issue date.
In certain circumstances, notes issued in connection with the same
transaction or related transactions may be treated as a single note for purposes
of the OID rules. The Company believes that a substantial portion of each of the
Senior Notes and the Senior Discount Notes will be issued to purchasers not
related to the Company or to other purchasers and who do not purchase both
Senior Note Units and Senior Discount Note Units in connection with the same
transaction or related transactions, and that, therefore, the aggregation rules
will not apply.
MARKET DISCOUNT, ACQUISITION PREMIUM
If a U.S. Holder acquires a Note for an amount that is less than (i) in the
case of a Senior Note, its principal amount, or (ii) in the case of a Senior
Discount Note, its revised issue price (generally, adjusted issued price) at the
time of acquisition, the amount of such difference will be treated as "market
discount" for U.S. federal income tax purposes, unless such difference is less
than a specified de minimis amount. Under the market discount rules, a U.S.
Holder will be required to treat any principal payment on, or any gain on the
sale, exchange, retirement or other disposition of, a Note as ordinary income to
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the extent of the market discount which has not previously been included in
income and is treated as having accrued on such Note at the time of such payment
or disposition. If a U.S. Holder makes a gift of a Note, accrued market
discount, if any, will be recognized as if such U.S. Holder had sold such Note
for a price equal to its fair market value. In addition, the U.S. Holder may be
required to defer, until the maturity of the Note or the earlier disposition of
the Note in a taxable transaction, the deduction of a portion of the interest
expense on any indebtedness incurred or continued to purchase or carry such
Note.
Any market discount will be considered to accrue on a straight-line basis
during the period from the date of acquisition to the maturity date of the Note,
unless the U.S. Holder elects to accrue market discount on a constant interest
method. A U.S. Holder of a Note may elect to include market discount in income
currently as it accrues (on either a straight-line basis or constant interest
method), in which case the rules described above regarding the deferral of
interest deductions will not apply. This election to include market discount in
income currently, once made, applies to all market discount obligations acquired
on or after the first day of the first taxable year to which the election
applies and may not be revoked without the consent of the IRS.
A U.S. Holder who purchases a Senior Note at a cost in excess of the greater
of its principal amount or the amount payable on an earlier call date will be
considered to have purchased the Senior Note with "amortizable bond premium,"
and may elect to amortize such premium as an offset to interest income on the
Senior Note. A U.S. Holder who acquires a Senior Discount Note for an amount
that is greater than the adjusted issue price of such Senior Discount Note but
equal to or less than the sum of all amounts payable on such Senior Discount
Note after the purchase date will be considered to have purchased such Senior
Discount Note at an "acquisition premium." Under the acquisition premium rules
of the Code and the OID Regulations, the amount of OID which such holder must
include in its gross income with respect to such Senior Discount Note for any
taxable year will be reduced by the portion of such acquisition premium properly
allocable to such year.
Proposed Treasury regulations issued on June 27, 1996 would clarify the
treatment of bond premium. The proposed regulations describe the constant yield
method under which such premium is amortized and provide that the resulting
offset to interest income can be taken into account only as a U.S. Holder takes
the corresponding interest income into account under such U.S. Holder's regular
accounting method. In the case of instruments that may be redeemed prior to
maturity, the proposed regulations provide that the premium is calculated by
assuming that the issuer or holder will exercise or not exercise its redemption
rights in the manner that maximizes the U.S. Holder's yield. The regulations are
proposed to be effective for debt instruments acquired on or after the date 60
days after the date final regulations are published in the Federal Register.
However, if a U.S. Holder elects to amortize bond premium for the taxable year
containing such effective date, the regulations would apply to all the U.S.
Holder's debt instruments held on or after the first day of that taxable year.
It cannot be predicted at this time whether these regulations will become
effective or what, if any, modifications may be made to them prior to their
becoming effective.
A U.S. Holder's tax basis is a Note will be increased by any market discount
previously included in such U.S. Holder's income and decreased by any bond
premium previously amortized by such U.S. Holder.
SALE OR REDEMPTION OF NOTES
Unless a nonrecognition provision applies, the sale, exchange, redemption
(including pursuant to an offer by the Company) or other disposition of a Note
will be a taxable event for U.S. federal income tax purposes. In such event, a
U.S. Holder will recognize gain or loss equal to the difference between (i) the
amount of cash plus the fair market value of any property received upon such
sale, exchange, redemption or other taxable disposition (except to the extent
the consideration received is attributable to stated interest on a Senior Note
not previously taken into income, which consideration is treated as interest
income) and (ii) the U.S. Holder's adjusted tax basis therein. Except with
respect to accrued market discount, such gain or loss should be capital gain or
loss and will be long-term capital gain or loss if the Note will have been held
by the U.S. Holder for more than one year at the time of such sale, exchange,
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redemption or other disposition. The excess of net long-term capital gains over
net short-term capital losses is taxed at a lower rate than ordinary income for
certain non-corporate taxpayers. The distinction between capital gain or loss
and ordinary income or loss is also relevant for purposes of, among other
things, limitations on the deductibility of capital losses.
HIGH-YIELD DISCOUNT OBLIGATIONS
The Senior Discount Notes will constitute "applicable high yield discount
obligations" ("AHYDOs") if the yield to maturity of such Senior Discount Notes
equals or exceeds the sum of the applicable federal rate in effect at the time
of the issuance of the Senior Discount Notes (the "AFR") plus five percentage
points. For January 1997, the long-term AFR is 6.44% and the mid-term AFR is
6.01% (based on semi-annual compounding). The appropriate AFR depends upon the
weighted average maturity of the Senior Discount Notes. Under Sections 163(e)
and 163(i) of the Code, a C corporation that is an issuer of debt obligations
subject to the AHYDO rules may not deduct any portion of OID on the obligations
until such portion is actually paid. A debt obligation is generally subject to
the AHYDO rules if (i) its maturity date is more than five years from the date
of issue, (ii) its yield to maturity equals or exceeds the sum of the AFR plus
five percentage points, and (iii) it bears "significant OID." A debt obligation
will bear significant OID for this purpose if, as of the close of any accrual
period ending more than five years after issuance, the total amount of income
includable by a holder with respect to the debt instrument exceeds the sum of
(i) the total amount of "interest" paid under the obligation before the close of
such accrual period and (ii) the product of the issue price of the debt
instrument and its yield to maturity. In addition, if the Senior Discount Notes
are AHYDOs, and if the yield to maturity of the Senior Discount Notes exceeds
the sum of the AFR plus six percentage points, then a portion of the OID on the
Senior Discount Notes, equal to the product of the total OID on the Senior
Discount Notes times the ratio of (a) the excess of the yield to maturity over
the sum of the AFR plus six percentage points to (b) the yield to maturity, will
not be deductible by the Company and will be treated for some purposes as
dividends to the U.S. Holders of the Senior Discount Notes (to the extent that
such amounts would have been treated as dividends to the U.S. Holders of the
Senior Discount Notes if they had been distributions with respect to the
Company's stock). Amounts treated as dividends will be nondeductible by the
Company, and may qualify for the dividend received deduction for corporate U.S.
Holders, but will be treated as OID and not as dividends for withholding tax
purposes. The Company cannot determine whether the Senior Discount Notes will be
AHYDOs until their issue price is determined by sale to investors pursuant to
this offering.
THE WARRANTS
Upon the exercise of a Warrant, a U.S. Holder will not recognize gain or loss
(except to the extent of cash, if any, received in lieu of the issuance of
fractional shares of Common Stock) and will have a tax basis in the Common Stock
acquired pursuant to such exercise equal to such U.S. Holder's tax basis in the
Warrant (which, in the case of an initial holder, will equal the portion of the
issue price of the Unit properly allocable to the Warrant, as described above)
plus the exercise price of the Warrant. The holding period for such Common Stock
so acquired will commence on the day after the date of exercise of the Warrant.
If any cash is received in lieu of fractional shares of Common Stock, the U.S.
Holder will recognize gain or loss the amount and character of which will be
determined as if such U.S. Holder had received such fractional shares and then
immediately sold them for cash. Similarly, upon the sale of Common Stock
received upon exercise of a Warrant, a U.S. Holder will recognize capital gain
or loss equal to the difference between the amount realized upon the sale and
such U.S. Holder's tax basis in the Common Stock. Such capital gain or loss will
be long-term if, at the time of sale or exchange, the Common Stock was held for
more than one year. Distributions made with respect to the Common Stock will
constitute dividends to the extent paid out of current or accumulated earnings
and profits of the Company as determined for U.S. federal income tax purposes.
To the extent that a distribution exceeds the earnings and profits of the
Company, it will be treated as a nontaxable return of capital to the extent of
the U.S. Holder's adjusted tax basis in the Common Stock. Holders should consult
with their own tax advisors with respect to the particular federal, state, local
and foreign tax consequences to them of the ownership of Warrants or Common
Stock.
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The sale of a Warrant will result in the recognition of capital gain or loss
to the U.S. Holder in an amount equal to the difference between the amount
realized and such U.S. Holder's tax basis in the Warrant (which, in the case of
an initial holder, will equal the portion of the issue price of the Unit
properly allocable to the Warrant, as described above). Such capital gain or
loss will be long term if, at the time of sale or exchange, the Warrant was held
for more than one year. It is unclear whether the repurchase of a Warrant by the
Company would be treated as a sale or exchange. If it were not so treated, any
gain or loss to a holder on such repurchase would be treated as ordinary income
or loss.
If a Warrant expires unexercised, a U.S. Holder will recognize a capital loss
equal to such U.S. Holder's tax basis in the Warrant. Such capital loss will be
long-term if, at the time of the expiration, the Warrant was held for more than
one year.
Under Section 305 of the Code, adjustments to the exercise price or
conversion ratio of the Warrants which occur under certain circumstances, or the
failure to make such adjustments, may result in the receipt of taxable
constructive dividends by a U.S. Holder (subject to a possible dividends
received deduction in the case of corporate U.S. Holders) to the extent of the
Company's current or accumulated earnings and profits, regardless of whether
there is a distribution of cash or property.
NON-U.S. HOLDERS
THE NOTES
Subject to the discussion of "backup" withholding below, payments of
principal, if any, and interest (including OID) by the Company or its agent (in
its capacity as such) to any holder who is a beneficial owner of a Note but is
not a U.S. Holder will not be subject to U.S. federal withholding tax provided,
in the case of interest (including OID) that (i) such holder does not actually
or constructively own 10% or more of the total combined voting power of all
classes of stock of the Company entitled to vote, (ii) such holder is not a
controlled foreign corporation for U.S. tax purposes that is related to the
Company through stock ownership, and (iii) either (A) the beneficial owner of
the Note certified to the Company or its agent, under penalties of perjury, that
he is not a U.S. Holder and provides his name and address or (B) a securities
clearing organization, bank or other financial institution that holds customers
securities in the ordinary course of its trade or business (a "financial
institution") certified to the Company or its agent, under penalties of perjury,
that the certification described in clause (A) hereof has been received from the
beneficial owner by it or by another financial institution acting for the
beneficial owner. A holder of a Note who is not a U.S. Holder, and who does not
meet the requirements of the preceding sentence, would generally be subject to
U.S. federal withholding tax at a flat rate of 30% (or a lower applicable treaty
rate) on payments of interest (including OID) on the Notes.
If a holder of a Note who is not a U.S. Holder is engaged in a trade or
business in the United States and interest (including OID) on the Note is
effectively connected with the conduct of such trade or business, such holder,
although exempt from U.S. federal withholding tax as discussed in the preceding
paragraph (or by reason of the delivery of properly completed Form 4224), will
be subject to U.S. federal income tax on such interest (including OID) and on
any gain realized on the sale, exchange or other dispositions of a Note in the
same manner as if it were a U.S. Holder. In addition, if such Non-U.S. Holder is
a foreign corporation, it may be subject to a branch profits tax equal to 30% of
its effectively connected earnings and profits for that taxable year, unless it
qualifies for a lower rate under an applicable income tax treaty.
Subject to the discussion of "backup" withholding below, any capital gain
realized upon the sale, exchange or retirement of a Note by a holder who is not
a U.S. Holder will not be subject to U.S. federal income or withholding taxes
unless (i) such gain is effectively connected with a U.S. trade or business of
the holder, or (ii) in the case of an individual, such holder is present in the
United States for 183 days or more in the taxable year of the retirement or
disposition and certain other conditions are met.
Notes held by an individual who is neither a citizen nor a resident of the
United States for U.S. federal income tax purposes at the time of such
individual's death will not be subject to U.S. federal estate tax, provided that
the income from the Notes was not or would not have been effectively con-
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nected with a U.S. trade or business of such individual and that such individual
qualified for the exemption from U.S. federal withholding tax (without regard to
the certification requirements) that is described above.
THE WARRANTS
The following discussion addresses the tax consequences to a holder of a
Warrant who is not a U.S. Holder of the ownership, disposition, exercise or
lapse of the Warrants.
For the tax basis of a Warrant and the tax basis and holding period of a
share of stock acquired by the exercise of a Warrant, see "-- The Units" and "--
The Warrants," above. Subject to the conditions discussed with respect to gain
realized with respect to the Notes under "Tax Consequences to Non-U.S. Holders"
above, and to the discussion contained in "FIRPTA Treatment of Non-U.S. Holders"
below, a holder of a Warrant who is not a U.S. Holder will not be subject to
U.S. federal income tax on gain realized on the sale of a Warrant. Further, no
gain or loss will be recognized by a holder of a Warrant who is not a U.S.
Holder for U.S. federal income tax purposes upon the exercise of a Warrant.
FIRPTA TREATMENT OF NON-U.S. HOLDERS
Under the Foreign Investment in Real Property Tax Act of 1980, as amended
("FIRPTA"), foreign persons generally are subject to U.S. federal income tax on
capital gain realized on the disposition of any interest (other than solely as a
creditor) in a corporation that is a United States real property holding
corporation (a "USRPHC"). For this purpose, a foreign person is defined as any
holder who is a foreign corporation (other than certain foreign corporations
that elect to be treated as domestic corporations), a non-resident alien
individual, a non-resident fiduciary of a foreign estate or trust, or a foreign
partnership. Under FIRPTA, a corporation is a USRPHC if the fair market value of
the United States real property interests held by the corporation is 50 percent
or more of the aggregate fair market value of certain assets of the corporation.
The Company does not currently believe that it is a USRPHC. Thus, a foreign
person that holds Warrants, or shares of the Common Stock of the Company
acquired pursuant to the exercise of such Warrants, generally will not be
subject to the U.S. federal income tax on a sale or other disposition of the
Warrants or shares of Common Stock. Even if a corporation meets the test for a
USRPHC, a foreign person would generally not be subject to tax, or withholding
in respect to such tax, on gain from a sale or other disposition of such
corporation's stock solely by reason of the corporation's USRPHC status if the
stock is regularly traded on an established securities market ("regularly
traded") during the calendar year in which such sale or disposition occurs,
provided that such holder does not own, actually or constructively, stock with a
fair market value in excess of 5 percent of the fair market value of all such
stock outstanding at any time during the shorter of the five-year period
preceding such disposition or the holder's holding period. The Company believes
that the Common Stock will be treated as regularly traded.
BACKUP WITHHOLDING AND INFORMATION REPORTING
The "backup" withholding and information reporting requirements may apply to
certain payments of principal and interest (including OID) on a Note and to
certain payments of proceeds of the sale or retirement of a Note. The Company,
its agent, a broker, the Trustee or any paying agent, as the case may be, will
be required to withhold tax from any payment that is subject to backup
withholding at a rate of 31% of such payment if the holder fails to furnish his
taxpayer identification number (social security number or employer
identification number), to certify that such holder is not subject to backup
withholding, or to otherwise comply with the applicable requirements of the
backup withholding rules. Certain holders (including, among others, all
corporations) are not subject to the backup withholding and reporting
requirements.
Under current Treasury Regulations, backup withholding and information
reporting will not apply to payments made by the Company or any agent thereof
(in its capacity as such) to a holder of a Note who has provided the required
certification under penalties of perjury that it is not a U.S. Holder as set
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forth in clause (iii) in the first paragraph under "Non-U.S. Holders" or has
otherwise established an exemption (provided that neither the Company nor such
agent has actual knowledge that the holder is a U.S. Holder or that the
conditions of any other exemption are not in fact satisfied).
Payments of the proceeds from the sale by a holder who is not a U.S. Holder
of a Note made to or through a foreign office of a broker will not be subject to
U.S. information reporting or backup withholding, except that if the broker is a
U.S. person, a controlled foreign corporation for U.S. tax purposes or a foreign
person 50% or more of whose gross income is effectively connected with a United
States trade or business for a specified three-year period, U.S. information
reporting may apply to such payments. Payments of the proceeds from the sale of
a Note to or through the United States office of a broker is subject to U.S.
information reporting and backup withholding unless the holder or beneficial
owner certifies as to its non-U.S. status or otherwise establishes an exemption
from U.S. information reporting and backup withholding.
Any amounts withheld under the backup withholding rules from a payment to a
holder may be claimed as a credit against such holder's United States federal
income tax liability.
The Company is required to furnish certain information to the IRS, and will
furnish annually to record holders of Notes, information with respect to
interest and OID accruing during the calendar year. The OID information will be
based upon the adjusted issue price of the debt instrument as if the holder were
the original holder of the debt instrument. No assurance can be given that the
IRS will not challenge the accuracy of the reported information. Moreover, if a
holder uses an allocation of the issue price of a Unit between the Note and the
Warrant comprising the Unit that is different from that used by the Company, the
computation of OID with respect to such holder's Note may differ from that
reported by the Company to the IRS and to such holder. Subsequent holders who
purchase Notes for an amount other than the adjusted issue price and/or on a
date other than the last day of an accrual period will be required to determine
for themselves the amount of OID, if any, they are required to include in gross
income for U.S. federal income tax purposes.
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DESCRIPTION OF CERTAIN INDEBTEDNESS
The following is a description of certain indebtedness of the Company that
will be outstanding following the Transactions. The Company will need
substantial additional capital to fund the construction, launch and launch
insurance of Orion 2 and Orion 3, as well as for other purposes. See "Risk
Factors -- Need for Substantial Additional Capital" and "Management's Discussion
and Analysis of Financial Condition and Results of Operation -- Liquidity and
Capital Resources."
THE DEBENTURE INVESTMENTS
The Debenture Investment will involve the sale on or prior to the Closing
Date of $50 million of convertible junior subordinated debentures (the "Junior
Subordinated Debentures") to British Aerospace and the sale of $10 million of
Junior Subordinated Debentures to Matra Marconi Space.
Terms of Junior Subordinated Debentures. Under an agreement among Orion,
British Aerospace and Matra Marconi Space, the Junior Subordinated Debentures
will mature 15 years following the date of issuance and will bear interest at a
rate of 8.75% per annum to be paid semi-annually in arrears solely in Orion
Common Stock at prices of between $10.21 and $14 per share, depending on the
average trading prices of the Common Stock during the applicable measurement
period. The Junior Subordinated Debentures (and accrued but unpaid interest) may
be converted in whole or in part into Common Stock at any time at an initial
conversion rate of $14 per share, as adjusted for stock splits or other
recapitalizations, certain dividends or issuances of stock to all stockholders,
issuances of stock (or rights to acquire stock (other than the Warrants)) at a
price per share below $14.00, and other events.
Orion may at any time (except during 90 days after a change in control)
redeem all or part (but not less than 25% on any one occasion) of the Junior
Subordinated Debentures for cash consideration determined by multiplying the
number of shares of Common Stock issuable upon conversion of the Junior
Subordinated Debentures by the greater of (i) the average closing price of the
Orion Common Stock over the 20 trading days preceding the redemption or (ii)
$17.50 per share. Alternatively, Orion may arrange for the disposition of the
Common Stock received upon the conversion of, or as payment of dividends on, the
Junior Subordinated Debentures in a public or private offering. In such event,
the holders of the Junior Subordinated Debentures will be entitled to receive a
price per share equal to the greater of (a) at least 95% of the average closing
price of the Common Stock over the preceding 20 trading days or (b) $17.50 per
share. From and after the time when less than $50 million of Notes remain
outstanding, in the event of a change of control of Orion (defined as the
acquisition by any stockholder of a majority of the voting securities of Orion),
either Orion or any holder of the Junior Subordinated Debentures may, within 90
days after such change of control, force the sale of the Junior Subordinated
Debentures, as converted into Common Stock, to Orion for a purchase price equal
to the greater of (a) the price payable in an optional redemption (as described
above) and (b) the price paid to holders of Common Stock in the change of
control transaction. The Indentures contain a covenant which will effectively
prohibit Orion from honoring such right.
The Junior Subordinated Debentures will be subordinated to all other
indebtedness of the Company, including the Notes. The Trustees under the
Indentures with respect to the Senior Notes and the Senior Discount Notes will
have the right to vote the Junior Subordinated Debentures in connection with any
liquidation or plan of reorganization under the U.S. Bankruptcy Code. The Junior
Subordinated Debentures will contain minimal covenants and events of default so
long as $50 million or more of the Notes remain outstanding, but a more
extensive set of covenants and events of default will apply after less than $50
million of Notes are outstanding.
In connection with the Debenture Investments, Orion has agreed to certain
provisions relating to any mandatory redemption by it of the Junior Subordinated
Debentures, the Series C Preferred Stock held by British Aerospace, Matra
Marconi Space or their respective affiliates or the Common Stock issued to
British Aerospace, Matra Marconi Space upon conversion of the Junior
Subordinated Debentures or the Series C Preferred Stock or as payment of
interest on the Junior Subordinated Debentures or dividends on the Series C
Preferred Stock. Under its Certificate of Incorporation, Orion has the right
mandatorily to redeem the capital stock of any stockholder to the extent
necessary to prevent the loss or
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secure the reinstatement of any license or franchise from any governmental
agency. Orion has agreed that any such redemption of such securities owned by
British Aerospace, Matra Marconi Space or their respective affiliates, Orion
will pay an amount for such securities equal to the amount it would have paid if
it had effected such redemption at the price applicable to redemptions effected
under the terms of the Junior Subordinated Debentures or the Series C Preferred
Stock, as the case may be, which would be more favorable than the price set
forth in the Certificate of Incorporation.
The consummation of the Debenture Investments is conditioned upon the
following: (i) completion of the Exchange; (ii) termination of all obligations
of British Aerospace and Matra Marconi Space under their firm and contingent
capacity agreements supporting the Orion 1 Credit Facility; (iii) receipt by
Orion of net proceeds from the Offering of at least $225 million; (iv) Orion's
payment to each of British Aerospace and Matra Marconi Space of its costs and
expenses; and (v) acquisition by Orion of all of British Aerospace's interest in
Orion Asia Pacific in exchange for approximately 86,000 shares of Common Stock.
Under the Orion 1 Satellite Contract, Matra Marconi, as the Orion 1
manufacturer, is entitled to receive incentive payments based upon the
performance of Orion 1 in orbit. As of September 30, 1996, Orion Atlantic had
obligations with a present value of $21.7 million with respect to incentive
payments. Orion will pay $13 million in satellite incentives following
completion of the Offering, of which $10 million will be re-invested in Orion by
Matra Marconi Space in Junior Subordinated Debentures.
The completion of the Debenture Investment is a condition to the closing of
the Offering.
TT&C FINANCING
In November 1993, Orion Atlantic entered into a financing arrangement with
GECC to finance the TT&C facility (the "TT&C Financing"). The TT&C Financing
consists of a note payable in installments through June 2002. At September 30,
1996, the Company had outstanding principal indebtedness of approximately $7.2
million under the TT&C Financing facility. The interest rate is 7.42% plus an
index rate tied to yields on certain U.S. Treasury securities. The interest rate
at September 30, 1996 was 13.49%. The TT&C Financing is secured by the TT&C
facility, the contract for Orion's satellite control system and Orion Atlantic's
leasehold interest in the TT&C facility land. See Note 4 of Notes to
Consolidated Financial Statements.
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DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of Orion consists of 40,000,000 shares of Common
Stock, par value $.01 per share, and 1,000,000 shares of preferred stock, par
value $.01 per share.
The following summary description of the capital stock of Orion is qualified
in its entirety by reference to the Certificate of Incorporation and Bylaws of
Orion. A copy of the Certificate of Incorporation and Bylaws are exhibits to the
Registration Statement of which this Prospectus is a part.
COMMON STOCK
Common Stock Outstanding. As of December 15, 1996, there were 10,974,121
shares of Common Stock outstanding, held by approximately 350 stockholders of
record.
Dividends. Subject to preferences that may then be applicable to any then
outstanding preferred stock, holders of Common Stock are entitled to receive
dividends out of funds legally available therefor when, as and if declared by
the Board of Directors. Orion has not paid any dividends upon its Common Stock
and does not plan to pay any dividends on such stock for the foreseeable future.
The Indentures contain covenants that restrict Orion's ability to pay cash
dividends.
Voting Rights. Each holder of Common Stock is entitled to one vote per share
of Common Stock held by such holder on all matters to be voted upon by the
stockholders of Orion. Holders of shares of Common Stock are not entitled to
cumulative voting rights.
Staggered Terms of Directors. Under the provisions of Orion's Certificate of
Incorporation the members of the Board of Directors are divided into three
classes with the term of one class expiring each year. Accordingly, only those
Directors of a single class can be changed in any one year and it could take
three years to change the entire Board. While Orion believes that a staggered
Board of Directors is in the best interests of Orion and its stockholders, such
requirement may have the effect of protecting management in retaining its
position and discouraging potential acquirers.
Liquidation Rights. All shares of Common Stock have equal rights, on a share
for share basis, to receive pro rata the net assets of Orion upon liquidation or
dissolution after payments to creditors and any holders of preferred stock, if
any, then issued and outstanding. There are no redemption or sinking fund
provisions applicable to the Common Stock. All outstanding shares of Common
Stock are fully paid and non-assessable.
PREFERRED STOCK
Orion's Certificate of Incorporation authorizes the Board of Directors to
issue, from time to time and without further stockholder action, one or more
series of preferred stock, and to fix the relative rights and preferences of the
shares, including voting powers, dividend rights, liquidation preferences,
redemption rights, and conversion privileges. Because of its broad discretion
with respect to the creation and issuance of preferred stock without stockholder
approval, the Board of Directors could adversely affect the voting power of the
holders of Common Stock and, by issuing shares of preferred stock with certain
voting, conversion, and/or redemption rights, could discourage any attempt to
obtain control of Orion.
SENIOR PREFERRED STOCK
Preemptive Rights. The holders of Senior Preferred Stock have a contractual
"preemptive" right to purchase a pro rata portion of any equity securities sold
by Orion in the future on the same terms and conditions as sold to others,
subject to certain exceptions for securities sold or granted to employees,
certain small offerings, existing rights to acquire equity securities and public
offerings of securities under the Securities Act, including the Offering.
Dividends and Conversion. Dividends on the Senior Preferred Stock accrue at
8% per annum, and are payable as and when declared by the Board. The Senior
Preferred Stock is convertible into Common Stock at initial prices of $8.50 and
$10.20 per share, subject to anti-dilution adjustments in the case of
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recapitalizations or issuances of Common Stock (other than the Warrant Shares)
below the conversion price. Future issuances of Common Stock below the
conversion price could significantly increase the percentage of Orion's equity
owned by the holders of the Senior Preferred Stock. Upon conversion of the
Senior Preferred Stock, any accrued and unpaid dividends on the Senior Preferred
Stock will be waived.
Liquidation Rights. The Senior Preferred Stock has a liquidation
preference equal to the amount invested, which preference increases to the
extent of any accrued and unpaid dividends.
Voting Rights. Holders of the Senior Preferred Stock are entitled to vote
with holders of Series C Preferred Stock and the Common Stock, together as a
single class on an as-if-converted basis.
Put Rights. The holders of Senior Preferred Stock have the right to sell the
Common Stock received upon the conversion thereof to Orion upon, among other
things, certain mergers, changes of control or sales of substantially all the
assets of Orion at the pro rata interest of such holders in the consideration
received, in the case of certain fundamental changes, or fair market value. In
the case of mergers in which the consideration to be received by holders of
Common Stock is in a form other than cash, Orion shall pay the purchase price
with a combination of a specified amount of freely tradable securities, a
specified amount of cash, and the balance with a note payable over two years.
The holders of Senior Preferred Stock (and any Common Stock received upon the
conversion thereof) also have the right to sell such stock (or the common stock
issuable upon conversion thereof) to Orion commencing in June 1999 at the fair
market value of their shares (in the case of Common Stock) or the liquidation
value, including accrued and unpaid dividends (in the case of Senior Preferred
Stock), in accordance with the following schedule:
ON OR AFTER MAY 31, PORTION
------------------------ ------------
1999 ................... 33 1/3%
2000 ................... 66 2/3%
2001 ................... 100%
The holders of Senior Preferred Stock have agreed to waive exercise of these
rights for so long as the Notes or Junior Subordinated Debentures remain
outstanding. These rights terminate upon the closing of a "Qualified Public
Offering," as discussed below.
Tag Along Rights. Certain principal stockholders of Orion have granted to
CIBC, Fleet and Chisholm the right to have a pro rata portion (based on the
percentage of Common Stock outstanding) of the Common Stock issuable upon
conversion of the Senior Preferred Stock included in any sales by those
principal stockholders which involve more than 5% of the Common Stock then
outstanding.
Termination of Certain Rights Upon Qualified Public Offering. The rights of
the holders of the Senior Preferred Stock relating to sale following certain
mergers, changes of control or sale of substantially all assets, the rights to
sell such stock to Orion commencing in June 1999 or in connection with certain
business combinations at fair market value, the preemptive rights and certain of
the additional investment rights terminate upon the closing of a "Qualified
Public Offering" which is defined as a public offering of the Common Stock with
gross proceeds to Orion of not less than $30 million and a public offering price
per share of not less than $25.50.
Restrictive Covenants; Representations. The documents relating to the Senior
Preferred Stock impose certain covenants on Orion. The covenants include
limitations on payment of dividends, redemption of junior securities such as
Common Stock, certain issuances of senior securities (except when the Senior
Preferred Stock is able to acquire an equivalent seniority), expansion into
other lines of business or engaging in certain affiliated transactions. Failure
to comply with those covenants (or failure of representations to be true and
complete when made) could result in an increase in the dividend on the Senior
Preferred Stock, not to exceed an annual dividend of 14%, and could give the
holders of the Senior Preferred Stock certain rights to sell such stock to Orion
if the non-compliance is material or (in certain cases) continues after certain
cure periods. The Indentures contain a covenant which will effectively prohibit
such sale to Orion while any Notes are outstanding. Orion has the right to
redeem the
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Senior Preferred Stock (subject to limitations contained in the Indentures) at
its liquidation value (plus accrued and unpaid dividends) by paying holders of
Senior Preferred Stock that amount and activating certain warrants (issued
concurrently with the Senior Preferred Stock) to purchase Common Stock at the
conversion price of such Senior Preferred Stock. These warrants do not become
exercisable unless Orion exercises its right to repurchase the Senior Preferred
Stock.
Orion's Right to Force Conversion of Senior Preferred Stock. Orion may
require conversion of the Senior Preferred Stock (resulting in the cancellation
of accrued but unpaid dividends) if it meets certain public float requirements,
the holders of Senior Preferred Stock are not subject to any agreements
restricting the sale of Common Stock received on conversion and the closing
trading price of the Common Stock for 30 of the 45 trading days preceding notice
of the required conversion has been above (i) $21.24 (if Orion makes the
conversion election prior to June 17, 1997) and (ii) $25.50 (if Orion makes the
conversion election on or after June 17, 1997).
SERIES C PREFERRED STOCK
Dividends. Subject to the preferential rights of Series A Preferred Stock and
Series B Preferred Stock ranking senior to the Series C Preferred Stock, the
record holders of Series C Preferred Stock are entitled to receive dividends at
the rate of 6% per annum, payable exclusively (except in the event of a
Liquidation, as defined below) in Common Stock. Dividends accrue on a daily
basis commencing on the date of issuance of each share of Series C Preferred
Stock at the simple interest rate of 6% per annum. The number of shares of
Common Stock distributable in a dividend on each share of Series C Preferred
Stock is calculated based on the market price of such stock. All preferred stock
issued after the Closing Date is required to be subordinated to the Series C
Preferred Stock.
Liquidation rights. Subject to the liquidation rights for Series A Preferred
Stock and Series B Preferred Stock, in the event of any liquidation, dissolution
or winding up of Orion (a "Liquidation"), each holder of Series C Preferred
Stock is entitled to be paid, before any distribution or payment is made upon
the Common Stock or any other series or class of stock of Orion ranking junior
to the Series C Preferred Stock, an amount in cash equal to the greater of (a)
$1,000 per share (plus an amount equal to all accrued and unpaid dividends) of
all shares of Series C Preferred Stock held by such holder, or (b) the amount
which would be distributed with respect to the shares of Common Stock into which
such shares of Series C Preferred Stock are convertible (assuming conversion of
all outstanding Series C Preferred Stock) immediately prior to the record date
for such distribution on an as-converted basis.
Voting rights. The holders of the Series C Preferred Stock are entitled to
notice of all stockholders' meetings in accordance with Orion's bylaws, and
except as otherwise required by law, the holders of the Series C Preferred Stock
are entitled to vote on all matters submitted to the stockholders for a vote
together with the holders of Common Stock and the holders of Senior Preferred
Stock, voting together as a single class, on an as-converted basis.
Redemption. Orion will be required to redeem all of the Series C Preferred
Stock in 2022. Additionally, at any time after the second anniversary of the
date of the issuance of the Series C Preferred Stock under the Exchange
Agreement, or, if prior to such date, immediately prior to the consummation of
any consolidation, merger or sale in which the successor entity or purchasing
entity is other than Orion, Orion, at its option and to the extent it has funds
legally sufficient therefor and is permitted to do so by the Indentures, may
redeem the shares of Series C Preferred Stock then outstanding, in whole or in
part, for an aggregate redemption price of $1,000 per share (plus all accrued
and unpaid dividends thereon).
Optional Conversion to Common Stock. Holders of Series C Preferred Stock have
the right, at any time, to convert all or a portion of such shares into a number
of shares of Common Stock equal to the sum of: (a) the number of shares of
Common Stock computed by multiplying the number of shares of Series C Preferred
Stock to be converted by $1,000, and dividing the result by the applicable
Conversion Price (as such term is used in the Certificate of Designations),
which initially is $17.50, subject to adjustment, plus (b) the number of shares
of Common Stock that would be payable if all accrued but unpaid dividends were
declared and paid on the shares of Series C Preferred Stock to be converted.
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Mandatory Conversion to Common Stock. If the closing price of the Common
Stock over 20 of any 30 consecutive trading days is greater than or equal to
$17.50 (subject to adjustment), Orion may require, by written notice to all
holders of Series C Preferred Stock, the conversion of all of the outstanding
Series C Preferred Stock into a number of shares of Common Stock equal to the
sum of: (a) the number of shares of Common Stock computed by multiplying the
number of shares of Series C Preferred Stock to be converted by $1,000, and
dividing the result by the applicable Conversion Price (as such term is used in
the Certificate of Designations) then in effect, plus (b) the number of shares
of Common Stock that would be payable if all accrued but unpaid dividends were
declared and paid on the shares of Series C Preferred Stock to be converted. If
Orion requires the mandatory conversion of the Series C Preferred Stock within
two years from the initial date of issuance of the Series C Preferred Stock,
then the number of shares of Common Stock into which the shares of Series C
Preferred Stock are converted will be increased by the number of shares of
Common Stock that would be payable if Orion were immediately to declare and pay
all dividends that in the absence of conversion would have accrued on such
shares of Series C Preferred Stock over the six month period immediately
following the date of such mandatory conversion; provided, however, that the
total dividends, including any additional amounts in respect of dividends paid
as a result of a required conversion, will not be less than the amount of
dividends that would have accrued on all outstanding shares of the Series C
Preferred Stock during one full year following the date of issuance.
WARRANTS AND OPTIONS
As of December 15, 1996, there were warrants and options outstanding to
purchase an aggregate of 1,193,721 shares of Common Stock at exercise prices
ranging from $8.16 to $14.00 per share, with a weighted average exercise price
of $10.31 per share. Holders of Series A Preferred Stock have options to invest
an additional approximately $350,000 in similar preferred stock (except that
such similar preferred stock would be convertible at any time into Common Stock
at a price based upon the date when the option is exercised within a range from
$10.20 to $17.00 per share of Common Stock). The holders of Senior Preferred
Stock also hold certain warrants to purchase Common Stock at the conversion
price of such Senior Preferred Stock. These warrants do not become exercisable
unless Orion exercises its right to repurchase the Senior Preferred Stock. The
warrants and options contain provisions for the adjustment of exercise prices
and numbers of shares subject thereto in certain events, including stock
dividends, stock splits, reorganizations, reclassifications or mergers.
REGISTRATION RIGHTS
Series A Preferred Stock and Series B Preferred Stock; SS/L. The holders of
Series A Preferred Stock and Series B Preferred Stock and SS/L (an existing
stockholder) are entitled to include their shares of Common Stock in a
registered offering (not including the Offering) of securities by Orion (a
"piggy-back" registration) for its own account or for the account of its
stockholders. If Orion proposes to register any shares of its Common Stock under
the Securities Act (other than for an offering primarily to employees or in
connection with a merger or acquisition), the holder of registration rights may
request that Orion include in the registered offering shares held by such holder
or which the holder would receive upon conversion or exercise. If so requested,
Orion must use its best efforts to include in the registered offering all shares
requested, provided, among other conditions, that the managing underwriter of
such offering has the right to limit or exclude entirely such shares of Common
Stock from such offering. Orion is required to bear all registration and selling
expenses, other than underwriting discounts, selling commissions, applicable
stock transfer taxes, and certain registration fees and expenses, in connection
with such piggy back registrations.
The holders of Series A Preferred Stock and Series B Preferred Stock have
demand rights (including two "long form" and an unlimited number of "short-form"
registrations) to require Orion to register the securities held by them, subject
to certain conditions. Orion is required to bear all registration and selling
expenses, other than underwriting discounts, selling commissions, applicable
stock transfer taxes, and certain registration fees and expenses, in connection
with such demand registrations.
Series C Preferred Stock. Pursuant to the Registration Rights Agreement to be
entered into between Orion and the Limited Partners, Orion will grant certain
registration rights to the Limited Partners, as summarized below.
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o Shelf Registration Rights. Orion will prepare and as soon as practicable
(but no later than 15 days after) after 180 days have passed from the date of
issuance of the Series C Preferred Stock (the "Lockup Period"), cause to be
filed a "shelf" registration statement of Orion (the "Initial Shelf Registration
Statement") which covers the registration of any and all the Eligible
Registrable Securities each holder elects to include in the Initial Shelf
Registration Statement. "Eligible Registrable Securities" means the Affected
Shares (as defined below -- see "Shares Eligible for Future Sale") issuable to
the Limited Partners pursuant to the Exchange Agreement, up to the 25% Limit (as
defined below -- see "Shares Eligible for Future Sale").
Orion will be obligated to file additional shelf registration statements
providing for the registration of the Eligible Registrable Securities which have
not been registered previously.
o Demand Registration of Underwritten Offerings. At any time following the
expiration of the Lockup Period, one or more of the holders of the Series C
Preferred Stock may request that Orion effect a registration under the
Securities Act of all of their Eligible Registrable Securities in a sale of
securities to an underwriter or underwriters of securities for reoffering to the
public (an "Underwritten Offering"). Each such request for registration must
involve shares worth at least $17.5 million in market value.
o Piggy-back Registration Rights. If at any time following the expiration of
the Lockup Period, Orion proposes to effect a registration of the Common Stock
(whether for its own account or for the account of others) under the Securities
Act, other than a "shelf" or "demand" registration as described above or a
registration of securities in connection with a business acquisition or
combination or an employee benefit plan, Orion will, subject to certain
provisions described in the Registration Rights Agreement, include in such
registration all Eligible Registrable Securities with respect to which Orion has
received written requests for inclusion therein. Orion will pay any and all
Registration Expenses (as such term is used in the Registration Rights
Agreement) incident to the filing of each such registration statement or
otherwise incident to the performance of or compliance by Orion with the
provisions of the Registration Rights Agreement relating to such registration.
Junior Subordinated Debentures. The shares of Common Stock issuable upon
conversion of, or as dividends on, the Junior Subordinated Debentures will have
the following registration rights:
o Shelf Registration Rights. Orion will be obligated to include in the
"shelf" registration statement filed with respect to the Series C Preferred
Stock (to be filed approximately six months after the Closing Date)
approximately 360,000 shares of Common Stock issued as payment of interest on
the Junior Subordinated Debentures or previously issued to British Aerospace
pursuant to a warrant or the OAP Acquisition. Orion also will prepare and,
within one year after the date of issuance of the Junior Subordinated
Debentures, cause to be filed a shelf registration statement of Orion which
covers the registration of any and all shares of Common Stock issuable upon
conversion of the Junior Subordinated Debentures each holder elects to include
in such shelf registration statement. If not all shares of Common Stock issuable
upon conversion of the Junior Subordinated Debentures are registered in the
initial shelf registration statement, Orion will be obligated to file additional
shelf registration statement(s) to register such unregistered shares.
o Demand Registration of Underwritten Offerings. Any one or more holders of
the Junior Subordinated Debentures may request that Orion effect a registration
under the Securities Act of all or not less than $20 million of shares of Common
Stock issuable upon conversion of the Junior Subordinated Debentures in an
Underwritten Offering. Matra Marconi Space may request a single such
registration of at least $10 million of shares of Common Stock. The number of
requests is not limited, but the Company will not be obligated to effect more
than one Underwritten Offering in any 12 month period, or two such registrations
during the 12-month period in which the Company effects a registration requested
by Matra Marconi Space. Orion will pay any and all Registration Expenses (as
defined in the relevant registration rights agreement) incident to the filing of
each registration statement for an Underwritten Offering.
o Piggy-back Registration Rights. If Orion proposes to effect a registration
of the Orion Common Stock (whether for its own account or for the account of
others) under the Securities Act, other than a "shelf" or "demand" registration
as described above or a registration of securities in connection with a
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business acquisition or combination or an employee benefit plan, Orion will,
subject to certain provisions described in the Registration Rights Agreement,
include in such registration all shares of Common Stock issuable upon conversion
of the Junior Subordinated Debentures with respect to which Orion has received
written requests for inclusion therein. Orion will pay any and all Registration
Expenses (as such term is used in the Registration Rights Agreement) incident to
the filing of each such registration statement or otherwise incident to the
performance of or compliance by Orion with the provisions of the registration
rights agreement relating to a such registration.
Such registration rights may hinder efforts by Orion to arrange future
financings of Orion and may have an adverse effect on the market price of the
Common Stock. See "Shares Eligible for Future Sale."
CERTAIN ANTI-TAKEOVER EFFECTS
Orion's Certificate of Incorporation and Bylaws contain certain provisions
that are intended to enhance the likelihood of continuity and stability in the
composition of Orion's Board of Directors and in the policies formulated by the
Board of Directors, and to discourage an unsolicited takeover of Orion if the
Board of Directors determines that such a takeover is not in the best interest
of Orion and its stockholders. However, these provisions could have the effect
of discouraging certain attempts to acquire Orion or remove incumbent management
even if some or a majority of Orion's stockholders were to deem such an attempt
to be in their best interest, including those attempts that might result in a
premium over the market price for the shares of Common Stock held by
stockholders.
Orion is subject to Section 203 of the Delaware General Corporation Law
("Section 203") which, subject to certain exceptions, prohibits a Delaware
corporation from engaging in certain business combinations with any interested
stockholder for a period of three years following the date that such stockholder
became an interested stockholder. In general, Section 203 defines an "interested
stockholder" as any entity or person beneficially owning 15% or more of the
outstanding voting stock of the corporation and any entity or person affiliated
with or controlling or controlled by such entity or person. A Delaware
corporation may elect not to be subject to Section 203 by having its
stockholders approve an amendment to its certificate of incorporation or bylaws
to such effect. Orion has not made such an election and, therefore, Section 203
may have an anti-takeover effect with respect to Orion.
Under the Communications Act, if Orion controlled an FCC radio common carrier
licensee (which it presently does not), the FCC could refuse or revoke such
licensee's license if (i) over 25% of Orion was controlled by foreign persons or
entities and (ii) the FCC found that the public interest would be served
thereby. Because of these provisions, Orion's Certificate of Incorporation
empowers the Board of Directors of Orion to redeem any of Orion's outstanding
capital stock to the extent necessary to prevent the loss or secure the
reinstatement of any license or franchise from any governmental agency. Such
stock may be redeemed at the lesser of (i) fair market value or (ii) such
holder's purchase price (if the stock was purchased within a year of such
redemption). See "Business -- Regulation" and "Risk Factors -- Approvals Needed;
Regulation of Industry." The Company has agreed to certain limits on this right
with respect to the Debenture Investments. See "Description of Certain
Indebtedness."
Orion's Certificate of Incorporation contains a provision (the "Fair Price
Provision") that requires the approval of the holders of a majority of Orion's
voting stock (other than voting stock held by an Interested Stockholder (as
defined below)) as a condition to a merger or to certain other business
transactions with, or proposed by, a holder of 20% or more of Orion's voting
stock (an "Interested Stockholder"), except in cases (such as the Debenture
Investments) where the Continuing Directors approve the transaction or certain
minimum price criteria and other procedural requirements are met. A "Continuing
Director" is a director who is not an Interested Stockholder or affiliated with
an Interested Stockholder or who was a member of the Board prior to the time the
Interested Stockholder became an Interested Stockholder or whose nomination or
election to the Board of Directors is recommended or approved by a majority of
the Continuing Directors. The minimum price criteria generally require that, in
a transaction in which stockholders are to receive payments, holders of Common
Stock must receive a value equal to the highest price paid by the Interested
Stockholder for Common Stock during the prior two years, and that such payment
be made in cash or in the type of consideration paid by the Interested
Stockholder for the greatest portion of its shares. Orion's Board of Directors
believes that the Fair Price
141
<PAGE>
Provision will help assure that all of Orion's stockholders are treated
similarly if certain kinds of business combinations are effected. However, the
Fair Price Provision may make it more difficult to accomplish certain
transactions that are opposed by the incumbent Board of Directors and that could
be beneficial to stockholders.
Orion's Certificate of Incorporation also requires any person or entity (the
"Acquiring Stockholder") who acquires or seeks to acquire shares of capital
stock of the Company that would increase such person's voting power in Orion
above any of three thresholds (20%, 33%, or 50%) to send a disclosure statement
to Orion and the other stockholders. The Acquiring Stockholder must receive the
approval of the holders of a majority of the other shares of Orion before the
Acquiring Stockholder can vote the acquired stock. In addition, if the Acquiring
Stockholder has acquired or is acquiring more than 50% of the outstanding
capital stock, the other stockholders who vote against such acquisition are
entitled to dissent and obtain for their shares, from Orion, payment equivalent
to the estimated fair value of their shares. The practical effect of this
requirement is to condition the acquisition of control of Orion on the approval
of a majority of the pre-existing disinterested stockholders.
Orion's Certificate of Incorporation provides that all actions taken by the
stockholders must be taken at an annual or special meeting of stockholders.
Under the Bylaws, special meetings of the stockholders of Orion may be called
only by a majority of the members of the Board of Directors, the Chairman or
stockholders owning in the aggregate at least 35% of the outstanding shares of
capital stock of Orion entitled to vote. Orion is not obligated to hold more
than one special meeting called by stockholders during any six-month period.
Stockholders are required to comply with certain advance notice provisions with
respect to any nominations of candidates for election to Orion's Board of
Directors or other proposals submitted for stockholder vote. These provisions
may have the effect of deterring hostile takeovers or delaying changes in
control or management of Orion.
Orion's Certificate of Incorporation and Bylaws provide that the Board of
Directors of Orion is divided into three classes of directors serving staggered
three-year terms. The classification of directors has the effect of making it
more difficult for stockholders to change the composition of the Board of
Directors in a relatively short period of time. The authorized number of
directors may be changed by resolution of the Board of Directors or by the
holders of at least two-thirds of the voting power of all outstanding shares,
and directors may not be removed without cause.
The foregoing provisions of Orion's Certificate of Incorporation and Bylaws,
except for those dealing with the liability of directors, may not be altered,
amended or repealed without the approval of the holders of at least two-thirds
of the voting power of all outstanding shares entitled to vote thereon and the
affirmative vote of the Board of Directors.
LISTING
The Common Stock is quoted on the Nasdaq National Market under the trading
symbol "ONSI."
TRANSFER AGENT
The transfer agent and registrar for the Common Stock is Fleet National Bank.
142
<PAGE>
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of the Merger and the Exchange, there will be approximately
25.9 million shares of Common Stock outstanding on a fully diluted basis,
assuming a closing of the Transactions as of January 30, 1997. Approximately
14.5 million of these shares will initially be held by Orion's current
stockholders, all of which will be freely transferable without restriction or
further registration under the Securities Act, other than the 5.5 million shares
held by "affiliates" of Orion, as that term is defined under the Securities Act.
The shares held by affiliates are expected to be eligible for sale pursuant to
Rule 144 under the Securities Act. See "Principal Stockholders."
In general, under Rule 144 as currently in effect of Orion, a person (or
persons whose shares are aggregated), including an affiliate, who has
beneficially owned shares for at least two years (including the holding period
of any prior owner other than an affiliate) is entitled to sell, within any
three-month period, a number of shares that does not exceed the greater of (i)
1% of the then outstanding shares of Common Stock (approximately 111,000 shares
outstanding immediately after the Transactions) or (ii) the average weekly
trading volume in the Common Stock during the four calendar weeks preceding such
sale, subject to the filing of a Form 144 with respect to such sale and certain
other limitations and restrictions. In addition, a person who is not deemed to
have been an affiliate of Orion at any time during the 90 days preceding a sale,
and who has beneficially owned the shares of Orion proposed to be sold for at
least three years, would be entitled to sell such shares under Rule 144(k)
without regard to the requirements described above.
The Limited Partners, as owners of the Series C Preferred Stock, and British
Aerospace and Matra Marconi Space, as owners of the Junior Subordinated
Debentures, will own the remaining 11.4 million shares of Common Stock, which
will be issuable upon the conversion of such securities. All of such shares will
be deemed to be "restricted securities" as that term is defined in Rule 144.
Moreover, each Exchanging Partner will enter into a Transfer Restriction
Agreement regarding the transfer of the shares of Common Stock issuable upon
conversion, or dividends on the Series C Preferred Stock. Pursuant to the
applicable Transfer Restriction Agreement, each Exchanging Partner may not
transfer any shares of Common Stock issued upon conversion of shares of Series C
Preferred Stock or as dividends on such Series C Preferred Stock ("Affected
Shares") without the prior written consent of the Company until the expiration
of the Lockup Period (other than certain transfers to affiliates). Also,
pursuant to the applicable Transfer Restriction Agreement, each Exchanging
Partner agrees that it will not transfer during any 90 day period Affected
Shares that collectively represent more than 25% of the aggregate number of
shares of Common Stock issuable upon conversion of the Series C Preferred Stock
received by such Exchanging Partner pursuant to the Exchange Agreement or as
dividends on such Series C Preferred Stock (the "25% Limit") unless any such
transfer is (i) pursuant to an underwritten, public offering pursuant to a
registration statement under the Securities Act, (ii) pursuant to a tender or
exchange offer made by or on behalf of the Company or a third-party, (iii) in
connection with a merger, consolidation, sale of all or substantially all of the
assets, recapitalization or similar transaction involving Orion, or (iv)
pursuant to a transaction not involving a public distribution or offering
registered under the Securities Act and not made through a broker, dealer or
market-maker pursuant to Rule 144 (including a pledge that meets such
requirements); provided, however, that prior to any transfer of Affected Shares
under clause (iv) above and prior to any transfer of Series C Preferred Stock
other than under the circumstances set forth in clauses (i), (ii), or (iii)
above, the transferee shall execute and deliver to the Company a transfer
restriction agreement substantially similar to the Transfer Restriction
Agreement the transferor originally entered into (omitting the Lockup Period
provision noted above). The 25% Limit described above will terminate on the
fifth anniversary of the Closing Date.
The Limited Partners and holders of the Junior Subordinated Debentures will
be granted certain shelf, demand and "piggy-back" registration rights with
respect to the Common Stock issuable upon conversion of Series C Preferred Stock
to be received by them in the Exchange or such Junior Subordinated Debentures,
respectively, and the Common Stock issuable as dividends thereon or interest
with respect thereto. See "Description of Capital Stock -- Registration Rights."
No predictions can be made as to the effect, if any, that sales of Common
Stock or the availability of additional shares of Common Stock for sale by the
Limited Partners or other stockholders of Orion would have on the market price
of such securities prevailing from time to time or on the ability of the Orion
to raise additional equity financing.
143
<PAGE>
UNDERWRITERS
Subject to the terms and conditions of the Underwriting Agreement dated the
date hereof (the "Underwriting Agreement") among the Company, Morgan Stanley &
Co. Incorporated and Merrill Lynch, Pierce, Fenner & Smith Incorporated
(together, the "Underwriters"), each of the Underwriters has severally agreed to
purchase the number of Units set forth opposite its name below:
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF SENIOR
SENIOR NOTE UNITS DISCOUNT NOTE UNITS
--------------------- -----------------------
<S> <C> <C>
Morgan Stanley & Co. Incorporated ......
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.................
--------------------- -----------------------
Total..................................
===================== =======================
</TABLE>
The Underwriting Agreement provides that the obligation of the several
Underwriters to pay for and accept delivery of the Units offered hereby are
subject to the approval of certain legal matters by their counsel and to certain
other conditions. The Underwriters are obligated to take and pay for all of the
Units if any are taken. After the initial offering, the offering price and other
selling terms may, from time to time, be varied by the Underwriters.
There is no public market for the Units and the Company does not intend to
apply for listing of the Units, Notes or Warrants on any securities exchange or
for quotation through the Nasdaq National Market. The Company has been advised
by the Underwriters that they intend to make a market in the Units (prior to
separation) and the Notes and Warrants (subsequent to separation), but are not
obligated to do so and may discontinue market making at any time without notice.
Accordingly, no assurance can be given as to the liquidity of the trading market
for the Units, Notes or Warrants.
The exercise price of the Warrants will be determined through negotiations
between the Company and the Underwriters.
The Company and the several Underwriters have agreed to indemnify each other
against certain liabilities, including liabilities under the Securities Act.
144
<PAGE>
FORWARD LOOKING STATEMENTS
Information set forth in this Prospectus under the captions "Risk Factors,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," "Selected Consolidated Financial and Operational Data" and under
other captions contains various "forward looking statements" within the meaning
of Section 27A of the Securities Act, and Section 21E of the Exchange Act, which
statements represent Orion's reasonable judgment concerning the future and are
subject to risks and uncertainties that could cause Orion's actual operating
results and financial position to differ materially. Such forward looking
statements include the following: Orion's projections regarding the continuation
of operating losses and net cash flow deficits; Orion's belief and the judgments
of its independent engineering consultant, Telesat Canada, regarding the
expected performance of the Orion 1 satellite over its useful life, and the
effect of such performance on Orion's business; Orion's expectations regarding
the period for construction and launch of Orion 2 and Orion 3; Orion's belief
that it can overcome uncertainties relating to Orion 2 and Orion 3; Orion's
expectations regarding receipt of regulatory approvals, coordination of orbital
slots and avoidance of possible interference; Orion's beliefs regarding existing
and future regulatory requirements, its ability to comply with such requirements
and the effect of such requirements on its business; Orion's beliefs regarding
the competitive advantages of satellites and of Orion's satellites, strategies
and services in particular, both in general and as compared to other providers
of services or transmission capacity and other services presently offered or
which may be offered in the future; Orion's expectations regarding the growth in
telecommunications and the demand for telecommunications services; Orion's
beliefs regarding the demand for or attractiveness of Orion's services; Orion's
beliefs regarding technological advances and their effect on telecommunications
services or demand therefor; Orion's beliefs regarding availability of net
operating loss carryforwards; Orion's beliefs regarding its representatives and
distributors; Orion's intention not to pay any dividend on the Common Stock in
the foreseeable future; Orion's belief that any liability that might be incurred
by Orion upon the resolution of certain existing or future legal proceedings not
having a material adverse effect on the consolidated financial condition or
results of operations of Orion; and the adoption of new accounting releases not
being material to its financial condition or results of operations.
Orion cautions that the above statements are further qualified by important
factors that could cause Orion's actual results to differ materially from those
in the forward looking statements. Such factors include, without limitation,
those set forth in this Prospectus under "Risk Factors" and the following: no
assurances regarding the business plan; Orion's history of losses and
expectation of future losses; the substantial financial risks and financing
requirements; substantial leverage and limits on Orion's ability to raise
additional funds; risks of satellite loss or reduced performance; launch of
Orion 2 and Orion 3 being subject to significant uncertainties; potential
adverse effects of competition; no assurances regarding approvals needed,
current or future regulation of the telecommunications industry; no assurances
regarding technological changes; risks of conducting international business;
dependence of Orion on key personnel; control of Orion by principal
stockholders; risks relating to senior preferred stock; limits on paying
dividends on Orion common stock; and anti-takeover and other provisions of the
certificate of incorporation. See "Risk Factors."
VALIDITY OF THE NOTES
The validity of the Notes offered hereby is being passed upon for the Company
by Hogan & Hartson L.L.P., Washington, D.C. and for the Underwriters by Shearman
& Sterling, New York, New York. Certain communications-related legal matters
will be passed upon for the Company by Verner, Liipfert, Bernard, McPherson and
Hand Chartered, Washington, D.C.
EXPERTS
The consolidated financial statements of Orion Network Systems, Inc. at
December 31, 1995 and 1994, and for each of the three years in the period ended
December 31, 1995, included in the Prospectus and Registration Statement have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon appearing elsewhere herein, and are included in reliance upon
such report given upon the authority of such firm as experts in accounting and
auditing.
145
<PAGE>
The appraisal of Orion 1 included in this Prospectus has been prepared by
Ascent Communications Advisors, L.P., consultants in the area of
telecommunications, as indicated in their report with respect thereto. Such
appraisal included herein is included in reliance upon the authority of such
firm as experts. Ascent has conducted more than thirty satellite valuations and
related assignments within the last four years. Founding members of Ascent's
senior staff and advisors developed Ascent's consulting and valuation practice
in the early 1980's initially as owners and management of CSP International
("CSPI"), a specialized communications consulting firm. In 1987, CSPI was
acquired by Booz, Allen and Hamilton, where the Ascent team actively continued
its business strategy and appraisal practice. In 1991 former principals of CSPI,
as well as a former staff member of Goldman Sachs & Co., independently formed
Ascent to reassume CSPI's practice from Booz, Allen and Hamilton. The Company
has agreed to indemnify Ascent, its affiliates, directors, officers, agents,
employees and controlling persons against certain liabilities and expenses,
including liabilities under the Securities Act.
146
<PAGE>
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act, a Registration Statement on Form S-1 (of
which this Prospectus is a part) (the "Registration Statement") with respect to
the securities offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement and in the exhibits and
schedules thereto. For further information with respect to the Company,
reference is made to the Registration Statement and to the exhibits and
schedules thereto.
Statements contained in this Prospectus as to the contents of any contract or
other document filed as an exhibit to the Registration Statement are not
necessarily complete and, in each instance, reference is made to the copy of
such contract or document filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference. Copies of
the Registration Statement, including all exhibits and schedules thereto, may be
inspected without charge at the Public Reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies of such
material can be obtained from the Public Reference Section of the Commission,
Washington, D.C. 20549, upon payment of prescribed rates or in certain cases by
accessing the Commission's World Wide Web site at http://www.sec.gov.
The Common Stock of Orion is registered under the Securities Exchange Act of
1934, as amended (the "Exchange Act") and in accordance therewith Orion will
file reports and other information with the SEC. In addition, under the
Indentures, the Company will be required to furnish to the Trustee and to
registered holders of the Notes audited annual financial statements, unaudited
quarterly consolidated financial reports and certain other reports. The Common
Stock of the Company is quoted on the Nasdaq National Market under the symbol
"ONSI," and such reports and other information concerning the Company can also
be inspected at the offices of Nasdaq Operations, 1735 K Street, N.W.,
Washington, D.C. 20006.
147
<PAGE>
APPRAISAL
APPRAISAL OF ASCENT COMMUNICATIONS ADVISORS L.P.
ORION NETWORK SYSTEMS, INC.
Ascent has prepared an appraisal estimating the Fair Market Value of the
Orion 1 satellite to be $304 million as of December 1, 1996 (Orion 1 "Valuation
Date"). Ascent defines the Fair Market Value of the satellite, as of its
Valuation Date, as the price that would be paid by a purchaser and accepted by a
seller of the satellite, neither under compulsion to buy or sell, respectively,
for delivery of the satellite on its Valuation Date.
Because events and circumstances frequently do not occur as expected and for
the reasons described in this Prospectus, there will usually be differences
between projected and actual results, and those differences may be material.
Therefore, no assurance may be given that the appraised value of the assets will
be achieved and reliance should not be placed on such appraised value.
In addition to determining the Fair Market Value of the Orion 1 Satellite,
Ascent calculated replacement cost as a measure of Fair Market Value. However,
we rejected replacement cost because, in our experience in-orbit satellite
systems and related assets have typically had Fair Market Values substantially
in excess of replacement cost.
/s/ Ascent Communications Advisors, L.P.
---------------------------------------------
ASCENT COMMUNICATIONS ADVISORS, L.P.
New York, New York
December 20, 1996
A-1
<PAGE>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
PAGE
---------
Report of Independent Auditors ...................................... F-2
Consolidated Financial Statements
Consolidated Balance Sheets ........................................ F-3
Consolidated Statements of Operations .............................. F-4
Consolidated Statements of Changes in Stockholders' Equity.......... F-5
Consolidated Statements of Cash Flows .............................. F-6
Notes to Consolidated Financial Statements ......................... F-7
F-1
<PAGE>
REPORT OF INDEPENDENT AUDITORS
The Board of Directors
Orion Network Systems, Inc.
We have audited the accompanying consolidated balance sheets of Orion Network
Systems, Inc. as of December 31, 1995 and 1994, and the related consolidated
statements of operations, changes in stockholders' equity, and cash flows for
each of the three years in the period ended December 31, 1995. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the consolidated financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Orion Network
Systems, Inc. at December 31, 1995 and 1994, and the consolidated results of its
operations and its cash flows for each of the three years in the period ended
December 31, 1995, in conformity with generally accepted accounting principles.
ERNST & YOUNG LLP
Washington, DC
February 9, 1996
F-2
<PAGE>
ORION NETWORK SYSTEMS, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
------------------------------- ----------------
1994 1995 1996
--------------- --------------- ----------------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS (NOTE 3)
Current assets:
Cash and cash equivalents $11,218,831 $55,111,585 $36,656,619
Accounts receivable (less allowance for doubtful accounts $278,000 at
December 31, 1995 and $328,000 at September 30, 1996) 551,870 5,189,598 5,808,568
Notes receivable and accrued interest -- 129,810 157,125
Prepaid expenses and other current assets 150,276 3,168,058 5,584,196
--------------- --------------- ----------------
Total current assets 11,920,977 63,599,051 48,206,508
Property and equipment, at cost:
Land 73,911 73,911 73,911
Telecommunications equipment 4,231,380 13,836,841 22,707,786
Furniture and computer equipment 1,833,169 3,395,799 4,598,505
Satellite and related equipment 303,486,227 321,918,549 322,450,415
--------------- --------------- ----------------
309,624,687 339,225,100 349,830,617
Less: accumulated depreciation (1,628,958) (32,170,865) (57,914,578)
--------------- --------------- ----------------
Net property and equipment 307,995,729 307,054,235 291,916,039
Deferred financing costs, net 15,551,956 12,894,720 11,208,678
Other assets, net 4,706,876 5,527,221 4,645,948
--------------- --------------- ----------------
Total assets $340,175,538 $389,075,227 $355,977,173
=============== =============== ================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $1,154,344 $ 10,454,723 $4,094,026
Accrued liabilities 5,522,220 6,812,223 7,374,884
Other current liabilities -- 2,111,687 5,402,117
Interest payable 7,734,764 8,005,079 3,128,365
Current portion of long-term debt (Note 5) 12,015,663 28,607,110 33,873,930
--------------- --------------- ----------------
Total current liabilities 26,426,991 55,990,822 53,873,322
Long-term debt (Note 5) 230,175,483 250,669,286 221,781,393
Other liabilities 3,091,074 20,698,084 32,878,061
Limited Partners' interest in Orion Atlantic (Notes 1 and 3) 62,519,087 14,626,338 19,961,032
Minority interest in other consolidated entities 57,639 52,354 52,984
Commitments and contingencies (Note 4)
Series A 8% Cumulative Redeemable Convertible Preferred Stock,
$.01 par value; 15,000 shares authorized; 13,871, 14,491 and 14,500
shares issued and outstanding at September 30, 1996 and December 31,
1995 and 1994, respectively, plus accrued dividends (Note 6) 14,554,693 15,705,054 15,820,460
Series B 8% Cumulative Redeemable Convertible Preferred Stock,
$.01 par value; 5,000 shares authorized; 4,298 and 4,483 shares issued
and outstanding at September 30, 1996 and December 31, 1995, plus
accrued dividends (Note 6) -- 4,652,647 4,718,526
Stockholders' equity (Notes 4 and 6):
Common stock, $.01 par value; 40,000,000 shares authorized; 11,232,533,
11,115,965 and 7,045,523 issued, 10,973,018, 10,856,450 and 6,786,008
outstanding at September 30, 1996 and December 31, 1995 and 1994,
respectively, less 259,515 held as treasury shares (at no cost) 70,455 111,160 112,325
Capital in excess of par value 33,952,062 85,485,613 86,508,773
Accumulated deficit (30,671,946) (58,916,131) (79,729,703)
--------------- --------------- ----------------
Total stockholders' equity 3,350,571 26,680,642 6,891,395
--------------- --------------- ----------------
Total liabilities and stockholders' equity $340,175,538 $389,075,227 $355,977,173
=============== =============== ================
</TABLE>
See notes to consolidated financial statements.
F-3
<PAGE>
ORION NETWORK SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
----------------------------------------------- --------------------------------
1993 1994 1995 1995 1996
--------------- --------------- --------------- --------------- ----------------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
Services revenue .......................... $ 2,006,021 $ 3,415,053 $ 22,283,882 $ 13,947,425 $ 30,015,517
Operating expenses: .......................
Direct 2,648,306 3,503,037 10,485,745 10,019,683 4,285,834
Sales and marketing ...................... 1,920,578 5,863,823 8,613,399 5,914,332 7,792,666
Engineering and technical services........ 1,775,261 3,004,144 8,539,644 6,021,853 6,333,525
General and administrative................ 4,731,322 5,058,201 10,072,429 7,168,165 11,469,235
Depreciation and amortization............. 1,752,103 1,716,019 31,403,376 22,276,632 26,402,947
--------------- --------------- --------------- --------------- ----------------
Total operating expenses................. 12,827,570 19,145,224 69,114,593 51,400,665 56,284,207
--------------- --------------- --------------- --------------- ----------------
Loss from operations....................... (10,821,549) (15,730,171) (46,830,711) (37,453,240) (26,268,690)
Other expense (income):
Interest income........................... (181,707) (413,435) (1,924,822) (1,078,347) (1,841,868)
Interest expense.......................... 132,869 60,559 24,738,446 17,080,146 20,228,519
Other..................................... 4,949,722 (54,737) 3,359,853 (43,216) (48,356)
--------------- --------------- --------------- --------------- ----------------
Total other expense (income)............. 4,900,884 (407,613) 26,173,477 15,958,583 18,338,295
--------------- --------------- --------------- --------------- ----------------
Loss before minority interest.............. (15,722,433) (15,322,558) (73,004,188) (53,411,823) (44,606,985)
Limited Partners' and minority interest in
the net loss of Orion Atlantic and other
consolidated entities .................... 7,836,362 7,357,640 46,089,010 33,426,738 24,799,698
--------------- --------------- --------------- --------------- ----------------
Net loss................................... (7,886,071) (7,964,918) (26,915,178) (19,985,085) (19,807,287)
Preferred stock dividend .................. -- 626,400 1,329,007 959,646 1,006,285
--------------- --------------- --------------- --------------- ----------------
Net loss attributable to common
stockholders.............................. $ (7,886,071) $ (8,591,318) $(28,244,185) $(20,944,731) $(20,813,572)
=============== =============== =============== =============== ================
Net loss per common share.................. $ (0.85) $ (0.86) $ (3.07) $ (2.42) $ (1.90)
=============== =============== =============== =============== ================
Weighted average common shares
outstanding............................... 9,266,445 9,272,166 9,103,505 8,522,067 10,943,287
</TABLE>
See notes to consolidated financial statements.
F-4
<PAGE>
ORION NETWORK SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
COMMON STOCK
-------------------------
CAPITAL IN TOTAL TOTAL
NUMBER OF EXCESS OF ACCUMULATED STOCKHOLDERS|AL
SHARES AMOUNT PAR VALUE DEFICIT EQUITY
------------- ----------- -------------- ---------------- ----------------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1992................. 6,405,732 $ 64,057 $28,608,812 $(14,194,557) $ 14,478,312
Issuance of common stock (Note 6)........... 178,097 1,781 1,804,564 -- 1,806,345
Exercise of stock options................... 165 2 998 -- 1,000
Net loss for 1993........................... -- -- -- (7,886,071) (7,886,071)
------------- ----------- -------------- ---------------- ----------------
Balance at December 31, 1993................. 6,583,994 65,840 30,414,374 (22,080,628) 8,399,586
Issuance of common stock.................... 782,503 7,825 6,326,028 -- 6,333,853
Exercise of stock options................... 31,967 319 208,131 -- 208,450
Conversion of common stock to redeemable
preferred stock (Note 6)................... (352,941) (3,529) (2,996,471) -- (3,000,000)
Accrued dividend on preferred stock......... -- -- -- (626,400) (626,400)
Net loss for 1994........................... -- -- -- (7,964,918) (7,964,918)
------------- ----------- -------------- ---------------- ----------------
Balance at December 31, 1994................. 7,045,523 70,455 33,952,062 (30,671,946) 3,350,571
Issuance of common stock.................... 4,002,941 40,030 50,960,330 -- 51,000,360
Exercise of stock options and warrants...... 67,501 675 573,221 -- 573,896
Accrued dividend on preferred stock......... -- -- -- (1,329,007) (1,329,007)
Net loss for 1995........................... -- -- -- (26,915,178) (26,915,178)
------------- ----------- -------------- ---------------- ----------------
Balance at December 31, 1995................. 11,115,965 111,160 85,485,613 (58,916,131) 26,680,642
Conversion of preferred to common........... 91,071 910 804,034 -- 804,944
Exercise of stock options and warrants...... 25,497 255 219,126 -- 219,381
Accrued dividend on preferred stock......... -- -- -- (1,006,285) (1,006,285)
Net loss for the nine months ended September
30, 1996................................... -- -- -- (19,807,287) (19,807,287)
------------- ----------- -------------- ---------------- ---------------
Balance at September 30, 1996 (unaudited) .. 11,232,533 $112,325 $86,508,773 $(79,729,703) $ 6,891,395
============= =========== ============== ================ ================
</TABLE>
See notes to consolidated financial statements.
F-5
<PAGE>
ORION NETWORK SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
-------------------------------------------- ---------------------------
1993 1994 1995 1995 1996
------------- ------------- ---------------- --------------- ---------------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES
Net loss............................................ $ (7,886,071) $ (7,964,918) $(26,915,178) $(19,985,085) $(19,807,287)
Adjustments to reconcile net loss to net cash
used in operating activities: ......................
Depreciation and amortization...................... 1,798,526 1,713,117 31,403,376 22,276,632 26,402,947
Amortization of deferred financing costs........... -- -- 2,130,588 1,597,941 1,597,941
Provision for bad debts............................ -- -- 277,529 671,226 524,999
Satellite incentives and accrued interest.......... -- -- 5,185,834 6,463,771 1,747,334
Limited Partners' interest in Orion Atlantic....... (7,843,860) (7,390,331) (46,109,627) (33,454,227) (24,800,306)
Minority interest in other consolidated
entities.......................................... 7,496 37,627 20,617 27,489 608
Gain on sale of assets............................. (50,278) (54,737) (59,301) (45,616) (41,054)
Changes in operating assets and liabilities: ......
Accounts receivable............................... 63,075 (426,281) (4,915,257) (1,921,320) (1,143,969)
Accrued interest.................................. -- -- (129,810) -- (27,315)
Prepaid expenses and other current assets......... 197,025 159,030 (3,017,782) (4,261,808) (2,416,138)
Other assets...................................... (279,902) 321,443 (519,773) (1,618,912) 427,741
Accounts payable and accrued liabilities.......... 3,125,830 535,092 7,327,377 745,518 (5,818,070)
Other current liabilities......................... -- -- 3,670,988 977,374 3,279,274
Interest payable.................................. -- -- (885,106) (1,883,773) (4,876,714)
------------- ------------- ---------------- --------------- ---------------
Net cash used in operating activities............... (10,868,159) (13,069,958) (32,535,525) (30,410,790) (24,950,009)
INVESTING ACTIVITIES
Capital expenditures................................ (44,130,325) (51,103,006) (9,060,412) (3,863,019) (10,266,012)
Cost of business acquisition........................ (2,721) -- -- -- --
Refund from satellite manufacturer.................. -- -- 2,750,000 2,750,000 --
FCC license costs................................... (93,545) (96,030) (558,817) (381,337) (117,600)
------------- ------------- ---------------- --------------- ---------------
Net cash used in investing activities............... (44,226,591) (51,199,036) (6,869,229) (1,494,356) (10,383,612)
FINANCING ACTIVITIES
Limited Partners' capital contributions............. -- 4,000,000 7,600,000 7,600,000 30,135,000
Redemption of limited partner interest.............. -- -- (4,450,000) -- --
Expenditures on equity financing costs.............. (31,773) (409,181) -- -- --
Proceeds from issuance of redeemable preferred
stock ............................................. -- 10,928,293 4,483,001 51,616,441 219,380
Proceeds from issuance of common stock and ........
subscriptions, net of issuance costs................ 1,807,345 6,542,303 51,974,436 4,483,001 --
PPU borrowings...................................... 1,400,000 4,375,000 2,275,000 2,275,000 --
Proceeds from issuance of notes payable............. 2,146,625 8,136,191 551,850 551,850 --
Proceeds from senior notes payable to banks ........ 45,604,063 36,685,505 18,367,134 18,367,134 --
Repayment of senior notes payable to banks ......... -- -- (12,468,049) (9,718,049) (22,768,340)
Repayment of notes payable.......................... (46,320) -- (1,916,966) (1,668,818) (2,328,096)
Payments on capital lease obligations............... -- (252,823) (576,727) (416,679) (559,266)
Capacity and other liabilities...................... -- 2,101,168 17,483,733 10,662,162 12,179,977
Distributions to joint venture minority
interest........................................... (49,073) (22,873) (25,904) (25,904) --
------------- ------------- ---------------- --------------- ---------------
Net cash provided by financing activities .......... 50,830,867 72,083,583 83,297,508 83,726,138 16,878,655
------------- ------------- ---------------- --------------- ---------------
Net increase (decrease) in cash and cash
equivalents........................................ (4,263,883) 7,814,589 43,892,754 51,820,992 (18,454,966)
Cash and cash equivalents at beginning of
period............................................. 7,668,125 3,404,242 11,218,831 11,218,831 55,111,585
------------- ------------- ---------------- --------------- ---------------
Cash and cash equivalents at end of period ......... $ 3,404,242 $ 11,218,831 $ 55,111,585 $ 63,039,823 $ 36,656,619
============= ============= ================ =============== ===============
</TABLE>
See notes to consolidated financial statements.
F-6
<PAGE>
ORION NETWORK SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(INFORMATION WITH RESPECT TO SEPTEMBER 30, 1996 AND FOR
THE NINE MONTHS ENDED SEPTEMBER 1995 AND 1996 IS UNAUDITED)
1. ORGANIZATION
Orion Network Systems, Inc. (Orion) was incorporated in the State of Delaware
on October 26, 1982 (inception) under the name Orion Satellite Corporation, and
in January 1988, changed its name to Orion Network Systems, Inc. Orion has
developed and operates an international satellite communications system for use
in private communications networks to multinational businesses and transmission
capacity for video and other program distribution services. Orion's first
satellite (Orion 1) was successfully launched on November 29, 1994. Orion took
delivery of the Orion 1 satellite on January 20, 1995. As a result, Orion is no
longer considered a development stage enterprise effective January 1995. For
periods prior to January 1995, Orion was in the development stage.
Since 1989, management has been involved primarily in developing Orion's
partnership, International Private Satellite Partners, L.P. (Orion Atlantic), in
order to raise the necessary capital to finance the construction and launch of
up to two telecommunications satellites in geosynchronous orbit over the
Atlantic Ocean and to establish a multinational sales and service organization.
Orion has been financed by equity and debt from individual and corporate
investors. British Aerospace PLC or its affiliates (BAe) and Lockheed Martin
Corporation or its affiliates (Lockheed Martin) are stockholders of Orion,
limited partners in Orion Atlantic and were significant contractors in the
construction and launch of the satellite system.
In June 1991, Orion, through a wholly-owned subsidiary, Orion Satellite
Corporation (OrionSat), received a license from the Federal Communications
Commission (FCC) authorizing it to construct, launch and operate a satellite
system comprised of two satellites to provide international telecommunications
services. Pursuant to an application by OrionSat, the license was transferred to
Orion Atlantic on April 19, 1994, by order of the FCC. In December 1991, the
initial phase of the partnership financing plan was concluded by a closing on
equity commitments in the form of limited partnership interests aggregating $90
million and execution of a credit agreement related to senior debt commitments
for up to $251 million (see further discussion in Note 3). Also in December
1991, notice to proceed with the construction contract for the first satellite
was given to BAe, the prime contractor.
OrionSat is the sole general partner in Orion Atlantic and received a 25%
equity interest as of the initial closing for, among other things, its
contribution of certain rights and interests under its FCC license, certain
contract rights, and other tangible and intangible assets. Orion participates as
a limited partner with a 16 2/3% equity interest and participates fully in the
obligations and rights of the limited partnership. The aggregate ownership
interest by Orion and its subsidiaries in Orion Atlantic is 41 2/3% (see Note
3).
In August 1995, the Company completed its initial public offering of common
stock by selling 4,000,000 common shares at $14 per share. Proceeds to the
Company, net of underwriting discount, aggregated approximately $52.25 million.
In July 1995, in connection with the planned initial public offering, the
shareholders approved a 1 for 1.36 reverse stock split. All references in the
consolidated financial statements with regard to shares, per share amounts and
share prices have been adjusted for the reverse stock split.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
CONSOLIDATION POLICY
The consolidated financial statements include the accounts of Orion, its two
wholly-owned subsidiaries OrionNet, Inc. (OrionNet) and OrionSat, its 83% owned
subsidiary, Asia Pacific Space and Communications Ltd. (Asia Pacific) (see Note
7), the Orion Financial Partnership, in which Orion holds a 50% interest, and
Orion Atlantic, in which Orion holds, at December 31, 1995, a 41 2/3% ownership
F-7
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES-(Continued)
interest. Management control and direction of Orion Atlantic by OrionSat is a
requirement of the FCC in order for Orion Atlantic to continue to hold the
license authority received in June 1991. OrionSat, as the general partner of
Orion Atlantic, exercises such control through the provisions of the partnership
agreement. The amount reflected in the balance sheet as "Limited Partners'
interest in Orion Atlantic" represents amounts invested by entities other than
Orion (net of syndication costs related to the investments) adjusted for those
Limited Partners' share of operating results. All significant intercompany
accounts and transactions have been eliminated.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the amounts reported in the financial statements and accompanying notes.
Actual results could differ from those estimates.
CASH AND CASH EQUIVALENTS
Orion considers all highly liquid investments with a maturity of three months
or less when purchased to be cash equivalents. Cash and cash equivalents
includes cash in banks and short term investments, as follows:
DECEMBER 31, 1995
------------------
Cash ................ $ 3,091,277
Money market funds . 6,018,925
FHLMC discount notes 11,389,208
Commercial paper ... 34,612,175
------------------
$55,111,585
==================
The FHLMC discount notes and commercial paper mature between January and
March 1996.
STATEMENT OF CASH FLOWS
Non-cash investing and financing activities and supplemental cash flow
information includes:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
---------------------------------------- --------------------------
1993 1994 1995 1995 1996
-------------- ------------ ------------ ------------- ------------
<S> <C> <C> <C> <C> <C>
Satellite construction costs financed by notes
payable........................................... $27,517,175 $ 7,862,050 $ -- $ -- $ --
Conversion of common stock to redeemable
preferred stock................................... -- 3,000,000 -- -- --
Property and equipment financed by capital leases -- 94,323 4,350,766 -- --
Accrued dividend on preferred stock............... -- 626,400 1,329,007 959,646 1,006,285
Conversion of preferred stock to common stock..... -- -- 9,000 -- 804,944
Premium on satellite due to redemption of L.P.
interest.......................................... -- -- 3,066,925 -- --
Redemption of STET interest with notes payable.... -- -- 8,000,000 -- --
Reduction in amount due to satellite manufacturer. -- -- 485,799 -- --
Satellite incentive obligation capitalized........ -- -- 14,816,406 -- --
Interest paid during the year, net of amounts
capitalized....................................... 37,983 45,051 11,312,875 10,857,800 11,436,301
</TABLE>
F-8
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES-(Continued)
NET LOSS PER COMMON SHARE
Net loss per common share is based on the weighted average number of common
shares outstanding during the period. Pursuant to the requirements of the
Securities and Exchange Commission, common stock issued and stock issuable
relating to convertible preferred stock, warrants and options granted within one
year of filing the registration statement relating to the Company's initial
public offering of common stock were treated as outstanding for all periods
prior to the second quarter of 1995.
INTERIM FINANCIAL STATEMENTS
The accompanying financial statements as of September 30, 1996 and for the
nine months ended September 30, 1995 and 1996 are unaudited but include all
adjustments, consisting only of normal recurring accruals, which Orion considers
necessary for a fair presentation of financial position and operating results
for those interim periods. The operating results for the nine months ended
September 30, 1996 are not necessarily indicative of the results that may be
expected for the year ended December 31, 1996.
PROPERTY AND EQUIPMENT
Property and equipment are carried at cost. Depreciation and amortization are
calculated using the straight-line method over their estimated useful lives as
follows:
Satellite and related equipment ..... 10.5 years
Telecommunications equipment ....... 2-7 years
Furniture and computer equipment ... 2-7 years
Costs incurred in connection with the construction and successful deployment
of the satellite and related equipment are capitalized. Such costs include
direct contract cost, allocated indirect costs, launch costs, launch insurance,
construction period interest and the present value of satellite incentive
payments, Orion began depreciating the satellite over its estimated useful life
commencing on the date of operational delivery in orbit (January 20, 1995).
In March 1995, the Financial Accounting Standards Board (FASB) issued
Statement No. 121, "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to Be Disposed Of", which requires impairment losses to be
recorded on long-lived assets used in operations when indicators of impairment
are present and the undiscounted cash flows estimated to be generated by those
assets are less than the assets' carrying amount. Statement No. 121 also
addresses the accounting for long-lived assets that are expected to be disposed
of. The effect of adoption was not material.
DEFERRED FINANCING COSTS
Deferred financing costs related to obtaining debt and Orion's share of
equity financing for Orion Atlantic are amortized over the period the debt is
expected to be outstanding. Accumulated amortization at September 30, 1996,
December 31, 1995 and 1994 was $8,589,000, $6,990,000 and $4,860,000
respectively. Amortization through January 1995 was capitalized as part of the
cost of the satellite. Costs of approximately $3.4 million relating to a debt
offering which was postponed in November 1995 have been charged to other
expense.
OTHER ASSETS
Other assets consist principally of FCC license application costs,
organization costs and goodwill. The Company began amortizing FCC license
application costs related to Orion 1 in January 1995 and will continue to
amortize these costs over the estimated useful life of the satellite.
Organization costs and goodwill are amortized over five and ten years
respectively. Accumulated amortization at September 30, 1996, December 31, 1995
and 1994 was $3,535,000, $3,069,000 and $1,934,000, respectively.
F-9
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES-(Continued)
REVENUE RECOGNITION
Orion's revenue results from providing telecommunications and related
services. Revenue is recognized as earned in the period in which services are
provided.
The following summarizes the Company's domestic and foreign revenues for
1995:
Revenues from unaffiliated customers
United States...................... $ 8,528,736
Europe............................. 8,056,146
Revenues from related parties ....... 5,699,000
-------------
Total services revenue............... $22,283,882
=============
INTEREST RATE MODIFICATION AGREEMENTS
Orion may, from time to time, enter into interest-rate swap and cap
agreements to modify the interest characteristics of its outstanding debt from a
floating to a fixed-rate basis. These agreements involve the receipt of floating
rate amounts in an exchange for fixed-rate interest payments over the life of
the agreement without an exchange of the underlying principal amount. The
differential to be paid or received is accrued as interest rates change and
recognized as an adjustment to interest expense related to the debt. The related
amount payable to or receivable from counterparties is included in interest
payable. The fair values of the swap agreements are not recognized in the
financial statements. (See Notes 5 and 8)
INCOME TAXES
The Company adopted the provisions of FASB Statement No. 109, "Accounting for
Income Taxes" effective January 1, 1993, and as a result, uses the liability
method of accounting for income taxes. There was no cumulative effect to this
accounting charge. Under this method, deferred tax assets and liabilities are
determined based on differences between financial reporting and tax bases of
assets and liabilities and are measured using the enacted tax rates and laws
that will be in effect when the differences are expected to reverse.
F-10
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES-(Continued)
Following is a summary of the components of the net deferred tax asset at
December 31, 1995 and 1994 (in thousands):
Tax benefit of temporary differences:
DECEMBER 31,
-----------------------
1994 1995
----------- -----------
Net operating loss carryforwards $ 12,480 $ 19,463
Orion Atlantic losses ........... (2,040) 1,237
Other ........................... 830 1,056
----------- -----------
Total ........................... 11,270 21,756
Valuation allowance ............. (11,270) (21,756)
----------- -----------
Net deferred tax asset .......... $ -- $ --
=========== ===========
At December 31, 1995, Orion has approximately $51,219,000 in net operating
loss carryforwards which expire at varying dates from 2004 through 2010. The use
of these loss carryforwards may be limited under the Internal Revenue Code as a
result of ownership changes experienced by Orion. Due to uncertainty regarding
its ability to realize the benefits of such net operating loss carryforwards,
the Company has established a valuation allowance for the full amount of its net
operating loss carryforwards.
RECLASSIFICATIONS
Certain prior year amounts have been reclassified to conform to the current
year presentation.
3. ORION ATLANTIC
Orion Atlantic is a Delaware limited partnership formed to provide
international private communications networks and basic transponder capacity and
capacity services (including ancillary ground services) to businesses and
institutions with trans-Atlantic and intra-European needs. The business was
organized by OrionSat, the general partner of Orion Atlantic. The principal
purposes of Orion Atlantic are to finance the construction, launch and operation
of up to two telecommunications satellites in geosynchronous orbit over the
Atlantic Ocean and to establish a multinational sales and service organization.
OrionSat was granted final authority by the FCC on June 27, 1991 to construct,
launch and operate an international communications satellite system, including
two orbital slots at 37.5' W.L. and 47' W.L. OrionSat, the general partner
of Orion Atlantic, entered into an agreement with Orion Atlantic and its limited
partners on December 20, 1991, to convey the FCC license to Orion Atlantic.
OrionSat filed an application to transfer the satellite authorization to Orion
Atlantic in December 1992; the transfer was granted by the FCC on April 19,
1994. Effective January 20, 1995, Orion Atlantic is no longer considered a
development stage enterprise. For periods prior to January 1995, Orion Atlantic
was considered a development stage enterprise.
Eight international corporations, including Orion, invested a total of $90
million in equity as limited partners in Orion Atlantic. Orion Atlantic also has
a credit facility which provided up to $251 million for the first satellite from
a syndicate of major international banks led by Chase Manhattan Bank, N.A. In
addition to their equity investments, the Limited Partners have agreed to lease
capacity on the satellites up to an aggregate $155 million and have entered into
additional contingent capacity lease contracts ("contingent call") up to an
aggregate $271 million, as support for repayment of the senior debt. The firm
capacity leases and contingent calls are payable over a seven-year period after
the first satellite is placed in service. In July 1995, January and July 1996
the Limited Partners (excluding the Company) paid $7.6 million, $18.0 million
and $12.1 million, respectively, pursuant to these contingent calls.
F-11
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
3. ORION ATLANTIC-(Continued)
Satellite Construction Contract -- In December 1991, the contract for
construction, launch services, and launch and commissioning insurance for two
communications satellites went into effect with OrionSat's rights and
obligations under the contract being assigned to Orion Atlantic. During 1993,
Orion Atlantic terminated its commitment to purchase the second satellite and,
as a result, incurred a $5 million termination charge. Such amount is included
in other income (expense) in the accompanying Statements of Operations. The
satellite was constructed by MMS Space Systems, Limited ("MMS Space Systems").
The fixed base price of the total contract, excluding obligations relating to
satellite performance, aggregated $227 million and has been fully paid at
December 31, 1995. In addition to the fixed base price, the contract requires
payments to be made, in lieu of a further contract price increase, aggregating
approximately $44 million through 2006. Such payments are due, generally, if 24
out of 34 satellite transponders are operating satisfactorily. Shortly after
acceptance of the satellite in January 1995, the Company filed a warranty claim
with the satellite manufacturer relating to one transponder that did not appear
to be performing in accordance with contract specifications. In August 1995,
Orion Atlantic received a one time refund of $2.75 million which was applied as
a mandatory prepayment to the senior notes payable -- banks (See Note 5).
The Company believes that since Orion 1 is properly deployed and operational,
based upon industry data and experience, payment of the obligation mentioned
above is highly probable and the Company has capitalized the present value of
this obligation of approximately $14.8 million as part of the cost of the
satellite. Payment of amounts due under this obligation are delayed until
payment is permitted under the senior notes payable -- banks (See Note 5). The
present value was estimated by discounting the obligation at 14% over the
expected term, assuming payment of the incentives begins upon expiration of the
senior notes payable -- banks in 2002.
Partnership and Limited Partners -- OrionSat has the primary responsibility
for the control, management and operations of Orion Atlantic. Under the
partnership agreement, the limited partners have rights of approval for a
limited number of matters, e.g., terms for acceptance of new partners,
significant budget modifications, and certain borrowings.
The financing and legal structure of Orion Atlantic restricts the use of
partnership resources to the purposes of constructing, launching and operating
the satellite system. Cash will be distributable by Orion Atlantic to the
partners in the future only after sufficient operating revenues have been
generated to pay satellite system operating costs and debt service. Orion and
OrionSat will share pro rata with the partners in $28 million of the first $100
million of cash available for distribution to the partners as a return of
capital. Thereafter, operating cash flow is distributable based on ownership
interests.
Condensed balance sheet information for Orion Atlantic at December 31, 1995
and 1994 follows:
1994 1995
--------------- ---------------
ASSETS
Current assets ........................... $ 5,664,469 $ 14,085,169
Property and equipment, net .............. 306,088,340 303,889,894
Deferred financing costs and other ....... 17,473,547 16,051,517
--------------- ---------------
Total assets.............................. $329,226,356 $334,026,580
=============== ===============
LIABILITIES AND PARTNERSHIP CAPITAL
Current liabilities....................... $ 27,024,035 $ 52,883,250
Long-term debt and other liabilities .... 234,909,566 284,110,104
Partnership capital subject to redemption 10,000,000 --
Partnership capital ...................... 57,292,755 1,533,226
Less: Orion Network Systems, Inc. note .. -- (4,500,000)
--------------- ---------------
Total liabilities and partnership capital $329,226,356 $334,026,580
=============== ===============
F-12
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
3. ORION ATLANTIC-(Continued)
Redemption of STET Partnership Interest; Issuance of New Interest to Orion.
- -- On November 21, 1995 Orion Atlantic redeemed the limited partnership interest
held by STET (the "STET Redemption"). Such redemption was for $11.5 million,
including $3.5 million of cash and $8.0 million in 12%, promissory notes due
through 1997. STET's firm and contingent capacity leases will remain in place
until released by the Banks under the Orion 1 Credit Facility. STET's existing
contractual arrangements with Orion Atlantic have been modified in a number of
respects, including (i) a reduction of approximately $3.5 million in amounts due
by Orion Atlantic to Telespazio S.p.A., an affiliate of STET, over a ten-year
period under contracts relating to the construction of Orion 2, back-up
tracking, telemetry and command services through a facility in Italy and
engineering consulting services, (ii) the establishment of ground operations and
distribution agreements between Orion Atlantic and Telecom Italia, a subsidiary
of STET, relating to Italy, and the granting to Telecom Italia of exclusive
marketing rights relating to Italy for a period ending December 1998 conditioned
upon Telecom Italia achieving certain sales quotas, and (iii) canceling
exclusive ground operations and sales representation agreements between Orion
Atlantic and STET (or its affiliates) relating to Eastern Europe.
Orion Atlantic funded the STET Redemption by selling a new limited
partnership interest to Orion for $8 million (including $3.5 million in cash and
$4.5 million in 12% promissory notes due through 1997). In connection with the
STET redemption, Orion agreed to indemnify Telecom Italia for payments which
were made in July 1995 of $950,000 and which would be made in the future under
its firm and contingent capacity agreements with Orion Atlantic and posted a $10
million letter of credit to support such indemnity. The Company has accounted
for this transaction as an acquisition of a minority interest and, as a result,
approximately $3.1 million has been allocated to the cost of the satellite and
related equipment.
Other Transactions Involving Limited Partners -- Certain Limited Partners
were also subcontractors under the satellite construction contract. Orion
Atlantic also has contracted with Limited Partners or their affiliates for
certain consulting, post-launch support services and other services related to
developing the business. Approximately $5.0 million has been incurred under
these agreements, all of which was capitalized.
During 1995, Orion Atlantic entered into agreements with certain Limited
Partners (including the Company) under which the participating Limited Partners
would voluntarily give up their rights to receive capacity under their firm
capacity agreements through January 1996. The participating Limited Partners
would continue to make payments for such capacity but would have the right to
receive refunds from Orion Atlantic out of cash available after operating costs
and payments under the Credit Facility. Through December 31, 1995, Orion
Atlantic has received $14.1 million (excluding payments from the Company) under
the firm capacity agreements subject to refund, which amount is included in the
balance sheet caption "Other liabilities." In addition, services revenue
included $5.7 million in 1995 from Limited Partners pursuant to the firm
capacity commitments, not subject to refund.
4. COMMITMENTS AND CONTINGENCIES
Obligations with Respect to Orion Atlantic -- Orion presently has certain
significant obligations to Orion Atlantic and the Limited Partners, including
commitments under satellite capacity agreements between Orion and Orion
Atlantic, under which Orion will be liable to pay Orion Atlantic approximately
$2.5 million per year for seven years for satellite capacity and is contingently
liable for up to an additional $4.3 million per year for up to seven years if
Orion Atlantic experiences cash flow deficits commencing when Orion Atlantic's
first satellite begins commercial operations; and reimbursement (jointly and
severally with OrionSat) with respect to a $10 million letter of credit provided
by OrionSat to a limited partner, which is secured by 259,515 shares of Orion's
common stock held in treasury and cash distributions that Orion and OrionSat may
receive with respect to their partnership interests in Orion Atlantic.
F-13
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
4. COMMITMENTS AND CONTINGENCIES-(Continued)
Orion 1 satellite -- In November 1995, a portion of the Orion 1 satellite
experienced an anomaly that resulted in a temporary service interruption,
lasting approximately two hours, in the dedicated capacity serving the European
portion of Orion Atlantic's services. The nine affected transponders account for
a majority of Orion Atlantic's present revenues. Full service to all affected
customers was restored using redundant equipment on the satellite. Orion
Atlantic believes, based on the data and the Telesat Report (issued by Telesat
Canada, independent engineering consultants dated November 14, 1995), that,
because the redundant component is functioning fully in accordance with
specifications and the performance record of similar components is strong, the
anomalous behavior is unlikely to affect the expected performance of the
satellite over its useful life. Furthermore, there has been no effect on Orion
Atlantic's ability to provide services to customers. However, in the event that
the currently operating component fails, Orion 1 would experience a significant
loss of usable capacity. In such event, while Orion Atlantic would be entitled
to insurance proceeds of approximately $50 million and could lease replacement
capacity and function as a reseller with respect to such capacity (at reduced
levels of profitability), the loss of capacity would have a material adverse
effect on Orion and on Orion Atlantic.
Orion 2 satellite -- In connection with the proposed financing of Orion 2, a
subsidiary of Orion Atlantic entered into a satellite construction contract for
Orion 2 with MMS Space Systems, subject to completion of proposed financing.
Depending upon the timing and terms and conditions of the financing for Orion 2
and the then satellite design, the Company may seek to renew this satellite
contract with MMS Space Systems. There can be no assurance that the terms of a
new satellite contract will resemble those of the satellite contract with MMS
Space Systems. The Company expects to use Orion Atlantic's Tracking, Telemetry
and Control (TT&C) facility to control Orion 2 (although authorizations will be
needed).
Eutelsat Lease -- In January 1993, Orion Atlantic entered into a lease, which
expired in December 1994, with one of its limited partners under which Orion
Atlantic leased one-half of a transponder on a EUTELSAT satellite for use in
providing private network services prior to the operational delivery of Orion 1.
The lease required quarterly payments of $481,000 of which $855,000 was deferred
by the limited partner until March 1995. Rent under this lease totaled $1.9
million in 1994 and $1.8 million in 1993.
Litigation -- In October 1995, Skydata Corporation ("Skydata"), a former
contractor, filed suit against Orion Atlantic, Orion Satellite Corporation and
Orion, in the United States District Court for the Middle District of Florida,
claiming that certain Orion Atlantic operations using frame relay switches
infringe a Skydata patent. Skydata's suit sought damages in excess of $10
million and asked that any damages assessed be trebled. On December 11, 1995,
the Orion parties filed a motion to dismiss the lawsuit on the grounds of lack
of jurisdiction and violation of a mandatory arbitration agreement. In addition,
on December 19, 1995, the Orion parties filed a Demand for Arbitration against
Skydata with the American Arbitration Association in Atlanta, Georgia,
requesting damages in excess of $100,000 for breach of contract and
declarations, among other things, that Orion and Orion Atlantic own a
royalty-free license to the patent, that the patent is invalid and unenforceable
and that Orion and Orion Atlantic have not infringed on the patent. See Note 11.
While Orion is party to regulatory proceedings incident to the business of
Orion, there are no other material legal proceedings pending or, to the
knowledge of management, threatened against Orion or its subsidiaries.
Other -- Orion has entered into operating leases, principally for office
space. Rent expense was $735,000, $668,000 and $661,000 during 1995, 1994, and
1993, respectively.
F-14
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
4. COMMITMENTS AND CONTINGENCIES-(Continued)
Future minimum lease payments are as follows:
1996... $ 774,357
1997... 793,716
1998... 887,138
1999 . 907,477
------------
$3,362,688
============
5. LONG-TERM DEBT
Long-term debt consists of the following:
DECEMBER 31,
-------------------------------
1994 1995
--------------- ---------------
Senior notes payable -- banks .... $224,584,097 $230,483,182
Note payable -- TT&C Facility .... 9,348,730 8,774,266
Satellite incentive obligation .... -- 20,002,240
Notes payable -- STET.............. -- 8,000,000
Notes payable -- Limited Partners . 5,775,000 8,050,000
Other.............................. 2,483,319 3,966,708
--------------- ---------------
Total long-term debt ............. 242,191,146 279,276,396
Less: current portion ............. 12,015,663 28,607,110
--------------- ---------------
Long-term debt less current
portion.......................... $230,175,483 $250,669,286
=============== ===============
Total interest (including commitment fees and amortization of deferred financing
costs) incurred for the years ended December 31, 1995, 1994 and 1993 was $26.0,
$27.0, and $16.3 million, respectively. Substantially all of the interest
incurred in 1994 and 1993 has been capitalized, while approximately $1.3 million
of interest was capitalized in 1995.
Aggregate annual maturities of long-term debt consist of the following (in
thousands):
1996........ $ 28,607
1997........ 34,917
1998........ 34,358
1999........ 46,853
2000........ 43,590
Thereafter . 90,951
----------
$279,276
==========
Senior Notes Payable to Banks -- In December 1991, OrionSat, on behalf of
Orion Atlantic, executed a credit agreement for up to $400 million of senior
debt from an international banking syndicate. Amounts advanced under the credit
facility are secured by the assets of Orion Atlantic and are due over seven
years in graduated installments beginning July 31, 1995. The credit agreement
prohibits the extension of credit by Orion Atlantic to any affiliate of the
partnership, as defined. Accordingly, Orion Atlantic may not loan or advance
funds to the Company or its affiliates. The credit agreement also restricts
distributions to the partners. At December 31, 1995, none of Orion Atlantic's
capital was available for distribution. The credit facility has a number of
other customary covenants and requirements, including the Banks' approval of
significant changes to the construction contract and increases in budgeted
costs. The Banks also have full recourse to OrionSat as general partner, and
Orion has pledged its investment in the common stock of OrionSat and its limited
partner ownership interest to the Banks.
F-15
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
5. LONG-TERM DEBT-(Continued)
Amounts outstanding under the credit facility bear interest at 1.75% over the
LIBOR (7.68% at December 31, 1995). Orion Atlantic has entered into agreements
with Chase Manhattan Bank, N.A. (Chase) for interest rate hedging arrangements
which fixed the maximum interest rate through November 1995 at 11.54%.
Thereafter a self funding interest rate cap agreement is in place relating to a
notional amount declining every six months from $150 million effective November
30, 1995 to $15.6 million effective March 31, 2001. Under the terms of the cap
agreement, when LIBOR equals or exceeds 5.5% Orion Atlantic pays Chase a fee
equal to 3.3% per annum of the notional amount and receives a payment from Chase
in an amount equal to the difference between the actual LIBOR rate and 5.5% on
the notional amount. There was an unrealized loss as of December 31, 1995 of
approximately $4.6 million relating to these arrangements. Commitment fees of
0.5% of the unused Credit Facility are payable semiannually.
Note Payable -- TT&C Facility -- Orion Atlantic entered into a financing
arrangement with General Electric Capital Corporation ("GECC") to finance the
Tracking Telemetry and Control (TT&C) Facility. The TT&C arrangement calls for a
note payable, the maximum amount of which is $11 million of which up to $8.9
million is for payment to Lockheed Martin under the Satellite Control System
Contract, with the remaining balance available to be drawn to finance the cost
of launch insurance required for the benefit of GECC. In June 1995, Orion
Atlantic accepted the TT&C Facility and Orion Atlantic refinanced $9.3 million
from GECC as a seven-year term loan, payable monthly. Orion Atlantic made a
mandatory prepayment of $1 million in January 1996. The interest rate is fixed
at a 13.5%.
The TT&C debt is secured by the TT&C Facility, the Satellite Control System
Contract and Orion Atlantic's leasehold interest in the TT&C Facility land. The
TT&C financing agreement contains similar representations, warranties and
covenants to those in the senior notes.
Satellite incentive obligation -- The obligations relating to satellite
performance (see Note 3) have been recorded at the present value (discounted at
14%, the Company's estimated incremental borrowing rate for unsecured financing)
of the required payments commencing at the maturity of the senior notes payable
to banks and continuing through 2006. Under the terms of the construction
contract, payment of the obligation is delayed until such time as payment is
permitted under the senior notes payable to banks.
Notes Payable -- STET -- In connection with the STET Redemption (see Note 3),
the Company issued STET $8 million of promissory notes which bear interest at
12% per annum. Payments are due as follows: $2.5 million plus accrued interest
on December 31, 1996; $3.5 million plus accrued interest on the earlier of
December 31, 1997 or the refinancing of the senior notes payable to banks; and
the remaining $2.0 million in monthly installments of $0.2 million plus accrued
interest beginning January 1997.
Notes Payable -- Limited Partners -- In 1993, Orion Atlantic received
commitments for Preferred Participation Units (PPUs) aggregating $9.5 million
from certain Limited Partners (including $1.5 million from Orion Network
Systems) for development of Orion Atlantic's network services business.
Holders of PPUs earn interest on aggregate amounts drawn at the rate of 30%
per annum, of which 6% is paid and the remainder accrued, but not paid until
July 1, 1995, at which time interest and principal payments due are subordinated
to operating requirements and senior notes debt service but are payable prior to
distributions to Limited Partners. Principal amounts drawn are payable on
February 1, 1999. Principal amounts may be prepaid without penalty on or after
January 1, 1996.
F-16
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
6. REDEEMABLE PREFERRED STOCK AND STOCKHOLDERS' EQUITY
The Company has authorized 1,000,000 shares of $0.01 par value preferred
stock.
Redeemable Preferred Stock
In June 1994, Orion issued 11,500 shares of Series A 8% Cumulative Redeemable
Convertible Preferred Stock at $1,000 per share and granted an option to
purchase an additional 3,833 shares of similar preferred stock at $1,000 per
share. Dividends on preferred stock accrue at 8% per year and are payable as and
when declared. Orion may redeem the preferred stock at the amount invested plus
accrued and unpaid dividends. Upon such a redemption, the preferred stockholders
would receive a warrant to acquire at $8.50 per share the number of shares of
common stock into which the preferred stock was convertible. The 11,500 shares
issued are convertible into 1,352,941 shares of common stock ($8.50 per share).
Upon conversion any accrued and unpaid dividends would be waived. Orion may
require conversion of the preferred stock beginning in June 1996 if certain
conditions are met.
The preferred stock has a liquidation preference equal to the amount invested
plus accrued and unpaid dividends. Preferred stockholders are entitled to vote
on an as-converted basis and have the right to put the stock to Orion upon a
merger, change of control or sale of substantially all assets at the greater of
liquidation value or fair value. The put expires upon the completion of a
qualified public equity offering, as defined. If the preferred stock is not
previously redeemed or converted to common stock, the preferred stockholders
also have the right to put the stock to Orion as follows: 33 1/3% beginning in
June 1999; 66 2/3% beginning in June 2000; and 100% beginning in June 2001.
After Orion issued preferred stock (along with warrants and options to make
an additional investment) in June 1994, the Directors and affiliates of
Directors who purchased common stock in December 1993 and the institutions and
other investors who purchased common stock in June 1994 each exercised its right
to receive preferred stock (along with warrants and options to make an
additional investment) in exchange for the common stock previously acquired and
Orion issued an aggregate of 3,000 shares of Series A Preferred Stock and
related options for 1,000 shares to such persons and entities, of which 9 shares
of preferred stock were converted into 1,058 shares of common stock. The
remaining 2,991 shares issued are convertible into 351,882 shares of common
stock and the preferred stock underlying the options are convertible into 98,039
shares of common stock.
In June 1995, certain Directors, affiliates of Directors, and certain holders
of Series A Preferred Stock purchased 4,483 shares of Series B Preferred Stock
for approximately $4.5 million. This purchase was pursuant to an option granted
in June 1995 to purchase $1 of preferred stock similar to the Series A Preferred
Stock for each $3 of Series A Preferred Stock purchased in June 1994, except
that such similar preferred stock would be convertible at any time with Common
Stock at a price within a range of $10.20 to $17.00 per share of common stock
based upon when the option is exercised. The Series B Preferred Stock has
rights, designations and preferences substantially similar to those of the
Series A Preferred Stock, and is subject to similar covenants, except that the
Series B Preferred Stock is convertible into 439,510 shares of Common Stock at
an initial price of $10.20 per share, subject to certain anti-dilution
adjustments, and purchases of Series B Preferred Stock did not result in the
purchaser receiving any rights to purchase additional preferred stock.
Stockholders' Equity
In December 1993, 178,097 shares of Common Stock were issued at $10.20 per
share to new and existing shareholders.
In May 1994, Orion issued 588,235 shares of common stock at $8.50 per share
to Space Systems Loral pursuant to a stock purchase agreement.
In May 1994, 19,424 shares of common stock were issued at $10.20 per share to
new and existing shareholders.
F-17
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
6. REDEEMABLE PREFERRED STOCK AND STOCKHOLDERS' EQUITY-(Continued)
In June 1994, Orion issued an aggregate of 174,844 shares of common stock to
a limited number of institutions and other investors at a purchase price of
$8.50 per share.
The December 1993 and June 1994 common stock purchases were subsequently
converted to redeemable preferred stock.
Stock Options -- In 1987, Orion adopted a stock option plan. Under this plan,
as amended, 1,470,588 shares of common stock are reserved for issuance upon
exercise of options granted. Shares of common stock may be purchased under this
plan at prices not less than the fair market value, as determined by the Board
of Directors, on the date the option is granted. The Board of Directors also has
granted nonqualified options to purchase 53,341 shares of common stock outside
the plan described at prices ranging from $5.44 to $12.24 per share.
Stock options outstanding at December 31:
<TABLE>
<CAPTION>
1993 1994 1995
--------------- ---------------- ----------------
<S> <C> <C> <C>
Range of exercise price ......... $5.44 - 15.00 $5.44 - 12.24 $5.44 - 12.24
--------------- ---------------- ----------------
Outstanding at beginning of year 555,581 871,464 804,056
Granted during year ............. 374,448 37,867 380,069
Exercised ....................... (165) (31,967) (60,928)
Canceled ........................ (58,400) (73,308) (151,728)
--------------- ---------------- ----------------
Outstanding at end of year ..... 871,464 804,056 971,469
=============== ================ ================
</TABLE>
In November 1993, options for 95,588 shares of common stock were granted to
key executives which may be exercised only upon the achievement of certain
business and financial objectives. In 1995 and 1994, these executives earned the
right to exercise 11,029 and 29,410 of these options based on the achievement of
such objectives.
The options vest annually over a one to five-year period. All options are
exercisable up to seven years from the date of grant. There are approximately
499,119 shares available to be granted under the plan. As of December 31, 1995,
356,226 qualified and nonqualified options were exercisable.
Stock Warrants -- Orion issued stock warrants to a financial advisor in 1991
entitling the financial advisor to purchase 43,049 shares of common stock at a
price of $11.56 a share. Also, in 1991, as an inducement to Chase to provide
partnership bridge equity if required, Orion issued stock warrants entitling
Chase to purchase up to 73,529 shares of common stock at $11.56 per share. These
warrants expire in 1996.
Finally, as an inducement to two limited partners to incur satellite capacity
obligations required by the senior debt lender, Orion issued warrants for the
purchase of an aggregate 129,757 shares of common stock at $11.56 per share.
These warrants expire in 1996. See Note 11.
Warrants have been issued, in conjunction with loans to Orion by certain
stockholders and members of executive management (since repaid or converted to
common stock), to acquire 483,823 shares of Orion's common stock at $11.56 to
$12.92 per share through 1997. The exercise price of these warrants was equal to
or above the fair value of the stock at the time of issuance; accordingly, no
value was allocated to the warrants. Total warrants outstanding were 553,768 at
December 31, 1995 and 735,769 at December 31, 1994 and 1993.
The holders of preferred stock also hold warrants to purchase 1,704,824
shares of common stock at the conversion price of such preferred stock. These
warrants do not become exercisable unless Orion exercises its right to
repurchase the preferred stock at the liquidation value, plus accrued and unpaid
dividends.
F-18
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
6. REDEEMABLE PREFERRED STOCK AND STOCKHOLDERS' EQUITY-(Continued)
The Company has elected to continue to follow Accounting Principles Board
Opinion No. 25, "Accounting for Stock Issued to Employees" (APB 25) and related
Interpretations in accounting for its employee stock based award programs,
because the alternative fair value accounting provided for under FASB Statement
No. 123, "Accounting for Stock Based Compensation" which is effective for awards
after January 1, 1996 requires use of option valuation models that were not
developed for use in valuing employee stock options. Under APB 25, when the
exercise price of the employee award equals the market price of the underlying
stock on the date of grant, as has been the case historically with the Company's
awards, no compensation expense is recognized.
7. INVESTMENT IN ASIA PACIFIC
In January 1990, Orion entered into an arrangement with Asia Pacific whereby
each company exchanged into escrow common shares having a market value of
$500,000. In this exchange, Orion received 250,000 shares of Asia Pacific common
stock representing at that time an 11% ownership interest, for which it issued
51,061 shares of common stock at a value of $9.79 per share to Asia Pacific. The
assigned value of the Asia Pacific shares received of $500,000 was recorded as a
reduction to stockholders' equity. In 1992, the Board of Directors of Orion
authorized the acquisition of up to 100% of Asia Pacific's outstanding common
stock. As a result of this new agreement, the January 1990 transaction was
rescinded and the shares held in escrow were returned to the respective
companies. The acquisition of an 83% interest in Asia Pacific was finalized and
executed in December 1992, resulting in the exchange of 289,147 shares of
Orion's common stock for 2,089,392 shares of Asia Pacific common stock. The
acquisition was accounted for as a purchase.
Asia Pacific is a development stage enterprise.
8. FAIR VALUES OF FINANCIAL INSTRUMENTS
Other than amounts due under the senior notes payable to banks, Orion
believes that the carrying amount reported in the balance sheet of its other
financial assets and liabilities approximates their fair value. The fair value
of Orion Atlantic's senior notes payable to banks at December 31, 1995 is
estimated to be $235.1 million based on the principal balance outstanding, net
of the estimated fair value of the interest rate modification agreement, which
approximates an implicit loss of $4.6 million. Credit risk exists if the
counterparty is not able to make the required payments to Orion under these
agreements. Orion believes the risk to be remote.
F-19
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
9. CONDENSED FINANCIAL INFORMATION OF ORION
As described in Notes 3 and 5, the net assets, credit facilities and other
resources of Orion Atlantic are restricted to the construction and operation of
the satellite system. Presented below are condensed balance sheets of Orion
(parent company only basis) at December 31, 1995 and 1994 and condensed
statements of operations and cash flows for the years ended December 31, 1995,
1994 and 1993. All material contingencies, obligations and guarantees of Orion
have been separately disclosed in the preceding notes to the financial
statements.
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------
1994 1995
-------------- ---------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents ........................ $ 6,201,941 $ 48,797,627
Receivable from Orion Atlantic ................... 2,071,547 1,217,169
Other current assets ............................. 215,985 611,391
-------------- ---------------
Total current assets............................. 8,489,473 50,626,187
Investment in and advances to subsidiaries:
OrionNet.......................................... 2,477,943 5,993,628
OrionSat.......................................... (2,793,608) (20,496,009)
Asia Pacific ..................................... 1,870,508 1,634,048
Orion Atlantic ................................... 7,800,544 10,585,573
Other assets....................................... 1,710,080 6,256,742
-------------- ---------------
Total assets....................................... $19,554,940 $ 54,600,169
============== ===============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities: ..............................
Notes and interest payable to Orion Atlantic ..... $ -- $ 2,482,667
Accounts payable and accrued liabilities.......... 860,191 2,361,291
-------------- ---------------
Total current liabilities........................ 860,191 4,843,958
Notes and interest payable to Orion Atlantic ...... -- 2,077,327
Other liabilities.................................. 789,485 640,542
Redeemable preferred stock......................... 14,554,693 20,357,701
Stockholders' equity............................... 3,350,571 26,680,642
-------------- ---------------
Total stockholders' equity......................... $19,554,940 $ 54,600,169
============== ===============
</TABLE>
CONDENSED STATEMENTS OF OPERATIONS OF ORION NETWORK SYSTEMS, INC.
<TABLE>
<CAPTION>
1993 1994 1995
--------------- --------------- ---------------
<S> <C> <C> <C>
Services revenue.................... $ -- $ -- $ --
Costs and expenses: ................
General and administrative.......... 2,855,646 2,487,201 4,204,011
Interest expense (income)........... 197,673 (243,152) (1,834,589)
--------------- --------------- ---------------
Total costs and expenses............ 3,053,319 2,244,049 2,369,422
Equity in net losses of
subsidiaries........................ 4,832,752 5,720,869 24,545,756
--------------- --------------- ---------------
Net loss............................ $(7,886,071) $(7,964,918) $(26,915,178)
=============== =============== ===============
</TABLE>
F-20
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
9. CONDENSED FINANCIAL INFORMATION OF ORION-(Continued)
CONDENSED STATEMENTS OF CASH FLOWS OF ORION NETWORK SYSTEMS, INC.
<TABLE>
<CAPTION>
1993 1994 1995
--------------- --------------- --------------
<S> <C> <C> <C>
Net cash used in operations.......................... $(2,319,221) $(2,709,307) $(4,107,237)
Investing activities:
Advances to subsidiaries............................ (1,115,662) (2,973,264) (3,264,024)
Investment in Orion Atlantic........................ -- -- (5,400,000)
Capital expenditures................................ (106,835) (771,890) (597,698)
Acquisition of Asia Pacific......................... (2,721) -- --
--------------- --------------- --------------
(1,225,218) (3,745,154) (9,261,722)
Financing activities:
Proceeds from issuance of redeemable preferred stock -- 10,928,293 4,483,001
Proceeds from issuance of common stock............... 1,807,345 6,542,303 51,974,436
PPU funding.......................................... (280,000) (765,000) (455,000)
Proceeds from issuance of notes payable.............. 326,511 -- --
Repayment of notes payable........................... (46,318) (5,648,535) (37,792)
--------------- --------------- --------------
1,807,538 11,057,061 55,964,645
--------------- --------------- --------------
Net increase (decrease) in cash ..................... (1,736,901) 4,602,600 42,595,686
Cash and cash equivalents at beginning of year ..... 3,336,242 1,599,341 6,201,941
--------------- --------------- --------------
Cash and cash equivalents at end of year ............ $ 1,599,341 $ 6,201,941 $48,797,627
=============== =============== ==============
</TABLE>
Basis of presentation -- In these parent company-only condensed financial
statements, Orion's investment in subsidiaries is stated at cost less equity in
the losses of subsidiaries since date of inception or acquisition.
10. SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)
The following is a summary of the quarterly results of operations for the
years-ended December 31, 1995 and 1994:
<TABLE>
<CAPTION>
MARCH 31 JUNE 30 SEPTEMBER 30 DECEMBER 31
----------- ----------- --------------- -------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
1995
Revenues ................... $ 2,508 $ 5,238 $ 6,201 $ 8,336
Loss from operations........ (11,891) (12,038) (13,525) (9,377)
Loss before minority
interest................... (15,978) (18,248) (19,186) (19,592)
Net loss.................... (5,996) (6,991) (6,998) (6,930)
Net loss per share.......... (0.64) (0.75) (0.78) (0.67)
1994
Revenues ................... $ 616 $ 718 $ 896 $ 1,185
Loss from operations........ (3,211) (4,233) (3,651) (4,636)
Loss before minority
interest................... (3,190) (4,044) (3,638) (4,451)
Net loss.................... (1,786) (1,928) (2,217) (2,034)
Net loss per share.......... (0.19) (0.21) (0.24) (0.22)
</TABLE>
F-21
<PAGE>
ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
11. SUBSEQUENT EVENTS (UNAUDITED)
In July 1996, Orion entered into an Exchange Agreement (the "Exchange
Agreement") with the Limited Partners that hold 58 1/3% of the partnership
interests in Orion Atlantic. Pursuant to the Exchange Agreement, Orion will
acquire all of the interests held by the Limited Partners, as well as
approximately $38 million of Orion Atlantic indebtedness to Limited Partners in
exchange for a newly issued series of redeemable convertible preferred stock in
Orion and the release of certain credit support obligations of the Limited
Partners. The Exchange Agreement is conditioned upon a number of events
including, among other things, shareholder approval, the British Aerospace and
Matra Marconi Space debenture investments, the acquisition of the minority
interest of Asia Pacific held by British Aerospace, and the refinancing of the
Orion 1 Credit Facility, all as described below.
Orion intends to enter into an agreement with an affiliate of British
Aerospace to acquire their 17% outstanding minority interest in Asia Pacific for
approximately 86,000 shares of Orion Common Stock.
Orion has entered into a Memorandum of Agreement, effective December 6, 1996,
for procurement of Orion 2 spacecraft with Matra Marconi Space with an aggregate
contract value of $200.8 million, excluding launch insurance. On December 13,
1996, Orion entered into an Authorization to Proceed Agreement with Hughes Space
and Communications International for the procurement of Orion 3 spacecraft with
an aggregate contract value, subject to execution of a definitive agreement, of
$208 million, excluding launch insurance. Construction of Orion 3 commenced in
mid-December 1996.
The Company intends to file a Registration Statement with the Securities and
Exchange Commission pursuant to which the Company will offer to sell an
aggregate of $381 million of Units consisting of Senior Notes, due 2007 and
warrants to purchase common stock, and an aggregate of $219 million of Units
consisting of Senior Discount Notes due 2007 and warrants to purchase common
stock (the "Offering"). The proceeds from this offering are intended to be used
primarily to refinance the Orion 1 Credit Facility. Concurrently with the
Offering, British Aerospace and Matra Marconi Space have committed to purchase
$50 million and $10 million of convertible junior subordinated debentures,
respectively. Such debentures are expected to bear interest at 8.75% payable
semiannually in Orion common stock (valued at up to $14.00 per share) until
maturity in 2012. The Offering is conditioned on consummation of the Exchange,
repayment of the Orion 1 Credit Facility with proceeds of the Offering and the
British Aerospace and Matra Marconi Space debenture investments; the Exchange is
conditioned on, among other things, the Orion 2 Satellite Contract, which has
been entered into, and approval of the Orion stockholders, expected to occur
prior to the pricing of the Offering; and the British Aerospace debenture
investment is conditioned on Orion's acquisition of the remaining minority
interest in Asia Pacific, which has occurred or is in the process of occurring.
In November 1996, Orion entered into a contract with DACOM Corp. ("DACOM"), a
Korean communications company, under which DACOM will lease eight dedicated
transponders on Orion 3 for 13 years, in return for approximately $89 million,
which is payable over a period from December 1996 through six months following
the lease commencement date for the transponders (which is scheduled to occur by
January 1999). DACOM is to deposit funds with Orion in accordance with a
milestone schedule. It has the right to terminate the contract at any time prior
to March 31, 1997, upon which termination Orion would be entitled to retain all
deposited funds. Prior to launch, payments will be held in escrow and are
subject to refund pending the successful launch and commencement of commercial
operation of Orion 3. In November 1996, Orion granted an option to Dacom to
purchase 50,000 shares of common stock at a price of $14.00 per share. The
warrant is exercisable for a six-month period beginning six months after the
commencement date, as defined in the Joint Investment Agreement, and ending one
year after commencement date and will terminate at that time or at any time the
Joint Investment Agreement is terminated.
In January 1997, Orion issued an aggregate of approximately 86,500 shares of
Common Stock to British Aerospace, one of the Company's principal stockholders
which has a representative on the
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ORION NETWORK SYSTEMS, INC. -
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
11. SUBSEQUENT EVENTS (UNAUDITED)-(Continued)
Company's Board of Directors. Such issuance was pursuant to the exercise of a
warrant granted in December 1991 in connection with the formation of Orion
Atlantic.
Litigation. In connection with the Skydata suit discussed in Note 4, on March
5, 1996, the court granted the Company's motion to dismiss the lawsuit on the
basis that Skydata's claims are subject to arbitration. Skydata appealed the
dismissal to the United States Court of Appeals to the Federal Circuit. Skydata
also filed a counterclaim in the arbitration proceedings asserting a claim for
$2 million damages as a result of the conduct of Orion and its affiliates. On
May 15, 1996, the arbitrator granted the Orion parties' request for an initial
hearing on claims relating to the Orion parties' rights to the patent, including
the co-ownership claim and other contractual claims. This initial hearing was
scheduled to take place in November 1996. On November 9, 1996, Orion and Skydata
executed a letter to settle in full the pending litigation and arbitration. As
part of the settlement, the parties are to release all claims by either side
relating in any way to the patent and/or the pending litigation and arbitration.
In addition, Skydata is to grant Orion (and its affiliates) an unrestricted
paid-up license to make, have made, use or sell products or methods under the
patent and all other corresponding continuation and reissue patents. Orion is to
pay Skydata $437,000 over a period of two years as part of the settlement. The
parties are in the process of documenting the terms of the settlement in a
formal settlement agreement.
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<PAGE>
GLOSSARY
ORION, ITS PARTNERS AND CREDITORS:
Banks............................... A syndicate of international banks that
are parties to the Orion 1 Credit
Facility.
British Aerospace................... British Aerospace Public Limited Company,
one of the world's leading aerospace
organizations, and its affiliates,
including its subsidiary British Aerospace
Communications, Inc., a Limited Partner.
Kingston Satellite Services, a joint
venture between Kingston Communications
and British Aerospace, serves as sales
representative and ground operator for
Orion in the United Kingdom.
COM DEV............................ COM DEV Satellite Communications Limited,
a Limited Partner and a subsidiary of COM
DEV, Limited. COM DEV, Limited is also a
supplier of value-added satellite
communications services, products for
wireless personal communications and
satellite remote sensing data.
GECC............................... General Electric Capital Corporation, the
lender for the TT&C Financing.
Kingston Communications............ Kingston Communications International
Limited, a Limited Partner and a
subsidiary of Kingston Communications
(Hull) plc, the only municipally-owned
telephone company in the United Kingdom.
Kingston Satellite Services, a joint
venture between Kingston Communications
and British Aerospace, serves as sales
representative and ground operator for
Orion in the United Kingdom.
Limited Partners................... The limited partners in Orion Atlantic,
including British Aerospace
Communications, Inc., COM DEV, Kingston
Communications, Lockheed Martin CLS, MCN
Sat US, Inc. and Trans-Atlantic Satellite,
Inc.
Lockheed Martin.................... Lockheed Martin Corporation, a major
manufacturer of aerospace and military
equipment, and the ultimate parent company
of Lockheed Martin CLS, a Limited Partner
and the launch subcontractor under the
Orion 1 Satellite Contract. Lockheed
Martin CLS acquired the assets of General
Dynamics Commercial Launch Services
through a transfer of assets from Martin
Marietta Corporation, which in turn
acquired these and other assets (including
the Atlas family of launch vehicles) from
General Dynamics Corporation in 1994.
Lockheed Martin CLS................ Lockheed Martin Commercial Launch
Services, Inc., a Limited Partner and a
subsidiary of Martin Marietta
Technologies, Inc., a Lockheed Martin
company. Lockheed Martin CLS acquired the
assets of General Dynamics Commercial
Launch Services through a transfer of
assets from Martin Marietta Corporation,
which in turn acquired these and other
assets (including the Atlas family of
launch vehicles) from General Dynamics
Corporation in 1994. Lockheed Martin CLS
is a commercial launch services provider
and provided launch services to Orion as
the launch subcontractor under the Orion 1
Satellite Contract. Lockheed Martin CLS
became a Limited Partner by acquiring the
limited partnership interest of General
Dynamics CLS in the 1994 transaction
described above.
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Matra Hachette..................... Matra Hachette, an aerospace, defense,
industrial and media company and part of
the Lagardere Groupe of France, and the
parent company of MCN Sat US, Inc., a
Limited Partner. Matra Hachette is one of
the parent companies of Matra Marconi
Space which is the parent company of MMS
Space Systems, the prime contractor for
Orion 1, and the manufacturer under the
Orion 2 Satellite Contract.
Nissho Iwai Corp................... Nissho Iwai Corporation, is a trading
company in Japan, and the parent company
of Trans-Atlantic Satellite, Inc., a
Limited Partner.
Orion.............................. (1) the combined operations of Orion
Network Systems, Inc., a Delaware
corporation, and its subsidiaries
(collectively, the "Operating Company"),
prior to the date of the merger of a newly
formed subsidiary ("Merger Sub") of Orion
Newco Services, Inc., a recently formed
Delaware corporation ("Orion Newco"), into
the Operating Company (the "Merger") and
(2) Orion and its subsidiaries, including
the Operating Company, after the Merger.
Orion 1 Credit Facility............ A facility of up to $251 million of senior
debt provided to finance Orion 1, which
will be repaid with proceeds of the
Offering.
Orion Asia Pacific................. Asia Pacific Space and Communications,
Ltd., a Delaware corporation. Orion
acquired 83% of the stock of such company
in December 1992 and has acquired the
remaining 17%, which was held by British
Aerospace, in exchange for approximately
86,000 shares of Common Stock in the OAP
Acquisition.
Orion Atlantic..................... International Private Satellite Partners,
L.P., a Delaware limited partnership of
which OrionSat is the general partner,
which owns Orion 1.
OrionNet........................... OrionNet, Inc., a Delaware corporation and
wholly owned subsidiary of Orion.
OrionSat........................... Orion Satellite Corporation, a Delaware
corporation and wholly owned subsidiary of
Orion.
Partners........................... The partners in Orion Atlantic, consisting
of OrionSat, as the general partner, and
the Limited Partners (including Orion).
Partnership Agreement.............. The limited partnership agreement of Orion
Atlantic, which includes the terms and
conditions governing the partnership
arrangements among the Partners.
STET............................... STET-Societa Finanziaria Telefonica-per
Azioni is a former Limited Partner and the
parent company of Telecom Italia, the
Italian PTT.
STET Redemption.................... The redemption on November 21, 1995 by
Orion Atlantic of the limited partnership
interest held by STET and modification of
STET's previously existing contractual
arrangements with Orion Atlantic.
TT&C Financing..................... A facility of up to $11 million provided
by GECC for Orion's TT&C facility that was
converted to a seven-year term loan on
June 1, 1995 and which had an outstanding
balance of $7.2 million as of September
30, 1996.
SATELLITE CONSTRUCTION AND SATELLITE COMMUNICATIONS:
bandwidth.......................... The relative range of frequencies that can
be passed through a
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transmission medium without distortion.
The greater the bandwidth, the greater the
information carrying capacity. Bandwidth
is measured in Hertz.
C-band............................. Certain high frequency radio frequency
bands between 3,400 to 6,725 MHz used by
communications satellites.
constructive total loss............ If a satellite is completely destroyed or
incapable of operation (except for certain
failures due to circumstances beyond the
control of the manufacturer) during a
specified number of days after launch.
footprint.......................... Signal coverage area for a satellite.
Hertz.............................. The unit for measuring the frequency with
which an electromagnetic signal cycles
through the zero-value state between the
lowest and highest states. One Hertz
(abbreviated as Hz) equals one cycle per
second; kHz (kiloHertz) stands for
thousands of Hertz; MHz (megaHertz) stands
for millions of Hertz.
Hughes Space....................... Hughes Space and Communications
International, Inc., the manufacturer
under the Orion 3 Satellite Contract.
Hughes Space is a subsidiary of Hughes
Aircraft Company, which is a subsidiary of
General Motors Corporation.
Ku-band............................ Certain high frequency radio frequency
bands between 10,700 to 14,500 MHz
permitting the use of smaller antennae
than the older C-band technology.
Matra Marconi Space................ Matra Marconi Space UK Limited, the parent
company of MMS Space Systems and a
subsidiary of Matra Marconi Space NV, and
the manufacturer under the Orion 2
Satellite Contract. Matra Marconi Space NV
is owned by Matra Hachette (51 percent)
and General Electric Co. of Britain (49
percent).
Orion 1............................ The high-power Ku-band communications
satellite operated over the Atlantic Ocean
by Orion.
Orion 1 Satellite Contract......... The fixed price turnkey contract
originally entered into between British
Aerospace and Orion Atlantic for the
design, construction, launch and delivery
in orbit of Orion 1. British Aerospace
assigned its rights under the contract to
MMS Space Systems, which was subsequently
purchased by Matra Marconi Space NV and
renamed MMS Space Systems Limited. British
Aerospace remains liable to Orion for the
performance of the contract but
performance has been assigned to MMS Space
Systems and the Company understands that
MMS Space Systems and Matra Marconi Space
NV have fully indemnified British
Aerospace against liabilities thereunder.
Orion 2............................ The high-power Ku-band communications
satellite to be operated over the Atlantic
Ocean by Orion.
Orion 2 Satellite Contract......... The spacecraft purchase agreement between
Orion and Matra Marconi Space for
construction and launch of Orion 2.
Orion 3............................ The high-power Ku-band communications
satellite to be operated by Orion in the
Asia Pacific region.
Orion 3 Satellite Contract......... The spacecraft purchase agreement between
Orion Asia Pacific, a wholly owned
subsidiary of Orion, and Hughes Space for
construction and launch of Orion 3.
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Space Systems or MMS Space
Systems........................... MMS Space Systems Limited, a former
subsidiary of British Aerospace which was
sold to Matra Marconi Space NV, in 1994.
MMS Space Systems served as the prime
contractor under the Orion 1 Satellite
Contract.
transponder........................ The part of a satellite which is used for
the reception of communication signals
from, and the frequency conversion,
amplification and transmission of
communication signals to, earth.
TT&C Station....................... A satellite control system, which includes
a satellite control center and a tracking,
telemetry and command station complex at
Mt. Jackson, Virginia.
VSAT............................... Very small aperture terminal earth
stations that can be installed on rooftops
or elsewhere at customer locations, with
antennas as small as 0.8 meters but
ranging in sizes up to 2.4 meters in
diameter.
REGULATION AND COMPETITION:
Communications Act................. The U.S. Communications Act of 1934, as
amended.
EUTELSAT........................... European regional satellite facilities
consortium owned by approximately 40
European countries.
FCC................................ The United States Federal Communications
Commission.
INTELSAT........................... International Telecommunications Satellite
Organization, an international satellite
facilities consortium owned by
approximately 140 government and privately
owned telecommunications companies.
ITU................................ International Telecommunication Union, an
international body formed by treaty that
is responsible for coordinating and
registering orbital slots to satellites.
Orion 1 License.................... The license granted to Orion by the FCC to
construct, launch and operate Orion 1, at
designated orbital location 37.5' West
longitude over the Atlantic Ocean.
PanAmSat........................... PanAmSat Corporation, a publicly traded
U.S. company providing trans-Atlantic
satellite service and services to Latin
America, the Pacific Ocean region, and the
Indian Ocean region, using a satellite
system separate from INTELSAT.
PTT................................ Postal, telephone and telegraph
organization, ordinarily a
government-owned communications monopoly.
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[LOGO]
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses to be paid by the
Registrant in connection with the sale and distribution of the securities being
registered hereby, other than underwriting discounts and commissions. All
amounts are estimated except the Securities and Exchange Commission registration
fee and the National Association of Securities Dealers, Inc.
filing and listing fees.
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee ...... $ 181,818
National Association of Securities Dealers, Inc. filing
fee....................................................... $ 30,500
Blue sky fees and expenses (including fees of counsel) ... 12,500
Printing and engraving expenses........................... 350,000
Fees and expenses of counsel for the Company.............. 350,000
Accounting fees and expenses.............................. 200,000
Appraisal fees and expenses............................... 56,000
Transfer agent and registrar fees......................... 150,000
Miscellaneous............................................. 50,000
Total.................................................... $1,380,818
=============
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Orion. Orion's Certificate of Incorporation provides that its directors will
not be liable for monetary damages for breach of the directors' fiduciary duty
of care to the Company and its stockholders. This provision in the Certificate
of Incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under Delaware law. In accordance
with the requirements of Delaware law, as amended, the Certificate of
Incorporation provide that the Company=s directors would remain subject to
liability for monetary damages (i) for any breach of their duty of loyalty to
the corporation or its shareholders, (ii) for acts or omissions not in good
faith or involving intentional misconduct or knowing violation of law, (iii)
under Section 174 of the Delaware Code for approval of an unlawful dividend or
an unlawful stock purchase or redemption and (iv) for any transaction from which
the director derived an improper personal benefit. This provision also does not
affect a director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
Orion's Certificate of Incorporation also provides that, except as expressly
prohibited by law, Orion shall indemnify any person who was or is a party (or
threatened to be made a party) to any threatened, pending or completed action,
suit or proceeding by reason of the fact that such person is or was a director
or officer of Orion (or is or was serving at the request of Orion as a director
or officer of another enterprise), against expenses, liabilities and losses
(including attorney's fees), judgments, fines and amounts paid or to be paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and a manner
such person reasonably believed to be in or not opposed to the best interests of
Orion, and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. Such indemnification shall not
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to Orion unless (and only to the extent that)
the Delaware Court of Chancery or the court in which such action or suit was
brought determines that, in view of all circumstances of the case, such person
is fairly and reasonably entitled to indemnity.
Old ONSI. Old ONSI's Certificate of Incorporation provides that its directors
will not be liable for monetary damages for breach of the directors' fiduciary
duty of care to Old ONSI and its stockholders. This provision in the Certificate
of Incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under Delaware law. In accordance
with the requirements of Delaware law, as
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amended, the Certificate of Incorporation provide that Old ONSI's directors
would remain subject to liability for monetary damages (i) for any breach of
their duty of loyalty to the corporation or its shareholders, (ii) for acts or
omissions not in good faith or involving intentional misconduct or knowing
violation of law, (iii) under Section 174 of the Delaware Code for approval of
an unlawful dividend or an unlawful stock purchase or redemption and (iv) for
any transaction from which the director derived an improper personal benefit.
This provision also does not affect a director's responsibilities under any
other laws, such as the federal securities laws or state or federal
environmental laws.
Old ONSI's Certificate of Incorporation also provides that, except as
expressly prohibited by law, Old ONSI shall indemnify any person who was or is a
party (or threatened to be made a party) to any threatened, pending or completed
action, suit or proceeding by reason of the fact that such person is or was a
director or officer of Old ONSI (or is or was serving at the request of Old ONSI
as a director, officer, employee or agent of another enterprise), against
expenses, liabilities and losses (including attorney's fees), judgments, fines
and amounts paid or to be paid in settlement actually and reasonably incurred by
such person in connection with such action, suit or proceeding.
OrionSat. OrionSat's Certificate of Incorporation provides that its directors
will not be liable for monetary damages for breach of the directors' fiduciary
duty of care to OrionSat and its stockholders. This provision in the Certificate
of Incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under Delaware law. In accordance
with the requirements of Delaware law, as amended, the Certificate of
Incorporation provides that OrionSat's directors would remain subject to
liability for monetary damages (i) for any breach of their duty of loyalty to
the corporation or its shareholders, (ii) for acts or omissions not in good
faith or involving intentional misconduct or knowing violation of law, (iii)
under Section 174 of the Delaware Code for approval of an unlawful dividend or
an unlawful stock purchase or redemption and (iv) for any transaction from which
the director derived an improper personal benefit. This provision also does not
affect a director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
OrionSat's Bylaws provide that, except as expressly prohibited by law,
OrionSat shall indemnify any person who was or is a party (or threatened to be
made a party) to any threatened, pending or completed action, suit or proceeding
by reason of the fact that such person is or was a director, officer, employee
or agent of OrionSat (or is or was serving any other enterprise at the request
of OrionSat), against expenses, liabilities and losses (including attorney's
fees), judgments, fines and amounts paid or to be paid in settlement actually
and reasonably incurred by such person in connection with such action, suit or
proceeding.
OrionNet Finance Corporation. OrionNet Finance Corporation's Certificate of
Incorporation provides that its directors will not be liable for monetary
damages for breach of the directors' fiduciary duty of care to OrionNet Finance
Corporation and its stockholders. This provision in the Certificate of
Incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under Delaware law. In accordance
with the requirements of Delaware law, as amended, the Certificate of
Incorporation provides that OrionNet Finance Corporation's directors would
remain subject to liability for monetary damages (i) for any breach of their
duty of loyalty to the corporation or its shareholders, (ii) for acts or
omissions not in good faith or involving intentional misconduct or knowing
violation of law, (iii) under Section 174 of the Delaware Code for approval of
an unlawful dividend or an unlawful stock purchase or redemption and (iv) for
any transaction from which the director derived an improper personal benefit.
This provision also does not affect a director's responsibilities under any
other laws, such as the federal securities laws or state or federal
environmental laws.
OrionNet Finance Corporation's Bylaws provide that, except as expressly
prohibited by law, OrionNet Finance Corporation shall indemnify any person who
was or is a party (or threatened to be made a party) to any threatened, pending
or completed action, suit or proceeding by reason of the fact that such person
is or was a director, officer, employee or agent of OrionNet Finance Corporation
(or is or was serving any other enterprise at the request of OrionNet Finance
Corporation), against expenses,
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<PAGE>
liabilities and losses (including attorney's fees), judgments, fines and amounts
paid or to be paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding.
Asia Pacific Space and Communications, Ltd. ("APSC"). APSC's Certificate of
Incorporation provides that the personal liability of its directors shall be
eliminated to the fullest extent provided by Section 7 of Subsection (b) of
Section 102 of the Delaware Code. This paragraph allows for the elimination of
all personal liability, provided that liability shall not be eliminated or
limited (i) for any breach of their duty of loyalty to the corporation or its
shareholders, (ii) for acts or omissions not in good faith or involving
intentional misconduct or knowing violation of law, (iii) under Section 174 of
the Delaware Code for approval of an unlawful dividend or an unlawful stock
purchase or redemption and (iv) for any transaction from which the director
derived an improper personal benefit. This provision in the Certificate of
Incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under Delaware law. This provision
also does not affect a director's responsibilities under any other laws, such as
the federal securities laws or state or federal environmental laws.
APSC's Certificate of Incorporation also provides that APSC shall indemnify
its directors, officers, employees and agents to the fullest extent permitted by
Section 145 of the Delaware Code, as the same exists or may hereafter be
amended. Section 145 currently covers expenses, liabilities and losses
(including attorney's fees), judgments, fines and amounts paid or to be paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and a manner
such person reasonably believed to be in or not opposed to the best interests of
APSC, and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. Such indemnification shall not
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to APSC unless (and only to the extent that) the
Delaware Court of Chancery or the court in which such action or suit was brought
determines that, in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity.
Orion Asia Pacific. Orion Asia Pacific's Certificate of Incorporation
provides that its directors will not be liable for monetary damages for breach
of the directors' fiduciary duty of care to Orion Asia Pacific and its
stockholders. This provision in the Certificate of Incorporation does not
eliminate the duty of care, and in appropriate circumstances equitable remedies
such as an injunction or other forms of non-monetary relief would remain
available under Delaware law. In accordance with the requirements of Delaware
law, as amended, the Certificate of Incorporation provides that Orion Asia
Pacific=s directors would remain subject to liability for monetary damages (i)
for any breach of their duty of loyalty to the corporation or its shareholders,
(ii) for acts or omissions not in good faith or involving intentional misconduct
or knowing violation of law, (iii) under Section 174 of the Delaware Code for
approval of an unlawful dividend or an unlawful stock purchase or redemption and
(iv) for any transaction from which the director derived an improper personal
benefit. This provision also does not affect a director's responsibilities under
any other laws, such as the federal securities laws or state or federal
environmental laws.
Orion Asia Pacific's Bylaws provide that, except as expressly prohibited by
law, Orion Asia Pacific shall indemnify any person who was or is a party (or
threatened to be made a party) to any threatened, pending or completed action,
suit or proceeding by reason of the fact that such person is or was a director,
officer, employee or agent of Orion Asia Pacific (or is or was serving any other
enterprise at the request of Orion Asia Pacific), against expenses, liabilities
and losses (including attorney's fees), judgments, fines and amounts paid or to
be paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding.
OrionNet. OrionNet's Certificate of Incorporation provides that its directors
will not be liable for monetary damages for breach of the directors' fiduciary
duty of care to OrionNet and its stockholders. This provision in the Certificate
of Incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as an injunction or other forms of
non-monetary relief would
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<PAGE>
remain available under Delaware law. In accordance with the requirements of
Delaware law, as amended, the Certificate of Incorporation provides that
OrionNet's directors would remain subject to liability for monetary damages (i)
for any breach of their duty of loyalty to the corporation or its shareholders,
(ii) for acts or omissions not in good faith or involving intentional misconduct
or knowing violation of law, (iii) under Section 174 of the Delaware Code for
approval of an unlawful dividend or an unlawful stock purchase or redemption and
(iv) for any transaction from which the director derived an improper personal
benefit. This provision also does not affect a director's responsibilities under
any other laws, such as the federal securities laws or state or federal
environmental laws.
OrionNet's Bylaws provide that, except as expressly prohibited by law,
OrionNet shall indemnify any person who was or is a party (or threatened to be
made a party) to any threatened, pending or completed action, suit or proceeding
by reason of the fact that such person is or was a director, officer, employee
or agent of OrionNet (or is or was serving any other enterprise at the request
of OrionNet), against expenses, liabilities and losses (including attorney's
fees), judgments, fines and amounts paid or to be paid in settlement actually
and reasonably incurred by such person in connection with such action, suit or
proceeding.
Orion Atlantic Europe, Inc. Orion Atlantic Europe, Inc.'s Certificate of
Incorporation provides that its directors will not be liable for monetary
damages for breach of the directors' fiduciary duty of care to Orion Atlantic
Europe, Inc. and its stockholders. This provision in the Certificate of
Incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under Delaware law. In accordance
with the requirements of Delaware law, as amended, the Certificate of
Incorporation provides that Orion Atlantic Europe, Inc.'s directors would remain
subject to liability for monetary damages (i) for any breach of their duty of
loyalty to the corporation or its shareholders, (ii) for acts or omissions not
in good faith or involving intentional misconduct or knowing violation of law,
(iii) under Section 174 of the Delaware Code for approval of an unlawful
dividend or an unlawful stock purchase or redemption and (iv) for any
transaction from which the director derived an improper personal benefit. This
provision also does not affect a director's responsibilities under any other
laws, such as the federal securities laws or state or federal environmental
laws.
Orion Atlantic Europe, Inc.'s Certificate of Incorporation also provides
that, except as expressly prohibited by law, Orion Atlantic Europe, Inc. shall
indemnify any person who was or is a party (or threatened to be made a party) to
any threatened, pending or completed action, suit or proceeding by reason of the
fact that such person is or was a director or officer of Orion Atlantic Europe,
Inc. (or is or was serving at the request of Orion Atlantic Europe, Inc. as a
director or officer of another enterprise), against expenses, liabilities and
losses (including attorney's fees), judgments, fines and amounts paid or to be
paid in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding.
Section 145 of the Delaware Code empowers a corporation incorporated under
that statute to indemnify its directors, officers, employees and agents and its
former directors, officers, employees and agents and those who serve in such
capacities with another enterprise at its request against expenses, as well as
judgments, fines and settlements in nonderivative lawsuits, actually and
reasonably incurred by them in connection with the defense of any action, suit
or proceeding in which they or any of them were or are made parties or are
threatened to be made parties by reason of their serving or having served in
such capacity. The power to indemnify shall only exist where such officer,
director, employee or agent has acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation and, in the case of a criminal action, where such person had no
reasonable cause to believe his conduct was unlawful. However, in an action or
suit by or in the right of the corporation, unless a court shall determine to
the contrary, where such a person has been adjudged liable to the corporation,
the corporation shall have no power of indemnification. Indemnity is mandatory
to the extent a claim, issue or matter has been successfully defended.
Indemnification is not deemed exclusive of any other rights to which those
indemnified may be entitled, under any by-law, agreement, vote of stockholders
or otherwise. A Delaware corporation also has the power to purchase and maintain
insurance on behalf of the persons it has the power to indemnify, whether or not
indemnity against such liability would be allowed under the statute.
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International Private Satellite Partners, L.P. ("IPSP"). The Third Amended
and Restated Agreement of Limited Partnership of International Private Satellite
Partners, L.P. (the "IPSP Partnership Agreement") provides that neither the
general partner (OrionSat) nor any of its affiliates , nor any of their
respective partners, officers, directors, employees or agents, shall be liable
to IPSP or its limited partners for any losses sustained or liabilities incurred
as a result of any act or omission, so long as such conduct does not constitute
bad faith, fraud, gross negligence, willful misconduct or breach of any
fiduciary duty.
The IPSP Partnership Agreement also provides that, except as expressly
prohibited by law, IPSP shall indemnify OrionSat, its affiliates and their
respective partners, officers, directors, employees and agents from any and all
expenses, liabilities and losses (including attorney's fees), judgments, fines
and amounts paid or to be paid in settlement arising from any claims, demands,
actions, suits or proceedings, arising out of or incidental to the business or
activities relating to IPSP.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers and controlling persons of Orion pursuant to the foregoing provision or
otherwise, Orion has been advised that, in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Securities Act and therefore unenforceable. In the event that a claim for
indemnification against such liabilities is asserted by such person in
connection with the offering of the Securities (other than for the payment by
the corporation of expenses incurred or paid by a director, officer or
controlling person of the corporation in the successful defense of any action,
suit or proceeding), the either corporation will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question of whether such indemnification by it
is against public policy as expressed in the Securities Act and will be governed
by the final adjudication of the issue.
Orion has insurance policies which will insure directors and officers against
damages from actions and claims incurred in the course of their duties and will
insure the corporations against expenses incurred in defending lawsuits arising
from certain alleged acts of the directors and officers.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
During the past three years, Orion (which completed an initial public
offering in August 1995) issued the following unregistered securities, adjusted
to reflect a 1.00-for-1.36 reverse stock split effected in July 1995. No
underwriting discounts or commissions were paid in connection with any of such
transactions, although a fee of $250,000 was paid to Salomon Brothers Inc for
serving as a financial advisor to Orion in connection with Orion's 1994 private
placement. There was no public offering in such transactions, and the
transactions were exempt from the registration requirements of the Securities
Act by reason of Sections 4(2) and 3(b) thereof, and Regulation D promulgated
thereunder. In each instance, the shares of Common Stock, shares of Preferred
Stock or warrants of Orion were issued to a limited group of purchasers, each of
which had access to and/or was furnished information concerning Orion. The
purchasers acquired the securities for investment only and not with a view to
the distribution thereof, and each of the certificates representing the shares
of Common Stock and Preferred Stock of Orion issued to such purchasers was
stamped with a legend restricting the transfer of the shares of Common Stock and
Preferred Stock representing thereby.
Common Stock
In December 1993, Orion issued an aggregate of 178,097 shares of Common Stock
as part of a private placement of its Common Stock to certain of its Directors
and affiliates of those Directors at a purchase price of $10.20 per share. The
terms of such issuance permitted the purchasers to receive the benefit of any
lower price at which Common Stock subsequently was issued in the private
placement or to receive any other security subsequently issued in the private
placement. In June 1994, when Orion issued shares of Common Stock as part of the
private placement of its Common Stock to a limited number of institutions and
other investors (including 64,705 shares to affiliates of Directors) at a
purchase price of $8.50 per share, Orion issued 100,326 additional shares to the
Directors and affiliates of Directors who purchased Common Stock in December
1993. In addition, after Orion issued Series A
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Preferred Stock (along with warrants and options to make an additional
investment) to CIBC, Fleet and Chisholm in June 1994, the Directors and
affiliates of Directors who purchased Common Stock in December 1993 each
exercised his or its right to receive Series A Preferred Stock (along with
warrants and options to make an additional investment) in exchange for the
Common Stock previously acquired, and Orion issued an aggregate of $3,000,000 of
Series A Preferred Stock to such persons and entities.
In May 1994, Orion entered into an agreement with SS/L whereby SS/L agreed to
purchase 588,235 shares of Common Stock for an aggregate purchase price of
$5,000,000. The agreement with SS/L includes a possible sale, under certain
circumstances, of an additional 588,235 shares of Common Stock for an aggregate
purchase price of $5,000,000. SS/L has the right to require the Company to
repurchase the 588,235 shares from SS/L if Orion selects a company other than
SS/L as the prime contractor in a contract for construction of a satellite to
serve the Asia Pacific region. SS/L has the right, during the three year period
after the sale of the initial shares of Common Stock, to receive more shares of
Common Stock; under certain circumstances, if Orion issues Common Stock or a
security convertible into or exchangeable for Common Stock for a price of less
than $8.50 per share.
In June 1994, Orion issued an aggregate of 174,844 shares of Common Stock as
part of a private placement of its Common Stock to a limited number of
institutions and other investors at a purchase price of $8.50 per share. The
terms of such issuance permitted the purchasers to receive the benefit of any
lower price at which Common Stock subsequently was issued in the private
placement or to receive any other security subsequently issued in the private
placement. When Orion issued Series A Preferred Stock (along with warrants and
options to make an additional investment) to CIBC, Fleet and Chisholm in June
1994, the institutions and other investors who purchased Common Stock in June
1994 each exercised his, her or its right to receive Series A Preferred Stock
(along with warrants and options to make an additional investment) in exchange
for the Common Stock previously acquired, and Orion issued an aggregate of
$3,000,000 of Series A Preferred Stock to such persons and entities.
In March 1995 (but pursuant to a contract signed in January 1994) Orion
issued an aggregate of 2,941 shares of Common Stock to a recruiting firm as
compensation for work performed for Orion.
In January 1997, Orion issued an aggregate of approximately 86,500 shares of
Common Stock to British Aerospace, one of the Company's principal stockholders
which has a representative on the Company's Board of Directors. Such issuance
was pursuant to the exercise of a warrant granted in December 1991 in connection
with the formation of Orion Atlantic.
Orion has, from time to time, issued Common Stock upon conversion of Series A
and Series B Preferred Stock.
Preferred Stock
In June 1994, CIBC, Fleet and Chisholm purchased $11.5 million in Series A 8%
Cumulative Redeemable Convertible Preferred Stock, which shares are convertible
into shares of Common Stock at an exercise price of $8.50 per share. See
"Description of Capital Stock -- Preferred Stock." CIBC, Fleet, and Chisholm
also were granted the right to invest an additional $3.8 million in similar
preferred stock, except that such similar preferred stock would be convertible
at any time into Common Stock at a price within a range from $10.20 to $17.00
per share of Common Stock based upon when the option is exercised and certain
other factors. CIBC, Fleet, and Chisholm also were granted a contractual
"preemptive" right to purchase a pro rata portion of any equity securities sold
by Orion in the future on the same terms and conditions as sold to others,
subject to certain exceptions for securities sold or granted to employees,
certain small offerings, and existing rights to acquire equity securities. CIBC,
Fleet and Chisholm also were granted certain warrants (issued concurrently with
the Series A Preferred Stock) to purchase Common Stock at the conversion price
of such Series A Preferred Stock. These warrants do not become exercisable
unless Orion exercise its right to repurchase the Series A Preferred Stock at
the liquidation value (plus accrued and unpaid dividends). In connection with
the transaction, CIBC and Fleet each were granted the right to elect one member
of Orion's Board of Directors.
After Orion issued Series A Preferred Stock (along with warrants and options
to make an additional investment) to CIBC, Fleet and Chisholm in June 1994, the
Directors and affiliates of Directors who purchased Common Stock in December
1993 and the institutions and other investors who pur-
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chased Common Stock in June 1994 each exercised his, her or its right to receive
Series A Preferred Stock (along with warrants and options to make an additional
investment) in exchange for the Common Stock previously acquired and Orion
issued an aggregate of $3.0 million of Series A Preferred Stock to such persons
and entities.
In June 1995, CIBC and certain Directors and affiliates of Directors who
purchased Series A Preferred Stock in June 1994 purchased approximately $4.2
million in Series B Preferred Stock of Orion. This purchase was pursuant to an
option granted in June 1994 to purchase $1 of preferred stock similar to the
Series A Preferred Stock for each $3 of Series A Preferred Stock purchased in
June 1994, except that such similar preferred stock would be convertible at any
time into Common Stock at a price within a range from $10.20 to $17.00 per share
of Common Stock based upon when the option is exercised. The Series B Preferred
Stock has rights, designations and preferences substantially similar to those of
the Series A Preferred Stock discussed above, except that the Series B Preferred
Stock is convertible into Common Stock at an initial price of $10.20 per share,
subject to certain anti-dilution adjustments, and purchase of Series B Preferred
Stock did not result in the purchasers receiving any rights to purchase
additional preferred stock. The purchasers of the Series B Preferred Stock also
were granted certain warrants (issued concurrently with the Preferred Stock) to
purchase Common Stock at the conversion price of such Series B Preferred Stock.
These warrants do not become exercisable unless Orion exercises its right to
repurchase the Series B Preferred Stock at the liquidation value (plus accrued
and unpaid dividends).
Warrants
In May 1994, in connection with the sale of Common Stock to SS/L discussed
under "Common Stock" above, Orion granted an option to SS/L to purchase 588,235
shares of Common Stock at a price of $8.50 per share prior to January 1, 1995,
which option has expired.
In June 1994, in connection with the sale of Series A Preferred Stock
discussed under "Preferred Stock" above, Orion granted an option to the holders
of Series A Preferred Stock to invest an additional $4.8 million in similar
preferred stock (except that such similar preferred stock would be convertible
at any time into Common Stock at a price based upon when the option is exercised
within a range from $10.20 to $17.00 per share of Common Stock). The purchase of
Series B Preferred Stock in June 1995 represented an exercise of the right to
invest approximately $4.5 million of this amount. Orion also granted the holders
of Preferred Stock certain warrants to purchase Common Stock at the conversion
price of such Preferred Stock. These warrants do not become exercisable unless
Orion exercises its right to repurchase the Preferred Stock at the liquidation
value (plus accrued and unpaid dividends).
In December 1996, Orion issued an option to DACOM to purchase 50,000 shares
of Common Stock at a price of $14.00 per share. The warrant is exercisable for a
six (6) month period beginning six (6) months after the commencement date, as
defined in the Joint Investment Agreement, and ending one (1) year after the
commencement date and will terminate at that time or at any time the Joint
Investment Agreement between DACOM and Orion is terminated.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
EXHIBIT
NUMBER DESCRIPTION
- -------- -----------
1.1 Form of Underwriting Agreement
2.1 Agreement and Plan of Merger, dated January 8, 1997, by and among Orion
Network Systems, Inc., Orion Newco Services, Inc. and Orion Merger
Company, Inc. (Incorporated by reference to exhibit number 2.1 in
Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services,
Inc.) 3.1 Form of Restated Certificate of Incorporation of Orion Newco
Services, Inc. (Incorporated by reference to exhibit number 3.1 in
Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services,
Inc.)
3.2 Bylaws of Orion Newco Services, Inc. (Incorporated by reference to exhibit
number 3.2 in Registration Statement No. 333-19795 on Form S-4 of Orion
Newco Services, Inc.)
3.3 Certificate of Incorporation of Orion Network Systems, Inc. (Incorporated
by reference to exhibit number 3.1 in Registration Statement No. 33-80518
on Form S-1 of Orion Network Systems, Inc.)
3.4 Bylaws of Orion Network Systems, Inc. (Incorporated by reference to
exhibit number 3.2 in Registration Statement No. 33-80518 on Form S-1 of
Orion Network Systems, Inc.)
3.5 Certificate of Incorporation of Orion Satellite Corporation
3.6 Bylaws of Orion Satellite Corporation
3.7 Certificate of Limited Partnership of International Private Satellite
Partners, L.P.
3.8 Form of Third Amended and Restated Agreement of Limited Partnership of
International Private Satellite Partners, L.P.
3.9 Certificate of Incorporation of OrionNet, Inc.
3.10 Bylaws of OrionNet, Inc.
3.11 Certificate of Incorporation of Orion Asia Pacific Corporation
3.12 Bylaws of Orion Asia Pacific Corporation
3.13 Certificate of Incorporation OrionNet Finance Corporation
3.14 Bylaws of OrionNet Finance Corporation
3.15 Certificate of Incorporation of Asia Pacific Space and Communications,
Ltd.
3.16 Bylaws of Asia Pacific Space and Communications, Ltd.
3.17 Certificate of Incorporation of Orion Atlantic Europe, Inc.
3.18 Bylaws of Orion Atlantic Europe, Inc.
4.1 Form of Senior Note Indenture and Form of Note included therein
4.2 Form of Senior Discount Note Indenture and Form of Note included therein
4.3 Form of Collateral Pledge and Security Agreement
4.4 INTENTIONALLY OMITTED
4.5 Form of Warrant Agreement, by and between Orion and Bankers Trust Company,
and Form of Warrant included therein
4.6 Forms of Warrant issued by Orion. (Incorporated by reference to exhibit
number 4.1 in Registration Statement No. 33-80518 on Form S-1 of Orion
Network Systems, Inc.)
4.7 Forms of Warrant issued by Orion to holders of Preferred Stock.
(Incorporated by reference to exhibit number 4.2 in Registration Statement
No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
4.8 Forms of Certificates of Designation of Series A 8% Cumulative Redeemable
Convertible Preferred Stock, Series B 8% Cumulative Redeemable Convertible
Preferred Stock and Series C 6% Cumulative Redeemable Convertible
Preferred Stock of Orion. (Incorporated by reference to exhibit number 4.3
in Registration Statement No. 333-19795 on Form S-4 of Orion Newco
Services, Inc.)
4.9 Forms of Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock certificates of Orion. (Incorporated by reference to
exhibit number 4.4 in Registration Statement No. 333-19795 on Form S-4 of
Orion Newco Services, Inc.)
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EXHIBIT
NUMBER DESCRIPTION
- -------- -----------
4.10 Form of Common Stock Certificate of Orion. (Incorporated by reference to
exhibit number 4.5 in Registration Statement No. 333-19795 on Form S-4 of
Orion Newco Services, Inc.)
4.11 Forms of Certificates of Designation of Series A 8% Cumulative Redeemable
Convertible Preferred Stock and Series B 8% Cumulative Redeemable
Convertible Preferred Stock of Orion Network Systems, Inc. (Incorporated
by reference to exhibit number 4.4 in Registration Statement No. 33-80518
on Form S-1 of Orion Network Systems, Inc.).
4.12 Form of Warrant issued to DACOM Corp. (Incorporated by reference to
exhibit number 4.6 in Registration Statement No. 333-19795 on Form S-4 of
Orion Newco Services, Inc.)
4.13 Debenture Purchase Agreement, dated January 13, 1997, with British
Aerospace and Matra Marconi Space (Incorporated by reference to exhibit
number 4.7 in Registration Statement No. 333-19795 on Form S-4 of Orion
Newco Services, Inc.)
5.1 Opinion of Hogan & Hartson L.L.P.
8.1 Opinion of Hogan & Hartson L.L.P. with respect to certain tax matters
10.1 Second Amended and Restated Purchase Agreement, dated September 26, 1991
("Satellite Contract") by and between OrionSat and British Aerospace PLC
and the First Amendment, dated as of September 15, 1992, Second Amendment,
dated as of November 9, 1992, Third Amendment, dated as of March 12, 1993,
Fourth Amendment, dated as of April 15, 1993, Fifth Amendment, dated as of
September 22, 1993, Sixth Amendment, dated as of April 6, 1994, Seventh
Amendment, dated as of August 9, 1994, Eighth Amendment, dated as of
December 8, 1994, and Amendment No. 9 dated October 24, 1995, thereto.
[CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THESE DOCUMENTS.]
(Incorporated by reference to exhibits number 10.13 and 10.14 in
Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems,
Inc.)
10.2 Restated Amendment No. 10 dated December 10, 1996, between Orion Atlantic
and Matra Marconi Space to the Second Amended and Restated Purchase
Agreement, dated September 26, 1991 by and between OrionSat and British
Aerospace PLC (which contract and prior exhibits thereto were incorporated
by reference as exhibit number 10.1). (Incorporated by reference to
exhibit number 10.2 in Registration Statement No. 333-19795 on Form S-4 of
Orion Newco Services, Inc.)
10.3 Ground Support System Agreement, dated as of August 2, 1991, by and
between Orion Atlantic and Telespazio S.p.A. [CONFIDENTIAL TREATMENT HAS
BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to
exhibit number 10.25 in Registration Statement No. 33-80518 on Form S-1 of
Orion Network Systems, Inc.)
10.4 Italian Facility and Services Agreement, dated as of August 2, 1991, by
and between OrionSat and Telespazio S.p.A. as amended by the amendment
thereto, dated March 19, 1994. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED
FOR PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibit
number 10.26 in Registration Statement No. 33-80518 on Form S-1 of Orion
Network Systems, Inc.)
10.5 Contract for a Satellite Control System, dated December 7, 1992, by and
between Orion Atlantic, Telespazio S.p.A. and Martin Marietta Corporation.
[CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.]
(Incorporated by reference to exhibit number 10.31 in Registration
Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
10.6 Credit Agreement, dated as of November 23, 1993, by and between Orion
Atlantic, OrionSat and General Electric Capital Corporation ("GECC").
[CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.]
(Incorporated by reference to exhibit number 10.32 in Registration
Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
10.7 Security Agreement, dated as of November 23, 1993, by and between Orion
Atlantic, OrionSat and GECC. (Incorporated by reference to exhibit number
10.33 in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.8 Assignment and Security Agreement, dated as of November 23, 1993, by and
between Orion Atlantic, OrionSat and GECC. (Incorporated by reference to
exhibit number 10.34 in Registration Statement No. 33-80518 on Form S-1 of
Orion Network Systems, Inc.)
10.9 Consent and Agreement, dated as of November 23, 1993, by and between Orion
Atlantic, Martin Marietta Corporation and GECC. (Incorporated by reference
to exhibit number 10.35 in Registration Statement No. 33-80518 on Form S-1
of Orion Network Systems, Inc.)
10.10 Deed of Trust, dated as of November 23, 1993, by and between Orion
Atlantic, W. Allen Ames, Jr. and Michael J. Schwel, as Trustees, and GECC.
(Incorporated by reference to exhibit number 10.37 in Registration
Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
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EXHIBIT
NUMBER DESCRIPTION
- -------- -----------
10.11 Lease Agreement, dated as of November 23, 1993, by and between OrionNet,
Inc. and Orion Atlantic, as amended by an Amendment, dated January 3,
1995. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THESE
DOCUMENTS.] (Incorporated by reference to exhibit number 10.38 in
Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems,
Inc.)
10.12 Note for Interim Loans, dated as of November 23, 1993, by and between
Orion Atlantic and GECC. (Incorporated by reference to exhibit number
10.42 in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.13 Sales Representation Agreement and Ground Operations Service Agreement,
each dated as of May 1, 1994 and June 30, 1994, by and between each of
OrionNet, Inc. and Kingston Communications, respectively, and Orion
Atlantic, as amended by side agreements, dated May 1, 1994, July 12, 1994
and February 1, 1995. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR
PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibit number
10.43 in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.14 Lease Agreement, dated as of October 2, 1992, by and between OrionNet and
Research Grove Associates, as amended by Amendment No. 1, dated March 26,
1993, Amendment No. 2, dated August 23, 1993, and Amendment No. 3, dated
December 20, 1993. (Incorporated by reference to exhibit number 10.39 in
Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems,
Inc.)
10.15 Sales Representation Agreement and Ground Operations Service Agreement,
dated as of June 30, 1995, by and between MCN Sat Service, S.A. and Orion
Atlantic. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS
DOCUMENT.] (Incorporated by reference to exhibit number 10.69 in Orion's
Registration Statement No. 33-80518 on Form S-1.)
10.16 Volume Purchase Agreement, dated January 18, 1995, by and between the
Company and Dornier GmbH. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR
PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number
10.66 in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.17 Product Development, License and Marketing Agreement, dated January 18,
1995, by and between the Company and Dornier GmbH. [CONFIDENTIAL TREATMENT
HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by
reference to exhibit number 10.65 in Orion's Registration Statement No.
33-80518 on Form S-1.)
10.18 Sales Representation Agreement, dated as of June 8, 1995, by and between
Nortel Dasa Network Systems GmbH & Co. KG and Orion Atlantic.
[CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.]
(Incorporated by reference to exhibit number 10.70 in Registration
Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
10.19 Orion 2 Spacecraft Purchase Contract, dated July 31, 1996, between Orion
Atlantic and Matra Marconi Space. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED
FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit
number 10.19 in Registration Statement No. 333-19795 on Form S-4 of Orion
Newco Services, Inc.)
10.20 Orion's Amended and Restated 1987 Stock Option Plan as amended.
(Incorporated by reference to exhibit number 10.23 in Registration
Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
10.21 Purchase Contract, dated December 4, 1991, by and between OrionNet, Inc.,
Shenandoah Valley Leasing Company and MCI Telecommunications Corporation.
[CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTION OF THIS DOCUMENT.]
(Incorporated by reference to exhibit number 10.30 in Registration
Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
10.22 Amended and Restated Partnership Agreement of Orion Financial Partnership,
dated as of April 15, 1994, by and between OrionNet and Computer Leasing
Inc. ("CLI"). (Incorporated by reference to exhibit number 10.44 in
Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems,
Inc.)
10.23 Continuing Guaranty, dated as of April 15, 1994, of the Company of the
obligations of OrionNet Finance Corporation. (Incorporated by reference to
exhibit number 10.45 in Registration Statement No. 33-80518 on Form S-1 of
Orion Network Systems, Inc.)
10.24 Release of Continuing Guaranty, dated as of December 29, 1994, by the
Orion Financial Partnership. (Incorporated by reference to exhibit number
10.46 in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.25 Confirmation of Continuing Guaranty, dated as of December 29, 1994, of the
Company of the obligation of OFC. (Incorporated by reference to exhibit
number 10.47 in Registration Statement No. 33-80518 on Form S-1 of Orion
Network Systems, Inc.)
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EXHIBIT
NUMBER DESCRIPTION
- -------- -----------
10.26 Continuing Guarantee, dated as of December 29, 1994, by Lessor Capital
Funding Limited Partnership in favor of Orion Financial Partnership.
(Incorporated by reference to exhibit number 10.48 in Registration
Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
10.27 Master Lease Agreement, dated as of April 15, 1994, by and between
OrionNet and Orion Financial Partnership. (Incorporated by reference to
exhibit number 10.49 in Registration Statement No. 33-80518 on Form S-1 of
Orion Network Systems, Inc.)
10.28 Collateral Assignment and Pledge and Security Agreement, dated April 22,
1994, by and between CLI and Orion Financial Partnership. (Incorporated by
reference to exhibit number 10.50 in Registration Statement No. 33-80518
on Form S-1 of Orion Network Systems, Inc.)
10.29 Purchase Agreement, dated as of April 22, 1994, by and between OrionNet
and Orion Financial Partnership. (Incorporated by reference to exhibit
number 10.51 in Registration Statement No. 33-80518 on Form S-1 of Orion
Network Systems, Inc.)
10.30 Stock Purchase Agreement, dated as of April 29, 1994, by and between the
Company and SS/L. (Incorporated by reference to exhibit number 10.53 in
Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems,
Inc.)
10.31 Registration Rights Agreement, dated as of April 29, 1994, by and between
the Company and SS/L. (Incorporated by reference to exhibit number 10.54
in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.32 Purchase Agreement, dated as of June 17, 1994, by and between the Company,
CIBC, Fleet and Chisholm. (Incorporated by reference to exhibit number
10.55 in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.33 Stockholders Agreement, dated as of June 17, 1994, by and between the
Company, CIBC, Fleet, Chisholm and certain principal stockholders of the
Company. (Incorporated by reference to exhibit number 10.56 in
Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems,
Inc.)
10.34 Registration Rights Agreement, dated as of June 17, 1994, by and between
the Company, CIBC, Fleet and Chisholm. (Incorporated by reference to
exhibit number 10.57 in Registration Statement No. 33-80518 on Form S-1 of
Orion Network Systems, Inc.)
10.35 Purchase Agreement, dated as of June 19, 1995, by and among the Company,
CIBC, Fleet and an affiliate of Fleet. (Incorporated by reference to
exhibit number 10.58 in Registration Statement No. 33-80518 on Form S-1 of
Orion Network Systems, Inc.)
10.36 Definitive Agreement, dated April 26, 1990, by and between Orion Asia
Pacific and the Republic of the Marshall Islands and a Stock Option
Agreement related thereto. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR
PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibit number
10.60 in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.37 Option Agreement, dated December 10, 1996, by and between Orion Atlantic
and Matra Marconi Space. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR
PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number
10.37 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco
Services, Inc.)
10.38 Memorandum of Agreement for the Procurement of Orion 2 Spacecraft, dated
December 19, 1996, by and between Orion Atlantic and Matra Marconi Space.
[CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.]
(Incorporated by reference to exhibit number 10.38 in Registration
Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.)
10.39 TT&C Earth Station Agreement, dated as of November 11, 1996, by and
between Orion Asia Pacific and DACOM Corp. [CONFIDENTIAL TREATMENT HAS
BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to
exhibit number 10.39 in Registration Statement No. 333-19795 on Form S-4
of Orion Newco Services, Inc.)
10.40 Joint Investment Agreement, dated as of November 11, 1996, by and between
Orion Asia Pacific and DACOM Corp. [CONFIDENTIAL TREATMENT HAS BEEN
GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to
exhibit number 10.40 in Registration Statement No. 333-19795 on Form S-4
of Orion Newco Services, Inc.)
10.41 Orion Network Systems, Inc. Employee Stock Purchase Plan (Incorporated by
reference to exhibit number 4.4 in Registration Statement No. 333-19021 on
Form S-8 of Orion Network Systems, Inc.)
10.42 Orion Network Systems, Inc. 401(k) Profit Sharing Plan (Incorporated by
reference to exhibit number 4.5 in Registration Statement No. 333-19021 on
Form S-8 of Orion Network Systems, Inc.)
II-11
<PAGE>
EXHIBIT
NUMBER DESCRIPTION
- -------- -----------
10.43 Orion Network Systems, Inc. Non-Employee Director Stock Option Plan
(Incorporated by reference to exhibit number 10.43 in Registration
Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.)
10.44 Exchange Agreement dated June 1996 among Orion Network Systems, Orion
Atlantic, OrionSat and the Limited Partners (Incorporated by reference to
exhibit 10 in Current Report on Form 8-K dated December 20, 1996, of Orion
Network Systems, Inc.)
10.45 First Amendment to Exchange Agreement dated December 1996 among Orion
Network Systems, Orion Atlantic, OrionSat and the Limited Partners.
(Incorporated by reference to exhibit number 10.45 in Registration
Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.)
10.46 Redemption Agreement dated November 21, 1995, by and between STET and
Orion Atlantic, the promissory notes delivered thereunder and Instrument
of Redemption relating thereto. (Incorporated by reference to exhibit
number 10.1 in Current Report on Form 8-K dated November 21, 1995 of Orion
Network Systems, Inc.)
10.47 IPSP-Telecom Italia Agreement dated November 21, 1995, by and between
Telecom Italia and Orion Atlantic. [CONFIDENTIAL TREATMENT HAS BEEN
GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to
exhibit number 10.2 in Current Report on Form 8-K dated November 21, 1995
of Orion Network Systems, Inc.)
10.48 Indemnity Agreement dated November 21, 1995, by and among Telecom Italia,
Orion Atlantic, Orion and STET. (Incorporated by reference to exhibit
number 10.3 in Current Report on Form 8-K dated November 21, 1995 of Orion
Network Systems, Inc.)
10.49 Subscription Agreement dated November 21, 1995, by and between Orion and
Orion Atlantic, and the promissory note delivered thereunder.
(Incorporated by reference to exhibit number 10.5 in Current Report on
Form 8-K dated November 21, 1995 of Orion Network Systems, Inc.).
10.50 First Amendment to the Italian Facility and Services Agreement dated
November 21, 1995, by and between Orion Atlantic and Nuova Telespazio.
(Incorporated by reference to exhibit number 10.7 in Current Report on
Form 8-K dated November 21, 1995 of Orion Network Systems, Inc.).
10.51 Registration Rights Agreement, dated January 13, 1997, by and among Orion
Newco Services, Inc., British Aerospace Holdings, Inc. and Matra Marconi
Space. (Incorporated by reference to exhibit number 10.51 in Registration
Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.)
10.52 Orion 3 Spacecraft Purchase Contract, dated January 15, 1997, by and among
Hughes Space and Communications International, Inc., Orion Asia Pacific
Corporation and Orion Network Systems. [CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED FOR PORTIONS OF THIS DOCUMENT. THE CONFIDENTIAL PORTIONS HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION.]
12.1 Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
21.1 List of subsidiaries of Orion. (Incorporated by references to exhibit
number 21.1 in Registration Statement No. 333-19795 on Form S-4 of Orion
Newco Services, Inc.)
23.1 Consent of Ernst & Young LLP
23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed as
Exhibit 5.1).
23.3 Consent of Ascent Communications Advisors, L.P.
24.1 Powers of Attorney (included on the signature pages of the Registration
Statement).
26.1 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended of Bankers Trust Company as trustee.
99.1 Orders of FCC regarding OrionSat. (Incorporated by reference to exhibit
number 99.1 in Registration Statement No. 33-80518 on Form S-1 of Orion
Network Systems, Inc.).
99.2 Valuation for Orion Atlantic as of December 1, 1996, by Ascent
Communications Advisors, L.P. (Included as 9 Attachment A to the
Prospectus which is a part of this Registration Statement.)
II-12
<PAGE>
(b) Financial Statements and Schedules:
(1) Financial Statements
Thefinancial statements filed as part of this Registration Statement are
listed in the Index to Financial Statements on page F-1.
(2) Schedules
The financial statement schedules of the Company have been omitted because
the information required to be set forth therein is not applicable or is
shown in the Financial Statements or Notes thereto.
ITEM 17. UNDERTAKINGS.
The undersigned Registrants hereby undertake:
(a)(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective; and
(c) That, for the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the Registrants
pursuant to the foregoing provisions, or otherwise, the Registrants have been
advised that in the opinion of the Securities and Exchange Commission such
II-13
<PAGE>
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrants of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrants will, unless in the opinion of their counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 3 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Rockville, State of Maryland, on the 25th day of January, 1997.
ORION NEWCO SERVICES, INC.
By: /s/ W. Neil Bauer
------------------------------------
W. Neil Bauer
President
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 3 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ----------------------- ------------------------------------ ------------------
/s/ W. Neil Bauer President and Director January 25, 1997
- ---------------------- (Principal Executive Officer)
W. Neil Bauer
/s/ David J. Frear Vice President, Chief Financial January 25, 1997
- ---------------------- Officer and Treasurer and
David J. Frear Financial Officer and
Director (Principal
Principal Accounting Officer)
/s/ Richard H. Shay* Director January 25, 1997
- ----------------------
Richard H. Shay
*By: /s/ David J. Frear
- -------------------------
David J. Frear
Attorney-in-Fact
II-15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 3 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Rockville, State of Maryland, on the 25th day of January, 1997.
ORION NETWORK SERVICES, INC.
By: /s/ W. Neil Bauer
-------------------------------------
W. Neil Bauer
President
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 3 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- -------------------------- ------------------------------ ---------------------
/s/ W. Neil Bauer President, Chief Executive January 25, 1997
- ----------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ David J. Frear Vice President, Chief Financial January 25, 1997
- ----------------------- Officer and Treasurer
David J. Frear (Principal Financial Officer
and Principal Accounting Officer)
/s/ Gustave M. Hauser* Chairman and Director January 25, 1997
- -----------------------
Gustave M. Hauser
/s/ John V. Saeman* Director January 25, 1997
- -----------------------
John V. Saeman
/s/ John G. Puente* Director January 25, 1997
- -----------------------
John G. Puente
/s/ Richard J. Brekka* Director January 25, 1997
- -----------------------
Richard J. Brekka
/s/ Warren B. French, Jr.* Director January 25, 1997
- -----------------------
Warren B. French, Jr.
/s/ Sidney S. Kahn* Director January 25, 1997
- -----------------------
Sidney S. Kahn
Director January , 1997
- -----------------------
W. Anthony Rice
II-16
<PAGE>
SIGNATURE TITLE DATE
- ----------------------------- ------------------------- ----------------------
/s/ Robert M. Van Degna* Director January 25, 1997
- -----------------------
Robert M. Van Degna
/s/ Barry Horowitz* Director January 25, 1997
- -----------------------
Barry Horowitz
*By: /s/ David J. Frear
- -----------------------
David J. Frear
Attorney-in-Fact
II-17
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 3 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Rockville, State of Maryland, on the 25th day of January, 1997.
ORION SATELLITE CORPORATION
By: /s/ W. Neil Bauer
--------------------------------------
W. Neil Bauer
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 3 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ---------------------- ------------------------------------ -------------------
/s/ W. Neil Bauer Chairman, Chief Executive January 25, 1997
- ----------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ Douglas Newman* President and Director January 25, 1997
- -----------------------
Douglas Newman
/s/ David J. Frear Vice President, Chief Financial January 25, 1997
- ----------------------- Officer and Director
David J. Frear (Principal Financial Officer
and Principal Accounting
Officer)
*By: /s/ David J. Frear
- -----------------------
David J. Frear
Attorney-in-Fact
II-18
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 3 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Rockville, State of Maryland, on the 25th day of January, 1997.
INTERNATIONAL PRIVATE SATELLITE
PARTNERS, L.P.
BY: ORION SATELLITE CORPORATION
By: /s/ W. Neil Bauer
-----------------------------------------
W. Neil Bauer
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 3 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ---------------------- ------------------------------------ -------------------
/s/ W. Neil Bauer Chairman, Chief Executive January 25, 1997
- ----------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ Douglas Newman* President and Director January 25, 1997
- -----------------------
Douglas Newman
/s/ David J. Frear Vice President, Chief Financial January 25, 1997
- ----------------------- Officer and Director
David J. Frear (Principal Financial Officer
and Principal Accounting
Officer)
*By: /s/ David J. Frear
- -----------------------
David J. Frear
Attorney-in-Fact
II-19
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 3 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Rockville, State of Maryland, on the 25th day of January, 1997.
ORIONNET, INC.
By: /s/ W. Neil Bauer
--------------------------------
W. Neil Bauer
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 3 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ---------------------- ------------------------------------ -------------------
/s/ W. Neil Bauer Chairman, Chief Executive January 25, 1997
- ----------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ David J. Frear Vice President, Chief Financial January 25, 1997
- ----------------------- Officer and Director
David J. Frear (Principal Financial Officer
and Principal Accounting
Officer)
*By: /s/ David J. Frear
- -----------------------
David J. Frear
Attorney-in-Fact
II-20
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 3 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Rockville, State of Maryland, on the 25th day of January, 1997.
ORION ASIA PACIFIC CORPORATION
By: /s/ W. Neil Bauer
-----------------------------------
W. Neil Bauer
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 3 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ---------------------- ------------------------------------ -------------------
/s/ W. Neil Bauer Chairman, Chief Executive January 25, 1997
- ----------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ David J. Frear Vice President, Chief Financial January 25, 1997
- ----------------------- Officer and Director
David J. Frear (Principal Financial Officer
and Principal Accounting
Officer)
*By: /s/ David J. Frear
- -----------------------
David J. Frear
Attorney-in-Fact
II-21
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 3 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Rockville, State of Maryland, on the 25th day of January, 1997.
ASIA PACIFIC SPACE AND
COMMUNICATIONS, INC.
By: /s/ W. Neil Bauer
-------------------------------------
W. Neil Bauer
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 3 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ---------------------- ------------------------------------ -------------------
/s/ W. Neil Bauer Chairman, Chief Executive January 25, 1997
- ----------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ David J. Frear Vice President, Chief Financial January 25, 1997
- ----------------------- Officer and Director
David J. Frear (Principal Financial Officer
and Principal Accounting
Officer)
*By: /s/ David J. Frear
- -----------------------
David J. Frear
Attorney-in-Fact
II-22
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 3 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Rockville, State of Maryland, on the 25th day of January, 1997.
ORIONNET FINANCE CORPORATION
By: /s/ W. Neil Bauer
-------------------------------------
W. Neil Bauer
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 3 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ---------------------- ------------------------------------ -------------------
/s/ W. Neil Bauer Chairman, Chief Executive January 25, 1997
- ----------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ David J. Frear Vice President, Chief Financial January 25, 1997
- ----------------------- Officer and Director
David J. Frear (Principal Financial Officer
and Principal Accounting
Officer)
*By: /s/ David J. Frear
- -----------------------
David J. Frear
Attorney-in-Fact
II-23
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 3 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Rockville, State of Maryland, on the 25th day of January, 1997.
ORION ATLANTIC EUROPE, INC.
By: /s/ W. Neil Bauer
-------------------------------------
W. Neil Bauer
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 3 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ---------------------- ------------------------------------ -------------------
/s/ W. Neil Bauer Chairman, Chief Executive January 25, 1997
- ----------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ David J. Frear Vice President, Chief Financial January 25, 1997
- ----------------------- Officer and Director
David J. Frear (Principal Financial Officer
and Principal Accounting
Officer)
*By: /s/ David J. Frear
- -----------------------
David J. Frear
Attorney-in-Fact
II-24
<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 27, 1997
REGISTRATION NO. 333-19167
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
EXHIBITS
TO
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
ORION NETWORK SYSTEMS, INC.*
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
================================================================================
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- -------- ----------- ------
<S> <C>
1.1 Form of Underwriting Agreement
2.1 Agreement and Plan of Merger, dated January 8, 1997, by and among Orion
Network Systems, Inc., Orion Newco Services, Inc. and Orion Merger
Company, Inc. (Incorporated by reference to exhibit number 2.1 in
Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services,
Inc.) 3.1 Form of Restated Certificate of Incorporation of Orion Newco
Services, Inc. (Incorporated by reference to exhibit number 3.1 in
Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services,
Inc.)
3.2 Bylaws of Orion Newco Services, Inc. (Incorporated by reference to exhibit
number 3.2 in Registration Statement No. 333-19795 on Form S-4 of Orion
Newco Services, Inc.)
3.3 Certificate of Incorporation of Orion Network Systems, Inc. (Incorporated
by reference to exhibit number 3.1 in Registration Statement No. 33-80518
on Form S-1 of Orion Network Systems, Inc.)
3.4 Bylaws of Orion Network Systems, Inc. (Incorporated by reference to
exhibit number 3.2 in Registration Statement No. 33-80518 on Form S-1 of
Orion Network Systems, Inc.)
3.5 Certificate of Incorporation of Orion Satellite Corporation
3.6 Bylaws of Orion Satellite Corporation
3.7 Certificate of Limited Partnership of International Private Satellite
Partners, L.P.
3.8 Form of Third Amended and Restated Agreement of Limited Partnership of
International Private Satellite Partners, L.P.
3.9 Certificate of Incorporation of OrionNet, Inc.
3.10 Bylaws of OrionNet, Inc.
3.11 Certificate of Incorporation of Orion Asia Pacific Corporation
3.12 Bylaws of Orion Asia Pacific Corporation
3.13 Certificate of Incorporation OrionNet Finance Corporation
3.14 Bylaws of OrionNet Finance Corporation
3.15 Certificate of Incorporation of Asia Pacific Space and Communications, Ltd.
3.16 Bylaws of Asia Pacific Space and Communications, Ltd.
3.17 Certificate of Incorporation of Orion Atlantic Europe, Inc.
3.18 Bylaws of Orion Atlantic Europe, Inc.
4.1 Form of Senior Note Indenture and Form of Note included therein
4.2 Form of Senior Discount Note Indenture and Form of Note included therein
4.3 Form of Collateral Pledge and Security Agreement
4.4 INTENTIONALLY OMITTED
4.5 Form of Warrant Agreement, by and between Orion and Bankers Trust Company,
and Form of Warrant included therein
4.6 Forms of Warrant issued by Orion. (Incorporated by reference to exhibit
number 4.1 in Registration Statement No. 33-80518 on Form S-1 of Orion
Network Systems, Inc.)
4.7 Forms of Warrant issued by Orion to holders of Preferred Stock.
(Incorporated by reference to exhibit number 4.2 in Registration Statement
No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
4.8 Forms of Certificates of Designation of Series A 8% Cumulative Redeemable
Convertible Preferred Stock, Series B 8% Cumulative Redeemable Convertible
Preferred Stock and Series C 6% Cumulative Redeemable Convertible
Preferred Stock of Orion. (Incorporated by reference to exhibit number 4.3
in Registration Statement No. 333-19795 on Form S-4 of Orion Newco
Services, Inc.)
<PAGE>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- -------- ----------- ------
4.9 Forms of Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock certificates of Orion. (Incorporated by reference to
exhibit number 4.4 in Registration Statement No. 333-19795 on Form S-4 of
Orion Newco Services, Inc.)
4.10 Form of Common Stock Certificate of Orion. (Incorporated by reference to
exhibit number 4.5 in Registration Statement No. 333-19795 on Form S-4 of
Orion Newco Services, Inc.)
4.11 Forms of Certificates of Designation of Series A 8% Cumulative Redeemable
Convertible Preferred Stock and Series B 8% Cumulative Redeemable
Convertible Preferred Stock of Orion Network Systems, Inc. (Incorporated
by reference to exhibit number 4.4 in Registration Statement No. 33-80518
on Form S-1 of Orion Network Systems, Inc.).
4.12 Form of Warrant issued to DACOM Corp. (Incorporated by reference to
exhibit number 4.6 in Registration Statement No. 333-19795 on Form S-4 of
Orion Newco Services, Inc.)
4.13 Debenture Purchase Agreement, dated January 13, 1997, with British
Aerospace and Matra Marconi Space (Incorporated by reference to exhibit
number 4.7 in Registration Statement No. 333-19795 on Form S-4 of Orion
Newco Services, Inc.)
5.1 Opinion of Hogan & Hartson L.L.P.
8.1 Opinion of Hogan & Hartson L.L.P. with respect to certain tax matters
10.1 Second Amended and Restated Purchase Agreement, dated September 26, 1991
("Satellite Contract") by and between OrionSat and British Aerospace PLC
and the First Amendment, dated as of September 15, 1992, Second Amendment,
dated as of November 9, 1992, Third Amendment, dated as of March 12, 1993,
Fourth Amendment, dated as of April 15, 1993, Fifth Amendment, dated as of
September 22, 1993, Sixth Amendment, dated as of April 6, 1994, Seventh
Amendment, dated as of August 9, 1994, Eighth Amendment, dated as of
December 8, 1994, and Amendment No. 9 dated October 24, 1995, thereto.
[CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THESE DOCUMENTS.]
(Incorporated by reference to exhibits number 10.13 and 10.14 in
Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems,
Inc.)
10.2 Restated Amendment No. 10 dated December 10, 1996, between Orion Atlantic
and Matra Marconi Space to the Second Amended and Restated Purchase
Agreement, dated September 26, 1991 by and between OrionSat and British
Aerospace PLC (which contract and prior exhibits thereto were incorporated
by reference as exhibit number 10.1). (Incorporated by reference to
exhibit number 10.2 in Registration Statement No. 333-19795 on Form S-4 of
Orion Newco Services, Inc.)
10.3 Ground Support System Agreement, dated as of August 2, 1991, by and
between Orion Atlantic and Telespazio S.p.A. [CONFIDENTIAL TREATMENT HAS
BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to
exhibit number 10.25 in Registration Statement No. 33-80518 on Form S-1 of
Orion Network Systems, Inc.)
10.4 Italian Facility and Services Agreement, dated as of August 2, 1991, by
and between OrionSat and Telespazio S.p.A. as amended by the amendment
thereto, dated March 19, 1994. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED
FOR PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibit
number 10.26 in Registration Statement No. 33-80518 on Form S-1 of Orion
Network Systems, Inc.)
10.5 Contract for a Satellite Control System, dated December 7, 1992, by and
between Orion Atlantic, Telespazio S.p.A. and Martin Marietta Corporation.
[CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.]
(Incorporated by reference to exhibit number 10.31 in Registration
Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
10.6 Credit Agreement, dated as of November 23, 1993, by and between Orion
Atlantic, OrionSat and General Electric Capital Corporation ("GECC").
[CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.]
(Incorporated by reference to exhibit number 10.32 in Registration
Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
<PAGE>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- -------- ----------- ------
10.7 Security Agreement, dated as of November 23, 1993, by and between Orion
Atlantic, OrionSat and GECC. (Incorporated by reference to exhibit number
10.33 in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.8 Assignment and Security Agreement, dated as of November 23, 1993, by and
between Orion Atlantic, OrionSat and GECC. (Incorporated by reference to
exhibit number 10.34 in Registration Statement No. 33-80518 on Form S-1 of
Orion Network Systems, Inc.)
10.9 Consent and Agreement, dated as of November 23, 1993, by and between Orion
Atlantic, Martin Marietta Corporation and GECC. (Incorporated by reference
to exhibit number 10.35 in Registration Statement No. 33-80518 on Form S-1
of Orion Network Systems, Inc.)
10.10 Deed of Trust, dated as of November 23, 1993, by and between Orion
Atlantic, W. Allen Ames, Jr. and Michael J. Schwel, as Trustees, and GECC.
(Incorporated by reference to exhibit number 10.37 in Registration
Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
10.11 Lease Agreement, dated as of November 23, 1993, by and between OrionNet,
Inc. and Orion Atlantic, as amended by an Amendment, dated January 3,
1995. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THESE
DOCUMENTS.] (Incorporated by reference to exhibit number 10.38 in
Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems,
Inc.)
10.12 Note for Interim Loans, dated as of November 23, 1993, by and between
Orion Atlantic and GECC. (Incorporated by reference to exhibit number
10.42 in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.13 Sales Representation Agreement and Ground Operations Service Agreement,
each dated as of May 1, 1994 and June 30, 1994, by and between each of
OrionNet, Inc. and Kingston Communications, respectively, and Orion
Atlantic, as amended by side agreements, dated May 1, 1994, July 12, 1994
and February 1, 1995. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR
PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibit number
10.43 in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.14 Lease Agreement, dated as of October 2, 1992, by and between OrionNet and
Research Grove Associates, as amended by Amendment No. 1, dated March 26,
1993, Amendment No. 2, dated August 23, 1993, and Amendment No. 3, dated
December 20, 1993. (Incorporated by reference to exhibit number 10.39 in
Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems,
Inc.)
10.15 Sales Representation Agreement and Ground Operations Service Agreement,
dated as of June 30, 1995, by and between MCN Sat Service, S.A. and Orion
Atlantic. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS
DOCUMENT.] (Incorporated by reference to exhibit number 10.69 in Orion's
Registration Statement No. 33-80518 on Form S-1.)
10.16 Volume Purchase Agreement, dated January 18, 1995, by and between the
Company and Dornier GmbH. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR
PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number
10.66 in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.17 Product Development, License and Marketing Agreement, dated January 18,
1995, by and between the Company and Dornier GmbH. [CONFIDENTIAL TREATMENT
HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by
reference to exhibit number 10.65 in Orion's Registration Statement No.
33-80518 on Form S-1.)
10.18 Sales Representation Agreement, dated as of June 8, 1995, by and between
Nortel Dasa Network Systems GmbH & Co. KG and Orion Atlantic.
[CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.]
(Incorporated by reference to exhibit number 10.70 in Registration
Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
<PAGE>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- -------- ----------- ------
10.19 Orion 2 Spacecraft Purchase Contract, dated July 31, 1996, between Orion
Atlantic and Matra Marconi Space. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED
FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit
number 10.19 in Registration Statement No. 333-19795 on Form S-4 of Orion
Newco Services, Inc.)
10.20 Orion's Amended and Restated 1987 Stock Option Plan as amended.
(Incorporated by reference to exhibit number 10.23 in Registration
Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
10.21 Purchase Contract, dated December 4, 1991, by and between OrionNet, Inc.,
Shenandoah Valley Leasing Company and MCI Telecommunications Corporation.
[CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTION OF THIS DOCUMENT.]
(Incorporated by reference to exhibit number 10.30 in Registration
Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
10.22 Amended and Restated Partnership Agreement of Orion Financial Partnership,
dated as of April 15, 1994, by and between OrionNet and Computer Leasing
Inc. ("CLI"). (Incorporated by reference to exhibit number 10.44 in
Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems,
Inc.)
10.23 Continuing Guaranty, dated as of April 15, 1994, of the Company of the
obligations of OrionNet Finance Corporation. (Incorporated by reference to
exhibit number 10.45 in Registration Statement No. 33-80518 on Form S-1 of
Orion Network Systems, Inc.)
10.24 Release of Continuing Guaranty, dated as of December 29, 1994, by the
Orion Financial Partnership. (Incorporated by reference to exhibit number
10.46 in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.25 Confirmation of Continuing Guaranty, dated as of December 29, 1994, of the
Company of the obligation of OFC. (Incorporated by reference to exhibit
number 10.47 in Registration Statement No. 33-80518 on Form S-1 of Orion
Network Systems, Inc.)
10.26 Continuing Guarantee, dated as of December 29, 1994, by Lessor Capital
Funding Limited Partnership in favor of Orion Financial Partnership.
(Incorporated by reference to exhibit number 10.48 in Registration
Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.)
10.27 Master Lease Agreement, dated as of April 15, 1994, by and between
OrionNet and Orion Financial Partnership. (Incorporated by reference to
exhibit number 10.49 in Registration Statement No. 33-80518 on Form S-1 of
Orion Network Systems, Inc.)
10.28 Collateral Assignment and Pledge and Security Agreement, dated April 22,
1994, by and between CLI and Orion Financial Partnership. (Incorporated by
reference to exhibit number 10.50 in Registration Statement No. 33-80518
on Form S-1 of Orion Network Systems, Inc.)
10.29 Purchase Agreement, dated as of April 22, 1994, by and between OrionNet
and Orion Financial Partnership. (Incorporated by reference to exhibit
number 10.51 in Registration Statement No. 33-80518 on Form S-1 of Orion
Network Systems, Inc.)
10.30 Stock Purchase Agreement, dated as of April 29, 1994, by and between the
Company and SS/L. (Incorporated by reference to exhibit number 10.53 in
Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems,
Inc.)
10.31 Registration Rights Agreement, dated as of April 29, 1994, by and between
the Company and SS/L. (Incorporated by reference to exhibit number 10.54
in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.32 Purchase Agreement, dated as of June 17, 1994, by and between the Company,
CIBC, Fleet and Chisholm. (Incorporated by reference to exhibit number
10.55 in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.33 Stockholders Agreement, dated as of June 17, 1994, by and between the
Company, CIBC, Fleet, Chisholm and certain principal stockholders of the
Company. (Incorporated by reference to exhibit number 10.56 in
Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems,
Inc.)
<PAGE>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- -------- ----------- ------
10.34 Registration Rights Agreement, dated as of June 17, 1994, by and between
the Company, CIBC, Fleet and Chisholm. (Incorporated by reference to
exhibit number 10.57 in Registration Statement No. 33-80518 on Form S-1 of
Orion Network Systems, Inc.)
10.35 Purchase Agreement, dated as of June 19, 1995, by and among the Company,
CIBC, Fleet and an affiliate of Fleet. (Incorporated by reference to
exhibit number 10.58 in Registration Statement No. 33-80518 on Form S-1 of
Orion Network Systems, Inc.)
10.36 Definitive Agreement, dated April 26, 1990, by and between Orion Asia
Pacific and the Republic of the Marshall Islands and a Stock Option
Agreement related thereto. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR
PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibit number
10.60 in Registration Statement No. 33-80518 on Form S-1 of Orion Network
Systems, Inc.)
10.37 Option Agreement, dated December 10, 1996, by and between Orion Atlantic
and Matra Marconi Space. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR
PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number
10.37 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco
Services, Inc.)
10.38 Memorandum of Agreement for the Procurement of Orion 2 Spacecraft, dated
December 19, 1996, by and between Orion Atlantic and Matra Marconi Space.
[CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.]
(Incorporated by reference to exhibit number 10.38 in Registration
Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.)
10.39 TT&C Earth Station Agreement, dated as of November 11, 1996, by and
between Orion Asia Pacific and DACOM Corp. [CONFIDENTIAL TREATMENT HAS
BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to
exhibit number 10.39 in Registration Statement No. 333-19795 on Form S-4
of Orion Newco Services, Inc.)
10.40 Joint Investment Agreement, dated as of November 11, 1996, by and between
Orion Asia Pacific and DACOM Corp. [CONFIDENTIAL TREATMENT HAS BEEN
GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to
exhibit number 10.40 in Registration Statement No. 333-19795 on Form S-4
of Orion Newco Services, Inc.)
10.41 Orion Network Systems, Inc. Employee Stock Purchase Plan (Incorporated by
reference to exhibit number 4.4 in Registration Statement No. 333-19021 on
Form S-8 of Orion Network Systems, Inc.)
10.42 Orion Network Systems, Inc. 401(k) Profit Sharing Plan (Incorporated by
reference to exhibit number 4.5 in Registration Statement No. 333-19021 on
Form S-8 of Orion Network Systems, Inc.)
10.43 Orion Network Systems, Inc. Non-Employee Director Stock Option Plan
(Incorporated by reference to exhibit number 10.43 in Registration
Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.)
10.44 Exchange Agreement dated June 1996 among Orion Network Systems, Orion
Atlantic, OrionSat and the Limited Partners (Incorporated by reference to
exhibit 10 in Current Report on Form 8-K dated December 20, 1996, of Orion
Network Systems, Inc.)
10.45 First Amendment to Exchange Agreement dated December 1996 among Orion
Network Systems, Orion Atlantic, OrionSat and the Limited Partners.
(Incorporated by reference to exhibit number 10.45 in Registration
Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.)
10.46 Redemption Agreement dated November 21, 1995, by and between STET and
Orion Atlantic, the promissory notes delivered thereunder and Instrument
of Redemption relating thereto. (Incorporated by reference to exhibit
number 10.1 in Current Report on Form 8-K dated November 21, 1995 of Orion
Network Systems, Inc.)
10.47 IPSP-Telecom Italia Agreement dated November 21, 1995, by and between
Telecom Italia and Orion Atlantic. [CONFIDENTIAL TREATMENT HAS BEEN
GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to
exhibit number 10.2 in Current Report on Form 8-K dated November 21, 1995
of Orion Network Systems, Inc.)
<PAGE>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- -------- ----------- ------
10.48 Indemnity Agreement dated November 21, 1995, by and among Telecom Italia,
Orion Atlantic, Orion and STET. (Incorporated by reference to exhibit
number 10.3 in Current Report on Form 8-K dated November 21, 1995 of Orion
Network Systems, Inc.)
10.49 Subscription Agreement dated November 21, 1995, by and between Orion and
Orion Atlantic, and the promissory note delivered thereunder.
(Incorporated by reference to exhibit number 10.5 in Current Report on
Form 8-K dated November 21, 1995 of Orion Network Systems, Inc.).
10.50 First Amendment to the Italian Facility and Services Agreement dated
November 21, 1995, by and between Orion Atlantic and Nuova Telespazio.
(Incorporated by reference to exhibit number 10.7 in Current Report on
Form 8-K dated November 21, 1995 of Orion Network Systems, Inc.).
10.51 Registration Rights Agreement, dated January 13, 1997, by and among Orion
Newco Services, Inc., British Aerospace Holdings, Inc. and Matra Marconi
Space. (Incorporated by reference to exhibit number 10.51 in Registration
Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.)
10.52 Orion 3 Spacecraft Purchase Contract, dated January 15, 1997, by and among
Hughes Space and Communications International, Inc., Orion Asia Pacific
Corporation and Orion Network Systems. [CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED FOR PORTIONS OF THIS DOCUMENT. THE CONFIDENTIAL PORTIONS HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION.]
12.1 Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
21.1 List of subsidiaries of Orion. (Incorporated by references to exhibit
number 21.1 in Registration Statement No. 333-19795 on Form S-4 of Orion
Newco Services, Inc.)
23.1 Consent of Ernst & Young LLP
23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed as
Exhibit 5.1).
23.3 Consent of Ascent Communications Advisors, L.P.
24.1 Powers of Attorney (included on the signature pages of the Registration
Statement).
26.1 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended of Bankers Trust Company as trustee.
99.1 Orders of FCC regarding OrionSat. (Incorporated by reference to exhibit
number 99.1 in Registration Statement No. 33-80518 on Form S-1 of Orion
Network Systems, Inc.).
99.2 Valuation for Orion Atlantic as of December 1, 1996, by Ascent
Communications Advisors, L.P. (Included as 9 Attachment A to the
Prospectus which is a part of this Registration Statement.)
</TABLE>
CERTIFICATE OF INCORPORATION
OF
ORION ASIA PACIFIC CORPORATION
FIRST: The name of the Corporation is Orion Asia Pacific Corporation
(hereinafter called the "Corporation").
SECOND: The registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801, County of New Castle. The name of the Corporation's registered agent at
said address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful
acts or activities for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation
shall have the authority to issue is One Thousand (1,000) shares of Common
Stock, all of one class, having a par value of $.01 per share.
FIFTH: The name and mailing address of the incorporator is C.
Elliott Bardsley, 1350 Piccard Drive, Rockville, MD 20850 (the "Incorporator").
SIXTH: The powers of the Incorporator shall terminate upon the
filing of this Certificate of Incorporation, and the following persons, having
the indicated mailing addresses, shall serve as the directors, of the
Corporation until the first annual meeting of the stockholders of the
Corporation or until successor or successors are elected and qualify:
<PAGE>
Name Mailing Address
---- ---------------
John G. Puente 1350 Piccard Drive
Rockville, Maryland 20850
Christopher J. Vizas, II 1835 K Street, N.W., Suite 201
Washington, DC 20006
C. Elliott Bardsley 1350 Piccard Drive
Rockville, Maryland 20850
SEVENTH: The number of directors of the Corporation shall be such
number as from time to time shall be fixed by, or in the manner provided in, the
by-laws of the Corporation. Unless and except to the extent that the by-laws of
the Corporation shall otherwise require, the election of directors of the
Corporation need not be by written ballot.
EIGHTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the Board of Directors of the Corporation
is expressly authorized and empowered to adopt, amend and repeal by-laws of the
Corporation.
NINTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that nothing contained in this Article Ninth shall
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
-2-
<PAGE>
TENTH: The Corporation reserves the right at any time, and from time
to time, to amend, alter, change or repeal any provisions contained in this
Certificate or Incorporation, and other provisions authorized by the laws of the
State of Delaware at the time in force may be added or inserted, in the manner
now or hereafter prescribed by law; and all rights, preferences and privileges
of whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the rights reserved in this
Article Tenth.
IN WITNESS WHEREOF, the undersigned, being the Incorporator
hereinabove named, for the purpose of forming a corporation pursuant to the
General Corporation Law of the State of Delaware, hereby certifies that the
facts hereinabove stated are truly set forth, and accordingly I have hereunto
set my hand this ____ day of March, 1992.
/s/ C.Elliott Bardsley
---------------------------
C. Elliott Bardsley
-3-
January 27, 1997
Board of Directors
Orion Network Systems, Inc.
2440 Research Boulevard
Suite 400
Rockville, Maryland 20850
Ladies and Gentlemen:
We are acting as counsel to Orion Network Systems, Inc., a Delaware
corporation incorporated under the name Orion Newco Services, Inc. (the
"Company"), in connection with the registration statement on Form S-1, as
amended (the "Registration Statement"), filed by the Company and certain
additional registrants with the Securities and Exchange Commission relating to
the proposed public offering of Senior Note Units and Senior Discount Note Units
(collectively, the "Units"). Each Senior Note Unit consists of (i) one Senior
Note due 2007 (such Senior Notes collectively, the "Senior Notes") to be issued
pursuant to a Senior Note Indenture (the "Senior Note Indenture") to be executed
by the Company, certain subsidiaries of the Company, as guarantors, and Bankers
Trust Company, as trustee, and (ii) one Warrant (such Warrants collectively, the
"Senior Note Warrants"), each Senior Note Warrant entitling the holder thereof
to purchase shares of Common Stock, par value $.01 per share (the "Common
Stock"), of the Company, to be issued pursuant to a Warrant Agreement (the
"Warrant Agreement") to be executed by the Company and Bankers Trust Company, as
Warrant Agent. Each Senior Discount Note Unit consists of (i) one Senior
Discount Note due 2007 (such Senior Discount Notes collectively, the "Senior
Discount Notes," and together with the Senior Notes, the "Notes") to be issued
pursuant to a Senior Discount Note Indenture (the "Senior Discount Note
Indenture") to be executed by the Company, certain subsidiaries of the Company,
as guarantors, and Bankers Trust Company, as trustee, and (ii) one Senior
Discount Note Warrant (such Senior Discount Note Warrants collectively, the
"Senior Discount Note Warrants," and together with the Senior Note Warrants, the
"Warrants"), each Senior Discount Note Warrant entitling the holder thereof to
purchase shares of Common Stock to be issued pursuant to the Warrant Agreement.
<PAGE>
Board of Directors
Orion Network Systems, Inc.
January 27, 1997
Page 2
This opinion letter is furnished to you at your request to enable you
to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R.
ss229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement, as amended through
the date hereof.
2. The form of the Senior Note Indenture, including the form of
Senior Note, filed as Exhibit 4.1 to the Registration Statement.
3. The form of Senior Discount Note Indenture, including the form of
Senior Discount Note, filed as Exhibit 4.2 to the Registration
Statement.
4. The Form of Warrant Agreement, including the form of Senior Note
Warrant and the form of Senior Discount Note Warrant, filed as
Exhibit 4.5 to the Registration Statement.
5. The Certificate of Incorporation of the Company, as certified by
the Secretary of the Company on the date hereof as being complete,
accurate and in effect.
6. The Bylaws of the Company, as certified by the Secretary of the
Company on the date hereof as being complete, accurate and in
effect.
7. The proposed form of Underwriting Agreement among the Company,
Morgan Stanley & Co., Incorporated and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, filed as Exhibit 1.1 to the
Registration Statement (the "Underwriting Agreement").
8. Resolutions of the Board of Directors of the Company, including
resolutions adopted on January 14, 1997, as certified by the
Secretary of the Company on the date hereof as being complete,
accurate and in effect, relating to the issuance and sale of the
Units, the Notes, the Warrants and the Common Stock issuable
<PAGE>
Board of Directors
Orion Network Systems, Inc.
January 27, 1997
Page 3
upon exercise of the Warrants (the "Warrant Shares") to be sold by
the Company and arrangements in connection therewith.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us, and
the conformity with the original documents of all documents submitted to us as
certified, telecopied, photostatic, or reproduced copies. This opinion letter is
given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the General
Corporation Law of the State of Delaware, and the contract law of the State of
New York. We express no opinion herein as to any other laws, statutes,
regulations or ordinances.
Based upon, subject to and limited by the foregoing, we are of the
opinion that following (i) effectiveness of the Registration Statement, (ii)
final action of the Board of Directors of the Company (or a duly appointed
pricing committee thereof) approving the interest rate and other pricing terms
of the Units, the Notes and the Warrants, (iii) due execution and delivery by
the Company of the Underwriting Agreement, the Senior Note Indenture, the Senior
Discount Note Indenture and the Warrant Agreement, (iv) sale and issuance of the
Units pursuant to the terms of the Underwriting Agreement, issuance of the
Senior Notes pursuant to the Senior Note Indenture, issuance of the Senior
Discount Notes pursuant to the Senior Discount Note Indenture and issuance of
the Warrants pursuant to the Warrant Agreement and (v) receipt by the Company of
the consideration for the Units specified in the resolutions of the Board of
Directors:
(1) the Units, the Notes and the Warrants will constitute binding
obligations of the Company enforceable against the Company in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditors' rights (including, without limitation, the effect of
statutory and other law regarding fraudulent conveyances, fraudulent
transfers and preferential transfers) and as may be limited by the
exercise of judicial discretion and the application of principles of
equity, including, without limitation, requirements of good faith,
fair dealing, conscionability and materiality (regardless of whether
the Units, the Notes and the Warrants are considered in a proceeding
in
<PAGE>
equity or at law); provided, however, that we express no opinion with
respect to Section 11.5 of the Warrant Agreement as incorporated in
the Warrants and made a part thereof; and
(2) the Warrant Shares have been duly authorized by the Company and, when
issued and delivered upon exercise of the Warrants in accordance with
the terms of the Warrant Agreement as in effect on the date hereof,
will be validly issued, fully paid and non-assessable.
The opinion expressed in paragraph (1) above shall be understood to
mean only that if (i) there is a default in performance of an obligation, (ii) a
failure to pay or other damage can be shown and (iii) the defaulting party can
be brought into a court which will hear the case and apply the governing law,
then, subject to the availability of defenses, and to the exceptions set forth
above, the court will provide a money damage (or perhaps injunctive or specific
performance) remedy.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this opinion letter and should not be quoted in whole
or in part or otherwise be referred to, nor filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement and to the reference to this firm under the
caption "Legal Matters" in the prospectus constituting a part of the
Registration Statement. In giving this consent, we do not thereby admit that we
are an "expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
HOGAN & HARTSON L.L.P.
HOGAN & HARTSON
L.L.P.
COLUMBIA SQUARE
555 THIRTEENTH STREET, NW
WASHINGTON, DC 20004-1109
TEL (202) 637-5600
FAX (202) 637-5910
January 24, 1997
Orion Network Systems, Inc.
2440 Research Boulevard, Suite 400
Rockville, Maryland 20850
Ladies and Gentlemen:
We are acting as counsel to Orion Network Systems, Inc., a Delaware
corporation (the "Company"), in connection with its registration statement on
Form S-1, as amended (the "Registration Statement") filed with the Securities
and Exchange Commission relating to the proposed public offering of (i) Senior
Note Units, each consisting of one __% Senior Note due 2007 and one Warrant to
purchase Common Stock of the Company, and (ii) Senior Discount Note Units, each
consisting of one __% Senior Discount Note due 2007 and one Warrant to purchase
Common Stock of the Company, all of which Units are to be sold by the Company.
This opinion letter is furnished to you at your request to enable you to fulfill
the requirements of Item 601(b)(8) of Regulation S-K, 17 C.F.R. ss.
229.601(b)(8), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined an executed copy
of the Registration Statement. In such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us, and
the conformity with the original documents of all documents submitted to us as
certified, telecopied, photostatic, or reproduced copies. This opinion letter is
given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the
Internal Revenue Code of 1986, as amended, its legislative history, judicial
authority, current administrative rulings and practice, and existing and
proposed Treasury Regulations, including regulations concerning the treatment of
debt instruments issued with original issue discount, all as in effect and
existing on the date hereof (collectively,"federal tax laws"). We express no
opinion herein as to any other laws, statutes, regulations, or ordinances.
<PAGE>
HOGAN & HARTSON L.L.P.
Orion Network Systems, Inc.
Page 2
Based upon, subject to and limited by the foregoing, we are of the
opinion that the information in the prospectus constituting a part of the
Registration Statement under the caption "Certain United States Federal Income
Tax Consequences," to the extent that such information constitutes matters of
law or legal conclusions or purports to describe certain provisions of the
federal tax laws, has been reviewed by us and is a correct summary in all
material respects of the matters discussed therein.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this opinion letter and should not be quoted in whole
or in part or otherwise be referred to, nor filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 8 to
the Registration Statement. In giving this consent, we do not thereby admit that
we are an "expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/s/ HOGAN & HARTSON L.L.P.
HOGAN & HARTSON L.L.P.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT. THE
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE
COMMISSION.
The portions of this Exhibit for which confidential treatment has been requested
are marked by brackets([ ]). In addition, an asterisk (*) appears in the right
hand margin of each paragraph in which confidential information is included.
ORION 3 SPACECRAFT PURCHASE CONTRACT
BY AND AMONG
HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC.
AND
ORION ASIA PACIFIC CORPORATION
AND
ORION NETWORK SYSTEMS, INC.
Hughes Contract Number: Orion 3/001/97
PROPRIETARY NOTICE
------------------
The information contained in the Contract is proprietary to Hughes Space and
Communications International, Inc., Orion Asia Pacific Corporation and Orion
Network Systems, Inc. and may not be disclosed or provided to any third party
without the express written consent of Hughes Space and Communications
International, Inc., Orion Asia Pacific Corporation and Orion Network Systems,
Inc.
<PAGE>
TABLE OF CONTENTS
CONTRACT
Contract Articles
Exhibit A - Statement of Work
Exhibit B - Satellite Technical Specifications
Exhibit C - Satellite Product Assurance Plan
Exhibit D - Test Plan
Exhibit E - Ground Segment
Exhibit F - Payment Plan and Termination Liability Amounts
Exhibit G - Schedules to Article 15
Exhibit H - Payload Long - Lead Inventory Items
Exhibit I - Technical Performance
<PAGE>
ORION 3 SATELLITE PURCHASE CONTRACT
CONTRACT ARTICLES
<PAGE>
TABLE OF CONTENTS
-----------------
CONTRACT ARTICLES
ARTICLE 1. DEFINITIONS............................................... 3
ARTICLE 2. SCOPE OF WORK............................................. 15
ARTICLE 3. DELIVERY SCHEDULE......................................... 17
ARTICLE 4. CONTRACT PRICE, INVOICING, PAYMENT AND ADJUSTMENTS........ 18
ARTICLE 5. SATELLITE PERFORMANCE INCENTIVE PAYMENTS.................. 24
ARTICLE 6. LAUNCH VEHICLE DELAYS..................................... 32
ARTICLE 7. PERMITS AND LICENSES; GOVERNMENT APPROVALS............... 34
ARTICLE 8. PRE-SHIP REVIEW, LAUNCH READINESS REVIEW, IN-ORBIT
ACCEPTANCE AND FINAL ACCEPTANCE........................... 36
ARTICLE 9. TITLE AND RISK OF LOSS.................................... 43
ARTICLE 10. EXCUSABLE DELAYS.......................................... 44
ARTICLE 11. LIQUIDATED DAMAGES FOR LATE DELIVERY...................... 46
ARTICLE 12. ACCESS TO WORK-IN-PROGRESS AND DATA....................... 48
ARTICLE 13. INTER-PARTY WAIVER OF LIABILITY........................... 53
ARTICLE 14. HUGHES' REPRESENTATIONS, WARRANTIES AND COVENANTS......... 54
ARTICLE 15. ORION'S REPRESENTATIONS, WARRANTIES, COVENANTS AND
ACKNOWLEDGMENTS........................................... 57
ARTICLE 16. TAXES AND DUTIES.......................................... 63
ARTICLE 17. TERMINATION AND OTHER RIGHTS.............................. 65
ARTICLE 18. DATA AND SOFTWARE......................................... 74
ARTICLE 19. PATENT INDEMNIFICATION.................................... 76
ARTICLE 20. RIGHTS IN INVENTIONS...................................... 78
ARTICLE 21. PROPRIETARY INFORMATION................................... 81
ARTICLE 22. CHANGES................................................... 84
ARTICLE 23. PUBLICITY................................................. 86
ARTICLE 24. NOTICES................................................... 87
ARTICLE 25. INTEGRATION............................................... 88
ARTICLE 26. ASSIGNMENT OR CHANGE IN OWNERSHIP OR CONTROL.............. 89
ARTICLE 27. SEVERABILITY.............................................. 90
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ARTICLE 28. CORRECTIVE MEASURES IN UNLAUNCHED SATELLITES............... 91
ARTICLE 29. CUSTOMER'S RESPONSIBILITIES................................ 92
ARTICLE 30. APPLICABLE LAW AND DISPUTE RESOLUTION...................... 94
ARTICLE 31. PERFORMANCE COMMENCEMENT DATE.............................. 97
ARTICLE 32. STORAGE.................................................... 98
ARTICLE 33. OPTIONS................................................... 102
ARTICLE 34. LIMITATION OF LIABILITY................................... 110
ARTICLE 35. MISCELLANEOUS............................................. 113
ARTICLE 36. SUBCONTRACTORS............................................ 116
ARTICLE 37. INSURANCE................................................. 117
ARTICLE 38. KEY PERSONNEL............................................. 118
ARTICLE 39. INDEMNIFICATION........................................... 119
Annex A - Form of Certification
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THE CONTRACT (the "Contract") is effective as of the ____ day of January 1997-,
BY AND AMONG:
HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC., a corporation organized and
existing under the laws of the State of Delaware, U.S.A., with a place of
business in El Segundo, California, U.S.A. (hereinafter referred to as "Hughes"
or "Contractor") and
ORION ASIA PACIFIC CORPORATION, a company organized and existing under the laws
of Delaware, U.S.A. with a place of business in Rockville, Maryland, U.S.A.
(hereinafter referred to as "Orion" or "Customer") and
ORION NETWORK SYSTEMS, INC., a company organized and existing under the laws of
Delaware, U.S.A., with a place of business in Rockville, Maryland, U.S.A.
(hereinafter referred to as "ONS").
As used in the Contract, "Party" means either Hughes or Customer or for purposes
of Article 15 and Paragraph 21.10 only, ONS, as appropriate, and "Parties" means
Hughes and Customer.
WHEREAS, Customer desires to procure an HS 601 HP satellite system consisting of
the Satellite to be delivered in orbit with an Operational Lifetime of fifteen
(15) years, related items, including Satellite Control Equipment and related
services, including Launch and Mission Operations and Launch Services, subject
to the terms and conditions hereof;
WHEREAS, Hughes desires to supply such a satellite system in accordance with the
terms and conditions hereof;
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WHEREAS, the Parties entered into an Authorization to Proceed Agreement (the
"ATP" or "ATP Agreement") dated December 13, 1996, pursuant to which Hughes
agreed to commence Work on the Satellite upon payment by Customer to Hughes of
[ ]; *
</TABLE>
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WHEREAS, the Parties agreed in the ATP to negotiate diligently and in good faith
with the aim of finalizing the terms and conditions for the procurement of the
Satellite and related items and services; and
WHEREAS, the Parties have reached agreement on such terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and intending to be legally bound hereby, the Parties agree as
follows:
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ARTICLE 1. DEFINITIONS
1.1 In the Contract, unless the context otherwise requires, the following
terms shall have the meaning stated hereunder:
A. "Affiliate" means, with respect to a Party, any direct or indirect
subsidiaries or parent company of such Party or another subsidiary
of any such parent company.
B. "Aggregate Predicted Transponder Life" or "APTL" means the sum of
the Predicted Transponder Life of each and every Successfully
Operating Transponder embodied in the Satellite.
C. "ATP" or "ATP Agreement" means the Authorization to Proceed
Agreement entered into between Customer and Hughes on December 13,
1996.
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<S> <C>
D. "ATP Payment" means the [ ]*
paid by Customer and received by Hughes pursuant to the ATP and
which amount shall be credited as a Progress Payment under the
Contract.
</TABLE>
E. "Authorized Representative" means, in the case of Customer, its
President (or any person designated in writing by the President to
be an Authorized Representative of Customer), in the case of ONS,
its President (or any person designated in writing by the President
to be an Authorized Representative of ONS) and, in the case of
Hughes, its President (or any person designated in writing by the
President to be an Authorized Representative of Hughes).
F. "Available For Shipment" means that the Satellite or the Satellite
Control Equipment ("SCE"), as applicable, has successfully completed
the Pre-Ship Review and, with respect to the SCE, has been
preliminarily accepted by Customer as described in Article 8.
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G. "Balloon Payment" means the Progress Payment in the amount of [ ]*
[ ] required to be paid by
Customer to Hughes on or before [ ], pursuant to the*
Contract.
</TABLE>
H. "Beneficial Access" means, with respect to a Satellite Control
Facility, that all things which Customer is required to do have been
done, and the site is ready in all respects on a 24-hour per day
basis, to permit Hughes to commence SCE installation and/or
satellite tracking, as the case may be, as defined in Exhibit E
(Ground Segment).
I. "Business Day" means a day on which Hughes or Customer is open for
business, as applicable, but excluding Saturdays, Sundays and days
when commercial banks in the States of California or New York are
required or permitted to be closed.
J. "C-Band Repeater" means the repeater with ten (10) C-band
Transponders with beam coverage over all Asia.
K. "CDRL" or "Contract Data Requirements List" means the documentation
listed in Section 12 of Exhibit A (Statement of Work).
L. "Consultant(s)" means a person or organization retained by Customer
or Orion's customers to provide Customer or Orion's customers, as
applicable, with technical advice and identified by Customer to
Hughes as such in accordance with Article 12. For purposes of
Paragraphs 12.4 and 12.12, "Consultant(s)" shall also include any
person retained by Customer or Orion's customers to provide such
technical advice who is not both (i) a Customer employee and (ii) a
United States citizen; Consultant shall also include those Customer
employees who are not U.S. citizens.
M. "Contract" means this written instrument embodying the agreement
between Hughes and Customer and including the Annex and Exhibits
annexed hereto and made a part of the Contract.
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N. "Contract Deliverable Data" means any Technical Data and Information
generated in the performance of the Work under the Contract and
specifically listed in Exhibit A (Statement of Work) as being
deliverable under the Contract.
O. "Contract Price" means the total amount expressed in Article_4
(Contract Price, Invoicing Payment and Adjustments).
P. "Customer Personnel" means Orion employees or representatives,
Orion's Consultants' employees or Orion's customers' employees or
Consultants. See also the definition of "Consultant."
Q. "DACOM" means the Korean telecommunications company that has leased
capacity on the Satellite from Customer.
R. "Day" means a continuous 24-hour period commencing at Midnight
(Greenwich Mean Time).
S. "Deliver" and its derivatives (such as "Delivered" and "Delivery")
shall have the meaning set forth in Article 8.
T. "Delivery Schedule" means the timetable for Delivery set forth in
Article_3 (Delivery Schedule).
U. "Designated Launch Site" means the launch facility provided by the
Launch Provider.
V. "Documentation" means the documentation to be delivered by Hughes to
Customer under the Contract, as more fully described in Exhibit_A
(Statement of Work).
W. "Effective Date of Contract" ("EDC") means the date as of which the
Contract has been duly signed by both Parties.
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X. "Final Acceptance" has the meaning specified in Article 8 (Pre-Ship
Review, Launch Readiness Review, In-Orbit Testing and Final
Acceptance).
Y. "Financing Entity" means any entity (other than Hughes or parties
related to Hughes (e.g., commercial bank, merchant bank, investment
bank, commercial finance organization, corporation or partnership)
providing money on a full or partial debt basis to Customer to fund
construction and delivery of the Satellite.
Z. "Ground Control Software" means the proprietary computer software
programs and related documentation developed by Hughes and provided
under the Contract. Ground Control Software includes the software
program and documentation as they are originally provided, and any
modifications made by Customer and such modifications as may later
be provided in the form of subsequent releases or in any form they
may be converted into by Customer.
AA. "Ground Segment" means all the ground equipment, software, training
and related services including the equipment and software for one
(1) TT&C facility and two (2) Satellite Control Facilities, as more
particularly described in Exhibit E (Ground Segment) and, with
respect to training, Exhibit A (Statement of Work).
AB. "Including" and its derivatives (such as "include" and "includes")
means including without limitation. This term is as defined whether
or not capitalized in the Contract.
AC. "Initial Incentive Amount" means Ten Million U.S. Dollars (U.S.
$10,000,000).
AD. "Initial Payment" means the Eight Million U.S. Dollars (U.S.
$8,000,000) Progress Payment made simultaneously with the Effective
Date of the Contract.
AE. "In-Orbit Acceptance Report" or "In-Orbit Test Report" or "IOT
Report" means that document that is a deliverable item in the CDRL
and as described in Exhibit A (Statement of Work).
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AF. "Intentional Ignition" means the point in time in the ignition
process of a Delta III Launch Vehicle, for the purpose of launch,
when the command signal sent from the launch control console is
received by the Launch Vehicle, which command signal is intended to
and does ignite any of the first stage main engines.
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AG. "Ku-Band 1 Repeater" means the repeater with [ ]*
Ku-band Transponders split among the [ ],*
[ ] beams. *
AH. "Ku-Band 2 Repeater" means the repeater with [ ] Ku-band*
Transponders for [ ]. *
</TABLE>
AI. "Launch" means Intentional Ignition followed by the first
intentional ignition of a Delta III solid rocket motor.
AJ. "Launch and Mission Operations" means the launch
campaign/transportation, launch services, mission planning and
mission services up to the point of Final Acceptance of the
Satellite, as more particularly described in Exhibit A (Statement of
Work).
AK. "Launch Date" means the date scheduled by Hughes and the Launch
Provider as the date for Launch of the Satellite.
AL. "Launch Insurance" means insurance that covers the Satellite from
the period commencing at Intentional Ignition and ending no earlier
than six (6) months after Intentional Ignition.
AM. "Launch Provider" means McDonnell Douglas Corporation or any
successor entity, for example, Boeing.
AN. "Launch Readiness Review" ("LRR") means the review that verifies
that the Designated Launch Site Satellite testing and checkout as
described in Exhibit D
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(Test Plan) has been completed and the Satellite is deemed by the
Parties ready to be turned over to the Launch Provider for
integration with the Launch Vehicle.
AO. "Launch Services" means the standard services which the Launch
Provider provides under its customary launch services agreement.
AP. "Launch Vehicle" means a Delta III launch vehicle.
AQ. "MMS TT & C Software" shall have the meaning specified in Paragraph
33.1.C.
AR. "Operational Lifetime" means the fifteen (15) year performance
period of the Satellite. This performance period commences on (i)
the day when the Satellite is positioned at its Specified Orbital
Location or at a Storage Orbit specified by Customer inside the
stationkeeping box of plus or minus 0.05 degrees and in-orbit
testing has been completed, or (ii) forty-five (45) Days after
Launch, whichever is earlier. In the event that the Satellite has
been placed in a storage orbit, then any such in-orbit storage
period shall be counted in the fifteen (15) year performance period.
AS. "Option Satellite" shall have the meaning ascribed to it in Article
33 (Options).
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AT. [ ] means the [ ] satellite company. *
</TABLE>
AU. "Orion's customer" means DACOM or any other customer of Orion.
AV. "Paid-Over-Time Incentive" means Eight Million U.S. Dollars (U.S.
$8,000,000) to be paid over time by Customer in accordance with
Article_5.
AW. "Performance Commencement Date" (PCD) has the meaning specified in
Article 31 (Performance Commencement Date).
AX. "Performance Incentives" means the Initial Incentive Amount and
Paid-Over-Time Incentive.
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AY. "Person" means any individual, partnership, limited liability
company, corporation, association, trust or other entity, including
any government or political subdivision or any agency, department or
instrumentality thereof.
AZ. "Predicted Transponder Life" or "PTL" means the period of time,
measured in years, over which a Successfully Operating Transponder
can be operated, commencing from the date of Delivery of the
Preliminary In-Orbit Acceptance Report, this period of time being
equal to whichever is the shortest of:
(1) fifteen (15) years, or
(2) the Satellite predicted propellant life calculated in accordance
with HS 601 HP product line propulsion sub-system analysis
methods, the results of which will be documented in the In-Orbit
Acceptance Report, or
(3) the period of time over which there is predicted to be
sufficient solar array power to operate such Successfully
Operating Transponder co-extensively with all other Successfully
Operating Transponders, calculated in accordance with HS 601 HP
product line power sub-system analysis methods, the results of
which will be documented in the In-Orbit Acceptance Report.
BA. "Preliminary In-Orbit Acceptance Report" means that document that is
a deliverable item in the CDRL and as described in Exhibit A
(Statement of Work).
BB. "Pre-Ship Review" or "PSR" means the Hughes-conducted readiness
review specified in Exhibit_A (Statement of Work) authorizing
shipment of the Satellite to the Designated Launch Site.
BC. "Product Assurance Plan" means the Product Assurance Plan set forth
in Exhibit C (Satellite Product Assurance Plan).
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BD. "Properly Operated Satellite" means a Satellite which is being
monitored and commanded by Customer in accordance with the written
directives, computer media and instructions contained in the
recommended Spacecraft operating procedures (as such procedures may
be amended by the Parties) and any applicable service notes for the
Satellite, such having been furnished by Hughes to Customer under
the Contract.
BE. "Progress Payment" means any of those payments listed as payments in
Exhibit F (Payment Plan), including the ATP Payment, the Initial
Payment, and the Balloon Payment.
BF. "Satellite" or "Orion 3 Satellite" means the HS 601 HP Class
satellite to be provided to Customer as part of the Work (as defined
below). The term "Spacecraft" shall be interchangeable with the term
"Satellite" and has the same meaning.
BG. "Satellite Control Equipment" ("SCE") means the equipment specified
in Appendix A of Exhibit E (Ground Segment), including the
telemetry, tracking, and command equipment being manufactured and
delivered under the Contract as part of the Work thereof.
BH. "Satellite Control Facility" means a ground facility created or
modified to command the HS 601 HP Satellite delivered to Customer by
Hughes under the Contract.
BI. "Scheduled Delivery Date" means the date of delivery or performance
as specified in Article 3 (Delivery Schedule).
BJ. "Senior Executive Level" shall have the meaning set forth in
Paragraph 12.9.
BK. "Specified Orbital Location" means, with respect to a Satellite, the
geostationary orbit location specified in Exhibit B (Satellite
Technical Specification).
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BL. "Statement of Work" means the Statement of Work attached as Exhibit
A to the Contract.
BM. "Storage Orbit" means any geostationary orbital location other than
the Specified Orbital Location.
BN. "Subcontract" means a contract awarded by Hughes to a Subcontractor
or a contract awarded by a Subcontractor to another Subcontractor to
provide a portion of the Work covered by the Contract.
BO. "Subcontractor" means a Person which has been awarded a Subcontract
by Hughes or a Subcontractor.
BP. "Successfully Launched Satellite" means a Satellite that meets both
the following conditions:
(1) The elements of the Satellite's transfer orbit established by
the Launch Vehicle and the spin axis orientation and time of
separation are each within three (3) sigma limits of the Launch
Vehicle performance as established by Hughes with the Launch
Provider in the interface control document or equivalent
relating to the Satellite; and
(2) The Satellite has not suffered damage caused by any failure or
malfunction of the Launch Vehicle.
BQ. "Successfully Operating Transponder" means a Transponder in the
Satellite which meets any one of the following criteria:
(1) The Transponder is performing in compliance with the
requirements of Exhibit B (Satellite Technical Specification).
If a Transponder is not a Successfully Operating Transponder
during periods of eclipse, it shall be deemed to be not a
Successfully Operating Transponder from that time forward. Any
failure of a Transponder which is corrected by switching to a
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redundancy in the system immediately after the failure is
discovered shall not be deemed as failing to comply with the
requirements of Exhibit B (Satellite Technical Specification)
and shall not cause the Transponder to be considered anything
other than a Successfully Operating Transponder.
(2) The Transponder, while not performing in compliance with the
requirements of Exhibit_B, is being used, or is capable of being
used without material change to Customer's normal operating
procedures, by Customer to generate approximately the same level
of revenues as if it were operating as specified in Exhibit_B;
or
(3) The Transponder is not performing in compliance with the
requirements of Exhibit_B due to the Satellite not being a
Properly Operated Satellite; or
(4) The Transponder (not a TWTA) is being used as an in-orbit spare
or is turned off but would otherwise be capable of meeting one
of the above three criteria; or
(5) The Transponder is on the Satellite which is in a storage orbit.
(6) In the event Customer chooses to operate the Satellite
commercially from a Storage Orbit, then a Transponder will be
deemed to be a Successfully Operating Transponder provided it
can be shown that it would have been a Successfully Operating
Transponder had the Satellite been operating from the Specified
Orbital Location.
BR. "Test Plan" means the test plan set forth in Exhibit D (Test Plan)
to the Contract.
BS. "The Orion 3 Satellite Program" means the program to provide an
HS 601 HP-based telecommunications system, of which the Work under
the Contract is a part.
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BT. "Technical Data and Information" means documented information which
is directly related to the design, development, use, operation, and
maintenance of the Satellite and/or SCE. This includes, for example,
information in the form of drawings, photographs, technical
writings, pictorial reproductions and specifications. This term does
not include ground computer software, financial reports, cost
analysis and information incidental to Contract administration.
BU. "Transponder" means a communications signal path utilized in the
provision of a channel for a communications service as more
specifically defined in Exhibit B (Satellite Technical
Specification), and the term "Communications Channel" shall have the
same meaning.
BV. "Vendor Software" means the proprietary computer software programs,
in object code form, and related documentation developed by vendors
and delivered under the Contract.
BW. "Work" means all labor, services, acts (including tests to be
performed), items, materials, articles, data, documentation,
equipment, matters and things to be furnished, and rights to be
transferred, by Hughes to Customer under the Contract.
BX. "United States Government" means the government of the United
States, including any agencies, commissions, branches,
instrumentalities and departments thereof.
1.2 The Article and Paragraph headings are for convenience of reference only
and shall not be considered in interpreting the Contract. Where the
context so requires, words in the singular include the plural and vice
versa, and words imputing the masculine gender include the feminine and
neuter genders. The recitals of the Contract are descriptive only and
shall not create or affect obligations of the Parties.
1.3 In the Contract, "Article" generally refers to a complete section and
"Paragraph" to a subsection of an Article. For example, "Paragraph 3.5"
refers to the fifth subsection of
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the third Article of the Contract.
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ARTICLE 2. SCOPE OF WORK
2.1 In accordance with the terms and conditions of the Contract, Hughes shall
sell, and Customer shall purchase, the items referred to in Article 3
(Delivery Schedule). Hughes shall furnish and perform the Work in
accordance with the provisions of the Contract including the following
documents, which are attached hereto, incorporated herein and made a part
of the Contract:
Document Dated
-------- -----
Exhibit A - Statement of Work EDC
Exhibit B - Satellite Technical Specification EDC
Exhibit C - Satellite Product Assurance Plan EDC
Exhibit D - Test Plan EDC
Exhibit E - Ground Segment EDC
Exhibit F - Payment Plan and Termination Liability
Amounts EDC
Exhibit G - Schedules to Article 15 EDC
Exhibit H - Payload Long-Lead Inventory Items No later than
December 31, 1997
Exhibit I - Technical Performance EDC
2.2 In the event of any ambiguity, conflict or inconsistency among or between
the parts of the Contract, such inconsistency shall be resolved by giving
precedence in the order of the parts of the Contract as set forth below:
1 Contract Articles
2 Payment Plan and Termination Liability Amounts (Exhibit F)
3 Schedules to Article 15 (Exhibit G)
4 Statement of Work (Exhibit A)
5 Technical Performance (Exhibit I)
6 Satellite Technical Specification (Exhibit B)
7 Test Plan (Exhibit D)
8 Satellite Product Assurance Plan (Exhibit C)
9 Ground Segment (Exhibit E)
10 Payload Long-Lead Inventory Items (Exhibit H)
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2.3 In the event the Parties are unable to resolve any ambiguity, conflict or
inconsistency that affects the Work, Hughes will follow Customer's
direction as to the interpretation of the Contract and the cost, schedule
and performance impact thereof will be determined under Paragraph 22.3
(regarding changes requested by Customer), pending the resolution of the
ambiguity, conflict or inconsistency pursuant to Article 30 (Applicable
Law and Dispute Resolution) should either Party choose to proceed under
Article 30. Notwithstanding the foregoing, nothing in this Paragraph 2.3
alters or affects Hughes' rights under this Contract, if Customer does not
timely make any Progress Payment prior to and including the Balloon
Payment. In the event of any ambiguity, conflict or inconsistency relating
to Hughes' rights to any Progress Payment up to and including the Balloon
Payment or rights and remedies in the event of nonpayment of any Progress
Payment up to and including the Balloon Payment, Customer shall follow
Hughes direction as to the interpretation of the Contract pending the
resolution of the ambiguity, conflict or inconsistency pursuant to Article
30 should either party choose to proceed under Article 30 (Applicable Law
and Dispute Resolution).
2.4 Hughes shall deliver to Customer no later than February 15, 1997 revisions
to the pages of Exhibit B (Satellite Technical Specification) attached
hereto as Exhibit I (Technical Performance). In developing these
revisions, Hughes will use its best reasonable efforts (consistent with
the fundamental design and hardware of HS 601 HP product line) to achieve
performance levels meeting or exceeding Customer's minimum performance
requirements, as set forth in handwriting in Exhibit I. The revised
Exhibit B shall be effective upon Customer's review and written approval.
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ARTICLE 3. DELIVERY SCHEDULE
3.1 Thefollowing goods and services to be provided under the Contract shall be
Delivered to the locations specified below, on or before the dates
specified below, in Table 3.1:
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Table 3.1
Delivery Schedule
Date of Delivery
Item or Performance Place of Delivery
---- -------------- -----------------
<S> <C> <C>
1. Orion 3 Satellite December 31, 1998* In-orbit at Specified Orbital
Location
2. Launch and Mission As required* As required
Operations (LEOP)
3. Launch Services (Delta III) As required* Designated Launch Site
4. Ground Segment** As required* As specified by Customer
5. Training As required* As required
6. Contract Deliverable Data Per Exhibit A (CDRL) As specified by Customer
and Documentation
</TABLE>
NOTE1: Satellite Control Equipment Delivered Duty Unpaid (DDU) (as defined
in Incoterms 1990) United States or Australia to the site to be
specified by Customer. Hughes shall be obligated to insure the
transportation of the Satellite Control Equipment. .
*Delivery Date such that Customer can begin service (defined as the time of
completion by Hughes of in-orbit testing of the Satellite and Delivery of the
Preliminary In-Orbit Acceptance Report in accordance with Exhibit D (Test Plan))
by December 31, 1998.
** Includes two (2) satellite software simulators specified in Exhibit E (Ground
Segment).
3.2 Delivery of items listed in Paragraph 3.1 shall be deemed to have occurred
upon arrival of the item in conformance with the requirements of the
Contract at the place of delivery or upon completion of the service as the
case may be.
3.3 Packing and shipping will be in accordance with Hughes' standard
commercial practice.
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ARTICLE 4. CONTRACT PRICE, INVOICING, PAYMENT AND ADJUSTMENTS
4.1 All charges for the Work are set forth in this Article 4, Article 5
(Satellite Performance Incentive Payments), Article 6 (Launch Vehicle
Delays) and, if any option is ordered, Article 33 (Options) as such
articles may be amended pursuant to Article 22 (Changes) and Paragraph
35.5 (Amendments). Customer shall not be required to pay Hughes any
amounts for the Work in addition to those payable to Hughes under this
Article 4, Article 5, Article 6, Article 22, Article 33 and Paragraph
35.5.
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4.2 The Contract Price is Two Hundred Eight Million U.S. dollars (U.S.
$208,000,000). The Contract Price shall include those items, services and
incentives set forth below in Table 4.2. The Contract Price does not
include payment of [ ] annual operating costs (or those of a similarly*
situated third-party TT&C operator). The Contract Price does not include
Launch Insurance. Customer shall pay to Hughes the Contract Price
(excluding the Initial Incentive Amount and the Paid-Over-Time Incentive)
in accordance with the terms set forth in the payment schedule of
Exhibit F (Payment Plan) and shall pay the Initial Incentive Amount and
the Paid-Over-Time Incentive in accordance with Article 5. Line item
prices are set forth below in Table 4.2.
Table 4.2
Contract Price
Items and Services U.S.$ (millions)
------------------ ----------------
1 Orion 3 Satellite............................................... [ ]
2 Launch and Mission Operations (LEOP)............................ [ ]
3 Launch Services (Delta III)..................................... [ ]
4 Ground Segment.................................................. [ ]*
5 Training........................................................ [ ]
6 Contract Deliverable Data and Documentation..................... [ ]
7 Initial Incentive Amount........................................ [ ]
8 Paid-Over-Time Incentive........................................ [ ]
*Included in 1 and 4 above
Contract Price Total........................................... 208
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
4.4 The [ ] paid by Customer to Hughes*
pursuant to the ATP shall be credited as the first Progress Payment of the
Contract Price.
</TABLE>
4.5 Hughes shall, with respect to each Progress Payment (except the ATP
Payment and the Initial Payment), provide Customer with an invoice at
least ten (10) days but no more than forty-five (45) days in advance of
the date when such payment is scheduled to be made by Customer to Hughes.
Failure by Hughes to provide an invoice for any given Progress Payment
will not excuse Customer's payment obligation or change the due date with
respect to such payment.
4.6 Hughes' rights to terminate the Contract for Customer's failure to make
timely payment of any Progress Payment are set forth in Paragraph 17.3.A.
4.7 Promptly after Hughes' receipt of the Balloon Payment and for each
Progress Payment due thereafter, Hughes shall certify prior to Customer
having to make such payment (except the Balloon Payment) that Hughes is on
schedule to Deliver the Satellite in accordance with the Delivery
Schedule. Such certification shall be in the form attached hereto as Annex
A.
4.8 Subject to Subparagraphs (A) and (B) below, Customer shall pay Hughes each
Progress Payment on or before the date specified in Exhibit F (Payment
Plan); provided, however, where the specified date causes a payment to
become due on a non-Business Day, such payment shall be due on the next
Business Day.
A. If Hughes makes the certification required by Paragraph 4.7 as to
any Progress Payment due after the Balloon Payment but Customer
disputes it, Customer shall pay such Progress Payment into an escrow
account in accordance with Paragraph 4.9 and the disposition of such
escrowed amount shall be governed by Paragraph 4.9. During the
period any Progress Payment is held in escrow, Hughes shall be
obligated to continue performance, but Hughes shall not be obligated
to proceed to Intentional Ignition until the dispute is resolved and
any amounts ultimately determined to be due Hughes are released to
Hughes from escrow.
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<PAGE>
B. If Hughes cannot make the certification required by Paragraph 4.7 as
to any Progress Payment due after the Balloon Payment, Customer
shall be entitled to withhold from such payment the amount of One
Million U.S. Dollars (U.S. $1,000,000) for each month (up to a
maximum of six (6) months or Six Million U.S. Dollars (U.S.
$6,000,000)) of delay (as certified by Hughes) with respect to the
delivery of the Satellite, such payments to be repaid to Hughes to
the extent Hughes subsequently certifies a reduced (or no) delay in
delivery of the Satellite. Under this subparagraph (B), Hughes shall
not be obligated to proceed to Intentional Ignition unless all
required Progress Payments (less any applicable liquidated damages)
are current.
4.9 No dispute with respect to the payment of any amount under the Contract
shall relieve the disputing Party of its obligation to pay all other
amounts due and owing under the Contract. All disputed amounts, unless
otherwise specified in the Contract, shall be paid into an
interest-bearing escrow account (to be specified in writing by Hughes) on
or before the applicable due date. After the dispute is settled, the Party
entitled to the amount in escrow shall receive such amount together with
all interest thereon and the other Party shall pay all costs and fees
associated with such escrow. In no event shall any Progress Payment prior
to or including the Balloon Payment be paid into escrow. Customer's duty
to make all Progress Payments up to and including the Balloon Payment
directly and timely to Hughes is not altered in any way by Paragraph 4.8
or this Paragraph 4.9. Under this Paragraph 4.9, Hughes shall not be
obligated to proceed to Intentional Ignition unless all required Progress
Payments have been released to Hughes from escrow.
4.10 If Intentional Ignition occurs, but the Satellite is not a Successfully
Launched Satellite, any remaining payments shall be payable to Hughes
within thirty (30) days after, and to the extent of, Customer's receipt of
applicable proceeds from Launch Insurance (as such proceeds are paid to
Customer, whether in one payment or in multiple payments); provided,
however, the Initial Incentive Amount and the Paid-Over-Time Incentives
shall be payable to Hughes in accordance with Paragraph 5.4.
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<PAGE>
4.11 Amounts payable to either Party shall be remitted by wire transfer to the
following bank accounts, as applicable:
In the case of Customer:
<TABLE>
<CAPTION>
<S> <C>
NationsBank
Rockville, Maryland
[ ] *
[ ]
In the case of Hughes:
Bank of America
Concord, California
[ ] *
</TABLE>
Any payment shall be deemed to have been made when credit for the amount
is established in the above bank accounts, as applicable. Each Party shall
notify the other in writing within ten (10) Days of a change to its
respective bank accounts.
4.12 The Parties acknowledge and agree that, with respect to any Progress
Payment due prior to, and including, the Balloon Payment, Hughes would
suffer extreme prejudice as the result of any delayed receipt of such
payments and the rapid decrease, over time, of the value of the Work.
Accordingly, the Parties agree that time is of the essence in the receipt
by Hughes of Progress Payments up to and including the Balloon Payment,
and, subject to Article 17.3, Hughes may, upon a default in such payment
by Customer, immediately and without prior notice to Customer exercise all
its rights and remedies under the Contract.
4.13 Subject to Paragraph 17.3, up to and including the date on which Hughes
receives the Balloon Payment, the following shall apply:
A. Hughes' right to timely payments under the Contract is independent
of any obligations Hughes may have to Customer; and
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<PAGE>
B. Unless or until the Contract is terminated, Customer shall make all
payments required by the Contract to Hughes on a timely basis
regardless of whether Hughes shall then be in breach of its
obligations under the Contract; and
C. If Hughes breaches the Contract, Customer shall retain all rights to
terminate the Contract due to Hughes' breach and/or sue to obtain
recovery of appropriate damages for the breach, but Customer shall
not be entitled to delay or withhold timely payments to Hughes on
account of Hughes' breach if Customer did not also terminate the
Contract.
4.14 With respect to Progress Payments up to and including the Balloon Payment,
Hughes may suspend performance if Customer does not make any such Progress
Payment on or before the due date for such Progress Payment.
4.15 No payment made by Customer prior to the Balloon Payment shall be for the
Delta III launch vehicle. Upon receipt of the Balloon Payment, Hughes
shall dedicate a Delta III launch vehicle from its launch vehicle
inventory to Customer for the purpose of launching the Satellite. Unless
and until the Balloon Payment shall be received by Hughes, Hughes shall
have no duty to identify a Delta III launch vehicle to Customer under the
Contract. Notwithstanding the foregoing, in recognition of the fact that
the probability of the Satellite being launched on schedule will be
maximized if Customer receives certain information on the Delta III launch
vehicle prior to making the Balloon Payment, Hughes shall use best
reasonable efforts to provide Customer access as described in Paragraphs
12.1-12.5 and 12.9 to information regarding a launch vehicle of the same
type as the Launch Vehicle.
4.16 Subject to the last sentence of Paragraph 4.15, Customer shall have no
interest in the Work, or any items thereof, unless and until it has made
the Balloon Payment and all previous Progress Payments. Accordingly, if
Customer shall not make any such payment on a timely basis (provided
Hughes has given Customer at least ten (10) days prior notice in writing
of the payment due date) for any reason, including Customer's insolvency
or
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<PAGE>
status as a debtor in bankruptcy, then Hughes shall have the right to stop
Work immediately and to sell the Work, or items thereof, to another Person
without notice to Customer. If Hughes decides not to sell the Work, Hughes
shall be entitled to retain possession of the Work, and all items thereof,
until all payments current or past due under the Contract have been
received in immediately available funds. .
4.17 The Parties agree that, to the extent permitted by law, Customer shall
have no right, title or interest in the Work prior to Hughes' receipt of
the Balloon Payment. Notwithstanding the foregoing, until Hughes' receipt
of the Balloon Payment, Customer hereby grants Hughes a first priority
security interest in any right, title or interest Customer may have or be
deemed to have in the Work to secure Customer's obligations to Hughes
under the Contract. Hughes shall have the right to include in such
financing statements public notice reasonably acceptable to Customer of
Customer's agreements in Paragraph 15.12 of the Contract. Hughes agrees to
terminate such security interest and terminate such financing statement
concurrently with payment of the Balloon Payment.
4.18 All payments made by Customer to Hughes prior to and including the Balloon
Payment, shall be deemed fully earned by Hughes upon receipt. Any payments
due after the Balloon Payment paid into escrow in accordance with
Paragraph 4.8.A and Paragraph 4.9 shall be deemed fully earned by Hughes
(i) at the time the dispute is resolved and (ii) to the extent any such
escrowed amounts are ultimately determined to be due Hughes, regardless of
whether such amounts have been released to Hughes from escrow.
4.19 Hughes shall not be required to proceed to Intentional Ignition unless
Customer is current with all Progress Payments due under the Contract.
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<PAGE>
ARTICLE 5. SATELLITE PERFORMANCE INCENTIVE PAYMENTS
5.1 In the event the Satellite is a Successfully Launched Satellite, then,
upon Final Acceptance, the Initial Incentive Amount shall be paid to, and
earned or refunded by, Hughes in the manner and to the extent provided
hereunder:
<TABLE>
A. The Initial Incentive Amount shall be allocated to the C-Band and
Ku-Band 1
Repeaters as follows:
<S> <C>
C-Band Repeater [ ] [ ] *
Ku-Band 1 Repeater [ ] [ ] *
B. For the C-Band and Ku-Band 1 Repeaters, respectively, the portion of
the Initial Incentive Amount to be paid shall be determined in
accordance with the following formula:
Repeater Initial Incentive Amount x APTL
-------------
Maximum APTL
where the maximum Aggregate Predicted Transponder Life (APTL) for
the C-Band Repeater is 150 years [ ]*
[ ] and for the Ku-Band 1 Repeater is 375 years [ ]*
[ ] Two examples illustrating how to determine*
that part of the Initial Incentive Amount due after Final Acceptance
follow:
(1) If the C-Band Repeater and Ku-Band 1 Repeater at Final
Acceptance are determined to have APTLs of [ ]*
[ ], respectively, then Customer shall be obligated to pay
Hughes [ ]*
[ ] and [ ]*
[ ], respectively.
(2) If the C-Band Repeater and Ku-Band 1 Repeater are determined at
Final Acceptance to have APTLs of [ ] years,*
respectively, then
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
Customer shall be obligated to pay Hughes [ ]*
[ ]*
and [ ]*
[ ] *
</TABLE>
C. Hughes shall earn and be entitled to retain a percentage of the
Initial Incentive Amount for each Day of the Operational Lifetime
according to the number of Successfully Operating Transponders that
the Satellite has during such day, as described below. In the event
that it is determined for any Day of the Operational Lifetime of the
Satellite that a Transponder is not a Successfully Operating
Transponder, Customer shall promptly notify Hughes of said
discovery. Upon concurrence by Hughes ( or in the event of a
dispute, resolution of the dispute in Customer's favor) that the
Transponder is not a Successfully Operating Transponder, Hughes
shall refund to Orion for each Day of the remainder of the
Operational Lifetime the appropriate portion of the Initial
Incentive Amount paid to Hughes, such portion calculated consistent
with examples (1) and (2) set forth below.
(1) Example (1): If at Final Acceptance the APTLs for the C-Band and
Ku-Band 1 Repeaters are maximum, then for each Transponder that
is not a Successfully Operating Transponder during the
Operational Lifetime, Hughes shall pay to Customer a refund as
set forth below:
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<PAGE>
<TABLE>
<CAPTION>
Table 5.1.C(1)
Satellite Performance Refund
C-band Repeater Ku-band 1 Repeater
Performance Payment Performance Payment
No. of Successfully Refund Daily Amount No. of Successfully Refund Daily Amount
Transponders Operating Per Transponder Operating Transponders per Transponder
- ---------------------- --------------- ---------------------- ---------------
<S> <C> <C> <C> <C>
[ ] [ ] [ ] [ ]
[ ] [ ] [ ] [ ]
[ ] [ ] [ ] [ ]
[ ] [ ] [ ] [ ]
[ ] [ ] [ ] [ ]
[ ] [ ] [ ] [ ]
[ ] [ ] *
[ ] [ ]
[ ] [ ]
[ ] [ ]
[ ] [ ]
[ ] [ ]
[ ] [ ]
</TABLE>
<TABLE>
<S> <C>
(2) Example (2): The C-Band and Ku-Band 1 Repeater performance
refund tables shown above in Table 5.1.C(1) are based upon the
APTL for both repeaters being at maximum at Final Acceptance.
Where the APTL for either or both repeaters is below maximum,
the respective refund tables will be proportionately modified
based upon the percentage of the Initial Incentive Amount paid
by Customer to Hughes at Final Acceptance. For example, if at
Final Acceptance the C-Band Repeater has only [ ]*
Successfully Operating Transponders and the Ku-Band 1 Repeater
has only [ ] Successfully Operating Transponders, each*
with a PTL of [ ], then the APTL for the C-Band*
Repeater equals [ ] years and the APTL for*
the Ku-band repeater equals three hundred (300) years, and [ ]*
[ ]
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
[ ] and [ ]*
[ ] shall*
have been paid at Final Acceptance for the C-Band and Ku-Band 1
Repeaters, respectively. In addition, for each Day during the
Operational Lifetime there are fewer than [ ] and/or*
[ ] Successfully Operating Transponders in the C-Band*
and Ku-Band 1 Repeaters, respectively, then for each Transponder
less than [ ] and/or [ ] Successfully Operating*
Transponders in the C-Band and Ku-Band 1 Repeaters,
respectively, the daily refund amount will be recalculated
against U.S. [ ] and U.S. [ ], respectively,*
down to a full repayment of the U.S. [ ] for [ ]*
or fewer Transponders and U.S [ ] for [ ] or*
fewer Transponders, respectively, in accordance with the
following table:
</TABLE>
<TABLE>
<CAPTION>
Table 5.1C(2)
Satellite Performance Refund
C-Band Repeater Ku-Band 1 Repeater
Performance Payment Performance Payment
No. of Successfully Refund Daily Amount No. of Successfully Refund Daily Amount
Operating Transponders Per Transponder Operating Transponders per Transponder
- ---------------------- --------------- ---------------------- ---------------
<S> <C> <C> <C> <C>
[] [ ] [ ] [ ]
[] [ ] [ ] [ ]
[] [ ] [ ] [ ]
[ ] [ ] [ ] [ ] *
[ ] [ ]
[ ] [ ]
[ ] [ ]
[ ] [ ]
</TABLE>
5.2 In the event the Satellite is a Successfully Launched Satellite, then, for
each Day of the Operational Lifetime that a Transponder in the Ku-Band 2
Repeater is a Successfully
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<PAGE>
Operating Transponder, Hughes shall earn and be entitled to payment of a
portion of the Paid-Over-Time Incentive in accordance with Table 5.2
below:
<TABLE>
Table 5.2
Paid-Over-Time Incentive Payments for Ku-Band 2 Repeater
Daily Payment Amount
Number of Successfully Per Successfully
Operating Transponders Operating Transponder
---------------------- ---------------------
<S> <C>
[ ] [ ] *
[ ] [ ]
5.3 Hughes shall be entitled to payment of Extended Incentives as follows:
A. In the event the Satellite continues to provide service for Customer
after expiration of the Operational Lifetime for which service
Customer receives customary commercial revenues substantially
equivalent to those that Customer would customarily receive if the
Satellite were a normally operating satellite, Customer agrees to
pay to Hughes certain amounts as specified below in subparagraphs
(B) and (C).
B. With respect to the C-Band [ ] or Ku-Band 1 [ ]*
[ ] Repeaters, the amount to be paid for each Day a*
Transponder operates after expiration of the Operational Lifetime is
[ ]*
[ ] (for C) and [ ]*
[ ] (for Ku 1), up to a*
maximum of that portion of the Initial Incentive Amount refunded to
Customer for the respective repeaters during the Operational
Lifetime (but excluding any portion of the Initial Incentive Amount
not paid to Hughes at Final Acceptance).
C. With respect to the Ku-Band 2 [ ] Repeater, the amount*
to be paid for each Day a Transponder operates after expiration of
the Operational Lifetime is [ ]*
[ ], up to a *
</TABLE>
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<PAGE>
maximum of that portion of the Paid-Over-Time Incentive not paid by
Customer to Hughes during the Operational Lifetime.
D. In the event the Satellite continues to provide service for Customer
after expiration of the Operational Lifetime for which Customer
receives revenues less than those described above in subparagraph
(A), the daily amount to be paid for each Transponder operating
after expiration of the Operational Lifetime shall be a percentage
of the respective amounts set forth above in subparagraphs (B) and
(C), such percentage equal to the percentage of customary commercial
revenues actually received by Customer.
E. Such extended incentive payments shall continue for as long as
Customer receives customary commercial revenues on the Satellite or
until the allowable maximum amount (excluding any portion of the
Initial Incentive Amount not paid to Hughes at Final Acceptance) has
been reached, whichever occurs first.
<TABLE>
<S> <C>
5.4 In the event the Satellite is launched but is not a Successfully Launched
Satellite, Hughes shall be entitled to (i) payment of the Initial
Incentive Amount within [ ] Days after, and to the extent of,*
Customer's receipt of applicable proceeds (as such proceeds are paid to
Customer, whether as a single payment or over several payments) from
Launch Insurance and Customer shall not be entitled to receive any refund
of the Initial Incentive Amount for such Satellite and (ii) payment of the
Paid-Over-Time Incentive after and, to the extent of, Customer's receipt
of applicable proceeds from Launch Insurance, such amount to be paid in
equal monthly installments over the next succeeding [ ] years or*
earlier at Customer's election.
</TABLE>
5.5 In the event that a Transponder is not a Successfully Operating
Transponder but is capable of partial operation and the Transponder
continues to be operated by Customer for telecommunications purposes, the
Parties shall negotiate an equitable adjustment of the Initial Incentive
Amount refund (specified in Paragraph 5.1) and Paid-Over-Time Incentive
payments (specified in Paragraph 5.2), taking partial operation into
consideration.
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<PAGE>
5.6 Any assertion by Customer that a Transponder is not a Successfully
Operating Transponder shall be accompanied by technical data, reports, and
analyses, and Hughes shall be given an opportunity to verify all relevant
data. Should Hughes disagree with such determination and present evidence
to the contrary, then Customer shall consider such evidence and consult
with Hughes. In the event that the disagreement cannot be resolved, then
it may be disposed of in accordance with Article_30 (Applicable Law and
Dispute Resolution).
5.7 The amounts to be refunded by Hughes under Paragraph 5.1 and the amounts
to be paid by Customer under Paragraph 5.2 and 5.3 shall be (i) calculated
on a daily basis and (ii) invoiced in arrears and paid on a monthly basis.
Any payment required to be made by one Party to the other Party under this
Article 5 shall be made within thirty (30) Days after the first Party's
receipt of an invoice certifying the event giving rise to such Party's
liability.
5.8 If a Satellite has not been, or is not being, operated as a Properly
Operated Satellite and such improper operation results in one or more
Transponders not meeting the requirements of a Successfully Operating
Transponder, or the Operational Lifetime being reduced, Customer (i)_shall
not be entitled to receive refunds of the Initial Incentive Amount in
accordance with Paragraph_5.1, and (ii)_shall be required to pay the
Paid-Over-Time Incentive in accordance with Paragraph_5.2, with respect to
the Transponders so affected (and such affected Transponders shall be
deemed to be Successfully Operating Transponders).
5.9 SUBSEQUENT TO LAUNCH OR TO A FAILED LAUNCH, HUGHES' LIABILITY AND THE
RIGHTS AND REMEDIES OF CUSTOMER UNDER THIS ARTICLE 5 AND ARTICLE 17
(TERMINATION) AND ARTICLE 30 (APPLICABLE LAW AND DISPUTE RESOLUTION) ARE
IN LIEU OF ALL OTHER RIGHTS AND REMEDIES FOR A SATELLITE THAT IS NOT A
SUCCESSFULLY OPERATING SATELLITE OR A TRANSPONDER THAT IS NOT A
SUCCESSFULLY OPERATING TRANSPONDER WHETHER SUCH
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<PAGE>
LIABILITY, RIGHTS AND REMEDIES ARISE UNDER CONTRACT, TORT OR STATUTORY
WARRANTIES.
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<PAGE>
ARTICLE 6. LAUNCH VEHICLE DELAYS
6.1 In the event of postponement or delay of a Launch prior to shipment of the
Satellite, which postponement or delay exceeds thirty (30) Days from the
originally scheduled Launch Date (to be scheduled by the Parties during
the Contract to occur no later than November 30, 1998 absent Excusable
Delay) and which delay is not caused by Hughes or its Subcontractors
(except the Launch Provider) or Affiliates, the price included in the
Contract Price for Launch and Mission Operations services provided by
Hughes (Table 4.2) shall be increased to reflect the cumulative increase,
if any, in the Consumer Price Index for All Urban Consumers, All Cities
Average, All Items, 1982-1984 ("CPI-U") published monthly by the Bureau of
Labor Statistics or a successor agency of the U.S. Government. Such
cumulative increase in the CPI-U shall be determined by computing the
percentage change in the CPI-U between November 1998 and the month actual
delivery of the Launch and Mission Operations services commences, but in
no case shall such cumulative increase be less than an annualized rate of
three percent (3%). If the Bureau of Labor Statistics redefines the base
year, the Parties will adjust their calculations by using an appropriate
conversion formula.
In addition, Customer shall be responsible for any and all incremental
expenses actually and reasonably incurred by Hughes (and invoiced to
Customer in reasonable detail) and a profit of twelve and one half percent
(12.5%) on such incremental expenses resulting from such postponement or
delay. Such incremental expenses may include, as appropriate for the
period of delay, launch crew standby time, extra launch crew travel
expenses, transportation expenses for equipment, expenses associated with
maintaining launch support capabilities, stretch-out program expenses, and
storage expenses.
6.2 The Contract Price stated in Paragraph_4.2 is based on a launch on the
Delta III Launch Vehicle.
6.3 If failure to launch a Satellite on the originally scheduled Launch Date
is due to anything other than the fault of Hughes or its Subcontractors or
Affiliates, then
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<PAGE>
A. Customer shall make the necessary arrangements for, and bear the
costs of, storage of the Satellite until such Satellite can be
launched. Hughes shall cooperate in assisting Customer to make the
necessary storage arrangements in a U.S. storage facility which
conforms to Hughes' standards for ensuring the integrity of the
Satellite.
B. Except as provided in the second sentence of Paragraph 6.3.A above,
Customer shall reimburse Hughes for its extra expenses actually and
reasonably incurred (and invoiced to Customer in reasonable detail)
as a result thereof plus a profit of twelve and one half percent
(12.5%) on such expenses, and the Contract Price shall be revised
accordingly; and an amendment to the Contract reflecting such
adjustments shall be entered into in accordance with Paragraph 35.5.
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<PAGE>
ARTICLE 7. PERMITS AND LICENSES; GOVERNMENT APPROVALS
7.1 Hughes shall, at its own expense, obtain all United States Government
approvals, permits and licenses as may be required for the performance of
the Work under the Contract. Hughes shall perform the Work in accordance
with all applicable laws, government rules, regulations and ordinances of
the United States Government and the conditions of all such applicable
United States Government permits and licenses.
7.2 Hughes shall review with Customer any application Hughes makes to any
government department, agency, or entity for any permit, license,
agreement or approvals, as may be required for performance of the Work,
prior to the submission of such application. Hughes shall provide Customer
a minimum of three (3) Business Days to review such application prior to
submission to such governmental entity and Hughes shall in good faith
consider any comments and proposed revisions made by Customer for
incorporation into such application.
7.3 Notwithstanding this or any other Article in the Contract, the Parties
understand and agree that certain restrictions are placed on access to
Hughes' plant and the use of Technical Data and Information and hardware
delivered under the Contract with relation to the approvals, permits and
licenses Hughes must obtain from the United States Government.
As a result, and if applicable, the Parties agree that such access and the
actual delivery of any Technical Data and Information will be at all times
subject to United States Government approval. Hughes shall prepare said
agreement and in consultation with Customer shall request United States
Government approval.
7.4 The documentation and hardware ("products") furnished under the Contract
will be authorized by the United States Government for export for
Customer's ground station in Australia. The products may not be resold,
diverted, transferred, trans-shipped or otherwise disposed of in any other
country or in any other manner, either in their original form or after
being incorporated through an intermediate process into other end items
without the prior written approval of the United States Government, which
approvals are
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<PAGE>
the sole responsibility of Customer. Additionally, transferring
registration or control to any other person or business entity of the
products furnished under the Contract is considered an export and as such
also requires prior written approval from the United States Government,
which approvals are the sole responsibility of Customer. Customer
represents and warrants that the ultimate end use of the products is for
telecommunications services.
7.5 Customer is responsible for obtaining, as may be required for performing
the Work, all non-United States Government approvals, licenses and permits
(exclusive of those required by Hughes' suppliers or Subcontractors),
including those which may be required for Hughes to perform the Work in
compliance with the laws of any country in which a ground station is
established. Hughes agrees to cooperate with Customer in Customer's
efforts to obtain all required non-United States Government approvals.
7.6 Hughes shall not be responsible for any failure to obtain any licenses,
approvals or consents of any governmental authority, which failure results
from Customer's inability to demonstrate Customer's financial viability or
meet other financial requirements.
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<PAGE>
ARTICLE 8. PRE-SHIP REVIEW, LAUNCH READINESS REVIEW, IN-ORBIT
TESTING AND FINAL ACCEPTANCE
8.1 Preliminary inspections of all Work (including the deliverable items
listed in Paragraph 3.1) may be made by Customer or its designated
representative at Hughes' or a Subcontractor's plant. All such inspections
shall be made in the presence of a representative of Hughes. Customer
shall inform Hughes in writing of those particulars in which the Work
performed under the Contract does not meet the requirements of the
Contract, and Hughes shall use its best reasonable efforts to remedy such
defects.
8.2 Final Acceptance of the Satellite shall arise upon successful completion
of in-orbit testing in accordance with the requirements of the Contract,
following arrival of the Satellite at the Specified Orbital Location or a
Storage Orbit location designated by Customer, delivery to Customer of the
certificate of completion (accompanied by the Preliminary In-Orbit
Acceptance Report) and configuration of the Satellite for hand-over to
Customer.
8.3 Prior to the shipment of the Satellite, Hughes shall conduct a Pre-Ship
Review in accordance with the Test Plan at Hughes's plant. The Pre-Ship
Review shall consist of reviewing Satellite ground test results in
accordance with the Test Plan. Hughes shall provide ORION at least fifteen
(15) days advance notice of the Pre-Ship Review. ORION shall have the
right to witness such review and the right to either concur or not concur
that the Spacecraft meets the requirements of the Contract and is ready
for shipment.
A. The Pre-Ship Review shall verify that:
(1) The Satellite ground testing has been completed in accordance
with the requirements of the Contract;
(2) Except as provided in (3) below, all material discrepancies or
non-conformances affecting the capability of the Satellite to
perform its on-orbit mission throughout its Operational Lifetime
have been corrected;
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<PAGE>
(3) It is the intent of the Parties that all work that can be
accomplished at Hughes' plant will be completed prior to
shipment to the Launch Site. Notwithstanding that intent, Hughes
may, with regard to certain limited non-conformances, conclude
that such non-conformances can be effectively remedied after
shipment, in which case Hughes may, after consultation with
Customer, ship the Satellite to the Designated Launch Site.
(4) The Satellite, ground support equipment for handling the
Satellite in preparation for launch, and supporting
documentation as specified in Exhibit A (Statement of Work) and
Exhibit B (Satellite Technical Specification) are ready for
shipment based on an inspection of the Satellite and such ground
support equipment and an examination of the data package.
B. Successful completion of the Pre-Ship Review shall arise upon the
occurrence of any of the following:
(1) The Pre-Ship Review complies in all respects with the provisions
of Paragraph 8.3.A, and Customer notifies Hughes of its
acceptance of the Pre-Ship Review within five (5) Business Days
following completion. Failure of Customer to provide Hughes with
a notice of either acceptance or rejection within five (5)
Business Days shall be deemed to constitute successful
completion of said review; or
(2) The Pre-Ship Review complies in all respects with Paragraph
8.3.A save for minor non-conformances that have not been
corrected but which Hughes demonstrates to Customer at the
review have no adverse effect upon the capability of the
Satellite to perform its on-orbit mission throughout its
Operational Lifetime, and Customer notifies Hughes of its
acceptance of the Pre-Ship Review within five (5) Business Days
following completion. Failure of Customer to provide Hughes with
a notice of either
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<PAGE>
acceptance or rejection within five (5) Business Days shall be
deemed to constitute successful completion of said review; or
(3) If the Pre-Ship Review reveals non-conformances which require
correction, within five (5) Business Days after such review,
Customer shall request correction of non-conforming conditions
affecting the Satellite in writing. Hughes shall, at its
expense, promptly correct the non-conforming conditions referred
to therein and, promptly following such correction, shall notify
Customer that the corrections have taken place and shall invite
Customer to send representatives to attend an inspection at
which they will be entitled to verify that such corrections have
been satisfactorily made. The provisions of this Paragraph 8.3
shall thereafter apply similarly to that inspection as if that
inspection was the original Pre-Ship Review.
C. Upon successful completion of the Pre-Ship Review, the Satellite
shall be deemed to be Available for Shipment.
8.4 Prior to integration of the Satellite with the Launch Vehicle at the
Designated Launch Site, a Launch Readiness Review (LRR) shall be jointly
conducted by Hughes and Customer. Hughes shall give Customer five (5)
Business Days written notice of the LRR. The purpose of the LRR is to
confirm that the Satellite is ready for Launch. Prior to Hughes proceeding
to integrate the Satellite with the Launch Vehicle, any defects or
non-conformances in the Satellite or other equipment as may remain from
the Pre-Ship Review, or resulting from shipment or otherwise discovered
during Satellite launch preparations, shall have been corrected or
dispositioned. Upon successful completion of the LRR, the Satellite shall
be released by Customer for Launch Vehicle integration. Successful
completion of the LRR shall arise upon the occurrence of any of the
following:
A. The LRR demonstrates compliance in all respects with the provisions
of Paragraph 8.3, and Customer notifies Hughes of its acceptance of
the LRR at the LRR. Failure of Customer to provide Hughes with a
notice of either acceptance or
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rejection at the LRR shall be deemed to constitute successful
completion of said review; or
B. The LRR demonstrates compliance with Paragraph 8.3 save for minor
non-conformances that have not been corrected which Hughes
demonstrates at the review to Customer have no adverse effect upon
the capability of the Satellite to perform its on-orbit mission
throughout its Operational Lifetime, and Customer notifies Hughes of
its acceptance of the LRR at the LRR. Failure of Customer to provide
Hughes with a notice of either acceptance or rejection at the LRR
shall be deemed to constitute successful completion of said review;
or
C. If the LRR reveals non-conformances or defects which require
correction, at the LRR Customer shall request correction of
non-conforming conditions affecting the Satellite in writing.
Failure of Customer to provide Hughes with a notice of either
acceptance or rejection at the LRR shall be deemed to constitute
successful completion of such review. Hughes shall, at its expense,
correct such non-conforming conditions and defects and, following
such correction, shall notify Customer that the corrections have
taken place and invite Customer to send representatives to attend an
inspection to verify that such corrections have been satisfactorily
made. Customer shall notify Hughes of its acceptance of the LRR at
the LRR. Failure of Customer to provide Hughes with a notice of
either acceptance or rejection at the LRR shall be deemed to
constitute successful completion of such review. In the event of any
disagreement between Customer and Hughes relating to the LRR, the
Senior Executive Level representatives of the Parties shall use best
reasonable efforts to promptly resolve such dispute.
8.5 After Launch and either during drift orbit or upon arrival of the
Satellite at the Specified Orbital Location (or a Storage Orbit specified
by Customer, as the case may be) Hughes shall commence in-orbit testing,
in consultation with Customer, in accordance with the requirements of the
Contract. Hughes shall, at its expense, seek to remedy, in consultation
with Customer and in accordance with standard satellite industry
procedures,
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any anomalous conditions that may become apparent as a result of such
testing, and shall retest as necessary subsequent to taking remedial
action (if any). Notwithstanding an anomalous condition or failure of the
Satellite or any Transponder to meet the specifications and other
requirements set forth in Exhibits A and B (which failure the Parties
intend to address through the provisions of the Contract dealing with
Launch Insurance and Performance Incentives payments), successful
completion of in-orbit testing shall be deemed to have occurred on _the
date in-orbit testing is completed in accordance with the requirements of
the Contract, the Satellite is configured for hand-over to Customer, and
the certificate of completion (accompanied by the Preliminary In-Orbit
Acceptance Report) is Delivered to Customer.
8.6 Prior to shipment of the Satellite Control Equipment to the sites selected
by Customer, Hughes shall conduct a Pre-Ship Review at the Hughes plant.
The Pre-Ship Review shall be conducted in accordance with the Test Plan.
Hughes shall provide Customer at least fifteen (15) Business Days advance
notice of the Pre-Ship Review. Customer shall have the right to witness
such review and the right to either concur or not concur that the
Satellite Control Equipment meets the requirements of the Contract and is
ready for shipment.
A. Customer shall direct Hughes to ship the Satellite Control Equipment
to the selected site(s) upon successful completion of the Pre-Ship
Review. The Pre-Ship Review shall be deemed complete and preliminary
acceptance occurs when the Parties agree that:
(1) factory acceptance testing in accordance with Exhibit E (The
Ground Segment) is complete;
(2) all open actions have been closed or a closure plan agreed by
Customer; and
(3) all non-conformances have been corrected or waived in writing by
an Authorized Representative of Customer in accordance with
Paragraph
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35.2, except minor non-conformances which Hughes demonstrates to
Customer have no adverse effect upon the operation of the
Satellite Control Equipment in accordance with Exhibit E (Ground
Segment).
B. Customer shall not withhold its preliminary acceptance of the
Satellite Control Equipment for minor non-conformances which Hughes
demonstrates to Customer have no adverse effect upon the operation
of the Satellite Control Equipment in accordance with Exhibit E
(Ground Segment).
8.7 Final Acceptance of the Satellite Control Equipment shall occur upon
successful completion of installation and checkout of the Satellite
Control Equipment at its installation site, an acceptance test of the
complete Satellite Control Equipment system in accordance with Exhibit E
(Ground Segment), and closure of all action items from the Pre-Ship
Review; provided, however, if there is a delay in installation and
checkout due to unavailability of hardware or facilities not the
responsibility of Hughes, and in particular if the beneficial access
obligations set forth in Article 29 (Customer's Responsibilities) are not
met by Customer, then there shall be a day for day adjustment to the
Delivery Date for the Satellite Control Equipment and Customer shall be
responsible for any expenses actually and reasonably incurred by Hughes
(and invoiced to Customer in reasonable detail) directly related to the
delay.
8.8 Final Acceptance of Contract Deliverable Data and Documentation shall
occur only when the Contract Deliverable Data and Documentation have been
delivered at the place referenced in Table 3.1 of Article 3 in a condition
fully conforming to the provisions of the Contract. Contract Deliverable
Data and Documentation shall be deemed to be in a condition fully
conforming to the provisions of the Contract unless rejected by Customer
in writing within fifteen (15) Business Days after receipt of said
Contract Deliverable Data and Documentation by Customer. If such Contract
Deliverable Data and Documentation are unacceptable, Customer shall,
within the said fifteen (15) Business Days, notify Hughes in writing in
which respects the Contract Deliverable Data and Documentation fail to
conform to applicable requirements of the Contract. Any Contract
Deliverable Data
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and Documentation that fail to conform to applicable requirements of the
Contract with respect to which Customer has so notified Hughes in writing
as being non-conforming, shall be deemed under the Contract not to have
been Delivered unless and until the defects that resulted in such
rejection have been remedied or demonstrated not to exist pursuant to
verification procedures in accordance with the Contract.
8.9 "Delivery" shall be deemed to have occurred for each deliverable item
under the Contract upon its Final Acceptance by Customer pursuant to this
Article 8.
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ARTICLE 9. TITLE AND RISK OF LOSS
9.1 Risk of loss or damage to the Satellite to be delivered under the Contract
shall pass from Hughes to Customer at the time of Intentional Ignition of
that Satellite. In the event of Intentional Ignition that fails to lead to
Launch, risk of loss shall revert to Hughes at the point in time when the
Launch Vehicle's liquid engine has been safely shut down and Hughes will
retain risk of loss until the next Intentional Ignition. Title to the
Satellite, free and clear of all liens and encumbrances, shall pass from
Hughes to Customer at Final Acceptance of the Satellite in accordance with
Article 8.
9.2 Title and risk of loss or damage to the Satellite Control Equipment shall
pass from Hughes to Customer at Final Acceptance of the Satellite Control
Equipment in accordance with Article 8.
9.3 The Parties agree that, upon Hughes' request, the Customer shall sign and
will permit Hughes to file, for precautionary purposes, appropriate
Uniform Commercial Code financing statements or any similar document
having the same effect in foreign countries reflecting Hughes' right,
title, and interest to the SCE prior to transfer of title in such
deliverable items to the Customer, provided that Hughes shall be
responsible for preparing such financing statements and terminating such
financing statements upon transfer of title in such items to Customer.
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ARTICLE 10. EXCUSABLE DELAYS
With respect to Hughes' performance of its obligations under the Contract, an
"Excusable Delay" shall be any delay in the performance of the Work caused by an
event which is beyond the control of Hughes, its Affiliates and its
Subcontractors, and not involving fault or negligence of Hughes, its Affiliates
or its Subcontractors, such as, but not limited to, any acts of Government,
including but not limited to the Governments of the United States and the
country of any foreign ground station in their contractual or sovereign
capacities (including the refusal, suspension, withdrawal, or non-renewal of
export or import licenses essential to the performance of the Contract); war
(whether declared or undeclared), outbreak of national hostilities, or civil
insurrection; fire; earthquake; flood; strike or work slowdown not reasonably
within the control of Hughes or Hughes Communications, Inc.; epidemic;
quarantine restriction; freight embargo; acts of God; Customer's failure to
perform its obligations as set forth in Article 29, and where such delay could
not have been avoided by Hughes or its Subcontractors through the exercise of
reasonable foresight or reasonable precautions and cannot be circumvented by
Hughes through the use of reasonable efforts (for example, alternate sources or
work-around plans); provided written notice is given to Customer promptly (under
the circumstances) after Hughes shall have first learned of the possibility of
such an event and provided further that failure on Hughes' part to provide such
notice shall not prevent such an event from qualifying as an Excusable Delay
should Customer have actual notice of the event (e.g., an earthquake that
receives nation-wide publicity). In addition, any postponement by the Launch
Provider of Launch of the Satellite shall constitute Excusable Delay (whether or
not such postponement is d whether or not such postponement involves any fault
or negligence on the part of the Launch Provider) subject to the notice
provisions set forth in the prior sentence. Notwithstanding any other provision
of the Contract, in the event of such an Excusable Delay there shall be an
equitable adjustment to the time for performance of the affected Work, and the
schedule of payments set forth in Exhibit F (Payment Plan) and other terms
stated in the Contract as they are applicable; provided, however, that the
Parties agree that while it is impossible to foresee all of the contingencies
and circumstances associated with the types of Excusable Delay set forth above,
ordinarily the occurrence of an Excusable Delay shall not entitle Hughes to an
increase in the Contract Price (unless such Excusable Delay is caused by
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postponement by the Launch Provider of the launch of the Satellite or by
Customer's failure to perform its obligations as set forth in Article 29, in
which cases there may be an equitable adjustment in the Contract Price for
incremental costs incurred by Hughes as a result of such Excusable Delay); and
provided further that the occurrence of an Excusable Delay caused by Customer's
failure to perform its obligations as set forth in Article 29 (Customer's
Responsibilities) shall not entitle Customer to an adjustment in the schedule of
payments set forth in Exhibit F (Payment Plan).
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ARTICLE 11. LIQUIDATED DAMAGES FOR LATE DELIVERY
<TABLE>
<S> <C>
11.1 In the event the Satellite is not Delivered on or before the Scheduled
Delivery Date for the Satellite and such late delivery prevents Customer
from providing service for which it has one or more executed contracts
pursuant to which it would earn commercial revenue, then, commencing on
the first Day following the Scheduled Delivery Date, and continuing for a
period thereafter not to exceed [ ] Days (the*
"Damages Period"), the Contract Price shall be reduced by [ ]*
[ ]*
[ ] for each Day during the Damages Period that the*
Satellite has not been Delivered; provided, however, that the Contract
Price reduction specified above will not be applicable with respect to any
period during which an Excusable Delay exists or during which the failure
to Deliver the Satellite is attributable to the Customer's failure to
perform any of its responsibilities under Article 29 (Customer's
Responsibilities), or other provisions of the Contract (and the Damages
Period will be extended, as appropriate, to reflect any such period).
</TABLE>
As used above, the term "Scheduled Delivery Date for the Satellite" shall
mean the delivery date specified for the Satellite in Article 3 (Delivery
Schedule), as such date shall be extended, as appropriate, to reflect all
periods during which an Excusable Delay exists or any similar extension of
time pursuant to Article 29 (Customer's Responsibilities), or as otherwise
agreed by the Parties pursuant to an amendment to the Contract in
accordance with Paragraph 35.5 (Amendments).
11.2 Except as provided in Paragraph 17.2, the Contract Price reduction
specified in Paragraph 11.1 shall be the sole remedy available to Customer
in the event of a late Delivery of the Satellite to be Delivered
hereunder, and shall be in lieu of all damages of any kind or any right to
terminate the Contract for default. The Contract Price reduction specified
in Paragraph 11.1 shall constitute liquidated damages for any such late
Delivery (and shall not constitute a penalty), the Parties acknowledging
that such liquidated damages are believed to represent a genuine estimate
of the losses that would be suffered by reason of
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any such delay (which losses would be difficult or impossible to calculate
with certainty). In the event the Damages Period has expired and the
Contract Price has been reduced by the maximum amount specified in
Paragraph 11.4, then, at any time thereafter but prior to actual delivery
of the Satellite, Customer may exercise its right to terminate the
Contract for Hughes' default pursuant to Paragraph_17.2, in which case
Customer's rights and remedies shall be governed by the provisions of that
Article. Customer shall have no other rights or remedies for late Delivery
of an item to be Delivered under the Contract. The liquidated damages
specified in Paragraph_11.1 shall not be applicable to a Satellite which
is delivered for purposes of storage, unless the requirement for such
storage was caused primarily by Hughes' unexcused delay.
11.3 In the event of a late Delivery requiring a reduction in Contract Price
pursuant to the foregoing, the Parties shall, if appropriate, equitably
adjust the payment plan set forth in Exhibit F (Payment Plan).
11.4 The maximum price reduction for late Delivery under the Contract pursuant
to termination under Paragraph 17.2 shall never exceed Six Million U.S.
Dollars (U.S. $6,000,000).
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ARTICLE 12. ACCESS TO WORK-IN-PROGRESS AND DATA
12.1 Subject to Article 7 (Permits and Licenses: Government Approvals),
Paragraphs 12.3 and 12.4 below, and Article 21 (Proprietary Information),
Hughes shall provide Customer Personnel reasonable access to all Work
(including work-in-progress and observation of tests in accordance with
the requirements of Exhibit_D (Acceptance Test Plan)), at Hughes'
facilities, at reasonable times during the period of the Contract,
provided that such access does not unreasonably interfere with such Work
and access to Work is coordinated with the Hughes Program Manager or other
person designated by Hughes for such purpose. Subject to the restrictions
set forth above, Customer Personnel shall also be afforded access to the
Subcontractors' facilities, to the extent that Hughes is permitted to
provide such access, and subject to Hughes accompanying Customer Personnel
on any such visit.
12.2 Work-in-progress, technical and schedule data and documentation directly
related to the Contract shall be subject to reasonable evaluation and
inspection by Customer Personnel, subject to the restrictions set forth in
Paragraphs_12.1,12.3 and 12.4.
12.3 Customer Personnel visiting at the Hughes facility or a Subcontractor's
facility (a) will abide by Hughes' security regulations and/or those of
its Subcontractors and applicable United States Government regulations;
(b) will not disclose to a third party any information received in
connection with the access provided hereunder and will use such
information only in the performance of the Contract, whether or not such
information is marked or otherwise identified as proprietary; and (c) will
not remove any documents, materials or other items from any facility of
Hughes or its Subcontractors (other than Contract Deliverable Data and
Documentation and other documents delivered to Customer Personnel for
Customer's use and with no requirement to return to Hughes) without the
express written consent of the Hughes Program Manager.
12.4 Customer shall submit the individual name(s) of any proposed Consultant
who will have access to the plants and/or proprietary data of Hughes
and/or its Subcontractors to Hughes, which shall have the right to approve
all such Consultants (whether paid or
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unpaid). Such approval shall not be withheld by Hughes unless (i) the
hiring of such Consultant would give rise to a reasonable concern by
Hughes regarding the protection of its proprietary or competitive
information or compliance with its security requirements or United States
law, and/or (ii) Hughes has knowledge of prior incidents in which such
Consultant has demonstrated behavior or activity incompatible with Hughes'
ability to achieve the objectives of the Contract. In the event Hughes
disapproves a Consultant proposed by Customer, Hughes shall provide
Customer with an explanation, which need not be written, of its reasons
for disapproval.
12.5 As a condition to access to the facilities of Hughes, its Affiliates and
its Subcontractors under this Article, Customer agrees to indemnify Hughes
as set forth in Paragraph 39.1 of the Contract.
12.6 Hughes shall provide office space and facilities (co-located with the
program office) for the accommodation of up to three (3) Customer
Personnel who are U.S. citizens, and if necessary, separate facilities for
two (2) Customer Personnel who are citizens of the Republic of Korea plus
facilities for two (2) rotational U.S. Customer Personnel co-located with
the Koreans at Hughes' facilities. Hughes shall make reasonable work space
available for such Customer Personnel at environmental test facilities (if
located off site) and shall use best reasonable efforts to ensure that
facilities are provided for up to two (2) such Customer Personnel at other
selected Subcontractors' plants on a temporary basis to attend meetings or
witness tests. At a minimum, Hughes shall provide desks, chairs, office
supplies, local telephone service (long distance telephone usage to be
charged to Customer), car parking facilities and access to meeting rooms,
copying machines and facsimile equipment, and, as available, access to and
use of video conferencing facilities at Hughes' facilities.
12.7 Customer Personnel will have reasonable access to (i) drawings, circuit
diagrams/schematics, specifications, standards or process descriptions
available to Hughes and relevant to the Satellite, and (ii) data and
documentation provided to Hughes by its Subcontractors and relevant to the
Satellite (to the extent permitted by the Subcontractors
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after Hughes has used best efforts to obtain such permission), and (iii)
Contract Deliverable Data and Documentation. Where such documentation is
necessary for evaluation of designs, performance considerations,
assessment of test plans and test results or for any other purpose
connected with the design, qualification, testing, Final Acceptance or
operation of the Satellite and its components, Hughes will make available
to Customer Personnel copies of such documentation (excluding unit and
unit sub-assembly design and process data), at no charge to Customer, on
the reasonable request of Customer Personnel. To facilitate their work in
this respect, Hughes will allow Customer Personnel reasonable access to
all Customer-specific indices related to such drawings, circuit
diagrams/schematics, and documents.
12.8 With regard to electronically generated information, Hughes will copy
Customer and/or provide Customer electronic access to such information as
is necessary to keep Customer advised, on a current basis, of program
issues, decisions and problems. Hughes shall, if feasible, provide
Customer Personnel access to Hughes's electronic mail systems through the
Internet, such access to be at Customer's cost. To the extent Hughes
establishes data links for general use between the facilities of Hughes
and its customers, Hughes shall establish data links between its and
Customer's facilities such that Customer has remote electronic access to
those project related documents identified in the CDRL. Hughes will also
provide Customer Personnel with "real time" access to all measured data
for the Satellite taken at Hughes' and/or Subcontractor's facilities on a
non-interference, no-cost basis.
12.9 Customer Personnel shall be entitled to attend all meetings and reviews
(including meetings and reviews held by electronic means) of Hughes and of
Hughes with any Subcontractors where such meetings and reviews are solely
related to Customer's project schedule and management, engineering,
design, manufacturing, integration, testing and launch (but not meetings
relating solely to Hughes' product line) and shall have the right to
participate in and make recommendations, but not to control, give
directions or assign actions, in all meetings and reviews at the system,
subsystem and unit level, as well as in internal program reviews. The
Parties agree to work cooperatively in resolving issues that
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arise at the various meetings and, where Customer has an objection to a
recommended resolution/ implementation, the Parties agree to discuss it at
the Senior Executive Level prior to implementation, provided that the
final decision concerning implementation shall remain with Hughes, who
shall provide Customer with a written explanation for its decision. With
respect to Hughes, "Senior Executive Level" shall mean the President or
Chairman of the Board of Hughes, and with respect to Customer, "Senior
Executive Level" shall mean the Chief Executive Officer of Customer or
Senior Vice President, Engineering and Satellite Operations of Orion
Satellite Corporation.
In the event a meeting or review is convened at Hughes' or a
Subcontractor's plant relating to Customer's program, Hughes shall provide
reasonable advance notice to Customer and shall make feasible and
appropriate arrangements to facilitate the entry of Customer Personnel to
the meeting place.
12.10 Hughes shall require that any Subcontract entered into after the Effective
Date of Contract (other than bulk-buy Subcontracts) contains a provision
substantially similar to this Article 12 to ensure the effectiveness of
Customer's rights under the Contract. With respect to Subcontracts entered
into before the Effective Date of Contract, Customer's rights under this
Article 12 shall be as permitted in such Subcontracts. With respect to
bulk-buy Subcontracts for critical sub-assemblies entered into after the
Effective Date, Hughes shall inform the Subcontractor of the provisions of
this Article 12 relating to access to Subcontractor's work-in-progress and
data and shall use reasonable efforts to request on Customer's behalf a
similar level of access.
12.11 Hughes' obligations under this Article shall be subject to applicable
United States Government regulations and Hughes' standard security rules
and regulations.
12.12 Consultants who are foreign nationals may be afforded a more restricted
degree of access to Hughes' facilities, such level of access to be
determined by Hughes in its reasonable discretion.
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12.13 With respect to foreign nationals access to design and process data,
Hughes will provide to a location designated by Customer two data sets:
one properly marked for U.S. citizen access; and a second (more
restrictive) data set properly marked for foreign nationals. Customer
accepts responsibility for proper distribution of each data set in a
manner that complies with all relevant United States Government laws and
regulations.
12.14 Hughes represents that the access to facilities and information provided
under the Contract is substantially equivalent to that generally granted
to its commercial customers (excluding Hughes Communications, Inc. or any
successor entity).
12.15 It is the intention of the Parties that the measures set forth in this
Article 12 shall afford Customer sufficient visibility into the Orion 3
Satellite Program such that Customer shall, throughout the duration of the
Program, be aware and informed with respect to material developments
affecting Hughes' ability to deliver the Satellite and other items to be
delivered according to the requirements of the Contract and on schedule to
meet the delivery dates set forth in Table 3.1 above. In order to further
facilitate this objective, Hughes shall advise Customer promptly by
telephone and confirm in writing any event, circumstance or development
that in Hughes' reasonable judgment Customer should not have become aware
of via the other measures set forth in this Article 12 and that, after
considering the applicability of reasonable remedial measures, materially
threatens (i) the quality of the Satellite or any component part thereof,
as well as any services, Contract Deliverable Data and Documentation, SCE,
Ground Control Software, or (ii) any delivery dates set forth in Table 3.1
of Article 3.
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ARTICLE 13. INTER-PARTY WAIVER OF LIABILITY
13.1 All operations at the Designated Launch Site pursuant to the Contract will
be subject to a no-fault, no-subrogation inter-party waiver of liability
under which Customer, Hughes and each other Person conducting operations
at the Designated Launch Site, including the Launch Provider ("Other
Users"), agrees to be responsible for any loss or liability which it
sustains as a result of damage to its own property and employees,
including death, while involved in operations, whether or not such damage
arises through negligence of any Person. It is the intent of the Parties
that this inter-party waiver of liability be construed broadly to achieve
its intended objectives of clarifying and minimizing the risk of liability
to third parties arising from Launch Operations. Prior to commencement of
Launch Operations, Customer will provide Hughes with evidence reasonably
satisfactory to Hughes that all other such Persons have agreed to such
inter-party waiver of liability.
13.2 If either Party contracts or subcontracts with a third party to provide
services which necessitate the contractor's or subcontractor's presence on
the Designated Launch Site, then such Party will also ensure that such
third party agree to a no-fault, no-subrogation inter-party waiver of
liability and indemnity for damages it sustains, identical to the Parties'
respective undertakings under this Article.
13.3 In the event that either Customer or Hughes fails to obtain the aforesaid
inter-party waiver of liability and indemnity from their respective
contractors or subcontractors, then such Party shall indemnify and hold
the other Party, the Launch Provider, the Other Users of launch services
and their respective contractors and subcontractors harmless from claims
brought by such Party's subcontractors with respect to matters that
otherwise would have been covered by the inter-party waiver of liability.
13.4 The Parties will take such further actions as may be required to implement
the provisions of this Article 13, including the execution of such
agreements and waivers as are customarily used with respect to operations
at the Designated Launch Site and are consistent with the provisions of
this Article 13.
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ARTICLE 14. HUGHES' REPRESENTATIONS, WARRANTIES AND COVENANTS
14.1 Subject to the provisions of Article 34 (Limitation of Liability) and
Paragraph 14.10, Hughes warrants that the Satellite delivered under the
Contract shall be free from material defects in materials and/or
workmanship as specified by Exhibit B (Satellite Technical Specification).
This warranty shall apply to the Satellite (other than the Satellite's
batteries) beginning on the date upon which the Satellite is Available for
Shipment and shall run for a period of 24 months (2 years) thereafter, or
until Intentional Ignition, whichever is earlier.
With respect to batteries, this warranty shall begin upon cell activation
and shall run for a period of 24 months (2 years) after such activation,
or until Intentional Ignition, whichever is earlier. In the event the
Satellite is placed in storage due to the fault of Hughes, the foregoing
warranty periods shall be extended by the length of such storage period.
14.2 Subject to the provisions of Article 34 (Limitation of Liability), and
Paragraph 14.10, Hughes warrants that the SCE delivered under the Contract
shall be free from material defects in materials and/or workmanship as
specified by Exhibit E (Ground Segment). With respect to the SCE, this
warranty shall begin upon the date of Final Acceptance thereof and shall
run for a period of 12 months (1 year) thereafter.
14.3 Subject to the provisions of Article 34 (Limitation of Liability) and
Paragraph 14.10, Hughes warrants that the simulator (as described in
Exhibit E) delivered under the Contract shall be free from material
defects in materials and/or workmanship as specified by Exhibit E (Ground
Segment). With respect to the simulator, this warranty shall begin upon
the date of Final Acceptance thereof and shall run for a period of 12
months (1 year) thereafter.
14.4 In the event the Satellite is not Delivered on or before the Scheduled
Delivery Date due to the fault of Hughes, the warranty periods set forth
in Paragraphs 14.2 and 14.3 shall be extended one Day for each Day
Delivery is delayed beyond the Scheduled Delivery Date, up to a maximum
extension of twelve (12) months.
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14.5 Customer shall have the right at any time during the period of the
warranties set forth in Paragraphs 14.1, 14.2, and 14.3 (as the warranty
periods set forth in Paragraphs 14.2 and 14.3 may be extended pursuant to
Paragraph 14.4) to require that any Work not conforming in any material
respect to the Exhibits to the Contract be promptly corrected or replaced
(at Hughes' option and expense) with conforming Work. If Hughes fails to
correct or replace such defective Work within a reasonable period after
notification from Customer, Customer may then require Hughes to repay such
portion of the Contract Price as is equitable under the circumstances in
lieu of repairing or replacing such defective Work.
14.6 Hughes covenants that it shall assign properly qualified and experienced
personnel to the Orion 3 Satellite Program contemplated by the Contract.
14.7 Hughes represents and warrants that it is either the owner of, or
authorized to use and incorporate, any software or invention utilized or
incorporated in the Work.
14.8 Hughes represents, warrants and covenants that:
A. it has the requisite corporate power and authority to enter into the
Contract and to carry out the transactions contemplated by the
Contract; and
B. the execution, delivery and performance of the Contract and the
consummation of the transactions contemplated by the Contract have
been duly authorized by the requisite corporate action of Hughes;
and
C. it has (and will have throughout the period of performance of the
Contract) adequate financial resources to fulfill its obligations
hereunder, including any repayment obligations upon termination; and
D. it will, until Final Acceptance, provide Customer with Hughes
Electronics Space Segment quarterly financial statements (profit and
loss/balance sheet) evidencing Hughes' financial ability to perform;
and
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E. the Contract is a valid and binding obligation of Hughes,
enforceable in accordance with its terms.
14.9 Hughes represents and warrants to Customer that, to the best of its
knowledge, it has not violated any applicable laws or regulations or any
Customer policies of which Hughes has been given notice regarding the
offering of unlawful inducements in connection with the Contract.
14.10 THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING FITNESS FOR PARTICULAR PURPOSE OR MERCHANTABILITY AND THE REMEDY
PROVIDED IN PARAGRAPH 14.5 IS THE SOLE REMEDY FOR FAILURE BY HUGHES TO
FURNISH THE SATELLITE, SCE AND SIMULATOR FREE FROM MATERIAL DEFECTS IN
MATERIAL OR WORKMANSHIP AS SET FORTH IN PARAGRAPHS 14.1, 14.2 AND 14.4
ABOVE, RESPECTIVELY. ALL OTHER WARRANTIES OR CONDITIONS IMPLIED BY ANY
OTHER STATUTORY ENACTMENT OR RULE OF LAW WHATSOEVER ARE EXPRESSLY EXCLUDED
AND DISCLAIMED.
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ARTICLE 15. ORION'S REPRESENTATIONS, WARRANTIES, COVENANTS AND ACKNOWLEDGMENTS
Unless specifically specified otherwise, references to Customer and ONS
refer only to those entities as distinct and separate corporate entities
and not to any of their subsidiaries or Affiliates. Customer and/or ONS,
as the context dictates, represent and warrant to Hughes as follows:
15.1 Organization, Good Standing and Qualification. As of the Effective Date of
Contract, each of Customer and ONS is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware. Each of Customer and ONS has all requisite power and authority
to own and operate its material properties and assets and to carry on its
respective business as now conducted in all material respects. Customer
and ONS are each duly qualified to transact business and are in good
standing in each jurisdiction in which the failure to so qualify would
have a Material Adverse Effect (as hereinafter defined). For purposes of
this Article 15, the term "Material Adverse Effect" shall mean any
material adverse change in (a) the legality, validity or enforceability of
the Contract, or (b) the ability of Customer or ONS to perform the
Contract or (c) the financial condition or operations of Customer or ONS.
15.2 Authorization. Customer and ONS each has all corporate and other requisite
authority to execute, deliver, carry out and perform its obligations under
the terms of the Contract and all the transactions contemplated hereunder.
The Contract and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all requisite corporate action on
behalf of Customer and ONS.
15.3 Capitalization and Subsidiaries. As of the Effective Date of Contract,
Customer and ONS do not presently own or control, directly or indirectly,
any interest in any other corporation, partnership, association or other
business entity or have any subsidiaries, except those listed in Schedule
15.3. Schedule 15.3 also includes a listing of the percentage ownership of
Customer or ONS, as the case may be, in the foregoing entities.
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15.4 Litigation. As of the Effective Date of Contract, except as provided on
Schedule 15.4, there are no actions, suits, or proceedings or
investigations Pending, or, to the knowledge of Customer and/or ONS,
threatened against either Customer or ONS which ONS is required to
disclose in its filings under the Securities Exchange Act of 1934, as
amended. In addition, neither Customer nor ONS currently intends to
initiate such an action. For purposes of the Contract, "Pending," when
used in the context of legal action, lawsuit, proceeding or investigation,
shall mean an action, suit, proceeding or investigation as to which
Customer or ONS shall have knowledge or received written notice.
15.5 Certain Actions. Except as set forth on Schedule 15.5 hereto, neither
ORION nor ONS has, from September 30, 1996 to the Effective Date of
Contract, incurred any indebtedness of Five Hundred Thousand U.S. Dollars
(U.S. $500,000) or more, or sold, exchanged or otherwise disposed of any
of its material assets or rights.
15.6 Title to Properties and Assets. Customer owns its material properties and
assets, other than leased properties, free and clear of all liens, charges
and encumbrances, except for (a) such encumbrances and liens which arise
in the ordinary course of business and do not materially impair Customer's
ownership or use of such property or assets, (b) liens created by the
Contract and (c) liens listed on Schedule 15.6.
15.7 Financial Statements. Customer has delivered to Hughes the audited
consolidated statements of operations, changes in shareholders' equity and
cash flows for each of the three (3) years in the period ended December
31, 1995, including the notes thereto, of ONS and the unaudited
consolidated balance sheets at September 30, 1996 and related unaudited
consolidated statements of operations and cash flows for the nine (9)
months then ended of ONS (together, the "Financial Statements"). The
Financial Statements have been prepared in accordance with GAAP and
present fairly in all material respects the consolidated financial
condition, cash flow, results of operations and changes in stockholders
equity of ONS and its subsidiaries for such periods. Except as disclosed
in Schedule 15.7, from September 30, 1996 to the Effective Date of
Contract, there has not been (a) any material adverse change to the
financial condition of ONS or any of its
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subsidiaries, or (b) any damage, destruction or loss, whether or not
covered by insurance, which has had a Material Adverse Effect. Except as
disclosed in the Financial Statements or in Schedule 15.7, neither
Customer nor ONS is a guarantor or indemnitor of any material indebtedness
of any other person, firm or corporation. ONS, on a consolidated basis,
maintains and will continue to maintain a standard system of accounting
established and administered in accordance with GAAP.
15.8 Undisclosed Liabilities. As of the Effective Date of Contract, except as
set forth on Schedule 15.7 or on any other Schedule hereto, neither
Customer nor ONS is subject to any liabilities of any nature, whether
absolute, contingent or otherwise (whether or not required to be accrued
or disclosed under the accounting disclosure standards applicable to such
entity) which have had or can reasonably be expected to have a Material
Adverse Effect, except to the extent set forth or provided in the
Financial Statements. Except as set forth in Schedule 15.7 or any other
Schedule hereto, all debts, liabilities and obligations incurred by such
entities, after the date of the Financial Statements, were incurred in the
ordinary course of business and are in amounts less than Five Hundred
Thousand U.S. Dollars (U.S. $500,000).
15.9 Disclosure. As of the Effective Date of Contract, neither the Contract
(including the representations and warranties of this Article 15 and the
related Schedules) nor any of the written statements or certificates made
or delivered in connection herewith to the extent such are listed in
Schedule 15.9 (including the filings made by ONS under the Securities
Exchange Act of 1934, as amended, which have been provided to Hughes and
are listed in Schedule 15.9), contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
herein or therein, in light of the circumstances under which they were
made, not misleading.
15.10 Compliance with Other Instruments. To the knowledge of Customer and ONS,
as of the Effective Date of Contract, neither Customer nor ONS is in
violation or default of its respective Certificate of Incorporation or its
respective By-Laws, or in material default of any instrument, judgment,
order, writ, decree or oral or written contract or other
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agreement to which it is a party or by which it is bound or of any
provision of federal, state or local statute, rule or regulation
applicable to such entities as of the date hereof where such violation or
default will have a Material Adverse Effect. The execution, delivery and
performance of the Contract and the consummation of the transactions
contemplated hereby will not (i) result in any such violation or be in
conflict with the Certificate of Incorporation or the By-Laws of such
entity, or (ii) be in conflict with any instrument, judgment, order, writ,
decree, or (iii) be in conflict with any contract or other agreement or be
an event which results in the creation of any lien, charge or encumbrance
upon any material asset of any of such entities other than as provided in
the Contract, where such conflict or creation would have a Material
Adverse Effect.
15.11 Customer's Financial Strength. Hughes and Customer acknowledge and agree
that Hughes, in entering into the Contract, is relying on the separate
existence and financial strength of Customer alone and not of any
Affiliate of Customer.
15.12 Other Commitments. The following representations and covenants of Customer
only apply prior to Hughes' receipt of the Balloon Payment (and shall not
apply to any financing entered into by Customer, ONS, or Customer's
Affiliates to obtain the funding for such payment which results in the
Balloon Payment being made substantially concurrently with such financing
being obtained for the Balloon Payment):
1) Customer represents and warrants that its assets do not secure the
liabilities of ONS ("Parent"), Orion Atlantic, L.P. or any other
person, and prior to Hughes' receipt of the Balloon Payment, will
not grant such a security interest.
2) Customer represents and warrants that, as of the Effective Date of
Contract, it is not a party to any financing agreements which
contain a provision that a default by any third party in such third
party's obligations will be a default under any of Customer's
financing agreements where enforcement of such provision is likely
to have a material adverse effect on the ability of Customer to make
the Balloon
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Payment or have a material adverse effect on Hughes' right, title
and interest in the Work or the security interest held by Hughes
therein.
3) Customer agrees that it shall not agree to a provision in any of its
financing agreements that a default by any third party in such third
party's obligations will be a default under any of Customer's
financing agreements unless the lender provides Hughes with an
express acknowledgment of those Hughes' rights under the Contract
listed in Schedule 15.12 and agrees not to contest those rights.
Further, Customer will not agree to such provision if it is likely
to have a material adverse effect on the ability of Customer to make
the Balloon Payment or have a material adverse effect on Hughes'
right, title and interest in the Work or the security interest held
by Hughes therein.
15.13 ONS represents and warrants that, as of the Effective Date of Contract, to
ONS' knowledge, no competing satellite vendor has any claim against Hughes
based on any relationship, contract or understanding between Customer or
ONS and any competing satellite vendor arising out of Hughes' entry into
the Contract. Customer and ONS shall indemnify and hold Hughes harmless
for any breach of the immediately foregoing representation and warranty.
15.14 Customer and ONS represent and warrant that the payments to be made to
Hughes under the Contract shall be made by Customer and shall not be from
funds that are held by Customer in either an express or constructive
trust. Customer and ONS shall indemnify and hold Hughes harmless for any
breach of these representations and warranties.
15.15 ONS shall indemnify and hold Hughes harmless against any damages that
arise from the ORION 3 Satellite business contemplated by the ATP and the
Contract competing with the business of International Private Satellite
Partners, L.P. d/b/a ORION Atlantic, L.P.
15.16 Customer acknowledges that the Republic of Marshall Islands licenses or
consents with respect to the Specified Orbital Location for the ORION 3
Satellite are held by an entity other than Customer.
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15.17 Customer and ONS represent and warrant that, as of the Effective Date of
Contract, Customer is not a party to a joint venture or any similar
agreement with Loral Space and Communications Corporation or any of its
subsidiaries (collectively "Loral").
15.18 Customer and ONS represent and warrant that Customer has been and shall be
operated as an independent and separate corporate entity from ONS. As of
the Effective Date of Contract, Customer and ONS shall have separate bank
accounts, separate accounting records (although Customer has been and may
continue as part of the ONS consolidated financial reporting group), and
separate stationery, and Customer shall be responsible for its allocable
portion of overhead expenses, such as rent, compensation for officers and
legal counsel, etc.
15.19 THE WARRANTIES SET FORTH IN THIS ARTICLE 15 ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED. ALL OTHER WARRANTIES OR CONDITIONS IMPLIED
BY ANY OTHER STATUTORY ENACTMENT OR RULE OF LAW WHATSOEVER ARE EXPRESSLY
EXCLUDED AND DISCLAIMED.
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ARTICLE 16. TAXES AND DUTIES
16.1 This Paragraph 16.1 applies only to goods and services delivered by Hughes
to any foreign country pursuant to the requirements of the Contract. The
Contract Price excludes, and Hughes and Hughes' Affiliates and
Subcontractors shall not be required to pay, any present or future
non-U.S. taxes, duties, fees, levies, bonds, duties, charges,
contributions, or any other such fiscal burden based on the delivery by
Hughes of goods or services to Customer in any foreign country pursuant to
the requirements of the Contract imposed by any jurisdiction other than
the United States or the State of California, including the following:
A. Taxes, customs, duties, or other charges levied on goods imported
into or services delivered in any foreign country under the
Contract; and
B. Taxes, customs, duties, or other charges levied on materials, test
equipment, tools, and documentation temporarily imported into any
foreign country which are required for the performance of the
Contract; and
C. Income taxes or business taxes levied by any foreign country on
goods or services delivered directly by Hughes to Customer in a
foreign country; and
D. Value added taxes or any similar taxes imposed by any foreign
country on goods or services delivered directly by Hughes to
Customer in a foreign country.
16.2 Hughes shall consult with Customer or its designated Consultant(s) on any
taxes or duties which may be payable under Paragraph 16.1 above. In the
event any of the items in 16.1 above are levied upon Hughes, or Hughes'
Affiliates or Subcontractors, Hughes shall immediately notify Customer.
Customer, within five (5) Business Days of receipt of such notification
from Hughes, shall either have the charges waived or pay the charges
directly. For those items in Paragraph 16.1 that Hughes is required by law
to pay, Customer shall reimburse Hughes in an amount which leaves Hughes
in the same economic position as if such payment of charges and
reimbursement thereof had not been required, within thirty
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(30) days of Customer's receipt of Hughes' invoice. Hughes' reimbursement
request will be accompanied by evidence of the amount and purpose of such
payments, and shall include a calculation of the amount of reimbursement
required under the preceding sentence.
16.3 Hughes shall be responsible for and shall pay all United States (federal
and state) taxes, fees, levies, duties and other lawful charges which are
levied upon Hughes or its Affiliates in connection with Hughes'
performance of the Work under the Contract, except those levied as a
result of transfer of title in the United States for an unlaunched
Satellite as described in Article 32.5.
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ARTICLE 17. TERMINATION AND OTHER RIGHTS
17.1 Termination for Customer's Convenience
A. Customer may, upon written notice to Hughes, at any time terminate
the Work in accordance with the terms set forth below, and Hughes
shall immediately cease Work in the manner and to the extent
specified. Notwithstanding the foregoing, in no event shall there be
a termination under this Paragraph 17.1 after Intentional Ignition.
B.S Upon receipt of a notice of termination, as provided in
Paragraph_17.1.A above, Hughes shall take the following actions:
(1) stop Work under the Contract on the date and to the extent
specified in the notice of termination;
(2) place no further orders or subcontracts for materials, services,
or facilities;
(3) terminate orders and subcontracts to the extent that they relate
to the performance of the Work;
(4) settle all outstanding liabilities and all claims arising out of
such termination of orders and subcontracts for materials,
services, or facilities; and
(5) take such action as may be reasonably necessary, or as Customer
may direct, for the protection and preservation of the property
related to the Contract which is in the possession of Hughes or
any Subcontractor and in which Customer has or may acquire an
interest.
C. In the event of termination under this Paragraph 17.1 and provided
the termination is not due to Hughes' default under Paragraph 17.2,
Hughes shall be entitled to payment of an amount equal to the
Termination Liability Amount as specified in Exhibit F (Payment
Plan) less the sum of all amounts (including the ATP Payment)
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received by Hughes under the Contract; provided that in the event
such amount is a negative number, Hughes shall refund such amount to
Customer.
D. Hughes shall submit an invoice to Customer within sixty (60) Days
after the termination date, which invoice shall specify the amount
due to Hughes from Customer pursuant to this Paragraph 17.1, and
Hughes shall be entitled to payment by Customer of such amount
within thirty (30) Days thereafter. Payment of such amount by any
Financing Entity on behalf of Customer shall relieve Customer from
its obligation to make such payment.
E. The amount payable by Customer to Hughes pursuant to
Paragraph 17.1.C shall constitute a total discharge of Customer's
liabilities to Hughes for termination pursuant to this
Paragraph 17.1.
F. In the event of termination pursuant to this Paragraph 17.1 after
Hughes' receipt of the Balloon Payment, upon payment of all amounts
due hereunder, then
(1) title to all items of Work which would have been incorporated
into a deliverable item under the Contract, and which are in
progress before the giving of notice under Paragraph 17.1.A
above, shall, subject to applicable United States Government
export regulations, vest in Customer, and Hughes shall deliver
all such items to Customer FOB Hughes plant, El Segundo,
California (at which point Customer shall accept such items);
and.
(2) Hughes agrees to refund to Customer the difference between (x)
the lesser of (i) the price of the Launch Services set forth in
Paragraph 4.2 ("Launch Services Price") and (ii) the resale
price of such Launch Services to a third party and (y) Hughes'
additional actual costs incurred to resell such Launch Services
(including unrecoverable costs charged by the Launch Provider
such as: inventory carrying fees; reasonable reprogramming
costs; and profit), plus a profit on such additional actual
costs of twelve and one-half
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percent (12.5%); provided that in the event Customer has not
paid in full the Launch Services Price (taking into account any
termination liability payment made by Customer) the "resale
price" in (x) above shall be adjusted, for purposes of these
calculations, by multiplying such "resale price" by the amount
Customer has paid for the Launch Services (taking into account
any termination liability paid by Customer) divided by the
Launch Services Price (for example, if Customer has paid only
[ ] of the Launch Services Price [ ] and*
Hughes resells the Launch Services for [ ] then the*
"resale price" for purposes of (x) shall be adjusted to be
[ ] times [ ] divided by*
[ ])). Hughes agrees to use best reasonable efforts to*
resell the Launch Services during the eighteen (18) month period
following said termination and amounts realized from such resale
will be refunded to Customer thirty (30) days after Hughes'
receipt of such resale payments from the third party. Hughes
shall use best reasonable efforts to sell the Launch Services at
fair market value (at the time of such resale).
</TABLE>
G. If in Hughes' sole judgment it is feasible for Hughes to utilize any
items of terminated Work, it shall submit to Customer an offer to
acquire such items. If such offer is accepted, Hughes' termination
invoice shall be credited with the agreed acquisition price. Hughes
shall have no obligation to use any of the Work in any other project
or for any other customer and any decision to do so shall be made at
Hughes' sole discretion.
H. This Paragraph 17.1 shall apply only to a complete termination of
the Work. Customer requests for termination of only a portion of the
Work shall be presented to Hughes and negotiated pursuant to Article
22 (Changes).
17.2 Termination for Hughes' Default
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A. Customer may issue a written notice of default (the "Default
Notice") to Hughes if:
(1) The Satellite has not been Delivered and the Damages Period set
forth in Article 11 (as extended in accordance with the
provisions thereof) has expired and the maximum Contract Price
reduction has occurred; or
(2) Hughes commences a voluntary proceeding concerning itself under
any applicable bankruptcy, insolvency, reorganization,
adjustment of debt, relief of debtors or similar law
("Insolvency Law"); or any involuntary proceeding commences
against Hughes under an Insolvency Law and the petition has not
been dismissed within ninety (90) Days after commencement of the
proceeding; or a receiver or custodian is appointed for or takes
charge of all or a substantial portion of the property of Hughes
and such custodian or receiver has not been dismissed or
discharged within sixty (60) Days; or Hughes has taken action
toward the winding-up, dissolution or liquidation of Hughes or
its business; or Hughes has been adjudicated insolvent or
bankrupt or an order for relief or other order approving a case
or proceeding under an Insolvency Law has been entered; or
Hughes has made a general assignment for the benefit of
creditors or becomes unable to pay its debts generally as they
become due; or
(3) Hughes has assigned or transferred the Contract in violation of
the provisions of Article 26 (Assignment or Change in Ownership
or Control) and Hughes fails to cure such unauthorized
assignment or transfer within thirty (30) days after receiving
written notice.
B. Customer's service of a Default Notice on Hughes shall operate to
terminate the Contract forthwith with respect to the Work. In the
event Customer terminates the Contract as provided in
Paragraph 17.2.A, Customer shall be entitled to a refund of all
payments (including the ATP Payment) previously made to Hughes
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under the Contract, any liquidated damages for delay levied pursuant
to Article 11, and, as damages, direct reasonable re-procurement
costs in excess of the Contract Price, such re-procurement damages
to be actually incurred and invoiced to Hughes in reasonable detail
not to exceed [ ] *
</TABLE>
C. Upon refund of payments in accordance with Paragraph_17.2.B above,
Hughes shall be entitled to retain title to any and all Work,
work-in-progress, parts or other material, together with any
associated warranties, and any subcontracted items which Hughes has
specifically produced or acquired or entered into in accordance with
the Contract.
D. If, after termination of the Contract under the provisions of this
Paragraph 17.2, it is determined by arbitration or admitted in
writing by Customer that Hughes was not in default under the
provisions of this Paragraph 17.2, or that the default was excusable
under Article 10 (Excusable Delays), such termination shall be
considered a termination for convenience of Customer and the
provisions of Paragraph 17.1 shall apply.
E. THE RIGHTS AND REMEDIES PROVIDED TO CUSTOMER IN THIS PARAGRAPH 17.2,
AND IN ARTICLE 4 (CONTRACT PRICE, PAYMENT AND ADJUSTMENT), ARTICLE 5
(SATELLITE PERFORMANCE PAYMENTS), ARTICLE 11 (LIQUIDATED DAMAGES FOR
LATE DELIVERY), ARTICLE 14 (HUGHES' REPRESENTATIONS, WARRANTIES AND
COVENANTS), PARAGRAPH 17.4 (TERMINATION FOR EXCUSABLE DELAY) AND
ARTICLE 19 (PATENT INDEMNIFICATION) SHALL BE EXCLUSIVE AND IN LIEU
OF ANY OTHER RIGHTS AND REMEDIES PROVIDED BY LAW OR IN EQUITY IN THE
EVENT HUGHES FAILS TO MEET ITS OBLIGATIONS TO PERFORM THE WORK.
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F. Notwithstanding the other provisions of this Article, a termination
for Hughes' default shall not relieve the Parties of their
obligations with respect to a launched Satellite and, except for
termination pursuant to Paragraph 17.2.A(1), there will be no
termination for default with respect to a launched Satellite.
17.3 Termination for Customer's Default
A. Hughes may terminate the Contract in whole without prior notice to
Customer at any time after the occurrence of any of the following:
(1) If Customer is in default of any Progress Payment up to and
including the Balloon Payment; provided, however, where Hughes
failed to provide the invoice specified in Paragraph 4.7 for
such payment, Hughes shall not be entitled to terminate the
Contract for Customer's default in making such payment unless
and until Hughes provides Customer such an invoice for such
payment and fails to receive such payment within ten (10) Days
after Customer's receipt (as specified in Article 24) of such
invoice; or
(2) If Hughes gives written notice to Customer of default in the
payment of any Progress Payment due after the Balloon Payment
when such Progress Payment shall have become due and payable and
Customer fails to cure such event within thirty (30) Days after
receiving such written notice; or
(3) Customer commences a voluntary proceeding concerning itself
under any applicable bankruptcy, insolvency, reorganization,
adjustment of debt, relief of debtors or similar law
("Insolvency Law"); or any involuntary proceeding commences
against Customer under an Insolvency Law and the petition has
not been dismissed within ninety (90) Days after commencement of
the proceeding; or a receiver or custodian is appointed for or
takes charge of all or a substantial portion of the property of
Customer and such custodian or receiver has not been dismissed
or discharged within sixty (60) Days; or Customer has taken
action toward
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the winding-up, dissolution or liquidation of Customer or its
business; or Customer has been adjudicated insolvent or bankrupt
or an order for relief or other order approving a case or
proceeding under an Insolvency Law has been entered; or Customer
has made a general assignment for the benefit of creditors or
becomes unable to pay its debts generally as they become due; or
(4) Customer has assigned or transferred the Contract in violation
of the provisions of Article 26 (Assignment or Change in
Ownership or Control) and Customer fails to cure such
unauthorized assignment or transfer within thirty (30) days
after receiving written notice.
B. Upon the occurrence of an event of default under Paragraph
17.3.A(1), Hughes' sole and exclusive remedies against Customer, ONS
and any Orion Affiliate (in addition to those remedies set forth in
Paragraph 17.3.A(1)) shall be the following: (i) Hughes may, at its
sole option, terminate its obligation to dedicate a Delta III launch
rocket to the Contract without terminating the remainder of the
Contract; (ii) Hughes may immediately stop Work; (iii) Hughes shall
be entitled, as liquidated damages, to retain possession and title
of the Work, and all items thereof, and all payments received prior
to such termination until all payments due under the Contract have
been received in immediately available funds; and (iv) sell the
Work, or items thereof, to another Person without notice to
Customer. Nothing in this subparagraph 17.3.B shall limit any rights
(and associated remedies to enforce those rights) Hughes has in the
Work by virtue of law or its security position as permitted in
Paragraphs 4.17 and 9.3 or any rights either Party has under the
existing Non-Disclosure Agreement between the Parties.
C. Upon the occurrence of an event of default under Paragraph 17.3.A(3)
above, Customer shall, upon the written request of Hughes,
immediately terminate the Contract under Paragraph 17.1 above
(Termination for Customer's Convenience).
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D. Upon the occurrence of an event of default under Paragraph 17.3.A
above (other than under Paragraph 17.3.A(1)), Hughes' remedies (in
addition to those set forth in Paragraph 17.3.A) shall be the
following:
(1) Customer shall pay to Hughes the amounts specified in
Paragraph 17.1.C within fifteen (15) Days after notice of
request to pay such amounts; and
(2) Hughes shall have the right to immediately stop Work under the
Contract; and
(3) If Customer does not pay to Hughes the amounts specified in
Paragraph 17.1.C within fifteen (15) Days after receiving
written notice of request to pay such amounts Hughes shall be
entitled to (without any further notice to Customer):
(i) immediately sell all the work in progress and retain the
proceeds of such sale; and
(ii) the provisions of Paragraph 17.1.F(2) shall apply with
respect to the resale of the Launch Services and refund to
Customer of the proceeds realized therefrom.
(4) If Customer pays the amounts specified in Paragraph 17.1.C
within fifteen (15) days after receiving written notice of
request to pay such amounts, then
(i) title to all items of Work which would have been
incorporated into a deliverable item under the Contract,
shall, subject to applicable United States Government
export regulations, vest in Customer, and Hughes shall
deliver all such items to Customer FOB Hughes plant, El
Segundo, California (who shall accept such items); and
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(ii) the provisions of Paragraph 17.1.F(2), shall apply with
respect to resale of the Launch Services and refund to
Customer of the proceeds realized therefrom.
E. Except as specified in this Paragraph 17.3, or Paragraphs 4.6, 4.8,
4.9, 4.14, 4.16, 4.19 or 32.4, Hughes shall not have the right to
terminate or suspend the Contract.
17.4 Should Customer become a debtor in any bankruptcy proceeding, Customer
shall move to assume or reject the Contract within forty-five (45) days
after the entry of an order for relief.
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17.5 Customer may, upon written notice to Hughes, terminate immediately all of
the Contract if the aggregate of Excusable Delays (except those Excusable
Delays caused by Customer's failure to perform its obligations under
Article 29) exceeds twelve (12) months. If Customer so terminates the
Contract, Hughes shall refund to Customer all amounts (including amounts
paid under the ATP) paid to Hughes pursuant to the Contract less a profit
of twelve and one half percent (12.5%) on such amounts, provided, however,
such profit shall not exceed [ ]*
[ ] *
</TABLE>
17.6 Hughes shall use reasonable efforts to place Subcontracts on terms that
will enable Hughes to terminate in a manner consistent with this Article
17.
17.7 Because time is of the essence in the Contract, any disputes between the
Parties under Article 17 will be decided by an expedited arbitration
procedure.
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ARTICLE 18. DATA AND SOFTWARE
18.1 Use of Contract Deliverable Data and Documentation
Subject to the provisions of Article 21 (Proprietary Information),
Customer and its Consultants shall have a nonexclusive, non-transferable,
worldwide, royalty-free, fully paid-up right to use and maintain, for the
actual physical operational lifetime of the Satellite, the Contract
Deliverable Data and Documentation for the Orion 3 Satellite Program
solely for purposes of maintaining and operating the Satellite and
delivered Satellite Control Equipment and Ground Control Software.
18.2 Use of Copyrights
Notwithstanding any other provision hereof, the ownership and title to
copyrights in Contract Deliverable Data and Documentation shall remain in
Hughes or its licensor(s). Hughes grants to Customer a fully paid-up,
royalty-free, nonexclusive right under Hughes' copyrights for the actual
physical operational lifetime of the Satellite to make copies of the
Contract Deliverable Data and Documentation solely for use in connection
with the maintenance and operation of the Satellite and delivered
Satellite Control Equipment and Ground Control Software. On all
documentation that is copyrighted, Customer shall apply the appropriate
copyright notice to all copies made thereof. All rights to documentation
not owned by Hughes are limited by the extent of Hughes' rights and
interests therein.
18.3 Software Rights in Ground Control Software
Hughes grants to Customer a non-exclusive, non-transferable license and
worldwide, royalty-free, fully paid-up right for the actual physical
operational lifetime of the Satellite (i) to use and maintain the Ground
Control Software, only for the purpose of controlling the Satellite,
provided however that Customer may, upon notification to Hughes, transfer
the Ground Control Software to another location for the purpose of
controlling the Satellite and (ii) to reproduce the Ground Control
Software, for the purposes of
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safekeeping (archives) or backup, provided all copyright notices and
proprietary markings are reproduced.
Except for those rights in the Ground Control Software specifically
granted in the Contract, no rights in the Ground Control Software are
granted to Customer. The Ground Control Software in source code form and
the documentation are a trade secret of Hughes. Customer agrees to
preserve such Ground Control Software in confidence and shall not disclose
such Ground Control Software to any third parties. This provision does not
limit the right of Customer to use Ground Control Software, or information
therein, which Customer may already have or obtains without restriction.
Third parties do not include those contractors and Consultants who have
Customer's permission and who have agreed to use the Ground Control
Software only in accordance with these restrictions. Customer agrees to
take all reasonable steps to safeguard from theft, loss and negligent
disclosure to others all Ground Control Software delivered hereunder.
Customer shall take appropriate action by instruction or agreement with
its employees and Consultants who are permitted access to the Ground
Control Software advising such employees and Consultants of Customer's
obligations hereunder. The foregoing obligations shall survive termination
or expiration of the Contract.
18.4 Vendor Software shall be provided to Customer in accordance with the
particular Vendor's usual software license agreement, which agreement(s)
will be provided to Customer upon installation of said software. Customer
agrees to use Vendor Software only in accordance with the provisions of
such software license agreements.
18.5 Inthe event of any termination of the Work under the Contract, subject to
any rights granted elsewhere in the Contract to the contrary, any data
rights specified in this Article in and to such Work shall revert to
Hughes and Customer shall have no further rights with respect to such
Work.
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ARTICLE 19. PATENT INDEMNIFICATION
19.1 In lieu of any other warranty by Customer or Hughes against infringement
of intellectual property rights, express or implied, it is agreed that
Hughes will indemnify and defend (including by way of settlement), at its
expense, any suit against Customer based on a claim that Customer's use of
the Satellite, Satellite Control Equipment, Ground Control Software,
Contract Deliverable Data or Documentation furnished under the Contract
infringes an intellectual property right in the country of delivery or the
United States, unless such infringement occurred solely as a result of
Customer's provision of designs, specifications or instructions to Hughes,
and provided Hughes is promptly notified in writing of such claim and
given authority, information and assistance by Customer, at Hughes'
expense, for the defense or settlement thereof. Hughes agrees to pay
damages and costs awarded against Customer in any suit defended by Hughes
pursuant to the Contract.
Nothing in the Contract shall be construed as requiring Hughes to defend a
suit or pay damages or costs if either (i) the infringement claim or
judgment is based upon the use of any goods and services furnished in
combination with other goods and services not provided by Hughes or
approved for use by Hughes, if the infringement would not have occurred
but for such combined use; (ii) the infringement claim is based on the
goods and services being used in other than their specified operating
environment; or (iii) the infringement claim is based on Customer's
modification of the Satellite, Satellite Control Equipment, Ground Control
Software, Contract Deliverable Data or Documentation.
If the use of the Satellite(s), Satellite Control Equipment, Ground
Control Software, Contract Deliverable Data or Documentation is enjoined
in such suit, Hughes shall, at its option, either procure for Customer the
right to use the Satellite(s), Satellite Control Equipment, Ground Control
Software, Contract Deliverable Data or Documentation, as the case may be,
or substitute an equivalent product reasonably acceptable to Customer or
modify the same to render them noninfringing. If Hughes determines that
none of these
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alternatives are reasonably available or feasible, Hughes shall meet with
Customer to address the matter and reach an equitable solution reasonably
acceptable to Customer.
If the infringement results solely from Customer's provision of designs,
specifications or instructions to Hughes, Customer will indemnify and
defend (including by way of settlement), at its expense, any such suit
against Hughes, provided Customer is promptly notified in writing of the
claim of infringement and given authority, information and assistance by
Hughes, at Customer's expense, for the defense or settlement thereof.
19.2 Each Party's total liability for the cost of any such defense and any
subsequent award of damages and costs under this Article 19 shall not
exceed Ten Million Dollars (U.S. $10,000,000). The existence of one or
more claims or lawsuits shall not extend this amount under patent covering
combination of items furnished hereunder with other devices or elements.
19.3 In no event shall Hughes be liable for any lost revenues, lost profits, or
other indirect, incidental, special or consequential damages suffered by
Customer (as contrasted with damages suffered by any third party claiming
infringement of its intellectual property rights under this Article 19 for
which Customer may become liable) as a result of a claim or suit under
this Article 19.
19.4 The foregoing constitutes the Parties' entire obligation with respect to
claims for infringement.
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ARTICLE 20. RIGHTS IN INVENTIONS
20.1
A. As used in the Contract, "Program Invention" shall mean any
invention, discovery or improvement conceived of and first reduced
to practice in the performance of the Work under the Contract.
Information relating to Program Inventions shall be treated as
proprietary information in accordance with the provisions of the
Contract. Rights to inventions conceived solely by Hughes or its
employees shall vest completely with Hughes.
B. Hughes shall be the owner of all Program Inventions invented solely
by Hughes. Hughes grants Customer a fully paid-up, royalty-free,
nonexclusive license for the actual physical operational lifetime of
the Satellite in Program Inventions to use Program Inventions solely
for the purposes of maintenance and operation of the Satellite and
any other item delivered that contains Program Inventions.
C. The following shall apply to joint Program Inventions: that is,
inventions conceived jointly by one or more employees of both
Parties hereto:
(1) each Party shall have an equal, undivided one-half interest in
and to such joint Program Inventions, as well as in and to
patent applications and patents thereon in all countries.
(2) Hughes shall have the first right of election to file patent
applications in any country, and Customer shall have a second
right of election. Each Party in turn shall make its election at
the earliest practicable time, and shall notify the other Party
of its decision.
(3) The expenses for preparing, filing and securing each joint
Program Invention patent application, and for issuance of the
respective patent shall be borne by the Party which prepares and
files the application. The other Party shall furnish the filing
Party with all documents or other assistance
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that may be necessary for the filing and prosecution of each
application. Where such joint Program Invention application for
patent is filed by either Party in a country which requires the
payment of taxes, annuities, maintenance fees or other charges
on a pending application or on an issued patent, the Party which
files the application shall, prior to filing, request the other
Party to indicate whether it will agree to pay one-half of such
taxes, annuities, maintenance fees or other charges. If within
sixty (60) Days of receiving such request, the non-filing Party
fails to assume in writing the obligation to pay its
proportionate share of such taxes, annuities, maintenance fees
or other charges, or if either Party subsequently fails to
continue such payments within sixty (60) Days of demand, it
shall forthwith relinquish to the other Party, providing that
said other Party continues such payments, its interest in such
application and patent and the Invention disclosed therein,
subject, however, to retention of a irrevocable, fully paid-up,
non-exclusive, non-assignable license in favor of the
relinquishing Party, its parent, and any subsidiary thereof to
make, use, lease and sell apparatus and/or methods under said
application and patent.
D. Each owner of a jointly-owned patent application or patent resulting
therefrom shall, provided that it shall have fulfilled its
obligation, if any, to pay its share of taxes, annuities,
maintenance fees and other charges on such pending application or
patent, have the right to grant non-exclusive licenses thereunder
and to retain any consideration that it may receive therefor without
obligation to account therefor to the other Party. In connection
therewith, each of the Parties hereby consents to the granting of
such non-exclusive licenses by the other Party and also agrees not
to assert any claim with respect to the licensed application or
patent against any licensee of the other Party thereunder during the
term of any such license.
20.2 No sale or lease hereunder shall convey any license by implication,
estoppel or otherwise, under any proprietary or patent rights of Hughes,
to practice any process with such
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product or part, or, for the combination of such product or part with any
other product or part.
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ARTICLE 21. PROPRIETARY INFORMATION
21.1 Under the Contract, Hughes (and its Affiliates) and Customer may disclose
to each other such of their respective information, some of which may be
Proprietary Information as defined below, as the disclosing Party in its
sole discretion believes will be essential to the objectives of the
Contract and which it has a right to disclose. Any information required by
the Contract to be set forth in Contract Deliverable Data or Documentation
shall be deemed essential to the objectives of the Contract.
21.2 "Proprietary Information" means information which a Party deems
proprietary to it. Each Party shall hold in confidence and withhold from
third parties any and all Proprietary Information received under the
Contract and shall use such Proprietary Information only as set forth in
the Contract and for no other purpose unless the disclosing Party shall
otherwise agree in writing. Each Party shall take reasonable and
appropriate measures to safeguard any Proprietary Information received
under the Contract from theft, loss or disclosure to others, and to limit
access to Proprietary Information to those officers, directors and
employees within the receiving Party's organization who reasonably require
access in order to accomplish the aforesaid purposes. Proprietary
Information shall be in written or other permanent form and be prominently
identified as proprietary using an appropriate legend, marking stamp or
other clear and conspicuous written identification which unambiguously
indicates the information being provided is the originating Party's
Proprietary Information. Any such information in other than written or
other permanent form when disclosed shall be considered Proprietary
Information hereunder, but only to the extent identified as the
originating Party's Proprietary Information at the time of original
disclosure and thereafter summarized in written form which clearly and
conspicuously identifies the Proprietary Information. Such summary shall
be transmitted by the originating Party to the receiving Party within
thirty (30) Days of the nonwritten disclosure.
21.3 The receiving Party shall not be liable for use or disclosure of any such
Proprietary Information if it can establish that the same:
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A. Is or becomes a part of the public knowledge or literature without
breach of the Contract by the receiving Party; or
B. Is known to the receiving Party without restriction as to further
disclosure when received; or
C. Is independently developed by the receiving Party as demonstrated by
written records; or
D. Becomes known to the receiving Party from a third party who had a
lawful right to disclose it and without breach of the Contract.
Specific Proprietary Information shall not be deemed to be available to
the public or in the possession of the receiving Party merely because it
is embraced by more general information so available or in the receiving
Party's possession.
21.4 Should the receiving Party be faced with judicial or administrative
governmental action to disclose Proprietary Information received
hereunder, said receiving Party shall forthwith notify the originating
Party in sufficient time to permit the disclosing Party to intervene in
response to such action.
21.5 The receiving Party agrees promptly to notify the disclosing Party of the
loss or unauthorized use or disclosure of any Proprietary Information, and
upon request of the originating Party, the receiving Party shall surrender
any part or all of the Proprietary Information to the originating Party.
21.6 The individuals identified in Article 24 (Notices) are designated as the
point for receiving Proprietary Information exchanged between the Parties
pursuant to the Contract.
21.7 Hughes shall have its Subcontractors agree in writing to be bound to
protect Customer's Proprietary Information on the same conditions as set
forth herein.
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21.8 Customer shall have its Consultants agree in writing to be bound to
protect Hughes Proprietary Information on the same conditions as set forth
herein.
21.9 Upon termination of the Contract for any reason, the Parties shall cease
use of all Proprietary Information furnished by the other Party and shall,
at the direction of the furnishing Party, return to or destroy all such
Proprietary Information, together with all copies made thereof. Upon
request, the receiving Party shall send the other Party a destruction
certificate.
21.10 Customer and Parent acknowledge that Hughes would be irreparably harmed if
any competitor of Hughes as determined by Hughes in its reasonable
discretion were to acquire access to any of the intellectual property,
Proprietary Information or other technology, data or inventions covered
under the Contract (collectively, the "Intellectual Property"), regardless
of whether such competitor has an ownership interest in Customer or ONS.
Accordingly, Customer and ONS agree that no competitor of Hughes shall be
given access to any of the Intellectual Property and that should such a
competitor obtain control of Customer or otherwise be an assignee or
transferee of Customer with regard to the Contract, Hughes may take any
and all reasonable steps to safeguard and protect its Intellectual
Property. Notwithstanding any provisions of the Contract requiring
arbitration, the foregoing agreement may be enforced by Hughes by the
entry of injunctive relief, in addition to all other remedies available to
Hughes under the Contract, applicable law or otherwise. The provisions of
this Paragraph 21.10 shall apply mutually to the Intellectual Property of
Customer and ONS
21.11 Notwithstanding any provision of this Contract, the Parties agree that the
existing Non-Disclosure Agreement between the Parties shall remain in full
force and effect according to its terms.
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ARTICLE 22. CHANGES
22.1 Any changes requested by Hughes during the performance of the Contract,
within the general scope of the Contract, which will add or delete Work,
affect the design of the Satellite, change the method of shipment or
packing, or the place or time of delivery, or will affect any other
requirement of the Contract, shall be submitted in writing to Customer
sixty (60) Days prior to the proposed date of the change. If such Hughes
requested change causes an increase or decrease in the total price or
other terms of the Contract, Hughes shall submit a proposal to Customer.
22.2 Customer shall notify Hughes in writing, within thirty (30) Days after
receipt of the requested change proposal, whether or not Customer agrees
with and accepts such change and the price/schedule impact thereof. If
Customer agrees with and accepts Hughes' requested change, Hughes shall
proceed with the performance of the Contract as changed and an amendment
to the Contract reflecting the change proposal shall be issued in
accordance with Paragraph 35.5. If Customer does not agree with Hughes'
requested change, the Parties shall attempt to reach agreement on such
change. In the event the Parties are unable to reach agreement on such
change or price adjustment, if any, or both, Hughes shall proceed with the
performance of the Contract, as unchanged.
22.3 Customer may submit to Hughes any changes requested by Customer during the
performance of the Contract, within the general scope of the Contract,
which will add or delete Work, affect the design of the Satellite, change
the method of shipment or packing, or the place or time of delivery, or
will affect any other requirement of the Contract. Hughes shall respond to
such request in writing to Customer within thirty (30) Days after such
request. Hughes shall submit to Customer, at the time the response to the
requested change is submitted, the details of the impact of such change.
Customer shall notify Hughes in writing, within thirty (30) Days after
receipt of Hughes' response, whether or not Customer agrees with and
accepts Hughes' response. If Customer agrees with and accepts Hughes'
response, Hughes shall proceed with the performance of the Contract as
changed and an amendment to the Contract reflecting such change shall be
incorporated
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into the Contract in accordance with Paragraph 35.5. If the Parties cannot
agree on a reasonable price or revised Delivery Schedule or performance
specification(s) and Customer still desires the requested changes,
Customer shall request Hughes to proceed with the changes and Customer
will pay the offered price and accept the revised Delivery Schedule or
performance specifications pending any decision to the contrary under
Article 30 (Applicable Law and Dispute Resolution). Hughes will proceed
with the Work and Customer may dispute the reasonableness of the price or
revised Delivery Schedule or performance specification(s) under Article 30
(Applicable Law and Dispute Resolution).
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ARTICLE 23. PUBLICITY
23.1 From and after the Effective Date of Contract and until the date of
Intentional Ignition, other than disclosures required by law, rule,
regulation or requirements of NASDAQ, the NYSE or any other national
securities exchange, any publicity, news releases, articles, brochures,
advertisements, prepared speeches and other information releases regarding
the specific financial details of the Contract or proprietary information
regarding the Work performed or to be performed hereunder shall be
mutually agreed upon in writing by Hughes and Customer within a reasonable
time prior to the release of such information (such agreement not to be
unreasonably withheld or delayed by either Party). This Paragraph 23.2
shall not apply to internal publications or releases not intended for the
public at large.
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ARTICLE 24. NOTICES
Any notices or requests or receipts required or desired to be given or made
hereunder shall be in writing and shall be effective if delivered by hand to an
officer of the recipient Party or sent by registered air mail or by facsimile
transmission or by express courier with a reliable system for tracking and
received by the recipient Party, at the address indicated below:
A. In respect of Customer, to:
Orion Asia Pacific Corporation
2440 Research Boulevard
Rockville, Maryland 20850
Telephone: (301) 258-8101
Facsimile: (301) 258-3300
Attention: Richard H. Shay, Esq., Vice President of Corporate
and Legal Affairs
Dr. Denis Curtin, Senior Vice President, Engineering
and Satellite Operations of Orion Satellite Corporation
B. In respect of Hughes, to:
Hughes Space and Communications International, Inc.
Bldg. S41, M/S A374
Post Office Box 92919, Airport Station
Los Angeles, California 90009
Telephone: (310) 364-9477
Facsimile: (310) 364-9644
Attention: Manager, Contracts
Any notice or request shall be deemed to have been served if delivered by
hand, when delivered, if sent by registered airmail, upon receipt, if
sent by facsimile transmission, upon receipt if confirmed by telephone or
otherwise by the specific addressee (or any officer of the receiving
Party) with a copy sent by another means authorized by this Article 24,
and if by express courier, upon receipt. Either Party may change its
address for notices by notice to the other Party in accordance with this
Article.
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ARTICLE 25. INTEGRATION
The Contract, together with the Annex and Exhibits, contains the entire
agreement between the Parties relating to the subject matter hereof. All prior
understandings, representations and warranties (including those contained in
sales, promotional and/or marketing materials) by and between the Parties,
written or oral, which may be related to the subject matter hereof in any way,
are superseded by the Contract.
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ARTICLE 26. ASSIGNMENT OR CHANGE IN OWNERSHIP OR CONTROL
26.1 Neither Party shall assign or transfer the Contract or any of its rights,
duties or obligations hereunder to any person or entity, in whole or in
part, without the prior written consent of the other Party (which approval
shall not be unreasonably withheld or unduly delayed). However, either
Party may assign or transfer any of its rights, duties or obligations
under the Contract, either in whole or in part, to its parent company or a
subsidiary in which the assigning Party has a controlling interest,
provided always that the assigning Party shall remain secondarily liable
with respect to performance of all duties and obligations set forth in the
Contract, including compliance with all applicable laws and regulations.
26.2 Notwithstanding Paragraph 26.1, either Party may assign the Contract or
any rights, duties or obligations hereunder to any person or entity
acquiring all or substantially all the assets of that Party (through
merger or stock or asset acquisition) provided that:
A. Its successor or assignee possesses the financial and other
resources to fulfill that Party's obligations under the Contract;
and
B. Any such assignment or transfer shall not jeopardize the other
Party's data rights or violate laws related to export or technology
transfer.
The assigning Party shall reimburse the other Party for all reasonable
expenses incurred by the other Party (and invoiced in reasonable detail)
in obtaining advice from its external financial and legal advisors
relating to the assigning Party's proposed assignment or transfer.
26.3 Any assignment or transfer of the Contract by either Party or any direct
or indirect change in control of Customer or Hughes shall be subject to
Paragraph 21.10 relating to proprietary information.
26.4 The Contract shall be binding upon the Parties hereto and their successors
and permitted assigns.
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ARTICLE 27. SEVERABILITY
In the event any one or more of the provisions of the Contract shall, for any
reason, be held to be invalid or unenforceable, the remaining provisions of the
Contract shall be unimpaired, and the invalid or unenforceable provision shall
be replaced by a mutually acceptable provision, which, being valid and
enforceable, comes closest to the intention of the Parties underlying the
invalid or unenforceable provision.
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ARTICLE 28. CORRECTIVE MEASURES IN UNLAUNCHED SATELLITES
28.1 Notwithstanding Paragraph 28.4 and without limiting the obligations of
Hughes under other provisions of the Contract, if the data available from
an HS 601 HP or HS 601 satellite model shows that there is a material
deficiency in the design or manufacture of such satellite model that, in
the opinion of Hughes, could adversely affect one or both of such
satellite models, Hughes shall notify Customer of any such material
deficiency coming to Hughes' attention and shall, promptly upon written
request of Customer, take appropriate corrective measures to the Work, at
Hughes' own expense, with respect to the Satellite so as to eliminate from
the Satellite all the material deficiencies discovered in the Satellite's
model.
28.2 If there is a mutually agreed-to change in the natural environment to
which the Satellite will be subjected in orbit, Hughes shall take
corrective measures as Hughes deems appropriate in consultation with
Customer.
28.3 If Hughes, in accordance with this Article_28, replaces any equipment or
any part which was determined to be deficient, such deficient equipment or
part shall remain or become the property of Hughes.
28.4 Nothing in this Article 28 requires Hughes to disclose in-orbit data from
satellites owned by others.
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ARTICLE 29. CUSTOMER'S RESPONSIBILITIES
29.1 The responsibilities of Customer, which will be discharged at no cost to
Hughes or Hughes' Affiliates or Subcontractors, are as set forth in
Exhibit A (Statement of Work) and below.
A. Customer will provide Beneficial Access to Hughes and its Affiliates
and Subcontractors at each Satellite Control Facility, on a timely
basis, as necessary to permit Hughes to (i) deliver the SCE as soon
as it is Available for Shipment and (ii) perform its obligations
under the Contract with respect to the SCE.
B. In addition to, and without limiting the generality of, the
foregoing, Customer will be responsible for the following:
(1) Providing all civil works utilities and environmental controls
associated with any Satellite Control Facility; and
<TABLE>
<S> <C>
(2) In the event Customer exercises the [ ] option*
described in Paragraph 33.1.C, ensuring that the Ground Control
Facility located in Rockville, Maryland has [ ]*
Software; and
(3) Furnishing two (2) [ ]*
[ ] units; and *
(4) Furnishing all governmental approvals and licenses necessary to
send [ ]*
[ ]; and *
</TABLE>
(5) Obtaining Launch Insurance prior to Intentional Ignition.
Customer shall provide Hughes a certificate of such insurance
coverage at Hughes' request.
C. Customer shall provide written notification to Hughes as early as
practicable as to the identity/nationality of its employees and
Consultant(s) and subsequent changes,
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if any. It is recognized that certain United States Government
approvals may be required before such employees and Consultant(s)
have access to Work pursuant to the provisions of Article 12 (Access
to Work-in-Progress and Data), and that the processing time for
obtaining such approvals could take a few months.
D. Customer is responsible for obtaining the necessary Specified
Orbital Location, frequency spectrum and other approvals and
licenses to operate the ORION 3 Satellite Program. Customer agrees
to indemnify Hughes for, and hold Hughes harmless against, any loss,
damage, liability or expense (including attorney's fees and other
expenses of investigating or defending claims) resulting from any
claims made by any party as a result of the Customer's failure to
perform its responsibilities under this Paragraph 29.1.D.
29.2 If the Customer-furnished items and/or responsibilities are not available
at the time scheduled or not suitable for the intended purpose, in lieu of
actual damages, Customer shall pay to Hughes all expenses directly
resulting from such delay, such expenses actually and reasonably incurred
(and invoiced to Customer in reasonable detail) plus a profit of twelve
and one half percent (12.5%) on such costs and any affected Scheduled
Delivery Date for the Work shall be extended to permit Hughes adequate
time to perform its obligations under the Contract.
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ARTICLE 30. APPLICABLE LAW AND DISPUTE RESOLUTION
30.1 The Contract and any performance or non-performance related thereto shall
be interpreted and construed, governed and enforced under the laws of the
State of New York, U.S.A., without giving effect to its conflict of laws
principles. The UN Convention on the International Sale of Goods shall not
be applicable.
30.2 If, during the course of performance or non-performance hereunder, a
dispute arises between Customer and Hughes as to the rights or obligations
of either Party under the Contract (or resulting from an alleged breach of
the Contract), either Party may give written notice of its objections and
the reasons therefor and may recommend corrective action. Hughes' Program
Manager shall consult with Customer's Program Manager in an effort to
reach a mutual agreement to overcome such objections. In the event mutual
agreement cannot be reached, the respective positions of the Parties shall
be forwarded to the representatives of each Party at the Senior Executive
Level, for discussion, and such persons shall attempt to reach mutual
agreement.
30.3 If the Parties are unable to resolve the dispute through such mediation
and conciliation, or if neither Party desires to pursue mediation and
conciliation, such dispute may be referred on the application of either
Party for final determination to an arbitration tribunal convened in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association, which arbitration shall be conducted by three
arbitrators in the English language. Each Party shall appoint one (1)
arbitrator and the third shall be appointed by the two (2) arbitrators so
previously appointed.
30.4 The place of arbitration shall be in New York, New York, U.S.A., and all
matters in dispute shall be determined in accordance with the applicable
law specified in Paragraph 30.1.
30.5 The following time limits shall be observed in respect of any arbitration
held pursuant to this Article:
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(1) each Party shall appoint its arbitrator within ten (10) days of
receipt of a demand for arbitration;
(2) the two (2) appointed arbitrators shall appoint a third
arbitrator within a further twenty (20) days from the time
stipulated in Article 15.2(f)(1) (unless the two (2) arbitrators
agree to an extension not to exceed an additional (20) days);
and
(3) any decision by the arbitrators referred to shall be made within
six (6) months from the date on which a Party demands
arbitration or within such extended period as the arbitrators
may unanimously allow.
30.6 Except as specifically set forth in this Article 30, the election of
either Party to proceed with arbitration under this Article 30 shall not
change the rights or obligations of each Party as otherwise stated under
this Contract.
30.7 The arbitral tribunal shall award prejudgment interest on any amount that
the tribunal determines is owing from one Party to the other, such
interest to be calculated at an annual rate equal to the Chase Manhattan
Prime Rate then in effect for each day from forty-five (45) days following
the date of loss or from the date of the filing for arbitration, whichever
is the earlier, unless the date full payment is made.
30.8 The award rendered by the arbitration tribunal shall be binding on both
Parties and shall be enforceable by any court of competent jurisdiction.
The cost of arbitration, including the fees and expenses of the
arbitrators, will be shared equally by the Parties, unless the award
otherwise provides. Each Party shall bear the cost of preparing and
presenting its own case, until the award otherwise provides.
30.9 Notwithstanding anything else contained herein, the Parties agree that (i)
it is to their mutual advantage to resolve any such dispute in a timely
manner, (ii) the arbitral hearing shall be commenced promptly and
conducted expeditiously and (iii) with respect to any dispute regarding
the Satellite or Launch Services, payment or nonpayment by Customer
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or Hughes' remedies upon a default or termination, time is of the essence
in the resolution of such dispute.
30.10 Any arbitration proceeding held pursuant to this Article 30 shall be
governed exclusively by the United States Arbitration Act, 9 U.S.C.
Section 1, et seq.
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ARTICLE 31. PERFORMANCE COMMENCEMENT DATE
<TABLE>
<S> <C>
Pursuant to the ATP and the payment by Customer to Hughes on December 16, 1996
of the sum of [ ] (receipt of which is*
hereby acknowledged by Hughes), Hughes commenced performance of the Work as
defined in the ATP on December 16, 1996.
</TABLE>
Hughes shall commence performance of the Work under this Contract, and the
Performance Commencement Date (PCD) in respect of the Work under this Contract
shall be deemed to be December 16, 1996, provided both of the following events
have occurred:
A. The Contract is duly signed by both Parties; and
B. Hughes is in receipt of the Sum of Eight Million U.S. Dollars
(U.S. $8,000,000) no later than close of business January 16,
1997.
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ARTICLE 32. STORAGE
32.1 Upon six (6) months prior written notification by Customer that it desires
to place a Satellite and related equipment into storage after such
Satellite is Available for Shipment, Hughes shall:
A. Within forty-five (45) Days thereafter submit a price proposal to
Customer outlining a plan for storage in the Continental United
States, including transportation, periodic Satellite testing and
maintenance of batteries; and
B. Specify to Customer the storage arrangements that would be
acceptable to Hughes, including Hughes' storage terms.
Upon agreement between Customer and Hughes as to Hughes' proposal, the
Satellite and related equipment shall be delivered by Hughes to the agreed
storage site, and the Contract shall be amended pursuant to Paragraph 22.3
and Paragraph 35.5.
32.2 In the event Customer gives Hughes less than six (6) months prior written
notice of its desire to place the Satellite in storage, Customer shall be
obligated to reimburse Hughes for any nonrefundable deposits or reasonable
expenses actually incurred by Hughes (and invoiced to Customer in
reasonable detail) (i) in order to arrange for transportation of the
Satellite to the Designated Launch Site or (ii) to prepare the Satellite
for Launch at the Designated Launch Site.
32.3 Six (6) months prior to the Scheduled Launch Date for a stored Satellite,
Customer shall, by notice in writing, order Hughes to remove the Satellite
from storage and deliver the Satellite in orbit subject to the
availability of a Launch Vehicle. The cost of shipping of the Satellite
and related equipment from the storage facility to the Designated Launch
Site shall be borne by Customer to the extent such cost plus the cost of
shipping the Satellite and related equipment from Hughes' plant to the
Designated
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Launch Site exceed the cost of shipping the Satellite and related
equipment from Hughes' plant to the Designated Launch Site, in addition to
any charges which become the obligation of Customer per the provisions of
Article 6 (Launch Vehicle Delays).
32.4 If a Satellite is Available for Shipment but (i) the Designated Launch
Site is not available or ready to receive shipment of the Satellite for
whatever reasons (e.g., Beneficial Access to the Designated Launch Site
has not been provided) and (ii) Customer has not provided for the
Satellite to be delivered into storage in accordance with the provisions
of this Article, Hughes, at its option, may deliver the Satellite and
related equipment into storage either at Hughes' own facilities or at the
facilities of a third party. The costs of storage, transportation,
periodic Satellite testing and maintenance of batteries as well as all
other reasonable costs associated with such storage shall be borne by
Customer.
32.5 If a Satellite is ordered to be launched later than six (6) months
following its Available for Shipment date for reasons not the fault of
Hughes or any Affiliate or Subcontractor of Hughes, it is agreed that such
Satellite shall, upon Hughes' request, be returned at Customer's expense,
to Hughes' facility for inspection and refurbishment. The cost of such
inspection, including any shipping, handling or storage costs, plus a
twelve and one-half percent (12.5%) profit thereon, shall be borne by
Customer. Any refurbishment undertaken by Hughes to meet the requirements
of Article 14 (Warranty), as applicable, shall be at Hughes' expense,
provided that, in the event Customer contracts with a third party to store
the Satellite, Customer has caused the Satellite to be maintained in a
storage environment suitable for prevention of deterioration, and further
provided that said Satellite has not been damaged while in storage or in
transit. In the event Customer contracts with a third party to store the
Satellite, if such Satellite has not been properly maintained or has been
damaged in storage or in transit, the cost of repair of such disrepair or
damage and all transportation and related costs, plus a twelve and one
half percent (12.5%) profit, shall be borne and paid for by Customer.
Hughes may elect to perform inspection and refurbishment at the Designated
Launch Site. If a warranty period as stated in Article 14 (Warranty) has
expired, then replacement or refurbishment of the Satellite shall be paid
for by Customer.
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32.6 If a Satellite has not been launched within five (5) years after its
Available for Shipment date and Hughes is otherwise not in default, then
(1) Subject to (4) below, Hughes shall be entitled to receive all
payments which are due and owing, and Hughes shall be entitled
to retain without obligation all payments previously made.
(2) Subject to (4) below, neither Party shall have any further
obligations to the other Party under the Contract, provided that
Customer has met its obligations under the Contract, and
Customer shall have title to the Satellite.
(3) Customer shall be responsible for and shall pay all sales tax
associated with the transfer of title to the Satellite.
Disposition of the Satellite shall be at the option of Customer
with the costs of such disposition to be borne by Customer
subject to Article 7 (Permits and Licenses: Government
Approvals). Hughes shall have no liability in the event an
export license is not issued for the benefit of Customer.
(4) With respect to Launch Services, Customer shall notify Hughes in
writing whether it desires to retain the Launch Services or
whether it desires for Hughes to resell the Launch Services in
accordance with Paragraph 17.1.F, such notice to be provided to
Hughes within eighteen (18) months after the initial Launch
Date. If Customer desires to launch the Satellite within such
eighteen (18) month period, then Hughes shall use best
reasonable efforts to arrange with the Launch Provider to
provide Launch Services within such eighteen (18) month period
and Customer shall be obligated to pay launch delay expenses as
specified in, and in accordance with, Article 6.
32.7 Notwithstanding anything to the contrary contained herein, in the event
Customer, due to the fault of Hughes, any of its Subcontractors (except
the Launch Provider) or any of its Affiliates, elects to have the
Satellite placed in storage, then the costs of such storage,
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shipment of the Satellite and related equipment from the storage facility
to the Designated Launch Site, periodic Satellite testing, maintenance of
the batteries, inspection and refurbishment of the Satellite shall be
borne by Hughes.
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ARTICLE 33. OPTIONS
33.1 Hughes hereby grants to Customer the options set forth below to be
exercised at Customer's sole discretion in accordance with the terms
specified for each option.
A. Transponder Specifications
<TABLE>
<S> <C>
Customer may make minor modifications to the Transponder beam
connectivities, frequencies and beam coverages up to and including
[ ]. Customer may define final antenna contours up to*
and including [ ]. *
B. Korean Backup TT&C Capability
Hughes will provide, at Customer's request, a backup TT&C facility
at a location specified by Customer in the Republic of Korea. Hughes
will provide to Customer a proposal for such facility by January 31,
1997. The proposal will provide a description of a facility
essentially similar to the TT&C facility at the [ ] in*
[ ]. The proposal will include [ ]*
[ ] equipment along with all required software. A*
communications network will also be supplied to connect the Korean
station to the primary Satellite Control Facility. Such items shall
be delivered Customer Insurance Freight (CIF), Seoul International
Airport, Republic of Korea (Incoterms 1990). The proposal will also
include other equipment as requested by Customer to be delivered at
a location to be specified by Customer. The proposal will also
include pricing by functional capability, and the total price shall
not exceed [ ]*
[ ] Customer must exercise this option no later than [ ]*
[ ] to ensure the Korean TT&C facilities operational at the*
time of Final Acceptance of the Satellite.
</TABLE>
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<TABLE>
<S> <C>
C. TT&C [ ] Software *
By January 31, 1997, Hughes will provide to Customer a proposal to
replace the baseline, legacy TT&C software system to be provided
under the Contract with a [ ]-based TT&C software*
system for the HS 601 HP series of satellites (the "[ ] HS 601 HP*
TT&C Software") now under development at Hughes. The proposal will
be based upon the assumption that Customer will install at
Customer's Rockville site a [ ] based TT&C software*
system for Customer's existing Matra Marconi Space (MMS) satellite
(the "[ ] TT&C Software") under separate contract with [ ]*
[ ]. The proposal will include pricing and technical*
specifications for the following three options: (i) upgrading
Customer's [ ] TT&C Software with those modules of [ ] HS 601 HP*
TT&C Software necessary for operation of the Satellite and
installing such upgraded software at Customer's Rockville and Mount
Jackson sites, (ii) upgrading Customer's [ ] TT&C Software with*
those modules of [ ] HS 601 HP TT&C Software necessary for*
operation of the Satellite and installing such upgraded software at
the [ ] site in [ ] (or other site specified by Customer)*
and, if approved by Customer, a site in the Republic of Korea, and
(iii) providing and installing the [ ] HS 601 HP TT&C Software at*
the [ ] site in [ ] (or other site specified by Customer)*
and, if approved by Customer, a site in the Republic of Korea. The
pricing in the proposal shall account for the savings realized by
Hughes in not providing the legacy TT&C software system included in
the Contract Price.
</TABLE>
D. Launch Insurance.
Upon Customer's request and in Customer's behalf, Hughes shall place
Launch Insurance for the Satellite. The Parties acknowledge that the
Delta III is a new launch vehicle. Hughes estimates that the
insurance rate for the initial Delta III launch will be in the range
of eighteen percent to twenty-one percent (18% to 21%). The Parties
understand that Hughes cannot guarantee its ability to obtain
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such insurance at such rates (or any insurance, whether or not at
commercially reasonable rates), and Hughes shall be under no
liability to Customer or any third party whatsoever for its failure
to do so. In the event Hughes obtains Launch Insurance for Customer,
Hughes shall provide such Launch Insurance to Customer on a
pass-through basis, provided, however, that (i) Hughes will not be
obligated to pay the underwriters of the Launch Insurance until
after it has received the premium payment from Customer and (ii)
Hughes shall be entitled to a payment for its general and
administrative costs in procuring the Launch Insurance, such costs
not to exceed two percent (2%) of the cost of the Launch Insurance.
E. Option Satellite
(1) Hughes agrees to provide Customer with an additional
satellite ("Option Satellite") of design identical to
the Satellite, which Option Satellite shall be
delivered in orbit within nineteen (19) months after
order for One Hundred Eighty-Three Million U.S.
Dollars (U.S. $ 183,000,000). This option is subject
to the following conditions: (i) in no case will the
Option Satellite be launched earlier than April 1999;
(ii) design changes in the Option Satellite may be
ordered by Customer prior to order of the Option
Satellite, said changes may modify the price and
change the delivery schedule; and (iii) the provision
of launch services for the Option Satellite shall be
subject to the provisions of sub-paragraph (6) below.
<TABLE>
<S> <C>
(2) In addition, Customer may delay ordering the Option
Satellite until fifteen (15) months prior to in-orbit
delivery; provided (i) Customer places the order for
such satellite any time during the period from
November 15, 1998 to March 15, 1999 and (ii) for a
commitment for a position on Hughes' satellite
production line and for certain long-lead inventory
items (to be discussed by the Parties and set forth
in Exhibit H no later than December 31, 1997
("Long-Lead Inventory Items")), Customer orders such
Items on or before July 15, 1998 and pays Hughes [ ]*
[ ] *
</TABLE>
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<TABLE>
<S> <C>
[ ] in accordance with the payment schedule*
set forth in Table 33.1.F.(2).
Table 33.1.F(2)
Payload Long-Lead Inventory Item Payment Schedule for a 15-Month Delivery
In-Orbit Where the Satellite Order is Placed During the Period November 15,
1998 to March 15, 1999
July 15, 1998 [ ]
August 21, 1998 [ ]
September 30, 1998 [ ]
October 31, 1998 [ ] *
November 30, 1998 [ ]
----------
TOTAL [ ]
(3) In addition, for an additional sum of [ ]*
[ ], paid in accordance*
with Table 33.1.F(3), Hughes agrees to extend the
Option Satellite order date specified in (2) above
from March 15, 1999 to December 31, 1999.
Table 33.1.F(3)
Bus Long-Lead Inventory Payment Schedule to Extend the 15-Month Delivery
Option Satellite Order Date From March 15, 1999 to December 31, 1999
August 31, 1998 [ ]
September 30, 1998 [ ] *
October 31, 1998 [ ]
November 30, 1998 [ ]
----------
TOTAL [ ]
</TABLE>
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<TABLE>
<S> <C>
(4) In addition, Hughes agrees to permit Customer to
delay ordering the Option Satellite until twelve (12)
months prior to in-orbit delivery; provided (i)
Customer places the order for such satellite during
the period November 15, 1998 and March 15, 1999 and
(ii) for Payload and Bus Long-Lead Inventory Items,
Customer orders such items on or before April 15,
1998 and pays Hughes [ ]*
[ ] in accordance with the payment*
schedule set forth in Table 33.1.F.(4).
Table 33.1.F(4)
Payload and Bus Long-Lead Inventory Item Payment Schedule for a 12-Month
Delivery In-Orbit Where the Satellite Order is Placed During the Period
November 15, 1998 to March 15, 1999
April 15, 1998 [ ]
May 31, 1998 [ ]
June 30, 1998 [ ]
July 31, 1998 [ ] *
August 31,1998 [ ]
September 30, 1998 [ ]
October 31, 1998 [ ]
November 30, 1998 [ ]
TOTAL [ ]
</TABLE>
(5) All payments for Payload and/or Bus Long-Lead
Inventory Items (specified in (2), (3) and (4) above)
shall be applied against the total price of One
Hundred Eighty-Three Million U.S. Dollars (U.S.
$183,000,000) for the Option Satellite.
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(6) In the event Customer orders an Option Satellite as a
replacement Satellite for a failed launch, McDonnell
Douglas has agreed to use best efforts to launch a
replacement satellite within twelve (12) months after
such failure, subject to its obligation to give
priority to U.S. government launches. In the event
Customer orders an Option Satellite that is not a
replacement satellite, Hughes shall use best
reasonable efforts to obtain a Delta III launch
vehicle meeting the above delivery schedule for the
Option Satellite. Where a Delta III is not available
and the Option Satellite is not a replacement for the
Satellite, the price shall be adjusted for the
difference in cost between the Delta III and the
selected launch vehicle, which vehicle shall be
acceptable to Customer.
(7) Hughes shall furnish the Option Satellite in
accordance with the provisions of the documents that
constitute the Contract. Except as otherwise required
by the terms of this Paragraph 33.1.F, the contract
terms for the Option Satellite will be identical to
the Contract, provided, however, the delivery
schedule shall be adjusted, if necessary, for the
later timeframe of the Option Satellite and the risk
elements (e.g., liquidated damages for late delivery
and performance incentives) shall be adjusted to the
change in price from the Satellite so as to represent
the same percentage risk.
(8) Where Customer makes any payments for Payload and/or
Long-Lead Inventory Items but Customer fails to order
the Option Satellite during the applicable time
specified in this Paragraph 33.1.F, the option for
the Option Satellite shall no longer be effective and
Hughes shall deliver to Customer, within thirty (30)
days after the expiration date of the option, the
Payload Long-Lead Inventory Items purchased with such
payments.
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F. Ku-Band 2 Repeater Linearized Transponders
<TABLE>
<S> <C>
Hughes will, at Customer's direction, modify the Ku Band 2 Repeater
payload to add a [ ] to each of three (3) Transponders. Such*
[ ] shall meet performance specifications to be specified by*
Hughes no later than thirty (30) days after Customer exercises this
option, such specifications to be compatible with the general
communications requirements set forth in Sections 3.3, 9.7, 8, and 9 of
Exhibit B (Satellite Technical Specifications) without degrading the
performance specified in Appendix A of Exhibit B (Satellite Technical
Specifications).1 This change will provide two (2) operating linearized
channels and one (1) spare linearized channel. The price for this
option, including hardware, engineering, testing, etc. is Two Million
Two Hundred Thousand U.S. Dollars (U.S. $2,200,000). For this price,
Customer may, in its discretion, choose either of the following two
options:
(1) The addition of Hughes [ ]*
[ ] to the Ku-Band 2 Repeater Transponders.*
This addition will increase the dry mass of the
Satellite by [ ], and cause a corresponding reduction*
in the Operational Lifetime of the Satellite of five
(5) months. This addition will have no impact on the
Scheduled Delivery Date of the Satellite ; or
(2) The replacement of the existing [ ]*
[ ] in each Transponder of the Ku-Band 2*
Repeater with a single linearized amplifier unit.
This change will have no impact on the dry mass or
Operational Lifetime of the Satellite, but will delay
the delivery of the Satellite two (2) months.
Customer must exercise this option no later than January 31, 1997.
G. Designation of Primary Command & Control Site
The Contract baseline calls for Hughes to provide one complete set of
hardware and software for one TT&C site Telemetry Tracking and Control
("TT&C") ([ ] in *
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<TABLE>
<S> <C>
[ ] and one (1) set of SCE at Customer's site in Rockville,*
Maryland. Currently, the [ ] site is designated as the primary TT&C*
site and primary Satellite Control Facility and the Rockville site is
designated as the backup Satellite Control Facility. Provided Customer
notifies Hughes by June 15, 1997, Customer may change the primary TT&C
and primary Satellite Control Facility site designations from the [ ]*
site to a site specified by Customer. The Parties agree that the
performance of the command link will need to be reanalyzed if it is
relocated from [ ]. The Parties further agree that a possible*
result of such analyses may be changes to Exhibits B (Technical
Specifications) and E (Ground Segment).
</TABLE>
33.2 Except as otherwise provided in Paragraph 33.1.E, the terms and
conditions of the Contract shall apply to the options.
33.3 Should Customer exercise any or all of the options described above, the
Parties shall amend the Contract in accordance with Paragraph 35.5 as
soon as is reasonably possible after option exercise to incorporate the
schedule adjustments, price adjustments (which shall be considered
Progress Payments, time-phased accordingly, and incorporated into an
amended Exhibit F as appropriate), and changes to the technical
exhibits and other Contract terms and conditions which are made
necessary by such exercise.
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ARTICLE 34. LIMITATION OF LIABILITY
34.1 Hughes makes no warranty or agreement, express or implied, to or for
the benefit of any person or entity other than Customer concerning the
performance of the Satellite or any other matters relating to the Work
hereunder. Customer shall indemnify and hold harmless Hughes and its
Affiliates and Subcontractors from and against any loss, damage,
liability or expense (including attorneys' fees and other expenses of
investigating or defending claims) resulting from (i) any
representation made by Customer to any third party relating to the
Work; (ii) any claim of Persons dealing with or through Customer
(including customers or insurers) or any agency or other governmental
authority of Customer's Country; or (iii) any other claims relating to
the Satellite and arising after Launch of the Satellite. Customer shall
obtain from its insurers waivers of any subrogation rights against
Hughes or its Affiliates or Subcontractors, and shall provide evidence
of such waivers to Hughes prior to Launch of the Satellite.
34.2 THE PARTIES TO THE CONTRACT EXPRESSLY RECOGNIZE THAT COMMERCIAL SPACE
VENTURES INVOLVE SUBSTANTIAL RISKS AND RECOGNIZE THE COMMERCIAL NEED TO
DEFINE, APPORTION AND LIMIT CONTRACTUALLY ALL OF THE RISKS ASSOCIATED
WITH THIS COMMERCIAL SPACE VENTURE. THE PAYMENTS AND OTHER REMEDIES
EXPRESSLY SET FORTH IN THE CONTRACT FULLY REFLECT THE PARTIES'
NEGOTIATIONS, INTENTIONS AND BARGAINED-FOR ALLOCATION OF THE RISKS
ASSOCIATED WITH COMMERCIAL SPACE VENTURES.
THE WARRANTY OBLIGATIONS OF HUGHES AND THE REMEDIES AGAINST HUGHES
THEREFOR WHICH ARE EXPRESSLY SET FORTH IN ARTICLE 14 OF THE CONTRACT
ARE EXCLUSIVE AND ARE IN SUBSTITUTION OF ANY OTHER WARRANTIES, EXPRESS
OR IMPLIED (INCLUDING ANY STATUTORY WARRANTIES SUCH AS IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE)
WHICH ARE EXPRESSLY DISCLAIMED. CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES,
AND
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HUGHES' SOLE OBLIGATIONS FOR (i) ANY BREACH OF THE CONTRACT, INCLUDING
DELAY OR DEFAULT; (ii) ANY DEFECT, NON-CONFORMANCE OR DEFICIENCY IN ANY
WORK UNDER THE CONTRACT OR IN ANY INFORMATION, INSTRUCTIONS, SERVICES
OR OTHER THINGS PROVIDED PURSUANT TO THE CONTRACT; OR (iii) ANY OTHER
CLAIMS WHATSOEVER ARISING OUT OF OR RELATING TO THE CONTRACT AND/OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER DENOMINATED AS CONTRACT,
TORT, EQUITABLE, STATUTORY OR ANY OTHER TYPE OF CLAIM) ARE LIMITED TO
THOSE SET FORTH IN ARTICLES 5 (SATELLITE PERFORMANCE INCENTIVE
PAYMENTS), 11 (LIQUIDATED DAMAGES FOR DELAY), 14 (HUGHES'
REPRESENTATIONS, WARRANTIES AND COVENANTS), 17 (TERMINATION), 19
(PATENT INDEMNIFICATION) AND 39 (INDEMNIFICATION) HEREOF; AND ALL OTHER
REMEDIES OR RECOURSE AGAINST HUGHES OF ANY KIND ARE EXPRESSLY
DISCLAIMED AND FOREVER WAIVED BY CUSTOMER.
HUGHES SHALL NOT, UNDER ANY CIRCUMSTANCES, UNDER ANY WARRANTY (EXPRESS,
IMPLIED, OR STATUTORY) OR UNDER ANY THEORY OF LIABILITY (INCLUDING
NEGLIGENCE, TORT, STRICT LIABILITY, CONTRACT, OR OTHER LEGAL OR
EQUITABLE THEORY) HAVE ANY LIABILITY TO CUSTOMER OR CUSTOMER'S
CUSTOMERS OR TO ANYONE ELSE FOR ANY SPECIAL, CONSEQUENTIAL AND/OR
INCIDENTAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING BUT NOT
LIMITED TO LOST REVENUES OR PROFITS, COST OF CAPITAL, OR ANY OTHER FORM
OF ECONOMIC LOSS RESULTING FROM ANY BREACH OF THE CONTRACT OR WITH
RESPECT TO ANY DEFECT, NON-CONFORMANCE OR DEFICIENCY IN ANY
INFORMATION, INSTRUCTIONS, SERVICES OR OTHER THINGS PROVIDED PURSUANT
TO THE CONTRACT.
34.3 The Limitations of Liability set forth herein shall also apply to all
Affiliates and Subcontractors of Hughes to the same extent as set forth
herein with respect to Hughes.
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34.4 Nothing in this Article 34 shall apply to or limit (i)_claims against
which Hughes is required to indemnify ORION under the other Articles of
the Contract and or (ii)_the remedies of Customer against Hughes
specified elsewhere in the Contract.
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ARTICLE 35. MISCELLANEOUS
35.1 Disclaimer of Agency
None of the provisions of the Contract shall be construed to mean that
either Party is appointed or is in any way authorized to act as an
agent of the other Party. The Contract does not constitute, create,
give effect to, or otherwise recognize a joint venture, partnership or
formal business organization of any kind, and the rights and
obligations of the Parties shall be limited to those expressly set
forth in the Contract.
35.2 Waiver of Breach of Contract
A waiver of any breach of a provision of the Contract shall not be
binding upon either Party unless the waiver is in writing and signed by
the Authorized Representative of each Party and such waiver shall not
affect the rights of the Party not in breach with respect to any other
or future breach.
35.3 Term of Contract
The Contract shall be in full force and effect as long as either Party
is or may be required to perform any obligation pursuant to the
Contract. In addition, Articles 13 (Inter-Party Waiver of Liability),
16 (Taxes and Duties), 18 (Data and Software), 19 (Patent
Indemnification), 20 (Rights in Inventions), 21 (Proprietary
Information) and 30 (Applicable Law and Dispute Resolution) shall
survive the expiration or termination of the Contract for whatever
cause.
35.4 Language
With respect to all correspondence relating to the Contract and to all
material, including labels and markings of equipment, submitted by
Hughes hereunder, the English language and U.S. units of measure shall
be used. Controlling language for the Contract shall therefore be the
English language.
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35.5 Amendments
The Contract may not be modified except by written amendment signed by
the Authorized Representatives of each Party, which amendment shall
expressly state that it is an "Amendment to the Orion 3 Contract."
35.6 Parent Guarantee
From and after the making of the Balloon Payment and the release by
Hughes of its security interest, ONS shall unconditionally guaranty
Customer's performance of its obligations under the Contract.
35.7 Remedies
Except as otherwise expressly provided in the Contract, the Parties
shall have all remedies available to them under (i) the Contract, (ii)
applicable law or (iii) otherwise.
35.8 Cumulative Remedies
Except as otherwise expressly provided in the Contract, all remedies
provided for in the Contract shall be cumulative.
35.9 Financing
The Parties recognize that the Contract may be financed through
external sources. Hughes agrees to work cooperatively to negotiate and
execute such documents as may be reasonably required to implement such
financings to the extent they do not adversely affect Hughes' rights.
35.10 Compliance with Laws
A. Subject to Article 7 (Permits and Licenses: Government
Approvals), each Party shall, at its own expense, comply with
the requirements of any laws of any place in
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which any part of the Work is to be performed and with the
lawful requirements of public, municipal and other authorities
in any way affecting or applicable to any Work.
B. Subject to Article 7 (Permits and Licenses: Government
Approvals), neither Party shall be responsible in any way for
the consequences, direct or indirect, of any violation by the
other Party or its Subcontractors or Consultants, or their
officers, employees, agents or servants of any law of a
country in which the Work is performed, or of any country
whatsoever.
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ARTICLE 36. SUBCONTRACTORS
36.1 During preliminary design review, Hughes shall provide Customer with a
list of the names of the major Subcontractors holding a Subcontract
with a value of U.S. $2,500,000 (with respect to the Work to be
provided hereunder) or more and shall identify the Work to be performed
under each such Subcontract.
36.2 Hughes shall use its best reasonable efforts to ensure that all
Subcontracts are awarded to the Subcontractor offering the best
combination of reliability, quality, price and delivery time.
36.3 Hughes shall make available to Customer any of Hughes' Subcontractor
information relating to the Satellite construction schedule.
36.4 Nothing in this Article 36 or in any Subcontract shall be deemed to
relieve Hughes from any obligation under the Contract.
36.5 New Subcontracts solely related to the Satellite shall be required by
the terms of their Subcontracts to submit copies of written status
reports to Hughes. Hughes shall use these reports in preparing Hughes'
reports to Customer.
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ARTICLE 37. INSURANCE
37.1 Hughes represents that it has in place and will at all times maintain,
from PCD to the moment of Intentional Ignition, insurance ("Ground
Insurance") against all risks of loss or damage to the Satellite, and
to any and all components purchased for and intended to be integrated
into the Satellite, in an amount not less than the greater of (i) the
replacement value of, or (ii) the amounts paid by Customer with respect
to, the Satellite and components. Hughes shall also maintain public
liability insurance, insurance of employees and comprehensive
automobile liability insurance, all in amounts adequate for its
potential liabilities under the Contract. In addition, Hughes shall
require each of its Subcontractors to provide and maintain insurance in
amounts adequate for their respective potential liabilities.
37.2 Hughes shall provide a certificate of insurance of such insurance
coverage to Customer at Customer's request.
37.3 Hughes shall require its insurers to waive all rights of subrogation
against Customer. Hughes and Customer will discuss the feasibility of
Customer being named as additional insured and loss payee under all
relevant policies.
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ARTICLE 38. KEY PERSONNEL
38.1 Hughes will assign key personnel from within Hughes' organization to
carry out the Work. Such personnel will be familiar with programs
similar to Customer's program, and Hughes will use best reasonable
efforts to retain such personnel for the duration of the Orion 3
Program.
38.2 Key personnel ("Key Personnel") shall be the personnel filling the
following positions:
A. Hughes Program Manager
B. Payload Manager
C. Test Manager
38.3 With respect to Key Personnel, before assigning an individual to any of
such positions, whether as an initial assignment or a subsequent
assignment, Hughes shall notify Customer of the proposed assignment,
shall introduce the individual to appropriate Customer representatives
(and, upon request, provide such representatives with the opportunity
to interview the individual) and shall provide Customer with a resume
and other information about the individual reasonably requested by
Customer. If Customer in good faith objects to the proposed assignment,
the Parties shall attempt to resolve Customer's concerns on a mutually
agreeable basis. Should the individuals filling the positions of Key
Personnel leave such positions for whatever reason, Hughes shall follow
the procedure set forth in this Paragraph 38.3 to select replacement
personnel.
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ARTICLE 39. INDEMNIFICATION
39.1 Customer agrees to indemnify Hughes and its Subcontractors for, and
hold Hughes and its Subcontractors harmless against, any loss, damage,
liability or expense (including attorney's fees and other expenses of
investigating or defending claims) resulting from damage to property or
from personal injury, including death, attributable to Customer
Personnel while at Hughes' or its Subcontractors' facilities.
39.2 Customer agrees to indemnify Hughes as set forth in Paragraphs 13.3,
15.13, 15.14, 15.15, 19.1, 29.1.D and 34.1.
39.3 Hughes agrees to indemnify Customer and Customer Personnel for, and
hold Customer and Customer Personnel harmless against, any loss,
damage, liability or expense (including attorney's fees and other
expenses of investigating or defending claims) resulting from damage to
property or from personal injury, including death, attributable to
Hughes or its Subcontractors while at Hughes' or its Subcontractors'
facilities
39.4 Hughes agrees to indemnify Customer as set forth in Paragraphs 13.3 and
19.1.
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IN WITNESS WHEREOF, the Contract has been issued in three (3) counterparts and
signed in the city of ___ROCKVILLE____ on behalf of Customer, ONS and Hughes by
their respective Authorized Representatives.
HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC.
By: /s/ D.L. CROMER
--------------------------------
D.L. CROMER
CHAIRMAN OF THE BOARD
ORION ASIA PACIFIC CORPORATION
By: /s/ HANS GINER
--------------------------------
HANS GINER
PRESIDENT
ORION NETWORK SYSTEMS, INC.
(with respect to Article 15 and Paragraph 21.10 only)
By: /s/ DENIS J. CURTIN
--------------------------------
DENIS J. CURTIN
VICE PRESIDENT
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Annex A-11
ANNEX A FORM OF CERTIFICATION
[Date]
Orion Asia Pacific Corporation
2440 Research Boulevard, Suite 400
Rockville, Maryland 20850
United State of America
Attention: Dr. Denis Curtin
Re: Orion 3 Satellite Purchase Contract, dated as of [__________] (as
amended, supplemented or modified from time to time) between Orion Asia
Pacific Corporation, Orion Network Systems, Inc., and Hughes Space and
Communications International, Inc. (the "Orion 3 Contract")
Ladies and Gentlemen:
This certificate is delivered to you in connection
with the Orion 3 Contract. Each capitalized term used herein
and not otherwise defined shall have the meaning assigned
thereto in the Orion 3 Contract. We hereby certify, after due
inquiry, that as of the date hereof:
Hughes' performance of the Work is such that Hughes will be
able to Deliver the Satellite in accordance with the Delivery
Schedule.*
For the reasons set forth in Schedule 1 hereto, Hughes'
performance of the Work is such that it will not be able to
Deliver the Satellite in accordance with the Delivery
Schedule. Hughes reasonably expects to be able to Deliver the
Satellite at its Specified Orbital Location on or before
___________.*
Certified: Hughes Space and Communications International, Inc.
By: __________________________
Title:________________________
Date__________________________
* Include when relevant.
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HUGHES
SPACE & COMMUNICATIONS
- --------------------------------------------------------------------------------
ORION 3
- --------------------------------------------------------------------------------
Statement of Work (SOW)
Exhibit A
10 January 1996
Contract Number: ORION3/001/97
-------------
/S/
- ---------------------------------
HSC Approval
/S/
- ---------------------------------
ORION Approval
ORION AND HUGHES PROPRIETARY
This document contains information that is proprietary to the
ORION and Hughes Space and Communications International, Inc.
All information contained herein is deemed to be Proprietary
Information (as such term is defined in Clause 36 of the
Contract) of both Parties, and disclosure thereof is governed
by Clause 20 of the Contract.
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Page iv
ORION AND Hughes Proprietary
Subject to the restrictions on the title page of this document
1. PURPOSE AND SCOPE.....................................................1
2. SPACECRAFT EQUIPMENT REQUIREMENTS.....................................1
2.1 Flight Spacecraft.....................................................1
2.2 Test and Handling Equipment...........................................1
2.3 Satellite Ground Control System.......................................2
3. PROGRAM MANAGEMENT....................................................5
3.1 Scope & Responsibilities..............................................5
3.1.1 Resource Management..........................................5
3.2 Program Control.......................................................5
3.3 Configuration Control.................................................5
3.4 Design Reviews........................................................5
3.5 Unit Acceptance Reviews (CDRL 3.9)....................................6
3.6 System Test Reviews (CDRL 4.3)........................................6
3.7 Pre-Ship Review (CDRL 4.8)............................................7
3.8 In-Orbit Test Review and Handover (CDRL 3.8)..........................7
3.9 Variance Notification.................................................7
4. ANALYSIS 8
4.1 Design Analyses and Study Reports.....................................8
4.1.1 Analyses at Spacecraft System Level..........................8
4.1.1.1 EMCAnalysis..............................................8
4.1.1.2 Dynamic Analysis.........................................8
4.1.1.3 Antenna Pointing Error Analysis..........................9
4.1.1.4 Propellant Budget Analysis...............................9
4.1.1.5 Mass Properties Analysis................................10
4.1.1.6 Power Budget Analysis...................................10
4.1.1.7 Mission Analysis........................................10
4.1.1.8 Environmental Effects Analyses..........................10
4.1.1.9 Worst Case Performance Analysis.........................11
4.1.2 Subsystem Level Analyses....................................12
4.1.2.1 Communications Subsystem Analyses.......................12
4.1.2.2 Telemetry, Tracking, and Command (TT&C)
Subsystem Analyses.......................................14
4.1.2.3 Attitude Control Subsystem (ACS) Analysis...............15
4.1.2.4 Propulsion Subsystem Analyses...........................16
4.1.2.5 Power Subsystem Analyses................................16
4.1.2.6 Thermal Subsystem Analyses..............................17
4.1.2.7 Structure Analyses......................................17
5. SATELLITE PRODUCT ASSURANCE PLAN.....................................18
6. TESTPLAN.............................................................18
7. LAUNCH SERVICES (CDRL 4.5)...........................................18
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7.1 Launch Vehicle Compatibility.........................................19
7.2 Launch Support.......................................................19
7.2.1 Launch Schedule Activities (CDRL 4.5).......................19
7.2.2 Spacecraft Preparation at the Launch Site...................19
7.2.3 Integration and Checkout with the Launch Vehicle............20
7.2.4 Spacecraft Propellant and Pressurant........................20
7.2.5 Safety......................................................20
8. MISSION OPERATIONS (CDRL 5.2)........................................20
9. IN-ORBIT TEST (IOT) (CDRL 5.4).............................................21
10. SHIPPING AND STORAGE......................................................21
10.1 Shipping, Transportation, and Storage....................................21
10.2 Spacecraft Shipment......................................................21
10.3 Spacecraft Storage.......................................................21
11. TRAINING SERVICES AND MATERIALS (CDRL 1.5)................................22
12. INFORMATION...............................................................24
12.1 Access to Information....................................................24
12.2 Release of Information...................................................24
12.3 Notification Requirements................................................24
13. REPORT AND DOCUMENTATION REQUIREMENTS.....................................25
13.1 System Test Requirement Document (STRD) (CDRL 5.7)...................25
13.1.1 Compliance Matrix (CDRL 1.2)..................................25
13.1.2 Program Schedules (CDRL 1.1)..................................25
13.1.3 Design Review Data (CDRL 4.2).................................25
13.1.4 Design Review Reports (CDRL 3.2, 3.3).........................25
13.1.5 Test Data and Reports (CDRL 3.4, 3.5).........................26
13. 1.6 Drawings and Engineering Control Documents
(CDRL 4.4, 4.10)............................................26
13. 1.7 Specifications and Test Procedures (CDRL 2.2, 5.3)...........26
13.1.8 Design Information Reports....................................26
13.1.8.1 Spacecraft System Summary (CDRL 4.1)...............27
13.1.8.2 Spacecraft Recommended Operating Procedures
(CDRL 5.1, 5.6).............................................27
13.1.8.3 Mission Plan (CDRL 1.3)............................27
13.1.8.4 Spacecraft Parameters Handbook (CDRL 4.7)..........27
13.1.8.5 In-Orbit Test (IOT) Plan (CDRL 1.4)................28
13.1.8.6 IOT Report (CDRL 3.8)..............................28
13.1.9 Status and Reporting..........................................29
13.1.9.1 Technical Reviews..................................29
13.1.9.2 Quarterly/Senior Management Reviews (CDRL 3.)......29
13.1.9.3 Action Items.......................................29
13.1.9.4 Quarterly, PDR, CDR, Pre-Ship Review Meetings......29
13.1.10 Documentation................................................30
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13.1.11 Master Index (CDRL4.9).......................................30
14. CONTRACT DATA REQUIREMENTS LIST (CDRL)...............................33
TABLE 2-1 MAJOR COMPONENT LIST.........................................3
TABLE 11.1 TRAINING PROGRAM SUMMARY....................................22
TABLE 3-1 ORION REVIEW PACKAGE CONTENT................................31
TABLE 3-1 CONTINUED...................................................32
TABLE 14.1 CONTRACT DATA REQUIREMENTS LIST (CDRL)......................34
TABLE 14.1 CONTRACT DATA REQUIREMENTS LIST (CDRL) - CONTINUED..........35
TABLE 14.1 CONTRACT DATA REQUIREMENTS LIST (CDRL) - CONTINUED..........37
Page iv
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[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1 TO 37 OF THIS EXHIBIT A]
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HUGHES
SPACE & COMMUNICATIONS
- --------------------------------------------------------------------------------
ORION 3
- --------------------------------------------------------------------------------
SPACECRAFT SPECIFICATION
Exhibit B
11 January 1997
Contract Number: ORION 3/001/97
/S/
- --------------------------------
HSC Approval
/S/
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ORION Approval
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TABLE OF CONTENTS
1.0 SCOPE .............................................................1
2.0 APPLICABLE DOCUMENTS..................................................1
2.1 APPLICABLE DOCUMENTS LIST.............................................1
3.0 REQUIREMENTS..........................................................2
3.1 GENERAL...............................................................2
3.1.1 GENERAL DESCRIPTION...................................................2
3.1.2 RELIABILITY...........................................................2
3.1.2.1 Single Point Failure..........................................2
3.1.2.2 Redundancy....................................................2
3.1.2.3 Failure Isolation.............................................3
3.1.3 UNDERVOLTAGE AND TRANSIENT CONDITIONS.................................3
3.1.3.1 Critical Unit Undervoltage....................................3
3.1.3.2 Undervoltage Capability.......................................3
3.1.4 ECLIPSE AND SUNLIGHT OPERATIONS.......................................3
3.1.5 GROUND CONTROL CAPABILITY.............................................4
3.1.5.1 Satellite Command System......................................4
3.1.5.2 Ground Command Capability.....................................4
3.1.5.3 Control Parameter Selection...................................4
3.1.5.4 Autonomy......................................................4
3.1.6 SPACECRAFT CHARGING...................................................5
3.1.7 ELECTROMAGNETIC COMPATIBILITY.........................................5
3.1.8 ENVIRONMENTAL REQUIREMENTS............................................5
3.1.9 CONNECTOR REDUNDANCY..................................................5
3.2 MISSION REQUIREMENTS..................................................5
3.2.1 LAUNCH VEHICLES.......................................................6
3.2.1.1 Launch Vehicle Mechanical & Electrical Interfaces.............6
3.2.1.2 Launch Configuration..........................................6
3.2.1.3 Separation System.............................................6
3.2.1.4 Separation Signal Interface...................................6
3.2.1.5 Mass Properties...............................................7
3.2.1.6 Launch Vehicle Envelope.......................................7
3.2.1.7 Safety........................................................7
3.2.2 SATELLITE LIFE........................................................7
3.2.2.1 Service Life..................................................7
3.2.2.2 Mission Life..................................................7
3.2.3 STORAGE MODES.........................................................8
3.2.3.1 Ground Storage................................................8
3.2.3.2 On-Orbit Storage..............................................8
3.2.4 ORBITAL LOCATION......................................................8
3.2.5 STATIONKEEPING........................................................8
3.2.5.1 Stationkeeping Accuracy.......................................8
3.2.5.2 Stationkeeping Frequency......................................8
3.2.5.3 Stationkeeping Pointing During Bipropellant
Maneuvers.....................................................9
3.2.6 NORMAL MODE POINTING..................................................9
3.2.6.1 Normal Mode...................................................9
3.2.6.2 NORMAL MODE POINTING REQUIREMENTS......................................9
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3.2.7 ORBIT MEASUREMENT ACCURACY............................................9
3.2.7.1 Transfer Orbit................................................9
3.2.7.2 Synchronous Orbit.............................................9
3.2.7.3 Attitude Sensing Requirements.................................9
3.3 Communications Subsystem.............................................10
3.3.1 GENERAL..............................................................10
3.3.1.1 DEFINITIONS..................................................10
3.3.1.2 CONDITIONS FOR SPECIFICATION.................................12
3.3.3.1.3 PRIMARY TRANSMISSION MODES.................................12
3.3.3.2 COVERAGE..............................................................13
3.3.2.2 C-BAND COVERAGE.......................................................23
3.3.3 POLARIZATION.........................................................26
3.3.3.1 Receive Isolation............................................26
3.3.3.2 Transmit Isolation...........................................27
3.3.4 CAPACITY.............................................................28
3.3.5 FREQUENCY PLAN.......................................................29
3.3.6 COMMUNICATIONS SUBSYSTEM AND ANTENNA BEAM INTERCONNECTIVITY..........30
3.3.6.1 Communications Subsystem Configuration.......................30
3.3.6.2 Interconnectivity............................................31
3.3.7 INPUT CHARACTERISTICS................................................33
3.3.7.1 Receive Sensitivity (G/T)....................................33
3.3.7.3 Saturation Flux Density (SFD)................................36
3.3.7.4 Drive Conditions.............................................37
3.3.7.4.1 Overdrive Conditions.......................................37
3.3.7.4.2 Pulsed Transient Response..................................37
3.3.7.5 Receive Rejection............................................38
3.3.7.6 Linearity of the Common Input Section........................39
3.3.7.7 Interference from Command Carrier............................39
3.3.8 OUTPUT CHARACTERISTICS...............................................39
3.3.8.1 Effective Isotropic Radiated Power (EIRP)....................39
3.3.8.2 Spurious Outputs.............................................42
3.3.8.3 Spurious Modulation..........................................43
3.3.8.4 Pulsed Level.................................................44
3.3.8.5 Passive Intermodulation......................................44
3.3.9 TRANSFER CHARACTERISTICS.............................................44
3.3.9.1 Gain Versus Frequency (TBR)..................................44
3.3.9.2 Gain Slope...................................................45
3.3.9.3 Group Delay Versus Frequency (TBR)...........................45
3.3.9.4 Group Delay Slope............................................46
3.3.9.5 Group Delay Stability........................................46
3.3.9.6 Group Delay Ripple...........................................47
3.3.9.7 Phase Linearity and AM/PM Conversion Coefficient.............47
3.3.9.8 AM/PM Transfer Coefficient...................................47
3.3.9.9 Amplitude Linearity..........................................47
3.3.9.10 Frequency Stability.........................................48
3.3.9.11 Out-Of-Band Response........................................49
3.3.10 CESSATION OF EMISSIONS...............................................50
3.3.11 TRAFFIC ROUTING......................................................50
3.3.12 REDUNDANCY...........................................................51
3.3.13 HIGH POWER AMPLIFIERS................................................51
3.3.13.1 Linearized TWTAs............................................51
3.3.14 TT&C INTERFACE.......................................................51
3.3.14.1 Command Requirements........................................51
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3.3.14.2 Telemetry Requirements......................................52
3.4 TELEMETRY, TRACKING, COMMAND, AND RANGING SUBSYSTEM (TT&CR)...............52
3.4.1 GENERAL
3.4.1.1 CONCURRENT OPERATION WITH PAYLOAD............................52
3.4.1.2 Satellite Control............................................52
3.4.2 COMMAND SUBSYSTEM.......................................................53
3.4.2.1 General......................................................53
3.4.2.2 Probability of Successful Command............................53
3.4.2.3 False Commands...............................................53
3.4.2.4 Noise Generated Commands.....................................53
3.4.2.5 Improper Command Tolerance...................................53
3.4.2.6 Ranging Uplink...............................................53
3.4.2.7 Command Backup...............................................53
3.4.2.8 Redundancy...................................................53
3.4.2.9 Switches.....................................................54
3.4.2.10 Hazardous Commands..........................................54
3.4.2.11 Command RF Parameters.......................................54
3.4.2.12 Command Encryption..........................................55
3.4.2.13 Command Receiver AGC........................................55
3.4.2.14 Command Deviation...........................................56
3.4.2.15 Subcarrier Modulation.......................................56
3.4.2.16 Command Data Rate...........................................56
3.4.2.17 Command Receiver and Decoder Selection......................56
3.4.2.18 Error Checking..............................................56
3.4.2.19 Command Formats.............................................56
3.4.2.20 Execute Modes...............................................57
3.4.2.21 Stored Commands.............................................57
3.4.2.22 Validation Tone.............................................57
3.4.3 TELEMETRY SUBSYSTEM..................................................57
3.4.3.1 General Requirements.........................................57
3.4.3.2 Ranging Capability...........................................58
3.4.3.3 Spacecraft ID................................................58
3.4.3.4 Telemetry Accuracy...........................................58
3.4.3.5 Redundancy...................................................58
3.4.3.6 Telemetry RF Parameters......................................59
3.4.3.7 Modulation and Encoding Modes................................60
3.4.4 RANGING SUBSYSTEM....................................................60
3.4.4.1 Transmitter Selection........................................60
3.4.4.2 Ranging Accuracy.............................................60
3.4.4.3 Range Tone Frequencies.......................................61
3.4.4.4 Modulation Indices...........................................61
3.4.4.5 Ranging Dynamic Range........................................61
3.5 POWER SUBSYSTEM......................................................61
3.5.1 GENERAL..............................................................61
3.5.1.1 Subsystem Configuration......................................61
3.5.1.2 Single Point Failure.........................................61
3.5.2 SOLAR ARRAY..........................................................62
3.5.2.1 DISSIPATION OF EXCESS POWER..................................62
3.5.2.2 CELL PROTECTION FROM SHADOWING...............................62
3.5.2.3 SOLAR WING ROTATION DIRECTION................................62
3.5.2.4 SOLAR WING MARGIN............................................62
3.5.2.5 ARRAY DEGRADATION PREDICTIONS.........................................62
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3.5.3 BATTERY ............................................................62
3.5.3.1 DEPTH OF DISCHARGE...........................................63
3.5.3.2 RECHARGE.....................................................63
3.5.3.3 AUTONOMOUS CHARGE CONTROL....................................63
3.5.3.4 TELEMETRY....................................................63
3.5.4 POWER CONDITIONING, CONTROL & DISTRIBUTION..............................63
3.5.4.1 Battery Disconnect...........................................63
3.5.5 Transfer Orbit Power...........................................63
3.6 WIRE HARNESS.........................................................63
3.7 ATTITUDE CONTROL SUBSYSTEM...........................................64
3.7.1 REACQUISITION........................................................64
3.7.2 SENSOR INTERFERENCE..................................................64
3.7.3 CONTROL BIAS CAPABILITY..............................................64
3.7.3.1 EARTH BIAS CONTROL RANGE.....................................64
3.7.3.2 BIAS REQUIREMENTS FOR EARTH MODE.............................65
3.7.4 IN-ORBIT ANTENNA PATTERN MEASUREMENT CAPABILITY......................65
3.7.5 SPACECRAFT CAPABILITIES..............................................65
3.7.5.1 Attitude Re-orientation Capability...........................65
3.7.5.2 Spin Control Capability......................................65
3.7.5.3 Automatic Acquisition Capabilities...........................65
3.7.6 STATIONKEEPING.......................................................65
3.7.6.1 Automatic East/west Stationkeeping Sequence..................66
3.7.6.2 Automatic North/South Stationkeeping Sequence................66
3.7.7 THRUSTER USAGE.......................................................66
3.7.7.1 Bipropellant Thruster Usage Interval.........................66
3.7.7.2 Xenon Ion Thruster Usage.....................................66
3.7.8 MOMENTUM CONTROL.....................................................66
3.7.8.1 Pitch Momentum Dumping Simultaneous with Biprop
Stationkeeping...............................................66
3.7.8.2 Autonomous Pitch Momentum Dumping
(Bipropellant Thrusters).....................................66
3.7.8.3 Setting Pitch Momentum Thresholds............................67
3.7.8.4 Roll/Yaw Momentum Dumping Simultaneous with
Bipropellant Stationkeeping .................................67
3.7.8.5 Autonomous Roll/Yaw Momentum Dumping
(Xenon Thruster Mode)........................................67
3.7.8.6 Autonomous Roll/Yaw Momentum Dumping (Bipropellant
Thruster Mode)............................................67
3.7.8.7 Setting Roll/Yaw Momentum Thresholds.........................67
3.7.9 SWITCHING TRANSIENTS.................................................67
3.7.10 ENVIRONMENTAL DISTURBANCE TORQUES....................................67
3.7.11 MOMENTUM WHEEL GROUND CONTROL........................................67
3.7.12 REPROGRAM CAPABILITY.................................................68
3.7.13 FAULT PROTECTION.....................................................68
3.7.13.1 Fault Detection Algorithm Status Flag.......................68
3.7.13.2 Fault Correction Sensitivity to Bad Data....................68
3.7.14 REFERENCE SYSTEMS....................................................68
3.7.15 AUTONOMOUS OPERATION OF LATCH VALVES.................................68
3.8 PROPULSION SUBSYSTEM.................................................68
3.8.1 GENERAL..............................................................68
3.8.1.1 LIQUID APOGEE MOTOR (LAM) BACKUP.............................68
3.8.1.2 OUT OF VIEW LAM FIRING.......................................69
3.8.2 THERMAL CONSTRAINTS..................................................69
3.8.3 PROPELLANT STORAGE AND FEED..........................................69
3.8.3.1 PROPELLANT SUPPLY............................................69
3.8.4 LEAKAGE..............................................................69
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3.8.5 PERFORMANCE..........................................................69
3.8.5.1 Compatibility................................................70
3.8.5.2 Operating Range..............................................70
3.8.5.3 Constraints..................................................70
3.8.6 INSTRUMENTATION REQUIREMENTS.........................................70
3.8.6.1 Temperature Sensors..........................................70
3.8.6.2 Pressure Transducers.........................................70
3.8.7 FUEL LIFE ESTIMATION.................................................70
3.8.8 FUELED SPACECRAFT....................................................70
3.9 THERMAL CONTROL SUBSYSTEM............................................71
3.9.1 UNIT TEMPERATURE MARGIN..............................................71
3.9.2 TEST TEMPERATURE RANGE...............................................71
3.9.2.1 Protoflight and Qualification Performance ...................71
3.9.2.2 Acceptance/Flight............................................71
3.9.3 TELEMETRY............................................................71
3.9.4 REPEATER CONFIGURATION...............................................72
3.10 STRUCTURAL SUBSYSTEM.................................................72
3.10.1 DESIGN PARAMETERS......................................................72
3.10.2 DIMENSIONAL STABILITY..................................................72
4.0 QUALITY ASSURANCE PROVISIONS.........................................72
4.1 GENERAL..............................................................72
4.1.1 NOT APPLICABLE.......................................................72
4.1.2 INSPECTION...........................................................72
4.1.3 ANALYSIS.............................................................73
4.1.4 DEMONSTRATION........................................................73
4.1.5 TEST ............................................................73
4.1.5.1 Unit Tests (U)...............................................73
4.1.5.2 Assembly Tests (A)...........................................73
4.1.5.3 Subsystem Tests (SS).........................................73
4.1.5.4 Integrated Spacecraft Tests (SC).............................73
4.1.5.5 Development Tests (D)........................................73
4.1.5.6 Qualification Tests (Q)......................................74
4.1.5.7 Protoflight Test (P).........................................74
4.1.5.8 Flight Acceptance Test (F)...................................74
5.0 PREPARATION FOR DELIVERY.............................................74
5.1 SHIPMENT.............................................................74
5.1.1 CONFIGURATION........................................................74
5.1.2 ENVIRONMENTS.........................................................74
5.1.3 METHODS..............................................................75
5.1.4 CONTAINER............................................................75
5.2 GROUND STORAGE.......................................................75
Appendix A DTH Payload
Appendix B Environmental Specification
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List of Figures
FIGURE 3.3.2.1-1 DEFINITION OF NEA COVERAGE AT 139 DEG. EAST..................15
FIGURE 3.3.2.1-2 DEFINITION OF SEA COVERAGE AT 139 DEG. EAST..................18
FIGURE 3.3.2.1-3 DEFINITION OF HAWAII COVERAGE AT 139 DEG. EAST...............19
FIGURE 3.3.2.1-4 DEFINITION OF INDIA COVERAGE AT 139 DEG. EAST................21
FIGURE 3.3.2.1-5 DEFINITION OF OCEANA COVERAGE AT 139 DEG. EAST...............22
FIGURE 3.3.2.2-1 BAND COVERAGE................................................25
List of Tables
TABLE 3.3.3.2.1-1 DEFINITION OF NEA COVERAGE..................................14
TABLE 3.3.2.1-2 DEFINITION OF SEA COVERAGE....................................16
TABLE 3.3.2.1-2 DEFINITION OF SEA COVERAGE (CONTINUED)........................17
TABLE 3.3.2.1-3 DEFINITION OF HAWAII COVERAGE (NEA AND SEA)...................19
TABLE 3.3.2.1-4 DEFINITION OF INDIA COVERAGE..................................20
TABLE 3.3.2.1-5 DEFINITION OCEANA.............................................22
TABLE 3.3.2.2-1 DEFINITION OF C-BAND COVERAGE.................................23
TABLE 3.3.2.2-1 DEFINITION OF C-BAND COVERAGE (CONTINUED).....................24
TABLE 3.3.3.1-1 CO-POLAR RECEIVE ISOLATION....................................26
TABLE 3.3.3.1-2 CROSS-POLAR RECEIVE ISOLATION.................................27
TABLE 3.3.3.2-1 CO-POLAR TRANSMIT ISOLATION...................................27
TABLE 3.3.3.2-2 CROSS-POLAR TRANSMIT ISOLATION................................27
TABLE 3.3.4-1 ORION AP DC POWER CONSTRAINED OPERATIONAL CONFIGURATION.........28
TABLE 3.3.5-1 CHANNEL FREQUENCIES.............................................29
TABLE 3.3.6.1-1(B). C-BAND CONNECTIVITY MATRIX................................33
TABLE 3.3.7.1-1A MINIMUM G/T PERFORMANCE OF NEA BEAM..........................34
TABLE 3.3.7.1-1B MINIMUM G/T PERFORMANCE OF SEA BEAM..........................34
TABLE 3.3.7.1-1C MINIMUM G/T PERFORMANCE OF INDIA BEAM........................34
TABLE 3.3.7.1-1D MINIMUM G/T PERFORMANCE OF OCEANA BEAM.......................34
TABLE 3.3.7.1-1E MINIMUM G/T PERFORMANCE OF C-BAND HEMI BEAM..................34
TABLE 3.3.7.1-2 KEY CITY G/T VALUES (TBR).....................................35
TABLE 3.3.7.5-1 (A) KU-BAND RECEIVE REJECTION.................................38
TABLE 3.3.8.5-1 (B) C-BAND RECEIVE REJECTION..................................38
TABLE 3.3.7.7-1 COMMAND CARRIER LEVEL AT RECEIVE ANTENNA.....................39
TABLE 3.3.8.1-1A MINIMUM EIRP PERFORMANCE OF NEA BEAM.........................40
TABLE 3.3.8.1-1B MINIMUM EIRP PERFORMANCE OF SEA BEAM.........................40
TABLE 3.3.8.1-1C MINIMUM EIRP PERFORMANCE OF INDIA BEAM.......................40
TABLE 3.3.8.1-1D MINIMUM EIRP PERFORMANCE OF OCEANA BEAM......................40
TABLE 3.3.8.1-1E MINIMUM EIRP PERFORMANCE OF C-BAND HEMI BEAM.................40
TABLE 3.3.8.1-2 KEY CITY EIRP VALUES (TBR)....................................41
TABLE 3.3.8.2-1 SPURIOUS OUTPUT LEVELS........................................43
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TABLE 3.3.8.3-1 SINGLE COMPONENT SPURIOUS FREQUENCY MODULATION................44
TABLE 3.3.9.1-1 GAIN FLATNESS (DB)............................................45
TABLE 3.3.9.2-1 GAIN SLOPE (DB/MHZ)...........................................45
TABLE 3.3.9.3-1 GROUP DELAY (INS).............................................46
TABLE 3.3.9.4-1 54 MHZ TRANSPONDERS GROUP DELAY SLOPE.........................46
TABLE 3.3.9.5-1 GROUP DELAY STABILITY (NS)....................................47
TABLE 3.3.9.9-2 NOISE POWER RATIO.............................................48
TABLE 3.3.9.11-1(A) OUT-OF-BAND RESPONSE TBR..................................49
TABLE 3.3.9.11-1(B) OUT-OF-BAND RESPONSE......................................49
TABLE 3.3.9.11-1(C) OUT-OF-BAND RESPONSE......................................50
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[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1 TO 75 OF THIS EXHIBIT B]
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HUGHES
SPACE & COMMUNICATIONS
- --------------------------------------------------------------------------------
ORION 3
- --------------------------------------------------------------------------------
SPACECRAFT SPECIFICATION
Exhibit B
Appendix A
DTH Payload
11 January 1997
Contract Number: ORION 3/001/97
/s/
- ----------------------------------
HSC Approval
/s/
- ----------------------------------
ORION Approval
<PAGE>
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 2 TO 19 OF THIS EXHIBIT B,
APPENDIX A]
<PAGE>
HUGHES
SPACE & COMMUNICATIONS
- --------------------------------------------------------------------------------
ORION 3
- --------------------------------------------------------------------------------
SPACECRAFT SPECIFICATION
Exhibit B
Appendix B
Environmental Specification
11 January 1997
Contract Number: ORION 3/001/97
/s/
- ---------------------------------
HSC Approval
/s/
- ---------------------------------
ORION Approval
<PAGE>
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1 TO 7 OF THIS EXHIBIT B,
APPENDIX B]
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
- ------------------------------------------- ----------------------- ------------ -----------------------------------------
TITLE NUMBER REV
HS601HP Prelim HUGHES
ORION
Product Assurance Plan
----------------------- ------------
TOTAL SPACE & COMMUNICATIONS
CAGE CODE PAGES A HUGHES ELECTRONICS COMPANY
9E831
67
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
SOURCE: HUGHES PROPRIETARY
This document contains proprietary information and except with
written permission of Hughes Space and Communications Company
such information shall not be published or disclosed to others
or used for any purpose and the document shall not be copied
in whole or in part.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
APPROVALS
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
DATE DATE
/s/ P. Lauenstein
A. Traum - Product Assurance 11/27/96 Campaign Manager
Project Manager, Advanced Programs
- ------------------------------------------- --------------- --------------------------------- ----------------------------
- ------------------------------------------- --------------- --------------------------------- ----------------------------
- ------------------------------------------- --------------- --------------------------------- ----------------------------
- ------------------------------------------- --------------- --------------------------------- ----------------------------
</TABLE>
<PAGE>
Prelim
November 1996
1. BASIC PROVISIONS ...................................................1-1
1.1 Program Content............................................1-2
1.2 Program Functions..........................................1-2
1.3 Applicable Documents and Guidelines........................1-2
2. ORGANIZATION AND MANAGEMENT.........................................2-1
2.1 Basic Provisions...........................................2-2
2.2 Organization of Integrated Product Teams (IPTs)............2-2
2.3 Reviews ..............................................2-2
2.4 Audits ..............................................2-2
2.5 Documentation..............................................2-3
2.6 Subcontractor/Supplier PA Program Control..................2-3
2.6.1 Basic Provisions..............................2-3
2.6.2 High Reliability Parts Suppliers..............2-3
2.6.3 Materials and Fabricated Item Suppliers.......2-3
2.6.4 Subcontractors................................2-3
2.7 Progress Reporting.........................................2-4
2.8 Customer Interface.........................................2-4
2.8.1 Involvement in and Access to Program
Activities....................................2-4
2.8.2 Involvement in a Review Board Proceedings.....2-4
3. QUALITY ASSURANCE...................................................3-1
3.1 Basic Provisions...........................................3-2
3.2 Function Administration....................................3-2
3.2.1 Responsibilities..............................3-2
3.2.2 Tasks.........................................3-2
3.2.3 Audits........................................3-3
3.3 Procurement Controls.......................................3-3
3.3.1 Responsibility................................3-3
3.3.2 Subcontractor/Supplier Evaluation.............3-3
3.3.3 Procurement Document Requirements.............3-3
3.3.4 Source Surveillance...........................3-3
3.3.5 Receiving Inspection..........................3-4
3.4 Manufacturing Controls.....................................3-4
3.4.1 Fabrication and Assembly Operations...........3-4
3.4.2 Stores Control................................3-4
3.4.3 Process Control...............................3-4
3.4.4 Process and Personnel Certification...........3-4
3.4.5 Workmanship Standards.........................3-5
3.4.6 Cleanliness and Contamination Control.........3-5
3.4.7 Configuration Control.........................3-5
3.4.8 Electrostatic Discharge Control...............3-5
3.5 Testing and Inspection.....................................3-5
3.5.1 In-process Inspections........................3-5
3.5.2 Final Test and Inspection.....................3-5
3.5.3 Subsystem/System Assembly Inspection and
Records.......................................3-6
3.5.4 Test Participation............................3-6
i
<PAGE>
Prelim
November 1996
3.6 Nonconforming Article and Material Control.................3-7
3.6.1 Material Review Action and Control............3-7
3.6.1.1 Preliminary Review............................3-7
3.6.1.2 Engineering Disposition.......................3-7
3.6.1.3 Engineering Review............................3-7
3.6.2 Nonconformance Definitions and
Classifications...............................3-7
3.6.3 Corrective Action.............................3-7
3.6.4 Subcontractor Material Review.................3-8
3.6.5 Database......................................3-8
3.7 Measurement Processes and Calibration......................3-8
3.7.1 Basic System..................................3-8
3.7.2 Calibration Controls..........................3-8
3.7.3 Remedial and Preventive Action................3-9
3.7.4 Subcontractor Controls........................3-9
3.8 History Records and Traceability...........................3-9
3.8.1 History Records...............................3-9
3.8.2 Traceability..................................3-9
3.9 Stamp Controls............................................3-10
3.10 Sampling Plans, Statistical Planning, and Analysis........3-10
3.11 Handling and Shipping.....................................3-10
3.11.1 Handling.....................................3-10
3.11.2 Shipping.....................................3-10
3.11.3 Transportation...............................3-10
3.12 Software Quality Assurance................................3-11
3.13 Launch Site Activities....................................3-11
4. RELIABILITY ENGINEERING.............................................4-1
4.1 Basic Provisions...........................................4-2
4.2 Function Administration....................................4-2
4.2.1 Responsibilities..............................4-3
4.2.2 Tasks.........................................4-2
4.3 Reliability Assessments....................................4-2
4.3.1 Space Segment Design Reliability..............4-2
4.3.1.1 Requirements..................................4-3
4.3.1.2 Apportionment.................................4-3
4.3.2 Analyses......................................4-3
4.3.2.1 Failure Rates.................................4-3
4.3.2.2 Analysis Results..............................4-4
4.3.3 Part Application Derating.....................4-4
4.3.4 Failure Modes, Effects, and Criticality
Analysis......................................4-4
4.3.5 Single Point Failures.........................4-5
4.3.6 Wearout Analysis..............................4-5
4.3.7 Worst-case Analysis...........................4-5
4.3.8 Critical Items List...........................4-5
4.4 Failure Reporting and Corrective Action....................4-6
4.4.1 Basic Provisions..............................4-6
ii
<PAGE>
Prelim
November 1996
4.4.2 Failure Definition and Documentation..........4-6
4.4.3 Failure Analysis..............................4-7
4.4.4 Failure Review Board..........................4-7
4.4.5 Subcontractor Failure Reporting...............4-7
4.4.6 Mission On-orbit Performance Metrics and
Corrective Action.............................4-7
5. PARTS, MATERIALS, AND PROCESSES CONTROL.............................5-1
5.1 Basic Provisions...........................................5-2
5.2 Function Administration....................................5-2
5.3 Program Requirements.......................................5-2
5.3.1 Authorized Lists..............................5-2
5.3.2 Parts, Materials, and Processes...............5-2
5.3.3 Parts, Materials, and Processes
Specifications................................5-3
5.3.4 Parts and Materials Qualification.............5-3
5.4 Parts Process Controls, Screening and Acceptance...........5-4
5.4.1 Basic Provisions..............................5-4
5.4.2 Environmental Screening and Conditioning......5-4
5.4.3 Burn-in.......................................5-4
5.4.4 Destructive Physical Analysis.................5-4
5.4.5 Radiation.....................................5-4
5.4.6 Subcontractor PMP Program Control.............5-4
6. CONFIGURATION CONTROL...............................................6-1
6.1 Basic Provisions...........................................6-2
6.2 Function Administration....................................6-2
6.2.1 Responsibilities..............................6-2
6.2.2 Tasks.........................................6-2
6.3 Activities ..............................................6-3
6.3.1 Configuration Identification..................6-3
6.3.1.1 Baseline Identification.......................6-3
6.3.1.2 Configuration Items Definition................6-3
6.3.1.3 Specifications and Drawings Identification....6-3
6.3.1.4. Specification Tree............................6-4
6.3.1.5 Master Index..................................6-4
6.3.1.6 Computer Software Configuration
Identification................................6-4
6.3.1.7 Firmware Configuration Management.............6-4
6.3.2 Configuration Control.........................6-4
6.3.2.1 Change Classification.........................6-4
6.3.2.2 Requests for Deviations/Waivers (RDWs)........6-4
6.3.2.3 Engineering Control Processing................6-5
6.3.2.4 Change Control Board..........................6-5
6.3.3 Configuration Status Accounting...............6-5
6.3.4 Subcontractor Configuration Management........6-5
6.3.5 Engineering Documentation Control.............6-6
6.3.5.1 Engineering Releases and Records..............6-6
7. SYSTEM SAFETY.......................................................7-1
7.1 Basic Provisions...........................................7-2
iii
<PAGE>
Prelim
November 1996
7.2 Function Administration....................................7-2
7.2.1 Responsibilities..............................7-2
7.2.2 Tasks.........................................7-2
7.2.3 Organizational Roles..........................7-3
7.2.3.1 Engineering...................................7-3
7.2.3.2 System Operations.............................7-3
7.2.3.3 Safety, Health, and Environmental Affairs
(SHEA)........................................7-3
7.2.4 Launch Site Safety Requirements...............7-3
7.3 HSC System Safety Policy...................................7-4
7.4 Scope of System Safety Program.............................7-4
7.5 Integration and Coordination of Delegated Activities.......7-5
7.6 Hazard Control Order of Precedence.........................7-5
7.7 Hazard Analysis............................................7-5
7.7.1 Preliminary Hazard Analysis (PHA).............7-6
7.7.2 Subsystem and System Hazard Analysis (S&SHA)..7-6
7.7.3 Verification and Certification of
Requirements Compliance.......................7-6
7.8 Test and Operational Safety................................7-6
7.9 Launch Campaign Safety Operations..........................7-7
7.10 Safety Reviews and Safety Data/Deliverables................7-7
7.11 Training ..............................................7-8
7.12 Audit Program..............................................7-8
ANNEX 7A. LAUNCH VEHICLE/LAUNCH SITE SPECIFIC SAFETY INFORMATION...........7A-1
7A.1 USA Eastern Range Launch Vehicle (Delta II,
Delta III, and Atlas ................................Vehicles)
Specific Annex for HS376, HS601, and HS601HP..............7A-1
iv
<PAGE>
LIST OF FIGURES
1-1 ISO 9001 Certificate of Qualification..........................1-3
2-1 Program Product Assurance Management Reporting.................2-5
2-2 Program Product Assurance Manager's Staff......................2-5
2-3 HSC Quality Management System..................................2-6
3-1 Quality Assurance Interfaces..................................3-12
4-1 Failure Management System......................................4-9
6-1 Program Configuration Management Operations Reporting..........6-7
6-2 Customer/HSC/Subcontractor Interfaces..........................6-7
6-3 Program CMO Functional Responsibilities........................6-8
7A.1-1 Phased ER Safety Generic Approval Process.....................7A-2
LIST OF TABLES
1-1 Applicable Documents...........................................1-4
1-2 Applicable HSC Manuals and Procedures..........................1-4
2-1 Review Boards..................................................2-7
2-2 Customer Involvement in Review Board Proceedings...............2-8
3-1 Flight Hardware Material Review Authority.....................3-13
4-1 HS601HP Baseline Critical Items List..........................4-10
5-1 High Reliability Parts Screening...............................5-5
v
<PAGE>
1. BASIC PROVISIONS
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR 1-2 TO 7A-3 OF THIS EXHIBIT C]
1-1
<PAGE>
HUGHES
- --------------------------------------------------------------------------------
ORION
- --------------------------------------------------------------------------------
HS601HP
INTEGRATED TEST PLAN
August 1996
/s/
-------------------------
Approved by HSC
/s/
-------------------------
Approved by ORION
HUGHES PROPRIETARY
This document contains proprietary information, and except
with written permission of Hughes Space and Communications
Company, such information shall not be published, or disclosed
to others, or used for any purpose and the document shall not
be duplicated in whole or in part.
Copyright 1996
Hughes Space and Communications Company
Unpublished Work
HUGHES PROPRIETARY
<PAGE>
TABLE OF CONTENTS
Page
ACRONYMS AND ABBREVIATIONS..........................................NOT NUMBERED
FOREWORD I
A. Integrated Test Plan (ITP) and HS601HP Integration and
Test Documentation...................................................ii
B. HS601HP Product Line Test Philosophy..............................iv
C. Program-Specific Information for the __________ Spacecraft........vi
1. INTRODUCTION..............................................................1-1
1.1 Plan Scope......................................................1-2
1.2 Test Program Flow...............................................1-2
1.3 Plan Content....................................................1-2
1.4 Customer Participation..........................................1-2
2. TEST PROVISIONS...........................................................2-1
2.1 HS601HP Product Line Test Philosophy............................2-2
2.2 Test Requirements...............................................2-2
2.2.1 Development Testing..................................2-3
2.2.2 Qualification Testing................................2-3
2.2.3 Acceptance Testing...................................2-4
2.2.4 Life Testing.........................................2-4
2.3 Test Phase Descriptions.........................................2-5
2.3.1 Unit Level...........................................2-5
2.3.2 Subsystem Level......................................2-7
2.3.3 System Level.........................................2-9
2.3.4 In Orbit Testing (IOT)..............................2-14
3. UNIT/EQUIPMENT LEVEL TESTING..............................................3-1
3.1 Unit/Equipment Heritage / Qualification/Heritage................3-1
3.1.1 HS601HP Product Line Heritage / Qualification
Matrix...............................................3-3
3.2 Unit Thermal Cycle and Thermal Vacuum Cycle Requirements........3-6
3.3 Life Testing....................................................3-9
4. SUBSYSTEM AND SYSTEM LEVEL ACCEPTANCE TESTING.............................4-1
4. Test Matrices....................................................4-2
4.1 Mechanical.............................................4-2
4.2 Electrical Power Subsystem.............................4-4
4.3 Attitude Control Subsystem.............................4-6
4.4 Liquid Propulsion Subsystem (LPS)......................4-8
4.5 Xenon Ion Propulsion Subsystem (XIPS).................4-10
4.6 T&C Subsystem Digital Equipment.......................4-12
4.7 T&C Subsystem RF Hardware.............................4-13
4.8 Communications Subsystem..............................4-14
5. IN ORBIT TESTING (IOT)....................................................5-1
5.1 Overview........................................................5-2
5.2 Tests...........................................................5-2
5.2.1 Electrical Power Subsystem...........................5-2
5.2.2 Attitude Control Subsystem...........................5-3
5.2.3 Communications Subsystem.............................5-4
5.2.4 Telemetry and Command Subsystem......................5-5
HUGHES PROPRIETARY
<PAGE>
LIST OF FIGURES
Page
A-1 HS601HP Integration and Test Documentation...............................iii
1-1 Top Level Acceptance Spacecraft Test Flow................................1-3
1-2 HS601HP Acceptance Spacecraft Integration and Test Flow Details..........1-4
LIST OF TABLES
Page
3.1.1 HS601HP Product Line Heritage / Qualification Matrix...................3-3
3.2 Unit Thermal Cycle and Thermal Vacuum Cycle Requirements.................3-6
4. Subsystem and System Test Matrices........................................4-2
4.1 Mechanical.............................................4-2
4.2 Electrical Power Subsystem.............................4-4
4.3 Attitude Control Subsystem.............................4-6
4.4 Liquid Propulsion Subsystem (LPS)......................4-8
4.5 Xenon Ion Propulsion Subsystem (XIPS).................4-10
4.6 T&C Subsystem Digital Equipment.......................4-12
4.7 T&C Subsystem RF Hardware.............................4-13
4.8 Communications Subsystem..............................4-14
5.2 In Orbit Test (IOT) Matrices.............................................5-2
5.2.1 Electrical Power Subsystem...........................5-2
5.2.2 Attitude Control Subsystem...........................5-3
5.2.3 Communications Subsystem.............................5-4
5.2.4 Telemetry and Command Subsystem......................5-5
HUGHES PROPRIETARY
<PAGE>
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1 TO 5-5 OF THIS EXHIBIT D]
HUGHES PROPRIETARY
<PAGE>
ORION 3
GROUND SEGMENT
Exhibit E
9 January 1997
Appendix A Statement of Work
Appendix B Performance Specifications
Appendix C Test Plan
Appendix D Product Assurance Plan
<PAGE>
Orion Ground Statement of Work Appendix B
Optional/Unique Requirements
- --------------------------------------------------------------------------------
STATEMENT OF WORK
ORION 3 Ground System
Exhibit E
Appendix A
Date: 8 January 1997
<PAGE>
Orion Ground Statement of Work Appendix B
Optional/Unique Requirements
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
1. INTRODUCTION................................................................4
2. APPLICABLE DOCUMENTS........................................................4
3. DELIVERABLE EQUIPMENT, SOFTWARE and SERVICES................................5
3.1 Satellite Control Equipment and Software..........................5
3.2 Training and Satellite In-Orbit Operations Support................5
3.3 Test Equipment and Tools..........................................5
3.4 Spares............................................................5
4. DELIVERABLE DATA and DOCUMENTATION..........................................7
4.1 Facilities Requirements...........................................7
4.2 Test Data and Report..............................................7
4.3 O&M Manuals.......................................................8
4.4 Interface Control Document........................................8
4.5 Interconnect Drawings.............................................8
4.6 Design Review Package.............................................9
4.6.1 Technical Interchange Meeting #1.......................9
4.6.2 Technical Interchange Meeting #2.......................9
5. LONG TIME SUPPORT...........................................................9
5.1 Warranty.........................................................10
5.2 Equipment (Hardware and Software) Product Support................10
5.3 Operational Life.................................................10
6. Orion MANAGEMENT...........................................................10
6.1 Technical Coordination and Witness...............................11
6.2 Status Reviews...................................................11
6.3 Product Assurance Management.....................................11
6.4 Test Program.....................................................11
6.5 Program Milestones...............................................12
6.6 Final Acceptance Criteria........................................12
7. PACKING, SHIPPING, and SITE INSTALLATION...................................13
7.1 Packing and Shipping.............................................13
7.2 Requirements and Regulations for Site Installation and Tests.....14
8. INSTALLATION, POWER REQUIREMENTS AND BENEFICIAL ACCESS.....................14
8.1 Civil Works Power Distribution...................................14
8.2 Mechanical Systems...............................................14
8.3 Grounding........................................................14
8.4 Antenna Foundations and RF Shelter...............................14
8.5 Purchaser-Furnished Equipment....................................14
8.6 Miscellaneous....................................................14
<PAGE>
Orion Ground Statement of Work Appendix B
Optional/Unique Requirements
- --------------------------------------------------------------------------------
LIST OF TABLES
--------------
Table 3-1 Major Component List.................................................5
Table 4-1 Contract Data Requirement List (CDRL)................................8
<PAGE>
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 4 TO 15 OF THIS EXHIBIT E ,
APPENDIX A]
<PAGE>
Document
REV: 1.0
PERFORMANCE SPECIFICATIONS
Orion 3 Ground System
Exhibit E
Appendix B
<PAGE>
Change Record
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Date Change Affected Affected Remark
Page Section
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2.3.1.1.5 Command Sources.......................................12
2.3.1.1.5.1 Command Sequences................................12
2.3.1.1.5.2 Operator Input...................................12
2.3.1.1.6 Commanding Interface..................................12
2.3.1.1.7 Unauthorized Commanding...............................12
2.3.1.1.8 Critical Commands.....................................12
2.3.1.1.9 Restricted Commands...................................12
2.3.1.1.10 Invalid Command Sequences............................12
2.3.1.1.11 Command History......................................13
2.3.1.2 Telemetry Function..........................................13
2.3.1.2.1 Telemetry Format......................................13
2.3.1.2.2 Telemetry Modes.......................................13
2.3.1.2.3 Simultaneous Telemetry and Ranging....................13
2.3.1.2.4 Multiple Telemetry Streams............................14
2.3.1.2.5 Telemetry Processing..................................14
2.3.1.2.5.1 Decommutation....................................14
2.3.1.2.5.2 Time-Tagging.....................................14
2.3.1.2.5.3 Engineering Unit Conversion......................14
2.3.1.2.5.4 Limit Checking...................................14
2.3.1.2.6 Telemetry Display.....................................14
2.3.1.2.7 Telemetry Alarm Generation............................14
2.3.1.2.8 Telemetry Alarm Display...............................15
2.3.1.2.9 Telemetry Archiving...................................15
2.3.1.2.10 Alarm History........................................15
2.3.1.3 Ranging Function............................................15
2.3.1.3.1 Range Measurement Processing..........................15
2.3.1.3.2 Ranging Modes.........................................15
2.3.1.3.3 Ranging Accuracy......................................15
2.3.1.3.4 Tracking Data Archiving...............................15
2.3.1.3.5 Payload Thermal Management............................16
2.3.1.4 Flight Dynamics Software....................................16
2.4 Flight Dynamics Software............................................16
2.5 Space Health and Performance Evaluation (SHAPE).....................16
2.6 Ground Status and Control Software..................................16
2.6.1 Simultaneous Control and Status.................................16
2.6.1.1 TCR Software Interface......................................16
2.6.1.2 Operator Control and Status.................................16
2.6.1.2.1 Manual Control........................................16
2.6.1.2.2 Displays..............................................16
2.6.1.2.3 Ground Equipment Control..............................17
2.6.1.2.4 Ground Equipment Status...............................17
2.7 Dynamic Satellite Simulator.........................................17
3. Baseband Subsystem Definition..............................................18
3.1 Baseband Subsystem Interface Definition.............................18
ii
<PAGE>
3.1.1 External Interfaces...........................................18
3.1.1.1 IF Telemetry/Ranging Input..............................18
3.1.1.2 IF Command/Ranging Output...............................18
3.1.1.3 Computer to Command Generator...........................20
3.1.2 Characteristics...............................................21
3.1.2.1 Performance.............................................21
3.1.2.1.1 Command Tone Generation and Uplink Modulation.......21
3.1.2.1.1.1 Command Generator...............................21
3.1.2.1.1.2 Encryption......................................21
3.1.2.1.1.3 Frequency Modulator.............................21
3.1.2.1.1.4 FM Modulator Output.............................22
3.1.2.1.2 Telemetry Reception and Formatting..................22
3.1.2.1.2.1 Telemetry Receiver..............................22
3.1.2.1.2.2 PSK Demodulator.................................22
3.1.2.1.2.3 Bit Synchronizer................................22
3.1.2.1.2.4 Frame Synchronizer..............................23
3.1.2.1.2.5 Bit Error Rate (BER)............................23
3.1.2.1.3 Satellite Range Measurement.........................23
3.1.2.1.3.1 T&C Ranging Uplink..............................23
3.1.2.1.3.2 T&C Ranging Downlink............................24
3.1.2.1.3.3 T&C Range Measurement...........................24
3.1.2.1.3.4 T&C Range Calibration...........................24
3.1.2.1.3.5 T&C Ranging Timebase............................24
3.1.2.2 Time Code Generation Function...........................25
3.1.2.2.1 Timing System.......................................25
3.1.2.2.2 Timing System.......................................25
4. Radio Frequency (RF) Subsystem.............................................26
4.1 PRIMARY-STATION...................................................26
4.1.1 RF Subsystem Interface Definition.............................26
4.1.1.1 External Interfaces.....................................26
4.1.1.1.1 Baseband Telemetry/Ranging Output...................26
4.1.1.1.2 Baseband Command/Ranging Input......................26
4.1.1.1.3 RF Uplink...........................................26
4.1.1.1.4 Antenna Interfaces..................................28
4.1.1.1.5 RF Downlink.........................................29
4.1.1.1.6 Control Computer Subsystem..........................29
4.1.2 RF Performance................................................29
4.1.2.1 RF Transmit.............................................29
4.1.2.1.1 RF Transmit Input Characteristics...................29
4.1.2.1.2 RF Transmit Output Characteristics..................29
4.1.2.1.3 RF Transmit Transfer Characteristics................29
4.1.2.2 RF Received.............................................31
4.1.2.2.1 RF Received Input Characteristics...................31
4.1.2.2.2 RF Received Output Characteristics..................31
iii
<PAGE>
4.1.2.2.3 RF Received Transfer Characteristics................31
5. Antenna Subsystem31
5.1 OPTUS ground station...... ..........................................31
5.1.1 Structure31
5.1.2 Tracking System...............................................32
5.1.2.1 Control Modes...........................................32
5.1.2.2 Servo Control Requirements..............................32
5.1.2.3 Tracking Receiver.......................................32
5.1.3 RF Performance................................................33
5.1.3.1 Transmit Requirements...................................33
5.1.3.2 Received Requirements...................................33
5.1.3.3 Feed....................................................33
5.1.3.1 LNA.....................................................33
5.1.4 Inter Facility Link (IFL).....................................33
6. Site Communication Network Subsystem.......................................34
Appendix A....................................................................75
iv
<PAGE>
List of Figures
Table Page
- ----- ----
FIGURE 1-1 ORION GROUND SYSTEM BLOCK DIAGRAM...................................3
FIGURE 2-1 PRIMARY-STATION CONTROL COMPUTER SUBSYSTEM..........................8
FIGURE 2-2 BACKUP-STATION CONTROL COMPUTER SUBSYSTEM...........................9
FIGURE 2-1 BELROSE GROUND STATION BASEBAND BLOCK DIAGRAM......................19
FIGURE 3-1 BELROSE GROUND STATION RF SUBSYSTEM BLOCK DIAGRAM..................26
List of Tables
Figures Page
- ------- ----
TABLE 1-1 PRIMARY-STATION/BACKUP-STATION ANTENNA FUNCTIONAL REQUIREMENTS
4
TABLE 2-2 WORKSTATION ALLOCATION...............................................6
TABLE 2-3 PRINTER ALLOCATION...................................................9
v
<PAGE>
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1 TO 34 AND 1 TO 46 OF THE
TWO PARTS TO THIS EXHIBIT E, APPENDIX B]
<PAGE>
TEST PLAN
FOR THE ORION 3 GROUND SYSTEM
EXHIBIT E
APPENDIX C
<PAGE>
Ground System Test Plan DOC#
REV-
- --------------------------------------------------------------------------------
Table of Contents
-----------------
1. Overview....................................................................1
1.1 Scope.................................................................1
1.2 Purpose...............................................................1
1.3 Testing Philosophy....................................................1
1.3.1 Test Director...................................................1
2. Applicable documents........................................................1
3. Test Process................................................................2
3.1 Test Readiness Reviews................................................2
3.2 Test Procedures.......................................................2
3.3 Post Test Data Review.................................................3
3.4 Test Reports..........................................................3
3.5 Test anomalies........................................................3
3.6 Quality Assurance.....................................................3
4. Requirements Flowdown.......................................................4
4.1 Verification Methods..................................................4
4.2 Integration & Test Flow...............................................4
4.2.1 Burn-in Tests...................................................4
4.2.2 Subsystem.......................................................5
4.2.3 Subsystem Test Notebooks/Test Procedures........................6
4.2.4 Subsystem Sell-Off..............................................6
4.2.5 Subsystem Integration and Checkout..............................6
4.2.6 System Test Notebook............................................6
4.2.7 FAT Test Readiness Review.......................................6
4.2.8 FAT.............................................................7
4.2.9 Preshipment Review (PSR)........................................7
4.2.10 Pack and Ship..................................................7
4.2.11 Site Installation..............................................7
4.2.12 SAT Test Readiness Review......................................7
4.2.13 SAT............................................................7
4.2.14 Final Acceptance Review........................................8
5. TEST IDENTIFICATION.........................................................8
5.1 Unit Tests............................................................8
5.1.1 Spares Testing..................................................8
5.2 Subsystem Tests.......................................................8
5.2.1 AC Power Test...................................................8
5.2.2 Baseband Subsystem Test.........................................8
5.2.2.1 Telemetry Test...........................................9
5.2.2.2 Command Test.............................................9
5.2.2.3 Ranging Tests............................................9
5.2.2.3.1 T&C IF Ranging Calibration Test....................9
5.2.2.3.2 Transponder IF Ranging Calibration Test............9
i
<PAGE>
5.2.2.4 Patch Panels Test........................................9
5.2.3 RF Subsystem Test...............................................9
5.2.4 Antenna Subsystem Test..........................................9
5.2.5 Control Computer Subsystem (CCS) Test..........................10
5.2.5.1 Ground Status and Control (GSC).........................10
5.2.5.1.1 GSC User Interface................................10
5.2.5.1.2 Status and Control Interface Unit Interface
(SCIU)............................................10
5.2.5.2 Orbital Analysis Software Test..........................10
5.2.5.2.1 User Interface....................................10
5.2.5.2.2 Database Utilities................................10
5.2.5.2.3 Raw Data Processing...............................11
5.2.5.2.4 Orbit Estimation..................................11
5.2.5.2.5 Ephemeris Prediction..............................11
5.2.5.2.6 Eclipse Prediction................................11
5.2.5.2.7 Inclination Control Maneuver Planning.............11
5.2.5.2.8 Drift and Eccentricity Control Maneuver
Planning..........................................11
5.2.5.2.9 Orbit Simulation..................................11
5.2.5.2.10 Additional Functions.............................11
5.2.5.3 SHAPE...................................................11
5.2.5.3.1 Convert data queue to month file (CVTQ)...........11
5.2.5.3.2 SHAPE System Administrator (SYSAD)................11
5.2.5.3.3 SHAPE User (also known as Graphical User
Interface (GUI))..................................11
5.2.5.3.4 Live Data.........................................12
5.2.5.4 TCR/GSC Interface Test..................................12
5.2.6 Site Communications Network (SCN)..............................12
5.2.7 DSS Test.......................................................12
5.3 Factory Acceptance Test..............................................12
5.3.1 FAT System Configuration.......................................13
5.3.2 Computer Readiness.............................................13
5.3.3 Telemetry Processing...........................................13
5.3.3.1 PCM Data Test...........................................13
5.3.3.2 Data Archiving..........................................14
5.3.4 Transmission of Satellite Commands.............................14
5.3.4.1 Hazardous Satellite Commanding..........................14
5.3.5 Ranging 14
5.3.5.1 T&C IF Range Calibration Test...........................14
5.3.5.2 T&C Ranging Test........................................14
5.3.5.3 Transponder IF Range Test...............................14
5.3.5.4 Transponder Ranging Test................................14
5.3.6 Orbital Analysis Software Test.................................15
5.3.7 SHAPE 15
5.3.8 RF.............................................................15
5.3.9 Control Computer Subsystem and Software........................15
5.3.9.1 CCS to Timing Interface Test............................15
5.3.9.2 Status and Control......................................15
ii
<PAGE>
5.3.10 Site Communication Network....................................16
5.4 Site Acceptance Test.................................................16
5.4.1 SAT System Configuration.......................................16
5.4.2 Computer Checkout..............................................16
5.4.3 Telemetry Processing...........................................16
5.4.4 Antenna Monitoring.............................................17
5.4.5 CCS/GSC Software...............................................17
5.4.5.1 Procedures (PROCs)......................................17
5.4.6 Timing.........................................................17
5.4.7 RF Tests 17
5.4.8 Site Communications Network....................................17
5.5 Final Acceptance Review..............................................18
6. Index of ACRONYMS..........................................................19
iii
<PAGE>
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES TO 1 TO 20 OF THIS EXHIBIT
E, APPENDIX C]
<PAGE>
HISD-001-01 Rev B
5 June 96
HITS
Product Assurance Plan
EXHIBIT E
APPENDIX D
<PAGE>
HISD-001-01 Rev B
5 June 96
Table of Contents
Foreword.....................................................................v
1.0 BASIC PROVISIONS......................................................1
1.1 Program Content..................................................1
1.2 Program Functions................................................1
1.3 Applicable Documents.............................................1
1.3.1 Government Documents.....................................1
1.3.2 HISD Documents...........................................2
2.0 ORGANIZATION AND MANAGEMENT...........................................2
2.1 Introduction 2
2.2 Management Responsibility........................................2
2.2.1 Reliability Engineering..................................2
2.2.2 Parts, Materials, and Processes Assurance................3
2.2.3 Quality Assurance........................................3
2.2.4 Subcontractor Product Assurance..........................3
2.2.5 Standard Commercial Test Equipment.......................3
2.3 Reviews 3
2.4 Audits 3
2.5 Documentation....................................................4
2.6 Major Subcontractor Controls.....................................4
3.0 RELIABILITY PROGRAM...................................................4
3.1 Basic Provisions.................................................4
3.2 Organization and Management......................................4
3.3 Reliability Engineering Assessments..............................4
3.3.1 Reliability of the Customers Equipment...................4
3.3.2 Analyses.................................................5
3.4 Problem Reporting and Corrective Action..........................5
3.4.1 Basic Provisions.........................................5
3.4.2 Problem Definition and Documentation.....................5
3.4.3 Problem Analysis.........................................5
4.0 QUALITY ASSURANCE PROGRAM.............................................5
4.1 Basic Provisions.................................................5
4.2 Organization and Management......................................6
4.2.1 Responsibility...........................................6
4.2.2 Program Requirements.....................................6
<PAGE>
HISD-001-01 Rev B
5 June 96
4.2.3 Audits/Review............................................7
4.3 Procurement Controls.............................................9
4.3.1 Responsibility...........................................9
4.3.2 Subcontractor/Supplier Evaluation........................9
4.3.3 Procurement Document Review..............................9
4.3.4 Source Surveillance/Inspection...........................9
4.3.5 Receiving Inspection and Test............................9
4.4 Manufacturing Controls..........................................10
4.4.1 Fabrication and Assembly Operations.....................10
4.4.2 Stores Control..........................................10
4.4.3 Process Controls........................................10
4.4.4 Process and Personnel Certification.....................10
4.4.5 Workmanship Standards...................................10
4.4.6 Hardware Configuration Control..........................11
4.5 Testing and Inspection..........................................11
4.5.1 In-process Inspection...................................11
4.5.2 Final Test and Inspection...............................12
4.5.3 Test Participation......................................12
4.5.4 Site Installation and Acceptance........................13
4.6 Nonconforming Article and Material Control......................13
4.6.1 Material Review Action and Control......................13
4.6.2 Nonconformance Definitions and Classifications..........14
4.6.3 Corrective Action.......................................14
4.6.4 Subcontractor Material Review...........................15
4.7 Measurement Processes and Calibration...........................15
4.7.1 Basic System............................................15
4.7.2 Calibration Controls....................................15
4.7.3 Subcontractor Controls..................................16
4.8 Records and Traceability........................................16
4.8.1 Records.................................................16
4.8.2 Traceability............................................17
4.9 Inspection and Status Control...................................17
4.10 Packaging, Handling, and Transportation.........................17
5.0 SOFTWARE QUALITY ASSURANCE...........................................17
5.1 Introduction ...................................................17
<PAGE>
HISD-001-01 Rev B
5 June 96
5.2 Organization and Resources......................................18
5.2.1 Organization............................................18
5.2.2 Personnel...............................................18
5.2.3 Other Resources.........................................18
5.2.4 Schedule................................................18
5.3 SQA Program Procedures, Tools, and Records......................18
5.3.1 Procedures..............................................18
5.3.1.1 Software Quality Planning......................19
5.3.1.2 Program Documentation..........................19
5.3.1.3 Software Quality System Evaluation.............19
5.3.1.4 Software Quality Process Evaluation............20
5.3.1.5 Software Product Evaluations...................20
5.3.1.6 Corrective Action..............................21
5.3.1.7 Management Reporting...........................21
5.3.1.8 Certification and Acceptance...................22
5.3.1.9 Software Testing...............................22
5.3.1.10 Reviews and Audits.............................23
5.3.1.11 Non-Deliverable Software.......................23
5.3.1.12 Customer Interface.............................23
5.3.1.13 Tools..........................................23
5.4 Software Quality Records........................................23
5.5 Subcontractor/Supplier..........................................23
5.6 Notes...........................................................24
5.6.1 Definitions 24
5.6.2 Acronyms 24
6.0 PARTS, MATERIALS, AND PROCESSES PROGRAM..............................25
6.1 Basic Provisions 25
6.2 Parts Selection and Specification...............................25
6.3 Parts and Materials Handling and Storage........................25
6.4 Subcontractor Control 25
7.0 CONFIGURATION AND DATA MANAGEMENT....................................25
7.1 Basic Provisions 25
7.2 Management and Organization.....................................26
7.3 Configuration Management........................................26
7.3.1 Configuration Identification............................26
<PAGE>
HISD-001-01 Rev B
5 June 96
7.3.2 Configuration Control...................................26
7.3.2.1 Engineering Change Classification..............26
7.3.2.2 Requests for Deviations/Waiver.................27
7.3.3 Configuration Control Board (CCB).......................27
7.3.4 Configuration Status Accounting and Verification........27
7.4 Data Management 28
7.4.1 Contract Data Requirements..............................28
7.4.2 Data Control 28
7.4.3 Library 28
7.5 Subcontractor Configuration and Data Management.................28
7.5.1 Configuration Management................................28
7.5.2 Data Management.........................................28
Figure 1. Problem Report Form 8
Table 1. Hardware Material Review Authority...................................14
<PAGE>
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1 TO 28 OF THIS EXHIBIT E
APPENDIX D]
<PAGE>
ORION 3 SATELLITE PURCHASE CONTRACT
EXHIBIT F
PAYMENT PLAN
AND
TERMINATION LIABILITY AMOUNT
PAYMENT PLAN
<PAGE>
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1 TO 2 OF THIS EXHIBIT F.]
<PAGE>
ORION 3 SATELLITE PURCHASE CONTRACT
EXHIBIT G
SCHEDULES TO ARTICLE 15
Schedule 15.3
<TABLE>
<CAPTION>
Entity % Ownership by ONS
Orion Satellite Corporation 100%OrionNet, Inc.
100%Orion Finance Corporation 100%Orion Asia Pacific Corporation 100%Asia Pacific
Space and Communications, Ltd. 83% or 100%International Technology Gateway (U.K.) Limited 60%International Private Satellite
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
</TABLE>
Schedule 15.4
In October 1995, Skydata Corporation ("Skydata"), a former
contractor, filed suit against Orion Atlantic, Orion Satellite Corporation and
Orion, in the United States District Court for the Middle District of Florida,
claiming that certain Orion Atlantic Operations using frame relay switches
infringe a Skydata patent. Skydata's suit sought damages in excess of $10
million and asked that any damages assessed be trebled. On December 11, 1995,
the Orion parties filed a motion to dismiss the lawsuit on the grounds of lack
of jurisdiction and violation of a mandatory arbitration agreement. In addition,
on December 19, 1995, the Orion parties filed a Demand for Arbitration against
Skydata with the American Arbitration Association in Atlanta, Georgia,
requesting damages in excess of $100,000 for breach of contract and
declarations, among other things, that Orion and Orion Atlantic own a
royalty-free license to the patent, that the patent is invalid and unenforceable
and that Orion and Orion Atlantic have not infringed on the patent. On March 5,
1996, the court granted the Company's motion to dismiss the lawsuit on the basis
that Skydata's claims are subject to arbitration. Skydata appealed the dismissal
to the United States Court of Appeals to the Federal Circuit. Skydata also filed
a counterclaim in the arbitration proceedings asserting a claim for $2 million
damages as a result of the conduct of Orion and its affiliates. On May 15, 1996,
the arbitrator granted the Orion parties' request for an initial hearing on
claims relating to the Orion parties' rights to the patent, including the
co-ownership claim and other contractual claims. This initial hearing was
scheduled to take place in November 1996.
On November 9, 1996, Orion and Skydata executed a letter with
respect to the settlement in full of the pending litigation and arbitration. As
part of the settlement, the parties are to release all claims by either side
relating in any way to the patent and/or the pending litigation and arbitration.
In addition, Skydata is to grant Orion (and its affiliates) an unrestricted,
word-wide paid-up license to make, have made, use or sell products or methods
under the patent and all other corresponding consideration and reissue patents.
Orion is to pay Skydata $437,000 over a period of two years as part of the
settlement. The parties are in the process of documenting the terms of the
settlement in a formal settlement agreement.
Schedule 15.5
$10,000,000 letter of credit issued by Chase Manhattan Bank, N.A. on behalf of
Customer in favor of DACOM Corp.
<PAGE>
Schedule 15.6
Lien on approximately $10M of funds deposited with Chase Manhattan Bank, N.A.,
as security for the letter of credit referenced on Schedule 15.5.
Schedule 15.7
Contract Documents Relating to Procurement of Orion 2 and Orion 3 Satellites
Contracts for the Provision of Telecommunications Service in the ordinary course
of business
DACOM Contract
Schedule 15.9
1995 Form 10-K
Form 10-Qs for the periods ending:
June 30, 1995 March 31, 1996 June 30, 1996 September 30, 1996
1995 Proxy Statement
1995 Annual Report
<PAGE>
ORION 3 SATELLITE PURCHASE CONTRACT
EXHIBIT H
PAYLOAD LONG-LEAD INVENTORY ITEMS
<PAGE>
ORION 3 SATELLITE PURCHASE CONTRACT
EXHIBIT I
TECHNICAL PERFORMANCE
<PAGE>
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 2 TO 16 OF THIS
EXHIBIT I]
<TABLE>
<CAPTION>
Exhibit 12.1-Statement Re: Computation of Ratio of Earnings to Fixed Charges
Year Ended December 31,
-------------------------------------------------------------------------------------------------
1991 1992 1993 1994 1995 1995 Pro Forma
-------------------------------------------------------------------------------------------------
EARNINGS
<S> <C> <C> <C> <C> <C> <C>
Net loss $(2,573,226) $(3,294,863) $ (7,886,071) $ (7,964,918) $(26,915,178) $(135,406,848)
Interest 455,987 5,636,736 16,280,888 27,291,040 26,049,216 85,144,359
Interest capitalized
during the period -- (5,457,139) (16,148,019) (27,230,481) (1,310,770) (2,256,781)
Interest portion of
rental Expense 79,774 108,720 838,644 1,037,149 1,326,206 1,326,206
-------------------------------------------------------------------------------------------------
$(2,037,465) $(3,006,546) $ (6,914,558) $ (6,867,210) $ (850,526) $ (51,193,064)
=================================================================================================
FIXED CHARGES
Interest $ 455,987 $ 5,636,736 $ 16,280,888 $ 27,291,040 $ 26,049,216 $ 85,144,359
Interest portion of
rental expense 79,774 108,720 838,644 1,037,149 1,326,206 1,326,206
-------------------------------------------------------------------------------------------------
$ 535,761 $ 5,745,456 $ 17,119,532 $ 28,328,189 $ 27,375,422 $ 86,470,565
=================================================================================================
DEFICIENCY $(2,573,226) $(8,752,002) $(24,034,090) $(35,195,399) $(28,225,948) $(137,663,629)
=================================================================================================
</TABLE>
Nine months ended September 30,
-------------------------------------------------------
1995 1996 1996 Pro Forma
-------------------------------------------------------
EARNINGS
Net loss $(19,985,085) $(19,807,287) $(92,549,743)
Interest 18,390,916 20,228,519 68,050,233
Interest capitalized
during the period (1,310,770) -- (3,241,875)
Interest portion of
rental Expense 993,099 962,637 962,637
-------------------------------------------------------
$ (1,911,840) $ 1,383,869 $(26,778,748)
=======================================================
FIXED CHARGES
Interest $ 18,390,916 $ 20,228,519 $ 68,050,233
Interest portion of
rental expense 993,099 962,637 962,637
-------------------------------------------------------
$ 19,384,015 $ 21,191,156 $ 69,012,870
=======================================================
DEFICIENCY $(21,295,855) $(19,807,287) $(95,791,618)
=======================================================
EXHIBIT 23.1(A)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the use of our report dated February 9, 1996, in Amendment No. 3 to Registration
Statement (Form S-1 No. 333-19167) and related Prospectus of Orion Network
Systems, Inc., dated January 27, 1997.
Washington, D.C. ERNST & YOUNG LLP
January 27, 1997
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
(Name, address and telephone number of agent for service)
Orion Network Systems, Inc.
(Exact name of obligor as specified in its charter)
Delaware 52-2008654
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
2440 Research Boulevard,
Suite 400
Rockville, Maryland 20850
(Address of principal executive offices) (Zip Code)
------------------------------
Units of Senior Notes and Warrants
Units of Senior Discount Notes and Warrants
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee.
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
NAME ADDRESS
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
ITEM 3. -15. NOT APPLICABLE
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1- Restated Organization Certificate of Bankers
Trust Company dated August 7, 1990,
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated
June 21, 1995 Incorporated herein by reference
to Exhibit 1 filed with Form T-1 Statement,
Registration No. 33-65171, and Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated March 20, 1996,
copy attached.
EXHIBIT 2- Certificate of Authority to commence business
- Incorporated herein by reference to Exhibit
2 filed with Form T-1 Statement, Registration
No. 33-21047.
EXHIBIT 3- Authorization of the Trustee to exercise
corporate trust powers - Incorporated herein
by reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
EXHIBIT 4- Existing By-Laws of Bankers Trust Company, as
amended on September 17, 1996 - Incorporated
herein by reference to Exhibit 4 filed with
Form T-1 Statement, Registration No.
333-15263.
-2-
<PAGE>
Exhibit 5- Not applicable.
Exhibit 6- Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated
herein by reference to Exhibit 4 filed with
Form T-1 Statement, Registration No. 22-18864.
Exhibit 7- A copy of the latest report of condition of
Bankers Trust Company dated as of September
30, 1996.
Exhibit 8- Not Applicable.
Exhibit 9- Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 22nd day
of January, 1997.
BANKERS TRUST COMPANY
By:Susan Johnson
-------------
Susan Johnson
Assistant Vice President
-4-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: 00623
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS SEPTEMBER 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
Dollar Amounts in Thousands RCFD Bil Mil Thou
<S> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1) ............. 0081 809,000 1.a.
b. Interest-bearing balances(2) ...................................... 0071 4,453,000 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) ........ 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)....... 1773 4,133,000 2.b.
3 Federal funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
a. Federal funds sold ................................................ 0276 5,933,000 3.a.
b. Securities purchased under agreements to resell ................... 0277 413,000 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C)
RCFD 2122 27,239,000 4.a.
b. LESS: Allowance for loan and lease losses........................
RCFD 3123 917,000 4.b.
c. LESS: Allocated transfer risk reserve ...........................
RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c) ................ 2125 26,322,000 4.d.
5. Assets held in trading accounts .......................................... 3545 36,669,000 5.
6. Premises and fixed assets (including capitalized leases) ................. 2145 870,000 6.
7. Other real estate owned (from Schedule RC-M) ............................. 2150 215,000 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M) 2130 212,000 8.
9. Customers' liability to this bank on acceptances outstanding ............. 2155 577,000 9.
10. Intangible assets (from Schedule RC-M) ................................... 2143 18,000 10.
11. Other assets (from Schedule RC-F) ........................................ 2160 8,808,000 11.
12. Total assets (sum of items 1 through 11) ................................. 2170 89,432,000 12.
<FN>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: 00623
SCHEDULE RC--CONTINUED
Dollar Amounts in Thousands Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E, part I) RCON 2200 9,391,000 13.a.
(1) Noninterest-bearing(1) ............................ RCON 6631 2,734,000 13.a.(1)
(2) Interest-bearing .................................. RCON 6636 6,657,000 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E part II) RCFN 2200 23,385,000 13.b.
(1) Noninterest-bearing ...............................RCFN 6631 654,000 13.b.(1)
(2) Interest-bearing ..................................RCFN 6636 22,731,000 13.b.(2)
14. Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal funds purchased ........................................................ RCFD 0278 3,090,000 14.a.
b. Securities sold under agreements to repurchase ................................. RCFD 0279 99,000 14.b.
15. a. Demand notes issued to the U.S. Treasury ....................................... RCON 2840 0 15.a.
b. Trading liabilities ............................................................ RCFD 3548 18,326,000 15.b.
16. Other borrowed money:
a. With original maturity of one year or less ..................................... RCFD 2332 17,476,000 16.a.
b. With original maturity of more than one year ................................... RCFD 2333 2,771,000 16.b.
17. Mortgage indebtedness and obligations under capitalized leases ...................... RCFD 2910 31,000 17.
18. Bank's liability on acceptances executed and outstanding ............................ RCFD 2920 577,000 18.
19. Subordinated notes and debentures ................................................... RCFD 3200 1,228,000 19.
20. Other liabilities (from Schedule RC-G) .............................................. RCFD 2930 8,398,000 20.
21. Total liabilities (sum of items 13 through 20) ...................................... RCFD 2948 84,772,000 21.
22. Limited-life preferred stock and related surplus .................................... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ....................................... RCFD 3838 500,000 23.
24. Common stock ........................................................................ RCFD 3230 1,002,000 24.
25. Surplus (exclude all surplus related to preferred stock) ............................ RCFD 3839 527,000 25.
26. a. Undivided profits and capital reserves ........................................... RCFD 3632 3,017,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities ........... RCFD 8434 (16,000) 26.b.
27. Cumulative foreign currency translation adjustments ................................. RCFD 3284 (370,000) 27.
28. Total equity capital (sum of items 23 through 27) ................................... RCFD 3210 4,660,000 28.
29. Total liabilities, limited-life preferred stock, and equity capital
(sum of items 21, 22, and 28)........................................................ RCFD 3300 89,432,000 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external auditors as of any date Number
during 1995 ................................................................... RCFD 6724 N/A M.1
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
<FN>
- ----------
(1) Including total demand deposits and noninterest-bearing time and savings deposits.
</FN>
</TABLE>
<PAGE>
STATE OF NEW YORK,
BANKING DEPARTMENT
I, PETER M. PHILBIN, Deputy Superintendent of Bank of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section
8005 of the Banking Law," dated March 20, 1996, providing for an increase in
authorized capital stock from $1,351,666,670 consisting of 85,166,667 shares
with a par value of $10 each designated as Common Stock and 500 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$1,501,666,670 consisting of 100,166,667 shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
WITNESS, my hand and official seal of the Banking Department at the City of New
York,
this 21st day of MARCH in the Year of our
Lord one thousand nine hundred and
ninety-six.
Peter M. Philbin
----------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Three Hundred Fifty One Million, Six Hundred
Sixty-Six Thousand, Six Hundred Seventy Dollars ($1,351,666,670),
divided into Eighty-Five Million, One Hundred Sixty-Six Thousand, Six
Hundred Sixty-Seven (85,166,667) shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,501,666,670), divided into
One Hundred Million, One Hundred Sixty Six Thousand, Six Hundred
Sixty-Seven (100,166,667) shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
<PAGE>
6. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
20th day of March , 1996.
James T. Byrne, Jr.
-------------------
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
-------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an
Assistant Secretary of Bankers Trust Company, the corporation described in the
foregoing certificate; that she has read the foregoing certificate and knows the
contents thereof, and that the statements herein contained are true.
Lea Lahtinen
--------------------
Lea Lahtinen
Sworn to before me this 20th day of March, 1996.
Sandra L. West
--------------
Notary Public
SANDRA L. WEST Counterpart filed in the
Notary Public State of New York Office of the Superintendent of
No. 31-4942101 Banks, State of New York,
Qualified in New York County This 21st day of March, 1996
Commission Expires September 19, 1996
