AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 22, 1997
REGISTRATION NO. 333-19167
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2
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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Delaware 4899 52-2008654
(State of organization) (Primary S.I.C. Code Number) (I.R.S. Employer & Identification Number)
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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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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
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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. [ ]
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.
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EXPLANATORY NOTE
This Amendment is being filed for the purposes of filing the exhibits
indicated in Part II of the Registration Statement. The Amendment also refiles
page 70 of the Registration Statement to correct certain references to Exhibit
99.2 hereto.
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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.
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. 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 recogni
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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.
Securities and Exchange Commission registration fee ...... $105,152
National Association of Securities Dealers, Inc. filing
fee....................................................... $ 30,500
Blue sky fees and expenses (including fees of counsel) ... *
Printing and engraving expenses........................... *
Fees and expenses of counsel for the Company.............. *
Accounting fees and expenses.............................. *
Appraisal fees and expenses............................... *
Transfer agent and registrar fees......................... *
Miscellaneous............................................. *
Total.................................................... $ *
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* To be filed by amendment.
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
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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 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
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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, 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
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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'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
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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.
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 pur
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chase 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 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.
II-6
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS (Continued)
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 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 $3.0
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.
II-7
<PAGE>
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 Amended and Restated 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 Securitiy 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.)
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<PAGE>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
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.)
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.)
II-10
<PAGE>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
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.)
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.)
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<PAGE>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
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.) 10.27Master 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.) 10.34Registration 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.)
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<PAGE>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
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.)
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
SEPARTELY 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 (Separately Bound)*
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 Attachement A to the
Prospectus which is a part of this Registration Statement.)
- ----------
* To be filed by amendment.
II-12
<PAGE>
(b) Financial Statements and Schedules:
(1) Financial Statements
The financial 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. 1 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 22nd 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. 1 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ W. Neil Bauer
- ------------------------------- President and Director January 22, 1997
W. Neil Bauer (Principal Executive Officer)
/s/ David J. Frear
- ------------------------------- Vice President, Chief Financial January 22, 1997
David J. Frear Officer and Director
(Principal Financial Officer
and Principal Accounting Officer)
/s/ Richard H. Shay*
- -------------------------------- Secretary and Director January 22, 1997
Richard H. Shay
*By: /s/ David J. Frear
-----------------------------
David J. Frear
Attorney-in-Fact
</TABLE>
II-15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 1 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 22nd 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. 1 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------------------- --------------------
<S> <C> <C>
/s/ W. Neil Bauer President, Chief Executive
- ------------------------------ Officer and Director
W. Neil Bauer (Principal Executive Officer) January 22, 1997
/s/ David J. Frear Vice President, Chief Financial
- ------------------------------ Officer and Treasurer
David J. Frear (Principal Financial Officer
and Principal Accounting Officer) January 22, 1997
/s/ Gustave M. Hauser* Chairman and Director January 22, 1997
- -----------------------------
Gustave M. Hauser
/s/ John V. Saeman* Director January 22, 1997
- ----------------------------
John V. Saeman
/s/ John G. Puente* Director January 22, 1997
- ----------------------------
John G. Puente
/s/ Richard J. Brekka* Director January 22, 1997
- ----------------------------
Richard J. Brekka
/s/ Warren B. French, Jr.* Director January 22, 1997
- ----------------------------
Warren B. French, Jr.
/s/ Sidney S. Kahn* Director January 22, 1997
- ----------------------------
Sidney S. Kahn
Director January __, 1997
- ----------------------------
W. Anthony Rice
II-16
<PAGE>
SIGNATURES (Continued)
SIGNATURE TITLE DATE
- ------------------------------ -------------------------------------- --------------------
/s/ Robert M. Van Degna* Director January 22, 1997
- ----------------------------
Robert M. Van Degna
/s/ Barry Horowitz* Director January 22, 1997
- ----------------------------
Barry Horowitz
</TABLE>
*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. 1 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 22nd 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. 1 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ W. Neil Bauer Chairman, Chief Executive January 22, 1997
- ------------------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ Douglas Newman* President and Director January 22, 1997
- -------------------------------
Douglas Newman
/s/ David J. Frear Vice President, Chief Financial January 22, 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
</TABLE>
II-18
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 1 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 22nd 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. 1 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ W. Neil Bauer Chairman, Chief Executive January 22, 1997
- ------------------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ Douglas Newman* President and Director January 22, 1997
- -------------------------------
Douglas Newman
/s/ David J. Frear Vice President, Chief Financial January 22, 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
</TABLE>
II-19
<PAGE>
-
SIGNATURES (Continued)
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 1 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 22nd 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
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------- ------------------------------------ -----------------
<S> <C> <C>
/s/ W. Neil Bauer President, Chief Executive January 22, 1997
- ----------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ David J. Frear Vice President, Chief Financial January 22, 1997
- ----------------------- Officer and Director
David J. Frear (Principal Financial Officer
and Principal Accounting
Officer)
</TABLE>
*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. 1 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 22nd 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. 1 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------- ------------------------------------ -----------------
<S> <C> <C>
/s/ W. Neil Bauer President, Chief Executive January 22, 1997
- ----------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ David J. Frear Vice President, Chief Financial January 22, 1997
- ----------------------- Officer and Treasurer and
David J. Frear Director (Principal Financial
Officer and Principal Accounting
Officer)
</TABLE>
*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. 1 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 22nd 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. 1 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------- ------------------------------------ -----------------
<S> <C> <C>
/s/ W. Neil Bauer President, Chief Executive January 22, 1997
- ----------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ David J. Frear Vice President, Chief Financial January 22, 1997
- ----------------------- Officer and Director
David J. Frear (Principal Financial Officer
and Principal Accounting
Officer)
</TABLE>
*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. 1 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 22nd 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. 1 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------- ------------------------------------ -----------------
<S> <C> <C>
/s/ W. Neil Bauer President, Chief Executive January 22, 1997
- ----------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ David J. Frear Vice President, Chief Financial January 22, 1997
- ----------------------- Officer and Treasurer and
David J. Frear Director (Principal Financial
Officer and Principal Accounting
Officer)
</TABLE>
*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. 1 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 22nd 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. 1 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------- ------------------------------------ -----------------
<S> <C> <C>
/s/ W. Neil Bauer President, Chief Executive January 22, 1997
- ----------------------- Officer and Director
W. Neil Bauer (Principal Executive Officer)
/s/ David J. Frear Vice President, Chief Financial January 22, 1997
- ----------------------- Officer and Treasurer and
David J. Frear Director (Principal Financial
Officer and Principal Accounting
Officer)
</TABLE>
*By: /s/ David J. Frear
----------------------
David J. Frear
Attorney-in-Fact
II-24
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
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 Amended and Restated 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.)
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.)
<PAGE>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- ----------- ----------------------------------------------------------------------------------------------------- -----------
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.) 10.27Master 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.) 10.34Registration 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.)
<PAGE>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- ----------- ----------------------------------------------------------------------------------------------------- -----------
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.)
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.)
<PAGE>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- ----------- ----------------------------------------------------------------------------------------------------- -----------
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
SEPARTELY 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 (Separately Bound)*
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 Attachement A to the
Prospectus which is a part of this Registration Statement.)
- ----------
* To be filed by amendment.
</TABLE>
S&S DRAFT
1/20/97
ORION NETWORK SYSTEMS, INC.
ORION NEWCO SERVICES, INC.
[_____] Units, each Unit consisting of
One % Senior Note Due 2007
and One Warrant to Purchase [______] Shares of Common Stock
[_____] Units, each Unit consisting of
One % Senior Discount Note Due 2007
and One Warrant to Purchase [______] Shares of Common Stock
UNDERWRITING AGREEMENT
[__________], 1997
<PAGE>
[__________], 1997
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith, Incorporated
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
Orion Newco Services, Inc., a newly formed Delaware
corporation ("Newco") that is a wholly owned subsidiary of Orion Network
Systems, Inc., a Delaware corporation (collectively, with its successors and
assigns, "Orion"), proposes to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") [_____] Senior Note Units (collectively,
the "Senior Note Units") and [_____] Senior Discount Note Units (collectively,
the "Senior Discount Note Units"; and together with the Senior Note Units, the
"Units"). Each Senior Note Unit will consist of (i) one [____]% Senior Note due
2007 with a principal amount of $1,000 (collectively, the "Senior Notes") to be
issued pursuant to the provisions of a Senior Note Indenture (the "Senior Note
Indenture") to be dated as of the Closing Date (as defined below) between Newco,
certain subsidiaries of Orion, as guarantors (the "Guarantors") and Bankers
Trust Company, as trustee (the "Trustee") and (ii) a Warrant (collectively, the
"Warrants"), each Warrant entitling the holder thereof to purchase [______]
shares of Common Stock, par value $.01 per share (the "Common Stock"), of Newco,
to be issued pursuant to the provisions of a Warrant Agreement to be dated as of
the Closing Date (the "Warrant Agreement") between Newco and Bankers Trust
Company, as warrant agent (the "Warrant Agent"). Each Senior Discount Note Unit
will consist of (i) one [___]% Senior Unsecured Discount Note due 2007 with a
principal amount at maturity of $1,000 (collectively, the "Senior Discount
Notes"; and together with the Senior Notes, the "Notes") to be issued pursuant
to the provisions of a Senior Discount Note Indenture to be dated as of the
Closing Date (the "Senior Discount Note Indenture") between Newco, the
Guarantors, as guarantors, and Bankers Trust Company, as trustee and (ii) a
Warrant.
Pursuant to the Section 351 Exchange Agreement and Plan of
Conversion dated as of June [__], 1996, and amended as of December [__], 1996,
(as amended, the "Exchange Agreement"), among Orion, International Private
Satellite Partners, L.P., a Delaware limited partnership ("Orion Atlantic"),
Orion Satellite Corporation, a Delaware corporation ("OrionSat") that is a
wholly owned subsidiary of Orion and the sole general partner of Orion Atlantic,
and each of the existing limited partners of Orion Atlantic other than Orion
(the "Exchanging Partners"), the Exchanging Partners have agreed to transfer
their limited partnership interests in Orion Atlantic and other rights relating
thereto to Newco in exchange (collectively, the "Exchange") for 121,988 shares
of a newly created class of Newco's Series C 6% Cumulative Convertible
Redeemable Preferred Stock. Upon consummation of the Exchange, Newco will own
all of the limited partnership interests in Orion Atlantic (directly and
indirectly through Orion). In addition, Newco will acquire certain rights held
by certain of the Exchanging Partners, including certain of the Exchanging
Partners' rights to receive repayment of various advances. Simultaneously with
the Exchange, under an Agreement and Plan of Merger dated as of January 8, 1997
(the "Merger Agreement"), among Orion, Newco and Orion Merger Company, Inc., a
newly formed Delaware corporation that is a wholly owned subsidiary of Newco
("Merger Sub"), Orion will merge with and into Merger Sub in a tax-free
reorganization (the "Merger"). Orion will be the surviving corporation in the
Merger and will thereby become the wholly owned subsidiary of Newco, and the
holders of preferred and common stock of Orion will receive substantially
identical preferred and common stock of Newco in exchange for such stock.
Effective upon consummation of the Merger, Newco will change its name to Orion
Network System, Inc. and Orion will change its name to __________. The Merger
and the Exchange will close concurrently with the closing of the offering of the
Units (the "Offering").
Newco has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating to
the Units, Notes, Warrants and Common Stock underlying the Warrants.* The
registration statement as amended at the time it becomes effective, including
the exhibits thereto and the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933 (the "Securities Act"), is hereinafter referred to as
the "Original Registration Statement;" any registration statement filed pursuant
to Rule 462(b) under the Securities Act is hereinafter referred to as the "Rule
462(b) Registration Statement;" the Original Registration Statement and any Rule
462(b) Registration Statement are hereinafter referred to collectively as the
"Registration Statement;" and the prospectus in the form first used to confirm
sales of Units is hereinafter referred to as the "Prospectus."
I.
Each of Orion and Newco (collectively, the "Orion Entities")
jointly and severally represents and warrants to each of the Underwriters that:
(a) The Original Registration Statement has become effective
and, if Newco has elected to rely upon Rule 462(b) under the Securities
Act, the Rule 462(b) Registration Statement shall have become effective
not later than the earlier of (i) 10:00 p.m. Eastern time on the date
hereof and (ii) the time confirmations are sent or given, as specified
by Rule 462(b)(2) under the Securities Act; no stop order suspending
the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each part of the Registration Statement, when such
part became effective, did not contain and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iii) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this paragraph I(b) do
not apply (A) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter
furnished to either of the Orion Entities in writing by such
Underwriter expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of each of the Senior Note Trustee
and the Senior Discount Note Trustee.
(c) Each of the Orion Entities has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on either Orion and
its subsidiaries or Newco and its subsidiaries, in each case taken as a
whole.
(d) Each of the subsidiaries of the Orion Entities has been
duly incorporated, or in the case of a partnership, duly organized, is
validly existing as a corporation or partnership, as the case may be,
in good standing under the laws of the jurisdiction of its
organization, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on either Orion and its subsidiaries or
Newco and its subsidiaries, in each case taken as a whole; all of the
issued shares of capital stock of each subsidiary of the Orion Entities
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by either Orion, Newco or a
subsidiary of Orion or Newco, free and clear of all liens,
encumbrances, equities or claims. Each of the Significant Subsidiaries,
as defined in Regulation S-X under the Securities Act, of the Orion
Entities is identified on Schedule II hereto.
(e) This Agreement has been duly authorized, executed and
delivered by each of the Orion Entities.
(f) Each of the Senior Note Indenture and the Senior Discount
Note Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized by Newco and each of the Guarantors, and
when executed and delivered by Newco and each of the Guarantors, will
be a valid and binding agreement of Newco and each of the Guarantors,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
(g) The Warrant Agreement has been duly authorized and when
executed and delivered by Newco will be a valid and binding agreement
of Newco, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by the effect of applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws now
or hereafter in effect relating to or affecting creditors' rights
generally and (ii) the availability of equitable remedies may be
limited by equitable principles of general applicability.
(h) Each of the Senior Notes and the Senior Discount Notes
have been duly authorized by Newco and each of the Guarantors and, when
executed and authenticated in accordance with the terms of the Senior
Note Indenture and the Senior Discount Note Indenture, respectively,
and delivered to and paid for by the Underwriters in accordance with
the terms of this Agreement, will be entitled to the benefits of the
Senior Note Indenture and the Senior Discount Note Indenture,
respectively, and will be valid and binding obligations of Newco and
each of the Guarantors, enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability.
(i) The Warrants have been duly authorized and when executed
and countersigned in accordance with the provisions of the Warrant
Agreement, and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Warrant Agreement and will be valid and binding
obligations of Newco enforceable in accordance with their terms, except
as (A) the enforceability thereof may be limited by the effect of
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (B) the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(j) The shares of Common Stock issuable upon exercise of the
Warrants (the "Warrant Shares") have been duly authorized and reserved
by Newco and, when issued and delivered upon exercise of the Warrants
in accordance with the terms of the Warrant Agreement, will be validly
issued, fully paid and non-assessable and will not be subject to any
preemptive or similar rights or taxes, liens, charges and security
interests.
(k) The Exchange, the Merger, the issuance and sale of
approximately $50 million of Newco's convertible subordinated
debentures (the "BA Debentures") to British Aerospace Public Limited
Company (the "British Aerospace Offering"), the issuance and sale of
approximately $10 million of Newco debentures (the "MMS Debentures") to
Matra Marconi Space (or an affiliate) ("the MMS Offering"), the
acquisition by Orion of the only outstanding minority interest (17%) in
Orion Asia Pacific, a Delaware corporation ("Orion Asia Pacific") for
86,000 shares of Orion common stock (the "OAP Minority Interest
Acquisition"), the repayment of the Orion 1 Credit Facility (as defined
in the Preliminary Prospectus) and the satisfaction of the interest
rate hedging obligations with respect thereto [LIST ADDITIONAL
TRANSACTIONS, AS APPROPRIATE] (collectively, the "Transactions") and
delivery and performance of the Exchange Agreement, the Merger
Agreement, the Orion 2 Satellite Contract (as hereinafter defined), the
Orion 3 Satellite Contract (as hereinafter defined) and the other
agreements necessary to consummate the Transactions (collectively, the
"Transaction Agreements") have been duly and validly authorized by the
Orion Entities and each of their direct and indirect subsidiaries (and
Orion Atlantic) that is a party thereto, and to the knowledge of the
Orion Entities (based on representations made therein), by the other
parties thereto, all action necessary to approve the Transactions has
been accomplished and no consent, approval, authorization or order of,
or qualification with, any governmental body or agency is required for
the consummation of the Transactions, except such as may have been
obtained, including any consents or approvals required by the
Communications Act of 1934, as amended, and the rules, regulations and
policies of the United States Federal Communications Commission (the
"FCC") thereunder and the Merger and the Exchange were duly approved by
the stockholders of Orion owning not less than a majority of the shares
of the capital stock of Orion entitled to vote thereon at a meeting
held on January 30, 1997.
(l) The execution and delivery by Newco and the Guarantors (as
applicable) of, and the performance by Newco and the Guarantors (as
applicable) of their obligations under, this Agreement, the Senior Note
Indenture, the Senior Discount Note Indenture, the Notes, the Warrant
Agreement, the Warrants, the Transaction Agreements, the issuance, sale
and delivery of the Notes, the Warrants, the BA Debentures, the MMS
Debentures and the Warrant Shares upon exercise of the Warrants and the
consummation of the Transactions will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of Newco
or any of the Guarantors or any agreement or other instrument binding
upon Newco or any of the Guarantors or any of their subsidiaries that
is material to Newco and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over Newco, any subsidiary of Newco or any of the
Guarantors, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by Newco and the Guarantors (as applicable) of their
obligations under this Agreement, the Senior Note Indenture, the Senior
Discount Note Indenture, the Notes, the Warrant Agreement, the
Warrants, the Transaction Agreements, the issuance, sale and delivery
of the Notes, the BA Debentures, the MMS Debentures, the Warrants, the
Warrant Shares upon exercise of the Warrants in accordance with the
terms of the Warrant Agreement or any of the Transaction Agreements,
except such as have been obtained or such as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Units, Notes, Warrants, BA Debentures, MMS
Debentures or Warrant Shares.
(m) The execution and delivery by Orion of, and the
performance by Orion of its obligations under, this Agreement and the
Transaction Agreements and the consummation of the Transactions will
not contravene any provision of applicable law or the certificate of
incorporation or by-laws of Orion or any agreement or other instrument
binding upon Orion or any of its subsidiaries that is material to Orion
and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over Orion or any subsidiary, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is
required for the performance by Orion of its obligations under this
Agreement or any of the Transaction Agreements, except such as have
been obtained or such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Units, Notes, Warrants, BA Debentures, MMS Debentures or Warrant
Shares.
(n) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of either Orion and its subsidiaries or Newco and its
subsidiaries, in each case taken as a whole, from that set forth in the
Prospectus.
(o) There are no legal or governmental proceedings pending or
threatened to which either of the Orion Entities or any of their
subsidiaries is a party or to which any of the properties of either
Orion Entity or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(p) Each of the Orion Entities and its subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with,
all federal, state, local and other governmental, administrative or
regulatory authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
obtain such consents, authorizations, approvals, orders, certificates
and permits or make such declarations and filings would not have a
material adverse effect on either Orion and its subsidiaries or Newco
and its subsidiaries, in each case taken as a whole.
(q) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 or Rule 462 under the Securities
Act, complied when so filed in all material respects with the
Securities Act and the rules and regulations of the Commission
thereunder.
(r) Neither Newco nor Orion is and, after the giving effect to
the offering and sale of the Units and the application of the proceeds
thereof as described in the Prospectus, neither Newco nor Orion will be
an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
(s) Each of the Orion Entities and its subsidiaries are (i) in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses
and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on such Orion Entity and its
subsidiaries, taken as a whole.
(t) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on either Orion and its subsidiaries or
Newco and its subsidiaries, in each case taken as a whole.
(u) The Orion Entities have complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(v) Each of the parties to the Transaction Agreements has
waived the conditions to the performance of its obligations under such
Transaction Agreements (other than the conditions that the Notes be
issued and that the Orion 1 Credit Facility be repaid) and attached as
Exhibits [___ through ___] are such waivers.
(w) The Escrow Agreement has been amended to [remove any
discretion of the limited partners of Orion Atlantic to stop the
release of payment from the escrow account].
(x) Orion Asia Pacific will be a wholly owned subsidiary of
Newco immediately after consummation of the Transactions.
(y) Orion has entered into, and delivered to you, satellite
procurement contracts with Matra Marconi Space for Orion 2 (the "Orion
2 Satellite Contract") and Hughes Space and Communications
International for Orion 3 (the "Orion 3 Satellite Contract").
II.
Newco hereby agrees to sell to the Underwriters, and the
Underwriters, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agree, severally
and not jointly, to purchase from Newco the respective number of Senior Note
Units and Senior Discount Note Units set forth in Schedule I hereto opposite
their names at $[____] per Senior Note Unit and $[____] per Senior Discount Note
Unit -- the "Senior Note Unit purchase price" and the "Senior Discount Note Unit
purchase price," respectively -- plus (i) accrued interest on the Senior Notes,
if any, and (ii) accrued amortization of original issue discount on the Senior
Discount Notes, if any, in each case from [_____], 1997 to the date of payment
and delivery.
III.
Each of the Orion Entities is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Units as soon after the Original Registration Statement and this Agreement
have become effective as in your judgment is advisable. Each of the Orion
Entities is further advised by you that the Units are to be offered to the
public initially at $[____] per Senior Note Unit and $[____] per Senior Discount
Note Unit -- the "Senior Note Unit public offering price" and the "Senior
Discount Note Unit offering price," respectively -- plus (i) accrued interest on
the Senior Notes, if any, and (ii) accrued amortization of original issue
discount on the Senior Discount Notes, if any, and to certain dealers selected
by you at a price that represents a concession not in excess of $[____] per
Unit, and that any Underwriter may allow, and such dealers may reallow, a
concession, not in excess of $[____] per Unit, to any Underwriter or to certain
other dealers.
IV.
Payment for the Units shall be made against delivery of the
Units as described in the paragraph below at a closing (the "Closing") to be
held at the office of Shearman & Sterling, 599 Lexington Avenue, New York, New
York, 10022, at 10:00 A.M., local time, on [___________], 1997, or at such other
time on the same or such other date, not later than [______], 1997, as shall be
designated in writing by you (the "Closing Date"). Payment for the Units shall
be made to the account or accounts specified by Newco in writing delivered to
you.
At the closing, the Units shall be delivered to you for the
respective accounts of the Underwriters of the Units registered in such names
and in such denominations as you shall request in writing not later than two
full business day prior to the date of delivery, with any transfer taxes payable
in connection with the transfer of the Units to the Underwriters duly paid.
V.
The obligations of the Orion Entities and the several
obligations of the Underwriters hereunder are subject to the condition that the
Registration Statement shall have become effective not later than the date
hereof.
The several obligations of the Underwriters hereunder are
subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date,
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of Orion's securities by any
"nationally recognized statistical rating organization", as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of either Orion and its subsidiaries or Newco and
its subsidiaries, in each case taken as a whole, from that set
forth in the Registration Statement, that, in your judgment,
is material and adverse and that makes it, in your judgment,
impracticable to market the Units on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of Orion, on behalf of Orion, to the effect set forth in clause (a)(i)
above and to the effect that the representations and warranties of the
Orion Entities contained in this Agreement are true and correct as of
the Closing Date and that the Orion Entities have complied with all of
the agreements and satisfied all of the conditions contained in this
Agreement on their part to be performed or satisfied on or before the
Closing Date.
The officer signing and delivering such certificate
may rely upon the best of his knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of Newco, on behalf of such entity, to the effect that the
representations and warranties of the Orion Entities contained in this
Agreement are true and correct in all material respects as of the
Closing Date and that the Orion Entities have complied with all of the
agreements and satisfied all of the conditions contained in this
Agreement on their part to be performed or satisfied on or before the
Closing Date.
The officer signing and delivering such certificate
may rely upon the best of his knowledge as to proceedings threatened.
(d) No stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for such
purpose shall be pending before or, to the knowledge of the Orion
Entities or the Underwriters, threatened by the Commission.
(e) You shall have received on the Closing Date an opinion of
Hogan & Hartson L.L.P., counsel for the Orion Entities, dated the
Closing Date, in the form attached hereto as Exhibit A.
The opinion of Hogan & Hartson L.L.P. shall be rendered to you
at the request of the Orion Entities and shall so state therein.
(f) You shall have received on the Closing Date an opinion of
Shaw, Pittman, Potts & Trowbridge, special FCC counsel for the Orion
Entities, dated the Closing Date, in the form attached hereto as
Exhibit B.
(g) You shall have received on the Closing Date an opinion of
[___________], special Delaware counsel for the Orion Entity, dated the
Closing Date, in the form attached hereto as Exhibit C.
(h) You shall have received on the Closing Date an opinion of
Shearman & Sterling, counsel for the Underwriters, dated the Closing
Date with respect to the Registration Statement and the Prospectus and
such other related matters as you may reasonably request, and such
counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(i) You shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to you, from
Ernst & Young, L.L.P., independent public accountants for Orion,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(j) The Orion Entities shall have complied with the provisions
of Section VI(a) hereof with respect to the furnishing of Prospectuses
on the business day next succeeding the date of this Agreement, in such
quantities as you shall have reasonably requested.
(k) The Exchange, the Merger, the BA Offering, the MMS
Offering, the OAP Minority Interest Acquisition, the repayment of the
Orion 1 Credit Facility and satisfaction of the interest rate hedging
obligations with respect thereto and [LIST ADDITIONAL TRANSACTIONS, AS
APPROPRIATE] shall have occurred, or shall occur concurrently with the
Closing, as provided in the Proxy Statement/Prospectus, dated January
___, 1997, of Orion.
(l) The Certificate of Merger shall have been, or concurrently
with the Closing shall be, filed with the Secretary of State of the
State of Delaware.
(m) You shall have received such other documents and
certificates as are reasonably requested by you or your counsel.
VI.
In further consideration of the agreements of the Underwriters
herein contained, each of the Orion Entities covenants as follows:
(a) To furnish to you, without charge, three signed copies of
the Registration Statement (including exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request. In the case of
the Prospectus, to furnish to you copies of the Prospectus in New York
City, prior to 3:00 p.m., on the business day next succeeding the date
of this Agreement, in such quantities as you reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object.
(c) If, during such period after the first date of the public
offering of the Units as in the opinion of your counsel the Prospectus
is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of your counsel, it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and addresses you will
furnish to Newco) to which Units may have been sold by you on behalf of
the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Units, Notes and Warrants for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to pay all expenses
(including fees and disbursements of counsel) in connection with such
qualification and in connection with (i) the determination of the
eligibility of the Units, Notes and Warrants for investment under the
laws of such jurisdiction as you may designate and (ii) any review of
the Offering by the National Association of Securities Dealers, Inc.
(e) If the Orion Entities elect to rely on Rule 462(b) under
the Securities Act, the Orion Entities shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule
462(b) under the Securities Act no later than the earlier of (i) 10:00
p.m. Eastern time on the date hereof and (ii) the time confirmations
are sent or given, as specified by Rule 462(b)(2) under the Securities
Act, and shall pay the applicable fees in accordance with Rule 111
under the Securities Act.
(f) To make generally available to Newco's security holders
and to you, as soon as practicable but not later than 60 days after the
end of the twelve-month period beginning at the end of Newco's fiscal
quarter during which the effective date of the Original Registration
Statement occurs, an earnings statement of Newco covering such
twelve-month period that satisfies the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission
thereunder.
(g) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of Newco
or warrants to purchase securities of Newco substantially similar to
the Units, Notes, Warrants or Common Stock (other than (i) the Units,
Notes and Warrants, (ii) securities of Newco to be issued in connection
with the Exchange and the Merger as described in the Proxy
Statement/Prospectus, (iii) the issuance and sale of the BA Debentures
pursuant to the British Aerospace Offering and (iv) the issuance and
sale of the MMS Debentures pursuant to the MMS Offering, without your
prior written consent.
(h) To use its best efforts to maintain the effectiveness of
the Registration Statement covering the issuance of the Warrant Shares
until the earlier of (i) such time as all Warrants have been exercised
and (ii) [_____], 2007.
(i) To use its best efforts to have the Warrant Shares
included for trading on the Nasdaq National Market prior to the time
the Warrants first become exercisable and to use its best efforts to
have the Warrant Shares included for trading on any other exchange or
quotation system where the Common Stock is included for trading.
(j) To use the net proceeds received by Newco from the sale of
(i) Units hereunder, (ii) the BA Debentures pursuant to the British
Aerospace Offering and (iii) the MMS Debentures pursuant to the MMS
Offering, in the manner specified in the Prospectus under the caption
"Use of Proceeds."
(k) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, the Orion Entities agree
to pay, or reimburse if paid by or on behalf of you, all costs and
expenses incident to the public offering of the Units and the
performance of the obligations of the Orion Entities under this
Agreement including those relating to: (i) the fees, disbursements and
expenses of the Orion Entities' counsel and accountants in connection
with the issuance of the Units, the preparation, printing, filing and
distribution of the Registration Statement including financial
statements and all exhibits, each preliminary prospectus, the
Prospectus, all amendments and supplements to the Registration
Statement, and the Prospectus, and the printing, filing and
distribution of this Agreement (including all document production
charges and expenses of counsel for the Underwriters in connection with
the preparation of this Agreement); (ii) the preparation and delivery
of any certificates for the Units to the Underwriters; (iii) all
expenses in connection with the registration or qualification of the
Units, Notes, Warrants and Warrant Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall request,
including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such registration and qualification and
the preparation, printing, distribution and shipment of preliminary and
supplementary Blue Sky memoranda; (iv) the furnishing (including costs
of shipping and mailing) to you and to the Underwriters of copies of
each preliminary prospectus, the Prospectus and all amendments or
supplements to the Prospectus, and of the several documents required by
this paragraph to be so furnished, as may be reasonably requested for
use in connection with the offering and sale of the Units by the
Underwriters or by dealers to whom Units may be sold; (v) the filing
fees and expenses (including the reasonable fees and disbursements of
counsel to the Underwriters), if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc. in
connection with its review of the terms of the public offering; (vi)
any expenses incurred by the Orion Entities in connection with a "road
show" presentation to potential investors; and (vii) all transfer
taxes, if any, with respect to the sale and delivery of the Units by
the Orion Entities to the Underwriters.
(l) To use the net proceeds of the British Aerospace Offering
and the MMS Offering to make payments to the manufacturers under the
Orion 2 Satellite Contract and the Orion 3 Satellite Contract.
VII.
Each of the Orion Entities agrees, jointly and severally, to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by any Underwriter or any such controlling person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended or supplemented if Newco shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to either of the Orion Entities in writing
by such Underwriter through you expressly for use therein.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless each of the Orion Entities, their respective
directors, their respective officers who sign the Registration Statement and
each person, if any, who controls the Orion Entities within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Orion Entities to such
Underwriter, but only with reference to information relating to such Underwriter
furnished to the Orion Entities in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Morgan Stanley & Co. Incorporated, in the case of
parties indemnified pursuant to the second preceding paragraph, and by the Orion
Entities, in the case of parties indemnified pursuant to the first preceding
paragraph. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first or second
paragraph of this Article VII is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Orion Entities on the one hand and the
Underwriters on the other hand from the offering of the Units or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Orion
Entities on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Orion Entities on the one hand and the
Underwriters on the other hand in connection with the offering of the Units
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Units (before deducting expenses) received by the Orion
Entities and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate public offering price of the Units. The
relative fault of the Orion Entities on the one hand and of the Underwriters on
the other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Orion Entities or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations to contribute
pursuant to this Article VII are several in proportion to the respective
principal amounts of Units they have purchased hereunder, and not joint.
The Orion Entities and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Article VII were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Units underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Article VII are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Article VII and the representations and warranties of the Orion Entities
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of either Orion Entity, its officers or directors or any person
controlling either Orion Entity and (iii) acceptance of and payment for any of
the Units.
VIII.
This Agreement shall be subject to termination by notice given
by you to Newco, if (a) after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of Orion
or Newco shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event singly or together with any other such
event makes it, in your judgment, impracticable to market the Units on the terms
and in the manner contemplated in the Prospectus.
IX.
This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Original Registration Statement by the
Commission.
If, on the Closing Date, any one of the Underwriters shall
fail or refuse to purchase Units that it has agreed to purchase hereunder on
such date, and the number of Units which such defaulting Underwriter agreed but
failed or refused to purchase is not more than one-tenth of the total number of
the Units to be purchased on such date, the other Underwriter shall be obligated
to purchase the Units which such defaulting Underwriter agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Units that any Underwriter has agreed to purchase pursuant to Article II be
increased pursuant to this Article IX by an amount in excess of one-ninth of
such number of Units without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter shall fail or refuse to purchase Units and the
aggregate number of Units with respect to which such default occurs is more than
one-tenth of the number of Units to be purchased on such date, and arrangements
satisfactory to you and the Orion Entities for the purchase of such Units are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any nondefaulting Underwriter or the Orion
Entities. In any such case either you or the Orion Entities shall have the right
to postpone the Closing Date but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
If this Agreement shall be terminated by the Underwriters, or
any one of them, because of any failure or refusal on the part of either of the
Orion Entities to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason either of the Orion Entities shall be
unable to perform its obligations under this Agreement, the Orion Entities will
reimburse the Underwriters, or such Underwriter as has so terminated this
Agreement with respect to itself, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering contemplated
hereunder.
This Agreement may be signed in two or more counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
<PAGE>
This Agreement shall be governed by the laws of the State of
New York.
Very truly yours,
ORION NETWORK SYSTEMS, INC.
By
ORION NEWCO SERVICES, INC.
By
Accepted, [_________], 1997
Morgan Stanley & Co.
Incorporated
Merrill Lynch & Co.
By Morgan Stanley & Co.
Incorporated
By_______________________
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I
Underwriter Number of Senior Note Number of Senior
Units to Be Purchased Discount Note Units to
be Purchased
<S> <C> <C>
Morgan Stanley & Co. Incorporated
Merrill Lynch & Co. __________ __________
Total . . . . . . . . . . . . . __________ __________
---------- ----------
</TABLE>
<PAGE>
SCHEDULE II
List of Significant Subsidiaries
[TO BE PROVIDED BY ORION]
<PAGE>
EXHIBIT A
Form of Opinion of Hogan & Hartson L.L.P.
(i) Each of the Orion Entities has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on either Orion and
its subsidiaries or Newco and its subsidiaries, in each case taken as a
whole.
(ii) Each of the subsidiaries of the Orion Entities has been
duly incorporated, or in the case of a partnership, duly organized, is
validly existing as a corporation or partnership, as the case may be, in good
standing under the laws of the jurisdiction of its organization, has the
power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on either Orion and its subsidiaries or
Newco and its subsidiaries, in each case taken as a whole; all of the issued
shares of capital stock of each subsidiary of the Orion Entities have been
validly authorized and issued, are fully paid and non-assessable and are
owned directly by either Orion, Newco or a subsidiary of Orion or Newco, free
and clear of all liens, encumbrances, equities or claims.
(iii) The authorized capital stock of the Orion Entities
conforms in all material respects to the description thereof set forth in the
Prospectus under the caption "Description of Capital Stock."
(iv) The Underwriting Agreement has been duly authorized,
executed and delivered by each of the Orion Entities.
(v) Each of the Senior Note Indenture and the Senior Discount
Note Indenture has been duly qualified under the Trust Indenture Act and has
been duly authorized by Newco and each of the Guarantors, and when executed
and delivered by Newco and each of the Guarantors, will be a valid and
binding agreement of Newco and each of the Guarantors, enforceable in
accordance with its terms except as (i) the enforceability thereof may
belimited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(vi) The Warrant Agreement has been duly authorized and when
executed and delivered by Newco will be a valid and binding agreement of
Newco, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by the effect of applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(vii) Each of the Senior Notes and the Senior Discount Notes
have been duly authorized and, when executed and authenticated in accordance
with the terms of the Senior Note Indenture and the Senior Discount Note
Indenture, respectively, and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will be entitled to
the benefits of the Senior Note Indenture and the Senior Discount Note
Indenture, respectively, and will be valid and binding obligations of Newco,
enforceable in accordance with their terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(viii) The Warrants have been duly authorized and when executed
and countersigned in accordance with the provisions of the Warrant Agreement,
and delivered to and paid for by the Underwriters in accordance with the
terms of the Underwriting Agreement, will be entitled to the benefits of the
Warrant Agreement and will be valid and binding obligations of Newco
enforceable in accordance with their terms, except as (A) the enforceability
thereof may be limited by the effect of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and (B) the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(ix) The Warrant Shares have been duly authorized and reserved
by Newco and, when issued and delivered upon exercise of the Warrants in
accordance with the terms of the Warrant Agreement, will be validly issued,
fully paid and non-assessable and will not be subject to any preemptive or
similar rights or taxes, liens, charges and security interests.
(x) The Transactions and delivery and performance of the
Transaction Agreements have been duly and validly authorized by the Orion
Entities and each of their direct and indirect subsidiaries (and Orion
Atlantic) that is a party thereto, and to the knowledge of the Orion Entities
(based on representations made therein), by the other parties thereto , all
action necessary to approve the Transactions has been accomplished and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the consummation of the
Transactions, except such as may have been obtained, including any consents
or approvals required by the Communications Act of 1934, as amended, and the
rules, regulations and policies of the United States Federal Communications
Commission thereunder and the Exchange and the Merger were duly approved by
the stockholders of Orion owning not less than a majority of the shares of
the capital stock of Orion entitled to vote thereon at a meeting held on
January __, 1997.
(xi) The execution and delivery by Newco and the Guarantors (as
applicable) of, and the performance by Newco and the Guarantors (as
applicable) of their obligations under, the Underwriting Agreement, the
Senior Note Indenture, the Senior Discount Note Indenture, the Notes, the
Warrant Agreement, the Warrants, the Transaction Agreements, the issuance,
sale and delivery of the Notes, the Warrants, the BA Debentures, the MMS
Debentures and the Warrant Shares upon exercise of the Warrants and the
consummation of the Transactions will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of Newco or any
of the Guarantors or any agreement or other instrument binding upon Newco or
any of the Guarantors or any of their subsidiaries that is material to Newco
and its subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over Newco, any
subsidiary of Newco or any of the Guarantors, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by Newco and the Guarantors (as
applicable) of their obligations under the Underwriting Agreement, the Senior
Note Indenture, the Senior Discount Note Indenture, the Notes, the Warrant
Agreement, the Warrants, the Transaction Agreements, the issuance, sale and
delivery of the Notes, the BA Debentures, the MMS Debentures, the Warrants,
the Warrant Shares upon exercise of the Warrants in accordance with the terms
of the Warrant Agreement or any of the Transaction Agreements, except such as
have been obtained or such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Units, Notes, Warrants, BA Debentures, the MMS Debentures or Warrant Shares.
(xii) The execution and delivery by Orion of, and the
performance by Orion of its obligations under, the Underwriting Agreement,
the Transaction Agreements and the consummation of the Transactions will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of Orion or any agreement or other instrument
binding upon Orion or any of its subsidiaries that is material to Orion and
its subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over Orion or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by Orion of its obligations under the Underwriting Agreement or
any of the Transaction Agreements, except such as have been obtained or such
as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Units, Notes, Warrants, BA
Debentures, MMS Debentures or the Warrant Shares.
(xiii) The Original Registration Statement has become effective
and, if Newco has elected to rely upon Rule 462(b) under the Securities Act,
the Rule 462(b) Registration Statement shall have become effective not later
than the earlier of (i) 10:00 p.m. Eastern time on the date hereof and (ii)
the time confirmations are sent or given, as specified by Rule 462(b)(2)
under the Securities Act; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(xiv) (i) Each part of the Registration Statement, when such
part became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that the representations and warranties set forth in
this paragraph (xiv) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to either of the Orion Entities in writing by such
Underwriter expressly for use therein or (B) to that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of each of the Senior Note Trustee and the Senior Discount
Note Trustee.
(xv) The information in the Prospectus under the captions "The
Merger and the Exchange," "Certain Transactions," "Description of Units,"
"Description of Notes," "Description of Warrants," "Description of Capital
Stock," "Description of Other Indebtedness of the Company," and "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 specified documents, has been reviewed by us
and is correct in all material respects. The statements in the Prospectus
under the captions "Risk Factors - - Approvals Needed; Regulation of
Industry," and "United States Regulatory Restrictions," insofar as such
statements purport to describe certain provisions of the Communications Act
and rules and regulations of the FCC promulgated thereunder, have been
reviewed by us and are correct in all material respects. The information in
Item 14 of the Registration Statement, to the extent such information
constitutes matters of law or legal conclusions or purports to describe
certain provisions of specified documents, has been reviewed by us and is
correct in all material respects.
(xvi) Neither Newco nor Orion is an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(xvii) The deposit of the pledged securities in the pledged
account in favor of the trustee on behalf of the holders of the Senior Notes
will constitute a perfected first priority interest in the pledged securities
and the proceeds thereof.
<PAGE>
EXHIBIT B
Form of FCC Counsel Opinion
(i) (A) the execution and delivery of the Underwriting Agreement
by the Orion Entities and the consummation of the transactions contemplated
thereby do not violate (1) the Federal Communications Act of 1934, as amended
(the "Communications Act"), (2) any rules or regulations of the Federal
Communications Commission ("FCC") applicable to the Orion Entities, (3) any
state telecommunications law, rules or regulations ("State Law") applicable to
the Orion Entities, and (4) to the best of such counsel's knowledge, any decree
from any court, and (B) no authorization of or filing with the FCC or any state
authority overseeing telecommunications matters ("State Authority"), is
necessary for the execution and delivery of the Underwriting Agreement by the
Orion Entities and the consummation of the transactions contemplated thereby in
accordance with the terms thereof;
(ii) the Orion Entities and certain of their subsidiaries (named
on Schedule I hereto) are nondominant carriers authorized by the FCC to provide
interstate interexchange telecommunications services. The Orion Entities and
certain of their subsidiaries (named on Schedule II hereto) have been granted
Section 214 authority by the FCC to provide international message
telecommunications services through the resale of international switched voice
and private line services and each of the Orion Entities and such subsidiaries
has on file with the FCC tariffs applicable to its domestic interstate and
international services. No further FCC authority is required by the Orion
Entities or any of such subsidiaries to conduct its business as described in
the Prospectus;
(iii) the Orion Entities and certain of their subsidiaries (named
on Schedule III hereto) are certified and/or registered to resell intrastate
interexchange telecommunications services in, and are not required to be
certified to resell intrastate interexchange telecommunications services in,
the respective states listed on Schedule IV hereto. Each of the Orion Entities
and such subsidiaries has a tariff on file in each of the states. No further
authority is required from any of the State Authorities by the Orion Entities
to conduct their business as described in the Prospectus,
(iv) (A) each of the Orion Entities and its subsidiaries (1) has
made all reports and filings, and paid all fees, required by the FCC and the
State Authorities; and (2) has all certificates, orders, permits, licenses,
authorizations, consents and approvals of and from, and has made all filings
and registrations, with the FCC and the State Authorities necessary to own,
lease, license and use its properties and assets and to conduct its business in
the manner described in the Prospectus; and (B) neither of the Orion Entities
nor any of their subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such certificates, orders, permits,
licenses, authorizations, consents or approvals, or the qualification or
rejection of any such filing or registration, the effect of which, singly or in
the aggregate, would have a material adverse effect on the prospects,
condition, financial or otherwise, or in the earnings, business or operations
of either Orion and its subsidiaries or Newco and its subsidiaries, in each
case taken as a whole;
(v) neither of the Orion Entities nor any of its subsidiaries is
in violation of, or in default under the Communications Act, the
telecommunications rules or regulations of the FCC or State Law, the effect of
which, singly or in the aggregate, would have a material adverse effect on the
prospects, condition, financial or otherwise, or in the earnings, business or
operations of either Orion and its subsidiaries or Newco and its subsidiaries,
in each case taken as a whole;
(vi) to the best of such counsel's knowledge after due inquiry
(A) no decree or order of the FCC or any State Authority has been issued
against either of the Orion Entities or any of its subsidiaries and (B) no
litigation, proceeding, inquiry or investigation has been commenced or
threatened, and no notice of violation or order to show cause has been issued,
against either of the Orion Entities or any of its subsidiaries before or by
the FCC or any State Authority. To the best of such counsel's knowledge after
due inquiry, there are no rulemakings or other administrative proceedings
pending before the FCC or any State Authority which (A) are generally
applicable to telecommunications services or the resale thereof and (B) which,
if decided adversely to the Orion Entities' interests, would have a material
adverse effect on either Orion and its subsidiaries or Newco and its
subsidiaries, in each case taken as a whole; and
(vii) the statements in the Prospectus under the captions "Risk
Factors -- Approvals Needed; Regulation of Industry," and "United States
Regulatory Restrictions," insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to therein, are accurate
in all material respects and fairly summarize all matters referred to therein.
<PAGE>
EXHIBIT C
Form of Delaware Counsel Opinion
(i) Upon the filing of the Certificate of Merger in
accordance with the Merger Agreement and the General Corporation Law of the
State of Delaware, the Merger will become effective, Orion will become the
surviving corporation of the Merger and each share of Orion preferred and
common stock outstanding immediately prior to the Merger will be converted
into the right to receive substantially identical preferred and common stock
of Newco.
- --------
* Because Newco believed that it would be more informative and less
confusing for potential investors and existing stockholders, the
Original Registration Statement and the prospectus included therein
refer to the registrant as Orion Network Systems, Inc.
RESTATED CERTIFICATE OF INCORPORATION OF
ORION NEWCO SERVICES, INC.
Orion Newco Services, Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify that:
1. The present name of the Corporation is Orion Newco Services, Inc.
The Corporation was originally incorporated under the same name, and its
original certificate of incorporation was filed with the Secretary of State of
the State of Delaware on June 26, 1996.
2. This Restated Certificate of Incorporation restates and integrates
and further amends the certificate of incorporation of the Corporation (the
"Certificate of Incorporation"), and has been duly adopted in accordance with
Sections 242 and 245 of the General Corporation Law of the State of Delaware
(the "DGCL").
3. The text of the Certificate of Incorporation is hereby restated and
integrated and further amended to read in its entirety as set forth on Exhibit A
attached hereto and incorporated herein by this reference.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
duly executed and acknowledged in accordance with Section 103 of the DGCL.
ORION NEWCO SERVICES, INC.
By:
-----------------------
Name:
---------------------
Title:
--------------------
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
ORION NEWCO SERVICES, INC.
FIRST: The name of the Corporation is Orion Newco Services, Inc.
(hereinafter called the "Corporation").
SECOND: The registered office of the Corporation in the State of
Delaware is 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 all classes of stock that
the Corporation shall have authority to issue is Forty-One Million (41,000,000)
shares, consisting of Forty Million (40,000,000) shares of common stock, par
value $.01 per share, and One Million (1,000,000) shares of preferred stock, par
value $.01 per share.
A. Common Stock. Each holder of shares of common stock shall be
entitled to one vote for each share of common stock held of record on all
matters on which the holders of common stock are entitled to vote. There shall
be no cumulative voting rights for the election of directors.
B. Preferred Stock. The Board of Directors is authorized,
subject to limitations prescribed by the Delaware General Corporation Law and
the provisions of this Article FOURTH to provide, by resolution or resolutions
from time to time adopted without further stockholder approval, and filing a
Certificate pursuant to the applicable provision of the Delaware General
Corporation Law, for the issuance of the shares of Preferred Stock in series, to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and such rights of the
shares of each such series and the qualifications, limitations and restrictions
thereof. The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
1. The number of shares constituting that series and the
distinctive designation of that series.
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2. The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on shares of that
series;
3. Whether that series shall have voting rights, in addition to
the voting rights provided by law, and, if so, the terms of such voting rights;
4. Whether that series shall have conversion privileges, and, if
so, the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors shall
determine;
5. Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the dates
upon or after which they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different conditions and at
different redemption dates;
6. Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms and
amount of such sinking fund;
7. The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of shares
of that series; and
8. Any other relative rights, preferences and limitations of
that series.
FIFTH: The name and mailing address of the incorporator (the
"Incorporator") are Daniel M. Pattarini, 555 Thirteenth Street, NW, Washington,
D.C. 20004. The powers of the Incorporator shall terminate upon the filing of
this Certificate of Incorporation, and the names and mailing addresses of the
persons who are to serve as the directors of the Corporation until the first
annual meeting of the stockholders of the Corporation or until their successors
are elected and qualified are as follows:
NAME MAILING ADDRESS
W. Neil Bauer 2440 Research Boulevard
Rockville, MD 20850
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David J. Frear 2440 Research Boulevard
Rockville, MD 20850
Richard H. Shay 2440 Research Boulevard
Rockville, MD 20850
SIXTH: The authorized number of directors of this corporation
shall be not less than 3 and not more than 15. The number of directors within
this range shall be stated in the Corporation's Bylaws, as may be amended from
time to time. When the number of directors is changed the Board of Directors
shall determine the class or classes to which the increased or decreased number
of directors shall be apportioned; provided that the directors in each class
shall be as nearly equal in number as possible. No decrease in the number of
directors shall have the effect of shortening the term of any incumbent
director.
Effective as of the annual meeting of stockholders in 1997, the
Board of Directors shall be divided into three classes, designated as Class I,
Class II, and Class III, as nearly equal in number as possible, and the term of
office of directors of one class shall expire at each annual meeting of
stockholders, and in all cases until their successors shall be elected and shall
qualify, or until their earlier resignation, removal from office, death or
incapacity. The initial term of office of Class I shall expire at the annual
meeting of stockholders in 1998, that of Class II shall expire at the annual
meeting in 1999, and that of Class III shall expire at the annual meeting in
2000, and in all cases as to each director until his successor shall be elected
and shall qualify, or until his earlier resignation, removal from office, death
or incapacity.
Subject to the foregoing, at each annual meeting of stockholders
the successors to the class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the third succeeding annual
meeting and until their successors shall be elected and qualified.
The directors remaining in office acting by a majority vote,
although less than a quorum, or by a sole remaining director, are hereby
expressly delegated the power to fill any vacancies in the Board of Directors,
however occurring, whether by an increase in the number of directors, death,
resignation, retirement, disqualification, removal from office or otherwise, and
any director so chosen shall hold office until the next election of the class
for which such director shall have been chosen and until his successor shall
have been elected and qualified, or until his earlier resignation, removal from
office death or incapacity.
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SEVENTH: 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
bylaws of the Corporation.
EIGHTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach or fiduciary
duty as a director, provided that nothing contained in this Article EIGHTH 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.
NINTH: The Corporation reserves the right at any time and from
time to time, to amend, alter, change or repeal any provision contained in this
Certificate of 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, except that Articles FOURTH, FIFTH, TENTH,
ELEVENTH, TWELFTH, THIRTEENTH, FOURTEENTH and this Article NINTH may not be
altered, amended, or repealed except by the affirmative vote of at least
two-thirds (2/3) of the shares entitled to vote thereon and the affirmative vote
of the Board of Directors; 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 NINTH.
TENTH: Notwithstanding any other provision of this Certificate
of Incorporation to the contrary, outstanding shares of stock of the Corporation
shall always be subject to redemption by the Corporation, by action of the Board
of Directors, if in the judgment of the Board of Directors such action should be
taken, pursuant to Section 151(b) of the Delaware General Corporation Law or any
other applicable provision of law, to the extent necessary to prevent the loss
or secure the reinstatement of any license or franchise from any governmental
agency held by the Corporation or any of its subsidiaries to conduct any portion
of the business of the Corporation or any of its subsidiaries, which license or
franchise is conditioned upon some or all of the holders of the Corporation's
stock possessing prescribed qualifications. The terms and conditions of such
redemption shall be as follows:
(a) the redemption price of the shares to be redeemed pursuant
to this Article TENTH shall be determined by the Board of
Directors and shall be at least equal to the lesser of (i) the
Redemption Value or (ii) if such stock was purchased by such
Disqualified Holders within one year
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of the Redemption Date, such Disqualified Holder's purchase
price for such shares;
(b) the redemption price of such shares may be paid in cash,
Redemption Securities or any combination thereof;
(c) if less than all the shares held by Disqualified Holders are
to be redeemed, the shares to be redeemed shall be selected in
such manner as shall be determined by the Board of Directors,
which may include selection first of the most recently purchased
shares thereof, selection by lot or selection in any other
manner determined by the Board of Directors;
(d) at least 30 days' written notice of the Redemption Date
shall be given to the record holders of the shares selected to
be redeemed (unless waived in writing by any such holder),
provided that the Redemption Date may be the date on which
written notice shall be given to record holders if the cash or
Redemption Securities necessary to effect the redemption shall
have been deposited in trust for the benefit of such record
holders and subject to immediate withdrawal by them upon
surrender of the stock certificates of their shares to be
redeemed;
(e) from and after the Redemption Date, any and all rights of
whatever nature which may be held by the owners of shares
selected for redemption (including without limitation any rights
to vote or participate in dividends declared on stock of the
same class or series as such shares) shall cease and terminate
and such owners shall thenceforth be entitled only to receive
the cash or Redemption Securities payable upon redemption; and
(f) such other terms and conditions as the Board of Directors
shall determine.
For purposes of this Article TENTH:
(i) "Disqualified Holder" shall mean any
holder of shares of stock of the Corporation whose
holding of such stock, either individually or when
taken together with the holding of shares of stock of
the Corporation by any other holders, may result, in
the judgment of the Board of Directors, in the loss of,
or the failure to secure the reinstatement of, any
license or franchise from any governmental agency held
by the Corporation on any of its subsidiaries to
conduct any portion of the business of the Corporation
or any of its subsidiaries.
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(ii) "Redemption Value" of a share of the
Corporation's stock of any class or series shall mean
the average Closing Price for such a share for each of
the 45 most recent days on which shares of stock of
such class or series shall have been traded preceding
the day on which notice of redemption shall be given
pursuant to paragraph (d) of this Article TENTH;
provided, however, that if shares of stock of such
class or series are not traded on any securities
exchange or in the over-the-counter market, "Redemption
Value" shall be determined by the Board of Directors in
good faith. "Closing Price" on any day means the
reported closing sales price or, in case no such sale
takes place, the average of the reported closing bid
and asked prices on the principal United States
securities exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed, or,
if such stock is not listed on any such exchange, the
highest closing sales price or bid quotation for such
stock on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system
then in use, or if no such prices or quotations are
available, the fair market value on the day in question
as determined by the Board of Directors in good faith.
(iii) "Redemption Date" shall mean the date
fixed by the Board of Directors for the redemption of
any shares of stock of the Corporation pursuant to this
Article TENTH.
(iv) "Redemption Securities" shall mean any
debt or equity securities of the Corporation, any of
its subsidiaries or any other corporation, or any
combination thereof, having such terms and conditions
(including, without limitation, in the case of debt
securities, repayment over a period of up to thirty
years, or a longer period) as shall be approved by the
Board of Directors and which, together with any cash to
be paid as part of the redemption price, in the opinion
of any nationally recognized investment banking firm
selected by the Board of Directors (which may be a firm
which provides other investment banking, brokerage or
other services to the Corporation), has a value, at the
time notice of redemption is given pursuant to
paragraph (d) of this Article, at least equal to the
price required to be paid pursuant to paragraph (a) of
this Article TENTH (assuming, in the case of Redemption
Securities to be publicly traded, such Redemption
Securities were fully distributed and subject only to
normal trading activity).
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ELEVENTH: Control Share Acquisitions
A. Control Shares. As used in this Article ELEVENTH, "control
share" means shares of the Corporation that would have voting power that when
added to all the other shares of the Corporation owned by a person or in respect
to which that person may exercise or direct the exercise of voting power, would
entitle that person, immediately after acquisition of the shares (directly or
indirectly, alone or as part of a group), to exercise or direct the exercise of
the voting power of the Corporation in the election of directors within any of
the following ranges of voting power:
(1) One-fifth or more but less that a third of all voting power.
(2) One-third or more but less than a majority of all voting
power.
(3) A majority or more of all voting power.
B. Control Share Acquisition.
1. As used in this Article ELEVENTH, "control share acquisition"
means the acquisition (directly or indirectly) by any person of ownership of, or
the power to direct the exercise of voting power with respect to, issued and
outstanding control shares.
2. For purposes of this Article ELEVENTH, shares acquired within
ninety (90) days or shares acquired pursuant to a plan to make a control share
acquisition are considered to have been acquired in the same acquisition.
3. For purposes of this Article ELEVENTH, a person who acquires
shares in the ordinary course of business for the benefit of others in good
faith and not for the purpose of circumventing this Article ELEVENTH has voting
power only of shares in respect of which that person would be able to exercise
or direct the vote without further instruction from others.
4. The acquisition of any shares of the Corporation does not
constitute a control share acquisition if the acquisition is consummated in any
of the following circumstances:
(1) Before April 1, 1992.
(2) Pursuant to a binding contract existing before April 1,
1992.
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(3) Pursuant to the laws of descent and distribution.
(4) Pursuant to the satisfaction of a pledge or other security
interest created in good faith and not for the purpose of circumventing
this Article ELEVENTH.
(5) Pursuant to a merger or plan of share exchange if the
Corporation is a party to the agreement of merger of plan of share
exchange.
(6) Pursuant to a tender or exchange offer that is made pursuant
to an agreement to which the Corporation is a party.
(7) Directly from the Corporation, or from any of its wholly
owned subsidiaries.
5. The acquisition of any shares of the Corporation in good
faith and not for the purpose of circumventing this Article ELEVENTH by or from
(1) any person whose voting rights had previously been authorized by
stockholders in compliance with this Article ELEVENTH, or (2) any person whose
previous acquisition of shares of the Corporation would have constituted a
control share acquisition but for the circumstances specified in the paragraph
above, does not constitute a control share acquisition, unless the acquisition
entitles the person (directly or indirectly, alone or as a part of a group) to
exercise or direct the exercise of voting power of the Corporation in the
election of directors in excess of the voting power otherwise authorized.
C. Interested Shares. As used in this Article ELEVENTH,
"interested shares" mean the shares of the Corporation in respect of which any
of the following persons may exercise or direct the exercise of the voting power
of the Corporation in the election of directors:
(1) An acquiring person or member of a group with respect to a
control share acquisition.
(2) Any officer of the Corporation.
(3) Any employee of the Corporation who is also a director of
the Corporation.
D. Acquiring Person Statement. Any person who proposes to make
or has made a control share acquisition may at the person's election deliver an
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acquiring person statement to the Corporation at the Corporation's principal
office. The acquiring person statement must set forth all of the following:
(1) The identity of the acquiring person and each other member
of any group of which the person is a part for purposes of determining
control shares.
(2) A statement that the acquiring person statement is given
pursuant to this Article ELEVENTH.
(3) The number of shares of the Corporation owned (directly or
indirectly) by the acquiring person and each other member of the group.
(4) The range of voting power under which the control share
acquisition falls or would, if consummated, fall.
(5) If the control share acquisition has not taken place:
(a) a description in reasonable detail of the terms of the
proposed control share acquisition; and
(b) representations of the acquiring person, together with a
statement in reasonable detail of the facts upon which they
are based, that the proposed control share acquisition, if
consummated, will not be contrary to law and that the
acquiring person has the financial capacity to make to
proposed control share acquisition.
E. Special Meeting of Stockholders.
1. If the acquiring person so requests at the time of
delivery of an acquiring person statement and gives an undertaking to pay the
Corporation's expenses of a special meeting, within ten (10) days thereafter,
the directors of the Corporation shall call a special meeting of the
stockholders of the Corporation for the purpose of considering the voting rights
to be accorded to the shares acquired or to be acquired in the control share
acquisition.
2. Unless the acquiring person agrees in writing to another
date, the special meeting of the stockholders shall be held within fifty (50)
days after the receipt by the Corporation of the request.
3. If no request is made, the voting rights to be accorded
the shares acquired in the control share
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acquisition shall be presented at the next special or annual meeting of
stockholders.
4. If the acquiring person so requests in writing at the
time of the delivery of the acquiring person statement, the special meeting must
not be held sooner than thirty (30) days after the receipt by the Corporation of
the acquiring person's statement.
F. Notice.
------
1. If a special meeting is requested, notice of the special
meeting of stockholders shall be given as promptly as reasonably practicable by
the Corporation to all stockholders of record as of the record date set for the
meeting, whether or not entitled to vote at the meeting.
2. Notice of the special or annual stockholder meeting at
which the voting rights are to be considered must include or be accompanied by
both of the following:
(1) a copy of the acquiring person statement
delivered to the Corporation pursuant to this Article
ELEVENTH.
(2) A statement by the Board of the Directors
of the Corporation, authorized by its directors, of its
position or recommendation, or that it is taking no
position or making no recommendation, with respect to
the proposed control share acquisition.
G. Voting Rights.
-------------
1. Control shares acquired in a control share acquisition
have the same voting rights as were accorded the shares before the control share
acquisition only to the extent granted by resolutions approved by the
stockholders of the Corporation.
2. To be adopted under this section, the resolutions shall
be approved by a majority of all the votes which could be cast in a vote on the
election of directors by all the outstanding shares other than interested
shares. Interested shares shall not be entitled to vote on the matter, and in
determining whether a quorum exists, all interested shares shall be disregarded.
For the purpose of this subsection, the interested share shall be determined as
of the record date for determining the stockholders entitled to vote at the
meeting.
H. Redemption.
----------
10
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1. Control shares acquired in a control share acquisition
with respect to which no acquiring person statement has been filed with the
Corporation may, at any time during the period ending sixty (60) days after the
last acquisition of control shares by the acquiring person, be subject to
redemption by the Corporation at the redemption price specified in paragraph 3
of this subsection.
2. Control shares acquired in a control share acquisition
are not subject to redemption after an acquiring person statement has been filed
unless the shares are not accorded full voting rights by the stockholders as
provided above.
3. The redemption price for shares to be redeemed under this
section shall be the number of such shares multiplied by the dollar amount
(rounded to the nearest cent) equal to the average per share price, including
any brokerage commissions, transfer taxes and soliciting dealer's fees, paid by
the acquiring person for such shares. The Corporation may rely conclusively on
public announcements by, or filings with the Securities and Exchange Commission
by, the acquiring person as to the prices so paid.
I. Dissenters Rights.
-----------------
1. In the event control shares acquired in a control share
acquisition are accorded full voting rights and the acquiring person has
acquired control shares with a majority or more of all voting power, all
shareholders of the Corporation, other than the acquiring person, have the right
to dissent from the granting of voting rights and to demand payment of the fair
value of their shares under Section 262 of the Delaware General Corporation Law
as though such granting of voting rights were a corporate action described in
paragraph (b) of Section 262, except that the provisions of subsection (1) of
paragraph (b) of Section 262 shall not be applicable.
2. For purposes of this section "fair value" of shares under
Section 262 of the Delaware General Corporation Law shall in no event be less
than the highest price per share paid in the control share acquisition, as
adjusted for any subsequent stock dividends or reverse stock splits or similar
changes.
TWELFTH: Certain Business Combinations
A. Vote Required for Certain Business Combinations.
-----------------------------------------------
1. Higher Vote for Certain Business Combinations. In
addition to any affirmative vote required by law or this
Certificate of Incorporation, and except as otherwise
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expressly provided in subsection B of this Article
TWELFTH:
(a) any merger or consolidation of the
Corporation or any Subsidiary (as
hereinafter defined) with (i) any
Interested Stockholder (as
hereinafter defined) or (ii) any
other corporation (whether or not
itself an Interested Stockholder)
which is, or after such merger or
consolidation would be, an Affiliate
(as hereinafter defined) of an
Interested Stockholder; or
(b) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition
(in one transaction or a series of
transactions) to or with any
Interested Stockholder or any
Affiliate of any Interested
Stockholder of any assets of the
Corporation or any Subsidiary having
an aggregate Fair Market Value (as
hereinafter defined) of $1,000,000 or
more, or
(c) the issuance or transfer by the
Corporation or any Subsidiary (in one
transaction or a series of
transactions) of any securities of
the Corporation or any Subsidiary to
any Interested Stockholder or any
Affiliate of any Interested
Stockholder in exchange for cash,
securities or other property (or a
combination thereof) having an
aggregate Fair Market Value of
$1,000,000 or more; or
(d) the adoption of any plan or proposal
for the liquidation or dissolution of
the Corporation proposed by or on
behalf of an Interested Stockholder
or any Affiliate of any Interested
Stockholder; or
(e) any reclassification of securities
(including any reverse stock split),
or recapitalization of the
Corporation, or any merger or
consolidation of the Corporation with
any of its Subsidiaries or any other
transaction (whether or not with or
into or otherwise involving an
Interested Stockholder) which has the
effect, directly or indirectly, of
increasing the proportionate share of
the outstanding shares of any class
of equity or convertible securities
of the Corporation or any Subsidiary
which is directly or
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<PAGE>
indirectly owned by any Interested
Stockholder or any Affiliate of any
Interested Stockholder;
shall require the affirmative vote of (A) the
holders of at least a majority of the voting
power of the then outstanding shares of
capital stock of the Corporation entitled to
vote generally in the election of directors
(the "Voting Stock"), voting together as a
single class and (B) the holders of at least a
majority of the Voting Stock, voting together
as a single class, excluding for purposes of
calculating both the affirmative vote and the
number of outstanding shares of Voting Stock
all shares of Voting Stock of which the
beneficial owner is an Interested Stockholder
or any Affiliate of an Interested Stockholder
referred to in clauses (a) through (e) in this
paragraph 1. Such affirmative vote shall be
required notwithstanding the fact that no vote
may be required, or that a lesser percentage
may be specified, by law.
2. "Definition of "Business Combination." The term "Business
Combination" as used in this Article TWELFTH
shall mean any transaction which is referred
to in any one or more of clauses (a) through
(e) of paragraph 1 of this subsection A.
B. When Higher Vote is Not Required. The provisions of
subsection A of this Article TWELFTH shall not be
applicable to any particular Business Combination, and
such Business Combination shall require only such
affirmative vote as is required by law and any other
provision of this Certificate of Incorporation, if all
of the conditions specified in either of the following
paragraphs 1 and 2 are met:
1. Approval by Continuing Directors. The Business Combination
shall have been approved by a majority of the
Continuing Directors (as hereinafter defined).
2. Price and Procedure Requirements. All of the following
conditions shall have been met:
(a) The aggregate amount of the cash and
the Fair Market Value (as hereinafter
defined) as of the date of the
consummation of the Business
Combination of consideration other
than cash to be received per
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<PAGE>
share by holders of common stock in
such Business Combination shall be at
least equal to the highest of the
following:
(i) (if applicable) the highest per
share price (including any brokerage
commissions, transfer taxes and
soliciting dealers' fees) paid by the
Interested Stockholder for any shares
of common stock acquired by it (A)
within the two-year period
immediately prior to the first public
announcement of the proposal of the
Business Combination (the
"Announcement Date") or (B) in the
transaction in which it became an
Interested Stockholder, whichever is
higher; or
(ii) the Fair Market Value per share
of common stock on the Announcement
Date or on the date on which the
Interested Stockholder became an
Interested Stockholder (such latter
date is referred to in this Article
TWELFTH as the "Determination Date"),
whichever is higher.
(b) The aggregate amount of the cash and
the Fair Market Value as of the date
of the consummation of the Business
Combination of consideration other
than cash to be received per share by
holders of shares of any other class
of outstanding Voting Stock shall be
at least equal to the highest of the
following (it being intended that the
requirements of this paragraph 2(b)
shall be required to be met with
respect to every class of outstanding
Voting Stock, whether or not the
Interested Stockholder has previously
acquired any shares of a particular
class of Voting Stock):
(i) (if applicable) the highest per
share price (including any brokerage
commissions, transfer taxes and
soliciting dealers' fees) paid by the
Interested Stockholder for any shares
of such class of Voting Stock
acquired by it (A) within the
two-year period immediately prior to
the Announcement Date or (B) in the
transaction in which it became an
Interested Stockholder, whichever is
higher;
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<PAGE>
(ii) (if applicable) the highest
preferential amount per share to
which the holders of shares of such
class of Voting Stock are entitled in
the event of any voluntary or
involuntary liquidation, dissolution
or winding up of the Corporation; and
(iii) The Fair Market Value per share
of such class of Voting Stock on the
Announcement Date or on the
Determination Date, whichever is
higher.
(c) The consideration to be received by
holders of a particular class of
Voting Stock (including common stock)
in the Business Combination shall be
in cash or in the same form as the
Interested Stockholder has previously
paid for shares of such Voting Stock.
If the Interested Stockholder has
paid for shares of any class of
Voting Stock with varying forms of
consideration, the form of
consideration for such Voting Stock
shall be either cash or the form used
to acquire the largest number of
shares of such Voting Stock
previously acquired by it.
(d) After such Interested Stockholder has
become an Interested Stockholder and
prior to the consummation of such
Business Combination: (i) there shall
have been (A) no reduction in the
annual rate of dividends paid on the
capital stock (except as necessary to
reflect any subdivision of the
capital stock), except as approved by
a majority of the Continuing
Directors, and (B) an increase in
such annual rate of dividends as
necessary to reflect any
reclassification (including any
reverse stock split),
recapitalization, reorganization or
any similar transaction which has the
effect of reducing the number of
outstanding shares of common stock,
unless the failure so to increase
such annual rate is approved by a
majority of the Continuing Directors;
and (ii) such Interested Stockholder
shall have not become the beneficial
owner of any additional shares of
Voting Stock except as part of the
transaction which results in such
Interested Stockholder becoming an
Interested Stockholder.
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<PAGE>
(e) After such Interested Stockholder has
become an Interested Stockholder,
such Interested Stockholder shall not
have received the benefit, directly
or indirectly (except proportionately
as a stockholder), of any loans,
advances, guarantees, pledges or
other financial assistance or any tax
credits or other tax advantages
provided by the Corporation, whether
in anticipation of or in connection
with such Business Combination or
otherwise.
(f) A proxy or information statement
describing the proposed Business
Combination and complying with the
requirements of the Securities
Exchange Act of 1934 (the "Exchange
Act") and the rules and regulations
thereunder (or any subsequent
provisions replacing such Act, rules
or regulations) shall be mailed to
public stockholders of the
Corporation at least 20 days prior to
the consummation of such Business
Combination (whether or not such
proxy or information statement is
required to be mailed pursuant to
such Act or subsequent provisions).
C. Certain Definitions. For the purposes of this Article
TWELFTH:
1. A "person" shall mean any individual, firm,
corporation or other entity.
2. "Interested Stockholder" shall mean any person
(other than the Corporation or any Subsidiary)
who or which:
(a) is the beneficial owner, directly or
indirectly, of more than 20% of the
voting power of the outstanding
Voting Stock; or
(b) is an Affiliate of the Corporation
and at any time within the two-year
period immediately prior to the date
in question was the beneficial owner,
directly or indirectly, of 20% or
more of the voting power of the then
outstanding Voting Stock; or
(c) is an assignee of or has otherwise
succeeded to any shares of Voting
Stock which were at any time within
the two-year period immediately prior
to the
16
<PAGE>
date in question beneficially owned
by any Interested Stockholder, if
such assignment or succession shall
have occurred in the course of a
transaction or series of transactions
not involving a public offering
within the meaning of the Securities
Act of 1933.
3. A person shall be a "beneficial owner" of any
Voting Stock:
(a) which such person or any of its
Affiliates or Associates (as
hereinafter defined) beneficially
owns, directly or indirectly; or
(b) which such person or any of its
Affiliates or Associates has (i) the
right to acquire (whether such right
is exercisable immediately or only
after the passage of time), pursuant
to any agreement, arrangement or
understanding or upon the exercise of
conversion rights, exchange rights,
warrants or options, or otherwise, or
(ii) the right to vote pursuant to
any agreement, arrangement or
understanding; or
(c) which are beneficially owned,
directly or indirectly, by any other
person with which such person or any
of its Affiliates or Associates has
any agreement, arrangement or
understanding for the purpose of
acquiring, holding, voting or
disposing of any shares of Voting
Stock.
4. For the purposes of determining whether a
person is an Interested Stockholder pursuant
to paragraph 2 of this subsection C, the
number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned
through application of paragraph 3 of this
subsection C but shall not include any other
shares of Voting Stock which may be issuable
pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
5. "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in
Rule l2b-2 of the General Rules and
Regulations under the Exchange Act.
17
<PAGE>
6. "Subsidiary" means any corporation of which a
majority of any class of equity security is
owned, directly or indirectly, by the
Corporation; provided, however, that for the
purposes of the definition of Interested
Stockholder set forth in paragraph 2 of this
subsection C, the term "Subsidiary" shall mean
only a corporation of which a majority of each
class of equity security is owned, directly or
indirectly, by the Corporation.
7. "Continuing Director" means any member of the
Board of Directors of the Corporation who is
unaffiliated with the Interested Stockholder
and was a member of the Board of Directors of
the Corporation prior to the time that the
Interested Stockholder became an Interested
Stockholder, and any successor of a Continuing
Director who is unaffiliated with the
Interested Stockholder and is recommended to
succeed a Continuing Director by a majority of
Continuing Directors then on the Board of
Directors of the Corporation.
8. "Fair Market Value" means:
(a) in the case of stock, the highest
closing sale price during the 30-day
period immediately preceding the date
in question of a share of such stock
on the principal United States
securities exchange registered under
the Exchange Act on which such stock
is listed, or, if such stock is not
listed on any such exchange, the
highest closing bid quotation with
respect to a share of such stock
during the 30-day period preceding
the date in question on the National
Association of Securities Dealers,
Inc. Automated Quotations System or
any system then in use, or if no such
quotations are available, the fair
market value on the date in question
of a share of such stock as
determined by the Board of Directors
of the Corporation in good faith; and
(b) In the case of property other than
cash or stock, the fair market value
of such property on the date in
question as determined by the Board
of Directors of the Corporation in
good faith.
18
<PAGE>
D. Powers of the Board of Directors. A majority of the
directors of the Corporation shall have the power and
duty to determine for the purposes of this Article
TWELFTH, on the basis of information known to them
after reasonable inquiry, (1) whether a person is an
Interested Stockholder, (2) the number of shares of
Voting Stock beneficially owned by any person, (3)
whether a person is an Affiliate or Associate of
another, and (4) whether the assets which are the
subject of any Business Combination have, or the
consideration to be received for the issuance or
transfer of securities by the Corporation or any
Subsidiary in any Business Combination has an aggregate
Fair Market Value of $1,000,000 or more.
E. No Effect on Fiduciary Obligations of Interested
Stockholders. Nothing contained in this Article TWELFTH
shall be construed to relieve any Interested
Stockholder from any fiduciary obligation imposed by
law.
THIRTEENTH: Indemnification.
A. Authorization of Indemnification. Each person who was or is a
party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether by or in the right of the
corporation or otherwise (a "proceeding"), by reason of the fact that he or she,
or a person of whom he or she is the legal representative, is or was a director
or officer of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan, shall be (and shall be deemed to have
a contractual right to be) indemnified and held harmless by the corporation (and
any successor to the corporation by merger or otherwise) to the fullest extent
authorized by, and subject to the conditions and (except as provided herein)
procedures set forth in the Delaware General Corporation Law, as the same exists
or may hereafter be amended (but any such amendment shall not be deemed to limit
or prohibit the rights of indemnification hereunder for past acts or omissions
of any such person insofar as such amendment limits or prohibits the
indemnification rights that said law permitted the corporation to provide prior
to such amendment), against all expenses, liabilities and losses (including
attorney's fees, judgments, fines, ERISA taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by such person in
connection therewith; provided, however, that the corporation shall indemnify
any such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person (except for a suit or action pursuant to
subsection B only if such proceeding (or part thereof) was authorized by the
board of directors of the corporation.
19
<PAGE>
Persons who are not directors or officers of the corporation may be similarly
indemnified in respect of such service to the extent authorized at any time by
the board of directors of the corporation. The indemnification conferred in this
subsection A also shall include the right to be paid by the corporation (and
such successor) the expenses (including attorney's fees) incurred in the defense
of or other involvement in any such proceeding in advance of its final
disposition (including in the case of a director or former director expenses of
separate legal counsel, up to a maximum of $50,000, but only in the event that
the director or former director as the indemnified party reasonably determines,
assuming an outcome unfavorable to such indemnified party, that there is a
reasonable probability that such proceeding may materially and adversely affect
such indemnified party, or that there may be legal defenses available to such
indemnified party that are different from or in addition to those available to
the corporation); provided, however, that, if and to the extent the Delaware
General Corporation Law requires, the payment of such expenses (including
attorney's fees) incurred by a director or officer in advance of the final
disposition of a proceeding shall be made only upon delivery to the corporation
of an undertaking by or on behalf of such director or officer to repay all
amounts so paid in advance if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this subsection A or
otherwise; and provided further, that, such expenses incurred by other employees
and agents may be so paid in advance upon such terms and conditions, if any, as
the board of directors deems appropriate.
B. Right of Claimant to Bring Action against the Corporation. If
a claim under subsection A of this section is not paid in full by the
corporation within sixty days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring an action against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expenses of
prosecuting such action. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in connection with any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the corporation to indemnify the claimant for the
amount claimed or is otherwise not entitled to indemnification under subsection
A of this section but the burden of proving such defense shall be on the
corporation. The failure of the corporation (in the manner provided under the
Delaware General Corporation Law) to have made a determination prior to or after
the commencement of such action that indemnification of the claimant is proper
in the circumstances because he or she has met the applicable standard of
conduct set forth in the Delaware General Corporation Law shall not be a defense
to the action or create a presumption that the claimant has not met the
applicable standard of conduct. An actual determination by the corporation (in
the manner provided under the Delaware
20
<PAGE>
General Corporation Law) after the commencement of such action that the claimant
has not met such applicable standard of conduct shall not be a defense to the
action, but shall create a presumption that the claimant has not met the
applicable standard of conduct.
C. Non-exclusivity. The rights to indemnification and advance
payment of expenses provided by subsection A of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification and advance
payment of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office.
D. Survival of Indemnification. The indemnification and advance
payment of expenses and rights thereto provided by, or granted pursuant to,
subsection A of this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the personal
representatives, heirs, executors and administrators of such person.
E. Insurance. The corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, against any
liability asserted against such person or incurred by such person in any such
capacity, or arising out of such person's status as such, and related expenses,
whether or not the corporation would have the power to indemnify such person
against such liability under the provisions of the Delaware General Corporation
Law.
21
<PAGE>
FOURTEENTH: Any actions required or permitted to be taken by the
stockholders must be effected at a duly called annual or special meeting of such
stockholders and may not be effected by any consent in writing by such
stockholders.
IN WITNESS WHEREOF, the undersigned, being the
Incorporator hereinabove named, for the purpose of forming a corporation
pursuant to the Delaware General Corporation Law, hereby certifies that the
facts hereinabove stated are truly set forth, and accordingly executes this
Certificate of Incorporation this 26th day of June, 1996.
Incorporator
By:
--------------------------------
22
CERTIFICATE OF INCORPORATION
OF
ORION SATELLITE CORPORATION
FIRST: The name of the Corporation is Orion Satellite
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 Deleware.
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
John G. Puente, 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
<PAGE>
Corporation until the first annual meeting of the stockholders of the
Corporation or until successor or successors are elected and qualify:
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
<PAGE>
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.
TENTH: The Corporation reserves the right at any time, and
from time to time, to amend, alter, change or repeal any provision contained in
this Certificate of 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 20th day of January, 1988.
/s/ John G. Puente
----------------------------
John G. Puente
BY-LAWS
OF
ORION SATELLITE CORPORATION
1. Offices.
1.1 Registered Office. The registered office of the
corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware, and the registered agent in charge thereof shall be The Corporation
Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801.
1.2 Other Offices. The corporation may also have offices at
such other places, both within and without the State of Delaware, as the board
of directors may from time to time determine or the business of the corporation
may require.
2. Meetings of Stockholders.
------------------------
2.1 Place of Meetings. All meetings of the stockholders for
the election of directors shall be held in Washington, D.C. at such place as may
be fixed from time to time by the board of directors, or at such other place,
within or without the State of Delaware, as shall be designated from time to
time by the board of directors and stated in the notice of the meeting or in a
duly executed waiver of notice thereof. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
<PAGE>
2.2 Annual Meetings. Annual meetings of stockholders,
commencing with the year 1988, shall be held on the first Thursday of May, if
not a legal holiday, and if a legal holiday, then on the next secular day
following, at 10:00 a.m., or at such other date and time as shall be designated
from time to time by the board of directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof, at which stockholders
shall elect a board of directors and transact such other business as may
properly be brought before the meeting.
2.3 Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the board of directors or by the
president, and shall be called by the president or secretary at the request in
writing of stockholders owning a majority in amount of the entire capital stock
of the corporation issued and outstanding and entitled to vote. Such request
shall include a statement of the purpose or purposes of the proposed meeting.
2.4 Notice of Meetings. Written notice of the annual meeting,
stating the place, date and hour of the meeting, shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting. Written notice of a special meeting
of stockholders, stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called, shall be given to
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each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting.
2.5 Business at Special Meetings. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice.
2.6 List of Stockholders. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the corporation, or to vote in person or by proxy at any
meeting of stockholders.
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<PAGE>
2.7 Quorum at Meetings. Except as otherwise provided by
statute or by the certificate of incorporation, the holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any such meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time to another time
and place, without notice other than announcement at the meeting of such other
time and place. At the adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the original meeting. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
2.8 Voting and Proxies. Unless otherwise provided in the
certificate of incorporation, and subject to the provisions of Section 6.4 of
these by-laws, each stockholder shall be entitled to one vote on each matter, in
person or by proxy, for each share of the corporation's capital stock having
voting power which is held by such stockholder. No proxy shall be voted or acted
upon after three years from its date, unless the proxy
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provides for a longer period. A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the corporation generally.
2.9 Required Vote. When a quorum is present at any meeting of
stockholders, all matters shall be determined, adopted and approved by the vote
(which need not be by ballot) of a majority of the votes cast with respect to
the matter, unless the proposed action is one upon which, by express provision
of statutes or of the certificate of incorporation, a different vote is
specified and required, in which case such express provision shall govern and
control the decision of such question. Notwithstanding the foregoing, candidates
for election as members of the board of directors who receive the highest number
of votes, up to the number of directors to be chosen, shall stand elected, and
an absolute majority of the votes cast shall not be a prerequisite to the
election of any candidate to the board of directors.
2.10 Action Without a Meeting. Unless otherwise provided in
the certificate of incorporation, any action required to be taken at any annual
or special meeting of stockholders of the corporation, or any action which may
be taken at any annual
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or special meeting of such stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, is signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who shall not have consented in writing.
3. Directors.
---------
3.1 Powers. The business and affairs of the corporation shall
be managed by or under the direction of the board of directors, which may
exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the certificate of incorporation or by these
by-laws directed or required to be exercised or done by the stockholders.
3.2 Number and Election. The number of directors which shall
constitute the whole board shall not be less than one nor more than ten. The
first board shall consist of three directors. Thereafter, within the limits
above specified, the number of directors shall be determined by resolution of
the board of directors. The directors shall be elected at the annual
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meeting of the stockholders, except as provided in Section 3.3 hereof, and each
director elected shall hold office until his successor is elected and qualified
or until his earlier resignation or removal. Directors need not be stockholders.
3.3 Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director, and each director so chosen shall hold office
until the next annual election and until his successor is elected and qualified,
or until his earlier resignation or removal. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), the
Court of Chancery of the State of Delaware may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the then outstanding shares having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office, in accordance with the General Corporation Law of the State of
Delaware. In the event that one or more directors resigns from the board,
effective at a future
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date, a majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective, and
each director so chosen shall hold office until the next annual election and
until his successor is elected and qualified, or until his earlier resignation
or removal.
3.4 Place of Meetings. The board of directors of the
corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
3.5 First Meeting of Each Board. The first meeting of each
newly elected board of directors shall be held at such time and place as shall
be specified in a notice given as hereinafter provided for special meetings of
the board of directors, or as shall be specified in a written waiver of notice
signed by all of the directors.
3.6 Regular Meetings. Regular meetings of the board of
directors may be held without notice at such time and at such place as shall
from time to time be determined by the board of directors.
3.7 Special Meetings. Special meetings of the board may be
called by the president on one day's notice to each director, either personally
or by telephone, by mail or by telegram; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of one-third of the total number of directors.
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3.8 Quorum and Vote at Meetings. At all meetings of the board,
one director if a board of one director is authorized, or such greater number of
directors as is not less than a majority of the total number of directors, shall
constitute a quorum for the transaction of business. The vote of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be present
at any meeting of the board of directors, the directors present thereat may
adjourn the meeting to another time and place, without notice other than
announcement at the meeting of such other time and place.
3.9 Telephone Meetings. Members of the board of directors or
any committee designated by the board may participate in a meeting of such board
or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this section shall
constitute presence in person at such meeting.
3.10 Action Without Meeting. Unless otherwise restricted by
the certificate of incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the board of directors or of any
committee thereof may be taken without a meeting, if all members of the board or
committee, as
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the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the board of directors or committee.
3.11 Committees of Directors. The board of directors may by
resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. If a member of a committee shall be absent from any
meeting, or disqualified from voting thereat, the remaining member or members
present and not disqualified from voting, whether or not such member or members
constitute a quorum, may, by unanimous vote, appoint another member of the board
of directors to act at the meeting in the place of such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation (except that
a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
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pursuant to Section 151(a) of the General Corporation Law of the State of
Delaware [hereinafter the "GCL"], fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation), adopting an agreement of
merger or consolidation pursuant to Sections 251 or 252 of the GCL, recommending
to the stockholders the sale, lease or exchange of all or substantially all of
the corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless otherwise expressly provided in the
resolution, no such committee shall have the power or authority to declare a
dividend, to authorize the issuance of stock, or to adopt a certificate of
ownership and merger pursuant to Section 253 of the GCL. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the board of directors. Unless otherwise specified in
the resolution of the board of directors designating the committee, at all
meetings of each such committee of directors, a majority of the total number of
members of the committee shall constitute a quorum for the transaction of
business, and the vote of a majority of the members of the committee present at
any
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meeting at which there is a quorum shall be the act of the committee. Each
committee shall keep regular minutes of its meetings and report the same to the
board of directors, when required.
3.12 Compensation of Directors. Unless otherwise restricted by
the certificate of incorporation, the board of directors shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the board of directors and
may be paid a fixed sum for attendance at each meeting of the board of directors
or a stated salary as director. No such payment shall preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be paid like
compensation for attending committee meetings.
4. Notices of Meetings.
-------------------
4.1 Notice Procedure. Whenever, whether under the provisions
of any statute or of the certificate of incorporation or of these by-laws,
notice is required to be given to any director or stockholder, such requirement
shall not be construed to require the giving of personal notice. Such notice may
be given in writing, by mail, addressed to such director or stockholder, at his
address as it appears on the records of the corporation, with postage thereon
prepaid, and such notice shall
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be deemed to be given at the time when the same is deposited in the United
States mail. Notice to directors may also be given by telex, telegram or
telephone.
4.2 Waivers of Notice. Whenever the giving of any notice is
required by statute, the certificate of incorporation or these by-laws, a waiver
thereof, in writing, signed by the person or persons entitled to said notice,
whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors or members of a
committee of directors need be specified in any written waiver of notice, unless
so required by the certificate of incorporation, by statute or by these by-laws.
5. Officers.
--------
5.1 Positions. The officers of the corporation shall be a
chairman, a president and a secretary, and such other officers as the board of
directors may appoint, including a vice chairman, one or more vice presidents, a
treasurer, assistant secretaries and assistant treasurers, who shall exercise
such
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powers and perform such duties as shall be determined from time to time by the
board. Any number of offices may be held by the same person, unless the
certificate of incorporation or these by-laws otherwise provide; provided,
however, that in no event shall the chairman and the secretary be the same
person.
5.2 Appointment. The officers of the corporation shall be
chosen by the board of directors at its first meeting after each annual meeting
of stockholders.
5.3 Compensation. The compensation of all officers of the
corporation shall be fixed by the board of directors.
5.4 Term of Office. The officers of the corporation shall hold
office until their successors are chosen and qualify or until their earlier
resignation or removal. Any officer may resign at any time upon written notice
to the corporation. Any officer elected or appointed by the board of directors
may be removed at any time, with or without cause, by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
5.5 Fidelity Bonds. The corporation may secure the fidelity of
any or all of its officers or agents by bond or otherwise.
5.6 Chairman. The chairman shall (when present) preside at all
meetings of the Board of Directors and stockholders, and shall ensure that all
orders and resolutions of the Board of Directors and stockholders are carried
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into effect. In addition, the chairman shall exercise such powers and perform
such other duties as from time to time may be specified by the Board of
Directors. The chairman shall have the authority to execute bonds, mortgages and
other contracts under the seal of the corporation, except where required by law
to be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the board of directors to some other
officer or agent of the corporation.
5.7 President. The president shall be the chief executive
officer of the Corporation, and shall have overall responsibility and authority
for management of the business of the corporation, subject to the authority of
the Board of Directors. In the absence of the chairman or in the event of the
chairman's inability or failure to act, the president shall perform the duties
of the chairman (except to the extent that any vice chairman is authorized to
perform such duties), and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the chairman. The president shall have the
authority to execute bonds, mortgages and other contracts under the seal of the
corporation, except where required by law to be otherwise signed and executed
and except where the signing and execution thereof shall be
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expressly delegated by the board of directors to some other officer or agent of
the corporation.
5.8 Vice Chairman or Vice Presidents. If the directors shall
appoint a vice chairman or one or more vice presidents, such vice chairman or
vice presidents shall perform such duties and have such powers as may be vested
in such vice chairman or vice presidents by the board of directors or by the
president. One of such vice presidents may be designated the chief operating
officer of the corporation and have general management of the day-to-day
operations of the corporation, subject to the authority of the president.
5.9 Secretary. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders, and shall record all
the proceedings of the meetings of the stockholders and of the board of
directors in a book to be kept for that purpose, and shall perform like duties
for the standing committees, when required. The secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings of
the board of directors, and shall perform such other duties as may be prescribed
by the board of directors or by the president, under whose supervision the
secretary shall be. The secretary shall have custody of the corporate seal of
the corporation, and the secretary, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it, and when so affixed
it may be attested by the signature of the
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secretary or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by such officer's signature. The
secretary or an assistant secretary may also attest all instruments signed by
the chairman, the president or any vice president.
5.10 Assistant Secretary. The assistant secretary, or if there
be more than one, the assistant secretaries in the order determined by the board
of directors (or if there shall have been no such determination, then in the
order of their election), shall, in the absence of the secretary or in the event
of the secretary's inability or refusal to act, perform the duties and exercise
the powers of the secretary, and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
5.11 Treasurer.
----------
5.11.1 Duties. The treasurer shall have the custody
of the corporate funds and securities and shall keep full and accurate accounts
of receipts and disbursements in books belonging to the corporation, and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors. The treasurer shall disburse the funds of the corporation as ordered
by the board of directors, taking
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proper vouchers for such disbursements, and shall render to the president, and
to the board of directors at its regular meetings, or when the board of
directors so requires, an account of all transactions as treasurer and of the
financial condition of the corporation.
5.11.2 Bond. If required by the board of directors, the
treasurer shall give the corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the board of directors for the faithful
performance of the duties of the treasurer's office and for the restoration to
the corporation, in case of the treasurer's death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind, in the treasurer's possession or under the treasurer's control
and belonging to the corporation.
5.12 Assistant Treasurer. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by the
board of directors (or if there shall have been no such determination, then in
the order of their election), shall, in the absence of the treasurer or in the
event of the treasurer's inability or refusal to act, perform the duties and
exercise the powers of the treasurer, and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
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6. Capital Stock.
-------------
6.1 Certificates of Stock; Uncertificated Shares. The shares
of the corporation shall be represented by certificates, provided that the board
of directors may provide by resolution or resolutions that some or all of any or
all classes or series of the corporation's stock shall be uncertificated shares.
Any such resolution shall not apply to shares represented by a certificate until
such certificate is surrendered to the corporation. Notwithstanding the adoption
of such a resolution by the board of directors, every holder of stock
represented by certificates and upon request every holder of uncertificated
shares shall be entitled to have a certificate signed by, or in the name of the
corporation by the chairman or vice chairman of the board of directors, or the
president or vice president, and by the treasurer and/or assistant treasurer, or
the secretary or an assistant secretary of such corporation representing the
number of shares registered in certificate form. Any or all the signatures on
the certificate may be facsimile. In case any officer, transfer agent or
registrar whose signature or facsimile signature appears on a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue.
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6.2 Lost Certificates. The board of directors may direct a new
certificate or certificates of stock or uncertificated shares to be issued in
place of any certificate or certificates theretofore issued by the corporation
and alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming that the certificate of stock has
been lost, stolen or destroyed. When authorizing such issuance of a new
certificate or certificates, the board of directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or such owner's legal
representative, to advertise the same in such manner as the board shall require
and/or to give the corporation a bond, in such sum as the board may direct, as
indemnity against any claim that may be made against the corporation on account
of the certificate alleged to have been lost, stolen or destroyed or on account
of the issuance of such new certificate or uncertificated shares.
6.3 Transfers. The transfer of stock and certificates that
represent the stock and the transfer of uncertificated shares shall be effected
in accordance with the laws of the State of Delaware. Any restriction on the
transfer of a security imposed by the corporation shall be noted conspicuously
on the security.
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6.4 Fixing Record Date. In order that the corporation may
determine the stockholders entitled to notice of, or to vote at, any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of,
or to vote at, a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
6.5 Registered Stockholders. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, to receive notifications, to vote as such
owner, and to exercise all the rights and powers of an owner; and the
corporation shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of the State of Delaware.
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7. Indemnification.
---------------
Unless expressly prohibited by law, the corporation shall
fully indemnify any person made, or threatened to be made, a party to an action,
suit or proceeding (whether civil, criminal, administrative or investigative) by
reason of the fact that such person, or such person's testator or intestate, is
or was a director or officer, employee or agent of the corporation or serves or
served any other enterprise at the request of the corporation, against all
expenses (including attorneys' fees), judgments, fines and amounts paid or to be
paid in settlement incurred in connection with such action, suit or proceeding.
8. General Provisions.
------------------
8.1 Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation and
the laws of the State of Delaware, may be declared by the board of directors at
any regular or special meeting. Subject to the provisions of the General
Corporation Law of the State of Delaware, such dividends may be paid either out
of surplus, as defined in the General Corporation Law of the State of Delaware,
or in the event that there shall be no such surplus, out of the net profits for
the fiscal year in which the dividend is declared and/or the preceding fiscal
year. Dividends may be paid in cash, in property, or in shares of the
corporation's capital stock, subject to the provisions, if any, of the
certificate of incorporation.
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8.2 Reserves. The directors of the corporation may set apart,
out of the funds of the corporation available for dividends, a reserve or
reserves for any proper purpose and may abolish any such reserve.
8.3 Execution of Instruments. All checks or demands for money
and notes of the corporation shall be signed by such officer or officers or such
other person or persons as the board of directors may from time to time
designate.
8.4 Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
8.5 Seal. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
9. Amendments.
----------
These by-laws may be altered, amended or repealed and new
by-laws may be adopted by the board of directors.
* * * *
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The foregoing by-laws were adopted by the board of directors
on January 15, 1988.
The foregoing by-laws were amended by the board of directors
on December 20, 1991 to replace Article 5.
INTERNATIONAL PRIVATE SATELLITE PARTNERS, L.P.
CERTIFICATE OF LIMITED PARTNERSHIP
The undersigned, being the sole general partner of the
above-named limited partnership (the "Partnership"), for the purpose of forming
a limited partnership pursuant to Section 17-201 of the Delaware Revised Uniform
Limited Partnership Act, as amended, hereby certifies that:
1. The name of the Partnership shall be International Private
Satellite Partners, L.P.
2. The address of the registered office of the Partnership
shall be 1013 Centre Road, Wilmington, Delaware 19805, and the name and address
of the registered agent of the Partnership for service of process shall be the
Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805.
3. The name and business address of the sole general partner
of the Partnership are: Orion Satellite Corporation, 1350 Piccard Drive, Suite
400, Rockville, Maryland 20850.
GENERAL PARTNER:
Orion Satellite Corporation
Dated: August 15, 1989 By: /s/
<PAGE>
INTERNATIONAL PRIVATE SATELLITE PARTNERS, L.P.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF LIMITED PARTNERSHIP
The undersigned, being the sole general partner of the
above-named limited partnership (the "Partnership"), for the purpose of amending
its Certificate of Limited Partnership pursuant to Section 17-202 of the
Delaware Revised Uniform Limited Partnership Act, as amended, hereby certifies
that:
1. The name of the Partnership is International Private
Satellite Partners, L.P.
2. The Certificate of Limited Partnership of the Partnership
is hereby amended to change the business address of the sole general partner of
the Partnership to: Orion Satellite Corporation, 2440 Research Boulevard, Suite
400, Rockville, Maryland 20850.
GENERAL PARTNER:
Orion Satellite Corporation
Dated: March 1, 1993 By: /s/ John. G. Puente
-------------------
Name: John G. Puente
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Title: Chairman & CEO
THIRD AMENDED AND RESTATED
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
INTERNATIONAL PRIVATE SATELLITE PARTNERS, L.P.
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TABLE OF CONTENTS
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ARTICLE I CERTAIN DEFINITIONS.................................................2
ARTICLE II PARTNERSHIP CONTINUATION, NAME, PLACE OF
BUSINESS........................................9
2.01. Continuation of Partnership; Certificate of Limited
Partnership; Determination of Partnership Rights and
Duties............................................................9
2.02. Name of Partnership...............................................9
2.03. Place of Business................................................10
2.04. Registered Office and Registered Agent...........................10
ARTICLE III PURPOSES AND POWERS OF PARTNERSHIP...............................10
3.01. Purposes.........................................................10
3.02. Powers...........................................................10
3.03. Limitation on Powers of the Partnership..........................12
ARTICLE IV TERM OF PARTNERSHIP..............................................12
4.01. Term.............................................................12
ARTICLE V CAPITAL..........................................................12
5.01. Capital Contribution of General Partner..........................12
5.02. [Intentionally omitted.].........................................12
5.03. Capital Contributions of Limited Partners........................12
5.04. Capital Accounts.................................................13
5.05. Negative Capital Accounts........................................15
5.06. No Interest on Amounts in Capital Account........................16
5.07. Advances to Partnership..........................................16
5.08. Liability of Limited Partners....................................16
5.09. Return of Capital................................................16
ARTICLE VI ALLOCATION OF PROFITS AND LOSSES;
DISTRIBUTIONS OF CASH FLOW AND CERTAIN PROCEEDS........................17
6.01. Certain Definitions..............................................17
6.02. Allocation of Net Income or Net Loss.............................18
6.03. Allocation of Income and Loss With Respect to Partnership
Interests Transferred............................................20
6.04. Distribution of Cash Flow........................................20
6.05. Distribution of Proceeds from Terminating Capital
Transactions.....................................................21
6.06. Special Allocation Rules.........................................22
6.07. Contributed Property; Revaluations Pursuant to Section
704(b) Regulations...............................................26
6.08. Taxes............................................................26
ARTICLE VII MANAGEMENT.......................................................28
7.01. Management and Control of Partnership Business...................28
7.02. Powers of General Partner........................................29
7.03. Power of Attorney................................................30
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7.04. Limitation on Authority of General Partner.......................32
7.05. Working Capital Reserve..........................................33
7.06. Other Activities of Partners.....................................33
7.07. Transactions with General Partner or Affiliates..................34
7.08. Liability of General Partner and Affiliates to Partnership
and Limited Partners.............................................34
7.09. Indemnification of General Partner and Limited Partners..........35
7.10. No Management by Limited Partners................................36
7.11. Partners Planning and Policy Review Committee....................37
7.12. Meetings of Limited Partners.....................................40
7.13. Transfer of Limited Partnership Interest to the General
Partner..........................................................41
7.14. Technical Committee..............................................41
ARTICLE VIII COMPENSATION OF GENERAL PARTNER;
PAYMENT OF PARTNERSHIP EXPENSES.........................................43
8.01. Compensation of General Partner..................................43
8.02. Partnership Expenses.............................................43
8.03. Acquisition, Organizational, and Offering Expenses...............43
ARTICLE IX BANK ACCOUNTS; BOOKS AND RECORDS;
STATEMENTS; TAXES; FISCAL YEAR; ANNUAL BUDGET...........................43
9.01. Bank Accounts and Investments....................................43
9.02. Books and Records................................................44
9.03. Financial Statements and Information.............................44
9.04. Accounting Decisions.............................................46
9.05. Where Maintained.................................................46
9.06. Tax Returns and Tax Matters......................................46
9.07. Federal Income Tax Elections.....................................47
9.08. Fiscal Year......................................................47
9.09. Annual Budget....................................................47
ARTICLE X TRANSFER OF INTERESTS..............................................49
10.01. Transfer........................................................49
10.02. Transfer of Interest of General Partner.........................50
10.03. Transfer of Interest of Limited Partner.........................50
10.04. Partners' Rights of First Refusal...............................51
10.05. Restriction on Certain Transfers................................53
ARTICLE XI OFFERING OF ADDITIONAL PARTNERSHIP
INTERESTS; ADMISSION OF ADDITIONAL PARTNERS;
WITHDRAWAL OF PARTNERS; REMOVAL OF GENERAL
PARTNER.................................................................53
11.01. Offering of Additional Partnership Interests....................53
11.02. Admission of Additional Limited Partners........................55
11.03. Admission of Successor General Partner..........................55
11.04. Withdrawal of General Partner...................................56
11.05. Withdrawal of Limited Partner...................................56
11.06. Removal of General Partner......................................56
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ARTICLE XII DISSOLUTION AND LIQUIDATION......................................58
12.01. Events Causing Dissolution......................................58
12.02. Right to Continue Business of Partnership.......................60
12.03. Liquidation.....................................................60
12.04. Termination of Partnership......................................60
ARTICLE XIII MISCELLANEOUS PROVISIONS........................................61
13.01. Additional Actions and Documents................................61
13.02. Notices.........................................................61
13.03. Severability....................................................62
13.04. Survival........................................................62
13.05. Waivers.........................................................62
13.06. Exercise of Rights..............................................63
13.07. Binding Effect..................................................63
13.08. Limitation on Benefits of this Agreement........................63
13.09. Amendment Procedure.............................................63
13.10. Waiver of Partition.............................................65
13.11. Consolidation...................................................65
13.12. Entire Agreement................................................65
13.13. Pronouns........................................................65
13.14. Headings........................................................65
13.15. Governing Law...................................................65
13.16. Execution in Counterparts.......................................66
13.17. Interest Rates..................................................66
ARTICLE XIV STET REDEMPTION..................................................66
14.01. Ratification of STET Redemption, Issuance of New Interest
to ONS..........................................................66
14.02. STET's Unrecovered Contingent Contributions.....................67
14.03. Termination and Modification of STET Agreements.................67
14.04. BA Waiver.......................................................68
ARTICLE XV PARTNERSHIP APPROVALS.............................................69
ARTICLE XVI EXECUTION.........................................................70
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THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
INTERNATIONAL PRIVATE SATELLITE PARTNERS, L.P.
THIS THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP is entered into as of _______________, 1996 by and among Orion
Satellite Corporation, a Delaware corporation, as the General Partner, the
persons named as Limited Partners on Schedule A and any other persons or
entities who shall in the future execute and deliver this Agreement as
additional or substitute Partners pursuant to the provisions hereof. The
principal place of business of the General Partner and each Limited Partner are
set forth on Schedule A.
WHEREAS, the General Partner and the Orion Network Systems,
Inc., a Delaware corporation, as the organizational limited partner (the
"Organizational Limited Partner"), in accordance with the Delaware Revised
Uniform Limited Partnership Act, formed a limited partnership under the name
"International Private Satellite Partners, L.P." (the "Partnership") pursuant to
an initial agreement of limited partnership (the "Initial Agreement"), dated as
of August 15, 1989 and a Certificate of Limited Partnership dated as of August
15, 1989 and filed with the office of the Secretary of State of Delaware on
August 17, 1989; and
WHEREAS, counterparts of an Amended and Restated Agreement of
Limited Partnership and first, second and third amendments thereto
(collectively, the "First Amended and Restated Agreement") were executed and
deposited into escrow by the General Partner and certain proposed limited
partners of the Partnership; and
WHEREAS, pursuant to a Second Amended and Restated Agreement
of Limited Partnership entered into as of December 20, 1991 (the "Second Amended
and Restated Agreement") the parties thereto amended and restated the Initial
Agreement and the First Amended and Restated Agreement as provided therein, the
Organizational Limited Partner withdrew from the Partnership, and the General
Partner and the limited partners of the Partnership continued the Partnership
for the purposes set forth therein, subject to the terms and conditions thereof;
WHEREAS, the General Partner and the limited partners of the
Partnership entered into the First Amendment to the Second Amended and Restated
Agreement of Limited Partnership of International
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Private Satellite Partners, L.P., effective as of December 20, 1991, the Second
Amendment to the Second Amended and Restated Agreement of Limited Partnership of
International Private Satellite Partners, L.P. dated April 2, 1992, the Third
Amendment to the Second Amended and Restated Agreement of Limited Partnership of
International Private Satellite Partners, L.P. dated April 2, 1992, the Fourth
Amendment to the Second Amended and Restated Agreement of Limited Partnership of
International Private Satellite Partners, L.P. dated March 22, 1994, the Fifth
Amendment to the Second Amended and Restated Agreement of Limited Partnership of
International Private Satellite Partners, L.P., dated May 2, 1994 and the Sixth
Amendment to the Second Amended and Restated Agreement of Limited Partnership of
International Private Satellite Partners, L.P., dated November ____, 1995; and
WHEREAS, the parties hereto desire to amend and restate the
Second Amended and Restated Agreement, as amended by the six amendments listed
in the prior paragraph, and the General Partner and the Limited Partners desire
to continue the Partnership for the purposes hereinafter set forth, subject to
the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing, and of the
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
ARTICLE I
CERTAIN DEFINITIONS
Unless the context otherwise specifies or requires, the terms
defined in this Article I shall, for the purposes of this Agreement, have the
meanings herein specified. Unless otherwise specified, all references herein to
Articles, Sections, or Schedules are to Articles or Sections of, or Schedules
attached to, this Agreement.
Adjusted Basis: The basis for determining gain or loss for
federal income tax purposes from the sale or other disposition of property, as
defined in section 1011 of the Code.
Affiliate: With respect to a specified Person, (a) any other
Person directly or indirectly owning, controlling, or holding power to vote ten
percent (10%) or more of the voting securities, on a fully diluted basis of such
specified Person; (b) any other Person ten percent (10%) or more of the voting
securities, on a fully diluted basis of which are directly or indirectly owned,
controlled, or held with power to vote by such specified Person; (c) any other
Person directly or indirectly controlling, controlled by, or under common
control with such specified Person; (d) if such specified Person is a
corporation, any executive officer or director of such specified Person or of
any corporation directly or indirectly controlling such specified Person; and
(e) if such specified Person is a partnership, any general partner owning or
controlling ten percent (10%) or more, on a fully diluted basis of either the
capital or profits interest in such partnership. As used in this definition of
"Affiliate," the term "control" means the possession, directly or indirectly, of
the
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power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract, or
otherwise. As used herein, this definition of "Affiliate" excludes an Affiliate
of an Affiliate, unless such Person would otherwise be an Affiliate under this
definition.
Agreement: This Third Amended and Restated Agreement of
Limited Partnership, as it may be further amended or supplemented from time to
time.
Book Tax Gain and Book Tax Loss: The amount of taxable gain or
loss for federal income tax purposes that would result from a sale or other
disposition of a Partnership Asset if, at the time of such sale or disposition,
the Adjusted Basis of the Partnership Asset sold or otherwise disposed of were
equal to the Carrying Value of such Partnership Asset at such time.
Business Day: Monday through Friday of each week, except that
a legal holiday recognized as such by the Government of the United States or the
State of Maryland shall not be regarded as a Business Day.
Capacity Option Agreement: Each of the Option Agreements,
including any amendments thereto, entered into effective as of December 20, 1991
between the Partnership and each Limited Partner or its Affiliate, any
substantially similar agreement entered into by the Partnership and a Limited
Partner or its Affiliate after December 20, 1991 and any substantially similar
agreement which may be entered into by the Partnership and a Limited Partner or
its Affiliate after the date of this Agreement.
Capital Account: The capital account established and
maintained for each Partner pursuant to Section 5.04.
Capital Contribution: Any property (including cash), whether
tangible or intangible, contributed to the Partnership by or on behalf of a
Partner.
Carrying Value: (a) With respect to any asset contributed to
the Partnership or revalued on the Partnership's books pursuant to Section
5.04(d), the fair market value of such asset (as determined by the Partners) at
the time of contribution or revaluation, reduced, but not below zero, by all
deductions for Depreciation (as defined in the definition of Net Income and Net
Loss) debited to the Capital Accounts of the Partners pursuant to Section
5.04(a) with respect to such asset from the later of the time of contribution or
the most recent revaluation to the time the Carrying Value is to be determined;
and (b) with respect to any other asset of the Partnership, the Adjusted Basis
of such asset as of the time the Carrying Value is to be determined.
Cash Flow: As defined in Section 6.01(a).
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Certificate: The Certificate of Limited Partnership, and any
and all amendments thereto, filed on behalf of the Partnership with the
Recording Office as required under the Delaware RULPA.
Code: The Internal Revenue Code of 1986, as in effect and
hereafter amended, and, unless the context otherwise requires, applicable
regulations thereunder. Any reference herein to a specific section or sections
of the Code shall be deemed to include a reference to any corresponding
provision of future law.
Communications Satellite Capacity Agreement: Each of the
Communications Satellite Capacity Agreements, including any amendments thereto,
effective as of December 20, 1991 between the Partnership and each Limited
Partner or its Affiliate, any substantially similar agreement entered into by
the Partnership and a Limited Partner or its Affiliate after December 20, 1991
and any substantially similar agreement which may be entered into by the
Partnership and a Limited Partner or its Affiliate after the date of this
Agreement.
Contingent Communications Satellite Capacity Agreement: Each
of the Contingent Communications Satellite Capacity Agreements, including any
amendments thereto, effective as of December 20, 1991 between the Partnership
and each Limited Partner or its Affiliate, any substantially similar agreement
entered into by the Partnership and a Limited Partner or its Affiliate after
December 20, 1991 and any substantially similar agreement which may be entered
into by the Partnership and a Limited Partner or its Affiliate after the date of
this Agreement.
Delaware RULPA: The Delaware Revised Uniform Limited
Partnership Act (Del. Code Ann. tit. 6 ss. 17-101 et seq.), as amended to date
and as it may be amended from time to time hereafter, and any successor to such
Act.
Excess Negative Balance: The negative balance, if any, in a
Partner's Capital Account as of the end of a Fiscal Year after crediting the
Partner's Capital Account for the amount of any deficit balance in such Capital
Account that the Partner is obligated to restore or is treated as being
obligated to restore pursuant to Regulations sections 1.704-1(b)(2)(ii) (b)(3)
and 1.704-1(b)(2)(ii)(c), including the amount of such Partner's share of the
Partnership's Minimum Gain, determined pursuant to Regulations sections
1.704-1T(b)(4)(iv)(f) and 1.704-1T(b)(4)(iv)(h)(5); and debiting the Partner's
Capital Account for any adjustment, allocation, or distribution described in
paragraph (4), (5), or (6) of Regulations section 1.704-1(b)(2)(ii)(d).
FCC: The United States Federal Communications Commission or
any successor thereto.
FCC License: The FCC license to construct, launch and operate
two in-orbit satellites at 37.5(degree) West Longitude and 47(degree) West
Longitude and all rights granted under that license.
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Fiscal Year: The fiscal year of the Partnership for financial
accounting purposes, and for federal, state, and local income tax purposes,
which shall be the calendar year unless changed by the General Partner in
accordance with Section 9.08.
General Partner: Orion Satellite Corporation, or any other
Person admitted to the Partnership as a general partner in accordance with this
Agreement.
Independent Party: A panel of three individuals, as
constituted or reconstituted from time to time, each of which persons shall be a
fit and impartial person (where "impartial" means that such person, at the time
of such person's appointment to the panel, is not and has never been an officer,
director, partner, employee, or Affiliate of the General Partner or any Limited
Partner), of which one of such persons shall be chosen by the General Partner,
one of such persons shall be chosen by the Limited Partners pursuant to the
approval of an LP Majority, and one of such persons shall be chosen by the other
two so chosen.
Limited Partner: Any Person named as a Limited Partner on
Schedule A, as it may be amended from time to time, and any other persons or
entities who shall in the future execute and deliver this Agreement as
additional or substitute Partners pursuant to the provisions hereof.
LP Majority: Limited Partners holding a majority of the total
Percentage Interests then held by all Limited Partners.
Minimum Gain: The amount determined by computing, with respect
to each Nonrecourse Debt of the Partnership, the amount of Book Tax Gain (of
whatever character), if any, that the Partnership would realize if it disposed
of (in a taxable transaction) the Partnership Assets subject to such Nonrecourse
Debt in full satisfaction thereof and for no other consideration, and by then
aggregating the amounts so computed. For purposes of computing the amount of
Minimum Gain, (i) the Carrying Value of a Partnership Asset subject to two or
more Nonrecourse Debts of equal priority shall be allocated among such
Nonrecourse Debts in proportion to the outstanding principal balances of such
Nonrecourse Debts; (ii) the Carrying Value of a Partnership Asset subject to two
or more Nonrecourse Debts of unequal priority shall be allocated to the
Nonrecourse Debts of an inferior priority (in accordance with clause (i) above)
only to the extent of the excess, if any, of the Carrying Value of the
Partnership Asset over the aggregate outstanding balance of the Nonrecourse
Debts of superior priority; and (iii) only the portion of Carrying Value of a
Partnership Asset allocated to Nonrecourse Debts of the Partnership shall be
used in computing the Minimum Gain.
Net Income and Net Loss: For any taxable period, (i) the gross
income of the Partnership from all sources, as calculated for federal income tax
purposes by the Partnership (but excluding any item of income or gain taken into
account in computing Book Tax Gain or Book Tax Loss), plus (ii) any Book Tax
Gain
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recognized by the Partnership during such period, plus (iii) any income of the
Partnership that is exempt from federal income tax and not otherwise taken into
account in computing gross income for federal income tax purposes, reduced by
(iv) Depreciation (as defined below), further reduced by (v) all other items of
expense or deduction (other than Depreciation (as defined below)) that are
allowable as deductions to the Partnership under the Code for such period (but
excluding any item of expense or deduction taken into account in computing Book
Tax Gain or Book Tax Loss), further reduced by (vi) any Book Tax Loss recognized
by the Partnership during such period, and further reduced by (vii) any
expenditures of the Partnership described in section 705(a)(2)(B) of the Code or
treated as expenditures described in section 705(a)(2)(B) of the Code pursuant
to Regulations section 1.704-1(b)(2)(iv)(i), and not otherwise taken into
account in computing taxable income (including for the purposes hereof, any
foreign income taxes paid or deemed paid by the Partnership for purposes of
section 901, et seq. of the Code). In computing Net Income and Net Loss, all
items of income, gain, loss, or deduction required to be specially allocated to
one or more Partners pursuant to Section 6.06 shall be excluded. "Depreciation"
means, for each taxable period, an amount equal to the depreciation,
amortization, or other cost recovery deductions allowable with respect to a
Partnership Asset for such period for federal income tax purposes computed
(using the same method used by the Partnership in computing depreciation,
amortization, or other cost recovery deductions in preparing its federal income
tax returns, or if the Adjusted Basis of the Partnership Asset is zero, such
method as is reasonably determined by the General Partner) as if the Adjusted
Basis of such Partnership Asset were equal to their Carrying Values. Except as
otherwise specifically provided herein or in the Regulations under section 704
of the Code, for purposes of computing the amount of any item of income, gain,
deduction, or loss in determining Net Income or Net Loss, the determination,
recognition, and classification of such item shall be the same as its
determination, recognition, and classification for federal income tax purposes.
All items of income, gain, loss, deduction, and credit recognized by the
Partnership for federal income tax purposes and allocated to the Partners in
accordance with the provisions of Article VI shall be determined without regard
to any election that may be made by the Partnership under section 754 of the
Code except as expressly contemplated under the Regulations section
1.704-1(b)(2)(iv)(m)(4); provided, however, that such allocations, once made,
shall be adjusted as necessary to take into account those adjustments authorized
under sections 734 and 743 of the Code.
Net Proceeds of a Terminating Capital Transaction: As defined
in Section 6.01(b).
Nonrecourse Debt: Any liability that is considered nonrecourse
for purposes of Regulations section 1.1001-2 (without regard to whether such
liability is a recourse liability under Regulations section 1.752-1T(d)(2)) and
any other liability for which the creditor's right to repayment is limited to
one or more of the assets of the Partnership (within the meaning of Regulations
section 1.752-1T(d)(3)(ii)(B)(4)(ii).
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Nonrecourse Liability: Any Nonrecourse Debt (or portion
thereof) for which no Partner bears (or is deemed to bear) the economic risk of
loss within the meaning of Regulations section 1.704-1T(b)(4)(iv)(k)(3).
Organizational Limited Partner: Orion Network Systems, Inc.
Partner: A General Partner or a Limited Partner.
Partner Nonrecourse Debt: Any Nonrecourse Debt (or portion
thereof) for which a Partner bears (or is deemed to bear) the economic risk of
loss within the meaning of Regulations section 1.704-1T(b)(4)(iv)(k)(1).
Partnership: The limited partnership created pursuant to the
Certificate and continued by this Agreement.
Partnership Assets: All assets and property, whether tangible
or intangible and whether real, personal, or mixed, at any time owned by or held
for the benefit of the Partnership.
Partnership Interest: As to any Partner, all of the interest
of such Partner in the Partnership, including, without limitation, such
Partner's (i) right to a distributive share of the income, gain, losses and
deductions of the Partnership in accordance herewith, (ii) right to a
distributive share of Partnership Assets, (iii) rights, if a General Partner,
with respect to the management of the business and affairs of the Partnership
and (iv) consensual and voting rights, if a Limited Partner, with respect to
certain matters as provided herein.
Partnership Liabilities: All debts, liabilities, and other
obligations of the Partnership.
Percentage Interest: As defined in Section 6.01(c).
Person: Any individual, corporation, association, partnership,
joint venture, trust, estate, or other entity or organization.
Recording Office: The office of the Secretary of State of the
State of Delaware.
Regulations: The regulations issued by the United States
Department of the Treasury under the Code, as now in effect and as they may be
amended from time to time, and any successor regulations.
Review Committee: As defined in Section 7.11(a).
Satellite Authorizations: The FCC License, any other satellite
licenses and authorizations or rights thereunder granted by the FCC or other
governmental agencies which may be held by the General Partner or the
Partnership, and all other permits, approvals, consents, authorizations,
registrations, consultations,
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notifications, coordinations, and licenses necessary or appropriate for the
construction, launch or operation of each satellite owned by the Partnership.
Satellite Construction Contract: The Second Amended and
Restated Purchase Contract, dated as of September 24, 1991, between the General
Partner and British Aerospace Public Limited Company, as amended, as such
agreement has been assigned by the General Partner to the Partnership pursuant
to an Assignment and Assumption of Satellite Construction Contract between the
General Partner and the Partnership effective as of December 20, 1991.
Section 754 Election: An election under section 754 of the
Code relating to the adjustment of the Adjusted Basis of Partnership Assets, as
provided in sections 734 and 743 of the Code.
Ten Year Projection: As defined in Section 7.11(b)(ii).
Terminating Capital Transaction: Any sale, condemnation,
exchange, abandonment, or other disposition, whether by foreclosure or
otherwise, of all or substantially all of the then remaining Partnership Assets
and/or any other transaction which will result in a dissolution of the
Partnership, or any sale or other disposition of the Partnership Assets or any
portion thereof or any other transactions in connection with the dissolution and
liquidation of the Partnership pursuant to Article XII.
Termination Date: December 31, 2039.
Unrealized Gain: As to any Partnership Asset, the Book Tax
Gain, if any, that would be realized if such Partnership Asset were sold for its
fair market value on the date of determination.
Unrealized Loss: As to any Partnership Asset, the Book Tax
Loss, if any, that would be realized if such Partnership Asset were sold for its
fair market value on the date of determination.
Unrecovered Contingent Contributions: With respect to each
Limited Partner, the aggregate amount, if any, of contingent payments made by
the Limited Partner or its Affiliate to the Partnership pursuant to Article II
of the Contingent Communications Satellite Capacity Agreement or to a payment
guarantee agreement in accordance with Article III of the Contingent
Communications Satellite Capacity Agreement and treated as contributions by such
Partner to the capital of the Partnership pursuant to Section 5.01 of the
Contingent Communications Satellite Capacity Agreement, reduced, as and when
made, by the amounts distributed to the Limited Partner in reduction of such
amounts pursuant to Section 6.04(a)(i).
Unrecovered Initial Contributions: In the case of the General
Partner, $10,000,000, and in the case of the Limited Partners, the amounts set
forth on
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Schedule A. A Partner's Unrecovered Initial Contribution shall be
reduced, as and when made, by the amounts distributed to such Partner pursuant
to Section 6.04(a)(ii).
Working Capital Reserve: The reserve for working capital
established by the General Partner pursuant to Section 7.05.
ARTICLE II
PARTNERSHIP CONTINUATION, NAME, PLACE OF BUSINESS
2.01. CONTINUATION OF PARTNERSHIP; CERTIFICATE OF LIMITED
PARTNERSHIP; DETERMINATION OF PARTNERSHIP RIGHTS AND
DUTIES.
The Partnership was formed on August 17, 1989, pursuant to the
provisions of the Delaware RULPA. The Partners hereby execute this Agreement for
the purpose of continuing the existence of the Partnership, and setting forth
the rights, duties, and relationship of the Partners. If the laws of any
jurisdiction in which the Partnership transacts business so require, the General
Partner also shall file, with the appropriate office in that jurisdiction, a
copy of the Certificate as filed with the Recording Office or any other
documents necessary for the Partnership to qualify to transact business and to
establish and maintain the Limited Partners' limited liability under the
Delaware RULPA. The Partners further agree and obligate themselves to execute,
acknowledge, and cause to be filed for record, in the place or places and manner
prescribed by law, any amendments to the Certificate as may be required, either
by the Delaware RULPA, by the laws of a jurisdiction in which the Partnership
transacts business, or by this Agreement, to reflect changes in the information
contained therein or otherwise to comply with the requirements of law for the
continuation, preservation, and operation of the Partnership as a limited
partnership under the Delaware RULPA.
2.02. NAME OF PARTNERSHIP.
The name under which the Partnership shall conduct its
business is "International Private Satellite Partners, L.P." The business of the
Partnership may be conducted under any other name permitted by the Delaware
RULPA that is deemed necessary or desirable by the General Partner, in its sole
and absolute discretion. The General Partner promptly shall execute, file, and
record any assumed or fictitious name certificates required by the laws of the
State of Delaware or any state in which the Partnership conducts business and
shall take such other action as the General Partner determines are required by
the laws of the State of Delaware, or any other state in which the Partnership
conducts business, to use the name or names under which the Partnership conducts
business.
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2.03. PLACE OF BUSINESS.
The principal place of business of the Partnership shall be
located at 2440 Research Blvd., Suite 400, Rockville, Maryland 20858-3238. The
General Partner may hereafter change the principal place of business of the
Partnership to such other place or places within the United States as the
General Partner may from time to time determine, in its sole and absolute
discretion, provided that the General Partner shall give written notice thereof
to the Limited Partners within thirty (30) days after the effective date of any
such change and, if necessary, shall amend the Certificate in accordance with
the applicable requirements of the Delaware RULPA. The General Partner may, in
its sole and absolute discretion, establish and maintain such other offices and
additional places of business of the Partnership, either within or without the
State of Delaware, as it deems appropriate.
2.04. REGISTERED OFFICE AND REGISTERED AGENT.
The street address of the registered office of the Partnership
shall be 1013 Centre Road, Wilmington, Delaware 19805, and the Partnership's
registered agent at such address shall be the Corporation Service Company.
ARTICLE III
PURPOSES AND POWERS OF PARTNERSHIP
3.01. PURPOSES.
The purposes of the Partnership shall be:
3.01(a)to develop international communications
satellite facilities and to engage in the business of providing communications
and communications-related services;
3.01(b) to acquire, hold, own, operate, lease, manage,
maintain, improve, repair, replace, reconstruct, sell, or otherwise dispose of
and otherwise use the Partnership Assets; and
3.01(c) to enter into any lawful transaction and engage
in any lawful activity incidental to or in furtherance of the foregoing
purposes.
3.02. POWERS.
The Partnership shall have the power to do any and all acts and things
necessary, appropriate, advisable, or convenient for the furtherance and
accomplishment of the purposes of the Partnership, including, without
limitation, the following:
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3.02(a) to borrow (on a secured or unsecured basis)
money and issue evidences of indebtedness, and to secure the same by mortgages,
deeds of trust, security interests, pledges, or other liens on all or any part
of the Partnership Assets;
3.02(b) to secure and maintain insurance against
liability or other loss with respect to the activities and assets of the
Partnership (including, without limitation, insurance against liabilities under
Section 7.09(e));
3.02(c) to employ or retain such persons as may be
necessary or appropriate for the conduct of the Partnership's business,
including permanent, temporary, or part-time employees and independent
attorneys, accountants, consultants, and contractors;
3.02(d) to acquire, own, hold, maintain, use, lease,
sublease, manage, operate, sell, exchange, transfer, or otherwise deal in assets
and property as may be necessary or convenient for the purposes of the
Partnership;
3.02(e) to incur expenses and to enter into, guarantee,
perform, and carry out contracts, agreements, leases, subleases, and commitments
of any kind, to assume obligations, and to execute, deliver, acknowledge, and
file documents in furtherance of the purposes of the Partnership;
3.02(f) to pay, collect, compromise, arbitrate,
litigate, or otherwise adjust, contest, or settle any and all claims or demands
of or against the Partnership;
3.02(g) to establish and maintain one or more bank
accounts in the name of the Partnership at such banks as may be selected by the
General Partner, to deposit in such account(s) the funds received from time to
time by or on behalf of the Partnership, and to pay the debts, expenses, and
obligations of the Partnership by checks drawn on such accounts and signed by
the General Partner or by such other signatory as the General Partner shall
designate;
3.02(h) to invest in interest-bearing accounts and
short-term investments, including, without limitation, obligations of federal,
state, and local governments and their agencies, mutual funds (including money
market funds), commercial paper, time deposits, and certificates of deposit of
commercial banks, savings banks, or savings and loan associations; and
3.02(i) to engage in any kind of activity and to enter
into and perform obligations of any kind necessary to or in connection with, or
incidental to, the accomplishment of the purposes of the Partnership, so long as
said activities and obligations may be lawfully engaged in or performed by a
limited partnership under the Delaware RULPA.
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3.03. Limitation on Powers of the Partnership.
Notwithstanding any provision in this Agreement, the FCC
License shall not be transferred, assigned or disposed of in any manner,
voluntarily or involuntarily, including by any transfer of control of any
corporation holding that license, to any person except upon a finding by the FCC
that the public convenience and necessity will be served thereby.
ARTICLE IV
TERM OF PARTNERSHIP
4.01. TERM.
The Partnership commenced when the Certificate was duly filed
with the Recording Office on August 17, 1989, and shall continue until the
Termination Date unless extended beyond the Termination Date in accordance with
the provisions of Section 12.02, or unless dissolved and liquidated before the
Termination Date in accordance with the provisions of Article XII.
ARTICLE V
CAPITAL
5.01. CAPITAL CONTRIBUTION OF GENERAL PARTNER.
5.01(a) Prior to the effectiveness of this Agreement,
the General Partner has contributed to the Partnership certain tangible and
intangible assets as set forth on Schedule A. It is acknowledged and agreed that
such Capital Contributions of the General Partner have Carrying Value of Thirty
Million Dollars ($30,000,000.00).
5.01(b) The General Partner shall not be required to
make any contributions to the capital of the Partnership other than as set forth
in this Section 5.01.
5.02. [INTENTIONALLY OMITTED.]
5.03. CAPITAL CONTRIBUTIONS OF LIMITED PARTNERS.
5.03(a) Concurrently with or immediately preceding the
effectiveness of this Agreement, and pursuant to the terms of a Subscription
Agreement executed by each Limited Partner, each Limited Partner listed on
Schedule A is making or has made a Capital Contribution in the amount set forth
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opposite its name on Schedule A. The Capital Contribution of each Limited
Partner shall be made in cash, by wire transfer, by certified or cashier's check
payable to the order of the Partnership or its designated agent, or in such
other form as is approved by the General Partner, and shall be reflected on
Schedule A.
5.03(b) Contemporaneously with the execution of this
Agreement, each of certain Limited Partners or their Affiliates are entering
into a Contingent Communications Satellite Capacity Agreement pursuant to which
the Limited Partner or its Affiliate may be required from time to time to make
contingent payments to the Partnership. Any such contingent payments and any
contingent payments pursuant to a Payment Guarantee Agreement entered into in
accordance with the Contingent Communications Satellite Capacity Agreement made
by a Limited Partner or its Affiliate will be treated as capital contributions
to the Partnership by the Limited Partner to the extent provided in Section 5.01
of the Contingent Communications Satellite Capacity Agreement.
5.03(c) The Limited Partners shall not be required to
make any contributions to the capital of the Partnership other than as set forth
in this Section 5.03.
5.04. CAPITAL ACCOUNTS.
5.04(a) A separate Capital Account shall be established
and maintained for each Partner in all events in accordance with the rules of
Regulations section 1.704-1(b)(2)(iv), as amended from time to time. In general,
the Capital Account of each Partner shall be credited with:
(i) the amount of cash and the Carrying Value of any
property (net of liabilities assumed by the Partnership and
liabilities to which the contributed property is subject)
contributed to the Partnership by such Partner, plus
(ii) all Net Income and items of income and gain of
the Partnership specially allocated pursuant to Section 6.06
(computed in accordance with Section 5.04(b)) allocated to
such Partner pursuant to Sections 6.02(a) and 6.06 (including
for purposes of this Section 5.04(a) income and gain exempt
from tax);
and shall be debited with the sum of:
(iii) all Net Losses and items of loss or deduction
of the Partnership specially allocated pursuant to Section
6.06 (computed in accordance with Section 5.04(b)) allocated
to such Partner pursuant to Sections 6.02(b) and 6.06, and
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(iv) all cash and the fair market value of any
property (net of liabilities assumed by such Partner and
liabilities to which such property is subject) distributed by
the Partnership to such Partner.
Any reference in this Agreement to the Capital Account of a Partner shall be
deemed to refer to such Capital Account as the same may be credited or debited
from time to time as set forth above.
5.04(b) Except as otherwise required pursuant to the
Regulations under section 704 of the Code, for purposes of computing the amount
of any item of income, gain, deduction, or loss to be reflected in Capital
Accounts, the determination, recognition, and classification of each such item
shall be the same as its determination, recognition, and classification of Net
Income and Net Loss, provided that:
(i) immediately prior to decreasing a Partner's
Capital Account to reflect any distribution of a Partnership
Asset to him (other than cash), all Partners' Capital Accounts
shall be adjusted to reflect the manner in which the
Unrealized Gain or Unrealized Loss inherent in such
Partnership Asset (that has not been reflected in the Capital
Accounts previously) would be allocated among the Partners if
there were a taxable disposition of such Partnership Asset for
its fair market value (but not less than the amount of any
Nonrecourse Debt secured by such Partnership Asset); and
(ii) adjustment to a Partner's Capital Account in
respect of Partnership income, gain, loss, deduction, and Code
section 705(a)(2)(B) expenditures (as described in Regulations
section 1.704-1(b)(2)(iv)(i)) (or items thereof) shall be made
with reference to the federal tax treatment of such items
(and, in the case of book tax items, with reference to the
federal tax treatment of the corresponding tax items) at the
Partnership level, without regard to any required or elective
tax treatment of such items at the Partner level.
5.04(c) A Partner shall be considered to have only one
Capital Account.
5.04(d) The General Partner, with the review and
concurrence of the Partnership's certified public accountants, shall have the
discretion to increase or decrease the Capital Account balances of the Partners
to reflect a revaluation of Partnership Assets on the Partnership's books to the
extent required or permitted by the Regulations. Any such adjustments must be
based on the fair market value of the Partnership Assets as reasonably
determined by the General Partner (provided that no Partnership Asset shall be
valued at an amount less than any Nonrecourse Debt to which such Partnership
Asset is subject on the date of adjustment) and must reflect the manner in which
the Unrealized Gain or Unrealized Loss inherent in such Partnership Assets (that
has not been reflected in
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a Capital Account previously) would be allocated among the Partners if there
were a taxable disposition of such Partnership Assets for such fair market value
on that date.
5.04(e) Subject to Section 5.04(g), any permitted
transferee of a Partnership Interest hereunder shall succeed to the Capital
Account relating to the Partnership Interest transferred.
5.04(f) Any special basis adjustments resulting from an
election by the Partnership pursuant to section 754 of the Code shall not be
taken into account for any purpose in establishing and maintaining Capital
Accounts for the Partners, except as provided in Regulations section
1.704-1(b)(2)(iv)(m).
5.04(g) If any transfer of a Partner's Partnership
Interest causes a termination of the Partnership under section 708(b)(1)(B) of
the Code, the Capital Account that carries over to the transferee Partner shall
be adjusted in accordance with Regulations section 1.704-1(b)(2)(iv)(e) in
connection with the constructive liquidation of the Partnership under
Regulations section 1.708-1(b)(1)(iv). Moreover, the constructive reformation of
the Partnership will be treated as the formation of a new Partnership, and the
Capital Accounts of the Partners in such new Partnership will be determined and
maintained accordingly taking into account, for example, the difference between
the fair market value of the Partnership Asset and its Carrying Value on the
date of such constructive reformation.
5.04(h) The foregoing provisions of this Section 5.04
and any other provisions of the Agreement relating to the maintenance of Capital
Accounts are intended to comply with Regulations section 1.704-1(b)(2)(iv) as
they currently exist and as they subsequently may be amended, and they shall be
interpreted and applied in a manner consistent with such Regulations. In the
event the General Partner determines in its reasonable discretion, subject to
the review and concurrence of the Partnership's certified public accountants,
that it is prudent to modify the manner in which the Capital Accounts, or any
debits or credits thereto, are computed in order to comply with such
Regulations, the General Partner may make such modification, provided that it is
not likely to have a material effect on the amounts distributable to any Partner
upon dissolution of the Partnership.
5.05. NEGATIVE CAPITAL ACCOUNTS.
Except to the extent the Partners are required or elect to
make contributions to the capital of the Partnership under Sections 5.01 and
5.03, no Partner shall be required to pay to the Partnership or to any other
Partner any deficit or negative balance which may exist from time to time in
such Partner's Capital Account.
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5.06. NO INTEREST ON AMOUNTS IN CAPITAL ACCOUNT.
No Partner shall be entitled to receive any interest on its
outstanding Capital Account balance.
5.07. ADVANCES TO PARTNERSHIP.
If any Partner shall advance funds to the Partnership in
excess of the amounts required hereunder to be contributed by it to the capital
of the Partnership and which do not constitute Unrecovered Contingent
Contributions, the making of such advances shall not result in any increase in
the amount of such Partner's Capital Account or entitle it to any increase in
its Percentage Interest. The amounts of such advances shall be a debt of the
Partnership to the Partner and shall be payable or collectible only out of the
Partnership Assets in accordance with the terms and conditions upon which such
advances are made. Any such advances shall be repayable upon demand and shall
bear interest at the rate equal to two (2) percentage points above the "Federal
Short-Term Rate" as defined in Code section 1274(d)(1)(C)(i) or the maximum rate
permitted under applicable law, whichever is less, calculated upon the
outstanding principal balance of such advances as of the first day of each
month.
5.08. LIABILITY OF LIMITED PARTNERS.
Except as provided in the Delaware RULPA, none of the Limited
Partners shall be personally liable for any debts, liabilities, contracts or
obligations of the Partnership. A Limited Partner shall be liable only to make
payments of such Limited Partner's Capital Contribution pursuant to Section
5.03. Except as provided in the Delaware RULPA, after such Limited Partner's
Capital Contribution has been fully paid, no Limited Partner shall be required
to make any further capital contributions or to lend any funds to the
Partnership.
5.09. RETURN OF CAPITAL.
Except upon the dissolution of the Partnership or as may be
specifically provided in this Agreement, no Partner shall have the right to
demand or to receive the return of all or any part of its Capital Account or its
contributions to the capital of the Partnership.
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ARTICLE VI
ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS
OF CASH FLOW AND CERTAIN PROCEEDS
6.01. CERTAIN DEFINITIONS.
6.01(a) "Cash Flow" shall mean and refer to the sum of
the following:
(i) the Net Income (or Net Loss) of the Partnership
for the period for which such determination is being made,
excluding items of income, gain, loss, or deduction from any
Terminating Capital Transaction, increased to reflect any
items of income or gain and decreased to reflect any items of
loss or deduction required to be specially allocated to one or
more Partners pursuant to Sections 6.06(a) through 6.06(e)
(collectively, "Specially Allocated Items") increased by (A)
the amount of Depreciation and similar deductions in lieu
thereof deductible by the Partnership in computing such Net
Income or Net Loss or treated as Specially Allocated Items,
and any other deductions taken into account in determining Net
Income or Net Loss or treated as Specially Allocated Items for
such period that are not matched by cash payments during such
period, and (B) any receipts of the Partnership for such
period that are not either includible in determining Net
Income or Net Loss or treated as Specially Allocated Items for
such period and the proceeds of any loans to the Partnership
but excluding proceeds from any Terminating Capital
Transaction; and reduced by (AA) payments from the sum of the
foregoing during such period on the principal of any loan to
the Partnership or in satisfaction of other obligations to
holders of Partnership debt (other than distributions to
Partners pursuant to this Article VI) to the extent such
payments have not otherwise reduced the Net Income (or
increased the Net Loss or been treated as Specially Allocated
Items) of the Partnership for such period, (BB) all other
expenditures from the sum of the foregoing not financed
through any reserves previously set aside by the Partnership
for such purposes and not deducted in determining Net Income
or Net Loss or treated as Specially Allocated Items for such
period, (CC) any amounts included in determining Net Income or
Net Loss or treated as Specially Allocated Items for such
period that were not received by the Partnership during such
period, and (DD) transfers from the sum of the foregoing to
the Working Capital Reserve pursuant to Section 7.05; plus
(ii) any other funds (including amounts previously
set aside in the Working Capital Reserve by the General
Partner if and to the extent the General Partner no longer
regards such amounts as
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reasonably needed in connection with the operation of
the business of the Partnership) deemed available for
distribution and designated as Cash Flow by the General
Partner.
6.01(b) "Net Proceeds of a Terminating Capital
Transaction" means the proceeds received by the Partnership in connection with a
Terminating Capital Transaction, after the payment of all costs and terminating
expenses of any kind or nature incurred by the Partnership in connection with
such Terminating Capital Transaction.
6.01(c) "Percentage Interests" of the General Partner
and the Limited Partners are as set forth on Schedule B, as it may be amended
from time to time.
6.02. Allocation of Net Income or Net Loss.
Net Income or Net Loss of the Partnership for each Fiscal Year
(or portion thereof) during the term of this Agreement shall be allocated to the
Partners (after allocating to the Partners any amounts required to be allocated
to them with respect to such Fiscal Year (or portion thereof) pursuant to
Section 6.06 and after reducing their respective Capital Accounts for all Cash
Flow distributed during or with respect to such Fiscal Year under Section 6.04,
but before taking into account any allocations of Net Income or Net Loss
pursuant to this Section 6.02 with respect to such Fiscal Year (or portion
thereof)), as follows:
6.02(a) Subject to Section 6.06 (including Section
6.06(f)), any Net Income of the Partnership with respect to a Fiscal Year shall
be allocated to the Partners as follows and in the following order of priority:
(i) First: If a Terminating Capital Transaction has
occurred, to the Partners, if any, with negative balances in
their Capital Accounts, pro rata, in proportion to the
negative balances in their respective Capital Accounts until
their respective Capital Account balances equal zero;
(ii) Second: To the Limited Partners, to the extent
of, and in proportion to, the amounts (if any) by which their
Unrecovered Contingent Contributions exceed their respective
Capital Account balances (after giving effect to the preceding
provisions of this Section 6.02(a));
(iii) Third: To the Partners, to the extent of, and
in proportion to, the amounts (if any) by which the sum of
their Unrecovered Contingent Contributions and their
Unrecovered Initial Contributions exceed their respective
Capital Account balances (after giving effect to the preceding
provisions of this Section 6.02(a));
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(iv) Fourth: To the Partners, in the amounts
necessary to cause their Capital Account balances (after
giving effect to the preceding provisions of this Section
6.02(a)) in excess of the sum of their respective Unrecovered
Contingent Contributions (if any) and their respective
Unrecovered Initial Contributions (if any) to be in the same
proportion as their respective Percentage Interests; and
(v) Fifth: The balance of such Net Income, if any,
shall be allocated to the Partners, pro rata, in accordance
with their Percentage Interests.
6.02(b) Subject to Section 6.06 (including Section
6.06(f), any Net Loss of the Partnership with respect to a Fiscal Year shall be
allocated to the Partners as follows and in the following order of priority:
(i) First: To the Partners, until the Capital Account
balances of the Partners in excess of the sum of their
respective Unrecovered Contingent Contributions (if any) and
their respective Unrecovered Initial Contributions (if any)
are eliminated, with such Net Loss to be allocated first so as
to cause all Partners' Capital Accounts in excess of the sum
of their respective Unrecovered Contingent Contributions and
their respective Unrecovered Initial Contributions (if any) to
be in the same proportion as their Percentage Interests, and
thereafter in accordance with the Partners' Percentage
Interests;
(ii) Second: To the Partners, until the Capital
Account balances of the Partners in excess of their respective
Unrecovered Contingent Contributions (if any) are eliminated,
with such Net Loss to be allocated first so as to cause all
Partners' Capital Accounts in excess of their respective
Unrecovered Contingent Contributions to be in the same
proportion as their respective Unrecovered Initial
Contributions, and thereafter in the same proportion as the
Partners' respective Unrecovered Initial Contributions:
(iii) Third: To the Limited Partners, to the extent
of, and in proportion to, the amounts of their respective
Unrecovered Contingent Contributions; and
(iv) Fourth: The balance of such Net Loss, if any,
shall be allocated to the Partners in accordance with their
Percentage Interests.
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6.03. ALLOCATION OF INCOME AND LOSS WITH RESPECT TO
PARTNERSHIP INTERESTS TRANSFERRED.
If any Partnership Interest is transferred during any Fiscal
Year, the Net Income or Net Loss attributable to such Partnership Interest for
such Fiscal Year shall be divided and allocated proportionately between the
transferor and the transferee based upon the number of days during such calendar
year for which each party was the owner of the interest transferred, provided
that such method of allocating Net Income and Net Loss with respect to a
transferred Partnership Interest is not prohibited under the Code or the
Regulations. Notwithstanding any provision herein to the contrary, any Book Tax
Gain or Book Tax Loss of the Partnership realized in connection with a
Terminating Capital Transaction shall be allocated only to Persons who are
holders of Partnership Interests as of the date such Terminating Capital
Transaction occurs.
6.04. DISTRIBUTION OF CASH FLOW.
6.04(a) Cash Flow of the Partnership shall be
determined for each Fiscal Year. Cash Flow as so determined shall be distributed
to the Partners as follows:
(i) First: To the Limited Partners, to the extent of,
and in proportion to, the amounts of their Unrecovered
Contingent Contributions (if any);
(ii) Second: To the Partners, to the extent of, and
in proportion to, the amounts of their Unrecovered Initial
Contributions; and
(iii) Third: To the Partners, pro rata, in accordance
with their Percentage Interests.
6.04(b) Cash Flow, if any, shall be distributed at
least annually within seventy-five (75) days after the end of each Fiscal Year,
commencing with the Fiscal Year ending December 31, 1990. Distributions of Cash
Flow made within the first seventy-five (75) days of a subsequent Fiscal Year
and designated by the General Partner as made with respect to the immediately
prior Fiscal Year shall be considered made with respect to such prior Fiscal
Year for purposes of Section 6.02 and shall be distributed based upon
Unrecovered Contingent Contributions, Unrecovered Initial Contributions, and
Percentage Interests as of the last day of such prior Fiscal Year. Cash Flow
also may be distributed, in the sole and absolute discretion of the General
Partner, at such other time or times during any Fiscal Year in anticipation of
the year-end determination thereof, and such distributions shall be subject to
year-end adjustment. The Partners agree that, within thirty (30) days after
determination by the Partnership that an overpayment was made to any Partner for
any Fiscal Year pursuant to this Section 6.04, such Partner shall repay, allow
as a credit against future distributions, or make such other adjustments as
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the General Partner determines to be appropriate to remedy such overpayment.
Likewise, appropriate adjustment shall be made to remedy any underpayment.
6.05. DISTRIBUTION OF PROCEEDS FROM TERMINATING CAPITAL
TRANSACTIONS.
6.05(a) The Net Proceeds of a Terminating Capital
Transaction and any other remaining assets of the Partnership to be distributed
to the Partners in connection with dissolution and liquidation of the
Partnership pursuant to Article XII, after the payment of, or provision for, all
debts and liabilities of the Partnership to all creditors of the Partnership
(including, without limitation, all amounts owing to a Partner under this
Agreement (other than this Article VI) or under any other agreement between the
Partnership and a Partner), the payment of expenses of liquidation of the
Partnership, and the establishment of a reasonable reserve (including, without
limitation, an amount estimated by the General Partner to be sufficient to pay
any amount reasonably anticipated to be required pursuant to Section 7.09),
shall be distributed (i) if such dissolution occurs pursuant to Section
12.01(h), by distributing to the General Partner the property contributed by it
to the Partnership as listed on Schedule A of this Agreement, and distributing
all remaining Partnership Assets to the Limited Partners pro rata in proportion
to the amounts of their respective Capital Contributions as set forth on
Schedule A of this Agreement, and (ii) if such dissolution occurs under any
other circumstances, to the Partners as follows:
(A) First: To the Limited Partners, to the extent of,
and in proportion to, the amounts of their Unrecovered
Contingent Contributions (if any);
(B) Second: To the Partners, to the extent of, and in
proportion to, the amounts of their Unrecovered Initial
Contributions; and
(C) Third: To the Partners, pro rata, in accordance
with their Percentage Interests.
Distributions pursuant to this Section 6.05(a) shall be made by the end of the
Fiscal Year in which such Terminating Capital Transaction occurs or, if later,
within ninety (90) days of such Terminating Capital Transaction.
6.05(b) Notwithstanding any provision in this Section
6.05 to the contrary, in the event that the Net Proceeds of the Terminating
Capital Transaction are to be paid to the Partnership in more than one
installment, each such installment (including any interest thereon) shall be
allocated among the Partners in accordance with their respective "Installment
Percentages". The "Installment Percentage" of each Partner shall be (i) the
aggregate amount of cash that would have been distributed to that Partner under
this Section 6.05 had the Net Proceeds of the Terminating Capital Transaction
been paid in one lump sum
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divided by (ii) the total Net Proceeds that would have been distributed to all
of the Partners under this Section under such circumstances.
6.06. SPECIAL ALLOCATION RULES.
The following allocation rules shall apply notwithstanding the
provisions of Section 6.02, and the provisions of Section 6.02 shall be applied
only after giving effect to the following rules. In the event there is a
conflict between any of the following rules, the earlier listed rule shall
govern.
6.06(a) If in any Fiscal Year there is a net increase
during such year in the amount of Minimum Gain attributable to Partner
Nonrecourse Debts, the Partner(s) that bear the economic risk of loss with
respect thereto (within the meaning of Regulations section
1.704-1T(b)(4)(iv)(k)(1)) shall be specially allocated items of Partnership loss
or deduction in an amount equal to the excess of (i) the amount of such net
increase, over (ii) the aggregate amount of any distributions during such Fiscal
Year to such Partner(s) of the proceeds of such debt that are allocable to such
increase in Minimum Gain. Items to be so allocated shall be determined in
accordance with Regulations section 1.704-1T(b)(4)(iv)(h).
6.06(b) If in any Fiscal Year there is a net decrease
in the Partnership's Minimum Gain attributable to Nonrecourse Liabilities during
such Fiscal Year, each Partner shall be specially allocated items of Partnership
income and gain for such Fiscal Year (and, if necessary, for subsequent Fiscal
Years) in proportion to, and to the extent of, an amount equal to the greater of
the following:
(i) the portion of such Partner's share of the net
decrease in such Minimum Gain during such Fiscal Year (as such
share is determined pursuant to Regulations section
1.704-1T(b)(4)(iv)(f)) that is allocable to the disposition of
Partnership property subject to one or more Nonrecourse
Liabilities (as such allocable portion is determined pursuant
to Regulations section 1.704-1T(b)(4)(iv)(e)(2)); or
(ii) such Partner's Excess Negative Balance at the end
of such Fiscal Year.
It is the intent of the Partners that items to be so allocated shall be
determined and the allocations made in accordance with Regulations section
1.704-1T(b)(4)(iv)(e).
6.06(c) If in any Fiscal Year there is a net decrease
in the Partnership's Minimum Gain attributable to Partner Nonrecourse Debts
during such Fiscal Year, the Partner(s) that bear the economic risk of loss with
respect to such Partner Nonrecourse Debts (within the meaning of Regulations
section 1.704-1T(b)(4)(iv)(k)(1)) shall be specially allocated items of
Partnership income and gain for such Fiscal Year (and, if necessary, for
subsequent Fiscal Years) in an amount equal to the greater of the following:
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(i) the net decrease in such Minimum Gain during such
Fiscal Year that is allocable to the disposition of
Partnership property subject to one or more Partner
Nonrecourse Debts (as such allocable portion is determined
pursuant to Regulations section 1.704-1T(b)(4)(iv)(h)(6)); or
(ii) such Partner's (Partners') Excess Negative
Balance at the end of such Fiscal Year.
It is the intent of the Partners that items to be so allocated shall be
determined and the allocation made in accordance with Regulations section
1.704-1T(b)(4)(iv)(h)(6).
6.06(d) For purposes of allocating Partnership
Nonrecourse Liabilities among the Partners pursuant to Regulations section
1.752-1T(a)(2)(i), the respective interests of the Partners in Partnership
profits shall be equal to their respective Percentage Interests as of the date
with respect to which the determination is made.
6.06(e) No Net Loss or Partnership deductions for any
Fiscal Year shall be allocated to any Partner to the extent such allocation
would cause or increase an Excess Negative Balance in such Partner's Capital
Account. In the event a Partner receives with respect to a Fiscal Year an
adjustment, allocation, or distribution (whether or not expected) described in
subparagraphs (4), (5), or (6) of Regulations section 1.704-1(b)(2)(ii)(d) that
causes or increases an Excess Negative Balance in such Partner's Capital
Account, such Partner shall be specially allocated for such Fiscal Year (and if
necessary, in subsequent Fiscal Years) items of income and gain in an amount and
manner sufficient to eliminate such Excess Negative Balance as promptly as
possible as provided in Regulations section 1.704-1(b)(2)(ii)(d).
6.06(f) For purposes of determining the balances in the
Capital Accounts of the Partners in order to allocate Net Income or Net Loss
pursuant to Section 6.02, each Partner's Capital Account balance shall be deemed
to include any amount that such Partner is deemed to be obligated to restore
pursuant to the penultimate sentences of sections 1.704-1T(b)(iv)(f) and
1.704-1T(b)(4)(iv)(h)(5) of the Treasury Regulations (determined after taking
into account any changes during such year in Minimum Gain).
6.06(g) Notwithstanding the provisions of Section 6.02,
in the event that any fees, interest, or other amounts paid to a Partner, or an
Affiliate of a Partner, pursuant to this Agreement, or any agreement between the
Partnership and the Partner or Affiliate providing for the payment of such
amounts, and deducted by the Partnership for federal or other income tax
purposes, whether in reliance on sections 162, 163, 707(a), and/or 707(c) of the
Code or otherwise, are disallowed as deductions to the Partnership on its
applicable income tax return for the Fiscal Year in or with respect to which
such amounts are claimed, and are treated instead as Partnership distributions,
then there shall be allocated to the Partner who received (or whose Affiliate
received) such payments, prior to the
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allocations pursuant to Sections 6.02(a) and 6.02(b), an amount of gross income
of the Partnership for the Fiscal Year in or with respect to which such claimed
deduction was disallowed equal to the amount of such deduction that was so
disallowed and treated as a Partnership distribution.
6.06(h) Notwithstanding the provisions of Section 6.02,
in the event that the Partnership is a party to an agreement with a Partner or
an Affiliate of a Partner and the Partnership is deemed to have taxable income
in respect of such agreement in excess of the amount payable to the Partnership
by such Partner or Affiliate thereunder, then:
(i) there shall be allocated to the Partner who is a
party (or whose Affiliate is a party) to such agreement, prior
to the allocations pursuant to Sections 6.02(a) and 6.02(b),
an amount of gross income of the Partnership for the Fiscal
Year in or with respect to which the Partnership is deemed to
have such additional income equal to the amount of such
additional income; and
(ii) the Partnership shall be deemed to have
distributed to such Partner, in addition to all other amounts
distributable hereunder, during such Fiscal Year an additional
amount of cash equal to the amount of such additional income.
6.06(i) Notwithstanding the provisions of Section 6.02,
in the event that the Partnership is a party to an agreement with a Partner or
an Affiliate of a Partner and the Partnership is deemed by any applicable taxing
authority to have a tax deduction in respect of either amounts deemed payable by
the Partnership under such agreement or amounts distributable to the Partner
under this Agreement, then:
(i) there shall be allocated to the Partner who is
the party (or whose Affiliate is a party) to such agreement or
who is to receive the amount distributable under this
Agreement, prior to the allocations pursuant to Sections
6.02(a) and 6.02(b), an amount of deductions of the
Partnership for the Fiscal Year in or with respect to which
the Partnership is deemed to have such additional deduction
equal to the amount of such additional deduction; and
(ii) the Partnership shall be deemed to have received
from such Partner, in addition to all other amounts
contributed hereunder, an additional contribution of cash
equal to the amount of such additional deduction.
6.06(j) Except as otherwise specifically provided in
this Agreement or applicable Treasury Regulations and as provided in the next
sentence below, the distributive share of a Partner of each specific deduction
and item of income, gain, loss, and credit of the Partnership for federal income
tax purposes for
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any Fiscal Year and each other item taken into account in computing Net Income
or Net Loss for such Fiscal Year (including, without limitation, income exempt
from federal income tax and expenditures described in section 705(a)(2)(B) of
the Code or treated as such expenditures in the Regulations under section 704(b)
of the Code) shall be the same as such Partner's proportionate share (determined
as set forth in Section 6.02) of Net Income or Net Loss, as the case may be, for
such Fiscal Year, provided that if there is not Net Income or Net Loss for such
Fiscal Year, all such items shall be allocated among the Partners in accordance
with their respective Percentage Interests. Notwithstanding the foregoing, (i)
any income recognized pursuant to sections 1245 and 1250 of the Code with
respect to a Fiscal Year and allocated to the Partners pursuant to Section 6.02
shall be allocated, to the extent possible, to the Partners to whom (or to whose
predecessors in interest) the prior depreciation deductions giving rise to such
income or recapture were allocated, provided that the amount of income allocable
to a Partner pursuant to this clause with respect to a Fiscal Year shall not
exceed the total amount of income otherwise allocable to such Partner under
Sections 6.02 and 6.06 with respect to such Fiscal Year, and (ii) any foreign
tax credits for any Fiscal Year shall be allocated to the Partners in accordance
with their respective Percentage Interests at the time the foreign tax giving
rise to such credit was paid.
6.06(k) It is the intent of the Partners that each
Partner's distributive share of income, gain, loss, and credit (or items
thereof) shall be determined and allocated in each Fiscal Year in accordance
with this Article VI to effect the distributions (including distributions of
proceeds of Terminating Capital Transactions) in the order of priority
contemplated by Section 6.04(a) to the extent permitted by Code section 704(b)
and the applicable Regulations. In order to achieve the contemplated
distributions provided for in this Article VI, the General Partner is authorized
and directed to allocate income, gain, loss, and credit (or items thereof) with
respect to any Fiscal Year in a manner different from that otherwise provided
for in this Article VI if, and to the extent that, (i) an allocation of income,
gain, loss, or credit (or items thereof) in the manner provided for in this
Article VI would not achieve the intended economic result desired by the
Partners or (ii) based on the advice of the Partnership's counsel or
accountants, an allocation provided for in this Article VI is unlikely to be
respected under Code section 704(b) and the alternative allocation to be made by
the General Partner is reasonably likely to be respected (referred to as a "new
allocation"). The General Partner is authorized to make a new allocation under
this Section 6.06(k) only after having determined both (i) that the new
allocation either more accurately effects all distributions in the order of
priority contemplated by the Partners as set forth in Section 6.04(a) or is not
inconsistent with those distributions and (ii) that the new allocation will not
have a material adverse effect on the economic interests of the Partners
(including, without limitation, causing them to recognize income that they would
not otherwise be required to recognize or to lose the benefit of deductions that
they otherwise would have been permitted to recognize). New allocations by the
General Partner in accordance with this Section 6.06(k) shall not require the
consent of the other Partners.
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6.07. CONTRIBUTED PROPERTY; REVALUATIONS PURSUANT TO SECTION
704(B) REGULATIONS.
6.07(a) In the event that any property contributed to
the Partnership or revalued pursuant to the provisions of Regulations section
1.704-1(b)(2)(iv)(f) has a Carrying Value that differs from the Adjusted Basis
of such property at the time of its contribution or revaluation, any income,
depreciation, gain, or loss with respect to such property shall, solely for tax
purposes, be allocated among the Partners in a manner that takes such difference
into account and is consistent with Code section 704(c), the Regulations
thereunder, and Regulations section 1.704-1(b)(2)(iv)(f)(4),
1.704-1(b)(2)(iv)(g), and 1.704-1(b)(4)(i). The allocations made pursuant to
this Section 6.07 shall be made solely for tax purposes and shall not affect or
in any way be taken into account in computing any Partner's Capital Account or
share of Net Income, Net Loss, Book Tax Gain, Book Tax Loss, or other
allocations or distributions under this Agreement.
6.07(b) The Partners acknowledge that the Carrying
Value of the assets contributed to the Partnership by the General Partner
pursuant to Section 5.01(a) (the "Contributed Assets") exceeds the Adjusted
Basis of such assets at the time of their contribution to the Partnership (such
excess being referred to as the "Built-in Gain"). The Adjusted Basis of such
assets shall be determined and agreed to between the General Partner and the
Review Committee (as defined in Section 7.11). Without limiting Section 6.07,
the General Partner acknowledges that it will be required to be specially
allocated income of the Partnership, not later than the time at which the
Contributed Assets are disposed of by the Partnership, an amount of taxable
income and gain equal to the lesser of (i) the Built-in Gain, reduced by any
depreciation and/or amortization deductions with respect to the Contributed
Assets specially allocated to Partners other than the General Partner pursuant
to Section 704(c) of the Code, the Regulations thereunder, or Regulations
sections 1.704-1(b)(2)(iv)(f), 1.704-1(b)(2)(iv)(g), or 1.704-1(b)(4)(i), which
special allocation of depreciation and/or amortization shall be made to the
extent required by the Code and the Regulations thereunder notwithstanding any
provision of this Agreement, or (ii) the taxable gain recognized by the
Partnership in connection with the disposition of the Contributed Assets.
6.08. TAXES.
6.08(a) The General Partner is authorized and directed
to cause the Partnership to withhold from or pay on behalf of any Partner the
amount of federal, state, local or foreign taxes that the General Partner, after
consultation with such Partner, reasonably believes the Partnership is required
to withhold or pay with respect to any amount distributable or allocable to such
Partner pursuant to this Agreement, including, without limitation, any taxes
required to be paid by the Partnership pursuant to sections 1441, 1442, 1445, or
1446 of the Code and any taxes imposed by any taxing jurisdiction on the
Partnership as an entity. Without limiting the foregoing, the General Partner
shall cause the Partnership to withhold
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(and remit to the appropriate governmental authority) from amounts otherwise
distributable to a Partner any taxes that such Partner notifies the General
Partner in writing should be withheld, which notice shall specifically set
forth, inter alia, the rate at which tax should be withheld and the name and
address to which amounts withheld should be remitted. Any amount paid on behalf
of a Partner pursuant to this Section 6.08 (except to the extent withheld from
an amount that otherwise would have been distributed by the Partnership to such
Partner) shall constitute an advance by the Partnership to such Partner that
shall be secured by the Partner's Partnership Interest. An advance to a Partner
pursuant to this Section 6.08(a) shall be repaid to the Partnership, in whole or
in part, as determined by the General Partner in its sole discretion, either (i)
out of any distributions from the Partnership which the Partner may be or become
entitled to receive, or (ii) by the Partner in cash upon demand by the
Partnership. Any such advance shall bear interest at the rate equal to two (2)
percentage points above the "Federal Short-Term Rate" as defined in Code section
1274(d)(1)(C)(i) or the maximum rate permitted under applicable law, whichever
is less, calculated upon the outstanding principal balance of such advance as of
the first day of each month.
6.08(b) The Partners agree to cooperate fully with all
efforts of the Partnership to comply with its tax withholding and information
reporting obligations and to provide the Partnership with such information as
the General Partner may reasonably request from time to time in connection with
such obligations. Without limiting the foregoing, each Partner shall complete a
Certification of Non-foreign Status (to the extent applicable) in such form as
may be reasonably requested by the General Partner (or shall provide such other
information as the General Partner may require) at the time that it executes
this Agreement, and each permitted transferee of a Partnership Interest pursuant
to Article X, whether or not such transferee is admitted to the Partnership as a
Partner, shall complete such Certification at the time of its acquisition of an
interest in the Partnership. Any Partner or permitted transferee of a
Partnership Interest that does not provide such a Certification with this
Section 6.08(b) shall be liable to the Partnership for the amount of any taxes,
penalties, and interest for which the Partnership becomes liable as a result of
any such failure, provided that the foregoing shall not relieve the General
Partner of responsibility for withholding (and remitting to the appropriate
governmental authority) from amounts otherwise distributable to a Partner any
amount that such Partner specifically notified the General Partner pursuant to
Section 6.08(a) should be so withheld and remitted.
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ARTICLE VII
MANAGEMENT
7.01. MANAGEMENT AND CONTROL OF PARTNERSHIP BUSINESS.
7.01(a) Except as otherwise expressly provided or
limited by the provisions of this Agreement, the General Partner shall have
full, exclusive, and complete discretion in the management and control of the
business and affairs of the Partnership, to make all decisions affecting the
business and affairs of the Partnership, and to take all such actions as it
deems necessary or appropriate to accomplish the purposes of the Partnership as
set forth herein. The General Partner shall use its best efforts to continue the
Partnership's existence for the term specified in Section 4.01 (unless the
Partnership is previously dissolved or wound-up pursuant to this Agreement) and
to carry out the purposes of the Partnership and shall devote to the management
of the business and affairs of the Partnership such time as shall be required
for the operation thereof. Except as otherwise expressly set forth in this
Agreement, the Limited Partners shall not have any authority, right, or power to
bind the Partnership, or to manage or control, or to participate in the
management or control of, the business and affairs of the Partnership.
7.01(b) The General Partner shall be under a fiduciary
duty and obligation to conduct the affairs of the Partnership in the best
interests of the Partnership and of the Limited Partners, including the
safekeeping of all Partnership funds and assets (whether or not in the immediate
possession or control of the General Partner) and the use thereof for the
exclusive benefit of the Partnership.
7.01(c) The General Partner shall at all times conduct
its affairs and the affairs of the Partnership in such a manner that no Limited
Partner or Affiliate of any Limited Partner shall have any personal liability
with respect to any Partnership indebtedness (provided, however, that nothing
herein shall be construed as requiring that the General Partner attempt to
control or influence the conduct of any Limited Partner even if the General
Partner believes that actions of the Limited Partner would cause the Limited
Partner to have such personal liability). The General Partner shall use its best
efforts, in the conduct of the Partnership's business, to put all suppliers and
other Persons with whom the Partnership does business on notice that the Limited
Partners and their Affiliates are not liable for Partnership obligations, and
all agreements to which the Partnership is a party shall include a statement to
the effect that the Partnership is a limited partnership organized under the
laws of Delaware.
7.01(d) The General Partner shall use its best efforts
to assure that in correspondence, contracts, agreements and other documents
relating to the Partnership (1) it shall plainly appear, or be so stated, that
the Partnership is a
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limited partnership organized under the laws of Delaware, (2) the full name of
the Partnership shall at all times be used and (3) wherever appropriate it shall
be expressly stated that, for purposes of determining the liability of the
Limited Partners, the laws of Delaware shall be controlling.
7.01(e) The General Partner shall cause the Partnership
to be protected by adequate public liability, property damage and other
insurance, including insurance necessary to continue and conduct the business of
the Partnership in a reasonable and prudent manner.
7.01(f) The General Partner warrants that it will
maintain in full force and effect the Satellite Authorizations. The General
Partner has assigned to the Partnership the FCC License, and shall use its best
efforts to cause the Partnership to maintain the Satellite Authorizations in
full force and effect.
7.01(g) The General Partner shall take all necessary
actions to (x) successfully assure the completion of the International
Telecommunications Union procedures with respect to other satellite systems for
all Partnership services prior to the launch of each of the Partnership's
satellites as well as, at an appropriate time, for any other Partnership service
that may be proposed within the lifetime of such satellites, and (y) obtain all
other Satellite Authorizations.
7.01(h) The General Partner shall take all necessary
actions to enforce the provisions of the Satellite Construction Contract for the
benefit of the Partnership and all of the Partners (subject to any requirements
set forth in the credit documents with respect to the financing of the
Partnership's proposed satellites).
7.01(i) The General Partner shall not, either on its
own behalf or on behalf of the Partnership, enter into contracts or agreements
with any Person or Persons which conflict with or prejudice in any material
respect the rights of the Limited Partners under the provisions of this
Agreement, the Communications Satellite Capacity Agreements, Contingent
Communications Satellite Capacity Agreements or Capacity Option Agreements, or
any other contract or agreement between the Partnership and a Partner, and
warrants that it has not done so as of the date hereof.
7.02. POWERS OF GENERAL PARTNER.
Subject to the limitations of Section 7.04 and any other
express limitation on the authority of the General Partner set forth herein, the
General Partner (acting on behalf of the Partnership) shall have the right,
power, and authority, in the management of the business and affairs of the
Partnership, to do or cause to be done any and all acts, at the expense of the
Partnership, deemed by the General Partner to be necessary or appropriate to
effectuate the purposes of the Partnership. Subject to the provisions of this
Agreement, all decisions made and
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actions taken on behalf of the Partnership by the General Partner shall be
binding upon the Partnership (provided, however, that the powers of the General
Partner shall not be construed as permitting the General Partner to directly
bind any Limited Partner in such Limited Partner's capacity as an entity
separate from the Partnership). The power and authority of the General Partner
pursuant to this Agreement shall be liberally construed to encompass all acts
and activities in which a limited partnership may engage under the Delaware
RULPA. The power and authority of the General Partner shall include, without
limitation, the power and authority on behalf of the Partnership:
7.02(a) to do any acts or things that the Partnership
has power to do pursuant to Section 3.02;
7.02(b) to purchase and maintain, in its sole and
absolute discretion (subject to any obligation under Section 7.01(e) hereof) and
at the expense of the Partnership, liability, indemnity, and any other
insurance, sufficient to protect the Partnership, the General Partner, their
respective officers, directors, employees, agents, and Affiliates, or any other
Person, from those liabilities and hazards which may be insured against in the
conduct of the business and the management of the business and affairs of the
Partnership;
7.02(c) to make, execute, deliver, perform, assign,
acknowledge, and file on behalf of the Partnership any and all documents or
instruments of any kind which the General Partner may deem necessary or
appropriate in carrying out the purposes of the Partnership, including, without
limitation, powers of attorney, agreements of indemnification, sales contracts,
deeds, options, loan obligations, mortgages, deeds of trust, notes, documents,
or instruments of any kind or character, and amendments thereto (and no person,
firm or corporation dealing with the General Partner shall be required to
determine or inquire into the authority or power of the General Partner to bind
the Partnership or to execute, acknowledge, or deliver any and all documents in
connection therewith);
7.02(d) to possess and exercise any additional rights
and powers of a general partner under the partnership laws of Delaware
(including, without limitation, the Delaware RULPA) and any other applicable
laws, to the extent not inconsistent with this Agreement.
7.03. POWER OF ATTORNEY.
7.03(a) In furtherance of the foregoing, each of the
Limited Partners hereby irrevocably makes, constitutes and appoints and empowers
the General Partner, and the President, any Vice President and the Treasurer of
the General Partner, and any successor of the General Partner as general partner
of the Partnership acting singly or jointly, in each case with full power of
substitution, such Limited Partners true and lawful agent and attorney-in-fact
to negotiate,
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execute, acknowledge, deliver and file, on behalf of each such Limited Partners,
any and all of the following:
(i) all counterparts of this Agreement, and any
amendment or restatement thereof, including all certificates
and instruments, which the General Partner deems appropriate
to form, qualify, or continue the Partnership as a limited
partnership (or a partnership in which the Limited Partners
will have limited liability comparable to that provided by the
Delaware RULPA) in the jurisdictions in which the Partnership
may conduct business or in which such formation,
qualification, or continuation is, in the opinion of the
General Partner, necessary or desirable to protect the limited
liability of the Limited Partners;
(ii) all amendments to this Agreement adopted in
accordance with Section 13.09 and all instruments which the
General Partner deems appropriate to reflect a change or
modification of the Agreement in accordance with the terms
hereof; or
(iii) all documents or instruments which the General
Partner deems appropriate to reflect the admission of a
Partner in accordance with this Agreement, the dissolution of
the Partnership (including a certificate of cancellation),
sales or transfers of Partnership property, sales or transfers
of Partnership Interests, or the initial amount or increase or
reduction in amount of any Partner's Capital Contribution or
reduction in any Partner's Capital Account in accordance with
the terms of this Agreement.
7.03(b) The appointment by all Limited Partners of the
General Partner (and any successor General Partner), and the President, any Vice
President and the Treasurer of the General Partner as attorney-in-fact shall be
deemed to be a power coupled with an interest, in recognition of the fact that
each of the Limited Partners under this Agreement will be relying upon the power
of the General Partner to act as contemplated by this Agreement in any filing
and other action by it on behalf of the Partnership, and shall survive, and not
be affected by the subsequent bankruptcy, death, incapacity, disability,
adjudication of incompetence or insanity, or dissolution of any Person hereby
giving such power and the transfer of all or any part of the Partnership
Interest of such Person; provided, however, that in the event of the transfer by
a Limited Partner of all of such Limited Partner's Partnership Interest, the
foregoing power of attorney of a transferor Partner shall survive such transfer
only until such time as the transferee shall have been admitted to the
Partnership as a Limited Partner and all required documents and instruments
shall have been duly executed, filed, and recorded to effect such substitution.
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7.04. LIMITATION ON AUTHORITY OF GENERAL PARTNER.
Notwithstanding anything in this Agreement to the contrary,
but subject to the provisions of Section 7.11(b) herein, the General Partner
shall not, without the prior written consent of the Limited Partners holding a
majority of the total Percentage Interests then held by the Limited Partners,
cause or permit the Partnership to:
(a) dissolve and wind-up the affairs of the Partnership,
except as provided in Article XII;
(b) merge or consolidate with any other partnership or
other entity;
(c) sell, assign, lease or otherwise dispose of a
material portion of the Partnership Assets other than
in the ordinary course of the Partnership's business
(in any transaction or series of related
transactions);
(d) cause the Partnership to incur (in any transaction or
series of related transactions) any indebtedness in
excess of $25 million; provided, however, that this
provision shall not in any way restrict the General
Partner's authority to cause the Partnership to incur
indebtedness in connection with the initial financing
(or refinancing in accordance with Section 7.04(e))
of the Partnership's proposed satellite system;
(e) cause the Partnership to refinance (in any
transaction or series of related transactions) any
indebtedness of the Partnership in excess of $50
million other than on terms (taken as a whole) which
are no less favorable to the Partnership than the
terms (taken as a whole) of the indebtedness being
refinanced; in making the determination of whether
such terms are no less favorable to the Partnership,
the General Partner may, but shall not be required
to, obtain the opinion of an
internationallyrecognized investment banker engaged
by the Partnership, which opinion shall be conclusive
for purposes of this subsection;
(f) enter into a material agreement, or use any material
portion of the Partnership Assets in a manner, which
is not consistent with the purposes of the
Partnership as set forth in Section 3.01; or
(g) commingle the funds or accounts of the Partnership
with any funds or accounts of the General Partner or
any of its Affiliates.
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7.05. WORKING CAPITAL RESERVE.
The General Partner shall have the right to set up a Working
Capital Reserve and to set aside therein such Partnership funds as the General
Partner determines to be reasonable in connection with the operation of the
business of the Partnership, including, without limitation, funds for the
acquisition, improvement, development, and replacement of property, for the
repayment of loans and other indebtedness, for security deposits and other
necessary escrows and deposits, and for meeting other reasonably anticipated
expenses. The amount of funds set aside in the Working Capital Reserve during
any Fiscal Year shall not exceed the amount provided in the Ten Year Projection
or most recent Approved Budget, as applicable, as operating expenses for the
immediately following Fiscal Year. Any funds set aside for such Working Capital
Reserve may be invested by the General Partner with a view to the appropriate
degree of safety of and return on such invested funds, and such funds shall not
be available for current distribution under Section 6.04; provided, however,
some or all of such funds may subsequently be made available for distribution
pursuant to Section 6.04 should the General Partner, in its sole and absolute
discretion, so elect.
7.06. OTHER ACTIVITIES OF PARTNERS.
Except as otherwise provided is this Section 7.06, any Limited
Partner or Affiliate thereof may have other business interests or may engage in
other business ventures of any nature or description whatsoever, whether
presently existing or hereafter created, and may compete, directly or
indirectly, with the business of the Partnership. The General Partner shall not
engage in any business other than management of the business and affairs of the
Partnership without the prior written unanimous consent of the Limited Partners.
Neither the General Partner nor Orion Network Systems, Inc. may have other
business interests or may engage in other business ventures which compete,
directly or indirectly, with the business of the Partnership; provided, however,
that (i) this provision shall not prohibit Orion Network Systems, Inc. from
having business interests or engaging in any business (x) in which the
Partnership is not then legally permitted to engage or in which the Partnership
is not then able technically to engage, or (y) which is permitted by Section
7.07(x) to be engaged in by an Affiliate of the General Partner; and (ii) in the
event that a business interest of Orion Network Systems, Inc. or a business
venture in which it is engaged competes, directly or indirectly, with the
business of the Partnership as a result of the Partnership entering into a new
business or taking other actions, Orion Network Systems, Inc. shall offer to
sell such business interest or its interest in such business venture within a
reasonable period of time to the Partnership, which, at the option of the
Partnership, pursuant to the approval of an LP Majority, may purchase such
business interest or interests in such business venture, at fair market value
(as determined by a mutually agreed appraiser). If the Partnership declines such
offer, Orion Network Systems shall exercise its best efforts to sell such
business interest or interests in such business venture to a third party, and,
if it is unable to do so, may continue to hold such
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business interest or engage in such business venture. No Limited Partner or
Affiliate thereof shall incur any liability to the Partnership as a result of
such Limited Partner's or Affiliate's pursuit of such other business interest,
ventures and competitive activity, and nothing in this Agreement shall be
construed as granting the Partnership or the other Partners any right to
participate in such other business ventures or to receive or share in any income
or profits derived therefrom.
7.07. TRANSACTIONS WITH GENERAL PARTNER OR AFFILIATES.
The Partnership shall not be permitted in the normal course of
its business to enter into transactions with the General Partner or with any
Affiliate of the General Partner or with any Affiliate of an Affiliate of the
General Partner without the written consent of an LP Majority, except that the
Partnership shall be permitted to enter into (w) Communications Satellite
Capacity Agreements, Contingent Communications Satellite Capacity Agreements and
Capacity Option Agreements with any Affiliate of the General Partner, (x) other
contracts, agreements or transactions with any Affiliate of the General Partner
if each Limited Partner is or becomes, or has been or is offered the opportunity
to become, a party to such contract, agreement or transaction (or a contract,
agreement or transaction containing substantially similar terms, including any
contract, agreement or transaction where the amounts of services, property, cash
or other items to be provided to Limited Partners are pro rata based upon
Percentage Interests), (y) contracts, agreements or transactions with any
Affiliate of the General Partner relating to the provision of management or
similar support by such Affiliate to the General Partner within the limits of
the then-applicable budget of the Partnership, to the extent that the provision
of such services by the Affiliate does not conflict with the duty of the General
Partner to directly manage the affairs of the Partnership, and (z) contracts,
agreements or transactions with any Affiliate of the General Partner relating to
the provision of marketing or sales representation or operations services within
the United States.
7.08. LIABILITY OF GENERAL PARTNER AND AFFILIATES TO
PARTNERSHIP AND LIMITED PARTNERS.
Except as otherwise expressly agreed in writing by the
Partners, neither the General Partner nor any of its Affiliates, nor any of
their respective partners, officers, directors, employees, or agents, shall be
liable to the Partnership or to the Limited Partners for any losses sustained or
liabilities incurred as a result of any act or omission of any of such Persons,
so long as the conduct of such Person did not constitute bad faith, fraud, gross
negligence, willful misconduct or breach of fiduciary duty (either as
interpreted under Delaware law, this Agreement or any other contract between the
Partnership and Limited Partners generally).
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7.09. INDEMNIFICATION OF GENERAL PARTNER AND LIMITED
PARTNERS.
7.09(a) The Partnership shall indemnify and hold
harmless the General Partner and its Affiliates and their respective partners,
officers, directors, employees and agents (individually, in each case, an
"Indemnitee") to the fullest extent permitted by law from and against any and
all losses, claims, demands, costs, damages, liabilities (joint or several),
expenses of any nature (including attorneys' fees and disbursements), judgments,
fines, settlements, and other amounts arising from any and all claims, demands,
actions, suits, or proceedings, whether civil, criminal, administrative or
investigative, in which the Indemnitee may be involved or threatened to be
involved as a party or otherwise, arising out of or incidental to the business
or activities of or relating to the Partnership, regardless of whether the
Indemnitee continues to be the General Partner or an Affiliate thereof or one of
their respective partners, officers, directors, employees and agents at the time
any such liability or expense is paid or incurred, if (x) a final,
non-appealable judgment favorable to the Indemnitee(s) is entered in a court of
competent jurisdiction, or (y) pursuant to a request by any Limited Partner or
the General Partner for such a determination by an Independent Party, the
Independent Party determines with regard to the Indemnitee's conduct which gave
rise to or resulted in any actual or threatened action, case, complaint or other
proceeding which was the subject of a final settlement, that had the
Indemnitee(s) not settled the dispute at issue, they would have received a
final, non-appealable judgment in their favor.
7.09(b) Expenses incurred by an Indemnitee in defending
any claim, demand, action, suit, or proceeding subject to this Section 7.09,
other than any such proceeding in which any claim is made by a Limited Partner
against the Indemnitee, shall, from time to time and upon request by the
Indemnitee, be advanced by the Partnership prior to the final disposition of
such claim, demand, action, suit, or proceeding, upon receipt by the Partnership
of an undertaking by or on behalf of the Indemnitee to repay such amount
promptly, with interest calculated at the rate equal to two (2) percentage
points above the "Federal Short-Term Rate" as defined in Code ss.
1274(d)(1)(C)(i) or the maximum rate permitted under applicable law, whichever
is less, calculated upon the outstanding principal balance of such amount, if it
shall be determined in a judicial proceeding or a binding arbitration or by the
Independent Party pursuant to Section 7.09(a) that such Indemnitee is not
entitled to be indemnified as authorized in this Section 7.09. In the event that
an Indemnitee does not receive from the Partnership advances on expenses
pursuant to this Section 7.09(b) because a Limited Partner asserted a claim
against the Indemnitee in the proceeding at issue, and the Indemnitee is
entitled to indemnification pursuant to Section 7.09(a), the Partnership shall
reimburse the Indemnitee for all expenses incurred in defending the proceeding,
plus interest at the rate equal to two (2) percentage points above the "Federal
Short-Term Rate" as defined in Code ss. 1274(d)(1)(C)(i), or the maximum rate
permitted under applicable law, whichever is less.
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7.09(c) The indemnification provided by this Section
7.09 shall be in addition to any other rights to which an Indemnitee may be
entitled under any agreement, vote of the Partners, as a matter of law or
equity, or otherwise, both as to an action in the Indemnitee's capacity as the
General Partner or an Affiliate thereof, and as to an action in another
capacity, and shall continue as to an Indemnitee who has ceased to serve in such
capacity and shall inure to the benefit of the heirs, successors, assigns, and
administrators of the Indemnitee.
7.09(d) An Indemnitee pursuant to this Section 7.09
shall not be denied indemnification in whole or in part under this Section 7.09
or otherwise by reason of the fact that the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the transaction
was otherwise permitted or not expressly prohibited by the terms of this
Agreement.
7.09(e) The General Partner including its Affiliates
(other than any executive officer or director of the General Partner) shall
fully indemnify and hold harmless the Limited Partners and their Affiliates and
their respective partners, officers, directors, employees and agents to the
fullest extent permitted by law from and against any and all losses, claims,
demands, costs, damages, liabilities (joint or several), expenses of any nature
(including attorneys' fees and disbursements), judgments, fines, settlements,
and other amounts including, but not limited to, those arising directly or
indirectly from or relating to any civil, criminal, administrative or
investigative proceeding, arising out of or incidental to conduct by the General
Partner or one of its Affiliates with respect to the business or activities of
or relating to the Partnership which constituted fraud, bad faith, gross
negligence, willful misconduct or breach of fiduciary duty (either as
interpreted under Delaware law, this Agreement or any other contract between the
Partnership and Limited Partners generally).
7.09(f) The provisions of this Section 7.09 are for the
benefit of the indemnitees as set forth herein and shall not be deemed to create
any rights for the benefit of any other Persons.
7.10. NO MANAGEMENT BY LIMITED PARTNERS.
7.10(a) No Limited Partner shall take part in the
day-to-day management, operation or control of the business and affairs of the
Partnership or have any right, power, or authority to act for or on behalf of or
to bind the Partnership or transact any business in the name of the Partnership.
In the event any laws, rules or regulations applicable to the Partnership, or to
its sale or issuance of interests in the Partnership, require a Limited Partner,
or any group or class thereof, to have certain rights, options, privileges or
consents not granted by the terms of this Agreement, then such Limited Partners
shall have and enjoy such rights, options, privileges and consents so long as
(but only so long as) the existence thereof does not result in a loss of the
limitation on liability enjoyed by the Limited
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Partners under the Delaware RULPA or the applicable laws of any other
jurisdiction.
7.10(b) No Limited Partner (if not a natural person,
its directors, officers, partners, etc.) shall act as an employee of the
Partnership if such Limited Partner's functions, directly or indirectly, relate
to the Partnership's international communications satellite facilities.
7.10(c) No Limited Partner shall serve, in any material
capacity, as an independent contractor or agent with respect to the management
or operation of the Partnership's international communications satellite
facilities (except with regard to tracking, telemetry and command and related
services).
7.10(d) No Limited Partner shall communicate with the
General Partner on matters pertaining to the day-to-day operations of the
Partnership's international communications satellite facilities.
7.10(e) No Limited Partner shall perform any services
to the Partnership materially relating to the management or operation of the
Partnership's international communications satellite facilities, with the
exception of making loans to, or acting as a surety for, the Partnership.
7.10(f) No Limited Partner shall become actively
involved in the management or operation of the Partnership's international
communications satellite facilities.
7.10(g) The General Partner may contract with any
Limited Partner or any Affiliate of any Limited Partner for any purpose not
otherwise restricted by this Agreement, in particular for provision of customer
support, marketing and related services with respect to the sale of the
Partnership's international communications satellite facilities; provided,
however, that any such activity undertaken by a Limited Partner shall be
pursuant to independently-executed agreements which shall be non-exclusive in
nature and under which any sales to the Partnership's customers shall be
governed by contractual terms and conditions set by the General Partner.
7.11. PARTNERS PLANNING AND POLICY REVIEW COMMITTEE.
7.11(a) A committee of the Partnership known as the
Partners Planning and Policy Review Committee (the "Review Committee"),
consisting of one representative of each Partner, shall be established for the
purposes set forth in Section 7.11(b). Review Committee representatives shall be
entitled to bring to Review Committee meetings such staff and other personnel
which they reasonably deem necessary. The Review Committee shall meet at such
times, dates and places as the General Partner may deem appropriate. Meetings of
the Review Committee may be called by the General Partner from time to time and
shall be called by the
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General Partner upon its receipt of a request in writing signed by at least two
Limited Partners holding in the aggregate at least [twenty percent (20%)] of the
total Percentage Interests then held by the Limited Partners, which request
shall specify the purpose of such a meeting. Notification of a meeting of the
Review Committee shall be sent by the General Partner, not less than fifteen
(15) days prior to the date of such meeting, to the representatives of the
Limited Partners at their record addresses (as may be changed by written notice
to the General Partner) and shall specify the time, date, place and purpose of
such meeting. Notification of a meeting called at the request of the requisite
number of Limited Partners shall be sent within ten (10) business days after the
General Partner's receipt of such a request and such meeting shall be held not
less than fifteen (15) nor more than thirty (30) days after receipt of such
request. The members of the Review Committee may designate one of such members
as chairman of the Review Committee and may establish such other procedures for
the functioning of the Review Committee as the members of the Review Committee
may approve, subject to the requirements and approval procedures of this Section
7.11. Voting of the representatives of the Limited Partners may be in person or
by proxy, duly signed by the representatives of the Limited Partners or their
respective attorneys-in-fact. All actions that could be taken at a meeting of
the Review Committee may also be taken by the written consent of the
representatives of Limited Partners holding such Percentage Interests as is
required to take such action pursuant to this Section 7.11.
7.11(b) The General Partner shall submit the following
actions to the Review Committee which, by vote of the representatives of an LP
Majority (except as set forth below in Section 13.09(e)), which shall have the
right to approve or disapprove of any such actions:
(i) Establishment of any standard pricing policies
with respect to the Partnership's sale of services which are
intended to result in (x) the sale of satellite transmission
capacity to customers generally at prices which are lower than
those charged to Limited Partners in agreements entered into
on or about the date of this Agreement or (y) the sale of
satellite transmission capacity to certain Partners at prices
or on terms materially different from the prices and terms
offered or available to Partners generally.
(ii) Establishment of any amended budget pursuant to
Section 9.09(c) or establishment of any budget relating to any
period of one year or longer (including any annual budget
proposed by the General Partner under Section 9.09) (a
"Proposed Budget") which calls for a percentage increase, from
the applicable amount specified, for the year to which the
Proposed Budget relates, in the Ten Year Projection dated July
12, 1991 (the "Ten Year Projection") (attached hereto as
Exhibit A) in (x) an aggregate annual amount of 10 percent or
more, or (y) any individual line item annual amount of 20
percent or more; provided,
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however, that if under this Section 7.11(b)(ii) and Section
13.09(e), a budget is approved which covers the period to
which the Proposed Budget relates (an "Approved Budget"), the
percentage increase in aggregate annual operating expenses or
in individual line items shall be measured from the amount
specified in the most recent Approved Budget, rather than from
the applicable amount in the Ten Year Projection.
(iii) Causing the Partnership to make expenditures or
incur obligations in excess of those permitted by Section
9.09(c).
(iv) Settlement of any matters with federal, state,
local or foreign tax authorities that requires the payment by,
or the increase in tax liabilities of, either the Partnership
or the Partners in the aggregate in excess of $3 million, or
consent to an extension of the statute of limitations
applicable to the assessment and collection of taxes from the
Partners in connection with any federal or state income tax
audit of the Partnership involving a potential tax liability
for the Partners in the aggregate in excess of $3 million.
(v) Characterization (including determination of
source and whether such item should be separately stated by
the Partners in their respective returns) of major categories
of income, gain, deduction, and loss for purposes of the
Partnership's federal income tax returns, provided that any
characterization determined by the Review Committee pursuant
to this Section 7.11(b)(v) shall be used in filing the
Partnership's returns only if the Partnership's tax
accountants or tax counsel determine that there is a realistic
possibility (within the meaning of section 6694 of the Code)
of such characterization being sustained on its merits and
that either there is "substantial authority" (within the
meaning of section 6662 of the Code) for such characterization
or there is adequate disclosure of the relevant facts
affecting such characterization in the Partnership's return so
that the penalties applicable under section 6662(c) of the
Code would not apply to the Partnership or the Partners if
such characterization were not sustained. For the purposes
hereof, a "major category" shall mean an amount in excess of
$1,000,000 for the particular taxable year at issue.
(vi) Offering to sell any additional Partnership
Interest pursuant to the terms of Section 11.01.
(vii) Designation by the General Partner of a member
of its executive management to be the general manager to
direct the management of IPSP Services (as defined in Section
7.14(c)).
7.11(c) Any action required to be submitted by the
General Partner to the Review Committee pursuant to this Section 7.11 shall be
submitted
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by written notice to the Limited Partners (the "Review Notice"), together with
the notice concerning the meeting and a description of the action(s) proposed to
be taken at the meeting.
7.11(d) At each meeting of the Review Committee, the
General Partner shall report to the members of the Review Committee on
significant developments of IPSP Services (as defined in Section 7.14(c)) during
the period since the preceding meeting of the Review Committee. Such report
shall be in such form as the General Partner may deem appropriate, but shall
include information concerning the execution of the business plan, including the
strategy for market entry, the development of service offerings, and the
appointment or removal of representative agents and distributors, the terms and
conditions of any such appointment, the relation of any such appointment to
existing agreements and the grounds for any such removal. In addition, when the
General Partner prepares and presents the annual budget (or any other Budget
Subject to Approval) to the members of the Review Committee, the General Partner
shall present to members of the Review Committee the work program for IPSP
Services as it is reflected in the budget.
7.12. MEETINGS OF LIMITED PARTNERS.
Meetings of the Limited Partners regarding any matters with
respect to which the Limited Partners have the right to vote or consent (other
than pursuant to Section 7.11) may be called by the General Partner from time to
time and shall be called by the General Partner upon its receipt of a request in
writing signed by at least two Limited Partners holding in the aggregate at
least twenty percent (20%) of the total Percentage Interests then held by the
Limited Partners, which request shall specify the purpose of such a meeting.
Notification of a meeting of the Limited Partners shall be sent by the General
Partner, not less than fifteen (15) days prior to the date of such meeting, to
the Limited Partners at their record addresses (as may be changed by written
notice to the General Partner) and shall specify the time, date, place and
purpose of such meeting. Notification of a meeting called at the request of the
requisite number of Limited Partners shall be sent within ten (10) business days
after the General Partner's receipt of such a request and shall be held not less
than fifteen (15) nor more than sixty (60) days after receipt of such request.
Any meeting of Limited Partners may be held at the principal office of the
Partnership or at such other location as the General Partner may deem
appropriate. Voting of the Limited Partners may be in person or by proxy, duly
signed by the Limited Partner or its attorney-in-fact. All actions that could be
taken at a meeting of the Limited Partners may also be taken by the written
consent of Limited Partners holding such Percentage Interests as is required to
take such action pursuant to this Agreement.
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7.13. TRANSFER OF LIMITED PARTNERSHIP INTEREST TO THE GENERAL
PARTNER.
In the event that the Percentage Interest of the General
Partner is ever less than twenty five percent (25%) or in the event that Limited
Partners of the Partnership ever own, in the aggregate, more than twenty five
percent (25%) of the voting power with respect to the outstanding stock of Orion
Network Systems, Inc. ("ONS"), determined based upon the higher of the
percentage of votes that can be cast for the election of directors or the
percentage of directors that can be selected, ONS shall transfer to the General
Partner any interest as a Limited Partner that ONS then owns in the Partnership,
and the General Partner shall thereafter have, in addition to all of its rights
under this Agreement as a General Partner, all of the rights of a Limited
Partner under this Agreement attributable to such interest.
7.14. TECHNICAL COMMITTEE.
7.14(a) A committee of the Partnership known as the
Technical Committee (the "Technical Committee"), consisting of one
representative (and, if requested by a Limited Partner, an alternate
representative) of each Partner, shall be established for the purposes set forth
in Section 7.14(b). Technical Committee representatives shall be entitled to
bring to Technical Committee meetings such staff and other personnel which they
reasonably deem necessary. Meetings of the Technical Committee may be called by
the General Partner from time to time, and shall be called by the General
Partner upon its receipt of a request in writing signed by at least two Limited
Partners, which request shall specify the purpose of such a meeting.
Notification of a meeting of the Technical Committee shall be sent by the
General Partner, not less than fifteen (15) days prior to the date of such
meeting, to the representatives of the Limited Partners at their record
addresses (as may be changed by written notice to the General Partner) and shall
specify the time, date, place and purpose of such meeting. Notification of a
meeting called at the request of the requisite number of Limited Partners shall
be sent within ten (10) business days after the General Partner's receipt of
such a request and such meeting shall be held not less than fifteen (15) nor
more than thirty (30) days after receipt of such request. The General Partner
shall serve as chairman of the Technical Committee. The members of the Technical
Committee may establish such procedures for the functioning of the Technical
Committee as the members of the Technical Committee may approve, subject to the
requirements and approval procedures of this Section 7.14. If any matter is
submitted to the Technical Committee at a meeting of the Technical Committee for
that Committee's advice concerning such matter (whether by the General Partner
or upon receipt by the General Partner of a request in writing signed by at
least two Limited Partners), such matter shall be submitted by written notice to
the Limited Partners, together with the notice concerning the meeting and a
description of the matter on which advice is to be given at the meeting.
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7.14(b) The Technical Committee will advise the General
Partner and the Review Committee on all matters relating to the technology and
operation of the Partnership's satellite system and transmission networks. The
Technical Committee also will review and recommend to the General Partner and
the Limited Partners the final and definitive main technical and performance
specifications for the Partnership's satellites, as well as of any material
amendment thereof during the construction period. With regard to IPSP Services,
the Technical Committee will recommend technical standards for equipment and
operations and will seek to ensure that any such standards are consistent with
the operating standards and procedures of the satellite system. The Technical
Committee will review the technical aspects of any general policies or
procedures proposed by the General Partner regarding IPSP Services; provided,
however, that the Technical Committee shall not have the power to disapprove any
action taken by the General Partner or the Review Committee. If the Technical
Committee does not reach a unanimous conclusion concerning particular advice to
be given to the General Partner or the Review Committee, only matters approved
by the representatives of an LP Majority shall be deemed to be the advice of the
Technical Committee; provided, however, that the report of the Technical
Committee which contains such advice also shall set forth any advice provided by
the representatives of any Limited Partner not included in such LP Majority.
Unless all representatives on the Technical Committee otherwise agree, advice by
the Technical Committee shall be in writing.
7.14(c) "IPSP Services" means: transmission-based
telecommunication services (other than the mere sale or lease of units of
transmission capacity on the Partnership's satellite system) which consist of
international private transmission links and networks, either as turnkey
facilities management or as a service, and in particular include (i) any and all
transmission services provided by the Partnership primarily over the
Partnership's satellite system that involve the transport of information, but
not its manipulation, and satellite connectivity services, and (ii) the
provision of, installation, maintenance, repair, operation, customer network
support and monitoring for, and associated services related to ground facilities
used to communicate to or from the satellite system, including (without
limitation), turnkey facilities management, VSAT and hub/control earth station
services and terrestrial links, and (iii) Value Added Services, which means
those services which involve not simply the transmission of information, but its
manipulation as well.
Any non-public switched telecommunications network or
international transmission service (other than the mere sale or lease of
transmission capacity on the Partnership's satellite system) is intended to be
included in IPSP Services.
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ARTICLE VIII
COMPENSATION OF GENERAL PARTNER; PAYMENT OF PARTNERSHIP
EXPENSES
8.01. COMPENSATION OF GENERAL PARTNER.
Except as expressly provided in Section 8.03 or pursuant to
arrangements contemplated by Section 7.07, the General Partner shall not receive
any compensation from the Partnership for services rendered in its capacity as a
general partner of the Partnership.
8.02. PARTNERSHIP EXPENSES.
Subject to Section 7.11(b)(iii), notwithstanding any other
provision of this Agreement, the Partnership shall bear all costs and expenses,
including, without limitation, all costs and expenses (including overhead
expenses) reasonably incurred by the General Partner in connection with the
management and operation of the business and affairs of the Partnership, or in
carrying out the purposes of the Partnership. In the event that the General
Partner at any time or from time to time advances its own funds to pay any such
costs or expenses, it shall be entitled to reimbursement of such funds from the
Partnership promptly upon demand.
8.03. Acquisition, Organizational, and Offering Expenses.
The Partnership shall reimburse the General Partner for all
fees, costs, and expenses actually incurred by the General Partner and its
Affiliates in connection with the organization of the Partnership, the offering
and sale of Partnership Interests to the Limited Partners, and the arrangements
for the placement of Partnership debt, and including, without limitation, legal
(including tax advice), financial advisor, consulting and accounting fees,
filing and recordation fees, printing costs, telephone and travel expenses.
ARTICLE IX
BANK ACCOUNTS; BOOKS AND RECORDS; STATEMENTS; TAXES;
FISCAL YEAR; ANNUAL BUDGET
9.01. BANK ACCOUNTS AND INVESTMENTS.
All funds of the Partnership shall be deposited in its name in
such checking and savings accounts, time deposits or certificates of deposit, or
other accounts at such banks or in such other investments permitted by Section
3.02(h), as shall be designated by the General Partner from time to time, and
the General Partner shall arrange for the appropriate management of such account
or accounts.
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9.02. BOOKS AND RECORDS.
The General Partner shall keep, or cause to be kept, books and
accounts showing assets, liabilities, income, operations, transactions and the
financial condition of the Partnership. Such books and accounts shall be
prepared on the accrual basis for accounting and U.S. federal income tax
purposes and in accordance with generally accepted accounting principles unless
the General Partner adopts an alternative basis in accordance with applicable
accounting and tax standards. The Limited Partners, or their respective
designees, shall have access to the books and records of the Partnership with
respect to all information which the Limited Partners are lawfully permitted to
require, including but not limited to budgets, financial projections and any
amendment thereto, quarterly and annual income statements, quarterly and annual
balance sheets, quarterly and annual funds flow statements and forecasts, the
credit documents with respect to the financing of the Partnership's proposed
satellites, and the Satellite Construction Contract (other than trade secrets
and other proprietary information, or any information of any kind received from
third parties pursuant to a confidentiality agreement or understanding) at any
reasonable time during regular business hours and shall have the right to copy
said records at their expense.
9.03. FINANCIAL STATEMENTS AND INFORMATION.
9.03(a) All financial statements prepared pursuant to
this Section 9.03 shall present fairly, in all material respects, the financial
position and operating results of the Partnership in accordance with generally
accepted accounting principles, and shall be prepared on the accrual, cash or
other basis, as provided in Section 9.02, for each Fiscal Year of the
Partnership during the term of this Agreement.
9.03(b) Within forty-five (45) days after the end of
each quarterly period (the "Fiscal Quarter") of each Fiscal Year, commencing
with the first full Fiscal Quarter after December 20, 1991, the General Partner
shall prepare and submit or cause to be prepared and submitted to the Limited
Partners an unaudited statement of profit and loss for the Partnership for such
Fiscal Quarter and an unaudited balance sheet of the Partnership dated as of the
end of such Fiscal Quarter, in each case prepared in accordance with generally
accepted accounting principles.
9.03(c) Within ninety (90) days after the end of each
Fiscal Year, the General Partner shall prepare and submit or cause to be
prepared and submitted to the Limited Partners (i) an audited balance sheet,
together with audited statements of profit and loss, Partners' equity and
changes in financial position for the Partnership during such Fiscal Year and
(ii) an audited statement showing any Cash Flow and any Net Proceeds of a
Capital Transaction distributed to the Partners in respect of such Fiscal Year.
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9.03(d) At least ten (10) days prior to each meeting of
the Review Committee, the General Partner shall prepare and submit or cause to
be prepared and submitted to the members of the Review Committee a general
report on significant developments of or affecting the Partnership during the
period since the most recent prior meeting of the Review Committee. Such report
shall be in such form as the General Partner may deem appropriate.
9.03(e) The General Partner shall provide to the
Limited Partners such other reports and information concerning the business and
affairs of the Partnership as may be required by the Delaware RULPA or by any
other law or regulation of any regulatory body applicable to the Partnership.
Nothing in this Agreement shall restrict the right of any Limited Partner to
communicate with the General Partner on matters pertaining to general policy,
planning and direction to the extent permitted by Section 17-303 of Delaware
RULPA.
9.03(f) Within forty-five (45) days after the end of
each Fiscal Quarter, commencing with the first full Fiscal Quarter after
December 20, 1991, until commencement of commercial operations of each of the
Partnership's satellites, the General Partner shall prepare and submit or cause
to be prepared and submitted to the Limited Partners progress reports regarding
the construction and launch of the Partnership's proposed satellites under the
Satellite Construction Contract in such form as will reasonably inform the
Limited Partners about the matters set forth below. Such reports shall include
reports from the manufacturer under the Satellite Construction Contract
regarding the status of the construction, from the launch services company that
will perform launch services for such manufacturer regarding the launch status,
and from the Partnership regarding regulatory matters (including those of any
state, governmental commission (including the FCC) or other authority affecting
the construction, launch or operation of the satellites). Within forty-five (45)
days after the end of each Fiscal Quarter, commencing with the first full Fiscal
Quarter after the commencement of commercial operations of the first of the
Partnership's satellites, the General Partner shall prepare and submit or cause
to be prepared and submitted to the Limited Partners status reports regarding
the health of the Partnership's satellites and all transponders, the use of
transponder spares, updated predictions regarding satellite life, and full
information about any effected transfer or lease of capacity (including name of
user, bandwidth, price, duration and transponder occupancy). The General Partner
shall inform each Limited Partner in writing about any event which has or may
have a material adverse effect on the health or the performance of any of the
Partnership's satellite promptly after occurrence of such event.
9.03(g) The provision by the General Partner to one or
more Limited Partners of reports or information described in Section 9.03 or
otherwise pursuant to this Agreement, by itself, shall not imply in any manner
whatsoever the acceptance by or involvement of any Limited Partner with respect
to such reports or information, and such reports or information shall be
construed only as having been prepared and distributed by the General Partner.
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9.04. ACCOUNTING DECISIONS.
All decisions as to accounting matters, except as specifically
provided to the contrary herein, shall be made by the General Partner.
9.05. WHERE MAINTAINED.
The books, accounts and records of the Partnership at all
times shall be maintained at the Partnership's principal office as set forth in
Section 2.03 above, or, at the option of the General Partner, at the principal
place of business of the General Partner.
9.06. TAX RETURNS AND TAX MATTERS.
9.06(a) The General Partner shall, at the expense of
the Partnership, cause to be prepared and delivered to the Partners, in a timely
fashion after the end of each Fiscal Year, copies of all Federal, state, local,
and foreign income tax returns for the Partnership for such Fiscal Year, one
copy of which shall be filed by the General Partner. Such returns shall be
prepared on the accrual basis (or as otherwise determined pursuant to Section
9.02) and shall accurately reflect the results of operations of the Partnership
for such Fiscal Year. The General Partner is designated as the "tax matters
partner" (as defined in the Code) of the Partnership and is authorized and
required to represent the Partnership (at the expense of the Partnership),
subject to Section 7.11(b)(iv), in connection with all examinations of the
affairs of the Partnership by any Federal, state, or local tax authorities,
including any resulting administrative and judicial proceedings, and to expend
funds of the Partnership for professional services and costs associated
therewith. Each Partner agrees to cooperate with the General Partner and to do
or refrain from doing any or all things reasonably required by the General
Partner in connection with the conduct of such proceedings; provided, however,
that in no event shall any Limited Partner be required to do or refrain from
doing anything which would cause such Limited Partner to be deemed a general
partner of the Partnership.
9.06(b) Upon receipt by the General Partner of any
notice, request, inquiry, or statement of a material nature from the IRS in
connection with an examination of the Partnership involving a potential federal
income tax liability for the Partners, in the aggregate, in excess of $3
million, the General Partner shall within 20 days send all other Partners a copy
of the documents so received. In the event that General Partner intends to
respond in writing to any documents from the IRS required to be provided to the
other Partners under the preceding sentence, (i) if the potential federal income
tax liability for the Partners, in the aggregate, exceeds $10 million, the
General Partner shall provide a copy of its proposed response to all other
Partners not less than 10 days before such response is to be submitted to the
IRS and shall consider in good faith any comments received from other Partners
with respect to such proposed response, and (ii) if the potential
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federal income tax liability for the Partners, in the aggregate is greater than
$3 million, the General Partner shall provide a copy of its actual response to
all other Partners promptly after submission to the IRS.
9.06(c) The General Partner, at the expense of the
Partnership shall provide Limited Partners with such other information as they
may reasonably request for use in the preparation of their respective income tax
returns.
9.07. FEDERAL INCOME TAX ELECTIONS.
If there is a distribution of any Partnership Assets or other
property as described in Section 734 of the Code, or if there is a transfer of
an interest in the Partnership as described in Section 743 of the Code, then,
upon the request of any Partner, the General Partner shall cause the Partnership
to file a Section 754 Election, provided the Partner requesting such election
shall have agreed in writing to reimburse the Partnership for all incremental
accounting and other administrative costs incurred as a result of such election.
9.08. FISCAL YEAR.
The Fiscal Year of the Partnership for financial and Federal,
state and local income tax purposes shall initially be the calendar year. The
General Partner shall have authority to change the beginning and ending dates of
the Fiscal Year if the General Partner, in its sole and absolute discretion,
deems such change to be necessary or appropriate to the business of the
Partnership, provided such change is permitted by the Code, and shall give
written notice of any such change to the Limited Partners within thirty (30)
days after the occurrence thereof.
9.09. ANNUAL BUDGET.
9.09(a) Distribution of Annual Budgets. Prior to the
commencement of each new Fiscal Year, the General Partner shall prepare and
distribute to the members of the Review Committee a budget setting forth the
anticipated expenditures, aggregate annual operating expenses and revenues of
the Partnership with respect to such Fiscal Year, including the proposed
overhead expenses of the General Partner which budget shall contain at least the
same line items as the Ten Year Projection or most recent Approved Budget, as
applicable. This budget may, in the discretion of the General Partner, also
relate to years other than such Fiscal Year.
9.09(b) Approval of Budgets Subject to Approval. All
budgets required to be submitted to the Review Committee as provided in Section
7.11 and Section 13.09(e) (a "Budget Subject to Approval") shall be so
submitted, subject to such provisions. When a proposed Budget Subject to
Approval is approved (or deemed approved) by the Review Committee, then such
Budget Subject to Approval shall become the operative budget for the Fiscal Year
to which it relates. In the
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event that any proposed Budget Subject to Approval (or revised proposed Budget
Subject to Approval) is disapproved by the Review Committee, then the General
Partner shall submit a revised proposed budget to the Review Committee within
thirty (30) days after such disapproval. If the revised proposed budget is a
Budget Subject to Approval, the Review Committee and the General Partner shall
attempt in good faith to reach agreement on such revised budget. During any
Fiscal Quarter (or portion thereof) of any Fiscal Year in which no budget is in
effect because a Budget Subject to Approval has been disapproved by the Review
Committee, or has not yet been approved (or deemed approved) by the Review
Committee, then the operative budget for such Fiscal Quarter shall be deemed to
include (a) all liabilities or obligations of the Partnership that were
previously incurred or committed to by or on behalf of the Partnership in good
faith and that became due and payable during such Fiscal Quarter, (b) all
liabilities or obligations that the General Partner, in good faith, believes
should be incurred or committed to by or on behalf of the Partnership for the
operation of its business or the carrying out of the purposes of the Partnership
during such Fiscal Quarter (including, without limitation, the payment or
settlement of any claims or potential claims against the Partnership) and (c)
all other operating expenses in an amount equal to one hundred ten percent
(110%) of the operating expenses for such Fiscal Quarter as set forth in the
most recent Approved Budget which relates to the Fiscal Year in which such
Fiscal Quarter occurs or, if there is no such Approved Budget, as set forth in
the Ten Year Projection, provided that, for purposes of this clause (c), if such
Approved Budget or the Ten Year Projection, as applicable, sets forth operating
expenses on a fiscal year basis rather than on a fiscal quarter basis, the
operating expenses for such Fiscal Quarter shall equal one-fourth of the
operating expenses for the Fiscal Year in which such Fiscal Quarter occurs, as
set forth in such Approved Budget or the Ten Year Projection, as applicable. Any
operative budget for a Fiscal Quarter (or portion thereof) of any Fiscal Year in
which no budget is in effect because a Budget Subject to Approval has been
disapproved by the Review Committee, or has not yet been approved (or deemed
approved) by the Review Committee, shall be superseded by the budget, if any,
ultimately approved (or deemed approved) by the Review Committee or any revised
budget prepared and distributed by the General Partner to the members of the
Review Committee which is not a Budget Subject to Approval. 9.09(c) In the event
that the General Partner shall determine that the total expenditures of the
Partnership for a Fiscal Year will exceed by ten percent (10%) or more all
expenditures of the Partnership, or that expenditures by the Partnership for a
Fiscal Year with respect to any individual line item will exceed by twenty
percent (20%) or more the corresponding amount, reflected in the Approved Budget
for such Fiscal Year or Ten Year Projection, as applicable, the General Partner
shall promptly prepare and submit to the Review Committee for approval pursuant
to Section 7.10(b)(iii) an amended budget for such Fiscal Year pursuant to
Section 9.09(b). Notwithstanding the foregoing, the General Partner shall be
permitted to cause the Partnership to make expenditures that (a) do not exceed
by ten percent (10%) or more in the aggregate the aggregate annual
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expenditures and by twenty percent (20%) or more the annual expenditures with
respect to any individual line item, reflected in the Approved Budget for such
Fiscal Year or Ten Year Projection, as applicable, or (b) that are beyond the
control of the General Partner, or (c) that the General Partner determines must
reasonably be paid prior to the approval of an amended budget pursuant to this
Section 9.09(c) in order to protect the Partnership, the Partnership Assets, the
business of the Partnership or its customers.
9.09(d) No budget, amended budget, Approved Budget or
increase in any of the foregoing shall require an increase in the amount of the
Capital Contribution of any Partner (unless such increase in the Capital
Contribution is contained in an amendment to this Agreement which has received
the written consent of all of the Partners under Section 13.09).
ARTICLE X
TRANSFER OF INTERESTS
10.01. TRANSFER.
10.01(a) The term "transfer", when used in this Article
X with respect to a Partnership Interest, shall include any sale, assignment,
gift, pledge, hypothecation, mortgage or other encumbrance, exchange, or other
disposition, whether voluntary or involuntary, by operation of law or otherwise,
and whether effected directly or indirectly (including without limitation any
change of control of any Partner or of any Person who controls such Partner,
other than a change of control of the ultimate parent company or other entity
controlling such Partner or Person or in the event such Partner or Person has no
ultimate controlling parent company or other controlling entity, a change of
control of the Partner or Person itself), except that "transfer" shall not
include any pledge, mortgage, or hypothecation of or granting of a security
interest in a Partnership Interest in connection with any financing obtained on
behalf of the Partnership (so long as such financing, to the extent required to
be submitted to the Limited Partners under Section 7.04(d) or 7.04(e), has been
so submitted and has been approved). As used in this Article X, the term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract, or otherwise.
10.01(b) No Partnership Interest shall be transferred,
in whole or in part, except in accordance with the terms and conditions set
forth in this Article X. Any transfer or purported transfer of any Partnership
Interest not made in accordance with this Article X shall be null and void.
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10.02. TRANSFER OF INTEREST OF GENERAL PARTNER.
The General Partner may not transfer, or otherwise permit any
Person to hold, its Partnership Interest as a General Partner unless:
10.02(a) such transfer in the written opinion of legal
counsel acceptable to the Review Committee, in its reasonable discretion, (i)
would not violate the then applicable federal and state securities and other
laws and rules and regulations of the Securities and Exchange Commission, state
securities commissions and any other governmental authorities with jurisdiction
over such disposition, (ii) would not result in the Partnership being classified
for Federal income tax purposes as an "association taxable as a corporation"
rather than as a partnership, (iii) would not prejudice or affect the continuity
of the Partnership for the purposes of Section 708 of the Code, and (iv) would
not affect the Partnership's existence as a limited partnership under the
Delaware RULPA;
10.02(b) a successor General Partner is admitted to the
Partnership in accordance with Section 11.03; and
10.02(c) with respect to the transfer of its
Partnership Interest, other than a transfer of the right to a distributive share
of the income, gain, losses, deductions, and assets of the Partnership in
accordance with the terms of this Agreement which does not reduce the General
Partner's distributive share of such items below five percent (5%), such
transfer and the admission of the transferee to the Partnership as a General
Partner is approved by written consent of an LP Majority.
10.03. TRANSFER OF INTEREST OF LIMITED PARTNER.
A Limited Partner may transfer all or any portion of its
Partnership Interest except as prohibited under this Section 10.03.
Notwithstanding the foregoing, no transferee of a Limited Partner's Partnership
Interest shall become a Limited Partner or have any of the rights of a Limited
Partner, other than the right to a distributive share of the income, gain,
losses, deductions, distributions, and assets of the Partnership in accordance
with the terms of this Agreement, unless such transferee is admitted to the
Partnership as a Limited Partner in accordance with Section 11.02. A Limited
Partner may not transfer, or otherwise permit any Person to hold, all or any
portion of its Partnership Interest as a Limited Partner unless:
10.03(a) if the transferee is not a Person that
controls, is controlled by, or is under common control with, the transferring
Limited Partner, the transferring Limited Partner first offers the other
Partners the right to purchase such Partnership Interest on a pro rata basis in
accordance with their respective Percentage Interests pursuant to Section 10.04;
and
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10.03(b) if the transferee is a Person who controls, is
controlled by, or is under common control with, the transferring Limited
Partner, the ability of the transferee to perform its obligations to the
Partnership (including without limitation obligations under this Agreement and
any agreement or contract between such transferee and the Partnership) is
reasonably satisfactory to the General Partner and the creditworthiness of the
transferee is satisfactory to the Partnership's lenders.
10.04. PARTNERS' RIGHTS OF FIRST REFUSAL.
10.04(a) If a Limited Partner has received a bona fide
written offer from a prospective third party purchaser (including another
Partner) (a "Third Party Offer") then, before accepting such Third Party Offer,
such Limited Partner (the "Offeror") shall first offer, to the other Partners
(the "Offerees"), on a pro rata basis in accordance with their respective
Percentage Interests, the Partnership Interest that the Offeror proposes to be
transferred to such third party. Such Partnership Interest shall be offered to
the Offerees at an offering price which shall be the same as, and on the same
terms and conditions as, those contained in the Third Party Offer, or if the
Third Party Offer provides for consideration or other terms and conditions not
practically attainable by the Offerees, then for consideration and upon terms
and conditions substantially equivalent to those contained in the Third Party
Offer. The offer shall be made by a written notice to the Offerees which offer
notice shall be accompanied by a copy of the Third Party Offer. The Offerees
shall have thirty (30) days after the date of such offer notice (the "Offerees
Election Period") within which to elect to purchase all (but not less than all)
of the Partnership Interest proposed to be transferred. Such election shall be
made by a written notice of election given to the Offeror and the other
Partners. The right of the Offerees or any of them to elect to make such
purchase is conditioned upon the purchase by the participating Offerees
collectively of all of the Partnership Interest which is subject to the Third
Party Offer; provided, however, that any portion of a Partnership Interest not
purchased by any particular Offeree may be purchased by the other Offerees on a
pro rata basis in accordance with their respective Percentage Interests, or on
such other basis as they may agree, by written notice to the Offeror within ten
(10) days after the end of the Offerees Election Period. The closing date of any
purchase by the Offerees shall be twenty (20) days after expiration of the
Offerees Election Period (or if not a business day, then on the next business
day thereafter).
10.04(b) If the Offerees shall fail to elect, pursuant
to the terms of Section 10.04(a), to purchase all of the Partnership Interest
that is the subject of the Third Party Offer or at any time shall notify the
Offeror of their elections not to purchase all of such Partnership Interest, or
shall elect to purchase but fail to close the purchase on the closing date, then
the Offeror shall be free for a period of ninety (90) days thereafter to sell
such Partnership Interest to the Person that made the Third Party Offer and
under terms and conditions no less favorable to the Offeror than those contained
in the Third Party Offer, subject to the limitations set forth in
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Section 11.02 regarding admission of additional Limited Partners. If such
Partnership Interest is not so sold by the Offeror within such 90-day period,
the Offeror's right to transfer such Partnership Interest shall again be subject
to the foregoing restrictions.
10.04(c) If a Limited Partner (the "Offeror Limited
Partner") wishes to transfer a Partnership Interest (other than to a transferee
who is a Person that controls, is controlled by, or is under common control
with, such Offeror Limited Partner), and if such Offeror Limited Partner has not
yet received a bona fide offer that such Offeror Limited Partner wishes to
accept, then such Offeror Limited Partner may elect to offer such Partnership
Interest to the other Partners (the "Offeree Partners") on a pro rata basis in
accordance with their respective Percentage Interests, at a price and on terms
proposed by such Offeror Limited Partner. Such offer shall be made by a written
notice (the "Proposed Sale Notice") to the Offeree Partners setting forth the
price and the terms and conditions proposed by such Offeror Limited Partner. The
Offeree Partners shall have thirty (30) days after the date of such Proposed
Sale Notice (the "Offeree Partners Election Period") within which to elect to
purchase all (but not less than all) of the Partnership Interest proposed to be
transferred. Such election shall be made by a written notice of election given
to the Offeror Limited Partner and the other Partners. The right of the Offeree
Partners or any of them to elect to make such purchase is conditioned upon the
purchase by the participating Offeree Partners collectively of all of the
Partnership Interest proposed to be transferred; provided, however, that any
portion of such Partnership Interest not purchased by any particular Offeree may
be purchased by the other Offeree Partners on a pro rata basis in accordance
with their respective Percentage Interests, or on such other basis as they may
agree, by written notice to the Offeror Limited Partner within ten (10) days
after the end of the Offeree Partners Election Period. The closing date of any
purchase by the Offeree Partners shall be twenty (20) days after expiration of
the Offeree Partners Election Period (or if not a business day, then on the next
business day thereafter).
10.04(d) If the Offeree Partners shall fail to elect,
pursuant to the terms of Section 10.04(c), to purchase all of such Partnership
Interest or at any time shall notify the Offeror Limited Partner of their
elections not to purchase all of the Partnership Interest proposed to be
transferred, or shall elect to purchase but fail to close the purchase on the
closing date, then the Offeror Limited Partner shall be free for a period of one
hundred twenty (120) days thereafter to sell such Partnership Interest at a
price and on terms and conditions no less favorable to the Offeror Limited
Partner than those contained in the Proposed Sale Notice, subject to the
limitations in Section 11.02(a) regarding admission of additional Limited
Partners. If such Partnership Interest is not so sold by the Offeror Limited
Partner within such 120-day period, the Offeror Limited Partner's right to
transfer such Partnership Interest shall again be subject to the provisions of
Section 10.04(c).
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10.05. RESTRICTION ON CERTAIN TRANSFERS.
Notwithstanding any provision in this Agreement, the FCC
License shall not be transferred, assigned or disposed of in any manner,
voluntarily or involuntarily, including by any transfer of control of any
corporation holding that license, to any person except upon application to the
FCC and upon a finding by the FCC that the public convenience and necessity will
be served thereby.
ARTICLE XI
OFFERING OF ADDITIONAL PARTNERSHIP
INTERESTS; ADMISSION OF ADDITIONAL PARTNERS;
WITHDRAWAL OF PARTNERS; REMOVAL OF GENERAL PARTNER
11.01. OFFERING OF ADDITIONAL PARTNERSHIP INTERESTS.
11.01(a) If, following the admission of the Limited
Partners to the Partnership on the date hereof, the General Partner wishes to
cause the Partnership to offer and sell to third parties (including other
Partners) additional limited partner Partnership Interests (a "Third Party
Offering"), the General Partner shall give notice to each Limited Partner of the
identity and background of the proposed purchaser (if not already a Limited
Partner) and the terms and conditions of the offer and shall submit such
proposed sale to a vote of the Limited Partners pursuant to Section 7.11(b). In
exercising their right to vote pursuant to Section 7.11(b) concerning the
proposed offer and sale of additional limited partner Partnership Interests and
admission of third party purchasers, the Limited Partners shall not unreasonably
withhold their approval. One basis, but not the exclusive basis, for the Limited
Partners to reasonably withhold their approval shall be the Limited Partners'
belief that the admission of such third party purchasers as Limited Partners
will present a risk to the business, operations, goals, finances or regulatory
approvals of the Partnership. In addition, it shall be reasonable for the
Limited Partners to condition their approval on the Partnership first offering
all the then-existing Partners the right to purchase such additional Partnership
Interests on the same terms as are proposed to be offered to such third parties
and on a pro rata basis in accordance with their respective Percentage Interests
pursuant to Sections 11.01(b) and (c). The Limited Partners may, in their
discretion, by a vote of Limited Partners holding a majority of the total
Percentage Interests then held by the Limited Partners, require that as a
condition to any such sale and admission that the Partnership obtain a written
opinion of legal counsel acceptable to the General Partner, in its reasonable
discretion, that such sale and admission would not result in the Partnership
being classified for Federal income tax purposes as an "association taxable as a
corporation" rather than as a partnership. In addition, unless such offer and
sale of additional limited partner Partnership Interests and admission of such
third party purchasers are approved, pursuant to the vote of Limited Partners
under Section 7.11(b), by an LP Majority,
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the Partnership must first offer all the then-existing Partners the right to
purchase such additional Partnership Interests on the same terms as are proposed
to be offered to such third parties and on a pro rata basis in accordance with
their respective Percentage Interests pursuant to Sections 11.01(b) and (c). It
is acknowledged and agreed that the sale of additional Partnership Interests
will reduce, or otherwise alter, proportionally the Percentage Interests of the
Partners existing immediately prior to such sale except to the extent that such
existing Partners purchase any of such additional Partnership Interests. Any
such reductions or other alterations in the Partners' Percentage Interests shall
be reflected on Schedule B.
11.01(b) If the General Partner is required to offer
all the then-existing Limited Partners the right to purchase additional
Partnership Interests pursuant to Section 11.01(a), the Partnership shall offer
to all the Partners, on a pro rata basis in accordance with their respective
Percentage Interests, the additional Partnership Interests that the Partnership
proposes to offer to such third party purchasers. Such additional Partnership
Interests shall be offered to the partners at an offering price which shall be
the same as, and on the same terms and conditions as, those proposed for the
Third Party Offering. The offer shall be made by a written notice to Partners
which shall also identify the designated third party purchasers, if then known
by the Partnership. The Partners shall have thirty (30) days after the date of
such offer notice (the "Partner Subscription Period") within which to elect to
purchase any or all of such additional Partnership Interests proposed to be
offered to third party purchasers. Such election shall be made by a written
notice of subscription given to the Partnership and all the other Partners. In
the event that any of the Partners do not purchase the maximum amount of such
additional Partnership Interests to which they are entitled pursuant to this
Section 11.01(b), any of such additional Partnership Interests not so purchased
may be purchased by the other Partners on a pro rata basis in accordance with
their respective Percentage Interests, or on such other basis as they may agree,
by written notice to the Partnership within ten (10) days after the end of the
Partner Subscription Period. The closing date of any purchase by the Partners of
such additional Partnership Interests shall be on such date as the General
Partner shall reasonably determine. Notwithstanding any provision of this
Section 11.01 to the contrary, the Partnership shall not be required to make an
offer to sell additional Partnership Interests to the Partners if, in the
reasonable opinion of the General Partner, after consultation with its legal
counsel, no exemption would be available for such offer from the registration
requirements of the Securities Act of 1933 or applicable state securities laws.
11.01(c) If the Partners shall fail to elect to
purchase or shall be foreclosed from purchasing, pursuant to the terms of
Section 11.01(b), all of the additional Partnership Interests proposed to be
offered to third parties, or shall elect to purchase but fail to close the
purchase on the closing date, then the Partnership shall be free for a period of
two hundred seventy (270) days thereafter to sell any such additional
Partnership Interests not purchased by the Partners
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pursuant to the terms of Section 11.01(b) to the offeror whose identity was
disclosed to the Limited Partners pursuant to Section 11.01(a), upon terms and
conditions no less favorable to the Partnership than those proposed for the
Third Party Offering. If such additional Partnership Interests are not sold by
the Partnership within such 270-day period, the Partnership's right to make any
offering of additional Partnership Interests to third parties (including other
Partners) shall again be subject to the foregoing restrictions.
11.02. ADMISSION OF ADDITIONAL LIMITED PARTNERS.
11.02(a) Following the admission of the Limited
Partners to the Partnership on the date hereof, additional Limited Partners
(including substituted Limited Partners) may be admitted to the Partnership at
such times as the conditions set forth in Section 11.02(b) have been satisfied
and the admission of such Limited Partners is reflected on the books and records
of the Partnership.
11.02(b) No Person shall have the right to become a
Limited Partner unless:
(i) the General Partner consents in writing to the
admission of such Person as a Limited Partner, which consent
shall be in the sole and absolute discretion of the General
Partner;
(ii) such Person accepts and agrees in writing to be
bound by all of the terms and provisions of the Agreement; and
(iii) such Person (and, in the case of the transfer of
any Partnership Interest of a Limited Partner pursuant to
Sections 10.03 and 16.05, the transferor Limited Partner)
executes and delivers such other instruments as are necessary
to effect, and as a condition to, such action, including,
without limitation, amendments to this Agreement and to the
Certificate or any other instrument filed with the State of
Delaware or any other state.
11.03. ADMISSION OF SUCCESSOR GENERAL PARTNER.
A transferee of all of the Partnership Interest of the General
Partner pursuant to Section 10.02, or a Person elected to be a successor General
Partner upon the removal of the former General Partner pursuant to Section
11.06, shall be admitted to the Partnership as a General Partner (in the place
of the transferor or former General Partner, as the case may be), effective as
of the date that an amendment of the Certificate, adding the name of such
successor General Partner and other required information, is recorded pursuant
to Section 2.01 (which date, in the event the successor General Partner is in
the place in whole of the transferor or former General Partner, shall be
immediately prior to the withdrawal of such
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transferor or former General Partner), and upon prior receipt by the Partnership
of all of the following:
11.03(a) the successor General Partner's acceptance of,
and agreement to be bound by, all of the terms and provisions of this Agreement,
in form and substance satisfactory to the Partnership and all other agreements
then in effect between the General Partner and any Limited Partner (and any
other parties);
11.03(b) evidence of the authority of such successor
General Partner to become a General Partner and to be bound by all of the terms
and conditions of the Agreement including without limitation the provisions of
Sections 3.03, 7.01(f) and 10.05 with regard to the assignment of the FCC
License;
11.03(c) the written agreement of the successor General
Partner to continue the business of the Partnership in accordance with the terms
and provisions of the Agreement; and
11.03(d) such other documents or instruments as may be
required in order to effect the admission of the successor General Partner as a
General Partner under this Agreement.
11.04. WITHDRAWAL OF GENERAL PARTNER.
The General Partner may voluntarily withdraw from the
Partnership only upon a transfer of all of such General Partner's Partnership
Interest as a General Partner in accordance with Article X. The voluntary
withdrawal of the General Partner shall not affect the benefits to IPSP under
such license. The General Partner shall have no liability to the Partnership or
the Partners on account of any withdrawal in accordance with the terms of this
Section 11.04, but such withdrawal shall not relieve the General Partner of its
outstanding obligations and liabilities towards the Partnership, the Limited
Partners and third parties.
11.05. Withdrawal of Limited Partner.
Any Limited Partner may voluntarily withdraw from the
Partnership at any time upon a transfer of all of such Limited Partner's
Partnership Interest as a Limited Partner in accordance with Article X or
transfer of such Limited Partner's Partnership Interest to the Partnership.
11.06. REMOVAL OF GENERAL PARTNER.
11.06(a) Subject to the provisions of Sections 3.03 and
11.03 with regard to the transfer or control of the FCC License, the General
Partner shall be removed as a general partner if (i) it is found by a court of
competent jurisdiction, by a final non-appealable judgment, that any of the
General Partner's actions as
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general partner constituted actual fraud, gross negligence, willful misconduct
or breach of fiduciary duty (under Delaware law, this Agreement or any other
contract between the Partnership and Limited Partners generally) and (ii) the
Limited Partners, by the affirmative vote of Limited Partners holding two-thirds
of the Percentage Interests then held by Limited Partners, vote to remove the
General Partner. The General Partner may be removed as a general partner of the
Partnership for "cause" (as hereinafter defined) upon the affirmative vote of
Limited Partners holding two-thirds of the Percentage Interests then held by
Limited Partners. Any such action by the Limited Partners must also provide for
the prompt election of a successor General Partner by Limited Partners holding
two-thirds of the Percentage Interests then held by Limited Partners, and shall
become effective only upon the admission of the successor General Partner
pursuant to Section 11.03. As used herein, "cause" shall mean (i) actual fraud,
gross negligence, or willful misconduct or breach of fiduciary duty (under
Delaware law, this Agreement or any other contract between the Partnership and
Limited Partners generally) of the General Partner, (ii) the Bankruptcy (as
defined in Section 12.01) of the General Partner, or (iii) the declaration of an
event of default under the credit documents with respect to the financing of the
Partnership's proposed satellites by the banks (or their agent, as applicable)
under the terms of such credit documents and an indication by such banks (or
such agent, as applicable) in writing that the banks intended to foreclose upon
any Partnership Assets or other collateral (as defined in such credit
documents), unless such event of default is due principally to circumstances
that are reasonably beyond the control of the General Partner, in each case as
determined by the Independent Party. The removal of the General Partner pursuant
to this Section 11.06(a) shall not be deemed to be an election of remedies by
the Partnership or the Limited Partners, and such removal shall not relieve the
General Partner of its outstanding obligations and liabilities towards the
Partnership, the Limited Partners and third parties.
11.06(b) Written notice of removal of the General
Partner pursuant to this Section 11.06 shall be provided to the General Partner
in the manner provided in Section 13.02.
11.06(c) In the event the General Partner is removed
pursuant to this Section 11.06, the removed General Partner's Partnership
Interest as a General Partner automatically shall be converted into the
Partnership Interest of a Limited Partner and the removed General Partner shall
retain all its Percentage Interest and thereupon be admitted as and be deemed a
Limited Partner for all purposes.
11.06(d) Any successor General Partner elected pursuant
to Section 11.06(a) shall, at the effective date of its admission to the
Partnership as the General Partner, make a Capital Contribution to the
Partnership in an amount such that, immediately following such Capital
Contribution, the balance of the successor General Partner's Capital Account
shall be no less than one percent (1%) of the aggregate balances of all
Partners' Capital Accounts.
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11.06(e) Prior to any removal of the General Partner
under this Agreement, notice shall be given to the FCC of such proposed removal,
and any successor General Partner shall, prior to the effective date of its
admission to the Partnership as the General Partner, comply with the provisions
of Section 3.03. The General Partner agrees that, if the FCC License is then
held by the General Partner and not the Partnership, it will take any action and
execute any instruments necessary to obtain from the FCC such approval as may be
necessary for the assignment to a Person designated by the Partnership as the
successor General Partner of such license, the rights under which shall have
been contributed by the General Partner to the Partnership pursuant to this
Agreement. The General Partner hereby appoints each Limited Partner as its
attorney-in-fact, with full power of substitution, for the purpose of taking any
action and executing any instruments, in the event of the General Partner's
removal under this Agreement, necessary for obtaining such approval of the FCC.
The General Partner hereby agrees that the subject matter of this Section
11.06(e) is unique, and that in addition to any other remedies which the Limited
Partners may have at law or in equity, the General Partner hereby agrees that
the Limited Partners shall have the right to have all obligations, undertakings,
agreements, covenants and other provisions of this Section 11.06(e) specifically
performed by the General Partner, that the General Partner waives any equitable
defenses it may have to such specific performance, and that the Limited Partners
shall have the right to obtain an order or decree of such specific performance
in any of the courts of the United States or of any state or other political
subdivision thereof.
ARTICLE XII
DISSOLUTION AND LIQUIDATION
12.01. EVENTS CAUSING DISSOLUTION.
The Partnership shall be dissolved and its affairs wound up
upon the occurrence of any of the following events:
12.01(a) expiration of the term of the Partnership on
the Termination Date;
12.01(b) the election in writing of the General Partner
and the Limited Partners holding two-thirds of the total Percentage Interests of
the Limited Partners to dissolve and wind up the affairs of the Partnership;
12.01(c) the sale or other disposition by the
Partnership (other than in the ordinary course of business) of all or
substantially all of the Partnership Assets and the collection of all amounts
derived from any such sale or disposition, including all amounts payable to the
Partnership under any promissory notes or other evidences of indebtedness taken
by the Partnership in connection with such
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sale or other disposition (unless the General Partner shall elect to distribute
such indebtedness to the Partners in liquidation);
12.01(d) the Bankruptcy (as hereinafter defined) of the
General Partner;
12.01(e) the Bankruptcy (as hereinafter defined) of the
Partnership and the determination of the General Partner not to continue the
business of the Partnership; or
12.01(f) except as provided in Section 12.01(d) above,
the occurrence of any event that would cause the General Partner to cease to be
a general partner of the Partnership under Section 17-402 of the Delaware RULPA;
or
12.01(g) the entry of a decree of judicial dissolution
under Section 17-802 of the Delaware RULPA.
For the purposes of this Agreement, the term "Bankruptcy" of
the General Partner or the Partnership, as applicable, shall mean, and the
General Partner or the Partnership, as applicable, shall be deemed "Bankrupt,"
if it:
a. makes an assignment for the benefit of creditors;
b. files a voluntary petition in bankruptcy;
c. is adjudged a bankrupt or insolvent, or has entered
against it an order of relief in any bankruptcy or
insolvency proceeding and such adjudication or order is
final and not subject to appeal;
d. files a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any
statute, law or regulation;
e. files an answer or other pleading admitting or failing
to contest the material allegations of a petition filed
against it in any proceeding of this nature; or
f. seeks, consents to or acquiesces in the appointment of
a trustee, receiver or liquidator of the Partnership or
of all or any substantial part of its properties.
The term "Bankruptcy," as defined above and as used in this
Agreement, is intended and shall be deemed to supersede and replace the event of
withdrawal described in Sections 17-402(a)(4) and (5) of the Delaware RULPA.
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12.02. RIGHT TO CONTINUE BUSINESS OF PARTNERSHIP.
Upon an event described in Sections 12.01(d) or 12.01(f), the
Partnership shall not be dissolved or be required to be wound up if (A) at the
time of such event there is at least one remaining General Partner who carries
on the business of the Partnership (and each such remaining General Partner is
hereby authorized to carry on the business of the Partnership without
dissolution), or (B) within ninety (90) days after such event, all remaining
Partners agree in writing (a) to continue the business of the Partnership and
(b) to the appointment, effective as of the date of such event, of one or more
additional General Partners if necessary or desired.
12.03. LIQUIDATION.
12.03(a) Upon the dissolution of the Partnership, the
General Partner (or other person responsible for winding up the affairs of the
Partnership) shall promptly notify the Partners of such dissolution and shall
proceed without any unnecessary delay to sell or otherwise liquidate the
Partnership Assets and pay or make due provision for the payment of all debts,
liabilities and obligations of the Partnership.
12.03(b) After adequate provision has been made for the
payment of all debts, liabilities and obligations of the Partnership (other than
liabilities for distributions to Partners), the General Partner (or other person
responsible for winding up the affairs of the Partnership) shall distribute the
net liquidation proceeds and any other liquid assets of the Partnership to the
Partners in accordance with Section 6.05. No distribution in kind of Partnership
Assets, other than cash and other liquid assets, shall be made without the
approval of the Review Committee.
12.03(c) A reasonable time shall be allowed for the
orderly winding up of the business and affairs of the Partnership and the
liquidation of its assets pursuant to this Section 12.03 in order to minimize
any losses otherwise attendant upon such a winding up.
12.04. TERMINATION OF PARTNERSHIP.
Except as otherwise provided in this Agreement, the
Partnership shall terminate when all of the assets of the Partnership shall have
been converted into cash, the net proceeds therefrom, as well as any other
liquid assets of the Partnership, after payment of or due provision for the
payment of all debts, liabilities and obligations of the Partnership, shall have
been distributed to the Partners as provided for in Section 6.05 and Section
12.03, and the Certificate shall have been cancelled in the manner required by
the Delaware RULPA.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.01. ADDITIONAL ACTIONS AND DOCUMENTS.
Each of the Partners hereby agrees to take or cause to be
taken such further actions, to execute, acknowledge, deliver and file or cause
to be executed, acknowledged, delivered and filed such further documents and
instruments, and to use best efforts to obtain such consents, as may be
necessary or as may be reasonably requested in order to fully effectuate the
purposes, terms and conditions of this Agreement, whether before, at or after
the closing of the transactions contemplated by this Agreement.
13.02. NOTICES.
All notices, demands, requests or other communications which
may be or are required to be given, served, or sent by a Partner or the
Partnership pursuant to this Agreement shall be in writing and shall be hand
delivered (including delivery by courier), mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid or by "overnight" or
express mail or courier service, or transmitted by telegram, telex or facsimile
transmission (if an additional copy is sent by "overnight" or express mail or
courier service in addition to the facsimile transmission), addressed as
follows:
(i) If to the General Partner:
Orion Satellite Corporation
2440 Research Blvd.
Suite 400
Rockville, Maryland 20858-3238
Attention:
Telex/Fax Nos.:
(ii) If to a Limited Partner:
At the address specified for such Limited Partner in
Schedule A
(iii) If to the Partnership:
International Private Satellite Partners, L.P.
2440 Research Drive
Suite 400
Rockville, Maryland 20858-3238
Attention:
Telex/Fax Nos.:
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Each Partner and the Partnership may designate by notice in writing a new
address to which any notice, demand, request or communication may thereafter be
so given, served or sent. Each notice, demand, request or communication which
shall be delivered, mailed or transmitted in the manner described above, shall
be deemed sufficiently given, served, sent or received for all purposes at such
time as it is delivered to the addressee (with an affidavit of personal delivery
(and in the case of communications by facsimile transmission, the affidavit of
the "overnight" or express mail or courier service delivering the additional
copy), the return receipt, the delivery receipt, or (with respect to a telex)
the answer back being deemed conclusive, but not exclusive, evidence of such
delivery) or at such time as delivery is refused by the addressee upon
presentation.
13.03. SEVERABILITY.
Except as otherwise expressly provided in this Agreement, the
invalidity of any one or more provisions hereof or of any other agreement or
instrument given pursuant to or in connection with this Agreement shall not
affect the remaining portions of this Agreement or any such other agreement or
instrument or any part thereof, all of which are inserted conditionally on their
being held valid in law; and in the event that one or more of the provisions
contained herein or therein should be invalid, or should operate to render this
Agreement or any such other agreement or instrument invalid, this Agreement and
such other agreements and instruments shall be construed as if such invalid
provisions had not been inserted; provided, however, that such severability of
the remaining portions shall be conditional upon the good faith and diligent
efforts of IPSP and the Limited Partner(s) whose rights and/or duties were
declared invalid to negotiate and agree upon new provision(s) which will closely
replicate the void provision(s) and which will be valid and enforceable.
13.04. SURVIVAL.
It is the express intention and agreement of the Partners that
all covenants, agreements, statements, representations, warranties and
indemnities made in this Agreement shall survive the execution and delivery of
this Agreement.
13.05. WAIVERS.
Neither the waiver by a Partner of a breach of or a default
under any of the provisions of this Agreement, nor the failure of a Partner, on
one or more occasions, to enforce any of the provisions of this Agreement or to
exercise any right, remedy or privilege hereunder shall thereafter be construed
as a waiver of any subsequent breach or default of a similar nature, or as a
waiver of any such provisions, rights, remedies or privileges hereunder.
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13.06. EXERCISE OF RIGHTS.
No failure or delay on the part of a Partner or the
Partnership in exercising any right, power or privilege hereunder and no course
of dealing between the Partners or between a Partner and the Partnership shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein expressly provided are cumulative and not exclusive of any other
rights or remedies which a Partner or the Partnership would otherwise have at
law or in equity or otherwise.
13.07. BINDING EFFECT.
Subject to any provisions hereof restricting assignment, this
Agreement shall be binding upon and shall inure to the benefit of the Partners
and their respective heirs, devises, executors, administrators, legal
representatives, successors and assigns.
13.08. LIMITATION ON BENEFITS OF THIS AGREEMENT.
It is the explicit intention of the Partners that, except as
otherwise expressly agreed in writing by the Partners, no person or entity other
than the Partners and the Partnership is or shall be entitled to bring any
action to enforce any provision of this Agreement against any Partner or the
Partnership, and that the covenants, undertakings and agreements set forth in
this Agreement shall be solely for the benefit of, and shall be enforceable only
by, the Partners (or their respective successors and assigns as permitted
hereunder) and the Partnership.
13.09. AMENDMENT PROCEDURE.
This Agreement may not be modified or amended except as
expressly set forth below.
13.09(a) This Agreement may be modified or amended by
the General Partner, without the consent or approval of the Limited Partners,
except as set forth in Section 13.09(c), (i) to cure any ambiguity, to correct
or supplement any provision herein which would be inconsistent with any other
provision herein, or to make any other provision with respect to matters or
questions arising under this Agreement which will not be inconsistent with the
provisions of this Agreement; (ii) to delete or add any provision of this
Agreement required to be so deleted or added by any federal agency or by a state
"Blue Sky" commissioner or similar official, which addition or deletion is
deemed by such agency or official to be for the benefit or protection of the
Limited Partners; (iii) to amend Schedules A and B to reflect the admission of
additional or substitute Limited Partners pursuant to Section 11.02; or (iv) to
permit the allocations provided for in Article VI to be respected for federal
income tax purposes or to avoid the Partnership being treated as an
"association"
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<PAGE>
for federal income tax purposes; provided however, that no amendment shall be
adopted pursuant to this Section 13.09(a) unless the adoption thereof (A) is not
adverse to the interest of the Limited Partners; (B) does not affect the method
of distribution of cash or allocation of net profits or net losses provided in
Article VI among the Limited Partners or between the Limited Partners and the
General Partner; and (C) does not adversely affect the limited liability of the
Limited Partners contemplated by this Agreement or the status of the Partnership
as a partnership for federal income tax purposes. The power of attorney granted
pursuant to Section 7.03 may be used by the General Partner to execute on behalf
of a Limited Partner any document evidencing or effecting an amendment adopted
in accordance with this Section 13.09.
13.09(b) This Agreement also may be modified or amended
with the written consent of the General Partner and of an LP Majority; provided
however, that any modification or amendment which would (i) increase the amount
of Capital Contributions payable by the Limited Partners, (ii) affect the rights
of the Partners under Article VI, or (iii) except as provided in Section
13.09(a), amend Article V, Article VI, Article XII, or this Section 13.09, shall
require the written consent of all the Partners.
13.09(c) [Intentionally Omitted.]
13.09(d) Notwithstanding anything to the contrary in
this Agreement, this Agreement may not be modified or amended in any manner
which, in the view of the FCC or in the reasonable judgment of the General
Partner or its counsel, would (i) result in any violation (either through the
possession of such power or through the taking of any specific action) of any
law, rule or regulation applicable to the Partnership and its proposed business,
including without limitation the United States' Communications Act of 1934, as
amended, or the rules and regulations of the FCC as now or hereafter in effect,
or (ii) result in a transfer of control (as defined in the rules and regulations
of the FCC as now or hereafter in effect) of the General Partner, the business
or operations of the General Partner or the licenses issued by the FCC relating
to the construction, launch and operation of the satellite(s) owned by IPSP.
13.09(e) The Ten Year Projection constitutes an
integral and substantial part of this Agreement and cannot be amended without
the unanimous approval of the Limited Partners. In addition, if any Proposed
Budget relating to a period of longer than one Fiscal Year or that requires
multi-year expenditures calls for a percentage increase for any Fiscal Year,
other than the first Fiscal Year of the Proposed Budget, of 2 percent or more
over the budget for such Fiscal Year as reflected in the Ten Year Projection or
Approved Budget, whichever is applicable, then the entire Proposed Budget shall
require the unanimous approval of the Limited Partners.
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13.10. WAIVER OF PARTITION.
Each Partner hereby irrevocably waives any and all rights that
it may have to maintain an action for partition of any of the Partnership
Assets.
13.11. CONSOLIDATION.
In interpreting this Agreement, it is understood that the
operations of any corporation or other entity in which the Partnership has an
ownership interest and which is controlled by the Partnership or the General
Partner will be consolidated to the extent appropriate with those of the
Partnership.
13.12. ENTIRE AGREEMENT.
Except as set forth in this Section 13.12, this Agreement
(including the Schedules and annexes hereto) contains the entire agreement among
the Partners with respect to the transactions contemplated herein, and
supersedes all prior (but not contemporaneous) written and all oral agreements,
commitments or understandings with respect to the matters provided for herein
and therein. Notwithstanding this Section 13.12, each of the Partners have
entered into other agreements prior to the date hereof or contemporaneously with
the execution of this Agreement, all of which relate to the transactions
contemplated herein, and the terms of which are no less binding upon the
signatories thereto than are the terms of this Agreement binding upon the
signatories hereto.
13.13. PRONOUNS.
All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular or plural, as the identity of
the person or entity may require.
13.14. HEADINGS.
Article, Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
13.15. GOVERNING LAW.
This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and
construed in accordance with the laws of the State of Delaware (but not
including the choice of law rules thereof).
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<PAGE>
13.16. EXECUTION IN COUNTERPARTS.
To facilitate execution, this Agreement may be executed in as
many counterparts as may be required; and it shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures of all
persons required to bind any party, appear on each counterpart; but it shall be
sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
13.17. INTEREST RATES.
Any provision of this Agreement containing, or requiring the
use of, a stated interest rate shall be deemed to refer to the lower of such
stated rate and the highest rate permitted by applicable law.
ARTICLE XIV
STET REDEMPTION
14.01. RATIFICATION OF STET REDEMPTION, ISSUANCE OF NEW INTEREST TO
ONS.
Notwithstanding anything in this Agreement to the contrary,
the following actions are hereby authorized, approved, ratified and confirmed in
all respects and do not violate or constitute a breach of or a default under any
provision of this Agreement: (i) the redemption by the Partnership in 1995 of
the 8.33% limited partnership interest of Societa Finanziaria Telefonica-per
Azioni ("STET"), and the withdrawal of STET as a limited partner from the
Partnership pursuant to Section 11.05 of the Agreement; (ii) the issuance of a
new 8.33% limited partnership interest to existing limited partner Orion Network
Systems, Inc. ("ONS"); (iii) recognition of the assumption by ONS of the
obligations of an Affiliate of STET, Telecom Italia S.p.A. ("Telecom Italia"),
to make contingent payments pursuant to the Contingent Communications Satellite
Capacity Agreement to which Telecom Italia and the Partnership are parties (the
"STET/Telecom Italia Contingent Payment Obligations"); (iv) the modification or
termination of certain bilateral and multilateral agreements between the
Partnership and STET (or Telecom Italia, as the case may be) or among the
Partnership, STET (or Telecom Italia, as the case may be) and some or all of the
Limited Partners; (v) the amendment of certain provisions of the Second Amended
and Restated Agreement, including the deletion of provisions of Article XVI
thereof relating to certain specific rights of STET and its affiliates,
amendment of Schedules A and B to the Second Amended and Restated Agreement to
reflect the redemption of STET's 8.33% limited partnership interest,
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<PAGE>
the withdrawal of STET from the Partnership, the sale to ONS of an additional
limited partnership interest, and the adjustment by the General Partner, in
consultation with the accounting firm that prepares the Federal income tax
returns of the Partnership, of the Partners' Capital Accounts in accordance with
Regulations sections 1.704-1(b)(2)(iv)(f) and 1.704-1(b)(2)(iv)(g)(1) to reflect
the redemption of STET's limited partnership interest and the acquisition by ONS
of an additional limited partner interest; and (vi) the execution, delivery and
performance by the Partnership of a Redemption Agreement, dated as of November
___, 1995, between the Partnership and STET (the "STET Redemption Agreement"), a
Subscription Agreement, dated as of November ___, 1995, between the Partnership
and ONS (the "Subscription Agreement"), an Indemnity Agreement dated as of
November ___, 1995, among the Partnership, Telecom Italia and ONS (the
"Indemnity Agreement"), and an IPSP-Telecom Italia Agreement, dated as of
November ___, 1995, between the Partnership and Telecom Italia S.p.A. (the
"IPSP-Telecom Italia Agreement"), and the agreements, documents and instruments
referred to therein.
14.02. STET's UNRECOVERED CONTINGENT CONTRIBUTIONS.
Notwithstanding anything in this Agreement to the contrary,
(i) all Unrecovered Contingent Contributions of STET prior to November ___, 1995
shall constitute Unrecovered Contingent Contributions of ONS from and after
November __, 1995, and (ii) all STET/Telecom Italia Contingent Payment
Obligations paid by ONS (or on its behalf) from and after November __, 1995
(including without limitation pursuant to the Indemnity Agreement) shall
constitute (including for purposes of determining Unrecovered Contingent
Contributions) contingent payments made by ONS or its Affiliate to the
Partnership pursuant to Article II of the Contingent Communications Satellite
Capacity Agreement (or to a payment guarantee agreement in accordance with
Article III of the Contingent Communications Satellite Capacity Agreement) and
treated as contributions by ONS to the capital of the Partnership pursuant to
Section 5.01 of the Contingent Communications Satellite Capacity Agreement.
14.03. TERMINATION AND MODIFICATION OF STET AGREEMENTS.
The parties hereby consent to and ratify the termination, as
of the effective date of the STET Redemption Agreement and IPSP-Telecom Italia
Agreement, of each of the bilateral and multilateral agreements, as amended
through such effective date, set forth on Annex 1 hereto between the Partnership
and STET (or Telecom Italia, as the case may be) or among the Partnership, STET
(or Telecom Italia, as the case may be) and some or all of the Limited Partners,
and agree that (and such agreements are hereby amended to the extent necessary
so that) such agreements are terminated in their entirety as of the effective
date of the STET Redemption Agreement and IPSP-Telecom Italia Agreement.
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The parties hereby consent to and ratify the modification, as
of the effective date of the STET Redemption Agreement and IPSP-Telecom Italia
Agreement, of each of the multilateral agreements, as amended through such
effective date, set forth on Annex 2 hereto among the Partnership, STET (or
Telecom Italia, as the case may be) and some or all of the Limited Partners, to
remove STET (or Telecom Italia, as the case may be) as a party to such
agreements and to provide that such agreements, as so modified, continue in full
force and effect, such modification to be effective as of the effective date of
the STET Redemption Agreement and IPSP-Telecom Italia Agreement.
The parties hereby consent to and ratify the modification, as
of the effective date of the STET Redemption Agreement and IPSP-Telecom Italia
Agreement, of each of the agreements set forth on Annex 3 hereto, as amended
through such effective date, between the Partnership and STET (or Telecom
Italia, as the case may be), which modifications are described on Annex 3 or the
attachments thereto and to provide that such agreements, as so modified (and
with such additional modifications not material to the Partnership or any
Limited Partner and agreed to by the General Partner on behalf of the
Partnership and set forth on the applicable modification documents), continue in
full force and effect, such modification to be effective as of the effective
date of the STET Redemption Agreement and IPSP-Telecom Italia Agreement.
In the event that the parties to the agreements set forth on
Annexes 1, 2 or 3 hereto include affiliates of Limited Partners rather than the
Limited Partners themselves, the consents given under this Section 14.03 are
given both on behalf of such affiliates and their affiliated Limited Partners,
and the affiliated Limited Partners agree to cause such affiliates to supply
additional consents to the effect of the applicable provisions of this Section
14.03 upon the reasonable written request of any party hereto.
14.04. BA WAIVER.
British Aerospace Communications, Inc. ("BA"), as of the
effective date of the STET Redemption Agreement and IPSP-Telecom Italia
Agreement, waived its rights pursuant to the Consent and Agreement dated
December 20, 1991 among the Partnership and the Limited Partners with respect to
the additional limited partnership interest that was purchased by ONS (the "New
Interest"), including BA's rights to (i) have the Partnership refrain from
offering the New Interest until certain of BA's limited partnership interests
have been repurchased, or require the purchaser of the New Interest to acquire
certain of BA's limited partnership interests or (ii) have certain of BA's
limited partnership interests purchased by the Partnership with the proceeds of
the sale of the New Interest.
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ARTICLE XV
PARTNERSHIP APPROVALS
Notwithstanding anything in this Agreement to the contrary,
except as set forth below in this Article XV, the execution, delivery and
performance by the Partnership of the following agreements, documents and
instruments (of which there may be one or more versions), among the Partnership
and Partners or prospective partners of the Partnership or their Affiliates and
other Persons which are dated on or prior to the date of this Agreement, or any
amendments or amendment and restatements of such agreements, documents and
instruments, are hereby authorized, approved, ratified and confirmed in all
respects and do not violate or constitute a breach of or a default under any
provision of this Agreement: subscription agreements, escrow agreements,
communications satellite capacity agreements, option agreements, contingent
communications satellite capacity agreements, Agreements of Principles regarding
service offerings by the Partnership, agreements relating to marketing and
related services with respect to the sale of the Partnership's international
communications satellite facilities, agreements relating to distribution and
sales representation with respect to the Partnership's services (which such
agreements, consistent with the terms of Section 7.10, may be exclusive in
nature and pursuant to which sales are not governed by contractual terms and
conditions set solely by the General Partner), consent and agreement concerning
the rights of one limited partner to transfer certain partnership interests,
assignment and assumption between the General Partner and the Partnership,
agreement regarding certain possible conveyances, agreement regarding preferred
bidding, and such other agreements, documents and instruments to which the
Partnership is a party dated on or prior to the date of this Agreement that have
been entered into or executed by the Partnership. Nothing contained herein,
however, shall constitute or reflect any approval or waiver of rights by any
Limited Partner with respect to the execution, delivery or performance by the
Partnership or the General Partner of any agreement which was not provided by
the Partnership or the General Partner to such Limited Partner prior to the date
hereof.
[Signatures commence on next page]
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ARTICLE XVI
EXECUTION
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement, or have caused this Agreement to be duly executed on their behalf, as
of the day and year first hereinabove set forth.
General Partner:
ORION SATELLITE CORPORATION
By:
------------------------------
Title:
------------------------------
LIMITED PARTNERS:
-----------------------------------
By:
------------------------------
Title:
------------------------------
-----------------------------------
By:
------------------------------
Title:
------------------------------
-----------------------------------
By:
------------------------------
Title:
------------------------------
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-----------------------------------
By:
------------------------------
Title:
------------------------------
-----------------------------------
By:
------------------------------
Title:
------------------------------
-----------------------------------
By:
------------------------------
Title:
------------------------------
-----------------------------------
By:
------------------------------
Title:
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SCHEDULE A
----------
NAMES AND ADDRESSES AND
CAPITAL CONTRIBUTIONS OF PARTNERS
---------------------------------
GENERAL PARTNER
- ---------------
Orion Satellite Corporation $30,000,000 (consisting of the
2440 Research Blvd, Suite 400 assignment of the rights of the General
Rockville, MD 20850-3238 Partner to use, sell, lease or otherwise
convey the communications transmission
capacity on the satellite system which
is the subject of the FCC license to
construct and operate two in-orbit
satellites at 37.5(degree) West
Longitude and 47(degree) West Longitude
held by the General Partner, but
excluding the assignment of any FCC
construction permit or license with
respect to said satellite system, under
the authorizations by other governments,
and under its IFRB registration and
under the INTELSAT consultation; certain
contract rights; and certain other
tangible and intangible assets).
LIMITED PARTNERS
- ----------------
Martin Marietta Commercial $10,000,000
Launch Services, Inc.
9444 Balboa Avenue, Suite 200
San Diego, CA 92123
British Aerospace $30,000,000
Communications, Inc.
Suite 500
13873 Park Center Road
Herndon, Virginia 22071
A-1
<PAGE>
SCHEDULE A (Cont'd)
-------------------
NAMES AND ADDRESSES AND
CAPITAL CONTRIBUTIONS OF PARTNERS
---------------------------------
LIMITED PARTNERS
- ----------------
MCN Sat U.S., Inc. $10,000,000
c/o Matra Aerospace
1735 Jefferson Davis Highway
Suite 807
Arlington, VA 22202
Trans-Atlantic Satellite, Inc. $10,000,000
1211 Avenue of the Americas
41st Floor
New York, NY 10036
Kingston Communications $ 5,000,000
International Limited
Telephone House
Carr Lane
Kingston-upon-Hull
HU1 3RE
England
COM DEV Satellite
Communications Limited $ 5,000,000
155 Sheldon Drive
Cambridge, Ontario
Canada N1R 7H6
Orion Network Systems, Inc. $18,000,000
2440 Research Blvd, Suite 400
Rockville, MD 20850-3238
A-2
<PAGE>
SCHEDULE B
----------
PERCENTAGE INTERESTS OF PARTNERS
--------------------------------
GENERAL PARTNER
- ---------------
Orion Satellite Corporation 25.00%
LIMITED PARTNERS
- ----------------
Martin Marietta Commercial 8.33%
Launch Services, Inc.
British Aerospace25.00%
Com
MCN Sat U.S., Inc. 8.33%
Trans-Atlantic Satellite, Inc. 8.33%
Kingston Communications 4.17%
International Limited
COM DEV Satellite 4.17%
Communications Limited
Orion Network Systems, Inc. 16.66%
------
Total 100.00%
B-1
<PAGE>
EXHIBIT A
---------
TEN YEAR PROJECTION
-------------------
<PAGE>
Annex 1
-------
Agreements Being Terminated
---------------------------
1. Service Provision and Representative Agent Agreement for
Eastern Europe, dated as of August 7, 1991, as amended,
between the Partnership and STET, and assigned by STET to
Telecom Italia (or a predecessor thereof) as of December 21,
1993.
2. First Refusal Agreement for Italy, dated as of August 7, 1991,
by and between the Partnership and STET, and assigned by STET
to Telecom Italia (or a predecessor thereof) as of December
21, 1993.
3. Service Provision and Distribution Agreement for Italy, dated
as of August 7, 1991, by and between the Partnership and STET,
as amended, and assigned by STET to Telecom Italia (or a
predecessor thereof) as of December 21, 1993.
4. Representative Agent Agreement for the Sale of Satellite
Capacity in Eastern Europe, dated August 7, 1991, by and
between the Partnership and STET, as amended, and assigned by
STET to Telecom Italia (or a predecessor thereof) as of
December 21, 1993.
5. Side Agreement for Eastern Europe, dated as of December 20,
1991, by and among the Partnership, STET and the Limited
Partners, and assigned by STET to Telecom Italia (or a
predecessor thereof) as of December 21, 1993.
6. Side Agreement for Italy, dated December 20, 1991, by and
among the Partnership, STET and the Limited Partners, and
assigned by STET to Telecom Italia (or a predecessor thereof)
as of December 21, 1993.
7. Option Agreement, dated as of December 22, 1991, by and
between the Partnership and STET and assigned by STET to
Telecom Italia (or a predecessor thereof), as of December 21,
1993.
8. Subscription Agreement, dated as of August 7, 1991, by and
between OrionSat and STET.
9. Consulting Agreement, dated as of August 2, 1991, by and
between the Partnership and Telespazio S.p.A., and assigned by
STET to Telecom Italia (or a predecessor thereof) as of
December 21, 1993.
10. Agreement on Letter of Credit, dated as of December 20, 1991,
by and among the Partnership, OrionSat, Orion and STET.
<PAGE>
Annex 2
-------
Agreements Being Modified
to Remove STET (or Telecom Italia) as a Party
---------------------------------------------
1. Amended and Restated Preferred Bidders Agreement, dated as of
December 20, 1991, by and among the Partnership, OrionSat,
STET and the Limited Partners and assigned by STET to Telecom
Italia (or a predecessor thereof) as of December 21, 1993.
2. Agreement of Principles, dated as of April 2, 1992, by and
among the Partnership, OrionSat, STET and the Limited
Partners, and assigned by STET to Telecom Italia (or a
predecessor thereof) as of December 21, 1993, which superseded
the earlier "Amended and Restated Agreement in Principle."
3. Consent and Agreement, dated as of December 20, 1991, relating
to certain sales of partnership interests, by and among the
Partnership, STET and the Limited Partners.
<PAGE>
Annex 3
-------
Agreements Being Modified
As Specified Herein
-------------------
1. Communications Satellite Capacity Agreement, dated as of
October 22, 1991, by and between the Partnership and STET and
assigned by STET to Telecom Italia (or a predecessor thereof)
as of December 21, 1993: modifications regarding a change in
Telecom Italia's selected capacity and change in the
termination date to December 31, 1997 (subject to the
completion of a bond financing, bank loan refinancing, bank
approval or occurrence of other conditions permitting
termination under existing agreements between the Partnership
and its senior lenders), with certain options for Telecom
Italia to extend the term, with respect to part or all of the
capacity covered thereby, through December 31, 1999.
2. Contingent Communications Satellite Capacity Agreement, dated
as of October 22, 1991, by and between the Partnership and
STET and assigned by STET to Telecom Italia (or a predecessor
thereof) as of December 21, 1993: modifications to cause
termination to occur upon the completion of a bond financing,
bank loan refinancing, bank approval or occurrence of other
conditions permitting termination under existing agreements
between the Partnership and its senior lenders.
3. 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 and
assigned to Telecom Italia (or a predecessor thereof) as of
December 21, 1993: modifications regarding revisions to the
statement of work, reduction of the payment obligations of the
Partnership by approximately $1.5 million and changes to the
ratio for payments by the Partnership between cash and
capacity credits.
4. Telespazio Communications Capacity Agreement dated as of
August 2, 1991 by and between the Partnership and Telespazio
S.p.A.: modification regarding use of capacity credits earned
pursuant to the Italian Facility and Services Agreement
referred to in item 3 of this Annex 3.
5. STET-IPSP Agreement, dated as of December 25, 1991, by and
among the Partnership, OrionSat, STET and the Limited
Partners: modifications to provide that Section 2 thereof
(limitations on financial exposure), will survive, Sections 3
through 7 will not survive and the remaining provisions will
survive only to the extent they relate to surviving provisions
or agreements.
CERTIFICATE OF INCORPORATION
OF
ORIONNET, INC.
FIRST: The name of the Corporation is OrionNet, Inc.
(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.
<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 a 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 contained in this Certificate or Incorporation, and other
provisions authorized by the laws of the State of Delaware at a 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 15 day of January, 1988.
/S/ C.Elliot Bardsley
------------------------
C. Elliott Bardsley
BY-LAWS
OF
ORIONNET, INC.
1. Offices.
1.1 Registered Office. The registered office of the
corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware, and the registered agent in charge thereof shall be The Corporation
Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801.
1.2 Other Offices. The corporation may also have offices at
such other places, both within and without the State of Delaware, as the board
of directors may from time to time determine or the business of the corporation
may require.
2. Meetings of Stockholders.
2.1 Place of Meetings. All meetings of the stockholders for
the election of directors shall be held in Washington, D.C. at such place as may
be fixed from time to time by the board of directors, or at such other place,
within or without the State of Delaware, as shall be designated from time to
time by the board of directors and stated in the notice of the meeting or in a
duly executed waiver of notice thereof. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the
<PAGE>
State of Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
2.2 Annual Meetings. Annual meetings of stockholders,
commencing with the year 1988, shall be held on the first Thursday of May, if
not a legal holiday, and if a legal holiday, then on the next secular day
following, at 10:00 a.m., or at such other date and time as shall be designated
from time to time by the board of directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof, at which stockholders
shall elect a board of directors and transact such other business as may
properly be brought before the meeting.
2.3 Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the board of directors or by the
president, and shall be called by the president or secretary at the request in
writing of stockholders owning a majority in amount of the entire capital stock
of the corporation issued and outstanding and entitled to vote. Such request
shall include a statement of the purpose or purposes of the proposed meeting.
2.4 Notice of Meetings. Written notice of the annual meeting,
stating the place, date and hour of the meeting, shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting. Written notice of a special meeting
<PAGE>
of stockholders, stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called, shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more than sixty days
before the date of the meeting.
2.5 Business at Special Meetings. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice.
2.6 List of Stockholders. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the corporation, or to vote in person or by proxy at any
meeting of stockholders.
<PAGE>
2.7 Quorum at Meetings. Except as otherwise provided by
statute or by the certificate of incorporation, the holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any such meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time to another time
and place, without notice other than announcement at the meeting of such other
time and place. At the adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the original meeting. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
2.8 Voting and Proxies. Unless otherwise provided in the
certificate of incorporation, and subject to the provisions of Section 6.4 of
these by-laws, each stockholder shall be entitled to one vote on each matter, in
person or by proxy, for each share of the corporation's capital stock having
voting power which is held by such stockholder. No proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for a longer
period. A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest
<PAGE>
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the corporation generally.
2.9 Required Vote. When a quorum is present at any meeting of
stockholders, all matters shall be determined, adopted and approved by the vote
(which need not be by ballot) of a majority of the votes cast with respect to
the matter, unless the proposed action is one upon which, by express provision
of statutes or of the certificate of incorporation, a different vote is
specified and required, in which case such express provision shall govern and
control the decision of such question. Notwithstanding the foregoing, candidates
for election as members of the board of directors who receive the highest number
of votes, up to the number of directors to be chosen, shall stand elected, and
an absolute majority of the votes cast shall not be a prerequisite to the
election of any candidate to the board of directors.
2.10 Action Without a Meeting. Unless otherwise provided in
the certificate of incorporation, any action required to be taken at any annual
or special meeting of stockholders of the corporation, or any action which may
be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, is signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the
<PAGE>
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who shall not have consented in
writing.
3. Directors.
3.1 Powers. The business and affairs of the corporation shall
be managed by or under the direction of the board of directors, which may
exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the certificate of incorporation or by these
by-laws directed or required to be exercised or done by the stockholders.
3.2 Number and Election. The number of directors which shall
constitute the whole board shall not be less than one nor more than ten. The
first board shall consist of three directors. Thereafter, within the limits
above specified, the number of directors shall be determined by resolution of
the board of directors. The directors shall be elected at the annual meeting of
the stockholders, except as provided in Section 3.3 hereof, and each director
elected shall hold office until his successor is elected and qualified or until
his earlier resignation or removal. Directors need not be stockholders.
3.3 Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director, and each director so chosen shall hold office
until the next annual election and until his successor is elected
<PAGE>
and qualified, or until his earlier resignation or removal. If there are no
directors in office, then an election of directors may be held in the manner
provided by statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), the
Court of Chancery of the State of Delaware may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the then outstanding shares having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office, in accordance with the General Corporation Law of the State of
Delaware. In the event that one or more directors resigns from the board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office until the
next annual election and until his successor is elected and qualified, or until
his earlier resignation or removal.
3.4 Place of Meetings. The board of directors of the
corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
3.5 First Meeting of Each Board. The first meeting of each
newly elected board of directors shall be held at such time and place as shall
<PAGE>
be specified in a notice given as hereinafter provided for special meetings of
the board of directors, or as shall be specified in a written waiver of notice
signed by all of the directors.
3.6 Regular Meetings. Regular meetings of the board of
directors may be held without notice at such time and at such place as shall
from time to time be determined by the board of directors.
3.7 Special Meetings. Special-meetings of the board may be
called by the president on one day's notice to each director, either personally
or by telephone, by mail or by telegram; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of one-third of the total number of directors.
3.8 Quorum and Vote at Meetings. At all meetings of the board,
one director if a board of one director is authorized, or such greater number of
directors as is not less than a majority of the total number of directors, shall
constitute a quorum for the transaction of business. The vote of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be present
at any meeting of the board of directors, the directors present thereat may
adjourn the meeting to another time and place, without notice other than
announcement at the meeting of such other time and place.
<PAGE>
3.9 Telephone Meetings. Members of the board of directors or
any committee designated by the board may participate in a meeting of such board
or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this section shall
constitute presence in person at such meeting.
3.10 Action Without Meeting. Unless otherwise restricted by
the certificate of incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the board of directors or of any
committee thereof may be taken without a meeting, if all members of the board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the board of directors or
committee.
3.11 Committees of Directors. The board of directors may by
resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. If a member of a committee shall be absent from any
meeting, or disqualified from voting thereat, the remaining member or members
present and not disqualified from voting, whether or not such member or members
constitute a quorum, may, by unanimous vote, appoint another member of the board
of directors to act at
<PAGE>
the meeting in the place of such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors,
shall have and may exercise all the powers and authority of the board of
directors in the management of the business and affairs of the corporation, and
may authorize the seal of the corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the certificate of incorporation (except that a committee may, to
the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the board of directors pursuant to
Section 151(a) of the General Corporation Law of the State of Delaware
[hereinafter the "GCL"], fix any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the corporation or the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation), adopting an agreement of
merger or consolidation pursuant to Sections 251 or 252 of the GCL, recommending
to the stockholders the sale, lease or exchange of all or substantially all of
the corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless otherwise expressly provided in the
resolution, no such committee shall have the power or authority to declare a
dividend, to authorize the
<PAGE>
issuance of stock, or to adopt a certificate of ownership and merger pursuant to
Section 253 of the GCL. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the board
of directors. Unless otherwise specified in the resolution of the board of
directors designating the committee, at all meetings of each such committee of
directors, a majority of the total number of members of the committee shall
constitute a quorum for the transaction of business, and the vote of a majority
of the members of the committee present at any meeting at which there is a
quorum shall be the act of the committee. Each committee shall keep regular
minutes of its meetings and report the same to the board of directors, when
required.
3.12 Compensation of Directors. Unless otherwise restricted by
the certificate of incorporation, the board of directors shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the board of directors and
may be paid a fixed sum for attendance at each meeting of the board of directors
or a stated salary as director. No such payment shall preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be paid like
compensation for attending committee meetings.
<PAGE>
4. Notices of Meetings.
4.1 Notice Procedure. Whenever, whether under the provisions
of any statute or of the certificate of incorporation or of these by-laws,
notice is required to be given to any director or stockholder, such requirement
shall not be construed to require the giving of personal notice. Such notice may
be given in writing, by mail, addressed to such director or stockholder, at his
address as it appears on the records of the corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
is deposited in the United States mail. Notice to directors may also be given by
telex, telegram or telephone.
4.2 Waivers of Notice. Whenever the giving of any notice is
required by statute, the certificate of incorporation or these by-laws, a waiver
thereof, in writing, signed by the person or persons entitled to said notice,
whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors or members of a
committee of directors need be specified in any written waiver of notice, unless
so required by the certificate of incorporation, by statute or by these by-laws.
<PAGE>
5. Officers.
5.1 Positions. The officers of the corporation shall be a
president, a secretary and a treasurer, and such other officers as the board of
directors may appoint, including a chairman of the board, and one or more vice
presidents, assistant secretaries and assistant treasurers, who shall exercise
such powers and perform such duties as shall be determined from time to time by
the board. Any number of offices may be held by the same person, unless the
certificate of incorporation or these by-laws otherwise provide; provided,
however, that in no event shall the president and the secretary be the same
person.
5.2 Appointment. The officers of the corporation shall be
chosen by the board of directors at its first meeting after each annual meeting
of stockholders.
5.3 Compensation. The compensation of all officers of the
corporation shall be fixed by the board of directors.
5.4 Term of Office. The officers of the corporation shall hold
office until their successors are chosen and qualify or until their earlier
resignation or removal. Any officer may resign at any time upon written notice
to the corporation. Any officer elected or appointed by the board of directors
may be removed at any time, with or without cause, by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
<PAGE>
5.5 Fidelity Bonds. The corporation may secure the fidelity of
any or all of its officers or agents by bond or otherwise.
5.6 President. The president shall be the chief executive
officer of the corporation, shall be ex officio a member of all standing
committees, shall have general and active management of the business of the
corporation, shall ensure that all orders and resolutions of the board of
directors are carried into effect, and, unless otherwise provided by the board
of directors, shall preside at all meetings of the stockholders and the board of
directors. The president shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
5.7 Vice President. In the absence of the president or in the
event of the president's inability or refusal to act, the vice president (or in
the event there be more than one vice president, the vice presidents in the
order designated, or in the absence of any designation, then in the order of
their election) shall perform the duties of the president, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
5.8 Chairman of the Board. If the directors shall appoint a
chairman of the board, the chairman shall, when present, preside at all
<PAGE>
meetings of the board of directors and shall perform such other duties and have
such other powers as may be vested in the chairman by the board of directors.
5.9 Secretary. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders, and shall record all
the proceedings of the meetings of the stockholders and of the board of
directors in a book to be kept for that purpose, and shall perform like duties
for the standing committees, when required. The secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings of
the board of directors, and shall perform such other duties as may be prescribed
by the board of directors or by the president, under whose supervision the
secretary shall be. The secretary shall have custody of the corporate seal of
the corporation, and the secretary, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it, and when so affixed
it may be attested by the signature of the secretary or by the signature of such
assistant secretary. The board of directors may give general authority to any
other officer to affix the seal of the corporation and to attest the affixing by
such officer's signature. The secretary or an assistant secretary may also
attest all instruments signed by the chairman of the board, the president or any
vice president.
5.10 Assistant Secretary. The assistant secretary, or if there
be more than one, the assistant secretaries in the order determined by the board
of directors (or if there shall have been no such determination, then in
<PAGE>
the order of their election), shall, in the absence of the secretary or in the
event of the secretary's inability or refusal to act, perform the duties and
exercise the powers of the secretary, and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
5.11 Treasurer.
5.11.1 Duties. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation, and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors. The treasurer shall disburse the funds of the corporation as ordered
by the board of directors, taking proper vouchers for such disbursements, and
shall render to the president, and to the board of directors at its regular
meetings, or when the board of directors so requires, an account of all
transactions as treasurer and of the financial condition of the corporation.
5.11.2 Bond. If required by the board of directors, the
treasurer shall give the corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the board of directors for the faithful
performance of the duties of the treasurer's office and for the restoration to
the corporation, in case of the treasurer's death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property
<PAGE>
of whatever kind, in the treasurer's possession or under the treasurer's control
and belonging to the corporation.
5.12 Assistant Treasurer. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by the
board of directors (or if there shall have been no such determination, then in
the order of their election), shall, in the absence of the treasurer or in the
event of the treasurer's inability or refusal to act, perform the duties and
exercise the powers of the treasurer, and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
6. Capital Stock.
6.1 Certificates of Stock; Uncertificated Shares. The shares
of the corporation shall be represented by certificates, provided that the board
of directors may provide by resolution or resolutions that some or all of any or
all classes or series of the corporation's stock shall be uncertificated shares.
Any such resolution shall not apply to shares represented by a certificate until
such certificate is surrendered to the corporation. Notwithstanding the adoption
of such a resolution by the board of directors, every holder of stock
represented by certificates and upon request every holder of uncertificated
shares shall be entitled to have a certificate signed by, or in the name of the
corporation by the chairman or vice chairman of the board of directors, or the
president or vice president, and by the treasurer
<PAGE>
and/or assistant treasurer, or the secretary or an assistant secretary of such
corporation representing the number of shares registered in certificate form.
Any or all the signatures on the certificate may be facsimile. In case any
officer, transfer agent or registrar whose signature or facsimile signature
appears on a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the corporation
with the same effect as if such person were such officer, transfer agent or
registrar at the date of issue.
6.2 Lost Certificates. The board of directors may direct a new
certificate or certificates of stock or uncertificated shares to be issued in
place of any certificate or certificates theretofore issued by the corporation
and alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming that the certificate of stock has
been lost, stolen or destroyed. When authorizing such issuance of a new
certificate or certificates, the board of directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or such owner's legal
representative, to advertise the same in such manner as the board shall require
and/or to give the corporation a bond, in such sum as the board may direct, as
indemnity against any claim that may be made against the corporation on account
of the certificate alleged to have been lost, stolen or destroyed or on account
of the issuance of such new certificate or uncertificated shares.
<PAGE>
6.3 Transfers. The transfer of stock and certificates that
represent the stock and the transfer of uncertificated shares shall be effected
in accordance with the laws of the State of Delaware. Any restriction on the
transfer of a security imposed by the corporation shall be noted conspicuously
on the security.
6.4 Fixing Record Date. In order that the corporation may
determine the stockholders entitled to notice of, or to vote at, any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of,
or to vote at, a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
6.5 Registered Stockholders. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, to receive notifications, to vote as such
owner, and to exercise all the rights and powers of an owner; and the
corporation shall not be bound to recognize any equitable or other claim to or
<PAGE>
interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of the State of Delaware.
7. Indemnification.
Unless expressly prohibited by law, the corporation shall
fully indemnify any person made, or threatened to be made, a party to an action,
suit or proceeding (whether civil, criminal, administrative or investigative) by
reason of the fact that such person, or such person's testator or intestate, is
or was a director or officer, employee or agent of the corporation or serves or
served any other enterprise at the request of the corporation, against all
expenses (including attorneys' fees), judgments, fines and amounts paid or to be
paid in settlement incurred in connection with such action, suit or proceeding.
8. General Provisions.
8.1 Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation and
the laws of the State of Delaware, may be declared by the board of directors at
any regular or special meeting. Subject to the provisions of the General
Corporation Law of the State of Delaware, such dividends may be paid either out
of surplus, as defined in the General Corporation Law of the State of Delaware,
or in the event that there shall be no such surplus, out of the net profits for
the fiscal year in which the dividend is declared and/or the
<PAGE>
preceding fiscal year. Dividends may be paid in cash, in property, or in shares
of the corporation's capital stock, subject to the provisions, if any, of the
certificate of incorporation.
8.2 Reserves. The directors of the corporation may set apart,
out of the funds of the corporation available for dividends, a reserve or
reserves for any proper purpose and may abolish any such reserve.
8.3 Execution of Instruments. All checks or demands for money
and notes of the corporation shall be signed by such officer or officers or such
other person or persons as the board of directors may from time to time
designate.
8.4 Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
8.5 Seal. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
9. Amendments.
These by-laws may be altered, amended or repealed and new
by-laws may be adopted by the board of directors.
* * *
<PAGE>
The foregoing by-laws were adopted by the board of directors
on January 18, 1988.
/s/
Assistant Secretary
BY-LAWS
OF
ORION ASIA PACIFIC CORPORATION
1. Offices.
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1.1 Registered Office. The registered office of the corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware, and
the registered agent in charge thereof shall be The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
1.2 Other Offices. The corporation may also have offices at such
other places, both within and without the State of Delaware, as the board of
directors may from time to time determine or the business of the corporation may
require.
2. Meetings of Stockholders.
------------------------
2.1 Place of Meetings. All meetings of the stockholders for the
election of directors shall be held in Washington, D.C. at such place as may be
fixed from time to time by the board of directors, or at such other place,
within or without the State of Delaware, as shall be designated from time to
time by the board of directors and stated in the notice of the meeting or in a
duly executed waiver of notice thereof. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
-#-
<PAGE>
2.2 Annual Meetings. Annual meetings of stockholders, commencing
with the year 1992, shall be held on the first Thursday of May, if not a legal
holiday, and if a legal holiday, then on the next secular day following, at
10:00 a.m., or at such other date and time as shall be designated from time to
time by the board of directors and stated in the notice of the meeting or in a
duly executed waiver of notice thereof, at which stockholders shall elect a
board of directors and transact such other business as may properly be brought
before the meeting.
2.3 Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the board of directors or by the
president, and shall be called by the president or secretary at the request in
writing of stockholders owning a majority in amount of the entire capital stock
of the corporation issued and outstanding and entitled to vote. Such request
shall include a statement of the purpose or purposes of the proposed meeting.
2.4 Notice of Meetings. Written notice of the annual meeting,
stating the place, date and hour of the meeting, shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting. Written notice of a special meeting
of stockholders, stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called, shall be given to
-#-
<PAGE>
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting.
2.5 Business at Special Meetings. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice.
2.6 List of Stockholders. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the corporation, or to vote in person or by proxy at any
meeting of stockholders.
-#-
<PAGE>
2.7 Quorum at Meetings. Except as otherwise provided by statute
or by the certificate of incorporation, the holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any such meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time to another time
and place, without notice other than announcement at the meeting of such other
time and place. At the adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the original meeting. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
2.8 Voting and Proxies. Unless otherwise provided in the
certificate of incorporation, and subject to the provisions of Section 6.4 of
these by-laws, each stockholder shall be entitled to one vote on each matter, in
person or by proxy, for each share of the corporation's capital stock having
voting power which is held by such stockholder. No proxy shall be voted or acted
upon after three years from its date, unless the proxy
-#-
<PAGE>
provides for a longer period. A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the corporation generally.
2.9 Required Vote. When a quorum is present at any meeting of
stockholders, all matters shall be determined, adopted and approved by the vote
(which need not be by ballot) of a majority of the votes cast with respect to
the matter, unless the proposed action is one upon which, by express provision
of statutes or of the certificate of incorporation, a different vote is
specified and required, in which case such express provision shall govern and
control the decision of such question. Notwithstanding the foregoing, candidates
for election as members of the board of directors who receive the highest number
of votes, up to the number of directors to be chosen, shall stand elected, and
an absolute majority of the votes cast shall not be a prerequisite to the
election of any candidate to the board of directors.
2.10 Action Without a Meeting. Unless otherwise provided in the
certificate of incorporation, any action required to be taken at any annual or
special meeting of stockholders of the corporation, or any action which may be
taken at any annual
-#-
<PAGE>
or special meeting of such stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, is signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who shall not have consented in writing.
3. Directors.
---------
3.1 Powers. The business and affairs of the corporation shall be
managed by or under the direction of the board of directors, which may exercise
all such powers of the corporation and do all such lawful acts and things as are
not by statute or by the certificate of incorporation or by these by-laws
directed or required to be exercised or done by the stockholders.
3.2 Number and Election. The number of directors which shall
constitute the whole board shall not be less than one nor more than ten. The
first board shall consist of three directors. Thereafter, within the limits
above specified, the number of directors shall be determined by resolution of
the board of directors. The directors shall be elected at the annual
-#-
<PAGE>
meeting of the stockholders, except as provided in Section 3.3 hereof, and each
director elected shall hold office until his successor is elected and qualified
or until his earlier resignation or removal. Directors need not be stockholders.
3.3 Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director, and each director so chosen shall hold office
until the next annual election and until his successor is elected and qualified,
or until his earlier resignation or removal. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), the
Court of Chancery of the State of Delaware may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the then outstanding shares having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office, in accordance with the General Corporation Law of the State of
Delaware. In the event that one or more directors resigns from the board,
effective at a future
-#-
<PAGE>
date, a majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective, and
each director so chosen shall hold office until the next annual election and
until his successor is elected and qualified, or until his earlier resignation
or removal.
3.4 Place of Meetings. The board of directors of the corporation
may hold meetings, both regular and special, either within or without the State
of Delaware.
3.5 First Meeting of Each Board. The first meeting of each newly
elected board of directors shall be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
board of directors, or as shall be specified in a written waiver of notice
signed by all of the directors.
3.6 Regular Meetings. Regular meetings of the board of directors
may be held without notice at such time and at such place as shall from time to
time be determined by the board of directors.
3.7 Special Meetings. Special meetings of the board may be
called by the president on one day's notice to each director, either personally
or by telephone, by mail or by telegram; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of one-third of the total number of directors.
-#-
<PAGE>
3.8 Quorum and Vote at Meetings. At all meetings of the board,
one director if a board of one director is authorized, or such greater number of
directors as is not less than a majority of the total number of directors, shall
constitute a quorum for the transaction of business. The vote of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be present
at any meeting of the board of directors, the directors present thereat may
adjourn the meeting to another time and place, without notice other than
announcement at the meeting of such other time and place.
3.9 Telephone Meetings. Members of the board of directors or any
committee designated by the board may participate in a meeting of such board or
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this section shall constitute
presence in person at such meeting.
3.10 Action Without Meeting. Unless otherwise restricted by the
certificate of incorporation or these by-laws, any action required or permitted
to be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting, if all members of the board or committee, as
-#-
<PAGE>
the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the board of directors or committee.
3.11 Committees of Directors. The board of directors may by
resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. If a member of a committee shall be absent from any
meeting, or disqualified from voting thereat, the remaining member or members
present and not disqualified from voting, whether or not such member or members
constitute a quorum, may, by unanimous vote, appoint another member of the board
of directors to act at the meeting in the place of such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation (except that
a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
-#-
<PAGE>
pursuant to Section 151(a) of the General Corporation Law of the State of
Delaware [hereinafter the "GCL"], fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation), adopting an agreement of
merger or consolidation pursuant to Sections 251 or 252 of the GCL, recommending
to the stockholders the sale, lease or exchange of all or substantially all of
the corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless otherwise expressly provided in the
resolution, no such committee shall have the power or authority to declare a
dividend, to authorize the issuance of stock, or to adopt a certificate of
ownership and merger pursuant to Section 253 of the GCL. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the board of directors. Unless otherwise specified in
the resolution of the board of directors designating the committee, at all
meetings of each such committee of directors, a majority of the total number of
members of the committee shall constitute a quorum for the transaction of
business, and the vote of a majority of the members of the committee present at
any
-#-
<PAGE>
meeting at which there is a quorum shall be the act of the committee. Each
committee shall keep regular minutes of its meetings and report the same to the
board of directors, when required.
3.12 Compensation of Directors. Unless otherwise restricted by
the certificate of incorporation, the board of directors shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the board of directors and
may be paid a fixed sum for attendance at each meeting of the board of directors
or a stated salary as director. No such payment shall preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be paid like
compensation for attending committee meetings.
4. Notices of Meetings.
------------------
4.1 Notice Procedure. Whenever, whether under the provisions of
any statute or of the certificate of incorporation or of these by-laws, notice
is required to be given to any director or stockholder, such requirement shall
not be construed to require the giving of personal notice. Such notice may be
given in writing, by mail, addressed to such director or stockholder, at his
address as it appears on the records of the corporation, with postage thereon
prepaid, and such notice shall
-#-
<PAGE>
be deemed to be given at the time when the same is deposited in the United
States mail. Notice to directors may also be given by telex, telegram or
telephone.
4.2 Waivers of Notice. Whenever the giving of any notice is
required by statute, the certificate of incorporation or these by-laws, a waiver
thereof, in writing, signed by the person or persons entitled to said notice,
whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors or members of a
committee of directors need be specified in any written waiver of notice, unless
so required by the certificate of incorporation, by statute or by these by-laws.
5. Officers.
--------
5.1 Positions. The officers of the corporation shall be a
chairman and a secretary, and such other officers as the board of directors may
appoint, including a president, vice chairman, one or more vice presidents, a
treasurer, assistant secretaries and assistant treasurers, who shall exercise
such
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<PAGE>
powers and perform such duties as shall be determined from time to time by the
board. Any number of offices may be held by the same person, unless the
certificate of incorporation or these by-laws otherwise provide; provided,
however, that in no event shall the chairman and the secretary be the same
person.
5.2 Appointment. The officers of the corporation shall be chosen
by the board of directors at its first meeting after each annual meeting of
stockholders.
5.3 Compensation. The compensation of all officers of the
corporation shall be fixed by the board of directors.
5.4 Term of Office. The officers of the corporation shall hold
office until their successors are chosen and qualify or until their earlier
resignation or removal. Any officer may resign at any time upon written notice
to the corporation. Any officer elected or appointed by the board of directors
may be removed at any time, with or without cause, by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
5.5 Fidelity Bonds. The corporation may secure the fidelity of
any or all of its officers or agents by bond or otherwise.
5.6 Chairman. The chairman shall be the chief executive officer
of the corporation, shall be ex officio a member of all standing committees,
shall have general and active
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<PAGE>
management of the business of the corporation, shall ensure that all orders and
resolutions of the board of directors are carried into effect, and, unless
otherwise provided by the board of directors, shall preside at all meetings of
the stockholders and the board of directors. The chairman shall have the
authority to execute bonds, mortgages and other contracts requiring a seal,
under the seal of the corporation, except where required or permitted by law to
be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the board of directors to some other
officer or agent of the corporation.
5.7 President. The president shall be the chief operating
officer of the corporation, shall have general management of the day-to-day
operations of the business of the corporation, subject to the authority of the
chairman. In the absence of the chairman or in the event of the chairman's
inability or refusal to act, the president shall perform the duties of the
chairman (except to the extent that the vice chairman is authorized to perform
such duties), and when so acting shall have all the powers of, and be subject to
all the restrictions upon, the chairman. The president shall have the authority
to execute bonds, mortgages and other contracts requiring a seal, under the seal
of the corporation, except where required or permitted by law to be otherwise
signed and executed and except where the signing and execution thereof shall be
-#-
<PAGE>
expressly delegated by the board of directors to some other officer or agent of
the corporation.
5.8 Vice Chairman or Vice Presidents. If the directors shall
appoint a vice chairman or one or more vice presidents, such vice chairman or
vice presidents shall perform such duties and have such powers as may be vested
in such vice chairman or vice presidents by the board of directors or by the
chairman. In the absence of the chairman, the vice chairman shall preside at all
meetings of stockholders and the board of directors, and the vice chairman shall
report to the chairman and be subject to his authority and direction.
5.9 Secretary. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders, and shall record all
the proceedings of the meetings of the stockholders and of the board of
directors in a book to be kept for that purpose, and shall perform like duties
for the standing committees, when required. The secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings of
the board of directors, and shall perform such other duties as may be prescribed
by the board of directors or by the president, under whose supervision the
secretary shall be. The secretary shall have custody of the corporate seal of
the corporation, and the secretary, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it, and when so affixed
it may be attested by the signature of the
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<PAGE>
secretary or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by such officer's signature. The
secretary or an assistant secretary may also attest all instruments signed by
the chairman, the president or any vice president.
5.10 Assistant Secretary. The assistant secretary, or if there
be more than one, the assistant secretaries in the order determined by the board
of directors (or if there shall have been no such determination, then in the
order of their election), shall, in the absence of the secretary or in the event
of the secretary's inability or refusal to act, perform the duties and exercise
the powers of the secretary, and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
5.11 Treasurer.
----------
5.11.1 Duties. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation, and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors. The treasurer shall disburse the funds of the corporation as ordered
by the board of directors, taking
-#-
<PAGE>
proper vouchers for such disbursements, and shall render to the president, and
to the board of directors at its regular meetings, or when the board of
directors so requires, an account of all transactions as treasurer and of the
financial condition of the corporation.
5.11.2 Bond. If required by the board of directors, the
treasurer shall give the corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the board of directors for the faithful
performance of the duties of the treasurer's office and for the restoration to
the corporation, in case of the treasurer's death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind, in the treasurer's possession or under the treasurer's control
and belonging to the corporation.
5.12 Assistant Treasurer. The assistant treasurer, or if
there shall be more than one, the assistant treasurers in the order determined
by the board of directors (or if there shall have been no such determination,
then in the order of their election), shall, in the absence of the treasurer or
in the event of the treasurer's inability or refusal to act, perform the duties
and exercise the powers of the treasurer, and shall perform such other duties
and have such other powers as the board of directors may from time to time
prescribe.
-#-
<PAGE>
6. Capital Stock.
-------------
6.1 Certificates of Stock; Uncertificated Shares. The shares of
the corporation shall be represented by certificates, provided that the board of
directors may provide by resolution or resolutions that some or all of any or
all classes or series of the corporation's stock shall be uncertificated shares.
Any such resolution shall not apply to shares represented by a certificate until
such certificate is surrendered to the corporation. Notwithstanding the adoption
of such a resolution by the board of directors, every holder of stock
represented by certificates and upon request every holder of uncertificated
shares shall be entitled to have a certificate signed by, or in the name of the
corporation by the chairman or vice chairman of the board of directors, or the
president or vice president, and by the treasurer and/or assistant treasurer, or
the secretary or an assistant secretary of such corporation representing the
number of shares registered in certificate form. Any or all the signatures on
the certificate may be facsimile. In case any officer, transfer agent or
registrar whose signature or facsimile signature appears on a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue.
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<PAGE>
6.2 Lost Certificates. The board of directors may direct a new
certificate or certificates of stock or uncertificated shares to be issued in
place of any certificate or certificates theretofore issued by the corporation
and alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming that the certificate of stock has
been lost, stolen or destroyed. When authorizing such issuance of a new
certificate or certificates, the board of directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or such owner's legal
representative, to advertise the same in such manner as the board shall require
and/or to give the corporation a bond, in such sum as the board may direct, as
indemnity against any claim that may be made against the corporation on account
of the certificate alleged to have been lost, stolen or destroyed or on account
of the issuance of such new certificate or uncertificated shares.
6.3 Transfers. The transfer of stock and certificates that
represent the stock and the transfer of uncertificated shares shall be effected
in accordance with the laws of the State of Delaware. Any restriction on the
transfer of a security imposed by the corporation shall be noted conspicuously
on the security.
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<PAGE>
6.4 Fixing Record Date. In order that the corporation may
determine the stockholders entitled to notice of, or to vote at, any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of,
or to vote at, a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
6.5 Registered Stockholders. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, to receive notifications, to vote as such
owner, and to exercise all the rights and powers of an owner; and the
corporation shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of the State of Delaware.
-#-
<PAGE>
7. Indemnification.
---------------
Unless expressly prohibited by law, the corporation shall fully
indemnify any person made, or threatened to be made, a party to an action, suit
or proceeding (whether civil, criminal, administrative or investigative) by
reason of the fact that such person, or such person's testator or intestate, is
or was a director or officer, employee or agent of the corporation or serves or
served any other enterprise at the request of the corporation, against all
expenses (including attorneys' fees), judgments, fines and amounts paid or to be
paid in settlement incurred in connection with such action, suit or proceeding.
8. General Provisions.
------------------
8.1 Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation and
the laws of the State of Delaware, may be declared by the board of directors at
any regular or special meeting. Subject to the provisions of the General
Corporation Law of the State of Delaware, such dividends may be paid either out
of surplus, as defined in the General Corporation Law of the State of Delaware,
or in the event that there shall be no such surplus, out of the net profits for
the fiscal year in which the dividend is declared and/or the preceding fiscal
year. Dividends may be paid in cash, in property, or in shares of the
corporation's capital stock, subject to the provisions, if any, of the
certificate of incorporation.
-#-
<PAGE>
8.2 Reserves. The directors of the corporation may set apart,
out of the funds of the corporation available for dividends, a reserve or
reserves for any proper purpose and may abolish any such reserve.
8.3 Execution of Instruments. All checks or demands for money
and notes of the corporation shall be signed by such officer or officers or such
other person or persons as the board of directors may from time to time
designate.
8.4 Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
8.5 Seal. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
9. Amendments.
----------
These by-laws may be altered, amended or repealed and new
by-laws may be adopted by the board of directors.
* * * *
-#-
<PAGE>
The foregoing by-laws were adopted by the board of directors on
April , 1992.
---
-#-
CERTIFICATE OF INCORPORATION
OF
ORIONNET FINANCE CORPORATION
FIRST: The name of the Corporation is OrionNet Finance
Corporation (hereinafter called the "Corporation").
SECOND: The registered office of the Corporation in the State
of Delaware is 1013 Centre Road, Wilmington, Delaware 19805, County of New
Castle. The name of the Corporation's registered agent in Corporation Service
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, have a par value of $.01 per share.
FIFTH: The name and mailing address of the incorporator is
Richard H. Shay, 2440 Research Boulevard, Rockville, Marlyand 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
<PAGE>
annual meeting of the stockholders of the Corporation or until successor or
successors are elected and qualify:
Name Mailing Address
-------------------------------------------------------------
John G. Puente 2440 Research Boulevard
Rockville, Maryland 20850
W. Neil Bauer 2440 Research Boulevard
Rockville, Maryland 20850
John Mattingly 2440 Research Boulevard
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 the 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)
<PAGE>
for acts or omissions not if 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.
TENTH: The Corporation reserves the right at any time, and
from time to time, to amend, alter, change or repeal any provision contained in
this Certificate of 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 , 1993.
------ -----
--------------------------
Richard H. Shay
BY-LAWS
OF
ORIONNET FINANCE CORPORATION
1. Offices.
1.1 Registered Office. The registered office of the
corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware, and the registered agent in charge thereof shall be Corporation
Service Company, 1013 Centre Road, Wilmington, Delaware 19805.
1.2 Other Offices. The corporation may also have offices at
such other places, both within and without the State of Delaware, as the board
of directors may from time to time determine or the business of the corporation
may require.
2. Meetings of Stockholders.
2.1 Place of Meetings. All meetings of the stockholders for
the election of directors shall be held in Washington, D.C. at such place as may
be fixed from time to time by the board of directors, or at such other place,
within or without the State of Delaware, as shall be designated from time to
time by the board of directors and stated in the notice of the meeting
<PAGE>
or in a duly executed waiver of notice thereof. Meetings of stockholders for any
other purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
2.2 Annual Meetings. Annual meetings of stockholders,
commencing with the year 1993, shall be held on the first Thursday of May, if
not a legal holiday, and if a legal holiday, then on the next secular day
following, at 10:00 a.m., or at such other date and time as shall be designated
from time to time by the board of directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof, at which stockholders
shall elect a board of directors and transact such other business as may
properly be brought before the meeting.
2.3 Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the board of directors or by the
president, and shall be called by the president or secretary at the request in
writing of stockholders owning a majority in amount of the entire capital stock
of the corporation issued and outstanding and entitled to vote. Such request
shall include a statement of the purpose or purposes of the proposed meeting.
2.4 Notice of Meetings. Written notice of the annual meeting,
stating the place, date and hour of the meeting, shall be given to each
<PAGE>
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting. Written notice of a special meeting
of stockholders, stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called, shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more than sixty days
before the date of the meeting.
2.5 Business at Special Meetings. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice.
2.6 List of Stockholders. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present. The stock ledger shall be the
<PAGE>
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by this section or the books of the corporation, or to
vote in person or by proxy at any meeting of stockholders.
2.7 Quorum at Meetings. Except as otherwise provided by
statute or by the certificate of incorporation, the holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any such meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time to another time
and place, without notice other than announcement at the meeting of such other
time and place. At the adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the original meeting. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
2.8 Voting and Proxies. Unless otherwise provided in the
certificate of incorporation, and subject to the provisions of Section 6.4 of
these by-laws, each stockholder shall be entitled to one vote on each matter, in
person or by proxy, for each share of the corporation's capital stock having
<PAGE>
voting power which is held by such stockholder. No proxy shall
be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the corporation generally.
2.9 Required Vote. When a quorum is present at any meeting of
stockholders, all matters shall be determined, adopted and approved by the vote
(which need not be by ballot) of a majority of the votes cast with respect to
the matter, unless the proposed action is one upon which, by express provision
of statutes or of the certificate of incorporation, a different vote is
specified and required, in which case such express provision shall govern and
control the decision of such question. Notwithstanding the foregoing, candidates
for election as members of the board of directors who receive the highest number
of votes, up to the number of directors to be chosen, shall stand elected, and
an absolute majority of the votes cast shall not be a prerequisite to the
election of any candidate to the board of directors.
2.10 Action Without a Meeting. Unless otherwise provided in
the certificate of incorporation, any action required to be taken at any annual
or special meeting of stockholders of the corporation, or any action which may
be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
<PAGE>
writing, setting forth the action so taken, is signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who shall not have consented in writing.
3. Directors.
3.1 Powers. The business and affairs of the corporation shall
be managed by or under the direction of the board of directors, which may
exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the certificate of incorporation or by these
by-laws directed or required to be exercised or done by the stockholders.
3.2 Number and Election. The number of directors which shall
constitute the whole board shall not be less than one nor more than ten. The
first board shall consist of three directors. Thereafter, within the limits
above specified, the number of directors shall be determined by resolution of
the board of directors. The directors shall be elected at the annual meeting of
the stockholders, except as provided in Section 3.3 hereof, and each director
elected shall hold office until his successor is elected and qualified or until
his earlier resignation or removal. Directors need not be stockholders.
<PAGE>
3.3 Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director, and each director so chosen shall hold office
until the next annual election and until his successor is elected and qualified,
or until his earlier resignation or removal. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), the
Court of Chancery of the State of Delaware may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the then outstanding shares having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office, in accordance with the General Corporation Law of the State of
Delaware. In the event that one or more directors resigns from the board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold
<PAGE>
office until the next annual election and until his successor is elected and
qualified, or until his earlier resignation or removal.
3.4 Place of Meetings. The board of directors of the
corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
3.5 First Meeting of Each Board. The first meeting of each
newly elected board of directors shall be held at such time and place as shall
be specified in a notice given as hereinafter provided for special meetings of
the board of directors, or as shall be specified in a written waiver of notice
signed by all of the directors.
3.6 Regular Meetings. Regular meetings of the board of
directors may be held without notice at such time and at such place as shall
from time to time be determined by the board of directors.
3.7 Special Meetings. Special meetings of the board may be
called by the president on one day's notice to each director, either personally
or by telephone, by mail or by telegram; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of one-third of the total number of directors.
3.8 Quorum and Vote at Meetings. At all meetings of the board,
one director if a board of one director is authorized, or such greater number of
directors as is not less than a majority of the total number of directors, shall
constitute a quorum for the transaction of business. The vote
<PAGE>
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors, the
directors present thereat may adjourn the meeting to another time and place,
without notice other than announcement at the meeting of such other time and
place.
3.9 Telephone Meetings. Members of the board of directors or
any committee designated by the board may participate in a meeting of such board
or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this section shall
constitute presence in person at such meeting.
3.10 Action Without Meeting. Unless otherwise restricted by
the certificate of incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the board of directors or of any
committee thereof may be taken without a meeting, if all members of the board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the board of directors or
committee.
3.11 Committees of Directors. The board of directors may by
resolution passed by a majority of the whole board, designate one or more
<PAGE>
committees, each committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. If a member of a committee shall be absent from any
meeting, or disqualified from voting thereat, the remaining member or members
present and not disqualified from voting, whether or not such member or members
constitute a quorum, may, by unanimous vote, appoint another member of the board
of directors to act at the meeting in the place of such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation (except that
a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
pursuant to Section 151(a) of the General Corporation Law of the State of
Delaware [hereinafter the "GCL"], fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other
<PAGE>
series of' the same or any other class or classes of stock of the corporation),
adopting an agreement of merger or consolidation pursuant to Sections 251 or 252
of the GCL, recommending to the stockholders the sale, lease or exchange of all
or substantially all of the corporation's property and assets, recommending to
the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the by-laws of the corporation; and, unless otherwise
expressly provided in the resolution, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the GCL. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors. Unless otherwise
specified in the resolution of the board of directors designating the committee,
at all meetings of each such committee of directors, a majority of the total
number of members of the committee shall constitute a quorum for the transaction
of business, and the vote of a majority of the members of the committee present
at any meeting at which there is a quorum shall be the act of the committee.
Each committee shall keep regular minutes of its meetings and report the same to
the board of directors, when required.
3.12 Compensation of Directors. Unless otherwise restricted by
the certificate of incorporation, the board of directors shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the board of directors
<PAGE>
and may be paid a fixed sum for attendance at each meeting of the board of
directors or a stated salary as director. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be paid
like compensation for attending committee meetings.
4. Notices of Meetings.
4.1 Notice Procedure. Whenever, whether under the provisions
of any statute or of the certificate of incorporation or of these by-laws,
notice is required to be given to any director or stockholder, such requirement
shall not be construed to require the giving of personal notice. Such notice may
be given in writing, by mail, addressed to such director or stockholder, at his
address as it appears on the records of the corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
is deposited in the United States mail. Notice to directors may also be given by
telex, telegram or telephone.
4.2 Waivers of Notice. Whenever the giving of any notice is
required by statute, the certificate of incorporation or these by-laws, a waiver
thereof, in writing, signed by the person or persons entitled to said notice,
whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the
<PAGE>
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders, directors or members of
a committee of directors need be specified in any written waiver of notice,
unless so required by the certificate of incorporation, by statute or by these
by-laws.
5. Officers.
5.1 Positions. The officers of the corporation shall be a
president, a secretary and a treasurer, and such other officers as the board of
directors may appoint, including a chairman of the board, and one or more vice
presidents, assistant secretaries and assistant treasurers, who shall exercise
such powers and perform such duties as shall be determined from time to time by
the board. Any number of offices may be held by the same person, unless the
certificate of incorporation or these by-laws otherwise provide; provided,
however, that in no event shall the president and the secretary be the same
person.
5.2 Appointment. The officers of the corporation shall be
chosen by the board of directors at its first meeting after each annual meeting
of stockholders.
5.3 Compensation. The compensation of all officers of the
corporation shall be fixed by the board of directors.
<PAGE>
5.4 Term of Office. The officers of the corporation shall hold
office until their successors are chosen and qualify or until their earlier
resignation or removal. Any officer may resign at any time upon written notice
to the corporation. Any officer elected or appointed by the board of directors
may be removed at any time, with or without cause, by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
5.5 Fidelity Bonds. The corporation may secure the fidelity of
any or all of its officers or agents by bond or otherwise.
5.6 President. The president shall be the chief executive
officer of the corporation, shall be ex officio a member of all standing
committees, shall have general and active management of the business of the
corporation, shall ensure that all orders and resolutions of the board of
directors are carried into effect, and, unless otherwise provided by the board
of directors, shall preside at all meetings of the stockholders and the board of
directors. The president shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
<PAGE>
5.7 Vice President. In the absence of the president or in the
event of the president's inability or refusal to act, the vice president (or in
the event there be more than one vice president, the vice presidents in the
order designated, or in the absence of any designation, then in the order of
their election) shall perform the duties of the president, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
5.8 Chairman of the Board. If the directors shall appoint a
chairman of the board, the chairman shall, when present, preside at all meetings
of the board of directors and shall perform such other duties and have such
other powers as may be vested in the chairman by the board of directors.
5.9 Secretary. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders, and shall record all
the proceedings of the meetings of the stockholders and of the board of
directors in a book to be kept for that purpose, and shall perform like duties
for the standing committees, when required. The secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings of
the board of directors, and shall perform such other duties as may be prescribed
by the board of directors or by the president, under whose supervision the
secretary shall be. The secretary shall have custody of the
<PAGE>
corporate seal of the corporation, and the secretary, or an assistant secretary,
shall have authority to affix the same to any instrument requiring it, and when
so affixed it may be attested by the signature of the secretary or by the
signature of such assistant secretary. The board of directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by such officer's signature. The secretary or an assistant
secretary may also attest all instruments signed by the chairman of the board,
the president or any vice president.
5.10 Assistant Secretary. The assistant secretary, or if there
be more than one, the assistant secretaries in the order determined by the board
of directors (or if there shall have been no such determination, then in the
order of their election), shall, in the absence of the secretary or in the event
of the secretary's inability or refusal to act, perform the duties and exercise
the powers of the secretary, and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
5.11 Treasurer.
5.11.1 Duties. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation, and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors. The treasurer shall disburse the funds of the corporation
<PAGE>
as ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president, and to the board of directors
at its regular meetings, or when the board of directors so requires, an account
of all transactions as treasurer and of the financial condition of the
corporation.
5.11.2 Bond. If required by the board of directors, the
treasurer shall give the corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the board of directors for the faithful
performance of the duties of the treasurer's office and for the restoration to
the corporation, in case of the treasurer's death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind, in the treasurer's possession or under the treasurer's control
and belonging to the corporation.
5.12 Assistant Treasurer. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by the
board of directors (or if there shall have been no such determination, then in
the order of their election), shall, in the absence of the treasurer or in the
event of the treasurer's inability or refusal to act, perform the duties and
exercise the powers of the treasurer, and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
<PAGE>
6. Capital Stock.
6.1 Certificates of Stock; Uncertificated Shares. The shares
of the corporation shall be represented by certificates, provided that the board
of directors may provide by resolution or resolutions that some or all of any or
all classes or series of the corporation's stock shall be uncertificated shares.
Any such resolution shall not apply to shares represented by a certificate until
such certificate is surrendered to the corporation. Notwithstanding the adoption
of such a resolution by the board of directors, every holder of stock
represented by certificates and upon request every holder of uncertificated
shares shall be entitled to have a certificate signed by, or in the name of the
corporation by the chairman or vice chairman of the board of directors, or the
president or vice president, and by the treasurer and/or assistant treasurer, or
the secretary or an assistant secretary of such corporation representing the
number of shares registered in certificate form. Any or all the signatures on
the certificate may be facsimile. In case any officer, transfer agent or
registrar whose signature or facsimile signature appears on a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue.
6.2 Lost Certificates. The board of directors may direct a new
certificate or certificates of stock or uncertificated shares to be issued in
place
<PAGE>
of any certificate or certificates theretofore issued by the corporation and
alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming that the certificate of stock has been lost,
stolen or destroyed. When authorizing such issuance of a new certificate or
certificates, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or such owner's legal representative, to
advertise the same in such manner as the board shall require and/or to give the
corporation a bond, in such sum as the board may direct, as indemnity against
any claim that may be made against the corporation on account of the certificate
alleged to have been lost, stolen or destroyed or on account of the issuance of
such new certificate or uncertificated shares.
6.3 Transfers. The transfer of stock and certificates that
represent the stock and the transfer of uncertificated shares shall be effected
in accordance with the laws of the State of Delaware. Any restriction on the
transfer of a security imposed by the corporation shall be noted conspicuously
on the security.
6.4 Fixing Record Date. In order that the corporation may
determine the stockholders entitled to notice of, or to vote at, any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
<PAGE>
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of,
or to vote at, a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
6.5 Registered Stockholders. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, to receive notifications, to vote as such
owner, and to exercise all the rights and powers of an owner; and the
corporation shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of the State of Delaware.
7. Indemnification.
Unless expressly prohibited by law, the corporation shall
fully indemnify any person made, or threatened to be made, a party to an action,
suit or proceeding (whether civil, criminal, administrative or investigative) by
reason of the fact that such person, or such persons testator or intestate, is
or was a director or officer, employee or agent of the corporation or serves or
<PAGE>
served any other enterprise at the request of the corporation, against all
expenses (including attorneys' fees), judgments, fines and amounts paid or to be
paid in settlement incurred in connection with such action, suit or proceeding.
8. General Provisions.
8.1 Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation and
the laws of the State of Delaware, may be declared by the board of directors at
any regular or special meeting. Subject to the provisions of the General
Corporation Law of the State of Delaware, such dividends may be paid either out
of surplus, as defined in the General Corporation Law of the State of Delaware,
or in the event that there shall be no such surplus, out of the net profits for
the fiscal year in which the dividend is declared and/or the preceding fiscal
year. Dividends may be paid in cash, in property, or in shares of the
corporation's capital stock, subject to the provisions, if any, of the
certificate of incorporation.
8.2 Reserves. The directors of the corporation may set apart,
out of the funds of the corporation available for dividends, a reserve or
reserves for any proper purpose and may abolish any such reserve.
8.3 Execution of Instruments. All checks or demands for money
and notes of the corporation shall be signed by such officer or officers
<PAGE>
or such other person or persons as the board of directors may from time to time
designate.
8.4 Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
8.5 Seal. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
9. Amendments.
These by-laws may be altered, amended or repealed and new
by-laws may be adopted by the board of directors.
* * * *
The foregoing by-laws were adopted by the board of directors
on ______________, 1993.
----------------------------------
Secretary
CERTIFICATE OF INCORPORATION
OF
Asia Pacific Space And Communications, Ltd.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the "corporation")
is
Asia Pacific Space And Communications, Ltd.
SECOND: The address, including street, number, city, and county, of the
registered office of the corporation in the State of Delaware is 229 South State
Street, City of Dover, County of Kent; and the name of the registered agent of
the corporation in the State of Delaware is The Prentice-Hall Corporation
System, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is Ten Million (10,000,000). The par value of each of
such shares is One Cent ($.01). All such shares are of one class and are shares
of Common Stock.
FIFTH: The name and the mailing address of the incorporator are as follows:
NAME MAILING ADDRESS
T. M. Bonovich 229 South State Street, Dover, Delaware
<PAGE>
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on this
corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the corporation, and in further definition, limitation and regulation
of the powers of the corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the By-Laws. The phrase "whole
Board" and the phrase "total number of directors" shall be deemed to have
the same meaning, to wit, the total number of directors which the
corporation would have if there were no vacancies. No election of directors
need be by written ballot.
2. After the original or other By-Laws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and, after the corporation has received any payment for any of
its stock, the power to adopt, amend, or repeal the By-Laws of the
corporation may be exercised by the Board of Directors of the corporation;
provided, however, that any provision for the classification of
<PAGE>
directors of the corporation for staggered terms pursuant to the provisions
of subsection (d) of Section 141 of the General Corporation Law of the
State of Delaware shall be set forth in an initial By-Law or in a By-Law
adopted by the stockholders entitled to vote of the corporation unless
provisions for such classification shall be set forth in this certificate
of incorporation.
3. Whenever the corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders. Whenever
the corporation shall be authorized to issue more than one class of stock,
no outstanding share of any class of stock which is denied voting power
under the provisions of the certificate of incorporation shall entitle the
holder thereof to the right to vote at any meeting of stockholders except
as the provisions of paragraph (2) of subsection (b) of section 242 of the
General Corporation Law of the State of Delaware shall otherwise require;
provided, that no share of any such class which is otherwise denied voting
power shall entitle the holder thereof to vote upon the increase or
decrease in the number of authorized shares of said class.
NINTH: The personal liability of the directors of the corporation is hereby
eliminated to the fullest extent permitted by paragraph (7) of subsection (b) of
Section 102 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented.
TENTH: The corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any By-Law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ELEVENTH: From time to time any of the provisions of this certificate of
incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in
<PAGE>
force may be added or inserted in the manner and at the time prescribed by said
laws, and all rights at any time conferred upon the stockholders of the
corporation by this certificate of incorporation are granted subject to the
provisions of this Article ELEVENTH.
Signed on October 13, 1987.
/s/ T. M. Bonavich
--------------------------
T. M. Bonovich
Incorporator
AMENDED AND RESTATED
BYLAWS
OF
Asia Pacific Space And Communications, Ltd.
(a Delaware corporation)
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Certificates representing
stock in the corporation shall be signed by, or in the name of, the corporation
by the Chairman or Vice-Chairman of the Board of Directors, if any, or by the
President or a Vice-President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the corporation. Any or all the
signatures on any such certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Whenever the corporation shall be authorized to issue more
than one class of stock or more than one series of any class of stock, and
whenever the corporation shall issue any shares of its stock as partly paid
stock, the certificates representing shares of any such class or series or of
any such partly paid stock shall set forth thereon the statements prescribed by
the General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
The corporation may issue a new certificate of stock or
uncertificated shares in place of any certificate theretofore issued by it,
alleged to have been lost, stolen, or destroyed, and the Board of Directors may
require the owner of the lost, stolen, or destroyed certificate, or his legal
representative, to give the corporation a bond sufficient to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss, theft, or destruction of any such certificate or the issuance of
any such new certificate or uncertificated shares.
<PAGE>
2. UNCERTIFICATED SHARES. Subject to any conditions imposed by
the General Corporation Law, the Board of Directors of the corporation may
provide by resolution or resolutions that some or all of any or all classes or
series of the stock of the corporation shall be uncertificated shares. Within a
reasonable time after the issuance or transfer of any uncertificated shares, the
corporation shall send to the registered owner thereof any written notice
prescribed by the General Corporation Law.
3. FRACTIONAL SHARE INTERESTS. The corporation may, but shall
not be required to, issue fractions of a share. If the corporation does not
issue fractions of a share, it shall (1) arrange for the disposition of
fractional interests by those entitled thereto, (2) pay in cash the fair value
of fractions of a share as of the time when those entitled to receive such
fractions are determined, or (3) issue scrip or warrants in registered form
(either represented by a certificate or uncertificated) or bearer form
(represented by a certificate) which shall entitle the holder to receive a full
share upon the surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share or an uncertificated fractional share shall,
but scrip or warrants shall not unless otherwise provided therein, entitle the
holder to exercise voting rights, to receive dividends thereon, and to
participate in any of the assets of the corporation in the event of liquidation.
The Board of Directors may cause scrip or warrants to be issued subject to the
conditions that they shall became void if not exchanged for certificates
representing the full shares or uncertificated full shares before a specified
date, or subject to the conditions that the shares for which scrip or warrants
are exchangeable may be sold by the corporation and the proceeds thereof
distributed to the holders of scrip or warrants, or subject to any other
conditions which the Board of Directors may impose.
4. STOCK TRANSFERS. Upon compliance with provisions
restricting the transfer or registration of transfer of shares of stock, if any,
transfers or registration of transfers of shares of stock of the corporation
shall be made only on the stock ledger of the corporation by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary of the corporation or with a transfer
agent or a registrar, if any, and, in the case of shares represented by
certificates, on surrender of the certificate or certificates for such shares of
stock properly endorsed and the payment of all taxes due thereon.
5. RECORD DATE FOR STOCKHOLDERS. In order that the corporation
may determine the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than
<PAGE>
ten days before the date of such meeting. If no record date is fixed by the
Board of Directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting. In order that the corporation may
determine the stockholders entitled to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which date shall not be more than ten
days after the date upon which the resolution fixing the record date is adopted
by the Board of Directors. If no record date has been fixed by the Board of
Directors, the record date for determining the stockholders entitled to consent
to corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by the General Corporation Law, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by the General
Corporation Law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the Board of Directors adopts the resolution
taking such prior action. In order that the corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion, or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
6. MEANING OF CERTAIN TERMS. As used herein in respect of the
right to notice of a meeting of stockholders or a waiver thereof or to
participate or vote thereat or to consent or dissent in writing in lieu of a
meeting, as the case may be, the term "share" or "shares" or "share of stock"
<PAGE>
or "shares of stock" or "stockholder" or "stockholders" refers to an outstanding
share or shares of stock and to a holder or holders of record of outstanding
shares of stock when the corporation is authorized to issue only one class of
shares of stock, and said reference is also intended to include any outstanding
share or shares of stock and any holder or holders of record of outstanding
shares of stock of any class upon which or upon whom the certificate of
incorporation confers such rights where there are two or more classes or series
of shares of stock or upon which or upon whom the General Corporation Law
confers such rights notwithstanding that the certificate of incorporation may
provide for more than one class or series of shares of stock, one or more of
which are limited or denied such rights thereunder; provided, however, that no
such right shall vest in the event of an increase or a decrease in the
authorized number of shares of stock of any class or series which is otherwise
denied voting rights under the provisions of the certificate of incorporation,
except as any provision of law may otherwise require.
7. STOCKHOLDER MEETINGS.
- TIME. The annual meeting shall be held on the date and at
the time fixed, from time to time, by the directors, provided, that the first
annual meeting shall be held on a date within thirteen months after the
organization of the corporation, and each successive annual meeting shall be
held on a date within thirteen months after the date of the preceding annual
meeting. A special meeting shall be held on the date and at the time fixed by
the directors.
- PLACE. Annual meetings and special meetings shall be held at
such place, within or without the State of Delaware, as the directors may, from
time to time, fix. Whenever the directors shall fail to fix such place, the
meeting shall be held at the registered office of the corporation in the State
of Delaware.
- CALL. Annual meetings and special meetings may be called by
the directors or by any officer instructed by the directors to call the meeting.
- NOTICE OR WAIVER OF NOTICE. Written notice of all meetings
shall be given, stating the place, date, and hour of the meeting and stating the
place within the city or other municipality or community at which the list of
stockholders of the corporation may be examined. The notice of an annual meeting
shall state that the meeting is called for the election of directors and for the
transaction of other business which may properly come before the meeting, and
shall (if any other action which could be taken at a special meeting is to be
taken at such annual meeting) state the purpose or purposes. The notice of a
special meeting shall in all instances state the
<PAGE>
purpose or purposes for which the meeting is called. The notice of any meeting
shall also include, or be accompanied by, any additional statements,
information, or documents prescribed by the General Corporation Law. Except as
otherwise provided by the General Corporation Law, a copy of the notice of any
meeting shall be given, personally or by mail, not less than ten days nor more
than sixty days before the date of the meeting, unless the lapse of the
prescribed period of time shall have been waived, and directed to each
stockholder at his record address or at such other address which he may have
furnished by request in writing to the Secretary of the corporation. Notice by
mail shall be deemed to be given when deposited, with postage thereon prepaid,
in the United States Mail. If a meeting is adjourned to another time, not more
than thirty days hence, and/or to another place, and if an announcement of the
adjourned time and/or place is made at the meeting, it shall not be necessary to
give notice of the adjourned meeting unless the directors, after adjournment,
fix a new record date for the adjourned meeting. Notice need not be given to any
stockholder who submits a written waiver of notice signed by him before or after
the time stated therein. Attendance of a stockholder at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
- STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city or other municipality or community
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the corporation, or to vote at any meeting of
stockholders.
- CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority and if
present and acting - the Chairman of the Board, if any, the Vice-Chairman
<PAGE>
of the Board, if any, the President, a Vice-President, or, if none of the
foregoing is in office and present and acting, by a chairman to be chosen by the
stockholders. The Secretary of the corporation, or in his absence, an Assistant
Secretary, shall act as secretary of every meeting, but if neither the Secretary
nor an Assistant Secretary is present the Chairman of the meeting shall appoint
a secretary of the meeting.
- PROXY REPRESENTATION. Every stockholder may authorize
another person or persons to act for him by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by his
attorney-in-fact. No proxy shall be voted or acted upon after three years from
its date unless such proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and, if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the corporation generally.
- INSPECTORS. The directors, in advance of any meeting, may,
but need not, appoint one or more inspectors of election to act at the meeting
or any adjournment thereof. If an inspector or inspectors are not appointed, the
person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the directors in
advance of the meeting or at the meeting by the person plurality of the votes of
the shares present in person or represented by proxy at the meeting and entitled
to vote on the election of directors. Any other action shall be authorized by a
majority of the votes cast except where the General Corporation Law prescribes a
different percentage of votes and/or a different exercise of voting power, and
except as may be otherwise prescribed by the provisions of the certificate of
incorporation and these Bylaws. In the election of directors, and for any other
action, voting need not be by ballot.
8. STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by
the General Corporation Law to be taken at any annual or special meeting of
stockholders, or any action which may be taken at any annual or special meeting
of stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent
<PAGE>
shall be given to those stockholders who have not consented in writing. Action
taken pursuant to this paragraph shall be subject to the provisions of Section
228 of the General Corporation Law.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business and affairs of the
corporation shall be managed by or under the direction of the Board of Directors
of the corporation. The Board of Directors shall have the authority to fix the
compensation of the members thereof. The use of the phrase "whole board" herein
refers to the total number of directors which the corporation would have if
there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not be a
stockholder, a citizen of the United States, or a resident of the State of
Delaware. The initial Board of Directors shall consist of one person. Thereafter
the number of directors constituting the whole board shall be at least one.
Subject to the foregoing limitation and except for the first Board of Directors,
such number may be fixed from time to time by action of the stockholders or of
the directors, or, if the number is not fixed, the number shall be one. The
number of directors may be increased or decreased by action of the stockholders
or of the directors.*
3. ELECTION AND TERM. The first Board of Directors, unless the
members thereof shall have been named in the certificate of incorporation, shall
be elected by the incorporator or incorporators and shall hold office until the
first annual meeting of stockholders and until their successors are elected and
qualified or until their earlier resignation or removal. Any director may resign
at any time upon written notice to the corporation. Thereafter, directors who
are elected at an annual meeting of stockholders, and directors who are elected.
Except as the General Corporation Law may otherwise require, in the interim to
fill vacancies and newly created directorships, shall hold office until the next
annual meeting of stockholders and until their successors are elected and
qualified or until their earlier resignation or removal. In the interim between
annual meetings of stockholders or of special meetings of stockholders called
for the election of directors and/or for the removal of one or more directors
and for the filling of any vacancy in that connection, newly created
directorships and any vacancies in the Board of Directors, including unfilled
vacancies resulting
- --------
* Maximum number of directors fixed at three as of 14 Oct 1989; fixed at
seven as of 22 Jan 1989.
<PAGE>
from the removal of directors for cause or without cause, may be filled by the
vote of a majority of the remaining directors then in office, although less than
a quorum, or by the sole remaining director.
4. MEETINGS.
- TIME. Meetings shall be held at such time as the Board shall
fix, except that the first meeting of a newly elected Board shall be held as
soon after its election as the directors may conveniently assemble.
- PLACE. Meetings shall be held at such place within or
without the State of Delaware as shall be fixed by the Board.
- CALL. No call shall be required for regular meetings for
which the time and place have been fixed. Special meetings may be called by or
at the direction of the Chairman of the Board, if any, the Vice-Chairman of the
Board, if any, of the President, or of a majority of the directors in office.
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be given
for special meetings in sufficient time for the convenient assembly of the
directors thereat. Notice need not be given to any director or to any member of
a committee of directors who submits a written waiver of notice signed by him
before or after the time stated therein. Attendance of any such person at a
meeting shall constitute a waiver of notice of such meeting, except when he
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the directors need be specified in any
written waiver of notice.
- QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such majority,
whereupon a majority of the directors in office shall constitute a quorum,
provided, that such majority shall constitute at least one-third of the whole
Board. A majority of the directors present, whether or not a quorum is present,
may adjourn a meeting to another time and place. Except as herein otherwise
provided, and except as otherwise provided by the General Corporation Law, the
vote of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board. The quorum and voting provisions herein
stated shall not be construed as conflicting with any provisions of the General
Corporation Law and these Bylaws which govern a meeting of directors held to
fill vacancies and newly created directorships in the Board or action of
disinterested directors.
<PAGE>
Any member or members of the Board of Directors or of any committee designated
by the Board, may participate in a meeting of the Board, or any such committee,
as the case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other.
- CHAIRMAN OF THE MEETING. The Chairman of the Board, if any
and if present and acting, shall preside at all meetings. Otherwise, the
Vice-Chairman of the Board, if any and if present and acting, or the President,
if present and acting, or any other director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS. Except as may otherwise
be provided by the General Corporation Law, any director or the entire Board of
Directors may be removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors.
6. COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of any member of any such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board, shall have and
may exercise the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation with the exception of
any authority the delegation of which is prohibited by Section 141 of the
General Corporation Law, and may authorize the seal of the corporation to be
affixed to all papers which may require it.
7. WRITTEN ACTION. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee thereof may be
taken without a meeting if all members of the Board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board or committee.
<PAGE>
ARTICLE III
OFFICERS
The officers of the corporation shall consist of a President,
a Secretary, a Treasurer, and, if deemed necessary, expedient, or desirable by
the Board of Directors, a Chairman of the Board, a Vice-Chairman of the Board,
an Executive Vice-President, one or more other Vice-Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, and such other officers
with such titles as the resolution of the Board of Directors choosing them shall
designate. Except as may otherwise be provided in the resolution of the Board of
Directors choosing him, no officer other than the Chairman or Vice-Chairman of
the Board, if any, need be a director. Any number of offices may be held by the
same person, as the directors may determine.
Unless otherwise provided in the resolution choosing him, each
officer shall be chosen for a term which shall continue until the meeting of the
Board of Directors following the next annual meeting of stockholders and until
his successor shall have been chosen and qualified.
All officers of the corporation shall have such authority and
perform such duties in the management and operation of the corporation as shall
be prescribed in the resolutions of the Board of Directors designating and
choosing such officers and prescribing their authority and duties, and shall
have such additional authority and duties as are incident to their office except
to the extent that such resolutions may be inconsistent therewith. The Secretary
or an Assistant Secretary of the corporation shall record all of the proceedings
of all meetings and actions in writing of stockholders, directors, and
committees of directors, and shall exercise such additional authority and
perform such additional duties as the Board shall assign to him. Any officer may
be removed, with or without cause, by the Board of Directors. Any vacancy in any
office may be filled by the Board of Directors.
ARTICLE IV
CORPORATE SEAL
The corporate seal shall be in such form as the Board of
Directors shall prescribe.
<PAGE>
ARTICLE V
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall
be subject to change, by the Board of Directors.
ARTICLE VI
CONTROL OVER BYLAWS
Subject to the provisions of the certificate of incorporation
and the provisions of the General Corporation Law, the power to amend, alter, or
repeal these Bylaws and to adopt new Bylaws may be exercised by the Board of
Directors or by the stockholders.
CERTIFICATE OF INCORPORATION
OF
ORION ATLANTIC EUROPE, INC.
1. NAME
The name of this corporation is Orion Atlantic Europe, Inc.
(the "Corporation").
2. REGISTERED OFFICE AND AGENT
The registered office of the Corporation shall be located at
Corporation Service Comany, 1013 Centre Road, Wilmington, Delaware 19805 in the
County of New Castle. The registered agent of the Corporation at such address
shall be The Corporation Trust Company.
3. PURPOSE AND POWERS
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware, as amended (the "Delaware General
Corporation Law"). The Corporation shall have all power necessary or helpful to
engage in such acts and activities.
4. CAPITAL STOCK
4.1. Authorized Shares
The total number of shares of all classes of stock that the
Corporation shall have the authority to issue is One Thousand shares of Common
Stock, all of one class, having a par value of $.01 per share ("Common Stock").
5. INCORPORATOR; INITIAL DIRECTORS
5.1. Incorporator
The name and mailing address of the incorporator (the
"Incorporator") are Sharon Branscome, Corporation Service Company, 1013 Centre
Road,
<PAGE>
Wilmington, DE 19805. The powers of the Incorporator shall terminate upon the
filing of this Certificate of Incorporation.
5.2. Initial Directors
The following persons, having the following mailing addresses,
shall serve as the directors of the Corporation until the first annual meeting
of the stockholders of the Corporation or until their successors are elected and
qualified:
NAME MAILING ADDRESS
John G. Puente 2440 Research Boulevard, Suite 400,
Rockville, Maryland 20850
W. Neil Bauer 2440 Research Boulevard, Suite 400,
Rockville, Maryland 20850
David J. Frear 2440 Research Boulevard, Suite 400,
Rockville, Maryland 20850
6. BOARD OF DIRECTORS
6.1. Number; Election
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
bylaws of the Corporation. Unless and except to the extent that the bylaws of
the Corporation shall otherwise require, the election of directors of the
Corporation need not be by written ballot.
6.2. Limitation of Liability
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 this provision shall not eliminate or limit
the liability of a director (a) for any breach of the director's duty of loyalty
to the Corporation or its stockholders; (b) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law; (c)
for the types of liability set forth in Section 174 of the Delaware General
Corporation Law; or (d) for any transaction from which the director received any
improper personal benefit.
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<PAGE>
7. INDEMNIFICATION
To the extent permitted by law, the Corporation shall fully
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (whether
civil, criminal, administrative or investigative) by reason of the fact that
such person is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
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.
The Corporation shall advance expenses (including attorneys'
fees) incurred by a director or officer in advance of the final disposition of
such action, suit or proceeding upon the receipt of an undertaking by or on
behalf of the director or officer to repay such amount if it shall ultimately be
determined that such director or officer is not entitled to indemnification.
The Corporation may advance expenses (including attorneys'
fees) incurred by an employee or agent in advance of the final disposition of
such action, suit or proceeding upon such terms and conditions, if any, as the
Board of Directors deems appropriate.
8. AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred
by the Delaware General Corporation Law, the Board of Directors of the
Corporation is expressly authorized and empowered to adopt, amend and repeal the
bylaws of the Corporation.
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<PAGE>
IN WITNESS WHEREOF, the undersigned, being the Incorporator hereinabove
named, for the purpose of forming a corporation pursuant to the Delaware General
Corporation Law, hereby certifies that the facts hereinabove stated are truly
set forth, and accordingly executes this Certificate of Incorporation this
21 day of August, 1995.
- --
Inrporator
By: /s/Sharon Branscome
---------------------------
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ORION ATLANTIC EUROPE, INC.
BYLAWS
Adopted
as of
August 24, 1995
<PAGE>
TABLE OF CONTENTS
Page
----
1.
OFFICES..................................................................1
1.1. Registered Office...............................................1
1.2. Other Offices...................................................1
2. MEETINGS OF STOCKHOLDERS.................................................1
2.1. Place of Meetings...............................................1
2.2. Annual Meetings.................................................1
2.3. Special Meetings................................................1
2.4. Notice of Meetings..............................................2
2.5. Waivers of Notice...............................................2
2.6. Business at Special Meetings....................................2
2.7. List of Stockholders............................................2
2.8. Quorum at Meetings..............................................3
2.9. Voting and Proxies..............................................3
2.10. Required Vote...................................................3
2.11. Action Without a Meeting........................................4
3.
DIRECTORS................................................................4
3.1. Powers..........................................................4
3.2. Number and Election.............................................4
3.3. Nomination of Directors.........................................4
3.4. Vacancies.......................................................5
3.5. Meetings........................................................5
3.5.1. Regular Meetings........................................5
3.5.2. Special Meetings........................................5
3.5.3. Telephone Meetings......................................6
3.5.4. Action Without Meeting..................................6
3.5.5. Waiver of Notice of Meeting.............................6
3.6. Quorum and Vote at Meetings.....................................6
3.7. Committees of Directors.........................................6
3.8. Compensation of Directors.......................................7
4.
OFFICERS.................................................................7
4.1. Positions.......................................................7
4.2. President.......................................................7
4.3. Vice President..................................................8
4.4. Secretary.......................................................8
4.5. Assistant Secretary.............................................8
4.6. Treasurer.......................................................8
4.7. Assistant Treasurer.............................................8
4.8. Term of Office..................................................8
4.9. Compensation....................................................9
4.10. Fidelity Bonds..................................................9
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<PAGE>
5. CAPITAL STOCK............................................................9
5.1. Certificates of Stock; Uncertificated Shares....................9
5.2. Lost Certificates...............................................9
5.3. Record Date....................................................10
5.3.1. Actions by Stockholders................................10
5.3.2. Payments ..............................................10
5.4. Stockholders of Record.........................................11
6. INSURANCE...............................................................11
7. GENERAL PROVISIONS......................................................11
7.1. Inspection of Books and Records................................11
7.2. Dividends......................................................12
7.3. Reserves.......................................................12
7.4. Execution of Instruments.......................................12
7.5. Fiscal Year....................................................12
7.6. Seal...........................................................12
8.
AMENDMENT...............................................................12
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<PAGE>
'
BYLAWS
OF
ORION ATLANTIC EUROPE, INC.
1. OFFICES
1.1. Registered Office
The initial registered office of the Corporation shall be in
Wilmington, Delaware, and the initial registered agent in charge thereof shall
be Corporation Service Company.
1.2. Other Offices
The Corporation may also have offices at such other places,
both within and without the State of Delaware, as the Board of Directors may
from time to time determine or as may be necessary or useful in connection with
the business of the Corporation.
2. MEETINGS OF STOCKHOLDERS
2.1. Place of Meetings
All meetings of the stockholders shall be held at such place
as may be fixed from time to time by the Board of Directors.
2.2. Annual Meetings
The Corporation shall hold annual meetings of stockholders,
commencing with the year 1996, on the first Thursday of May, if not a legal
holiday, and if a legal holiday, then on the next secular day following, at 2:00
p.m., or at such other date and time as shall be designated from time to time by
the Board of Directors, and stated in the notice of the meeting or in a duly
executed waiver thereof, at which stockholders shall elect a Board of Directors
and transact such other business as may properly be brought before the meeting.
2.3. Special Meetings
Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by the Board of
Directors or the President, and shall be called by the President or Secretary at
the request in writing of stockholders owning a majority in amount of the entire
capital stock of
<PAGE>
the Corporation issued and outstanding and entitled to vote. Such request shall
include a statement of the purpose or purposes of the proposed meeting.
2.4. Notice of Meetings
Written notice of any meeting of stockholders, stating the
place, date and hour of the meeting, and (if it is a special meeting) the
purpose or purposes for which the meeting is called, shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting (except to the extent that such notice
is waived or is not required as provided in the General Corporation Law of the
State of Delaware, as amended (the "Delaware General Corporation Law") or these
Bylaws). Such notice shall be given in accordance with, and shall be deemed
effective as set forth in, Section 222 (or any successor section) of the
Delaware General Corporation Law.
2.5. Waivers of Notice
Whenever the giving of any notice is required by statute, the
Certificate of Incorporation or these Bylaws, a waiver thereof, in writing and
delivered to the Corporation, signed by the person or persons entitled to said
notice, whether before or after the event as to which such notice is required,
shall be deemed equivalent to notice. Attendance of a stockholder at a meeting
shall constitute a waiver of notice (1) of such meeting, except when the
stockholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting, and (2) (if it is a special meeting) of
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the stockholder
objects to considering the matter at the beginning of the meeting.
2.6. Business at Special Meetings
Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice (except to the extent that
such notice is waived or is not required as provided in the Delaware General
Corporation Law or these Bylaws).
2.7. List of Stockholders
After the record date for a meeting of stockholders has been
fixed, at least ten days before such meeting, the officer who has charge of the
stock ledger of the Corporation shall make a list of all stockholders entitled
to vote at the meeting, arranged in alphabetical order and showing the address
of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place in the city where
the meeting is to be held, which place is to be specified in the notice of the
meeting, or at the place where the meeting is to be held. Such list shall also,
for the duration of the meeting, be produced and kept
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<PAGE>
open to the examination of any stockholder who is present at the time and place
of the meeting. Such list shall be the only evidence as to who are the
stockholders entitled to examine the list, the list required by this section or
the books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
2.8. Quorum at Meetings
Stockholders may take action on a matter at a meeting only if
a quorum exists with respect to that matter. Except as otherwise provided by
statute or by the Certificate of Incorporation, the holders of a majority of the
stock issued and outstanding and entitled to vote at the meeting, and who are
present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business. Once a share is
represented for any purpose at a meeting (other than solely to object (1) to
holding the meeting or transacting business at the meeting, or (2) (if it is a
special meeting) to consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the meeting notice), it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for the
adjourned meeting. The holders of a majority of the voting shares represented at
a meeting, whether or not a quorum is present, may adjourn such meeting from
time to time. At the adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the original meeting. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
2.9. Voting and Proxies
Unless otherwise provided in the Delaware General Corporation
Law or in the Certificate of Incorporation, and subject to the other provisions
of these Bylaws, each stockholder shall be entitled to one vote on each matter,
in person or by proxy, for each share of the Corporation's capital stock that
has voting power and that is held by such stockholder. No proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a
longer period. A duly executed appointment of proxy shall be irrevocable if the
appointment form states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power.
2.10. Required Vote
If a quorum exists, action on a matter (other than the
election of directors) is approved if the votes cast favoring the action exceed
the votes cast opposing the action, unless the Certificate of Incorporation or
the Delaware General Corporation Law requires a greater number of affirmative
votes (in which case such different requirement shall apply). Directors shall be
elected by a plurality of the
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<PAGE>
votes cast by the shares entitled to vote in the election (provided a quorum
exists), and the election of directors need not be by written ballot.
2.11. Action Without a Meeting
Any action required or permitted to be taken at a
stockholders' meeting may be taken without a meeting if the action is taken by
persons who would be entitled to vote at a meeting and who hold shares having
voting power to cast not less than the minimum number of votes that would be
necessary to authorize or take the action at a meeting at which all stockholders
entitled to vote were present and voted. The action must be evidenced by one or
more written consents describing the action taken, signed by the stockholders
entitled to take action without a meeting, and delivered to the Corporation for
inclusion in the minute book. No consent shall be effective to take the
corporate action specified unless the number of consents required to take such
action are delivered to the Corporation within sixty days of the delivery of the
earliest-dated consent. All stockholders entitled to vote on the record date of
such written consent who do not participate in taking the action shall be given
written notice thereof in accordance with the Delaware General Corporation Law.
3. DIRECTORS
3.1. Powers
The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things, subject to any
limitation set forth in the Certificate of Incorporation, these Bylaws, or
agreements among stockholders which are otherwise lawful.
3.2. Number and Election
The number of directors which shall constitute the whole board
shall not be fewer than one nor more than ten. The first board shall consist of
three directors. Thereafter, within the limits above specified, the number of
directors shall be determined by resolution of the Board of Directors.
3.3. Nomination of Directors
The Board of Directors shall nominate candidates to stand for
election as directors; and other candidates also may be nominated by any
Corporation stockholder, provided such other nomination(s) are submitted in
writing to the Secretary of the Corporation no later than 90 days prior to the
meeting of stockholders at which such directors are to be elected, together with
the identity of the nominor and the number of shares of the Corporation's stock
owned, directly or indirectly, by the nominor. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 3.4.
hereof, and each director elected
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<PAGE>
shall hold office until such director's successor is elected and qualified or
until the director's earlier resignation or removal. Directors need not be
stockholders.
3.4. Vacancies
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by the stockholders
or by a majority of the directors then in office, although fewer than a quorum,
or by a sole remaining director. Each director so chosen shall hold office until
the next election of directors, and until such director's successor is elected
and qualified, or until the director's earlier resignation or removal. In the
event that one or more directors resigns from the board, effective at a future
date, a majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective, and
each director so chosen shall hold office until the next election of directors,
and until such director's successor is elected and qualified, or until the
director's earlier resignation or removal. In the event that one or more
directors resigns from the board, effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall have power
to fill such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each director so chosen
shall hold office until the next annual election and until his successor is
elected and qualified, or until his earlier resignation or removal.
3.5. Meetings
3.5.1. Regular Meetings
Regular meetings of the Board of Directors may be held without
notice at such time and at such place as shall from time to time be determined
by the Board of Directors.
3.5.2. Special Meetings
Special meetings of the Board may be called by the President
on one day's notice to each director, either personally or by telephone, express
delivery service (so that the scheduled delivery date of the notice is at least
one day in advance of the meeting), telegram or facsimile transmission, and on
five days' notice by mail (effective upon deposit of such notice in the mail).
The notice need not describe the purpose of a special meeting.
3.5.3. Telephone Meetings
Members of the Board of Directors may participate in a meeting
of the board by any communication by means of which all participating directors
can simultaneously hear each other during the meeting. A director participating
in a meeting by this means is deemed to be present in person at the meeting.
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<PAGE>
3.5.4. Action Without Meeting
Any action required or permitted to be taken at any meeting of
the Board of Directors may be taken without a meeting if the action is taken by
all members of the Board. The action must be evidenced by one or more written
consents describing the action taken, signed by each director, and delivered to
the Corporation for inclusion in the minute book.
3.5.5. Waiver of Notice of Meeting
A director may waive any notice required by statute, the
Certificate of Incorporation or these Bylaws before or after the date and time
stated in the notice. Except as set forth below, the waiver must be in writing,
signed by the director entitled to the notice, and delivered to the Corporation
for inclusion in the minute book. Notwithstanding the foregoing, a director's
attendance at or participation in a meeting waives any required notice to the
director of the meeting unless the director at the beginning of the meeting
objects to holding the meeting or transacting business at the meeting and does
not thereafter vote for or assent to action taken at the meeting.
3.6. Quorum and Vote at Meetings
At all meetings of the board, a quorum of the Board of
Directors consists of a majority of the total number of directors prescribed
pursuant to Section 3.2. of these Bylaws (or, if no number is prescribed, the
number in office immediately before the meeting begins). The vote of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute or by the Certificate of Incorporation or by these bylaws.
3.7. Committees of Directors
The Board of Directors may by resolution create one or more
committees and appoint members of the Board of Directors to serve on the
committees at the pleasure of the Board of Directors. To the extent specified in
a resolution adopted by the Board of Directors, each committee may exercise the
full authority of the Board of Directors, except as limited by Section 141 (or
any successor section) of the Delaware General Corporation Law. All provisions
of the Delaware General Corporation Law and these Bylaws relating to meetings,
action without meetings, notice (and waiver thereof), and quorum and voting
requirements of the Board of Directors apply, as well, to such committees and
their members.
3.8. Compensation of Directors
The Board of Directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
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<PAGE>
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be paid like compensation for attending
committee meetings.
4. OFFICERS
4.1. Positions
The officers of the Corporation shall be, a President, a
Secretary and a Treasurer, and such other officers as the Board of Directors (or
an officer authorized by the Board of Directors) from time to time may appoint,
including one or more, Executive Vice Presidents, Vice Presidents, Assistant
Secretaries and Assistant Treasurers. Each such officer shall exercise such
powers and perform such duties as shall be set forth below and such other powers
and duties as from time to time may be specified by the Board of Directors or by
any officer(s) authorized by the Board of Directors to prescribe the duties of
such other officers. Any number of offices may be held by the same person,
except that in no event shall the President and the Secretary be the same
person. Each of the, President, and/or any Vice President may execute bonds,
mortgages and other documents under the seal of the Corporation, except where
required or permitted by law to be otherwise executed and except where the
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the Corporation.
4.2. President
The President shall be the chief operating officer of the
Corporation and shall have full responsibility and authority for management of
the day-to-day operations of the Corporation, subject to the authority of the
Board of Directors. The President may execute bonds, mortgages and other
contracts, under the seal of the Corporation, if required, except where required
or permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation.
4.3. Vice President
In the absence of the President or in the event of the
President's inability or refusal to act, the Vice President (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated, or in the absence of any designation, then in the order of their
election) shall perform the duties of the President, and when so acting shall
have all the powers of, and be subject to all the restrictions upon, the
President.
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<PAGE>
4.4. Secretary
The Secretary shall have responsibility for preparation of
minutes of meetings of the Board of Directors and of the stockholders and for
authenticating records of the Corporation. The Secretary shall give, or cause to
be given, notice of all meetings of the stockholders and special meetings of the
Board of Directors. The Secretary or an Assistant Secretary may also attest all
instruments signed by any other officer of the Corporation.
4.5. Assistant Secretary
The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board of Directors (or if
there shall have been no such determination, then in the order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability or refusal to act, perform the duties and exercise the
powers of the Secretary.
4.6. Treasurer
The Treasurer shall be the chief financial officer of the
Corporation and shall have responsibility for the custody of the corporate funds
and securities and shall see to it that full and accurate accounts of receipts
and disbursements are kept in books belonging to the Corporation. The Treasurer
shall render to, the President, and the Board of Directors, upon request, an
account of all financial transactions and of the financial condition of the
Corporation.
4.7. Assistant Treasurer
The Assistant Treasurer, or if there shall be more than one,
the Assistant Treasurers in the order determined by the Board of Directors (or
if there shall have been no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of the
Treasurer's inability or refusal to act, perform the duties and exercise the
powers of the Treasurer.
4.8. Term of Office
The officers of the Corporation shall hold office until their
successors are chosen and qualify or until their earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation. Any
officer elected or appointed by the Board of Directors may be removed at any
time, with or without cause, by the affirmative vote of a majority of the Board
of Directors.
4.9. Compensation
The compensation of officers of the Corporation shall be fixed
by the Board of Directors or by any officer(s) authorized by the Board of
Directors to prescribe the compensation of such other officers.
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<PAGE>
4.10. Fidelity Bonds
The Corporation may secure the fidelity of any or all of its
officers or agents by bond or otherwise.
5. CAPITAL STOCK
5.1. Certificates of Stock; Uncertificated Shares
The shares of the Corporation shall be represented by
certificates, provided that the Board of Directors may provide by resolution
that some or all of any or all classes or series of the Corporation's stock
shall be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates, and upon request
every holder of uncertificated shares, shall be entitled to have a certificate
(representing the number of shares registered in certificate form) signed in the
name of the Corporation by the President or any Vice President, and by the
Treasurer, Secretary or any Assistant Treasurer or Assistant Secretary of the
Corporation. Any or all the signatures on the certificate may be facsimile. In
case any officer, transfer agent or registrar whose signature or facsimile
signature appears on a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if such person were such officer,
transfer agent or registrar at the date of issue.
5.2. Lost Certificates
The Board of Directors, President or Secretary may direct a
new certificate of stock to be issued in place of any certificate theretofore
issued by the Corporation and alleged to have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming that the
certificate of stock has been lost, stolen or destroyed. When authorizing such
issuance of a new certificate, the board or any such officer may, as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or such owner's legal representative, to
advertise the same in such manner as the board or such officer shall require
and/or to give the Corporation a bond, in such sum as the board or such officer
may direct, as indemnity against any claim that may be made against the
Corporation on account of the certificate alleged to have been lost, stolen or
destroyed or on account of the issuance of such new certificate or
uncertificated shares.
-9-
<PAGE>
5.3. Record Date
5.3.1. Actions by Stockholders
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders (or to take any
other action), the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors and shall not be less than ten nor more than
sixty days before the meeting or action requiring a determination of
stockholders.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors and shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting, unless the Board of Directors fixes a new record date.
If no record date is fixed by the Board of Directors, the
record date shall be at the close of business on the day next preceding the day
on which notice is given, or if notice is not required or is waived, at the
close of business on the day next preceding the day on which the meeting is held
or such other action is taken, except that (if no record date is established by
the Board of Directors) the record date for determining stockholders entitled to
consent to corporate action without a meeting is the first date on which a
stockholder delivers a signed written consent to the Corporation for inclusion
in the minute book.
5.3.2. Payments
In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
-10-
<PAGE>
5.4. Stockholders of Record
The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, to receive notifications, to vote as such owner, and to exercise all
the rights and powers of an owner. The Corporation shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise may be provided by the Delaware General
Corporation Law.
6. INSURANCE
The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Corporation (or is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise)
against liability asserted against or incurred by such person in such capacity
or arising from such person's status as such (whether or not the Corporation
would have the power to indemnify such person against the same liability).
7. GENERAL PROVISIONS
7.1. Inspection of Books and Records
Any stockholder, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
Corporation's stock ledger, a list of its stockholders, and its other books and
records, and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent shall be the person who seeks the
right to inspection, the demand under oath shall be accompanied by a power of
attorney or such other writing which authorizes the attorney or other agent to
so act on behalf of the stockholder. The demand under oath shall be directed to
the Corporation at its registered office or at its principal place of business.
7.2. Dividends
The Board of Directors may declare dividends upon the capital
stock of the Corporation, subject to the provisions of the Certificate of
Incorporation and the laws of the State of Delaware.
-11-
<PAGE>
7.3. Reserves
The directors of the Corporation may set apart, out of the
funds of the Corporation available for dividends, a reserve or reserves for any
proper purpose and may abolish any such reserve.
7.4. Execution of Instruments
All checks, drafts or other orders for the payment of money,
and promissory notes of the Corporation shall be signed by such officer or
officers or such other person or persons as the Board of Directors may from time
to time designate.
7.5. Fiscal Year
The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
7.6. Seal
The corporate seal shall be in such form as the Board of
Directors shall approve. The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or otherwise reproduced.
8. AMENDMENT
These bylaws may be altered, amended or repealed and new
bylaws may be adopted by the Board of Directors.
-12-
<PAGE>
* * * * *
The foregoing Bylaws were adopted by the Board of Directors on
Aug. 24, 1995.
- -------
/s/Richard H. Shay
---------------------------------
Secretary
ORION NEWCO SERVICES, INC.,
as Issuer,
and
BANKERS TRUST COMPANY
as Trustee
-------------------------
Senior Notes Indenture
Dated as of [_______________], 1997
-------------------------
[________]% Senior Notes due 2007
<PAGE>
CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
ss. 310(a)(1).............................................................7.10
(a)(2).............................................................7.10
(b)................................................................7.08
ss. 313(c)................................................................7.06
ss. 314(a)................................................................4.18
(a)(4).............................................................4.19
ss. 315(b)................................................................7.05
ss. 316(a)(1)(A)..........................................................6.05
(a)(1)(B)..........................................................6.04
(b)................................................................6.07
ss. 317(a)(1).............................................................6.08
(a)(2).............................................................6.09
- ----------
Note: The Cross-Reference Table shall not for any purpose be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
RECITALS OF THE COMPANY 1
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions 2
SECTION 1.02. Incorporation by Reference of Trust Indenture Act 21
SECTION 1.03. Rules of Construction 21
ARTICLE TWO
THE NOTES
SECTION 2.01 Form and Dating 22
SECTION 2.02. Execution and Authentication 23
SECTION 2.03. Registrar and Paying Agent 24
SECTION 2.04. Holders to Be Treated as Owners; Payments of Interest 24
SECTION 2.05. Paying Agent to Hold Money in Trust 25
SECTION 2.06. Holder Lists 26
SECTION 2.07. Transfer and Exchange 26
SECTION 2.08. Replacement Notes 29
SECTION 2.09. Outstanding Notes 30
SECTION 2.10. Treasury Notes 30
SECTION 2.11. Temporary Notes 30
SECTION 2.12. Cancellation 31
SECTION 2.13. Defaulted Interest 31
SECTION 2.14. CUSIP, CINS or ISIN Number 31
SECTION 2.15. Deposit of Moneys 31
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption 32
SECTION 3.02. Notices to Trustee 32
SECTION 3.03. Selection of Notes to Be Redeemed 32
SECTION 3.04. Notice of Redemption 33
SECTION 3.05. Deposit of Redemption Price 34
SECTION 3.06. Payment of Notes Called for Redemption 34
SECTION 3.07. Notes Redeemed in Part 34
<PAGE>
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes 34
SECTION 4.02. Issuances of Guarantees by New Restricted Subsidiaries 35
SECTION 4.03. Limitation on Indebtedness 35
SECTION 4.04. Limitation on Restricted Payments 37
SECTION 4.05. Limitation on Dividend and Other Payment Restrictions Affect-
ing Restricted Subsidiaries 40
SECTION 4.06. Limitation on the Issuance of Capital Stock of Restricted
Subsidiaries 41
SECTION 4.07. Limitation on Issuances of Guarantees by Restricted
Subsidiaries 42
SECTION 4.08. Limitation on Transactions with Shareholders and Affiliates 42
SECTION 4.09. Limitation on Liens 43
SECTION 4.10. Limitation on Sale-Leaseback Transactions 43
SECTION 4.11. Limitation on Asset Sales 44
SECTION 4.12. Maintenance of Office or Agency 45
SECTION 4.13. Repurchase of Notes upon a Change of Control 45
SECTION 4.14. Existence 45
SECTION 4.15. Payment of Taxes and Other Claims 45
SECTION 4.16. Maintenance of Properties and Insurance 46
SECTION 4.17. Notice of Defaults 47
SECTION 4.18. Commission Reports and Reports to Holders 47
SECTION 4.19. Waiver of Stay, Extension or Usury Laws 47
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Consolidation, Merger and Sale of Assets 48
SECTION 5.02. Successor Substituted 49
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default 49
SECTION 6.02. Acceleration 51
SECTION 6.03. Other Remedies 51
SECTION 6.04. Waiver of Past Defaults 51
SECTION 6.05. Control by Majority 51
SECTION 6.06. Limitation on Suits 52
SECTION 6.07. Rights of Holders to Receive Payment 52
SECTION 6.08. Collection of Indebtedness and Suits for Enforcement by Trustee 52
SECTION 6.09. Trustee May File Proofs of Claim 53
SECTION 6.10. Priorities 54
SECTION 6.11. Undertaking for Costs 54
SECTION 6.12. Restoration of Rights and Remedies 54
SECTION 6.13. Rights and Remedies Cumulative 55
SECTION 6.14. Delay or Omission Not Waiver 55
<PAGE>
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General 55
SECTION 7.02. Certain Rights of Trustee 55
SECTION 7.03. Individual Rights of Trustee 57
SECTION 7.04. Trustee's Disclaimer 57
SECTION 7.05. Notice of Default 57
SECTION 7.06. Reports by Trustee to Holders 57
SECTION 7.07. Compensation and Indemnity 58
SECTION 7.08. Replacement of Trustee 58
SECTION 7.09. Successor Trustee by Merger, Etc 59
SECTION 7.10. Eligibility 59
SECTION 7.11. Money Held in Trust 59
SECTION 7.12. Withholding Taxes 60
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations 60
SECTION 8.02. Defeasance and Discharge of Indenture 61
SECTION 8.03. Defeasance of Certain Obligations 63
SECTION 8.04. Application of Trust Money 64
SECTION 8.05. Repayment to Company 65
SECTION 8.06. Reinstatement 65
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders 65
SECTION 9.02. With Consent of Holders 66
SECTION 9.03. Revocation and Effect of Consent 67
SECTION 9.04. Notation on or Exchange of Notes 67
SECTION 9.05. Trustee to Sign Amendments, Etc 67
SECTION 9.06. Conformity with Trust Indenture Act 68
ARTICLE TEN
SECURITY
SECTION 10.01. Security 68
<PAGE>
ARTICLE ELEVEN
GUARANTEE OF NOTES
SECTION 11.01. Guarantee 69
SECTION 11.02. Obligations Unconditional 70
SECTION 11.03. Notice to Trustee 71
SECTION 11.04. This Article Not to Prevent Events of Default 71
SECTION 11.05. Net Worth Limitation 71
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act of 1939 71
SECTION 12.02. Notices 71
SECTION 12.03. Certificate and Opinion as to Conditions Precedent 73
SECTION 12.04. Statements Required in Certificate or Opinion 73
SECTION 12.05. Acts of Holders 74
SECTION 12.06. Rules by Trustee, Paying Agent or Registrar 74
SECTION 12.07. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities 75
SECTION 12.08. Payment Date Other Than a Business Day 75
SECTION 12.09. Governing Law 75
SECTION 12.10. No Adverse Interpretation of Other Agreements 75
SECTION 12.11. No Recourse Against Others 75
SECTION 12.12. Successors 76
SECTION 12.13. Duplicate Originals 76
SECTION 12.14. Separability 76
SECTION 12.15. Table of Contents, Headings, Etc. 76
EXHIBIT A Form A-1Global Note
EXHIBIT B Form of Definitive Registered Note B-1
EXHIBIT C Form of Pledge Agreement C-1
</TABLE>
- ----------
Note: The Table of Contents shall not for any purposes be deemed to be a part
of the Indenture.
<PAGE>
INDENTURE, dated as of [____________], 1997, between ORION
NEWCO SERVICES, INC., a Delaware corporation, as issuer (together, with its
successors and assigns, the "Company"); ORION NETWORK SYSTEMS, INC., ORION
SATELLITE CORPORATION, INTERNATIONAL PRIVATE SATELLITE PARTNERS, L.P., ORIONNET,
INC., ORION ASIA PACIFIC CORPORATION, ASIA PACIFIC SPACE AND COMMUNICATIONS,
LTD., ORION ATLANTIC EUROPE, Ltd., ORION ATLANTIC EUROPE Inc; A. and ORION NET
FINANCE CORPORATION Net Finance Corporation, all Delaware Corporations, as
guarantors; and BANKERS TRUST COMPANY, a New York Banking Corporation, as
trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of up to $[ ] aggregate principal
amount of the Company's [ ]% Senior Notes Due 2007 (the "Notes") issuable as
provided in this Indenture. Pursuant to the terms of a Underwriting Agreement
dated as of [____________], 1997 (the "Underwriting Agreement") between the
Company and Morgan Stanley & Co. Incorporated, as the manager for itself and the
several other placement agents therein (the "Manager"), the Company has agreed
to issue and sell [ ] units (the "Units"), each Unit consisting of $[________]
principal amount of the Notes and one warrant (the "Warrant") to purchase
initially an equal number of shares of Common Stock, par value $.01 per share,
of the Company (the "Common Stock"), issuable pursuant to the terms of a Warrant
Agreement dated as of [________], 1997 (the "Warrant Agreement") between the
Company and [ ], as the warrant agent (the "Warrant Agent"), and [ ] Senior
Discount Note Units (the "Senior Discount Note Units"), each Senior Note Unit
consisting of $[________] principal amount at maturity of the [ ]% Senior
Discount Notes Due 2007 (the "Senior Discount Notes") and one Warrant to
purchase initially [ ] shares of Common Stock, issuable pursuant to the terms of
the Warrant Agreement. The Notes will be secured pursuant to the terms of a
Pledge Agreement (as defined herein) by Government Securities as provided by
Article Ten of this Indenture. All things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms, have been done,
and the Company has done all things necessary to make the Notes, when executed
by the Company and authenticated and delivered by the Trustee hereunder and duly
issued by the Company, the valid obligations of the Company as hereinafter
provided.
This Indenture is subject to, and shall be governed by, the
provisions of the United States Trust Indenture Act of 1939, as amended, that
are required to be a part of and to govern indentures qualified under the United
States Trust Indenture Act of 1939, as amended.
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders, as follows.
<PAGE>
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions .
"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 Indebtedness.
"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
Section 4.04 of this Indenture (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 Guarantor 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 Section 4.04 of this Indenture , 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
<PAGE>
Subsidiaries, prepared in conformity with GAAP and filed with the Commission
pursuant to Section 4.19 of this Indenture.
"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.
"Agent" means any Registrar, Paying Agent, authenticating
agent or co-Registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial interests, the rules and procedures of the Depositary
that apply to such transfer or exchange.
"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 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 Section 5.01;
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 received would satisfy clause (B) of
Section 4.11 of this Indenture.
<PAGE>
"Average Life" means, at any date 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.
"Board of Directors" means the Board of Directors of the
Company or any committee of such Board of Directors duly authorized to act with
respect to this Indenture from time to time.
"Board Resolution" means a copy of a resolution, certified by
any Director of the Company or the Secretary or Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means a day except Saturday, Sunday or other
day on which commercial banks in the City of New York, or in the city of the
Corporate Trust Office of the Trustee, are authorize by law to close.
"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.
"Certificated Note" means a certificated Note registered in
the name of the Holder thereof and issued in accordance with Section 2.07(a)
hereof, substantially in the form of Exhibit B hereto.
"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 of 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
<PAGE>
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.
"Chief Executive Officer" of the Company means W. Neil Bauer
or, in the event of his death or termination of his office, such other Officer
of the Company as the Company may designate.
"Closing Date" means the date on which the Notes are
originally issued under the Indenture.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the TIA, then the
body performing such duties at such time.
"Common Stock" means, the shares of Common Stock, par value
$.01 per share, of the Company.
"Company Order" means a written request or order signed in the
name of the Company (i) by the Chairman of the Board, the Chief Executive
Officer or an Executive Director and (ii) by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee;
provided, however, that such written request or order may be signed by any two
of the officers or directors listed in clause (i) above in lieu of being signed
by one of such officers or directors listed in such clause (i) and one of the
officers listed in clause (ii) above.
"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 Indebtedness" means the aggregate amount of
Indebtedness of the Company and its Restricted Subsidiaries on a consolidated
basis.
<PAGE>
"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 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 any 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 Section 4.19 of this Indenture (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 of 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).
<PAGE>
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date of this Indenture,
located at Bankers Trust Company, 4 Albany Street, New York, N.Y. 10006.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary against fluctuations in
currency values.
"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 in Sections 4.11 and 4.13 of
this Indenture 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 Sections 4.11 and 4.13 of this Indenture.
"Depositary" shall mean The Depository Trust Company, its
nominees and their respective successors, until a successor Depositary shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall been or include each Person who is then a
Despositary hereunder.
"Depositary Interest" means a certificateless depositary
interest representing a 100% beneficial interest in a Global Note.
"Existing Stockholders" means British Aerospace Space Systems,
Inc., Lockheed Martin Commercial Launch Services, Inc., MCN Sat. U.S., Inc.,
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., Space
Systems/Loral and any Subsidiary of any of the foregoing.
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section 4.11.
<PAGE>
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended.
"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 Closing 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 No. 16 and 17.
"Global Note" means the Global Notes, substantially in the
form of Exhibit A hereto issued in accordance with Section 2.01 or 2.07(a)
hereof.
"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, Orion Network Systems, Inc.,
Orion Satellite Corporation, International Private Satellite Partners, L.P.,
OrionNet, Inc., Orion Asia Pacific
<PAGE>
Corporation, Asia Pacific Space and Communications, Ltd., Orion Atlantic Europe,
Inc. and OrionNet Finance Corporation, and all other Restricted Subsidiaries;
provided that any Person that becomes an Unrestricted Subsidiary in compliance
with Section 4.04 shall not be included in "Guarantors" after becoming an
Unrestricted Subsidiary.
"Holder" means the Person in whose name such Note is
registered in the Register.
"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 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 clause (i) or (ii) above or
clause (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 (A) that the amount outstanding at any time of
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.
<PAGE>
"Indenture" means this Indenture as originally executed or as
it may be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture.
"Independent Financial Advisor" means an investment banking
firm, accounting firm or other financial advisory firm of national standing in
the United States, as the case may be, (i) which, in the judgment of the Board
of Directors, does not, and whose directors, officers or Affiliates do not, have
a material direct or indirect financial interest in the Company (provided that
ownership of Capital Stock of the Company constituting less than 2% of all
outstanding Capital Stock of the Company shall not constitute a material direct
or indirect financial interest), and (ii) which, in the judgment of the Board of
Directors, is otherwise independent and qualified to perform the task for which
it is to be engaged.
"Indirect Participant" means a Person who holds an interest
through a Participant.
"Interest Payment Date" means each semiannual interest payment
date of [______________] and [_____________] of each year, commencing
[___________], 1997.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement or other similar agreement or
arrangement designed to protect the Company or any of its Restricted
Subsidiaries against fluctuations in interest rates in respect of Indebtedness
to or under which the Company or any of its Restricted Subsidiaries is a party
or a beneficiary on the date of this Indenture or becomes a party or a
beneficiary hereafter; provided that the notional principal amount thereof does
not exceed the principal amount of the Indebtedness of the Company and its
Restricted Subsidiaries that bears interest at floating rates.
"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 Section
4.06 of this Indenture. For purposes of the definition of "Unrestricted
Subsidiary" and Section 4.04 of this Indenture, (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
<PAGE>
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.
"Issue Date" means the original date of issuance of the Notes.
"Junior Subordinated Convertible Debentures" means the 8.75%
Convertible Junior Subordinated Debentures Due 2012 of the Company.
"Kingston" means Kingston Communications International
Limited.
"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).
"Manager" means Morgan Stanley & Co. Incorporated, as manager
for itself and the several other underwriters agents named in the Underwriting
Agreement.
"Matra" means Matra Marconi Space UK Limited, the parent
Company of MMS Space Systems and a subsidiary of Matra Marconi Space N.V., and
the manufacturer under the Orion 2 Satellite Contract.
"Maturity Date" means the Stated Maturity of the Notes.
"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.
"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
<PAGE>
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 Guarantee" means the Guarantee by the Guarantors of the
Company's obligations under the Notes and the Indenture, pursuant to the
Indenture, and the Guarantee by any other Person that becomes a Guarantor of the
Company's obligations under the Notes and the Indenture.
"Notes" means the [___________]% Senior Notes due 2007 of the
Company issued pursuant to this Indenture.
"Offer to Purchase" means an offer to purchase Notes by the
Company from the Holders commenced by mailing a notice to the 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 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 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
<PAGE>
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 Trustee all Notes or portions thereof
so accepted together with an Officers' Certificate specifying the Notes or
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 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 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 Atlantic" means International Private Satellite
Partners, L.P., a Delaware Limited Partnership.
"Orion 1" means the high-power Ku-band communications
satellite operated over the Atlantic Ocean by Orion.
"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.
"Orion 1 Satellite Contract" means 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.
"Orion 2 Satellite Contract" means the spacecraft purchase
agreement between Orion and Matra Marconi Space for construction and launch of
Orion 2.
"Officer" means, with respect to the Company, (i) the Chairman
of the Board, the Chief Executive Officer or any other Director of the Company
or (ii) the Treasurer or any Assistant Treasurer, the Company Secretary or any
Company Assistant Secretary.
"Officers' Certificate" means a certificate signed by one
Officer listed in clause (i) of the definition thereof and one Officer listed in
clause (ii) of the definition thereof; provided, however, that any such
certificate may be signed by any two of the Officers listed in clause (i) of the
definition thereof in lieu of being signed by one Officer listed in clause (i)
of the definition thereof and one Officer listed in clause (ii) of the
definition thereof. Each
<PAGE>
Officers' Certificate (other than certificates provided pursuant to TIA Section
314(a)(4)) shall include the statements provided for in TIA Section 314(e), if
applicable.
"Opinion of Counsel" means a written opinion signed by legal
counsel who may be an employee of or counsel to the Company. Each such Opinion
of Counsel shall include the statements provided for in TIA Section 314(e), if
applicable.
"Participant" means, with respect to a the Depositary, a
Person who has an account therewith.
"Paying Agent" has the meaning provided in Section 2.03,
except that, for the purposes of Article Eight, the Paying Agent shall not be
the Company or a Subsidiary of the Company or an Affiliate of any of them. The
term "Paying Agent" includes any additional Paying Agent.
"Payment Date" means with respect to any Offer to Purchase,
the date of purchase of the Notes pursuant thereto, which shall be a Business
Day no earlier than 30 days nor later than 60 days from the date a notice is
mailed pursuant to such Offer to Purchase.
"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
<PAGE>
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 Section 4.03 of this Indenture, (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 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)
<PAGE>
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.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Pledge Account" means an account established with the 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 this Indenture, made by the Company in favor
of the 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.
"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 Date," when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"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
<PAGE>
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.
"Redemption Price," when used with respect to any Note to be
redeemed, means the price at which such Note is to be redeemed pursuant to this
Indenture.
"Register" has the meaning provided in Section 2.03.
"Registrar" has the meaning provided in Section 2.03.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the [_______] or [_______] (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date.
"Related Person" means any holder (or any Affiliate of such
holder) of 5% or more of any class of Capital Stock of the Company and any
Affiliate of the Company or any Restricted Subsidiary.
"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.
"Responsible Officer," when used with respect to the Trustee,
means the chairman or any vice chairman of the board of directors, the chairman
or any vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, any
assistant vice president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, the cashier, any assistant cashier, any trust officer
or assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Restricted Payments" has the meaning provided in Section
4.04.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Group and its
successors.
"Securities Act" means the United States Securities Act of
1933, as amended.
<PAGE>
"Separation Date" means the earliest of (i) six months after
the date of issuance, (ii) such date as the Underwriters may, in their
discretion, deem appropriate and (ii) in the event of an Offer to Purchase, the
date the Company mails notice thereof to holders of the Notes.
"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.
"Specified Date" means any Redemption Date, any Payment Date
for an Offer to Purchase pursuant to Section 4.11 or Section 4.13 or any date on
which the Securities are due and payable after an Event of Default.
"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.
"Subsidiary Guarantee" means the Guarantee of the Notes by any
Subsidiary of the Company substantially in the form of Exhibit F hereto.
"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.
"Tax" means any tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and any other liabilities
related thereto).
"Taxing Authority" means any government or political
subdivision or territory or possession of any government or any authority or
agency therein or thereof having power to tax.
<PAGE>
"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
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.
"TIA" or "Trust Indenture Act" means the United States Trust
Indenture Act of 1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbb), as in
effect on the date this Indenture was executed, except as provided in Section
9.06.
"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.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of Article Seven of this Indenture and thereafter means such
successor.
"Underwriters" has the meaning as set forth in the
Underwriting Agreement.
<PAGE>
"Underwriting Agreement" means the Underwriting Agreement date
[ ] 1997 between the Company and the Manager, for itself and the other
Underwriters named therein.
"Units" has the meaning provided in the recitals to this
Indenture.
"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 and (ii) any
Subsidiary of an Unrestricted Subsidiary. 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
Section 4.04 of this Indenture, and (C) if applicable, the Incurrence of
Indebtedness and the Investment referred to in clause (A) of this proviso would
be permitted under the Section 4.03 and Section 4.04 of this Indenture. 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 Section 4.03 of this Indenture 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 Trustee by promptly filing with the
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.
"Warrants" means the warrants to purchase Common Stock of the
Company issued as part of a unit with each of the Notes and the Senior Discount
Notes.
"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.
SECTION 1.02. Incorporation by Reference of Trust Indenture
Act . Whenever this Indenture refers to a provision of the TIA, such provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
<PAGE>
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. Rules of Construction . Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in
the plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(vii) all references to Sections, Articles or Exhibits refer
to Sections, Articles or Exhibits of this Indenture unless otherwise
indicated; and
(viii) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement or successor
sections of the Securities Act or rules adopted by the Commission from
time to time.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating . (a) Global Notes. The Notes
offered and sold shall be issued in the form of one or more fully registered
Notes in global form ("Global Notes"), which shall be deposited on behalf of the
purchasers of the Notes represented thereby with the at its New York corporate
trust office, duly executed by the Company and authenticated
<PAGE>
by the Trustee as hereinafter provided. The Notes in definitive form
("Certificated Notes") shall not be issued except as provided in Section
2.07(a). The aggregate principal amount of each of the Global Notes may from
time to time be increased or decreased by adjustments made on the records of the
Trustee as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes
as shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, redemptions and transfers of interests therein in accordance
with the terms of this Indenture. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the principal amount of outstanding
Notes represented thereby shall be made by the Trustee in accordance with
instructions given by the Holder thereof as required by Section 2.07 hereof.
Except as set forth in Section 2.07(a) hereof, the Global
Notes may not be transferred except as a whole by the Depositary to a nominee of
the Depositary or by the nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the nominee of the Depositary or by the
Depositary of any such nominee to a successor of the Depositary or a nominee of
each successor.
(b) Book-Entry Provisions. The Company shall execute and the
Trustee shall, in accordance with this Section 2.01(b) and Section 2.02 hereof,
authenticate and deliver the Global Notes to the Depositary.
Upon receipt of each Global Note authenticated and delivered
by the Trustee, the Depositary shall credit, on its internal book-entry
registration and transfer system, its Participant's accounts with the respective
interests owned by such Participants. Beneficial ownership in the Global Notes
shall be limited to Participants and Indirect Participants.
So long as the Depositary is the registered holder of any
Global Note, the Participants and Indirect Participants shall have no rights
under this Indenture or under any Global Note with respect to such Global Note
held on their behalf by the Depositary, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Note for the purpose of receiving payment of or on account
of the principal of and, subject to the provisions of this Indenture, interest
on the Global Notes and for all other purposes. Notwithstanding the foregoing,
nothing herein shall impair the operation of customary practices of the
Depositary governing the exercise of the rights of an owner of a beneficial
interest in any Global Note. No beneficial owner of an interest in any Global
Note shall be able to transfer such interest except in accordance with the
Applicable Procedures.
(c) Note Forms. The provisions of the form of Global Note
contained in Exhibits A hereto are incorporated herein by reference.
<PAGE>
(d) Dating. Each Note shall be dated the date of its
authentication.
SECTION 2.02. Execution and Authentication. Any director of
the Company shall execute the Notes on behalf of the Company by manual or
facsimile signature. The Company's common seal may be reproduced on the Notes
and may be in facsimile form.
If the director whose manual or facsimile signature is on a
Note no longer holds that office at the time the Trustee authenticates the Note
or at any time thereafter, the Note nevertheless shall be valid.
A Note shall not be valid until an authorized officer of the
Trustee manually signs the certificate of authentication on the Note. Such
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate Notes for original issue in an
aggregate principal amount at maturity not to exceed $[ ] upon receipt of a
certificate signed by any Officer or attorney-in-fact therefor directing the
Trustee to authenticate the Notes. The Global Notes shall be issuable only in
fully registered form and the Certificated Notes shall be issuable only in
registered form. The Notes shall be issued without coupons and only in
denominations of U.S. $1,000 principal amount at maturity or any integral
multiple thereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. Such authenticating agent shall have the
same rights as the Trustee in any dealings hereunder with the Company or with
any of the Company's Affiliates.
SECTION 2.03. Registrar and Paying Agent. The Company shall
maintain an office or agency where Certificated Notes may be presented for
registration of transfer or for exchange (the "Registrar"), an office or agency
where Notes may be presented for payment (the "Paying Agent"), and an office or
agency where notices and demands to or upon the Company in respect of the Notes
and this Indenture may be served, in each case, located in the Borough of
Manhattan, The City of New York, State of New York. The Registrar shall keep a
register containing the names and addresses of all Holders (the "Register") and
of the transfer and exchange of Certificated Notes. Any notice to be given under
this Indenture or under the Notes by the Trustee or the Company to Holders shall
be mailed by first class mail to each Holder at its address as it appears at the
time of such mailing in the Register. The Company may have one or more
co-Registrars and one or more additional paying agents. The term "Paying Agent"
includes any additional paying agent. Except as otherwise provided herein, the
Company or any Subsidiary thereof may act as Paying Agent. The Company may also
from time to time designate one or more other offices or agencies where the
Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
<PAGE>
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.07.
The Company initially appoints the Corporate Trust Office of
the Trustee in the Borough of Manhattan located at the address set forth in
Section 11.02 as Registrar, Paying Agent and agent for service of notices and
demands in connection with the Notes and this Indenture.
SECTION 2.04. Holders to Be Treated as Owners; Payments of
Interest . (a) The Company, the Paying Agent, the Registrar, the Trustee and any
agent of the Company, the Paying Agent, the Registrar or the Trustee may deem
and treat each Holder of a Note as the absolute owner of such Note for the
purpose of receiving payment of or on account of the principal of and, subject
to the provisions of this Indenture, and interest on such Note and for all other
purposes. Neither the Company, the Paying Agent, the Registrar, the Trustee nor
any agent of the Company, the Paying Agent, the Registrar or the Trustee shall
be affected by any notice to the contrary. All such payments so made to any such
Person, or upon his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any Note.
(b) The Holder of Certificated a Note at the close of business
on the Regular Record Date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date
notwithstanding any transfer or exchange of such Certificated Note subsequent to
the Regular Record Date and prior to such Interest Payment Date, except if and
to the extent the Company shall default in the payment of the interest due on
such Interest Payment Date, in which case such defaulted interest shall be paid
in accordance with Section 2.13; provided that, in the event of an exchange of a
Certificated Note for a beneficial interest in any Global Note subsequent to a
Regular Record Date or any special record date and prior to or on the related
Interest Payment Date, any payment of interest payable on such payment date with
respect to any such Certificated Note shall be made to the Person in whose name
such Certificated Note was registered on such record date. Payments of interest
on the Global Notes will be made to the Holder of the Global Note on each
Interest Payment Date; provided that, in the event of an exchange of all or a
portion of the Global Note for Certificated Notes subsequent to the Regular
Record Date or any special record date and prior to or on the related Interest
Payment Date or other payment date under Section 2.13, any payment of interest
payable on such payment date with respect to the Certificated Note shall be made
to the Holder of the Global Note.
(c) The Trustee shall pay interest to the Depositary, with
respect to any Global Note held by the Depositary, in accordance with
instructions received from the at least five business days before the applicable
Interest Payment Date.
<PAGE>
SECTION 2.05. Paying Agent to Hold Money in Trust. The Company
shall require each Paying Agent other than the Trustee to agree in writing that
such Paying Agent will hold in trust for the benefit of the Holders or the
Trustee all money held by the Paying Agent for the payment of principal of or
interest on the Notes (whether such money has been paid to it by the Company or
any other obligor on the Notes), and the Company and the Paying Agent shall
notify the Trustee of any default by the Company (or any other obligor on the
Notes) in making any such payment. Unless the Company or any Subsidiary is the
Paying Agent, money held in trust by the Paying Agent need not be segregated
except as required by law and in no event shall the Paying Agent be liable for
any interest on any money received by it hereunder. The Company at any time may
require the Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any Event of Default specified in Section 6.01(a) or (b), upon written
request to the Paying Agent, require such Paying Agent to pay forthwith all
money so held by it to the Trustee and to account for any funds disbursed. Upon
making such payment, the Paying Agent shall have no further liability for the
money delivered to the Trustee. If the Company or any Subsidiary of the Company
acts as Paying Agent it shall, on or before each due date of the principal of or
interest on the Notes, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
SECTION 2.06. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
from the Registrar of the names and addresses of the Holders of Notes. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
five Business Days before each Interest Payment Date, and at such other times as
the Trustee may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of the Holders of
Notes, if any.
SECTION 2.07. Transfer and Exchange. (a) Transfer and Exchange
of Global Notes. Except as provided below, transfers of Global Notes shall be
limited to transfers of such Global Notes in whole, but not in part, to the
Depositary. Certificated Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests in the Global Notes if (i) the
Depositary or Company delivers to the Trustee notice from the Depositary that it
is unwilling or unable to continue to act as Depositary for the Global Notes or
at any time ceases to be a clearing agency registered under the Exchange Act
and, in either case, a successor Depositary is not appointed by the Company
within 120 days after the date of such notice from the Depositary; or (ii) the
Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Certificated Notes and delivers a written
notice to such effect to the Trustee.
(i) In connection with any transfer of a portion of the
beneficial interests in the Global Notes to beneficial owners pursuant
to paragraph (a) above, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of such Global
Notes in an amount equal to the principal amount of the beneficial
interest in such
<PAGE>
Global Notes to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Certificated Notes
of like tenor and amount.
(ii) In connection with the transfer of an entire Global Note
to beneficial owners pursuant to paragraph (a) above, the Global Note
shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and
deliver, to each beneficial owner identified by the Depositary in
exchange for its beneficial interest in the Global Note an equal
aggregate principal amount of Certificated Notes of authorized
denominations.
(b) Transfer and Exchange of Beneficial Interests in the
Global Note. The transfer and exchange of beneficial interests in the
Global Notes shall be effected through the Depositary, in accordance
with this Indenture and Applicable Procedures of the Depositary
therefor.
(c) Transfer and Exchange of Certificated Notes. When
Certificated Notes are presented by a Holder to the Registrar with a
request to register the transfer of the Certificated Notes or to
exchange such Certificated Notes for an equal principal amount of
Certificated Notes of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested only if
the Certificated Notes are presented or surrendered for registration of
transfer or exchange and are endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing
and upon receipt of such certificates.
(d) Legends.
(i) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE,
(II) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (III) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF ORION NEWCO SERVICES, INC."
(ii) Unit Legend. Each Note issued prior to the Separation
Date shall bear the following legend (the "Unit Legend") on the face
thereof:
<PAGE>
"THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART
OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF $[ ] PRINCIPAL
AMOUNT OF THE NOTES AND ONE WARRANT (EACH, A "WARRANT" AND
COLLECTIVELY, THE "WARRANTS") INITIALLY ENTITLING THE HOLDER THEREOF TO
PURCHASE [ ] SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, (THE
"COMMON STOCK")."
(e) General Provisions Relating to All Transfers and
Exchanges. (i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and Certificated
Notes upon the Company's order or at the Registrar's request.
(i) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any stamp or transfer tax or similar governmental charge
payable in connection therewith (other than any such stamp or transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.11, 3.07, 4.11, 4.13 and 9.04 hereof).
(ii) All Global Notes and Certificated Notes issued upon any
registration of transfer or exchange of Global Notes or Certificated Notes shall
be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Global Notes or Certificated
Notes surrendered upon such registration of transfer or exchange.
(iii) The Company shall not be required (A) to issue, to
register the transfer of or to exchange Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.03 hereof and ending at the close of business on the
day of selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest Payment
Date.
(iv) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on such
Notes and for all other purposes, and neither the Trustee, any Agent nor the
Company shall be affected by notice to the contrary.
(v) The Trustee shall authenticate Global Notes and
Certificated Notes in accordance with the provisions of Section 2.02 hereof.
SECTION 2.08. Replacement Notes . If a mutilated Certificated
Note is surrendered to the Registrar or the Trustee, if a mutilated Global Note
is surrendered to the Company or the Trustee or if the Company and the Trustee
receive evidence to their satisfaction that any Note has been lost, destroyed or
stolen, the Company shall issue and the Trustee shall
<PAGE>
authenticate a replacement Note in such form as the Notes mutilated, lost,
destroyed or wrongfully taken if (i) in the case of a lost, destroyed or stolen
Note, the Holder of such Note furnishes to the Company, the Trustee and, in the
case of a Certificated Note, the Registrar, evidence reasonably acceptable to
them of the ownership and the destruction, loss or theft of such Note and (ii)
an indemnity bond shall be posted by the Holder requesting replacement,
sufficient in the judgment of each to protect the Company, the Registrar (in the
case of a Certificated Note ), the Trustee or any Agent from any loss that any
of them may suffer if such Note is replaced. Prior to the issuance of any such
replacement Note, the Trustee shall notify the Company of any request therefor.
The Company may charge such Holder for the Company's out-of-pocket expenses in
replacing such Note and the Trustee may charge the Holder for the Trustee's
expenses in replacing such Note. Every replacement Note shall constitute an
additional obligation of the Company and shall be entitled to all of the
benefits of this Indenture equally and proportionally with all other Notes
issued hereunder. The provisions of this Section 2.08 are exclusive and shall
preclude (to the extent permitted by applicable law) all other rights and
remedies with respect to the replacement of mutilated, lost, destroyed or stolen
Notes.
SECTION 2.09. Outstanding Notes . The Notes outstanding at any
time are all Notes that have been authenticated by the Trustee except for (a)
those cancelled by it, (b) those delivered to it for cancellation, (c) to the
extent set forth in Sections 8.01 and 8.02, on or after the date on which the
conditions set forth in Section 8.01 or 8.02 have been satisfied, those Notes
theretofore authenticated and delivered by the Trustee hereunder and (d) those
described in this Section 2.09 as not outstanding. Subject to Section 2.10, a
Note does not cease to be outstanding because the Company or one of its
Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Company.
If the principal amount of any Note is considered to be paid
under Section 4.01, it ceases to be outstanding and interest thereon shall cease
to accrue.
If the Paying Agent holds, in its capacity as such, on the
Stated Maturity of a Note, on any Redemption Date or on any Payment Date, money
sufficient to pay all accrued interest and Liquidated Damages and principal with
respect to such Notes payable on that date and is not prohibited from paying
such money to the Holders thereof pursuant to the terms of this Indenture, then
on and after that date such Notes cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.10. Treasury Notes . In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent or any amendment, modification or other change to
this Indenture, Notes owned by the Company or an Affiliate of the Company shall
be disregarded as though they were not outstanding, except that for the purposes
of determining whether the Trustee shall be protected in relying on any
<PAGE>
such direction, waiver or consent or any amendment, modification or other change
to this Indenture, only Notes that the Trustee actually knows are so owned shall
be so disregarded.
SECTION 2.11. Temporary Notes . Until definitive Notes are
prepared and ready for delivery, the Company may prepare and the Trustee shall,
upon receipt of a Company Order, authenticate temporary Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive
Notes in exchange for temporary Notes. Until such exchange, temporary Notes
shall be entitled to the same rights, benefits and privileges as definitive
Notes.
SECTION 2.12. Cancellation . All Notes surrendered for
payment, redemption, registration of transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Notes previously authenticated hereunder which the Company has not issued
and sold, and all Notes so delivered shall be promptly cancelled by the Trustee.
If the Company shall so acquire any of the Notes, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Notes unless and until the same are surrendered to the
Trustee for cancellation. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section 2.12, except as
expressly permitted by this Indenture. All cancelled Notes held by the Trustee
shall be disposed of by the Trustee in accordance with its customary procedures
and certification of their disposal delivered to the Company unless by Company
Order the Company shall direct that cancelled Notes be returned to it.
SECTION 2.13. Defaulted Interest . If the Company defaults on
a payment of interest on the Notes, it shall pay the defaulted interest plus (to
the extent permitted by law) any interest payable on the defaulted interest in
accordance with the terms hereof, to (a) the Persons who are Holders of
Certificated Notes, if any, on a subsequent special record date, which date
shall be at least five Business Days prior to the payment date for such
defaulted interest, and (b) if any Global Notes are outstanding on such payment
date, to the Holder of the Global Notes on such payment date. The Company shall
fix such special record date and payment date in a manner reasonably
satisfactory to the Trustee. At least 15 days before such special record date,
the Company shall mail to each Holder of Certificated Notes, if any, and if the
Global Notes are still outstanding, to the Holder thereof and the Depositary, a
notice that states the special record date, the payment date and the amount of
defaulted interest and interest payable on such defaulted interest to be paid.
SECTION 2.14. CUSIP, CINS or ISIN Number . The Company in
issuing the Notes may use a "CUSIP," "CINS" or "ISIN" number, and if so, such
CUSIP, CINS or ISIN number shall be included in notices of redemption,
repurchase or exchange as a convenience to Holders, provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP, CINS or ISIN number printed in the notice or on the
<PAGE>
Notes, and that reliance may be placed only on the other identification numbers
printed on the Notes; and provided, further that failure to use CUSIP, CINS or
ISIN numbers in any notice of redemption, repurchase or exchange shall not
affect the validity or sufficiency of such notice. The Company will promptly
notify the Trustee of any change in the CUSIP, CINS or ISIN number.
SECTION 2.15. Deposit of Moneys . Prior to 12:00 noon, New
York City time, on each Interest Payment Date, at the Stated Maturity of the
Notes, on each Redemption Date, on each Payment Date and on the Business Day
immediately following any acceleration of the Notes pursuant to Section 6.02,
the Company shall deposit with the Paying Agent in immediately available funds
money (in United States dollars) sufficient to make cash payments, if any, due
on such Interest Payment Date, Stated Maturity, Redemption Date, Payment Date or
Business Day, as the case may be, in a timely manner which permits the Trustee
to remit payment to the Holders on such Interest Payment Date, Stated Maturity,
Redemption Date, Payment Date or Business Day, as the case may be.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of 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 Note 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:
Year Redemption Price
---- ----------------
2002 [_____]%
2003 [_____]%
2004 and thereafter 100.000%
<PAGE>
SECTION 3.02. Notices to Trustee . If the Company elects to
redeem Notes pursuant to Section 3.01, it shall notify the Trustee in writing of
(i) the clause of the Indenture pursuant to which the redemption shall occur,
(ii) the Redemption Date, (iii) the principal amount at stated maturity of Notes
to be redeemed plus interest accrued thereon, if any, to the Redemption Date and
(iv) the Redemption Price.
The Company shall give each notice provided for in this
Section 3.02 in an Officers' Certificate at least 15 days before mailing the
notice to Holders referred to in Section 3.01.
SECTION 3.03. Selection of Notes to Be Redeemed . In the case
of any partial redemption, selection of the Notes for redemption will be made by
the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not listed on a national securities exchange, on a pro rata basis, by lot or by
such other method as the 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.
SECTION 3.04. Notice of Redemption . With respect to any
redemption of Notes pursuant to Section 3.01, at least 30 days but not more than
60 days before a Redemption Date, the Company shall mail a notice of redemption
by first class mail to each Holder whose Notes are to be redeemed at such
Holder's registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be surrendered to
the Paying Agent in order to collect the Redemption Price;
(e) the paragraph of the Notes and/or the Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed;
(f) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date and the only remaining right of the
Holders is to receive payment of the
<PAGE>
Redemption Price plus accrued interest to the Redemption Date upon
surrender of the Notes to the Paying Agent;
(g) that, if any Note is being redeemed in part, the portion
of the principal amount (equal to $1,000 in principal amount or any
integral multiple thereof) of such Note to be redeemed and that, on and
after the Redemption Date, upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion thereof will
be reissued; and
(h) that, if any Note contains a CUSIP, CINS, ISIN or other
identification number as provided in Section 2.14, no representation is
being made as to the correctness of the CUSIP, CINS, ISIN or other
identification number either as printed on the Notes or as contained in
the notice of redemption and that reliance may be placed only on the
other identification numbers printed on the Notes.
At the Company's request contained in a Company Order (which
request may be revoked by the Company at any time prior to the time at which the
Trustee shall have given such notice to the Holders), made to the Trustee at
least 15 days before mailing the notice to Holders referred to in Section 3.01,
the Trustee shall give such notice of redemption in the name and at the expense
of the Company. If, however, the Company gives such notice to the Holders, the
Company shall concurrently deliver to the Trustee an Officers' Certificate
stating that such notice has been given. Notice of redemption shall be deemed to
be given when mailed, whether or not the Holder receives the notice. In any
event, failure to give such notice, or any defect therein, shall not affect the
validity of the proceedings for the redemption of Notes held by Holders to whom
such notice was properly given.
SECTION 3.05. Deposit of Redemption Price . On or prior to any
Redemption Date, the Company shall deposit with the Paying Agent (or, if the
Company is acting as its own Paying Agent, shall segregate and hold in trust as
provided in section 2.05 )money sufficient to pay the Redemption Price of, and
accrued and unpaid interest on all Notes to be redeemed on that date other than
Notes or portions thereof called for redemption on that date that have been
delivered by the Company to the Trustee for cancellation.
SECTION 3.06. Payment of Notes Called for Redemption . If
notice of redemption has been given to Holders in the manner provided above, the
Notes or portion of Notes specified in such notice to be redeemed shall become
irrevocably due and payable on the Redemption Date at the Redemption Price
stated therein, together with accrued interest to such Redemption Date, and on
and after any such Redemption Date (unless the Company shall default in the
payment of Notes to be redeemed on such date at the Redemption Price, plus
accrued interest to the Redemption Date, in which case the principal, until
paid, shall bear interest from the Redemption Date at the rate prescribed in the
Notes), such Notes shall cease to accrue interest. Upon surrender of any Note
for redemption in accordance with a notice of redemption, such Note shall be
paid and redeemed by the Company at the Redemption Price, plus accrued interest
to the Redemption Date, provided that installments of interest whose Stated
Maturity is
<PAGE>
on or prior to the Redemption Date shall be payable to the Holders registered as
such at the close of business on the relevant Regular Record Date.
SECTION 3.07. Notes Redeemed in Part . Upon cancellation of
any Note that is redeemed in part, the Company shall issue and the Trustee shall
authenticate and deliver to the Holder a new Note equal in principal amount to
the unredeemed portion of such surrendered Note.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes . The Company shall pay the
principal of, premium, if any, and interest on the Notes on the dates and in the
manner provided in the Notes and this Indenture. An installment of principal,
premium, interest shall be considered paid on the date due if the Trustee or
Paying Agent (other than the Company, a Subsidiary of the Company, or any
Affiliate of any of them) holds as of 10:00AM New York City time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay the installment.
SECTION 4.02. Issuances of Guarantees by New Restricted
Subsidiaries. The Company will provide to the Trustee, on the date that any
Person becomes a Restricted Subsidiary, a supplemental indenture to this
Indenture, 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 this Indenture; 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.
SECTION 4.03. 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
<PAGE>
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 Guarantee 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 Guarantee
are refinanced in part or the Indebtedness to be refinanced is pari
passu with the Notes or the Note Guarantee, 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 Guarantee, 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 Guarantee, 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 Guarantee at least to the
extent that the Indebtedness to be refinanced is subordinated to the
Notes or the Note Guarantee, 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 disposition of any business,
assets or Restricted Subsidiary of the Company (other than Guarantees
of
<PAGE>
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 in Section 8.02 of this
Indenture; (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
Section 4.07 of this Indenture;
(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 Section 4.04 of this Indenture);
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 Section covenant, the
maximum amount of Indebtedness that the Company or a Restricted Subsidiary may
incur pursuant to this Section 4.03 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 Section, (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 Section 4.09 of this
Indenture shall not be treated as Indebtedness. For purposes of determining
compliance with this Section 4.03, 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
Section 4.11, the aggregate amount of Indebtedness which may otherwise be
Incurred under clauses (i)(B) and (viii) of the
<PAGE>
second paragraph of paragraph (a) of this Section 4.03 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.
SECTION 4.04. 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, 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 Guarantee (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 Section 4.03 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 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,
<PAGE>
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 Section 4.03, 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 Section 4.03;
(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 Series A Preferred Stock which were issued pursuant
to the exercise of options that were outstanding on the Closing
<PAGE>
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 Section 4.03; 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
Section 4.04 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
Section 4.04 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).
SECTION 4.05. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries . The Company will not, and will
not permit any Restricted Subsidiary to, create or otherwise cause or suffer to
exist or become effective any consensual
<PAGE>
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions permitted by
applicable law on any Capital Stock of such Restricted Subsidiary owned by the
Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to
the Company or any other Restricted Subsidiary, (iii) make loans or advances to
the Company or any other Restricted Subsidiary or (iv) transfer any of its
property or assets to the Company or any other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances
or restrictions:
(i) existing on the Closing Date in this Indenture or any
other agreements in effect on the Closing Date, and any extensions,
refinancings, renewals or replacements of such agreements; provided
that the encumbrances and restrictions in any such extensions,
refinancings, renewals or replacements are no less favorable in any
material respect to the Holders than those encumbrances or restrictions
that are then in effect and that are being extended, refinanced,
renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or
assets of such Person acquired by the Company or any Restricted
Subsidiary and existing at the time of such acquisition, which
encumbrances or restrictions are not applicable to any Person or the
property or assets of any Person other than such Person or the property
or assets of such Person so acquired;
(iv) in the case of clause (iv) of the first paragraph of this
Section 4.05, (A) that restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is a lease,
license, conveyance or contract or similar property or asset, (B)
existing by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of the
Company or any Restricted Subsidiary not otherwise prohibited by this
Indenture or (C) arising or agreed to in the ordinary course of
business, not relating to any Indebtedness, and that do not,
individually or in the aggregate, detract from the value of property or
assets of the Company or any Restricted Subsidiary in any manner
material to the Company or any Restricted Subsidiary; or
(v) with respect to a Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock of, or
property and assets of, such Restricted Subsidiary. Nothing contained
in this Section 4.05 shall prevent the Company or any Restricted
Subsidiary from (1) creating, incurring, assuming or suffering to exist
any Liens otherwise permitted in Section 4.09 or (2) restricting the
sale or other disposition of property or assets of the Company or any
of its Restricted Subsidiaries that secure Indebtedness of the Company
or any of its Restricted Subsidiaries.
<PAGE>
SECTION 4.06. Limitation on the Issuance 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 Section 4.04, 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 Section 4.11 of this Indenture;
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.
SECTION 4.07. Limitation on Issuances of Guarantees by
Restricted Subsidiaries . The Company will not permit any Restricted Subsidiary,
directly or indirectly, to Guarantee any Indebtedness of the Company which is
pari passu with or subordinate in right of payment to the Notes ("Guaranteed
Indebtedness"), unless such Restricted Subsidiary waives and will not in any
manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such Restricted
Subsidiary under its Subsidiary Guarantee; provided that this paragraph shall
not be applicable to any Guarantee of any Restricted Subsidiary that existed at
the time such Person became a Restricted Subsidiary and was not Incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary. If the Guaranteed Indebtedness is (A) pari passu with the Notes or
the Note Guarantee, then the Guarantee of such Guaranteed Indebtedness shall be
pari passu with, or subordinated to, the Subsidiary Guarantee or (B)
subordinated to the Notes or the Note Guarantee, then the Guarantee of such
Guaranteed Indebtedness shall be subordinated to the Subsidiary Guarantee at
least to the extent that the Guaranteed Indebtedness is subordinated to the
Notes or the Note Guarantee, as the case may be.
SECTION 4.08. 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
<PAGE>
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 Section 4.04 or (vii) Kingston's and Matra's rights to commissions
and other payments under sales representation 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 as the
terms of agreements in effect on the Closing Date. Notwithstanding the
foregoing, any transaction covered by the first paragraph of this Section 4.08
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.
SECTION 4.09. 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;
<PAGE>
(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 (iii) of the second paragraph of Section 4.03; 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.
SECTION 4.10. 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 Section 4.11 of this Indenture.
SECTION 4.11. 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 Section 4.18, then
the Company shall or shall
<PAGE>
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 Section 4.11. 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 Section 4.11 totals at least $10 million, the Company must
commence, not later than the fifteenth Business Day of such month, and
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 Notes plus, accrued
interest (if any) to the Payment Date.
SECTION 4.12. Maintenance of Office or Agency . The Company
will maintain an office or agency where the Notes may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 12.02.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby initially designates the Corporate Trust
Office of the Trustee as such office of the Company in accordance with Section
2.03.
<PAGE>
SECTION 4.13. Repurchase of Notes upon a Change of Control .
The Company shall 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 the principal amount of the Notes plus accrued
interest (if any) to the Payment Date.
SECTION 4.14. Existence . Subject to Articles Four and Five of
this Indenture, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of
each Restricted Subsidiary in accordance with the respective organizational
documents of the Company and each such Restricted Subsidiary and the rights
(whether pursuant to charter, partnership certificate, agreement, statute or
otherwise), material licenses and franchises of the Company and each such
Restricted Subsidiary, provided that the Company shall not be required to
preserve any such right, license or franchise, or the existence of any
Restricted Subsidiary (other than of the Company), if the maintenance or
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries taken as a whole.
SECTION 4.15. Payment of Taxes and Other Claims . The Company
will pay or discharge and shall cause each Restricted Subsidiary to pay or
discharge, or cause to be paid or discharged, before the same shall become
delinquent (i) all material taxes, assessments and governmental charges levied
or imposed upon (a) the Company or any such Restricted Subsidiary, (b) the
income or profits of any such Restricted Subsidiary which is a corporation or
(c) the property of the Company or any such Restricted Subsidiary and (ii) all
material lawful claims for labor, materials and supplies that, if unpaid, might
by law become a Lien upon the property of the Company or any such Restricted
Subsidiary, provided that the Company shall not be required to pay or discharge,
or cause to be paid or discharged, any such tax, assessment, charge or claim the
amount, applicability or validity of which is being contested in good faith by
appropriate proceedings or by the Company and its Restricted Subsidiaries where
the failure to effect such payment is not adverse in any material respect to the
Holders.
SECTION 4.16. Maintenance of Properties and Insurance . 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
<PAGE>
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 Section 4.16 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 Section 4.16 shall be applied, within 90 days, to
reduce Indebtedness of the Company or shall constitute "Excess Proceeds" for
purposes of Section 4.11.
The Company will further provide or cause to be provided, for
itself and its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds considered reasonable by the
Company in the conduct of its business.
The Company will cause all properties owned by the Company or
any Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section 4.16
shall prevent the Company from discontinuing the maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 4.17. Notice of Defaults . In the event that the
Company becomes aware of any Default or Event of Default, the Company, promptly
after it becomes aware thereof, will give written notice thereof to the Trustee.
<PAGE>
SECTION 4.18. 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 Notes 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.
SECTION 4.19. Waiver of Stay, Extension or Usury Laws . The
Company covenants (to the extent that it may lawfully do so) that it shall not
at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of, premium, if any, or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture, and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. 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
Indenture;
(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
<PAGE>
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 Section 4.03;
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 Section
5.01 shall not apply to the Merger.
SECTION 5.02. Successor Substituted . Upon any consolidation
or merger, or any sale, conveyance, transfer or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Notes.
<PAGE>
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default . An "Event of Default" shall
occur with respect to the Notes if:
(a) default in the payment of principal of (or premium, if
any, on) any Note when the same becomes due and payable at maturity,
upon acceleration, redemption or otherwise;
(b) default in the payment of interest on any Note 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 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 Section 5.01 or
the failure to make or consummate an Offer to Purchase in accordance
with Section 4.11 or Section 4.13;
(d) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture or under
the Notes (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 Trustee or the Holders of
25% or more in aggregate principal amount at maturity of the Notes;
(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
<PAGE>
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, 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 Note 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.
SECTION 6.02. Acceleration . 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 Indenture, the
Trustee or the Holders of at least 25% in aggregate principal amount at maturity
of the Notes, then outstanding, by written notice to the Company (and to the
Trustee if such notice is given by the Holders), may, and the Trustee at the
request of such Holders shall, declare the principal amount of, premium, if any,
and accrued interest on the Notes to be immediately due and payable. Upon a
declaration of acceleration, such principal amount 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
Guarantor, the Company or the relevant 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 Guarantor or the Company, the
principal amount 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 Trustee or any Holder.
<PAGE>
SECTION 6.03. Other Remedies . If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy by proceeding at
law or in equity to collect the payment of principal of, premium, if any,
interest on the Notes or to enforce the performance of any provision of the
Notes, the Pledge Agreement or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults . Subject to Section
9.02, at any time after a declaration of acceleration, but before a judgment or
decree for the payment of the money due has been obtained by the Trustee, the
Holders of at least a majority in principal amount of the outstanding Notes at
Maturity, by notice to the Trustee, may waive all past Defaults and Events of
Default and rescind and annul a declaration of acceleration (except a Default in
the payment of principal of, premium, if any, interest on any Note as specified
in clause (a) or (b) of Section 6.01 (but not as a result of such acceleration)
or in respect of a covenant or provision of this Indenture which cannot be
modified or amended without the consent of the holder of each outstanding Note
affected) if all existing Events of Default, other than the nonpayment of
principal of, premium, if any, interest on the Notes that have become due solely
by such declaration of acceleration, have been cured or waived and the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction. Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
SECTION 6.05. Control by Majority . The Holders of at least a
majority in aggregate principal amount at maturity of the outstanding Notes may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that may involve the Trustee in personal liability,
or that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders of Notes 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 Notes.
SECTION 6.06. Limitation on Suits . A Holder may not pursue
any remedy with respect to the Indenture 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 Trustee
to pursue the remedy;
(iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense;
<PAGE>
(iv) the 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 Notes do not
give the Trustee a direction that is inconsistent with the request.
SECTION 6.07. Rights of Holders to Receive Payment . Subject
to Sections 6.04 and 9.02, notwithstanding any other provision of this
Indenture, the right of any Holder of a Note to receive payment of principal of,
premium, if any, or interest on, such Note or to bring suit for the enforcement
of any such payment or after the due date expressed in the Notes shall not be
impaired or affected without the consent of such Holder provided, however, 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.
SECTION 6.08. Collection of Indebtedness and Suits for
Enforcement by Trustee .
The Company covenants that if
(a) default is made in the payment of any installment of
interest on any Note when such interest becomes due and payable and
such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee for the benefit
of the Holders of such Notes, the whole amount then due and payable on such
Notes for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of interest,
at the rate borne by the Notes, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Notes
<PAGE>
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.09. Trustee May File Proofs of Claim . In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Notes or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Notes and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities . If the Trustee collects any money
pursuant to this Article Six, it shall pay out the money in the following order:
First: to the Trustee for all amounts due under Section 7.07;
<PAGE>
Second: to Holders for amounts then due and unpaid for
principal of, premium, if any, and interest, if any, on the Notes in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Notes for principal,
premium, if any, and interest, if any, respectively; and
Third: the balance, if any, to the Person or Persons entitled
thereto.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment to Holders pursuant to this
Section 6.10.
[SECTION 6.11. Undertaking for Costs . In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking to pay the costs
of the suit, and the court may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 of this Indenture, or a suit by Holders of more than
10% in principal amount of the outstanding Notes.]
[SECTION 6.12. Restoration of Rights and Remedies . If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then, and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Company, the Trustee and the Holders shall continue as
though no such proceeding had been instituted.]
SECTION 6.13. Rights and Remedies Cumulative . Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in Section 2.08, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.14. Delay or Omission Not Waiver . No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Six or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
<PAGE>
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General . The duties and responsibilities of the
Trustee shall be as provided by the TIA and as set forth herein. Whether or not
herein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Article Seven.
SECTION 7.02. Certain Rights of Trustee . Subject to TIA
Sections 315(a) through (d):
(a) except during the continuance of an Event of Default, the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee and
in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth and correctness of the statements and
certificates or opinions furnished to it and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;
(b) in case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in its exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs;
(c) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(d) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers
Certificate;
(e) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(f) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
<PAGE>
(g) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(8) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(9) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 7.03. Individual Rights of Trustee . The Trustee, in
its individual or any other capacity, may become the owner or pledgee of Notes
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 7.04. Trustee's Disclaimer . The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture, the Pledge
Agreement or the Notes, (ii) shall not be accountable for the Company's use or
application of the proceeds from the Notes and (iii) shall not be responsible
for any statement contained herein, in the Pledge Agreement or in the Notes
other than its certificate of authentication. The Trustee shall not be charged
with knowledge of any Default or Event of Default unless (i) a Responsible
Officer of the Trustee assigned to its Corporate Trustee Administration
Department (or successor department or group) shall have actual knowledge
thereof or (ii) the Trustee shall have received written notice thereof at its
Corporate Trust office from the Company or any Holder. No provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
<PAGE>
SECTION 7.05. Notice of Default . If any Default or any Event
of Default occurs and is continuing and if such Default or Event of Default is
known to a trust officer of the Trustee, the Trustee shall mail to each Holder
in the manner and to the extent provided in TIA Section 313(c) notice of such
Default or Event of Default within 90 days after it occurs, unless such Default
or Event of Default has been cured; provided, however, that, except in the case
of a default in the payment of the principal of, premium, if any, or interest on
any Note, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders . To the extent
required by TIA Section 313(a), within 60 days after May 15 of each year
commencing with 1997 and for as long as there are Notes outstanding hereunder,
the Trustee shall mail to each Holder the Trustee's brief report dated as of
such date that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Section 313(b) and TIA Section 313(c) and (d). A copy of such report at
the time of its mailing to Holders shall be filed with the Commission, if
required, and each stock exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes
become listed on any stock exchange, and the Trustee shall comply with TIA
Section 313(d).
SECTION 7.07. Compensation and Indemnity . The Company shall
pay to the Trustee from time to time such reasonable compensation as shall be
agreed upon in writing for its services. The reasonable compensation of the
Trustee shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses and advances incurred or made by the Trustee.
Such expenses shall include the reasonable compensation and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability or expense incurred by it without
negligence or bad faith on its part in connection with the acceptance or
administration of this Indenture and the Pledge Agreement and its duties under
this Indenture, the Pledge Agreement and the Notes, including, without
limitation, the costs and expenses of defending itself against any claim or
liability and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its powers or
duties under this Indenture, the Pledge Agreement and the Notes.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of, premium, if any, and interest on
particular Notes.
<PAGE>
Without prejudice to any other rights available to the Trustee
under applicable law, if the Trustee incurs expenses or renders services after
the occurrence of an Event of Default specified in clause (g) or (h) of Section
6.01, the expenses and the compensation for the services will be intended to
constitute expenses of administration under Title 11 of the United States
Bankruptcy Code or any applicable federal or state law for the relief of
debtors.
SECTION 7.08. Replacement of Trustee . A resignation or
removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section 7.08.
The Trustee may resign at any time by so notifying the Company
in writing at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee by so notifying the Trustee in writing and may appoint a successor
Trustee with the consent of the Company.
The Company may at any time remove the Trustee, by Company
Order given at least 30 days prior to the date of the proposed removal; provided
that at such date no Event of Default shall have occurred and be continuing.
Except as provided in the second sentence of the preceding
paragraph, if the Trustee resigns or is removed, or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company. If
the successor Trustee does not deliver its written acceptance required by the
next succeeding paragraph of this Section 7.08 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in principal amount of the outstanding Notes may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, subject to the lien provided in Section
7.07, (i) the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee shall become effective and (iii) the successor Trustee shall have all
the rights, powers and duties of the Trustee under this Indenture and the Pledge
Agreement. A successor Trustee shall mail notice of its succession to each
Holder.
Subject to Section 6.11, if the Trustee is no longer qualified
or eligible under Section 7.10, any Holder who satisfies the requirements of TIA
Section 310(b) may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
<PAGE>
The Company shall give notice of any resignation and any
removal of the Trustee and each appointment of a successor Trustee to all
Holders. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue
indefinitely for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION 7.10. Eligibility . This Indenture shall always have a
Trustee that satisfies the requirements of TIA Section 310(a)(1) and (5). The
Trustee shall have a combined capital and surplus of at least $100,000,000 as
set forth in its most recent published annual report of condition. The Trustee
shall be subject to TIA Section 310(b), subject to the penultimate paragraph
thereof.
SECTION 7.11. Money Held in Trust . The Trustee shall not be
liable for interest on any money received by it except as the Trustee may agree
in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law, and except for
money held in trust under Article Eight of this Indenture and money held in
trust pursuant to the Pledge Agreement.
SECTION 7.12. Withholding Taxes . The Trustee, as agent for
the Company, shall exclude and withhold from each payment of principal and
interest and other amounts due hereunder or under the Notes any and all U.S.
withholding taxes applicable thereto as required by law. The Trustee agrees to
act as such withholding agent and, in connection therewith, whenever any present
or future taxes or similar charges are required to be withheld with respect to
any amounts payable in respect of the Notes, to withhold such amounts and timely
pay the same to the appropriate authority in the name of and on behalf of the
Holders of the Notes, that it will file any necessary withholding tax returns or
statements when due, and that, as promptly as possible after the payment
thereof, it will deliver to each Holder of a Note appropriate documentation
showing the payment thereof, together with such additional documentary evidence
as such Holders may reasonably request from time to time.
<PAGE>
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations . Except as
otherwise provided in this Section 8.01, each of the Company may terminate its
obligations under the Notes and this Indenture if:
(a) all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes that have been replaced or Notes
for whose payment money or securities have theretofore been held in
trust and thereafter repaid to the Company, as provided in Section
8.05) have been delivered to the Trustee for cancellation and the
Company has paid all sums payable by it hereunder; or
(b) (i) all such Notes mature within one year or all of them
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (ii)
the Company irrevocably deposits in trust with the Trustee during such
one-year period, under the terms of an irrevocable trust agreement in
form satisfactory to the Trustee, as trust funds solely for the benefit
of the Holders of such Notes for that purpose, money or U.S. Government
Obligations sufficient (in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee), without consideration of any
reinvestment of any interest thereon, to pay principal, premium, if
any, and interest on such Notes to maturity or redemption, as the case
may be, and to pay all other sums payable by it hereunder, (iii) no
Default or Event of Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit, (iv) such
deposit will not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound [, (v) if at such
time the Notes are listed on a national securities exchange, the Notes
will not be delisted as a result of such deposit, defeasance and
discharge,] [and] [(v)] [(vi)] the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein relating to
the satisfaction and discharge of this Indenture have been complied
with.
With respect to the foregoing clause (a), the Company's
obligations under Section 7.07 shall survive. With respect to the foregoing
clause (b), the Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06,
2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall
survive until the Notes have matured or have been redeemed. Thereafter, only the
Company's obligations in Sections 7.07, 8.05 and 8.06 shall survive. After any
such irrevocable deposit, the Trustee upon request shall acknowledge in writing
the discharge of the Company's obligations under the Notes and this Indenture,
and the Guarantor's obligations under the Guarantee and this Indenture, except
for those surviving obligations specified above.
SECTION 8.02. Defeasance and Discharge of Indenture . The
Company will be deemed to have paid and will be discharged from any and all
obligations in respect of the Notes on the 123rd day after the date of the
deposit referred to in clause (a) of this Section 8.02 if:
<PAGE>
(a) with reference to this Section 8.02, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee and has conveyed all right, title and interest for the benefit
of the Holders, under the terms of an irrevocable trust agreement in
form satisfactory to the Trustee as trust funds in trust, specifically
pledged to the Trustee for the benefit of the Holders as security for
payment of the principal of, premium, if any, and interest, if any, on
the Notes, and dedicated solely to, the benefit of the Holders, in and
to (i) money in an amount, (ii) U.S. Government Obligations that,
through the payment of interest, premium, if any, and principal in
respect thereof in accordance with their terms, will provide, not later
than one day before the due date of any payment referred to in this
clause (a), money in an amount or (iii) a combination thereof in an
amount sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, without
consideration of the reinvestment of such interest and after payment of
all federal, state and local taxes or other charges and assessments in
respect thereof payable by the Trustee, the principal of, premium, if
any, and accrued interest on the outstanding Notes at the Stated
Maturity of such principal or interest or upon earlier redemption;
provided that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such U.S. Government Obligations to
the payment of such principal, premium, if any, and interest with
respect to the Notes and to give any related notice of redemption;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or 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;
(c) immediately after giving effect to such deposit on a pro
forma basis, no Default or Event of Default, or event that after the
giving of notice or lapse of time or both could become a Default or
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;
(d) the Company shall have delivered to the Trustee (i) either
(A) a ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders will not recognize additional
income, gain or loss for federal income tax purposes as a result of the
Company's exercise of its option under this Section 8.02 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 option had
not been exercised or (B) an Opinion of Counsel to the same effect as
the ruling described in clause (A) above accompanied by a ruling to
that effect published by the Internal Revenue Service, unless there has
been a change in the applicable federal income tax law since the date
of this Indenture such that a ruling from the Internal Revenue Service
is no longer required and (ii) an Opinion of Counsel to the effect that
(A) the creation of the defeasance trust does not violate the
Investment Company Act of 1940 and (B) after the passage of 123 days
following the deposit (except, with respect to any trust funds for the
account of any
<PAGE>
Holder who may be deemed to be "connected" with the Company for
purposes of the Insolvency Act 1986 after two years following the
deposit), the trust funds 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 and either (I) the trust funds will no longer
remain the property of the Company (and therefore will not be subject
to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally) or (II) if a
court were to rule under any such law in any case or proceeding that
the trust funds remained property of the Company (a) assuming such
trust funds remained in the possession of the Trustee prior to such
court ruling to the extent not paid to the Holders, the Trustee will
hold, for the benefit of the Holders, a valid and perfected security
interest in such trust funds that is not avoidable in bankruptcy or
otherwise and (b) no property, rights in property or other interests
granted to the Trustee or the Holders in exchange for, or with respect
to, such trust funds will be subject to any prior rights of holders of
other Indebtedness of the Company or any of its Notes;
(e) if at such time the Notes are listed on a national
securities exchange, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Notes will not be delisted as
a result of the Company's exercise of its opinion under this Section
8.02; and
(f) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
defeasance contemplated by this Section 8.02 have been complied with.
Notwithstanding the foregoing, prior to the end of the post
deposit period referred to in clause (d)(ii)(B) of this Section 8.02, none of
the Company's obligations under this Indenture shall be discharged. Subsequent
to the end of such period with respect to this Section 8.02, the Company's
obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.14,
4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the Notes mature
or are redeemed. Thereafter, only the Company's obligations in Sections 7.07,
8.05 and 8.06 shall survive. If and when a ruling from the Internal Revenue
Service or an Opinion of Counsel referred to in clause (d)(i) of this Section
8.02 may be provided specifically without regard to, and not in reliance upon,
the continuance of the Company's obligations under the first sentence of Section
4.01, then the Company's obligations under such sentence shall cease upon
delivery to the Trustee of such ruling or Opinion of Counsel and compliance with
the other conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.02.
After any such irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Notes, any Subsidiary Guarantee, if any, and this Indenture except for those
surviving obligations in the immediately preceding paragraph.
SECTION 8.03. Defeasance of Certain Obligations . The Company
may omit to comply with any term, provision or condition set forth in clauses
(iii) and (iv) of Section 5.01
<PAGE>
and Sections 4.03 through 4.17 (except for any covenant otherwise required by
the TIA), and clauses (c) and (d) of Section 6.01 with respect to clauses (iii)
and (iv) of Section 5.01, clause (e) of Section 6.01 with respect to Sections
4.03 through 4.17, except as aforesaid, and clause (f) of Section 6.01 shall be
deemed not to be Events of Default, in each case with respect to the outstanding
Notes if:
(a) with reference to this Section 8.03, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee and conveyed all right, title and interest to the Trustee for
the benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the benefit of
the Holders as security for payment of the principal of, premium, if
any, and interest, if any, on the Notes, and dedicated solely to, the
benefit of the Holders, in and to (i) money in an amount, (ii) U.S.
Government Obligations that, through the payment of interest and
principal in respect thereof in accordance with their terms, will
provide, not later than one day before the due date of any payment
referred to in this clause (a), money in an amount or (iii) a
combination thereof in an amount sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, the
principal of, premium, if any, and interest on the outstanding Notes on
the Stated Maturity or upon earlier redemption of such principal or
interest; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of such principal, premium, if any, and
interest with respect to the Notes and to give any related notice of
redemption;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or 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;
(c) immediately after giving effect to such deposit or a pro
forma basis, no Default or Event of Default, or event that after the
giving of notice or lapse of time or both would become a Default or
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 day
of such deposit;
(d) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (i) the creation of the defeasance trust
does not violate the Investment Company Act of 1940, (ii) the Holders
will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit and the defeasance of the obligations
referred to in the first paragraph of this Section 8.03 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 and
<PAGE>
(iii) after the passage of 123 days following the deposit (except with
respect to any trust funds for the account of any Holder who may be
deemed to be "connected" with the Company for purposes of the
Insolvency Act 1986 after two years following the deposit), the trust
funds 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, and either (A) the trust funds will no longer remain the
property of the Company (and therefore will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditor's rights generally) or (B) if a court
were to rule under any such law in any case or proceeding that the
trust funds remained property of the Company (1) assuming such trust
funds remained in the possession of the Trustee prior to such court
ruling to the extent not paid to the Holders, the Trustee will hold,
for the benefit of the Holders, a valid and perfected security interest
in such trust funds that is not avoidable in bankruptcy or otherwise
and (2) no property, rights in property or other interests granted to
the Trustee or the Holders in exchange for, or with respect to, such
trust funds will be subject to any prior rights or holders of other
Indebtedness of the Company or any of its Notes;
(e) if at such time the Notes are listed on a national
securities exchange, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Notes will not be delisted as
a result of the Company's exercise of its option under Section 8.03;
and
(f) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.03 have been complied with.
SECTION 8.04. Application of Trust Money . Subject to Section
8.06, the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, and shall apply the deposited money and the money from U.S.
Government Obligations in accordance with the Notes and this Indenture to the
payment of principal of, premium, if any, and interest on the Notes; but such
money need not be segregated from other funds except to the extent required by
law.
SECTION 8.05. Repayment to Company . Subject to Sections 7.07,
8.01, 8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any excess money held
by them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the Company
any money held by them for the payment of principal, premium, if any, or
interest that remains unclaimed for two years; provided that the Trustee or such
Paying Agent before being required to make any payment may cause to be published
at the expense of the Company once in a newspaper of general circulation in the
City of New York or mail to each Holder entitled to such money notice that such
money remains unclaimed and that after a date specified therein (which shall be
at least 30 days from the date of such publication or mailing) any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Holders entitled to such money must look to the
<PAGE>
Company for payment as general creditors unless an applicable law designates
another Person, and all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
SECTION 8.06. Reinstatement . If the Trustee or Paying Agent
is unable to apply any money or U.S. Government Obligations in accordance with
Section 8.01, 8.02 or 8.03, as the case may be, by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture, the Guarantee, and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Section
8.01, 8.02 or 8.03, as the case may be, until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 8.01, 8.02 or 8.03, as the case may be; provided that,
if the Company has made any payment of principal of, premium, if any, or
interest on any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders . The Company, when
authorized by Board Resolution, and the Trustee may amend or supplement this
Indenture, the Notes and the Pledge Agreement without notice to or the consent
of any Holder:
(a) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
adversely affect the interests of the Holders in any material respect;
(b) to comply with Article Five and to provide for amendments
to the Pledge Agreement pursuant to Section 10.01 and to add Pledged
Notes to the Pledge Account;
(c) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company; or
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes;
(e) to add any additional Events of Default; or
(f) to add a Guarantor.
SECTION 9.02. With Consent of Holders . Subject to Sections
6.04 and 6.07 and without prior notice to the Holders, the Company, when
authorized by its Board of Directors (as evidenced by a Board Resolution), and
the Trustee may amend this Indenture [, the Notes
<PAGE>
and the Pledge Agreement] with the consent of the Holders of not less than a
majority in aggregate principal amount at maturity of the Notes then
outstanding.
Notwithstanding the provisions of this Section 9.02, without
the consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(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 Notes
the consent of whose Holders is necessary to modify or amend the
Indenture;
(vi) waive a default in the payment of principal of, premium,
if any, or interest on the Notes;
(vii) reduce the percentage or aggregate principal amount at
maturity of outstanding Notes the consent of whose Holders is necessary
for waiver of compliance with certain provisions of the Indenture or
for waiver of certain defaults; or
(viii) release the Guarantors from the Note Guarantee.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing such amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. Revocation and Effect of Consent . Until an
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the Note of the consenting
Holder, even if notation of the consent is not made on any Note. However,
<PAGE>
any such Holder or subsequent Holder may revoke the consent as to its Note or
portion of its Note. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date any such amendment, supplement
or waiver becomes effective. An amendment, supplement or waiver shall become
effective on receipt by the Trustee of written consents from the Holders of the
requisite percentage in principal amount of the outstanding Notes.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders of Certificated Notes entitled
to consent to any amendment, supplement or waiver. If a record date is fixed,
then, notwithstanding the last two sentences of the immediately preceding
paragraph, those persons who were Holders of Certificated Notes at such record
date (or their duly designated proxies) and only those persons shall be entitled
to consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be Holders of such
Certificated Notes after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder unless it is of the type described in any of clauses (a)
through (h) of Section 9.02. In case of an amendment or waiver of the type
described in clauses (a) through (h) of Section 9.02, the amendment or waiver
shall bind each Holder who has consented to it and every subsequent Holder of a
Note that evidences the same indebtedness as the Note of such consenting Holder.
SECTION 9.04. Notation on or Exchange of Notes . If an
amendment, supplement or waiver changes the terms of a Note, the Trustee may
require the Holder to deliver such Note to the Trustee. The Trustee may place an
appropriate notation on the Note about the changed terms and return it to the
Holder and the Trustee may place an appropriate notation on any Note thereafter
authenticated. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Note shall issue and the Trustee shall authenticate
a new Note that reflects the changed terms.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article Nine is authorized or permitted by
this Indenture. The Trustee shall execute any such amendment, supplement or
waiver upon satisfaction of the conditions precedent thereto contained herein,
unless such amendment, supplement or waiver adversely affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.06. Conformity with Trust Indenture Act . Every
supplemental indenture executed pursuant to this Article Nine shall conform to
the requirements of the TIA as then in effect.
<PAGE>
ARTICLE TEN
SECURITY
SECTION 10.01. Security . (a) The Company shall (i) enter into
the Pledge Agreement (in the form attached hereto as Exhibit G) and comply with
the terms and provisions thereof and (ii) use a portion of the net proceeds of
the placement of Notes on the Closing Date to purchase the Pledged Notes to be
pledged to the Trustee for the benefit of the Holders of the Notes in such
amount as will be sufficient upon receipt of scheduled interest and principal
payments of the Pledged Notes, 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 Notes. The
Pledged Notes shall be pledged by the Company to the Trustee for the benefit of
the Holders of the Notes and shall be held by the Trustee in the Pledge Account
pending disbursement pursuant to the Pledge Agreement.
(b) Each Holder, by its acceptance of a Note, consents and
agrees to the terms of the Pledge Agreement (including, without limitation, the
provisions providing for foreclosure and release of the Pledged Notes) as the
same may be in effect or may be amended from time to time in accordance with its
terms, and authorizes and directs the Trustee to enter into the Pledge Agreement
and to perform its respective obligations and exercise its respective rights
thereunder in accordance therewith. The Company will do or cause to be done all
such acts and things as may be necessary or proper, or as may be required by the
provisions of the Pledge Agreement, to assure and confirm to the Trustee the
security interest in the Pledged Notes contemplated hereby, by the Pledge
Agreement or any part thereof, as from time to time constituted, so as to render
the same available for the security and benefit of this Indenture and of the
Notes secured hereby, according to the intent and purposes herein expressed. The
Company shall take, or shall cause to be taken, upon request of the Trustee, any
and all actions reasonably required to cause the Pledge Agreement to create and
maintain, as security for the obligations of the Company under this Indenture
and the Notes, valid and enforceable first priority liens in and on all the
Pledge Notes, in favor of the Trustee, superior to and prior to the rights of
all third Persons and subject to no other Liens other than as provided herein.
(c) The release of any Pledged Notes pursuant to the Pledge
Agreement will not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Pledged Notes
are released pursuant to this Indenture and the Pledge Agreement. To the extent
applicable, the Company shall cause TIA Section 314(d) relating to the release
of property or securities from the Lien and security interest of the Pledge
Agreement and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Pledge
Agreement to be complied with. Any certificate or opinion required by TIA
Section 314(d) may be made by an officer of the Company, except in cases where
TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an independent engineer, appraiser or
other expert selected or approved by the Trustee in the exercise of reasonable
care.
(d) The Company shall cause TIA Section 314(b), relating to
opinions of counsel regarding the Lien under the Pledge Agreement, to be
complied with. The Trustee may,
<PAGE>
to the extent permitted by Sections 7.01 and 7.02 hereof, accept as conclusive
evidence of compliance with the foregoing provisions the appropriate statements
contained in such instruments.
(e) The Trustee may, in its sole discretion and without the
consent of the Holders, on behalf of the Holders, take all actions it deems
necessary or appropriate in order to (i) enforce any of the terms of the Pledge
Agreement and (ii) collect and receive any and all amounts payable in respect of
the obligations of the Company thereunder. The Trustee shall have power to
institute and to maintain such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interests and the interests of the Holders
in the Pledged Notes (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interest hereunder or be prejudicial to
the interests of the Holders or of the Trustee).
ARTICLE ELEVEN
GUARANTEE OF NOTES
SECTION 11.01. Guarantee . Subject to the provisions of this
Article Eleven, the Guarantors hereby fully, unconditionally and irrevocably
guarantee to each Holder and to the Trustee on behalf of the Holders: (i) the
due and punctual payment of the principal of, premium, if any, and interest on
each Note, when and as the same shall become due and payable, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of and interest, if any, on the Notes, to the extent
lawful, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee, all in accordance with the terms of such
Note and this Indenture [and (ii) in the case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, at Stated Maturity, by acceleration or otherwise].
The Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any
right to require a proceeding first against the Company, the benefit of
discussion, protest or notice with respect to any such Note or the debt
evidenced thereby and all demands whatsoever, and covenants that this Guarantee
will not be discharged as to any such Note except by payment in full of the
principal thereof and interest thereon and as provided in Section 8.01 and
Section 8.02 (subject to Section 8.06). The maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six for the purposes
of this Article Eleven. In the event of any declaration of acceleration of such
obligations as provided in Article Six, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantor for the purpose
of this Article Eleven. In addition, without limiting the foregoing provisions,
upon the effectiveness of an acceleration under Article Six, the Trustee shall
promptly make a demand for payment on the Notes under the Guarantee provided for
in this Article Eleven.
<PAGE>
If the Trustee or the Holder of any Note is required by any
court or otherwise to return to the Company or the Guarantor, or any custodian,
receiver, liquidator, trustee, sequestrator or other similar official acting in
relation to the Company or the Guarantor, any amount paid to the Trustee or such
Holder in respect of a Note, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. The Guarantor further
agrees, to the fullest extent that it may lawfully do so, that, as between it,
on the one hand, and the Holders and the Trustee, on the other hand, the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six hereof for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition extant under any applicable bankruptcy law
preventing such acceleration in respect of the obligations guaranteed hereby.
The Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of its obligations under this
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Holders against the Company
or any collateral which any such Holder or the Trustee on behalf of such Holder
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including, without limitation, the
right to take or receive from the Company, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to the
Guarantor in violation of the preceding sentence and the principal of, premium,
if any, and accrued interest on the Notes shall not have been paid in full, such
amount shall be deemed to have been paid to the Guarantor for the benefit of,
and held in trust for the benefit of, the Holders, and shall forthwith be paid
to the Trustee for the benefit of the Holders to be credited and applied upon
the principal of, premium, if any, and accrued interest on the Notes. The
Guarantor acknowledges that it will receive direct and indirect benefits from
the issuance of the Notes pursuant to this Indenture and that the waivers set
forth in this Section 11.01 are knowingly made in contemplation of such
benefits.
The Guarantee set forth in this Section 11.01 shall not be
valid or become obligatory for any purpose with respect to a Note until the
certificate of authentication on such Note shall have been signed by or on
behalf of the Trustee.
SECTION 11.02. Obligations Unconditional . Subject to Section
11.05, nothing contained in this Article Eleven or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as among the Guarantor and the
holders of the Notes, the obligation of the Guarantor, which is absolute and
unconditional, upon failure by the Company, to pay to the holders of the Notes
the principal of, premium, if any, and interest on the Notes as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the holders of the Notes and creditors
of the Guarantor, nor shall anything herein or therein prevent the holder of any
Notes or the Trustee on their behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture.
<PAGE>
Without limiting the foregoing, nothing contained in this
Article Eleven will restrict the right of the Trustee or the holders of the
Notes to take any action to declare the Guarantee to be due and payable prior to
the Stated Maturity of the Notes pursuant to Section 6.02 or to pursue any
rights or remedies hereunder.
SECTION 11.03. Notice to Trustee . The Guarantor shall give
prompt written notice to the Trustee of any fact known to the Guarantor which
would prohibit the making of any payment to or by the Trustee in respect of the
Guarantee pursuant to the provisions of this Article Eleven.
SECTION 11.04. This Article Not to Prevent Events of Default .
The failure to make a payment on account of principal of, premium, if any, or
interest on the Notes by reason of any provision of this Article will not be
construed as preventing the occurrence of an Event of Default.
SECTION 11.05. Net Worth Limitation . Notwithstanding any
other provision of this Indenture or the Notes, the Guarantee shall not be
enforceable against the Guarantor in an amount in excess of the net worth of the
Guarantor at the time that determination of such net worth is, under applicable
law, relevant to the enforceability of the Guarantee. Such net worth shall
include any claim of the Guarantor against the Company for reimbursement and any
claim against any grantor of a Guarantee for contribution.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act of 1939 . This Indenture
shall be subject to the provisions of the TIA that are required to be a part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 12.02. Notices . Any notice or communication shall be
sufficiently given if in writing and delivered in person or mailed by first
class mail or telecopier communication, addressed as follows, and received by
the addressee:
if to the Company:
Orion Newco Services, Inc.
2440 Research Boulevard
Suite 40
Rockville, Maryland 20850
Telecopier No: (301) 258-8101
Attention: [________]
<PAGE>
with a copy to:
Hogan & Hartson, L.L.P.
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Telecopier No.: (202) 637-5910
Attention: [________]
if to the Trustee:
Bankers Trust Company
4 Albany Street
Mailstop 5041
New York, N.Y. 10006
Telecopier No.: (212) 250-6392
Attention: Corporate Trustee Administration Department
with a copy to:
Leboeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, N.Y. 10019
Telecopier No.: (212) 424-8500
Attention: Joan Monahan
The Company, the Trustee or the Depositary by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder of a
Certificated Note shall be mailed to him at his address as it appears on the
Register by first class mail and shall be sufficiently given to him if so mailed
within the time prescribed. Copies of any such communication or notice to a
Holder shall also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder as
provided herein or any defect in it shall not affect its sufficiency with
respect to other Holders. Except for a notice to the Trustee, which is deemed
given only when received, and except as otherwise provided in this Indenture, if
a notice or communication is mailed in the manner provided in this Section
12.02, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
<PAGE>
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 12.03. Certificate and Opinion as to Conditions
Precedent . Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.04. Statements Required in Certificate or Opinion .
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(c) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
SECTION 12.05. Acts of Holders . (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section 10.05.
<PAGE>
(b) The ownership of Notes shall be proved by the Register.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note shall bind every
future Holder of the same Note or the Holder of every Note issued upon the
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Note.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver of other act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of such Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other act,
but the Company shall have no obligation to do so. Notwithstanding Trust
Indenture Act Section 316(c), any such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for purposes of
determining whether Holders of the requisite proportion of Notes then
outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act, and for this
purpose the Notes then outstanding shall be computed as of such record date;
provided that no such request, demand, authorization, direction, notice,
consent, waiver or other act by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 12.06. Rules by Trustee, Paying Agent or Registrar.
The Trustee may make reasonable rules for action by or at a meeting of Holders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 12.07. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities . By the execution and delivery of this Indenture, each of
the Company and the Guarantor (i) acknowledges that it has designated and
appointed [______], as its authorized agent upon which process may be served in
any suit, action or proceeding arising out of or relating to the Notes or this
Indenture that may be instituted in any federal or state court in the State of
New York, Borough of Manhattan, or brought under federal or state securities
laws or brought by the Trustee (whether in its individual capacity or in its
capacity as Trustee hereunder), and acknowledges that [______] has accepted such
designation, (ii) submits to the non-exclusive jurisdiction of any such court in
any such suit, action or proceeding, and (iii) agrees that service of process
upon [______] and written notice of said service to the Company (mailed or
delivered to its General Counsel at its principal office as specified in
<PAGE>
Section 12.02) shall be deemed in every respect effective service of process
upon it in any such suit or proceeding. The Company further agrees to take any
and all action, including the execution and filing of any and all such documents
and instruments as may be necessary to continue such designation and appointment
of [______] in full force and effect so long as this Indenture shall be in full
force and effect or any of the Notes shall be outstanding.
To the extent that the Company has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
under this Indenture and the Notes, to the extent permitted by law.
SECTION 12.08. Payment Date Other Than a Business Day . If an
Interest Payment Date, Redemption Date, Payment Date or Stated Maturity of any
Note shall not be a Business Day, then payment of principal of, premium, if any,
or interest on such Note, as the case may be, need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date, Payment Date or Redemption Date, or at
the Stated Maturity of such Note, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 12.09. Governing Law . This Indenture and the Notes
shall be governed by the laws of the State of [New York] excluding (to the
greatest extent permissible by law) any rule of law that would cause the
application of the laws of any jurisdiction other than the State of [New York].
SECTION 12.10. No Adverse Interpretation of Other Agreements .
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.11. No Recourse Against Others . 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
contained in this Indenture, 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, as such, of the Company or the Guarantor or of any successor
Person thereof, either directly or through the Company or any successor Person,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture, the
Pledge Agreement and the issue of the Notes.
<PAGE>
SECTION 12.12. Successors . All agreements of the Company in
this Indenture and the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 12.13. Duplicate Originals . The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
SECTION 12.14. Separability . In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 12.15. Table of Contents, Headings, Etc. The Table of
Contents, Cross-Reference Table and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
ORION NEWCO SERVICES, INC. BANKERS TRUST COMPANY
By:_____________________________ By:____________________________
Name: __________________________ Name:__________________________
Title:__________________________ Title:_________________________
ORION NETWORK SYSTEMS, INC. ORION SATELLITE CORPORATION
By:_____________________________ By:____________________________
Name: __________________________ Name:__________________________
Title:__________________________ Title:_________________________
ORIONNET, INC. ORION ATLANTIC EUROPE, INC.
By:_____________________________ By:____________________________
Name: __________________________ Name:__________________________
Title:__________________________ Title:_________________________
ORION ASIA PACIFIC CORPORATION ORIONNET FINANCE CORPORATION
By:_____________________________ By:____________________________
Name: __________________________ Name:__________________________
Title:__________________________ Title:_________________________
ASIA PACIFIC SPACE AND INTERNATIONAL PRIVATE
SATELLITE COMMUNICATIONS, LTD. PARTNERS, L.P.
By:_____________________________ By:____________________________
Name: __________________________ Name:__________________________
Title:__________________________ Title:_________________________
<PAGE>
EXHIBIT A
FORM OF GLOBAL NOTE
[FACE OF NOTE]
THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE NOTE WITH A PRINCIPAL AMOUNT AT
MATURITY OF [ ] AND ONE WARRANT INITIALLY ENTITLING THE HOLDER THEREOF TO
PURCHASE [ ] SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, OF ORION NEWCO
SERVICES, INC. (THE "COMMON STOCK"). PRIOR TO THE CLOSE OF BUSINESS UPON THE
EARLIEST TO OCCUR OF (i) [ ], 1997, (ii) SUCH DATE AS THE UNDERWRITES MAY, IN
THEIR DISCRETION DEEM APPROPRIATE OR (iii) IN THE EVENT OF AN OFFER TO PURCHASE,
THE DATE THE COMPANY MAILS NOTICE THEREOF TO THE HOLDERS OF THE NOTES, THE NOTES
EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY
FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE WARRANTS.
THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS
NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF
THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (III) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF ORION NEWCO SERVICES, INC.
<PAGE>
ORION NEWCO SERVICES, INC.
[___]% Senior Note Due 2007
CUSIP [ ________]
No. __________
Issue Date: ______________________
ORION NEWCO SERVICES, INC., a Delaware corporation, with
registration number [_______] (the "Company", which term includes any successor
under the Indenture hereinafter referred to), for value received, promises to
pay to the bearer upon surrender hereof the principal sum of
_________________________________ United States Dollars (U.S.$________________)
on 2007.
Interest Payment Dates: [ ] and [ ], commencing [ ]
1997.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which provisions shall have the same
effect as if set forth hereon.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officer.
Date: ORION NEWCO SERVICES, INC.
By:____________________________
Name:__________________________
Title:_________________________
This is one of the [___]% Senior Notes due 2007 described in the
within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By: _______________________________
Authorized Officer
<PAGE>
[REVERSE SIDE OF NOTE]
ORION NEWCO SERVICES, INC.
[___]% Senior Note due 2007
1. Principal and Interest.
Orion Newco Services, Inc. (the "Company") will pay the
principal of this Note on [ ], 2007.
The Company promises to pay interest on the principal amount
of this Note on each Interest Payment Date, as set forth below, at the rate per
annum shown above.
Interest on the Notes shall accrue at the rate of [___]% per
annum (the "Interest Rate") and shall be payable in U.S. dollars in cash
semi-annually in arrears on [ ] and [ ] (each an "Interest Payment Date");
provided that the first Interest Payment Date shall be [ ], 1997. Interest on
the Notes will accrue from the most recent date to which interest has been paid
or duly provided for, or if no interest has been paid or duly provided for, from
the date of original issuance hereof. Interest will be computed on the basis of
a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and
premium, if any, and (to the extent lawful) interest on overdue installments of
interest at the rate of [___]% per annum.
2. Method of Payment.
The Company will pay interest and principal to the Depositary,
with respect to any Global Note held by the Depositary. The Company will pay
principal, premium, if any, and interest in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. However, the Company may pay principal, premium, if any, and
interest by check payable in such money. If a payment date is a date other than
a Business Day at a place of payment, payment may be made at that place on the
next succeeding day that is a Business Day and no interest shall accrue for the
intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar.
The Company may change any Paying Agent and Registrar without notice in
accordance with the Indenture. The Company, any Affiliate or any Subsidiary
thereof may act as the Paying Agent or Registrar.
4. Indenture; Limitations.
<PAGE>
The Company issued the Notes under an Indenture dated as of
[__________], 1997 (the "Indenture"), between the Company, Orion Network
Systems, Inc., Orion Satellite Corporation, International Private Satellite
Partners, L.P., OrionNet, Inc., Orion Asia Pacific Corporation, Asia Pacific
Space and Communications, Ltd., Orion Atlantic Europe, Inc. and OrionNet Finance
Corporation, as guarantors, and the Bankers Trust Company, as trustee (the
"Trustee"). Capitalized terms herein are used as defined in the Indenture unless
otherwise indicated. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of all such terms.
To the extent permitted by applicable law, in the event of any inconsistency
between the terms of this Note and the terms of the Indenture, the terms of the
Indenture shall control.
The Notes are unsecured senior indebtedness of the Company.
The Indenture limits the aggregate principal amount of the Notes to $[ ].
5. 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, at
the following Redemption Prices (expressed in percentages of their principal
amount), plus accrued and unpaid interest, if any, to the Redemption Date if
redeemed during the 12-month period commencing on October [__] of the applicable
years set forth below:
Year Redemption Price
2002 [_____]%
2003 [_____]%
2004 and thereafter 100.000%
6. Selection of Notes for Partial Redemption; Effect of Redemption Notice.
In the case of any partial redemption, selection of the Notes
for redemption will be made by the Trustee in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not listed on a national securities exchange, on a
pro rata basis, by lot or by such method as the Trustee in its sole discretion
shall deem to be fair and appropriate; provided that no Note of $1,000 in
principal amount 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 thereof to be redeemed. A new Note in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Note. Upon the
giving of any redemption notice, interest on Notes called for redemption will
cease to accrue from and after the date fixed for redemption (unless the Company
defaults in providing the funds for such redemption) and such Notes will then
cease to be outstanding.
<PAGE>
7. Notice of Redemption.
Notice of any optional redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to the Holders of
Notes to be redeemed at such Holder's registered address as it appears in the
Register.
8. Repurchase upon Change of Control.
Upon the occurrence of any Change of Control, the Company will
be obligated to make an offer to purchase all outstanding Notes pursuant to the
Offer to Purchase described in the Indenture at a purchase price equal to 101%
of the aggregate principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase (the "Change of Control Payment").
A notice of such Change of Control will be mailed within 30
days after any Change of Control occurs to each Holder of Notes at such Holder's
registered address as it appears in the Register. Notes in original
denominations larger than $1,000 may be sold to the Company in part; provided
that Notes will only be issued in denominations of $1,000 principal amount at
maturity or integral multiples thereof. On and after the Payment Date, interest
ceases to accrue on Notes or portions of Notes surrendered for purchase by the
Company, unless the Company defaults in the payment of the Change of Control
Payment.
9. Denomination.
This Global Note is in fully registered form without coupons
and is denominated in an amount equal to $1,000 of principal amount at maturity
or an integral multiple thereof and is transferable by delivery. This Note is a
Global Note.
10. Persons Deemed Owners.
The holder of this Note shall be treated as the owner of this
Note for all purposes.
11. Unclaimed Money.
If money for the payment of principal, premium, if any, and
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its request. After that, Holders entitled
to the money must look to the Company for payment, unless an applicable law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company deposits with the Trustee money or U.S.
Government Obligations sufficient to pay the then outstanding principal of,
premium, if any, and accrued interest on the Notes (a) to redemption or Stated
Maturity, the Company will be discharged from the Indenture
<PAGE>
and the Notes, except in certain circumstances for certain sections thereof, or
(b) the Company will be discharged from certain covenants set forth in the
Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, and any
existing default or compliance with any provision may be waived with the consent
of the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not materially and adversely affect the rights of any Holder.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
the Company and the Restricted Subsidiaries, among other things, to Incur
additional Indebtedness; create Liens; pay dividends or make distributions in
respect of their Capital Stock; make Investments or make certain other
Restricted Payments; engage in Asset Sales; issue or sell stock of Restricted
Subsidiaries; enter into transactions with stockholders or Affiliates; or, with
respect to the Company, consolidate, merge or sell all or substantially all of
its assets. Within 90 days after the end of the last fiscal quarter of each
year, the Company must report to the Trustee on compliance with such
limitations.
15. Successor Persons.
Generally, when a successor person or other entity assumes all
the obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
16. Defaults and Remedies.
The following events will be defined as "Events of Default" in
the Indenture: (a) default in the payment of principal of (or premium, if any,
on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise; (b) default in the payment of interest on
any Note 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 Notes in a timely manner will constitute an
Event of Default with no grace or cure period; (c) defaults in the performance
or breach of the provisions of Section 5.01 of the Indenture or the failure to
make or consummate an Offer to Purchase in accordance with Section 4.11 or
Section 4.13 of the Indenture; (d) the Company defaults in the performance of or
breaches any other covenant or agreement of the Company in the Indenture or
under the Notes (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 Trustee or the Holders of 25% or
<PAGE>
more in aggregate principal amount at maturity of the Notes; (e) there occurs
with respect to any issue or issues of Indebtedness of the Company 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, (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 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 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, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company 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; or (h) the Company 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 or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) effects any general
assignment for the benefit of creditors.
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 Indenture, the Trustee or the Holders of at
least 25% in aggregate principal amount outstanding, by written notice to the
Company (and to the Trustee if such notice is given by the Holders), may, and
the Trustee at the request of such Holders shall, declare the principal amount
of, premium, if any, and accrued interest on the Notes to be immediately due and
payable. Upon a declaration of acceleration, such principal amount 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 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
<PAGE>
(h) above occurs with respect to the Company, the principal amount 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 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 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.
The Holders of at least a majority in aggregate principal
amount at maturity of the outstanding Notes may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or the Indenture, that
may involve the Trustee in personal liability, or that the Trustee determines in
good faith may be unduly prejudicial to the rights of Holders of Notes 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
Notes. A Holder may not pursue any remedy with respect to the Indenture 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 Trustee to pursue
the remedy; (iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense; (iv) the
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 Notes do not give the 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.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become owner or pledgee of Notes and may otherwise deal with
the Company or its Affiliates with the same rights it would have if it were not
the Trustee.
18. No Recourse Against Others.
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 Indenture, 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
<PAGE>
Company or of any successor Person thereof. Each Holder, by accepting the Notes,
waives and releases all such liability.
19. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Note.
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The internal laws of the State of New York shall govern this
Note without regard to principles of conflict of laws.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to Orion Newco
Services, Inc., 2440 Research Boulevard, Suite 40, Rockville, Maryland 20850,
Attention: [____________].
<PAGE>
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT OF INDEBTEDNESS
EVIDENCED BY THIS NOTE
The initial principal amount of indebtedness evidenced by this
Note shall be $__,__,__. The following decreases/increases in the principal
amount evidenced by this Note have been made:
<TABLE>
<CAPTION>
Decrease in Increase in Total Principal Amount of
Principal Principal this Global Note Following Notation Made
Date of Decrease/ Amount of this Amount of this such Decrease/Increase by or on
Increase Global Note Global Note Behalf of
Trustee
<S> <C>
</TABLE>
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company
pursuant to Section 4.11 or Section 4.13 of the Indenture, check the box:
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 4.11 or Section 4.13 of the Indenture, state the
amount (in principal amount):
$___________________ ($1000 or integral multiple thereof).
Date:________________________
Your Signature:_________________________________________________________________
Signature Guarantee: ______________________________
<PAGE>
EXHIBIT B
FORM OF CERTIFICATED NOTE
[FACE OF NOTE]
THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE NOTE WITH AMOUNT AT MATURITY OF
$[____] AND ONE WARRANT INITIALLY ENTITLING THE HOLDER THEREOF TO PURCHASE AN
EQUAL NUMBER OF SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, OF ORION NEWCO
SERVICES, INC. (THE "COMMON STOCK"). PRIOR TO THE CLOSE OF BUSINESS UPON THE
EARLIEST TO OCCUR OF (i) [ ], 1997, (ii) SUCH DATE AS THE UNDERWRITES MAY, IN
THEIR DISCRETION DEEM APPROPRIATE OR (iii) IN THE EVENT OF AN OFFER TO PURCHASE,
THE DATE THE COMPANY MAILS NOTICE THEREOF TO THE HOLDERS OF THE NOTES, THE NOTES
EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY
FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE WARRANTS.
<PAGE>
ORION NEWCO SERVICES, INC.
[___]% Senior Note Due 2007
CUSIP [ ________]
No. __________
Issue Date: ______________________
ORION NEWCO SERVICES, INC., a Delaware corporation, with registration
number [_______] (the "Company", which term includes any successor under the
Indenture hereinafter referred to), for value received, promises to pay to the
bearer upon surrender hereof the principal sum of
_________________________________ United States Dollars (U.S.$________________)
on 2007.
Interest Payment Dates: [ ] and [ ], commencing [ ] 1997.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which provisions shall have the same effect as if
set forth hereon.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officer.
Date: ORION NEWCO SERVICES, INC.
By:____________________________
Name:__________________________
Title:_________________________
This is one of the [___]% Senior Notes due 2007 described in the
within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:____________________________
Authorized Officer
<PAGE>
[REVERSE SIDE OF NOTE]
ORION NEWCO SERVICES, INC.
[___]% Senior Note due 2007
1. Principal and Interest.
Orion Newco Services, Inc. (the "Company") will pay the
principal of this Note on [______________], 2007.
The Company promises to pay interest on the principal amount
of this Note on each Interest Payment Date, as set forth below, at the rate per
annum shown above.
Interest on the Notes shall accrue at the rate of [___]% per
annum (the "Interest Rate") and shall be payable in U.S. dollars in cash
semi-annually in arrears on [ ] and [ ] (each an "Interest Payment Date");
provided that the first Interest Payment Date shall be [ ], 2002. Interest on
the Notes will accrue from the most recent date to which interest has been paid
or duly provided for, or if no interest has been paid or duly provided for, from
the date of original issuance hereof. Interest will be computed on the basis of
a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and
premium, if any, and (to the extent lawful) interest on overdue installments of
interest at the rate of [___]% per annum.
2. Method of Payment.
The Company will pay interest on the Notes to the Holder of
this Note upon presentment hereof at the office of the Paying Agent of the
Company maintained for that purpose in the Borough of Manhattan, the City of New
York. Holders must surrender Notes to such Paying Agent to collect principal
payments. The Company will pay principal, premium, if any, and interest in money
of the United States of America that at the time of payment is legal tender for
payment of public and private debts. However, the Company may pay principal,
premium, if any, and interest by check payable in such money. If a payment date
is a date other than a Business Day at a place of payment, payment may be made
at that place on the next succeeding day that is a Business Day and no interest
shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar.
The Company may change any Paying Agent and Registrar without notice in
accordance with the Indenture. The Company, any Affiliate or any Subsidiary
thereof may act as the Paying Agent or Registrar.
<PAGE>
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of
[__________], 1997 (the "Indenture"), between the Company, Orion Network
Systems, Inc., Orion Satellite Corporation, International Private Satellite
Partners, L.P., OrionNet, Inc., Orion Asia Pacific Corporation, Asia Pacific
Space and Communications, Ltd., Orion Atlantic Europe, Inc. and OrionNet Finance
Corporation, as guarantors, and the Bankers Trust Company, as trustee (the
"Trustee"). Capitalized terms herein are used as defined in the Indenture unless
otherwise indicated. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of all such terms.
To the extent permitted by applicable law, in the event of any inconsistency
between the terms of this Note and the terms of the Indenture, the terms of the
Indenture shall control.
The Notes are unsecured senior indebtedness of the Company.
The Indenture limits the aggregate principal amount of the Notes to $[ ].
5. 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, at
the following Redemption Prices (expressed in percentages of their principal
amount), plus accrued and unpaid interest, if any, to the Redemption Date if
redeemed during the 12-month period commencing on October [__] of the applicable
years set forth below:
Year Redemption Price
2002 [_____]%
2003 [_____]%
2004 and thereafter 100.000%
6. Selection of Notes for Partial Redemption; Effect of Redemption Notice.
In the case of any partial redemption, selection of the Notes
for redemption will be made by the Trustee in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not listed on a national securities exchange, on a
pro rata basis, by lot or by such method as the Trustee in its sole discretion
shall deem to be fair and appropriate; provided that no Note of $1,000 in
principal amount 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 thereof to be redeemed. A new Note in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Note. Upon the
giving of any redemption notice, interest on Notes called for redemption will
cease to accrue from and
<PAGE>
after the date fixed for redemption (unless the Company defaults in providing
the funds for such redemption) and such Notes will then cease to be outstanding.
7. Notice of Redemption.
Notice of any optional redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to the Holders of
Notes to be redeemed at such Holder's registered address as it appears in the
Register.
8. Repurchase upon Change of Control.
Upon the occurrence of any Change of Control, the Company will
be obligated to make an offer to purchase all outstanding Notes pursuant to the
Offer to Purchase described in the Indenture at a purchase price equal to 101%
of the aggregate principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase (the "Change of Control Payment").
A notice of such Change of Control will be mailed within 30
days after any Change of Control occurs to each Holder of Notes at such Holder's
registered address as it appears in the Register. Notes in original
denominations larger than $1,000 may be sold to the Company in part; provided
that Notes will only be issued in denominations of $1,000 principal amount at
maturity or integral multiples thereof. On and after the Payment Date, interest
ceases to accrue on Notes or portions of Notes surrendered for purchase by the
Company, unless the Company defaults in the payment of the Change of Control
Payment.
9. Denomination.
This Certificated Note is in fully registered form without
coupons and is denominated in an amount equal to $1,000 of principal amount at
maturity or an integral multiple thereof and is transferable by presentation or
surrender to the registrar for registration of transfer either endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
registrar.
10. Persons Deemed Owners.
The holder of this Note shall be treated as the owner of this
Note for all purposes.
11. Unclaimed Money.
If money for the payment of principal, premium, if any, and
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its request. After that, Holders entitled
to the money must look to the Company for payment, unless an applicable law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
<PAGE>
12. Discharge Prior to Redemption or Maturity.
If the Company deposits with the Trustee money or U.S.
Government Obligations sufficient to pay the then outstanding principal of,
premium, if any, and accrued interest on the Notes (a) to redemption or Stated
Maturity, the Company will be discharged from the Indenture and the Notes,
except in certain circumstances for certain sections thereof, or (b) the Company
will be discharged from certain covenants set forth in the Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, and any
existing default or compliance with any provision may be waived with the consent
of the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not materially and adversely affect the rights of any Holder.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
the Company and the Restricted Subsidiaries, among other things, to Incur
additional Indebtedness; create Liens; pay dividends or make distributions in
respect of their Capital Stock; make Investments or make certain other
Restricted Payments; engage in Asset Sales; issue or sell stock of Restricted
Subsidiaries; enter into transactions with stockholders or Affiliates; or, with
respect to the Company, consolidate, merge or sell all or substantially all of
its assets. Within 90 days after the end of the last fiscal quarter of each
year, the Company must report to the Trustee on compliance with such
limitations.
15. Successor Persons.
Generally, when a successor person or other entity assumes all
the obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
16. Defaults and Remedies.
The following events will be defined as "Events of Default" in
the Indenture: (a) default in the payment of principal of (or premium, if any,
on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise; (b) default in the payment of interest on
any Note 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 Notes in a timely manner will constitute an
Event of Default with no grace or cure period; (c) defaults in the performance
or breach of the provisions of Section 5.01
<PAGE>
of the Indenture or the failure to make or consummate an Offer to Purchase in
accordance with Section 4.11 or Section 4.13 of the Indenture; (d) the Company
defaults in the performance of or breaches any other covenant or agreement of
the Company in the Indenture or under the Notes (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 Trustee or the Holders
of 25% or more in aggregate principal amount at maturity of the Notes; (e) there
occurs with respect to any issue or issues of Indebtedness of the Company 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, (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 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 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, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company 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; or (h) the Company 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 or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) effects any general
assignment for the benefit of creditors.
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 Indenture, the Trustee or the Holders of at
least 25% in aggregate principal amount outstanding, by written notice to the
Company (and to the Trustee if such notice is given by the Holders), may, and
the Trustee at the request of such Holders shall, declare the principal amount
of, premium, if any, and accrued interest on the Notes to be immediately due and
payable. Upon a declaration of acceleration, such principal amount 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
<PAGE>
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 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 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 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 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.
The Holders of at least a majority in aggregate principal
amount at maturity of the outstanding Notes may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or the Indenture, that
may involve the Trustee in personal liability, or that the Trustee determines in
good faith may be unduly prejudicial to the rights of Holders of Notes 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
Notes. A Holder may not pursue any remedy with respect to the Indenture 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 Trustee to pursue
the remedy; (iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense; (iv) the
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 Notes do not give the 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.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become owner or pledgee of Notes and may otherwise deal with
the Company or its Affiliates with the same rights it would have if it were not
the Trustee.
<PAGE>
18. No Recourse Against Others.
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 Indenture, 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.
19. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Note.
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The internal laws of the State of New York shall govern this
Note without regard to principles of conflict of laws.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to Orion Newco
Services, Inc., 2440 Research Boulevard, Suite 40, Rockville, Maryland 20850,
Attention: [____________].
<PAGE>
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT OF INDEBTEDNESS
EVIDENCED BY THIS NOTE
The initial principal amount of indebtedness evidenced by this
Note shall be $ __,__,__. The following decreases/increases in the principal
amount evidenced by this Note have been made:
<TABLE>
<CAPTION>
Decrease in Increase in Total Principal Amount of
Principal Principal this Global Note Following Notation Made
Date of Decrease/ Amount of this Amount of this such Decrease/Increase by or on
Increase Global Note Global Note Behalf of
Trustee
<S> <C>
</TABLE>
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company
pursuant to Section 4.11 or Section 4.13 of the Indenture, check the box:
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 4.11 or Section 4.13 of the Indenture, state the
amount (in principal amount):
$___________________ ($1000 or integral multiple thereof).
Date:________________
Your Signature:____________________________________________________________
Signature Guarantee: ______________________________
ORION NETWORK SYSTEMS, INC.,
as Issuer,
and
[__________________________],
as Trustee
Senior Discount Notes Indenture
Dated as of [ ], 1997
[ ]% Senior Discount Notes due 2007
<PAGE>
CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
ss. 310(a)(1)..........................................................7.10
(a)(2)..........................................................7.10
(b).............................................................7.08
ss. 313(c).............................................................7.06
ss. 314(a).............................................................4.17
(a)(4)..........................................................4.18
ss. 315(b).............................................................7.05
ss. 316(a)(1)(A).......................................................6.05
(a)(1)(B).......................................................6.04
(b).............................................................6.07
ss. 317(a)(1)..........................................................6.08
(a)(2)..........................................................6.09
- ----------
Note: The Cross-Reference Table shall not for any purpose be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY 1
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions 2
SECTION 1.02. Incorporation by Reference of Trust Indenture Act 22
SECTION 1.03. Rules of Construction 22
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating 23
SECTION 2.02. Execution and Authentication 24
SECTION 2.03. Registrar and Paying Agent 24
SECTION 2.04. Holders to Be Treated as Owners; Payments of Interest 25
SECTION 2.05. Paying Agent to Hold Money in Trust 26
SECTION 2.06. Holder Lists 26
SECTION 2.07. Transfer and Exchange 27
SECTION 2.08. Replacement Notes 30
SECTION 2.09. Outstanding Notes 31
SECTION 2.10. Treasury Notes 31
SECTION 2.11. Temporary Notes 31
SECTION 2.12. Cancellation 31
SECTION 2.13. Defaulted Interest 32
SECTION 2.14. CUSIP, CINS or ISIN Number 48
SECTION 2.15. Deposit of Moneys 32
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption 33
SECTION 3.02. Notices to Trustee 33
SECTION 3.03. Selection of Notes to Be Redeemed 33
SECTION 3.04. Notice of Redemption 34
SECTION 3.05. Deposit of Redemption Price 35
SECTION 3.06. Payment of Notes Called for Redemption 35
SECTION 3.07. Notes Redeemed in Part 35
- ----------
Note: The Table of Contents shall not for any purpose be deemed to be a part
of the Indenture.
<PAGE>
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes 35
SECTION 4.02. Issuances of Guarantees by New Restricted Subsidiaries 35
SECTION 4.03. Limitation on Indebtedness 36
SECTION 4.04. Limitation on Restricted Payments 38
SECTION 4.05. Limitation on Dividend and Other Payment Restrictions Affect-
ing Restricted Subsidiaries 41
SECTION 4.06. Limitation on the Issuance of Capital Stock of Restricted
Subsidiaries 42
SECTION 4.07. Limitation on Issuances of Guarantees by Restricted
Subsidiaries 43
SECTION 4.08. Limitation on Transactions with Shareholders and Affiliates 43
SECTION 4.09. Limitation on Liens 44
SECTION 4.10. Limitation on Sale-Leaseback Transactions 44
SECTION 4.11. Limitation on Asset Sales 45
SECTION 4.12. Maintenance of Office or Agency
SECTION 4.13. Repurchase of Notes upon a Change of Control 46
SECTION 4.14. Existence 46
SECTION 4.15. Payment of Taxes and Other Claims 46
SECTION 4.16. Maintenance of Properties and Insurance 47
SECTION 4.17. Compliance Certificates 48
SECTION 4.18. Commission Reports and Reports to Holders 48
SECTION 4.19. Waiver of Stay, Extension or Usury Laws 48
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Consolidation, Merger and Sale of Assets 49
SECTION 5.02. Successor Substituted 50
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default 50
SECTION 6.02. Acceleration 52
SECTION 6.03. Other Remedies 52
SECTION 6.04. Waiver of Past Defaults 53
SECTION 6.05. Control by Majority 53
SECTION 6.06. Limitation on Suits 53
SECTION 6.07. Rights of Holders to Receive Payment 54
SECTION 6.08. Collection of Indebtedness and Suits for
Enforcement by Trustee 55
SECTION 6.09. Trustee May File Proofs of Claim 55
SECTION 6.10. Priorities 55
SECTION 6.11. Undertaking for Costs 56
<PAGE>
SECTION 6.12. Restoration of Rights and Remedies 56
SECTION 6.13. Rights and Remedies Cumulative 56
SECTION 6.14. Delay or Omission Not Waiver 56
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General 57
SECTION 7.02. Certain Rights of Trustee 57
SECTION 7.03. Individual Rights of Trustee 58
SECTION 7.04. Trustee's Disclaimer 58
SECTION 7.05. Notice of Default 59
SECTION 7.06. Reports by Trustee to Holders 59
SECTION 7.07. Compensation and Indemnity 59
SECTION 7.08. Replacement of Trustee 60
SECTION 7.09. Successor Trustee by Merger, Etc 61
SECTION 7.10. Eligibility 61
SECTION 7.11. Money Held in Trust 61
SECTION 7.12. Withholding Taxes 61
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations 61
SECTION 8.03. Defeasance of Certain Obligations 64
SECTION 8.04. Application of Trust Money 66
SECTION 8.05. Repayment to Company 66
SECTION 8.06. Reinstatement 66
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders 67
SECTION 9.02. With Consent of Holders 67
SECTION 9.03. Revocation and Effect of Consent 68
SECTION 9.04. Notation on or Exchange of Notes 69
SECTION 9.05. Trustee to Sign Amendments, Etc 69
SECTION 9.06. Conformity with Trust Indenture Act 69
ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01. Guarantee 69
SECTION 10.02. Obligations Unconditional 71
SECTION 10.03. Notice to Trustee 71
<PAGE>
SECTION 10.04. This Article Not to Prevent Events of Default 71
SECTION 10.05. Net Worth Limitation 71
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939 71
SECTION 11.02. Notices 72
SECTION 11.03. Certificate and Opinion as to Conditions Precedent 73
SECTION 11.04. Statements Required in Certificate or Opinion 73
SECTION 11.06. Rules by Trustee, Paying Agent or Registrar 75
SECTION 11.07. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities 75
SECTION 11.08. Payment Date Other Than a Business Day 75
SECTION 11.09. Governing Law 75
SECTION 11.10. No Adverse Interpretation of Other Agreements 76
SECTION 11.10. No Recourse Against Others 76
SECTION 11.11. Successors 76
SECTION 11.12. Duplicate Originals 76
SECTION 11.13. Separability 76
SECTION 11.14. Table of Contents, Headings, Etc. 76
EXHIBIT A Form of Global Note A-1
EXHIBIT B Form of Definitive Registered Note B-1
<PAGE>
INDENTURE, dated as of [ ], 1997, between ORION NEWCO
SERVICES, INC., a Delaware corporation, as issuer (together, with its successors
and assigns, the "Company"); ORION NETWORK SYSTEMS, INC., Inc., ORION SATELLITE
CORPORATION, INTERNATIONAL PRIVATE SATELLITE PARTNERS, L.P., ORIONNET, INC..,
ORION ASIA PACIFIC CORPORATION, ASIA PACIFIC SPACE AND COMMUNICATIONS, LTD.,
ORION ATLANTIC EUROPE, Ltd., ORION ATLANTIC EUROPE Inc; A. and ORION NET FINANCE
CORPORATION Net Finance Corporation., all Delaware Corporations, as guarantors;
and BANKERS TRUST COMPANY, a New York Banking Corporation, as trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of up to $[ ] aggregate principal
amount at maturity of the Company's [ ]% Senior Discount Notes Due 2007 (the
"Notes") issuable as provided in this Indenture. Pursuant to the terms of an
Underwriting Agreement dated as of [ ], 1997 (the "Underwriting Agreement")
between the Company and Morgan Stanley & Co. Incorporated, as the manager for
itself and the several other placement agents therein (the "Manager"), the
Company has agreed to issue and sell [ ] Units (the "Units"), each Senior
Discount Note Unit consisting of $[________] principal amount of the Notes and
one warrant (the "Warrant") to purchase initially [ ] shares of Common Stock,
par value $.01 per share, of the Company (the "Common Stock"), issuable pursuant
to the terms of a Warrant Agreement dated as of [________], 1997 (the "Warrant
Agreement") between the Company and [ ], as the warrant agent (the "Warrant
Agent") and [ ] Senior Note Units (the "Senior Note Units"), each Senior Note
Unit consisting of $[________] principal amount of the [ ]% Senior Notes Due
2007 (the "Senior Notes") and one Warrant to purchase initially [ ] shares of
Common Stock, issuable pursuant to the terms of the Warrant Agreement. All
things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done, and the Company has done all things
necessary to make the Notes, when executed by the Company and authenticated and
delivered by the Trustee hereunder and duly issued by the Company, the valid
obligations of the Company as hereinafter provided.
This Indenture is subject to, and shall be governed by, the
provisions of the United States Trust Indenture Act of 1939, as amended, that
are required to be a part of and to govern indentures qualified under the United
States Trust Indenture Act of 1939, as amended.
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders, as follows.
<PAGE>
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions .
"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 Value 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 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 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
<PAGE>
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 Indebtedness.
"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
Section 4.04 of this Indenture (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 Guarantor 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 Section 4.04 of this Indenture, 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
<PAGE>
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
Section 4.18 of this Indenture.
"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.
"Agent" means any Registrar, Paying Agent, authenticating
agent or co-Registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial interest in the Global Note, the rules and procedures of
the Depositary that apply to such transfer or exchange.
"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 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
<PAGE>
business of the Company or such Restricted Subsidiary and, in each case, that is
not governed by Section 5.01 of this Indenture; 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
received would satisfy clause (B) of Section 4.11 of this Indenture.
"Average Life" means, at any date 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.
"Board of Directors" means the Board of Directors of the
Company or any committee of such Board of Directors duly authorized to act with
respect to this Indenture from time to time.
"Board Resolution" means a copy of a resolution, certified by
any Director of the Company or the Secretary or Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means a day except Saturday, Sunday or other
day on which commercial banks in the City of New York, or in the city of the
Corporate Trust Office of the Trustee, are authorize by law to close.
"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.
"Certificated Note" means a certificated Note registered in
the name of the Holder thereof and issued in accordance with Section 2.07(a)
hereof, substantially in the form of Exhibit B hereto.
"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 of the Company, on a fully diluted
basis, held by the Existing Stockholders and their Affiliates on such date; (ii)
individuals who on the
<PAGE>
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
or such other entity as then owns the Orion 1 satellite.
"Chief Executive Officer" of the Company means W. Neil Bauer
or, in the event of his death or termination of his office, such other Officer
of the Company as the Company may designate.
"Closing Date" means the date on which the Notes are
originally issued under the Indenture.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the TIA, then the
body performing such duties at such time.
"Common Stock" means, the shares of Common Stock, par value
$.01 per share, of the Company.
"Company Order" means a written request or order signed in the
name of the Company (i) by the Chairman of the Board, the Chief Executive
Officer or an Executive Director and (ii) by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee;
provided, however, that such written request or order may be signed by any two
of the officers or directors listed in clause (i) above in lieu of being signed
by one of such officers or directors listed in such clause (i) and one of the
officers listed in clause (ii) above.
"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.
<PAGE>
"Consolidated Indebtedness" means the aggregate amount of
Indebtedness of the Company and its Restricted Subsidiaries on a consolidated
basis.
"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 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 any 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 Section 4.18 of this Indenture (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 of 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
<PAGE>
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).
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date of this Indenture,
located at Bankers Trust Company, 4 Albany Street, New York, N.Y. 10006.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary against fluctuations in
currency values.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Depositary" shall mean The Depository Trust Company, its
nominees and their respective successors, until a successor Depositary shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall been or include each Person who is then a
Depositary hereunder.
"Depositary Interest" means a certificateless depositary
interest representing a 100% beneficial interest in a Global Note.
"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 in Sections 4.11 and 4.13 of
this Indenture 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 Sections 4.11 and 4.13 of this Indenture.
"Existing Stockholders" means British Aerospace Space Systems,
Inc., Lockheed Martin Commercial Launch Services, Inc., MCN Sat. U.S., Inc.,
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., Space
Systems/Loral and any Subsidiary of any of the foregoing
<PAGE>
.
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section 4.11.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended.
"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 Closing 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 No. 16 and 17.
"Global Note" means the Global Notes, substantially in the
form of Exhibit A hereto issued in accordance with Section 2.01 or 2.07(a)
hereof.
"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
<PAGE>
for collection or deposit in the ordinary course of business. The term Guarantee
used as a verb has a corresponding meaning.
"Guarantors" means collectively, Orion Network Systems, Inc.,
Orion Satellite Corporation, International Private Satellite Partners, L.P.,
OrionNet, Inc., Orion Asia Pacific Corporation, Asia Pacific Space and
Communications, Ltd., Orion Atlantic Europe, Inc. and OrionNet Finance
Corporation, and all other Restricted Subsidiaries; provided that any Person
that becomes an Unrestricted Subsidiary in compliance with Section 4.04 shall
not be included in "Guarantors" after becoming an Unrestricted Subsidiary.
"Holder" means the Person in whose name such Note is
registered in the Register.
"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 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 clause (i) or (ii) above or
clause (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 (A) that the amount outstanding at any time of
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
<PAGE>
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.
"Indenture" means this Indenture as originally executed or as
it may be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture.
"Independent Financial Advisor" means an investment banking
firm, accounting firm or other financial advisory firm of national standing in
the United States, as the case may be, (i) which, in the judgment of the Board
of Directors, does not, and whose directors, officers or Affiliates do not, have
a material direct or indirect financial interest in the Company (provided that
ownership of Capital Stock of the Company constituting less than 2% of all
outstanding Capital Stock of the Company shall not constitute a material direct
or indirect financial interest), and (ii) which, in the judgment of the Board of
Directors, is otherwise independent and qualified to perform the task for which
it is to be engaged.
"Indirect Participant" means a Person who holds an interest
through a Participant.
"Interest Payment Date" means each semiannual interest payment
date of [ ] and [ ] of each year, commencing [ ] 2002.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement or other similar agreement or
arrangement designed to protect the Company or any of its Restricted
Subsidiaries against fluctuations in interest rates in respect of Indebtedness
to or under which the Company or any of its Restricted Subsidiaries is a party
or a beneficiary on the date of this Indenture or becomes a party or a
beneficiary hereafter; provided that the notional principal amount thereof does
not exceed the principal amount of the Indebtedness of the Company and its
Restricted Subsidiaries that bears interest at floating rates.
"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 Section
4.06 of this Indenture. For purposes of the definition of "Unrestricted
Subsidiary" and Section 4.04 of this Indenture, (i) "Investment" shall
<PAGE>
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. "Issue Date" means the original date of issuance of the Notes.
"Junior Subordinated Convertible Debentures" means the 8.75%
Convertible Junior Subordinated Debentures Due 2012 of the Company.
"Kingston" means Kingston Communications International
Limited.
"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).
"Manager" means Morgan Stanley & Co. Incorporated, as manager
for itself and the several other underwriters named in the Underwriting
Agreement.
"Matra" means Matra Marconi Space UK Limited, the parent
Company of MMS Space Systems and a subsidiary of Matra Marconi Space N.V., and
the manufacturer under the Orion 2 Satellite Contract.
"Maturity Date" means the Stated Maturity of the Notes.
"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.
"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
<PAGE>
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 Guarantee" means the Guarantee by the Guarantors of the
Company's obligations under the Notes and the Indenture, pursuant to the
Indenture, and the Guarantee by any other Person that becomes a Guarantor of the
Company's obligations under the Notes and the Indenture.
"Notes" means the [___________]% Senior Discount Notes due
2007 of the Company issued pursuant to this Indenture.
"Offer to Purchase" means an offer to purchase Notes by the
Company from the Holders commenced by mailing a notice to the 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 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 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
<PAGE>
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 Trustee all Notes or portions thereof so
accepted together with an Officers' Certificate specifying the Notes or 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 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 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 Atlantic" means International Private Satellite
Partners, L.P., a Delaware Limited Partnership.
"Orion 1" means the high-power Ku-band communications
satellite operated over the Atlantic Ocean by Orion.
"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.
"Orion 1 Satellite Contract" means 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.
"Orion 2 Satellite Contract" means the spacecraft purchase
agreement between Orion and Matra Marconi Space for construction and launch of
Orion 2.
"Officer" means, with respect to the Company, (i) the Chairman
of the Board, the Chief Executive Officer or any other Director of the Company
or (ii) the Treasurer or any Assistant Treasurer, the Company Secretary or any
Company Assistant Secretary.
"Officers' Certificate" means a certificate signed by one
Officer listed in clause (i) of the definition thereof and one Officer listed in
clause (ii) of the definition thereof;
<PAGE>
provided, however, that any such certificate may be signed by any two of the
Officers listed in clause (i) of the definition thereof in lieu of being signed
by one Officer listed in clause (i) of the definition thereof and one Officer
listed in clause (ii) of the definition thereof. Each Officers' Certificate
(other than certificates provided pursuant to TIA Section 314(a)(4)) shall
include the statements provided for in TIA Section 314(e), if applicable.
"Opinion of Counsel" means a written opinion signed by legal
counsel who may be an employee of or counsel to the Company. Each such Opinion
of Counsel shall include the statements provided for in TIA Section 314(e), if
applicable.
"Participant" means, with respect to the Depositary, a Person
who has an account therewith.
"Paying Agent" has the meaning provided in Section 2.03,
except that, for the purposes of Article Eight, the Paying Agent shall not be
the Company or a Subsidiary of the Company or an Affiliate of any of them. The
term "Paying Agent" includes any additional Paying Agent.
"Payment Date" means with respect to any Offer to Purchase,
the date of purchase of the Notes pursuant thereto, which shall be a Business
Day no earlier than 30 days nor later than 60 days from the date a notice is
mailed pursuant to such Offer to Purchase.
"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
<PAGE>
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 Section 4.03 of this Indenture, (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 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
<PAGE>
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.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"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 Date," when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"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.
"Redemption Price," when used with respect to any Note to be
redeemed, means the price at which such Note is to be redeemed pursuant to this
Indenture.
"Register" has the meaning provided in Section 2.03.
"Registrar" has the meaning provided in Section 2.03.
<PAGE>
"Regular Record Date" for the interest payable on any Interest
Payment Date means the [_______] or [_______] (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date.
"Related Person" means any holder (or any Affiliate of such
holder) of 5% or more of any class of Capital Stock of the Company and any
Affiliate of the Company or any Restricted Subsidiary.
"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.
"Responsible Officer," when used with respect to the Trustee,
means the chairman or any vice chairman of the board of directors, the chairman
or any vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, any
assistant vice president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, the cashier, any assistant cashier, any trust officer
or assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Restricted Payments" has the meaning provided in Section
4.04.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Group and its
successors.
"Securities Act" means the United States Securities Act of
1933, as amended.
"Separation Date" means the earliest of (i) six months after
the date of issuance, (ii) such date as the Underwriters may, in their
discretion, deem appropriate and (ii) in the event of an Offer to Purchase, the
date the Company mails notice thereof to holders of the Notes.
"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.
<PAGE>
"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.
"Specified Date" means any Redemption Date, any Payment Date
for an Offer to Purchase pursuant to Section 4.11 or Section 4.13 or any date on
which the Securities are due and payable after an Event of Default.
"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.
"Subsidiary Guarantee" means the Guarantee of the Notes by any
Subsidiary of the Company substantially in the form of Exhibit F hereto.
"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.
"Tax" means any tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and any other liabilities
related thereto).
"Taxing Authority" means any government or political
subdivision or territory or possession of any government or any authority or
agency therein or thereof having power to tax.
"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
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
<PAGE>
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.
"TIA" or "Trust Indenture Act" means the United States Trust
Indenture Act of 1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbb), as in
effect on the date this Indenture was executed, except as provided in Section
9.06.
"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.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of Article Seven of this Indenture and thereafter means such
successor.
"Underwriters" has the meaning as set forth in the
Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement date
[ ] 1997 between the Company and the Manager, for itself and the other
Underwriters named therein.
"Units" has the meaning provided in the recitals to this
Indenture.
"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 and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Restricted Subsidiary (including any newly acquired or newly
<PAGE>
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 Section
4.04 of this Indenture, and (C) if applicable, the Incurrence of Indebtedness
and the Investment referred to in clause (A) of this proviso would be permitted
under Section 4.03 and Section 4.04 of this Indenture. 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 Section 4.03 of this Indenture 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 Trustee by promptly filing with the 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.
"Warrants" means the warrants to purchase Common Stock of the
Company issued as part of a unit with each of the Notes and the Senior Notes.
"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.
SECTION 1.02. Incorporation by Reference of Trust Indenture
Act . Whenever this Indenture refers to a provision of the TIA, such provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Notes.
<PAGE>
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. Rules of Construction . Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in
the plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(vii) all references to Sections, Articles or Exhibits refer
to Sections, Articles or Exhibits of this Indenture unless otherwise
indicated; and
(viii) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement or successor
sections of the Securities Act or rules adopted by the Commission from
time to time.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating . (a) Global Notes. The Notes
offered and sold shall be issued in the form of one or more fully registered
Notes in global form ("Global Notes"), which shall be deposited on behalf of the
purchasers of the Notes represented thereby with the Depositary at its New York
corporate trust office, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The Notes in definitive form ("Certificated
Notes") shall not be issued except as provided in Section 2.07(a). The aggregate
principal amount of each of the Global Notes may from time to time be increased
or decreased by adjustments made on the records of the Trustee as hereinafter
provided.
Each Global Note shall represent such of the outstanding Notes
as shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as
<PAGE>
appropriate, to reflect exchanges, redemptions and transfers of interests
therein in accordance with the terms of this Indenture. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the principal
amount of outstanding Notes represented thereby shall be made by the Trustee in
accordance with instructions given by the Holder thereof as required by Section
2.07 hereof.
Except as set forth in Section 2.07(a) hereof, the Global
Notes may not be transferred except as a whole by the Depositary to a nominee of
the Depositary or by the nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the nominee of the Depositary or by the
Depositary of any such nominee to a successor of the Depositary or a nominee of
each successor.
(b) Book-Entry Provisions. The Company shall execute and the
Trustee shall, in accordance with this Section 2.01(b) and Section 2.02 hereof,
authenticate and deliver the Global Notes to the Depositary.
Upon receipt of each Global Note authenticated and delivered
by the Trustee, the Depositary shall credit, on its internal book-entry
registration and transfer system, its Participant's accounts with the respective
interests owned by such Participants. Ownership of beneficial interests in the
Global Notes shall be limited to Participants and Indirect Participants.
So long as the Depositary is the registered holder of any
Global Note, the Participants and Indirect Participants shall have no rights
under this Indenture or under any Global Note with respect to such Global Note
held on their behalf by the Depositary, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Note for the purpose of receiving payment of or on account
of the principal of and, subject to the provisions of this Indenture, interest
on the Global Notes and for all other purposes. Notwithstanding the foregoing,
nothing herein shall impair the operation of customary practices of the
Depositary governing the exercise of the rights of an owner of a beneficial
interest in any Global Note. No beneficial owner of an interest in any Global
Note shall be able to transfer such interest except in accordance with the
Applicable Procedures.
(c) Note Forms. The provisions of the form of Global Note
contained in Exhibits A hereto are incorporated herein by reference.
(d) Dating. Each Note shall be dated the date of its
authentication.
SECTION 2.02. Execution and Authentication. Any director of
the Company shall execute the Notes on behalf of the Company by manual or
facsimile signature. The Company's common seal may be reproduced on the Notes
and may be in facsimile form.
<PAGE>
If the director whose manual or facsimile signature is on a
Note no longer holds that office at the time the Trustee authenticates the Note
or at any time thereafter, the Note nevertheless shall be valid.
A Note shall not be valid until an authorized officer of the
Trustee manually signs the certificate of authentication on the Note. Such
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate Notes for original issue in an
aggregate principal amount at maturity not to exceed $[ ] upon receipt of a
certificate signed by any Officer or attorney-in-fact therefor directing the
Trustee to authenticate the Notes. The Global Notes shall be issuable only in
fully registered form and the Certificated Notes shall be issuable only
registered form. The Notes shall be issued without coupons and only in
denominations of U.S. $1,000 principal amount at maturity or any integral
multiple thereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. Such authenticating agent shall have the
same rights as the Trustee in any dealings hereunder with the Company or with
any of the Company's Affiliates.
SECTION 2.03. Registrar and Paying Agent. The Company shall
maintain an office or agency where Certificated Notes may be presented for
registration of transfer or for exchange (the "Registrar"), an office or agency
where Notes may be presented for payment (the "Paying Agent"), and an office or
agency where notices and demands to or upon the Company in respect of the Notes
and this Indenture may be served, in each case, located in the Borough of
Manhattan, The City of New York, State of New York. The Registrar shall keep a
register containing the names and addresses of all Holders (the "Register") and
of the transfer and exchange of Certificated Notes. Any notice to be given under
this Indenture or under the Notes by the Trustee or the Company to Holders shall
be mailed by first class mail to each Holder at its address as it appears at the
time of such mailing in the Register. The Company may have one or more
co-Registrars and one or more additional paying agents. The term "Paying Agent"
includes any additional paying agent. Except as otherwise provided herein, the
Company or any Subsidiary thereof may act as Paying Agent. The Company may also
from time to time designate one or more other offices or agencies where the
Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain
<PAGE>
a Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee
shall act as such and shall be entitled to appropriate compensation in
accordance with Section 7.07.
The Company initially appoints the Corporate Trust Office of
the Trustee in the Borough of Manhattan located at the address set forth in
Section 11.02 as Registrar, Paying Agent and agent for service of notices and
demands in connection with the Notes and this Indenture.
SECTION 2.04. Holders to Be Treated as Owners; Payments of
Interest . (a) The Company, the Paying Agent, the Registrar, the Trustee and any
agent of the Company, the Paying Agent, the Registrar or the Trustee may deem
and treat each Holder of a Note as the absolute owner of such Note for the
purpose of receiving payment of or on account of the principal of and, subject
to the provisions of this Indenture, and interest on such Note and for all other
purposes. Neither the Company, the Paying Agent, the Registrar, the Trustee nor
any agent of the Company, the Paying Agent, the Registrar or the Trustee shall
be affected by any notice to the contrary. All such payments so made to any such
Person, or upon his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any Note.
(b) The Holder of a Certificated Note at the close of business
on the Regular Record Date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date
notwithstanding any transfer or exchange of such Certificated Note subsequent to
the Regular Record Date and prior to such Interest Payment Date, except if and
to the extent the Company shall default in the payment of the interest due on
such Interest Payment Date, in which case such defaulted interest shall be paid
in accordance with Section 2.13; provided that, in the event of an exchange of a
Certificated Note for a beneficial interest in any Global Note subsequent to a
Regular Record Date or any special record date and prior to or on the related
Interest Payment Date, any payment of interest payable on such payment date with
respect to any such Certificated Note shall be made to the Person in whose name
such Certificated Note was registered on such record date. Payments of interest
on the Global Notes will be made to the Holder of the Global Note on each
Interest Payment Date; provided that, in the event of an exchange of all or a
portion of the Global Note for Certificated Notes subsequent to the Regular
Record Date or any special record date and prior to or on the related Interest
Payment Date or other payment date under Section 2.13, any payment of interest
payable on such payment date with respect to the Certificated Note shall be made
to the Holder of the Global Note.
(c) The Trustee shall pay interest to the Depositary, with
respect to any Global Note the Depositary, in accordance with instructions
received from the Depositary at least five business days before the applicable
Interest Payment Date.
SECTION 2.05. Paying Agent to Hold Money in Trust. The Company
shall require each Paying Agent other than the Trustee to agree in writing that
such Paying Agent will hold in trust for the benefit of the Holders or the
Trustee all money held by the Paying Agent for the payment of principal of or
interest on the Notes (whether such money has been paid to
<PAGE>
it by the Company or any other obligor on the Notes), and the Company and the
Paying Agent shall notify the Trustee of any default by the Company (or any
other obligor on the Notes) in making any such payment. Unless the Company or
any Subsidiary is the Paying Agent, money held in trust by the Paying Agent need
not be segregated except as required by law and in no event shall the Paying
Agent be liable for any interest on any money received by it hereunder. The
Company at any time may require the Paying Agent to pay all money held by it to
the Trustee and account for any funds disbursed and the Trustee may at any time
during the continuance of any Event of Default specified in Section 6.01(a) or
(b), upon written request to the Paying Agent, require such Paying Agent to pay
forthwith all money so held by it to the Trustee and to account for any funds
disbursed. Upon making such payment, the Paying Agent shall have no further
liability for the money delivered to the Trustee. If the Company or any
Subsidiary of the Company acts as Paying Agent it shall, on or before each due
date of the principal of or interest on the Notes, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
SECTION 2.06. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
from the Registrar of the names and addresses of the Holders of Notes. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
five Business Days before each Interest Payment Date, and at such other times as
the Trustee may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of the Holders of
Notes, if any.
SECTION 2.07. Transfer and Exchange. (a) Transfer and Exchange
of Global Notes. Except as provided below, transfers of the Global Notes shall
be limited to transfers of such Global Notes in whole, but not in part, to the
Depositary. Certificated Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests in the Global Notes if (i) the
Depositary or Company delivers to the Trustee notice from the Depositary that it
is unwilling or unable to continue to act as Depositary for the Global Notes or
at any time ceases to be a clearing agency registered under the Exchange Act
and, in either case, a successor Depositary is not appointed by the Company
within 120 days after the date of such notice from the Depositary; or (ii) the
Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Certificated Notes and delivers a written
notice to such effect to the Trustee.
(i) In connection with any transfer of a portion of the
beneficial interests in the Global Notes to beneficial owners pursuant
to paragraph (a) above, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of such Global
Notes in an amount equal to the principal amount of the beneficial
interest in such Global Notes to be transferred, and the Company shall
execute, and the Trustee shall authenticate and deliver, one or more
Certificated Notes of like tenor and amount.
(ii) In connection with the transfer of an entire Global Note
to beneficial owners pursuant to paragraph (a) above, the Global Note
shall be deemed to be
<PAGE>
surrendered to the Trustee for cancellation, and the Company shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in the Global Note an
equal aggregate principal amount of Certificated Notes of authorized
denominations.
(b) Transfer and Exchange of Beneficial Interests in the
Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with this
Indenture and Applicable Procedures of the Depositary therefor.
(c) Transfer and Exchange of Certificated Notes. When
Certificated Notes are presented by a Holder to the Registrar with a request to
register the transfer of the Certificated Notes or to exchange such Certificated
Notes for an equal principal amount of Certificated Notes of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested only if the Certificated Notes are presented or surrendered for
registration of transfer or exchange and are endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing and upon
receipt of such certificates.
(d) Legends.
(i) Original Issue Discount Legend. Each Note shall bear a
legend in substantially the following form:
"FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH
ORIGINAL ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS
SECURITY, THE ISSUE PRICE IS $[ ], THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT IS $[ ]. FOR ADDITIONAL INFORMATION REGARDING ORIGINAL ISSUE
DISCOUNT, PLEASE CONTACT ORION NEWCO SERVICES, 2440 RESEARCH BOULEVARD,
SUITE 40, ROCKVILLE, MARYLAND, 20850."
(ii) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE,
(II) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (III) THIS GLOBAL NOTE
MAY BE
<PAGE>
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF ORION NEWCO SERVICES, INC."
(iii) Unit Legend. Each Note issued prior to the Separation
Date shall bear the following legend (the "Unit Legend") on the face
thereof:
"THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART
OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF $[ ] PRINCIPAL
AMOUNT OF THE NOTES AND ONE WARRANT (EACH, A "WARRANT" AND
COLLECTIVELY, THE "WARRANTS") INITIALLY ENTITLING THE HOLDER THEREOF TO
PURCHASE [ ] SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, (THE
"COMMON STOCK")."
(e) General Provisions Relating to All Transfers and
Exchanges. (i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and Certificated
Notes upon the Company's order or at the Registrar's request.
(i) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any stamp or transfer tax or
similar governmental charge payable in connection therewith (other than
any such stamp or transfer taxes or similar governmental charge payable
upon exchange or transfer pursuant to Sections 2.11, 3.07, 4.11, 4.13
and 9.04 hereof).
(ii) All Global Notes and Certificated Notes issued upon any
registration of transfer or exchange of Global Notes or Certificated
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Certificated Notes surrendered upon such
registration of transfer or exchange.
(iii) The Company shall not be required (A) to issue, to
register the transfer of or to exchange Notes during a period beginning
at the opening of business 15 days before the day of any selection of
Notes for redemption under Section 3.03 hereof and ending at the close
of business on the day of selection, (B) to register the transfer of or
to exchange any Note so selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part or (C)
to register the transfer of or to exchange a Note between a record date
and the next succeeding Interest Payment Date.
(iv) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
neither the Trustee, any Agent nor the Company shall be affected by
notice to the contrary.
<PAGE>
(v) The Trustee shall authenticate Global Notes and
Certificated Notes in accordance with the provisions of Section 2.02
hereof.
SECTION 2.08. Replacement Notes . If a mutilated Certificated
Note is surrendered to the Registrar or the Trustee, if a mutilated Global Note
is surrendered to the Company or the Trustee or if the Company and the Trustee
receive evidence to their satisfaction that any Note has been lost, destroyed or
stolen, the Company shall issue and the Trustee shall authenticate a replacement
Note in such form as the Notes mutilated, lost, destroyed or wrongfully taken if
(i) in the case of a lost, destroyed or stolen Note, the Holder of such Note
furnishes to the Company, the Trustee and, in the case of a Certificated Note,
the Registrar, evidence reasonably acceptable to them of the ownership and the
destruction, loss or theft of such Note and (ii) an indemnity bond shall be
posted by the Holder requesting replacement, sufficient in the judgment of each
to protect the Company, the Registrar (in the case of a Certificated Note ), the
Trustee or any Agent from any loss that any of them may suffer if such Note is
replaced. Prior to the issuance of any such replacement Note, the Trustee shall
notify the Company of any request therefor. The Company may charge such Holder
for the Company's out-of-pocket expenses in replacing such Note and the Trustee
may charge the Holder for the Trustee's expenses in replacing such Note. Every
replacement Note shall constitute an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionally with all other Notes issued hereunder. The provisions of this
Section 2.08 are exclusive and shall preclude (to the extent permitted by
applicable law) all other rights and remedies with respect to the replacement of
mutilated, lost, destroyed or stolen Notes.
SECTION 2.09. Outstanding Notes . The Notes outstanding at any
time are all Notes that have been authenticated by the Trustee except for (a)
those cancelled by it, (b) those delivered to it for cancellation, (c) to the
extent set forth in Sections 8.01 and 8.02, on or after the date on which the
conditions set forth in Section 8.01 or 8.02 have been satisfied, those Notes
theretofore authenticated and delivered by the Trustee hereunder and (d) those
described in this Section 2.09 as not outstanding. Subject to Section 2.10, a
Note does not cease to be outstanding because the Company or one of its
Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Company.
If the principal amount of any Note is considered to be paid
under Section 4.01, it ceases to be outstanding and interest thereon shall cease
to accrue.
If the Paying Agent holds, in its capacity as such, on the
Stated Maturity of a Note, on any Redemption Date or on any Payment Date, money
sufficient to pay all accrued interest and Liquidated Damages and principal with
respect to such Notes payable on that date and is not prohibited from paying
such money to the Holders thereof pursuant to the terms of this Indenture, then
on and after that date such Notes cease to be outstanding and interest on them
ceases to accrue.
<PAGE>
SECTION 2.10. Treasury Notes . In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent or any amendment, modification or other change to
this Indenture, Notes owned by the Company or an Affiliate of the Company shall
be disregarded as though they were not outstanding, except that for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent or any amendment, modification or other change to
this Indenture, only Notes that the Trustee actually knows are so owned shall be
so disregarded.
SECTION 2.11. Temporary Notes . Until definitive Notes are
prepared and ready for delivery, the Company may prepare and the Trustee shall,
upon receipt of a Company Order, authenticate temporary Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive
Notes in exchange for temporary Notes. Until such exchange, temporary Notes
shall be entitled to the same rights, benefits and privileges as definitive
Notes.
SECTION 2.12. Cancellation . All Notes surrendered for
payment, redemption, registration of transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Notes previously authenticated hereunder which the Company has not issued
and sold, and all Notes so delivered shall be promptly cancelled by the Trustee.
If the Company shall so acquire any of the Notes, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Notes unless and until the same are surrendered to the
Trustee for cancellation. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section 2.12, except as
expressly permitted by this Indenture. All cancelled Notes held by the Trustee
shall be disposed of by the Trustee in accordance with its customary procedures
and certification of their disposal delivered to the Company unless by Company
Order the Company shall direct that cancelled Notes be returned to it.
SECTION 2.13. Defaulted Interest. If the Company defaults on a
payment of interest on the Notes, it shall pay the defaulted interest plus (to
the extent permitted by law) any interest payable on the defaulted interest in
accordance with the terms hereof, to (a) the Persons who are Holders of
Certificated Notes, if any, on a subsequent special record date, which date
shall be at least five Business Days prior to the payment date for such
defaulted interest, and (b) if any Global Notes are outstanding on such payment
date, to the Holder of the Global Notes on such payment date. The Company shall
fix such special record date and payment date in a manner reasonably
satisfactory to the Trustee. At least 15 days before such special record date,
the Company shall mail to each Holder of Certificated Notes, if any, and if the
Global Notes are still outstanding, to the Holder thereof and the Depositary, a
notice that states the special record date, the payment date and the amount of
defaulted interest and interest payable on such defaulted interest to be paid.
<PAGE>
SECTION 2.14. CUSIP, CINS or ISIN Number. The Company in
issuing the Notes may use a "CUSIP," "CINS" or "ISIN" number, and if so, such
CUSIP, CINS or ISIN number shall be included in notices of redemption,
repurchase or exchange as a convenience to Holders, provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP, CINS or ISIN number printed in the notice or on the
Notes, and that reliance may be placed only on the other identification numbers
printed on the Notes; and provided, further that failure to use CUSIP, CINS or
ISIN numbers in any notice of redemption, repurchase or exchange shall not
affect the validity or sufficiency of such notice. The Company will promptly
notify the Trustee of any change in the CUSIP, CINS or ISIN number.
SECTION 2.15. Deposit of Moneys . Prior to 12:00 noon, New
York City time, on each Interest Payment Date, at the Stated Maturity of the
Notes, on each Redemption Date, on each Payment Date and on the Business Day
immediately following any acceleration of the Notes pursuant to Section 6.02,
the Company shall deposit with the Paying Agent in immediately available funds
money (in United States dollars) sufficient to make cash payments, if any, due
on such Interest Payment Date, Stated Maturity, Redemption Date, Payment Date or
Business Day, as the case may be, in a timely manner which permits the Trustee
to remit payment to the Holders on such Interest Payment Date, Stated Maturity,
Redemption Date, Payment Date or Business Day, as the case may be.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of 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 Note 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:
Year Redemption Price
2002 [_____]%
2003 [_____]%
2004 and thereafter 100.000%
<PAGE>
SECTION 3.02. Notices to Trustee . If the Company elects to
redeem Notes pursuant to Section 3.01, it shall notify the Trustee in writing of
(i) the clause of the Indenture pursuant to which the redemption shall occur,
(ii) the Redemption Date, (iii) the principal amount at Stated Maturity of Notes
to be redeemed plus interest accrued thereon, if any, to the Redemption Date and
(iv) the Redemption Price.
The Company shall give each notice provided for in this
Section 3.02 in an Officers' Certificate at least 15 days before mailing the
notice to Holders referred to in Section 3.01.
SECTION 3.03. Selection of Notes to Be Redeemed . In the case
of any partial redemption, selection of the Notes for redemption will be made by
the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not listed on a national securities exchange, on a pro rata basis, by lot or by
such other method as the 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.
SECTION 3.04. Notice of Redemption . With respect to any
redemption of Notes pursuant to Section 3.01, at least 30 days but not more than
60 days before a Redemption Date, the Company shall mail a notice of redemption
by first class mail to each Holder whose Notes are to be redeemed at such
Holder's registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be surrendered to
the Paying Agent in order to collect the Redemption Price;
(e) the paragraph of the Notes and/or the Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed;
(f) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date and the only remaining right of the
Holders is to receive payment of the
<PAGE>
Redemption Price plus accrued interest to the Redemption Date upon surrender of
the Notes to the Paying Agent;
(g) that, if any Note is being redeemed in part, the portion
of the principal amount (equal to $1,000 in principal amount or any
integral multiple thereof) of such Note to be redeemed and that, on and
after the Redemption Date, upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion thereof will
be reissued; and
(h) that, if any Note contains a CUSIP, CINS, ISIN or other
identification number as provided in Section 2.14, no representation is
being made as to the correctness of the CUSIP, CINS, ISIN or other
identification number either as printed on the Notes or as contained in
the notice of redemption and that reliance may be placed only on the
other identification numbers printed on the Notes.
At the Company's request contained in a Company Order (which
request may be revoked by the Company at any time prior to the time at which the
Trustee shall have given such notice to the Holders), made to the Trustee at
least 15 days before mailing the notice to Holders referred to in Section 3.01,
the Trustee shall give such notice of redemption in the name and at the expense
of the Company. If, however, the Company gives such notice to the Holders, the
Company shall concurrently deliver to the Trustee an Officers' Certificate
stating that such notice has been given. Notice of redemption shall be deemed to
be given when mailed, whether or not the Holder receives the notice. In any
event, failure to give such notice, or any defect therein, shall not affect the
validity of the proceedings for the redemption of Notes held by Holders to whom
such notice was properly given.
SECTION 3.05. Deposit of Redemption Price . On or prior to any
Redemption Date, the Company shall deposit with the Paying Agent (or, if the
Company is acting as its own Paying Agent, shall segregate and hold in trust as
provided in section 2.05) money sufficient to pay the Redemption Price of, and
accrued and unpaid interest on all Notes to be redeemed on that date other than
Notes or portions thereof called for redemption on that date that have been
delivered by the Company to the Trustee for cancellation.
SECTION 3.06. Payment of Notes Called for Redemption . If
notice of redemption has been given to Holders in the manner provided above, the
Notes or portion of Notes specified in such notice to be redeemed shall become
irrevocably due and payable on the Redemption Date at the Redemption Price
stated therein, together with accrued interest to such Redemption Date, and on
and after any such Redemption Date (unless the Company shall default in the
payment of Notes to be redeemed on such date at the Redemption Price, plus
accrued interest to the Redemption Date, in which case the principal, until
paid, shall bear interest from the Redemption Date at the rate prescribed in the
Notes), such Notes shall cease to accrue interest. Upon surrender of any Note
for redemption in accordance with a notice of redemption, such Note shall be
paid and redeemed by the Company at the Redemption Price, plus accrued interest
to the Redemption Date, provided that installments of interest whose Stated
Maturity is
<PAGE>
on or prior to the Redemption Date shall be payable to the Holders registered
as such at the close of business on the relevant Regular Record Date.
SECTION 3.07. Notes Redeemed in Part . Upon cancellation of
any Note that is redeemed in part, the Company shall issue and the Trustee shall
authenticate and deliver to the Holder a new Note equal in principal amount to
the unredeemed portion of such surrendered Note.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes . The Company shall pay the
principal of, premium, if any, and interest on the Notes on the dates and in the
manner provided in the Notes and this Indenture. An installment of principal,
premium or interest shall be considered paid on the date due if the Trustee or
Paying Agent (other than the Company, a Subsidiary of the Company, or any
Affiliate of any of them) holds as of 10:00AM New York City time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay the installment.
SECTION 4.02. Issuances of Guarantees by New Restricted
Subsidiaries. The Company will provide to the Trustee, on the date that any
Person becomes a Restricted Subsidiary, a supplemental indenture to this
Indenture, 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 this Indenture; 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.
SECTION 4.03. 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
<PAGE>
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 Guarantee 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 Guarantee
are refinanced in part or the Indebtedness to be refinanced is pari
passu with the Notes or the Note Guarantee, 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 Guarantee, 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 Guarantee, 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 Guarantee at least to the
extent that the Indebtedness to be refinanced is subordinated to the
Notes or the Note Guarantee, 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 disposition of
<PAGE>
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 in Section 8.02 of this
Indenture; (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 Section
4.07 of this Indenture;
(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 Section 4.04 of this Indenture);
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 Section covenant, the
maximum amount of Indebtedness that the Company or a Restricted Subsidiary may
incur pursuant to this Section 4.03 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 Section 4.03, (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 Section 4.09
of this Indenture shall not be treated as Indebtedness. For purposes of
determining compliance with this Section 4.03, 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
Section 4.11 of this Indenture,
<PAGE>
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
Section 4.03 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.
SECTION 4.04. 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, 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 Guarantee (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 Section 4.03 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 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
<PAGE>
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 Section 4.03, 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 Section 4.03;
(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 Series A Preferred Stock which were issued pursuant
to the exercise of options that were outstanding on the Closing
<PAGE>
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 Section 4.03; 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
Section 4.04 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
Section 4.04 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).
SECTION 4.05. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries . The Company will not, and will
not permit any Restricted Subsidiary to, create or otherwise cause or suffer to
exist or become effective any consensual
<PAGE>
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions permitted by
applicable law on any Capital Stock of such Restricted Subsidiary owned by the
Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to
the Company or any other Restricted Subsidiary, (iii) make loans or advances to
the Company or any other Restricted Subsidiary or (iv) transfer any of its
property or assets to the Company or any other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances
or restrictions:
(i) existing on the Closing Date in this Indenture or any
other agreements in effect on the Closing Date, and any extensions,
refinancings, renewals or replacements of such agreements; provided
that the encumbrances and restrictions in any such extensions,
refinancings, renewals or replacements are no less favorable in any
material respect to the Holders than those encumbrances or restrictions
that are then in effect and that are being extended, refinanced,
renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or
assets of such Person acquired by the Company or any Restricted
Subsidiary and existing at the time of such acquisition, which
encumbrances or restrictions are not applicable to any Person or the
property or assets of any Person other than such Person or the property
or assets of such Person so acquired;
(iv) in the case of clause (iv) of the first paragraph of this
Section 4.05, (A) that restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is a lease,
license, conveyance or contract or similar property or asset, (B)
existing by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of the
Company or any Restricted Subsidiary not otherwise prohibited by this
Indenture or (C) arising or agreed to in the ordinary course of
business, not relating to any Indebtedness, and that do not,
individually or in the aggregate, detract from the value of property or
assets of the Company or any Restricted Subsidiary in any manner
material to the Company or any Restricted Subsidiary; or
(v) with respect to a Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock of, or
property and assets of, such Restricted Subsidiary. Nothing contained
in this Section 4.05 shall prevent the Company or any Restricted
Subsidiary from (1) creating, incurring, assuming or suffering to exist
any Liens otherwise permitted in Section 4.09 or (2) restricting the
sale or other disposition of property or assets of the Company or any
of its Restricted Subsidiaries that secure Indebtedness of the Company
or any of its Restricted Subsidiaries.
<PAGE>
SECTION 4.06. Limitation on the Issuance 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 Section 4.04, 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 Section 4.11 of this Indenture;
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.
SECTION 4.07. Limitation on Issuances of Guarantees by
Restricted Subsidiaries . The Company will not permit any Restricted Subsidiary,
directly or indirectly, to Guarantee any Indebtedness of the Company which is
pari passu with or subordinate in right of payment to the Notes ("Guaranteed
Indebtedness"), unless such Restricted Subsidiary waives and will not in any
manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such Restricted
Subsidiary under its Subsidiary Guarantee; provided that this paragraph shall
not be applicable to any Guarantee of any Restricted Subsidiary that existed at
the time such Person became a Restricted Subsidiary and was not Incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary. If the Guaranteed Indebtedness is (A) pari passu with the Notes or
the Note Guarantee, then the Guarantee of such Guaranteed Indebtedness shall be
pari passu with, or subordinated to, the Subsidiary Guarantee or (B)
subordinated to the Notes or the Note Guarantee, then the Guarantee of such
Guaranteed Indebtedness shall be subordinated to the Subsidiary Guarantee at
least to the extent that the Guaranteed Indebtedness is subordinated to the
Notes or the Note Guarantee, as the case may be.
SECTION 4.08. 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
<PAGE>
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 Section 4.04 or (vii) Kingston's and Matra's rights to commissions
and other payments under sales representation 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 as the
terms of agreements in effect on the Closing Date. Notwithstanding the
foregoing, any transaction covered by the first paragraph of this Section 4.08
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.
SECTION 4.09. 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;
<PAGE>
(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 (iii) of the second paragraph of Section 4.03 of this Indenture;
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.
SECTION 4.10. 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 Section 4.11 of this Indenture.
SECTION 4.11. 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 Section 4.18, then
the Company shall or shall
<PAGE>
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 Section 4.11. 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 Section 4.11 totals at least $10 million, the Company must
commence, not later than the fifteenth Business Day of such month, and
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 101% of the Accreted Value of the Notes, plus, in each
case, accrued interest (if any) to the Payment Date.
SECTION 4.12. Maintenance of Office or Agency. The Company
will maintain an office or agency where the Notes may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby initially designates the Corporate Trust
Office of the Trustee as such office of the Company in accordance with Section
2.03.
<PAGE>
SECTION 4.13. Repurchase of Notes upon a Change of Control.
The Company shall 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 the Accreted Value of the Notes, plus accrued
interest (if any) to the Payment Date.
SECTION 4.14. Existence . Subject to Articles Four and Five of
this Indenture, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of
each Restricted Subsidiary in accordance with the respective organizational
documents of the Company and each such Restricted Subsidiary and the rights
(whether pursuant to charter, partnership certificate, agreement, statute or
otherwise), licenses and franchises of the Company and each such Restricted
Subsidiary, provided that the Company shall not be required to preserve any such
right, license or franchise, or the existence of any Restricted Subsidiary
(other than of the Company), if the maintenance or preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Restricted Subsidiaries taken as a whole; and provided further, that any
Restricted Subsidiary may consolidate with, merge into, or sell, convey
transfer, lease, or otherwise dispose of all or part of its property and assets
to the Company or any Wholly Owned Restricted Subsidiary.
SECTION 4.15. Payment of Taxes and Other Claims . The Company
will pay or discharge and shall cause each Restricted Subsidiary to pay or
discharge, or cause to be paid or discharged, before the same shall become
delinquent (i) all material taxes, assessments and governmental charges levied
or imposed upon (a) the Company or any such Restricted Subsidiary, (b) the
income or profits of any such Restricted Subsidiary which is a corporation or
(c) the property of the Company or any such Restricted Subsidiary and (ii) all
material lawful claims for labor, materials and supplies that, if unpaid, might
by law become a Lien upon the property of the Company or any such Restricted
Subsidiary, provided that the Company shall not be required to pay or discharge,
or cause to be paid or discharged, any such tax, assessment, charge or claim the
amount, applicability or validity of which is being contested in good faith by
appropriate proceedings or by the Company and its Restricted Subsidiaries where
the failure to effect such payment is not adverse in any material respect to the
Holders.
SECTION 4.16. Maintenance of Properties and Insurance . 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
<PAGE>
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 Section 4.16 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 Section 4.16 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 Section 4.16 shall be applied, within 90 days, to
reduce Indebtedness of the Company or shall constitute "Excess Proceeds" for
purposes of Section 4.11.
The Company shall further provide or cause to be provided, for
itself and its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds considered reasonable by the
Company in the conduct of its business.
The Company will cause all properties owned by the Company or
any Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section 4.16
shall prevent the Company from discontinuing the maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
<PAGE>
SECTION 4.17. Compliance Certificates . The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture. For
purposes of this Section 4.17, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 4.18. 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 Notes 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.
SECTION 4.19. Waiver of Stay, Extension or Usury Laws . The
Company covenants (to the extent that it may lawfully do so) that it shall not
at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of, premium, if any, or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture, and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 4.20. Calculation of Original Issue Discount and
Certain Information Concerning Tax Reporting. The Company will deliver to the
Trustee, within 40 days of the date of original issuance of the Notes, an
Officers' Certificate, setting forth (i) the amount of the original issue
discount on the Notes, expressed as a U.S. dollar amount per $1,000 of principal
amount at Stated Maturity, (ii) the yield to maturity for the Notes, and (iii) a
table of the amount of the original issue discount on the Notes, expressed as a
U.S. dollar amount per $1,000 of principal amount at Stated Maturity, accrued
for each day from the date of original issuance of the Notes to their Stated
Maturity.
On or before December 15 of each year during which any Notes
are outstanding, the Company shall furnish to the Trustee such information as
may be reasonably requested by the Trustee in order that the Trustee may prepare
the information which it is required to report for such year on Internal Revenue
Service Forms 1096 and 1099 pursuant to Section 6049 of the Internal Revenue
Code of 1986, as amended. Such information shall include the amount of original
issue discount includable in income for each $1,000 of principal amount at
Stated Maturity of outstanding Notes during such year.
<PAGE>
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. 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
Indenture;
(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 Section 4.03;
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,
<PAGE>
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 Section
5.01 shall not apply to the Merger.
SECTION 5.02. Successor Substituted . Upon any consolidation
or merger, or any sale, conveyance, transfer or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Notes.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default . An "Event of Default" shall
occur with respect to the Notes if:
(a) default in the payment of principal of (or premium, if
any, on) any Note when the same becomes due and payable at maturity,
upon acceleration, redemption or otherwise;
(b) default in the payment of interest on any Note 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 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
Section 5.01 of this Indenture or the failure to make or consummate an
Offer to Purchase in accordance with Section 4.11 or Section 4.13 of
this Indenture;
(d) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture or under
the Notes (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 Trustee or the Holders of
25% or more in aggregate principal amount at maturity of the Notes;
<PAGE>
(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, 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 Note 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
<PAGE>
(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.
SECTION 6.02. Acceleration . 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 Indenture, the
Trustee or the Holders of at least 25% in aggregate principal amount at maturity
of the Notes then outstanding, by written notice to the Company (and to the
Trustee if such notice is given by the Holders), may, and the Trustee at the
request of such Holders shall, declare the Accreted Value of, premium, if any,
and accrued interest on the Notes to be immediately due and payable. Upon a
declaration of acceleration, such principal amount 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
Guarantor, the Company or the relevant 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 Guarantor or the Company, the
Accreted Value 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 Trustee or any Holder.
SECTION 6.03. Other Remedies . If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy by proceeding at
law or in equity to collect the payment of Accreted Value of, premium, if any,
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults . Subject to Section
9.02, at any time after a declaration of acceleration, but before a judgment or
decree for the payment of the money due has been obtained by the Trustee, the
Holders of at least a majority in principal amount of the outstanding Notes at
maturity, by notice to the Trustee, may waive all past Defaults and Events of
Default and rescind and annul a declaration of acceleration (except a Default in
the payment of Accreted Value of, premium, if any, interest on any Note as
specified in clause (a) or (b) of Section 6.01 (but not as a result of such
acceleration) or in respect of a covenant or provision of this Indenture which
cannot be modified or amended without the consent of the holder of each
outstanding Note affected) if all existing Events of Default, other than the
nonpayment of Accreted Value of, premium, if any, interest on the Notes that
have become due solely by such declaration of acceleration, have been cured or
waived and the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto
<PAGE>
SECTION 6.05. Control by Majority . The Holders of at least a
majority in aggregate principal amount at maturity of the outstanding Notes may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that may involve the Trustee in personal liability,
or that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders of Notes 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 Notes.
SECTION 6.06. Limitation on Suits . A Holder may not pursue
any remedy with respect to this Indenture 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 Trustee
to pursue the remedy;
(iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense;
(iv) the 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 Notes do not
give the Trustee a direction that is inconsistent with the request.
SECTION 6.07. Rights of Holders to Receive Payment . Subject
to Sections 6.04 and 9.02, notwithstanding any other provision of this
Indenture, the right of any Holder of a Note to receive payment of Accreted
Value of, premium, if any, or interest on, such Note or to bring suit for the
enforcement of any such payment or after the due date expressed in the Notes
shall not be impaired or affected without the consent of such Holder provided,
however, that no recourse for the payment of the Accreted Value 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 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.
SECTION 6.08. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
<PAGE>
(a) default is made in the payment of any installment of
interest on any Note when such interest becomes due and payable and
such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee for the benefit
of the Holders of such Notes, the whole amount then due and payable on such
Notes for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of interest,
at the rate borne by the Notes, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.09. Trustee May File Proofs of Claim . In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Notes or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Notes and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
<PAGE>
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities . If the Trustee collects any money
pursuant to this Article Six, it shall pay out the money in the following order:
First: to the Trustee for all amounts due under Section 7.07;
Second: to Holders for amounts then due and unpaid for
principal of, premium, if any, and interest, if any, on the Notes in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Notes for principal,
premium, if any, and interest, if any, respectively; and
Third: the balance, if any, to the Person or Persons entitled
thereto.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment to Holders pursuant to this
Section 6.10.
[SECTION 6.11. Undertaking for Costs . In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking to pay the costs
of the suit, and the court may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 of this Indenture, or a suit by Holders of more than
10% in principal amount of the outstanding Notes.]
[SECTION 6.12. Restoration of Rights and Remedies . If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then, and in every such case, subject to any
<PAGE>
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Company, the Trustee and the Holders
shall continue as though no such proceeding had been instituted.]
SECTION 6.13. Rights and Remedies Cumulative . Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in Section 2.08, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.14. Delay or Omission Not Waiver . No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Six or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General . The duties and responsibilities of the
Trustee shall be as provided by the TIA and as set forth herein. Whether or not
herein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Article Seven.
SECTION 7.02. Certain Rights of Trustee . Subject to TIA
Sections 315(a) through (d):
(a) except during the continuance of an Event of Default, the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee and in the
absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth and correctness of the statements and certificates or opinions furnished
to it and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture;
(b) in case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the
<PAGE>
same degree of care and skill in its exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs;
(c) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(d) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers
Certificate;
(e) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(f) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(g) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(8) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(9) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment
<PAGE>
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 7.03. Individual Rights of Trustee . The Trustee, in
its individual or any other capacity, may become the owner or pledgee of Notes
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 7.04. Trustee's Disclaimer . The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture or the Notes,
(ii) shall not be accountable for the Company's use or application of the
proceeds from the Notes and (iii) shall not be responsible for any statement
contained herein or in the Notes other than its certificate of authentication.
The Trustee shall not be charged with knowledge of any Default or Event of
Default unless (i) a Responsible Officer of the Trustee assigned to its
Corporate Trustee Administration Department (or successor department or group)
shall have actual knowledge thereof or (ii) the Trustee shall have received
written notice thereof at its Corporate Trust office from the Company or any
Holder. No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
SECTION 7.05. Notice of Default . If any Default or any Event
of Default occurs and is continuing and if such Default or Event of Default is
known to a trust officer of the Trustee, the Trustee shall mail to each Holder
in the manner and to the extent provided in TIA Section 313(c) notice of such
Default or Event of Default within 90 days after it occurs, unless such Default
or Event of Default has been cured; provided, however, that, except in the case
of a default in the payment of the principal of, premium, if any, or interest on
any Note, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders . To the extent
required by TIA Section 313(a), within 60 days after May 15 of each year
commencing with 1997 and for as long as there are Notes outstanding hereunder,
the Trustee shall mail to each Holder the Trustee's brief report dated as of
such date that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Section 313(b) and TIA Section 313(c) and (d). A copy of such report at
the time of its mailing to Holders shall be filed with the Commission, if
required, and each stock exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes
become listed on any stock exchange, and the Trustee shall comply with TIA
Section 313(d).
<PAGE>
SECTION 7.07. Compensation and Indemnity . The Company shall
pay to the Trustee from time to time such reasonable compensation as shall be
agreed upon in writing for its services. The reasonable compensation of the
Trustee shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses and advances incurred or made by the Trustee.
Such expenses shall include the reasonable compensation and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability or expense incurred by it without
negligence or bad faith on its part in connection with the acceptance or
administration of this Indenture and its duties under this Indenture and the
Notes, including, without limitation, the costs and expenses of defending itself
against any claim or liability and of complying with any process served upon it
or any of its officers in connection with the exercise or performance of any of
its powers or duties under this Indenture and the Notes.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of, premium, if any, and interest on
particular Notes.
Without prejudice to any other rights available to the Trustee
under applicable law, if the Trustee incurs expenses or renders services after
the occurrence of an Event of Default specified in clause (g) or (h) of Section
6.01, the expenses and the compensation for the services will be intended to
constitute expenses of administration under Title 11 of the United States
Bankruptcy Code or any applicable federal or state law for the relief of
debtors.
SECTION 7.08. Replacement of Trustee . A resignation or
removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section 7.08.
The Trustee may resign at any time by so notifying the Company
in writing at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee by so notifying the Trustee in writing and may appoint a successor
Trustee with the consent of the Company.
The Company may at any time remove the Trustee, by Issuer
Order given at least 30 days prior to the date of the proposed removal; provided
that at such date no Event of Default shall have occurred and be continuing.
Except as provided in the second sentence of the preceding
paragraph, if the Trustee resigns or is removed, or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company. If
the
<PAGE>
successor Trustee does not deliver its written acceptance required by the next
succeeding paragraph of this Section 7.08 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in principal amount of the outstanding Notes may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, subject to the lien provided in Section
7.07, (i) the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee shall become effective and (iii) the successor Trustee shall have all
the rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder.
Subject to Section 6.11, if the Trustee is no longer qualified
or eligible under Section 7.10, any Holder who satisfies the requirements of TIA
Section 310(b) may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
The Company shall give notice of any resignation and any
removal of the Trustee and each appointment of a successor Trustee to all
Holders. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue
indefinitely for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION 7.10. Eligibility . This Indenture shall always have a
Trustee that satisfies the requirements of TIA Section 310(a)(1) and (5). The
Trustee shall have a combined capital and surplus of at least $100,000,000 as
set forth in its most recent published annual report of condition. The Trustee
shall be subject to TIA Section 310(b), subject to the penultimate paragraph
thereof.
SECTION 7.11. Money Held in Trust . The Trustee shall not be
liable for interest on any money received by it except as the Trustee may agree
in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law, and except for
money held in trust under Article Eight of this Indenture.
<PAGE>
SECTION 7.12. Withholding Taxes . The Trustee, as agent for
the Company, shall exclude and withhold from each payment of principal and
interest and other amounts due hereunder or under the Notes any and all U.S.
withholding taxes applicable thereto as required by law. The Trustee agrees to
act as such withholding agent and, in connection therewith, whenever any present
or future taxes or similar charges are required to be withheld with respect to
any amounts payable in respect of the Notes, to withhold such amounts and timely
pay the same to the appropriate authority in the name of and on behalf of the
Holders of the Notes, that it will file any necessary withholding tax returns or
statements when due, and that, as promptly as possible after the payment
thereof, it will deliver to each Holder of a Note appropriate documentation
showing the payment thereof, together with such additional documentary evidence
as such Holders may reasonably request from time to time.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations . Except as
otherwise provided in this Section 8.01, each of the Company may terminate its
obligations under the Notes and this Indenture if:
(a) all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes that have been replaced or Notes
for whose payment money or securities have theretofore been held in
trust and thereafter repaid to the Company, as provided in Section
8.05) have been delivered to the Trustee for cancellation and the
Company has paid all sums payable by it hereunder; or
(b) (i) all such Notes mature within one year or all of them
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (ii)
the Company irrevocably deposits in trust with the Trustee during such
one-year period, under the terms of an irrevocable trust agreement in
form satisfactory to the Trustee, as trust funds solely for the benefit
of the Holders of such Notes for that purpose, money or U.S. Government
Obligations sufficient (in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee), without consideration of any
reinvestment of any interest thereon, to pay Accreted Value, premium,
if any, and interest on such Notes to maturity or redemption, as the
case may be, and to pay all other sums payable by it hereunder, (iii)
no Default or Event of Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit, (iv) such
deposit will not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound [, (v) if at such
time the Notes are listed on a national securities exchange, the Notes
will not be delisted as a result of such deposit, defeasance and
discharge,] [and] [(v)] [(vi)] the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein relating to
the satisfaction and discharge of this Indenture have been complied
with.
<PAGE>
With respect to the foregoing clause (a), the Company's
obligations under Section 7.07 shall survive. With respect to the foregoing
clause (b), the Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06,
2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall
survive until the Notes have matured or have been redeemed. Thereafter, only the
Company's obligations in Sections 7.07, 8.05 and 8.06 shall survive. After any
such irrevocable deposit, the Trustee upon request shall acknowledge in writing
the discharge of the Company's obligations under the Notes and this Indenture,
and the Guarantor's obligations under the Guarantee and this Indenture, except
for those surviving obligations specified above.
SECTION 8.02. Defeasance and Discharge of Indenture. The Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Notes on the 123rd day after the date of the deposit referred to
in clause (a) of this Section 8.02 if:
(a) with reference to this Section 8.02, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee and has conveyed all right, title and interest for the benefit
of the Holders, under the terms of an irrevocable trust agreement in
form satisfactory to the Trustee as trust funds in trust, specifically
pledged to the Trustee for the benefit of the Holders as security for
payment of the Accreted Value of, premium, if any, and interest, if
any, on the Notes, and dedicated solely to, the benefit of the Holders,
in and to (i) money in an amount, (ii) U.S. Government Obligations
that, through the payment of interest, premium, if any, and Accreted
Value in respect thereof in accordance with their terms, will provide,
not later than one day before the due date of any payment referred to
in this clause (a), money in an amount or (iii) a combination thereof
in an amount sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, without
consideration of the reinvestment of such interest and after payment of
all federal, state and local taxes or other charges and assessments in
respect thereof payable by the Trustee, the Accreted Value of, premium,
if any, and accrued interest on the outstanding Notes at the Stated
Maturity of such Accreted Value or interest or upon earlier redemption;
provided that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such U.S. Government Obligations to
the payment of such Accreted Value, premium, if any, and interest with
respect to the Notes and to give any related notice of redemption;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or 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;
(c) immediately after giving effect to such deposit on a pro
forma basis, no Default or Event of Default, or event that after the
giving of notice or lapse of time or both could become a Default or
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;
<PAGE>
(d) the Company shall have delivered to the Trustee (i) either
(A) a ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders will not recognize additional
income, gain or loss for federal income tax purposes as a result of the
Company's exercise of its option under this Section 8.02 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 option had
not been exercised or (B) an Opinion of Counsel to the same effect as
the ruling described in clause (A) above accompanied by a ruling to
that effect published by the Internal Revenue Service, unless there has
been a change in the applicable federal income tax law since the date
of this Indenture such that a ruling from the Internal Revenue Service
is no longer required and (ii) an Opinion of Counsel to the effect that
(A) the creation of the defeasance trust does not violate the
Investment Company Act of 1940 and (B) after the passage of 123 days
following the deposit (except, with respect to any trust funds for the
account of any Holder who may be deemed to be "connected" with the
Company for purposes of the Insolvency Act 1986 after two years
following the deposit), the trust funds 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 and either (I) the trust
funds will no longer remain the property of the Company (and therefore
will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally) or (II) if a court were to rule under any such law in any
case or proceeding that the trust funds remained property of the
Company (a) assuming such trust funds remained in the possession of the
Trustee prior to such court ruling to the extent not paid to the
Holders, the Trustee will hold, for the benefit of the Holders, a valid
and perfected security interest in such trust funds that is not
avoidable in bankruptcy or otherwise and (b) no property, rights in
property or other interests granted to the Trustee or the Holders in
exchange for, or with respect to, such trust funds will be subject to
any prior rights of holders of other Indebtedness of the Company or any
of its Notes;
(e) if at such time the Notes are listed on a national
securities exchange, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Notes will not be delisted as
a result of the Company's exercise of its opinion under this Section
8.02; and
(f) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
defeasance contemplated by this Section 8.02 have been complied with.
Notwithstanding the foregoing, prior to the end of the post
deposit period referred to in clause (d)(ii)(B) of this Section 8.02, none of
the Company's obligations under this Indenture shall be discharged. Subsequent
to the end of such period with respect to this Section 8.02, the Company's
obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.14,
4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the Notes mature
or are redeemed. Thereafter, only the Company's obligations in Sections 7.07,
8.05 and 8.06 shall survive. If and when a ruling from the Internal Revenue
Service or an Opinion of Counsel
<PAGE>
referred to in clause (d)(i) of this Section 8.02 may be provided specifically
without regard to, and not in reliance upon, the continuance of the Company's
obligations under the first sentence of Section 4.01, then the Company's
obligations under such sentence shall cease upon delivery to the Trustee of such
ruling or Opinion of Counsel and compliance with the other conditions precedent
provided for herein relating to the defeasance contemplated by this Section
8.02.
After any such irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Notes, any Subsidiary Guarantee, if any, and this Indenture except for those
surviving obligations in the immediately preceding paragraph.
SECTION 8.03. Defeasance of Certain Obligations . The Company
may omit to comply with any term, provision or condition set forth in clauses
(iii) and (iv) of Section 5.01 and Sections 4.03 through 4.17 (except for any
covenant otherwise required by the TIA), and clauses (c) and (d) of Section 6.01
with respect to clauses (iii) and (iv) of Section 5.01, clause (e) of Section
6.01 with respect to Sections 4.03 through 4.17, except as aforesaid, and clause
(f) of Section 6.01 shall be deemed not to be Events of Default, in each case
with respect to the outstanding Notes if:
(a) with reference to this Section 8.03, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee and conveyed all right, title and interest to the Trustee for
the benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the benefit of
the Holders as security for payment of the Accreted Value of, premium,
if any, and interest, if any, on the Notes, and dedicated solely to,
the benefit of the Holders, in and to (i) money in an amount, (ii) U.S.
Government Obligations that, through the payment of interest and
Accreted Value in respect thereof in accordance with their terms, will
provide, not later than one day before the due date of any payment
referred to in this clause (a), money in an amount or (iii) a
combination thereof in an amount sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, the
Accreted Value of, premium, if any, and interest on the outstanding
Notes on the Stated Maturity or upon earlier redemption of such
Accreted Value or interest; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of such Accreted Value, premium,
if any, and interest with respect to the Notes and to give any related
notice of redemption;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or 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;
<PAGE>
(c) immediately after giving effect to such deposit or a pro
forma basis, no Default or Event of Default, or event that after the
giving of notice or lapse of time or both would become a Default or
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 day
of such deposit;
(d) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (i) the creation of the defeasance trust
does not violate the Investment Company Act of 1940, (ii) the Holders
will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit and the defeasance of the obligations
referred to in the first paragraph of this Section 8.03 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 and (iii) after the passage of 123 days
following the deposit (except with respect to any trust funds for the
account of any Holder who may be deemed to be "connected" with the
Company for purposes of the Insolvency Act 1986 after two years
following the deposit), the trust funds 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, and either (A) the trust
funds will no longer remain the property of the Company (and therefore
will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditor's rights
generally) or (B) if a court were to rule under any such law in any
case or proceeding that the trust funds remained property of the
Company (1) assuming such trust funds remained in the possession of the
Trustee prior to such court ruling to the extent not paid to the
Holders, the Trustee will hold, for the benefit of the Holders, a valid
and perfected security interest in such trust funds that is not
avoidable in bankruptcy or otherwise and (2) no property, rights in
property or other interests granted to the Trustee or the Holders in
exchange for, or with respect to, such trust funds will be subject to
any prior rights or holders of other Indebtedness of the Company or any
of its Notes;
(e) if at such time the Notes are listed on a national
securities exchange, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Notes will not be delisted as
a result of the Company's exercise of its option under Section 8.03;
and
(f) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.03 have been complied with.
SECTION 8.04. Application of Trust Money. Subject to Section
8.06, the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, and shall apply the deposited money and the money from U.S.
Government Obligations in accordance with the Notes and this Indenture to the
payment of Accreted Value of, premium, if any, and interest on the Notes; but
such money need not be segregated from other funds except to the extent required
by law.
<PAGE>
SECTION 8.05. Repayment to Company . Subject to Sections 7.07,
8.01, 8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any excess money held
by them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the Company
any money held by them for the payment of Accreted Value, premium, if any, or
interest that remains unclaimed for two years; provided that the Trustee or such
Paying Agent before being required to make any payment may cause to be published
at the expense of the Company once in a newspaper of general circulation in the
City of New York or mail to each Holder entitled to such money notice that such
money remains unclaimed and that after a date specified therein (which shall be
at least 30 days from the date of such publication or mailing) any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Holders entitled to such money must look to the Company
for payment as general creditors unless an applicable law designates another
Person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease.
SECTION 8.06. Reinstatement . If the Trustee or Paying Agent
is unable to apply any money or U.S. Government Obligations in accordance with
Section 8.01, 8.02 or 8.03, as the case may be, by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture, the Guarantee, and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Section
8.01, 8.02 or 8.03, as the case may be, until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 8.01, 8.02 or 8.03, as the case may be; provided that,
if the Company has made any payment of Accreted Value of, premium, if any, or
interest on any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders . The Company, when
authorized by Board Resolution, and the Trustee may amend or supplement this
Indenture, and the Notes without notice to, or the consent of, any Holder:
(a) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
adversely affect the interests of the Holders in any material respect;
(b) to comply with Article Five;
(c) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company; or
<PAGE>
;
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes;
(e) to add any additional Events of Default; or
(f) to add a Guarantor.
SECTION 9.02. With Consent of Holders . Subject to Sections
6.04 and 6.07 and without prior notice to the Holders, the Company, when
authorized by its Board of Directors (as evidenced by a Board Resolution), and
the Trustee may amend this Indenture and the Notes with the consent of the
Holders of not less than a majority in aggregate principal amount at maturity of
the Notes then outstanding.
Notwithstanding the provisions of this Section 9.02, without
the consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(i) change the Stated Maturity of the principal at maturity
of, or any installment of interest on, any Note;
(ii) reduce the Accreted Value of, or premium, if any, or
interest on, any Note;
(iii) change the place or currency of payment of principal at
maturity 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 Notes
the consent of whose Holders is necessary to modify or amend the
Indenture;
(vi) waive a default in the payment of principal at maturity
of, premium, if any, or interest on the Notes;
(vii) reduce the percentage or aggregate principal at maturity
amount at maturity of outstanding Notes the consent of whose Holders is
necessary for waiver of compliance with certain provisions of the
Indenture or for waiver of certain defaults; or
(viii) release the Guarantors from their Note Guarantees.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
<PAGE>
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing such amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. Revocation and Effect of Consent . Until an
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the Note of the consenting
Holder, even if notation of the consent is not made on any Note. However, any
such Holder or subsequent Holder may revoke the consent as to its Note or
portion of its Note. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date any such amendment, supplement
or waiver becomes effective. An amendment, supplement or waiver shall become
effective on receipt by the Trustee of written consents from the Holders of the
requisite percentage in principal amount of the outstanding Notes.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders of Certificated Notes entitled
to consent to any amendment, supplement or waiver. If a record date is fixed,
then, notwithstanding the last two sentences of the immediately preceding
paragraph, those persons who were Holders of Certificated Notes at such record
date (or their duly designated proxies) and only those persons shall be entitled
to consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be Holders of such
Certificated Notes after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder unless it is of the type described in any of clauses (a)
through (h) of Section 9.02. In case of an amendment or waiver of the type
described in clauses (a) through (h) of Section 9.02, the amendment or waiver
shall bind each Holder who has consented to it and every subsequent Holder of a
Note that evidences the same indebtedness as the Note of such consenting Holder.
SECTION 9.04. Notation on or Exchange of Notes . If an
amendment, supplement or waiver changes the terms of a Note, the Trustee may
require the Holder to deliver such Note to the Trustee. The Trustee may place an
appropriate notation on the Note about the changed terms and return it to the
Holder and the Trustee may place an appropriate notation on any Note thereafter
authenticated. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Note shall issue and the Trustee shall authenticate
a new Note that reflects the changed terms.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article Nine is authorized or permitted by
this Indenture. The Trustee shall execute any such amendment, supplement or
waiver upon satisfaction of the conditions precedent thereto contained herein,
<PAGE>
unless such amendment, supplement or waiver adversely affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.06. Conformity with Trust Indenture Act . Every
supplemental indenture executed pursuant to this Article Nine shall conform to
the requirements of the TIA as then in effect.
ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01. Guarantee . Subject to the provisions of this
Article Eleven, the Guarantors hereby fully, unconditionally and irrevocably
guarantee to each Holder and to the Trustee on behalf of the Holders: (i) the
due and punctual payment of the Accreted Value of, premium, if any, and accrued
interest on each Note, when and as the same shall become due and payable,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue Accreted Value of and interest, if any, on the Notes,
to the extent lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee, all in accordance with
the terms of such Note and this Indenture [and (ii) in the case of any extension
of time of payment or renewal of any Notes or any of such other obligations,
that the same will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, at Stated Maturity, by acceleration
or otherwise]. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company, the
benefit of discussion, protest or notice with respect to any such Note or the
debt evidenced thereby and all demands whatsoever, and covenants that this
Guarantee will not be discharged as to any such Note except by payment in full
of the principal thereof and interest thereon and as provided in Section 8.01
and Section 8.02 (subject to Section 8.06). The maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six for the purposes
of this Article Eleven. In the event of any declaration of acceleration of such
obligations as provided in Article Six, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantor for the purpose
of this Article Eleven. In addition, without limiting the foregoing provisions,
upon the effectiveness of an acceleration under Article Six, the Trustee shall
promptly make a demand for payment on the Notes under the Guarantee provided for
in this Article Eleven.
If the Trustee or the Holder of any Note is required by any
court or otherwise to return to the Company or the Guarantor, or any custodian,
receiver, liquidator, trustee, sequestrator or other similar official acting in
relation to the Company or the Guarantor, any amount paid to the Trustee or such
Holder in respect of a Note, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. The Guarantor further
agrees, to the fullest extent that it may lawfully do so, that, as between it,
on the one hand, and the Holders and the Trustee, on the other hand, the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six hereof for the purposes of this Guarantee,
<PAGE>
notwithstanding any stay, injunction or other prohibition extant under any
applicable bankruptcy law preventing such acceleration in respect of the
obligations guaranteed hereby.
The Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of its obligations under this
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Holders against the Company
or any collateral which any such Holder or the Trustee on behalf of such Holder
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including, without limitation, the
right to take or receive from the Company, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to the
Guarantor in violation of the preceding sentence and the Accreted Value of,
premium, if any, and accrued interest on the Notes shall not have been paid in
full, such amount shall be deemed to have been paid to the Guarantor for the
benefit of, and held in trust for the benefit of, the Holders, and shall
forthwith be paid to the Trustee for the benefit of the Holders to be credited
and applied upon the Accreted Value of, premium, if any, and accrued interest on
the Notes. The Guarantor acknowledges that it will receive direct and indirect
benefits from the issuance of the Notes pursuant to this Indenture and that the
waivers set forth in this Section 10.01 are knowingly made in contemplation of
such benefits.
The Guarantee set forth in this Section 10.01 shall not be
valid or become obligatory for any purpose with respect to a Note until the
certificate of authentication on such Note shall have been signed by or on
behalf of the Trustee.
SECTION 10.02. Obligations Unconditional . Subject to Section
10.05, nothing contained in this Article Eleven or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as among the Guarantor and the
holders of the Notes, the obligation of the Guarantor, which is absolute and
unconditional, upon failure by the Company, to pay to the holders of the Notes
the Accreted Value of, premium, if any, and interest on the Notes as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holders of the Notes and
creditors of the Guarantor, nor shall anything herein or therein prevent the
holder of any Notes or the Trustee on their behalf from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture.
Without limiting the foregoing, nothing contained in this
Article Eleven will restrict the right of the Trustee or the holders of the
Notes to take any action to declare the Guarantee to be due and payable prior to
the Stated Maturity of the Notes pursuant to Section 6.02 or to pursue any
rights or remedies hereunder.
SECTION 10.03. Notice to Trustee . The Guarantor shall give
prompt written notice to the Trustee of any fact known to the Guarantor which
would prohibit the making of
<PAGE>
any payment to or by the Trustee in respect of the Guarantee pursuant to the
provisions of this Article Eleven.
SECTION 10.04. This Article Not to Prevent Events of Default .
The failure to make a payment on account of Accreted Value of, premium, if any,
or accrued interest on the Notes by reason of any provision of this Article will
not be construed as preventing the occurrence of an Event of Default.
SECTION 10.05. Net Worth Limitation . Notwithstanding any
other provision of this Indenture or the Notes, the Guarantee shall not be
enforceable against the Guarantor in an amount in excess of the net worth of the
Guarantor at the time that determination of such net worth is, under applicable
law, relevant to the enforceability of the Guarantee. Such net worth shall
include any claim of the Guarantor against the Company for reimbursement and any
claim against any grantor of a Guarantee for contribution.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939 . This Indenture
shall be subject to the provisions of the TIA that are required to be a part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 11.02. Notices . Any notice or communication shall be
sufficiently given if in writing and delivered in person or mailed by first
class mail or telecopier communication, addressed as follows, and received by
the addressee:
if to the Company:
Orion Newco Services, Inc.
2440 Research Boulevard
Suite 40
Rockville, Maryland 20850
Telecopier No: (301) 258-8101
Attention: [________]
with a copy to:
Hogan & Hartson, L.L.P.
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Telecopier No.: (202) 637-5910
Attention: [________]
<PAGE>
if to the Trustee:
Bankers Trust Company
4 Albany Street
Mailstop 5041
New York, N.Y. 10006
Telecopier No.: (212) 250-6392
Attention: Corporate Trustee Administration Department
with a copy to:
Leboeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, N.Y. 10019
Telecopier No.: (212) 424-8500
Attention: Joan Monahan
The Company, the Trustee or the Depositary by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder of a
Certificated Note shall be mailed to him at his address as it appears on the
Register by first class mail and shall be sufficiently given to him if so mailed
within the time prescribed. Copies of any such communication or notice to a
Holder shall also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder as
provided herein or any defect in it shall not affect its sufficiency with
respect to other Holders. Except for a notice to the Trustee, which is deemed
given only when received, and except as otherwise provided in this Indenture, if
a notice or communication is mailed in the manner provided in this Section
11.02, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
<PAGE>
SECTION 11.03. Certificate and Opinion as to Conditions
Precedent . Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.04. Statements Required in Certificate or Opinion .
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(c) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
SECTION 11.05. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section 10.05.
(b) The ownership of Notes shall be proved by the Register.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note shall bind every
future Holder of the same Note or
<PAGE>
the Holder of every Note issued upon the transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, suffered or omitted to
be done by the Trustee, any Paying Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such Note.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver of other act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of such Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other act,
but the Company shall have no obligation to do so. Notwithstanding Trust
Indenture Act Section 316(c), any such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for purposes of
determining whether Holders of the requisite proportion of Notes then
outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act, and for this
purpose the Notes then outstanding shall be computed as of such record date;
provided that no such request, demand, authorization, direction, notice,
consent, waiver or other act by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 11.06. Rules by Trustee, Paying Agent or Registrar.
The Trustee may make reasonable rules for action by or at a meeting of Holders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.07. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities . By the execution and delivery of this Indenture, each of
the Company and the Guarantor (i) acknowledges that it has designated and
appointed [ ], as its authorized agent upon which process may be served in any
suit, action or proceeding arising out of or relating to the Notes or this
Indenture that may be instituted in any federal or state court in the State of
New York, Borough of Manhattan, or brought under federal or state securities
laws or brought by the Trustee (whether in its individual capacity or in its
capacity as Trustee hereunder), and acknowledges that [ ] has accepted such
designation, (ii) submits to the non-exclusive jurisdiction of any such court in
any such suit, action or proceeding, and (iii) agrees that service of process
upon [ ] and written notice of said service to the Company (mailed or delivered
to its General Counsel at its principal office as specified in Section 11.02)
shall be deemed in every respect effective service of process upon it in any
such suit or proceeding. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents and instruments
as may be necessary to
<PAGE>
continue such designation and appointment of [ ] in full force and effect so
long as this Indenture shall be in full force and effect or any of the Notes
shall be outstanding.
To the extent that the Company has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
under this Indenture and the Notes, to the extent permitted by law.
SECTION 11.08. Payment Date Other Than a Business Day. If an
Interest Payment Date, Redemption Date, Payment Date or Stated Maturity of any
Note shall not be a Business Day, then payment of Accreted Value of, premium, if
any, or interest on such Note, as the case may be, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Payment Date or Redemption
Date, or at the Stated Maturity of such Note, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Payment Date,
Redemption Date or Stated Maturity, as the case may be.
SECTION 11.09. Governing Law . This Indenture and the Notes
shall be governed by the laws of the State of New York excluding (to the
greatest extent permissible by law) any rule of law that would cause the
application of the laws of any jurisdiction other than the State of New York.
SECTION 11.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.10. No Recourse Against Others. No recourse for the
payment of the Accreted Value 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
contained in this Indenture 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, as such, of the
Company or the Guarantor or of any successor Person thereof, either directly or
through the Company or any successor Person, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the Notes.
SECTION 11.11. Successors . All agreements of the Company in
this Indenture and the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
<PAGE>
SECTION 11.12. Duplicate Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
SECTION 11.13. Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 11.14. Table of Contents, Headings, Etc. The Table of
Contents, Cross-Reference Table and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
ORION NEWCO SERVICES, INC. BANKERS TRUST COMPANY
By: _____________________________ By: ___________________________
Name: ___________________________ Name: _________________________
Title: ___________________________ Title: ________________________
ORION NETWORK SYSTEMS, INC. ORION SATELLITE CORPORATION
By: _____________________________ By: ___________________________
Name: ___________________________ Name: _________________________
Title: ___________________________ Title: ________________________
ORIONNET, INC. ORION ATLANTIC EUROPE, INC.
By: _____________________________ By: ___________________________
Name: ___________________________ Name: _________________________
Title: ___________________________ Title: ________________________
ORION ASIA PACIFIC CORPORATION ORIONNET FINANCE CORPORATION
By: _____________________________ By: ___________________________
Name: ___________________________ Name: _________________________
Title: ___________________________ Title: ________________________
ASIA PACIFIC SPACE AND INTERNATIONAL PRIVATE
SATELLITE COMMUNICATIONS, LTD. PARTNERS, L.P.
By: _____________________________ By: ___________________________
Name: ___________________________ Name: _________________________
Title: ___________________________ Title: ________________________
<PAGE>
EXHIBIT A
FORM OF GLOBAL NOTE
[FACE OF NOTE]
THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE NOTE WITH A PRINCIPAL AMOUNT AT
MATURITY OF [ ] AND ONE WARRANT INITIALLY ENTITLING THE HOLDER THEREOF TO
PURCHASE [ ] SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, OF ORION NEWCO
SERVICES, INC. (THE "COMMON STOCK"). PRIOR TO THE CLOSE OF BUSINESS UPON THE
EARLIEST TO OCCUR OF (i) [ ], 1997, (ii) SUCH DATE AS THE UNDERWRITES MAY, IN
THEIR DISCRETION DEEM APPROPRIATE OR (iii) IN THE EVENT OF AN OFFER TO PURCHASE,
THE DATE THE COMPANY MAILS NOTICE THEREOF TO THE HOLDERS OF THE NOTES, THE NOTES
EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY
FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE WARRANTS.
THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS
NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF
THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (III) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF ORION NEWCO SERVICES, INC.
FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT;
FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE PRICE IS $[ ], THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $[ ]. FOR ADDITIONAL INFORMATION REGARDING
ORIGINAL ISSUE DISCOUNT, PLEASE CONTACT ORION NEWCO SERVICES, 2440 RESEARCH
BOULEVARD, SUITE 40, ROCKVILLE, MARYLAND, 20850
<PAGE>
ORION NEWCO SERVICES, INC.
[___]% Senior Discount Note Due 2007
CUSIP [ ________]
No. __________
Issue Date: ______________________
ORION NEWCO SERVICES, INC., a Delaware corporation, with registration
number [_______] (the "Company", which term includes any successor under the
Indenture hereinafter referred to), for value received, promises to pay to the
bearer upon surrender hereof the principal sum of
_________________________________ United States Dollars (U.S.$________________)
on 2007.
Interest Payment Dates: [ ] and [ ], commencing [ ] 2002.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which provisions shall have the same effect as if
set forth hereon.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officer.
Date: ORION NEWCO SERVICES, INC.
By: ___________________________
Name: _________________________
Title: ________________________
This is one of the [___]% Senior Discount Notes due 2007 described in the
within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By: _________________________________
Authorized Officer
<PAGE>
[REVERSE SIDE OF NOTE]
ORION NEWCO SERVICES, INC.
[___]% Senior Discount Note due 2007
1. Principal and Interest.
Orion Newco Services, Inc. (the "Company") will pay the
principal of this Note on [_________________], 2007.
The Company promises to pay interest on the principal amount
of this Note on each Interest Payment Date, as set forth below, at the rate per
annum shown above.
Interest on the Notes shall accrue at the rate of [___]% per
annum (the "Interest Rate") and shall be payable in U.S. dollars in cash
semi-annually in arrears on [ ] and [ ] (each an "Interest Payment Date");
provided that no interest shall accrue or be prior to [ ], 2002. Interest on the
Notes will accrue from the most recent date to which interest has been paid or
duly provided for, or if no interest has been paid or duly provided for, from
the date of original issuance hereof. Interest will be computed on the basis of
a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and
premium, if any, and (to the extent lawful) interest on overdue installments of
interest at the rate of [___]% per annum.
2. Method of Payment.
The Company will pay interest and principal to the Depositary,
with respect to any Global Note held by the Depositary. The Company will pay
principal, premium, if any, and interest in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. However, the Company may pay principal, premium, if any, and
interest by check payable in such money. If a payment date is a date other than
a Business Day at a place of payment, payment may be made at that place on the
next succeeding day that is a Business Day and no interest shall accrue for the
intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar.
The Company may change any Paying Agent and Registrar without notice in
accordance with the Indenture. The Company, any Affiliate or any Subsidiary
thereof may act as the Paying Agent or Registrar.
<PAGE>
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of
[__________], 1997 (the "Indenture"), between the Company, Orion Network
Systems, Inc., Orion Satellite Corporation, International Private Satellite
Partners, L.P., OrionNet, Inc., Orion Asia Pacific Corporation, Asia Pacific
Space and Communications, Ltd., Orion Atlantic Europe, Inc. and OrionNet Finance
Corporation, as guarantors, and the Bankers Trust Company, as trustee (the
"Trustee"). Capitalized terms herein are used as defined in the Indenture unless
otherwise indicated. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of all such terms.
To the extent permitted by applicable law, in the event of any inconsistency
between the terms of this Note and the terms of the Indenture, the terms of the
Indenture shall control.
The Notes are unsecured senior indebtedness of the Company.
The Indenture limits the aggregate principal amount of the Notes to $[ ].
5. 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, at
the following Redemption Prices (expressed in percentages of their principal
amount), plus accrued and unpaid interest, if any, to the Redemption Date if
redeemed during the 12-month period commencing on October [__] of the applicable
years set forth below:
Year Redemption Price
2002 [_____]%
2003 [_____]%
2004 and thereafter 100.000%
6. Selection of Notes for Partial Redemption; Effect of Redemption Notice.
In the case of any partial redemption, selection of the Notes
for redemption will be made by the Trustee in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not listed on a national securities exchange, on a
pro rata basis, by lot or by such method as the Trustee in its sole discretion
shall deem to be fair and appropriate; provided that no Note of $1,000 in
principal amount 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 thereof to be redeemed. A new Note in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Note. Upon the
giving of any redemption notice, interest on Notes called for redemption will
cease to accrue from and after the date fixed for redemption (unless the Company
defaults in providing the funds for such redemption) and such Notes will then
cease to be outstanding.
<PAGE>
7. Notice of Redemption.
Notice of any optional redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to the Holders of
Notes to be redeemed at such Holder's registered address as it appears in the
Register.
8. Repurchase upon Change of Control.
Upon the occurrence of any Change of Control, the Company will
be obligated to make an offer to purchase all outstanding Notes pursuant to the
Offer to Purchase described in the Indenture at a purchase price equal to 101%
of the aggregate Accreted Value thereof plus accrued and unpaid interest, if
any, to the date of purchase (the "Change of Control Payment").
A notice of such Change of Control will be mailed within 30
days after any Change of Control occurs to each Holder of Notes at such Holder's
registered address as it appears in the Register. Notes in original
denominations larger than $1,000 may be sold to the Company in part; provided
that Notes will only be issued in denominations of $1,000 principal amount at
maturity or integral multiples thereof. On and after the Payment Date, interest
ceases to accrue on Notes or portions of Notes surrendered for purchase by the
Company, unless the Company defaults in the payment of the Change of Control
Payment.
9. Denomination.
This Global Note is in fully registered form without coupons
and is denominated in an amount equal to $1,000 of principal amount at maturity
or an integral multiple thereof and is transferable by delivery. This Note is a
Global Note.
10. Persons Deemed Owners.
The holder of this Note shall be treated as the owner of this
Note for all purposes.
11. Unclaimed Money.
If money for the payment of principal, premium, if any, and
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its request. After that, Holders entitled
to the money must look to the Company for payment, unless an applicable law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company deposits with the Trustee money or U.S.
Government Obligations sufficient to pay the then outstanding principal of,
premium, if any, and accrued interest on the Notes (a) to redemption or Stated
Maturity, the Company will be discharged from the Indenture
<PAGE>
and the Notes, except in certain circumstances for certain sections thereof, or
(b) the Company will be discharged from certain covenants set forth in the
Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, and any
existing default or compliance with any provision may be waived with the consent
of the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not materially and adversely affect the rights of any Holder.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
the Company and the Restricted Subsidiaries, among other things, to Incur
additional Indebtedness; create Liens; pay dividends or make distributions in
respect of their Capital Stock; make Investments or make certain other
Restricted Payments; engage in Asset Sales; issue or sell stock of Restricted
Subsidiaries; enter into transactions with stockholders or Affiliates; or, with
respect to the Company, consolidate, merge or sell all or substantially all of
its assets. Within 90 days after the end of the last fiscal quarter of each
year, the Company must report to the Trustee on compliance with such
limitations.
15. Successor Persons.
Generally, when a successor person or other entity assumes all
the obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
16. Defaults and Remedies.
The following events will be defined as "Events of Default" in
the Indenture: (a) default in the payment of principal of (or premium, if any,
on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise; (b) default in the payment of interest on
any Note 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 Notes in a timely manner will constitute an
Event of Default with no grace or cure period; (c) defaults in the performance
or breach of the provisions of Section 5.01 of the Indenture or the failure to
make or consummate an Offer to Purchase in accordance with Section 4.11 or
Section 4.13 of the Indenture; (d) the Company defaults in the performance of or
breaches any other covenant or agreement of the Company in the Indenture or
under the Notes (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 Trustee or the Holders of 25% or
<PAGE>
more in aggregate principal amount at maturity of the Notes; (e) there occurs
with respect to any issue or issues of Indebtedness of the Company 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, (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 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 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, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company 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; or (h) the Company 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 or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) effects any general
assignment for the benefit of creditors.
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 Indenture, the Trustee or the Holders of at
least 25% in aggregate accreted value outstanding, by written notice to the
Company (and to the Trustee if such notice is given by the Holders), may, and
the Trustee at the request of such Holders shall, declare the principal amount
of, premium, if any, and accrued interest on the Notes to be immediately due and
payable. Upon a declaration of acceleration, such principal amount 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 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
<PAGE>
(h) above occurs with respect to the Company, the principal amount 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 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 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.
The Holders of at least a majority in aggregate principal
amount at maturity of the outstanding Notes may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or the Indenture, that
may involve the Trustee in personal liability, or that the Trustee determines in
good faith may be unduly prejudicial to the rights of Holders of Notes 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
Notes. A Holder may not pursue any remedy with respect to the Indenture 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 Trustee to pursue
the remedy; (iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense; (iv) the
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 Notes do not give the 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.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become owner or pledgee of Notes and may otherwise deal with
the Company or its Affiliates with the same rights it would have if it were not
the Trustee.
18. No Recourse Against Others.
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 Indenture, 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
<PAGE>
Company or of any successor Person thereof. Each Holder, by accepting the
Notes, waives and releases all such liability.
19. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Note.
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS
NOTE WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to Orion Newco
Services, Inc., 2440 Research Boulevard, Suite 40, Rockville, Maryland 20850,
Attention: [____________].
<PAGE>
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT OF INDEBTEDNESS
EVIDENCED BY THIS NOTE
The initial principal amount of indebtedness evidenced by this
Note shall be $ , , . The following decreases/increases in the principal amount
evidenced by this Note have been made:
<TABLE>
<CAPTION>
Decrease in Increase in Total Principal Amount of
Principal Principal this Global Note Following Notation Made
Date of Decrease/ Amount of this Amount of this such Decrease/Increase by or on
Increase Global Note Global Note Behalf of
Trustee
<S> <C>
</TABLE>
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company
pursuant to Section 4.11 or Section 4.13 of the Indenture, check the box:
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 4.11 or Section 4.13 of the Indenture, state the
amount (in principal amount):
$___________________ ($1000 or integral multiple thereof).
Date:
Your Signature:
Signature Guarantee: ______________________________
<PAGE>
EXHIBIT B
FORM OF CERTIFICATED NOTE
[FACE OF NOTE]
THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE NOTE WITH AMOUNT AT MATURITY OF
$[____] AND ONE WARRANT INITIALLY ENTITLING THE HOLDER THEREOF TO PURCHASE AN
EQUAL NUMBER OF SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, OF ORION NEWCO
SERVICES, INC. (THE "COMMON STOCK"). PRIOR TO THE CLOSE OF BUSINESS UPON THE
EARLIEST TO OCCUR OF (i) [ ], 1997, (ii) SUCH DATE AS THE UNDERWRITES MAY, IN
THEIR DISCRETION DEEM APPROPRIATE OR (iii) IN THE EVENT OF AN OFFER TO PURCHASE,
THE DATE THE COMPANY MAILS NOTICE THEREOF TO THE HOLDERS OF THE NOTES, THE NOTES
EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY
FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE WARRANTS.
FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT;
FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE PRICE IS $[ ], THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $[ ]. FOR ADDITIONAL INFORMATION REGARDING
ORIGINAL ISSUE DISCOUNT, PLEASE CONTACT ORION NEWCO SERVICES, 2440 RESEARCH
BOULEVARD, SUITE 40, ROCKVILLE, MARYLAND, 20850
<PAGE>
ORION NEWCO SERVICES, INC.
[___]% Senior Discount Note Due 2007
CUSIP [ ________]
No. __________
Issue Date: ______________________
ORION NEWCO SERVICES, INC., a Delaware corporation, with registration
number [_______] (the "Company", which term includes any successor under the
Indenture hereinafter referred to), for value received, promises to pay to the
bearer upon surrender hereof the principal sum of
_________________________________ United States Dollars (U.S.$________________)
on 2007.
Interest Payment Dates: [ ] and [ ], commencing [ ] 2002.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which provisions shall have the same effect as if
set forth hereon.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officer.
Date: ORION NEWCO SERVICES, INC.
By: ___________________________________
Name: _________________________________
Title:_________________________________
This is one of the [___]% Senior Discount Notes due 2007 described in the
within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By: _______________________________
Authorized Officer
<PAGE>
[REVERSE SIDE OF NOTE]
ORION NEWCO SERVICES, INC.
[___]% Senior Note due 2007
1. Principal and Interest.
Orion Newco Services, Inc. (the "Company") will pay the
principal of this Note on [_______________], 2007.
The Company promises to pay interest on the principal amount
of this Note on each Interest Payment Date, as set forth below, at the rate per
annum shown above.
Interest on the Notes shall accrue at the rate of [___]% per
annum (the "Interest Rate") and shall be payable in U.S. dollars in cash
semi-annually in arrears on [ ] and [ ] (each an "Interest Payment Date");
provided that no interest shall accure prior to [ ], 2002. Interest on the Notes
will accrue from the most recent date to which interest has been paid or duly
provided for, or if no interest has been paid or duly provided for, from the
date of original issuance hereof. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and
premium, if any, and (to the extent lawful) interest on overdue installments of
interest at the rate of [___]% per annum.
2. Method of Payment.
The Company will pay interest on the Notes to the Holder of
this Note upon presentment hereof at the office of the Paying Agent of the
Company maintained for that purpose in the Borough of Manhattan, the City of New
York. Holders must surrender Notes to such Paying Agent to collect principal
payments. The Company will pay principal, premium, if any, and interest in money
of the United States of America that at the time of payment is legal tender for
payment of public and private debts. However, the Company may pay principal,
premium, if any, and interest by check payable in such money. If a payment date
is a date other than a Business Day at a place of payment, payment may be made
at that place on the next succeeding day that is a Business Day and no interest
shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar.
The Company may change any Paying Agent and Registrar without notice in
accordance with the Indenture. The Company, any Affiliate or any Subsidiary
thereof may act as the Paying Agent or Registrar.
<PAGE>
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of
[__________], 1997 (the "Indenture"), between the Company, Orion Network
Systems, Inc., Orion Satellite Corporation, International Private Satellite
Partners, L.P., OrionNet, Inc., Orion Asia Pacific Corporation, Asia Pacific
Space and Communications, Ltd., Orion Atlantic Europe, Inc. and OrionNet Finance
Corporation, as guarantors, and the Bankers Trust Company, as trustee (the
"Trustee"). Capitalized terms herein are used as defined in the Indenture unless
otherwise indicated. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of all such terms.
To the extent permitted by applicable law, in the event of any inconsistency
between the terms of this Note and the terms of the Indenture, the terms of the
Indenture shall control.
The Notes are unsecured senior indebtedness of the Company.
The Indenture limits the aggregate principal amount of the Notes to $[ ].
5. 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, at
the following Redemption Prices (expressed in percentages of their principal
amount), plus accrued and unpaid interest, if any, to the Redemption Date if
redeemed during the 12-month period commencing on October [__] of the applicable
years set forth below:
Year Redemption Price
2002 [_____]%
2003 [_____]%
2004 and thereafter 100.000%
6. Selection of Notes for Partial Redemption; Effect of Redemption Notice.
In the case of any partial redemption, selection of the Notes
for redemption will be made by the Trustee in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not listed on a national securities exchange, on a
pro rata basis, by lot or by such method as the Trustee in its sole discretion
shall deem to be fair and appropriate; provided that no Note of $1,000 in
principal amount 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 thereof to be redeemed. A new Note in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Note. Upon the
giving of any redemption notice, interest on Notes called for redemption will
cease to accrue from and
<PAGE>
after the date fixed for redemption (unless the Company defaults in providing
the funds for such redemption) and such Notes will then cease to be outstanding.
7. Notice of Redemption.
Notice of any optional redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to the Holders of
Notes to be redeemed at such Holder's registered address as it appears in the
Register.
8. Repurchase upon Change of Control.
Upon the occurrence of any Change of Control, the Company will
be obligated to make an offer to purchase all outstanding Notes pursuant to the
Offer to Purchase described in the Indenture at a purchase price equal to 101%
of the aggregate Accreted Value thereof plus accrued and unpaid interest, if
any, to the date of purchase (the "Change of Control Payment").
A notice of such Change of Control will be mailed within 30
days after any Change of Control occurs to each Holder of Notes at such Holder's
registered address as it appears in the Register. Notes in original
denominations larger than $1,000 may be sold to the Company in part; provided
that Notes will only be issued in denominations of $1,000 principal amount at
maturity or integral multiples thereof. On and after the Payment Date, interest
ceases to accrue on Notes or portions of Notes surrendered for purchase by the
Company, unless the Company defaults in the payment of the Change of Control
Payment.
9. Denomination.
This Certificated Note is in fully registered form without
coupons and is denominated in an amount equal to $1,000 of principal amount at
maturity or an integral multiple thereof and is transferable by presentation or
surrender to the registrar for registration of transfer either endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
registrar.
10. Persons Deemed Owners.
The holder of this Note shall be treated as the owner of this
Note for all purposes.
11. Unclaimed Money.
If money for the payment of principal, premium, if any, and
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its request. After that, Holders entitled
to the money must look to the Company for payment, unless an applicable law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
<PAGE>
12. Discharge Prior to Redemption or Maturity.
If the Company deposits with the Trustee money or U.S.
Government Obligations sufficient to pay the then outstanding principal of,
premium, if any, and accrued interest on the Notes (a) to redemption or Stated
Maturity, the Company will be discharged from the Indenture and the Notes,
except in certain circumstances for certain sections thereof, or (b) the Company
will be discharged from certain covenants set forth in the Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, and any
existing default or compliance with any provision may be waived with the consent
of the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not materially and adversely affect the rights of any Holder.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
the Company and the Restricted Subsidiaries, among other things, to Incur
additional Indebtedness; create Liens; pay dividends or make distributions in
respect of their Capital Stock; make Investments or make certain other
Restricted Payments; engage in Asset Sales; issue or sell stock of Restricted
Subsidiaries; enter into transactions with stockholders or Affiliates; or, with
respect to the Company, consolidate, merge or sell all or substantially all of
its assets. Within 90 days after the end of the last fiscal quarter of each
year, the Company must report to the Trustee on compliance with such
limitations.
15. Successor Persons.
Generally, when a successor person or other entity assumes all
the obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
16. Defaults and Remedies.
The following events will be defined as "Events of Default" in
the Indenture: (a) default in the payment of principal of (or premium, if any,
on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise; (b) default in the payment of interest on
any Note 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 Notes in a timely manner will constitute an
Event of Default with no grace or cure period; (c) defaults in the performance
or breach of the provisions of Section 5.01
<PAGE>
of the Indenture or the failure to make or consummate an Offer to Purchase in
accordance with Section 4.11 or Section 4.13 of the Indenture; (d) the Company
defaults in the performance of or breaches any other covenant or agreement of
the Company in the Indenture or under the Notes (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 Trustee or the Holders
of 25% or more in aggregate principal amount at maturity of the Notes; (e) there
occurs with respect to any issue or issues of Indebtedness of the Company 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, (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 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 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, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company 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; or (h) the Company 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 or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) effects any general
assignment for the benefit of creditors.
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 Indenture, the Trustee or the Holders of at
least 25% in aggregate accreted value outstanding, by written notice to the
Company (and to the Trustee if such notice is given by the Holders), may, and
the Trustee at the request of such Holders shall, declare the principal amount
of, premium, if any, and accrued interest on the Notes to be immediately due and
payable. Upon a declaration of acceleration, such principal amount 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
<PAGE>
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 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 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 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 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.
The Holders of at least a majority in aggregate principal
amount at maturity of the outstanding Notes may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or the Indenture, that
may involve the Trustee in personal liability, or that the Trustee determines in
good faith may be unduly prejudicial to the rights of Holders of Notes 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
Notes. A Holder may not pursue any remedy with respect to the Indenture 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 Trustee to pursue
the remedy; (iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense; (iv) the
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 Notes do not give the 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.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become owner or pledgee of Notes and may otherwise deal with
the Company or its Affiliates with the same rights it would have if it were not
the Trustee.
<PAGE>
18. No Recourse Against Others.
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 Indenture, 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.
19. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Note.
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The internal laws of the State of New York shall govern this
Note without regard to principles of conflict of laws.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to Orion Newco
Services, Inc., 2440 Research Boulevard, Suite 40, Rockville, Maryland 20850,
Attention: [____________].
<PAGE>
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT OF INDEBTEDNESS
EVIDENCED BY THIS NOTE
The initial principal amount of indebtedness evidenced by this
Note shall be $ , , . The following decreases/increases in the principal amount
evidenced by this Note have been made:
<TABLE>
<CAPTION>
Decrease in Increase in Total Principal Amount of
Principal Principal this Global Note Following Notation Made
Date of Decrease/ Amount of this Amount of this such Decrease/Increase by or on
Increase Global Note Global Note Behalf of
Trustee
<S> <C>
</TABLE>
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company
pursuant to Section 4.11 or Section 4.13 of the Indenture, check the box:
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 4.11 or Section 4.13 of the Indenture, state the
amount (in principal amount):
$___________________ ($1000 or integral multiple thereof).
Date: _______________________
Your Signature: ___________________________________
Signature Guarantee: ______________________________
EXHIBIT C
COLLATERAL PLEDGE AND SECURITY AGREEMENT
This COLLATERAL PLEDGE AND SECURITY AGREEMENT (this "Pledge
Agreement") is made and entered into as of [_________], 1997 by ORION NEWCO
SERVICES, INC., a Delaware corporation (the "Pledgor"), having its principal
office at 2440 Research Boulevard, Suite 40, Rockville, Maryland, 20850, in
favor of BANKERS TRUST COMPANY, a banking corporation duly organized and
existing under the laws of the State of New York, having an office at 4 Albany
Street, New York, New York, 10006, Attention: Corporate Trustee Administration
Department, as trustee (the "Trustee") for the holders (the "Holders") of the
Notes (as defined herein) issued by the Pledgor under the Indenture referred to
below.
W I T N E S S E T H
WHEREAS, the Pledgor, each of the Pledgor's Restricted
Subsidiaries, as guarantors, and Bankers Trust Company, as Trustee, have entered
into that certain indenture dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the "Indenture"), pursuant
to which the Pledgor is issuing on the date hereof $[_________] in aggregate
principal amount of [____]% Senior Notes due 2007 (the "Notes"); capitalized
terms used herein and not otherwise defined herein shall have the meanings given
to such terms in the Indenture; and
WHEREAS, the Pledgor has agreed, pursuant to the Indenture, to
(i) purchase Government Securities (the "Pledged Securities") in an amount that
will be sufficient upon receipt of scheduled interest and principal payments in
respect thereof, in the opinion of a nationally recognized firm of independent
accountants selected by the Pledgor and delivered to the Trustee, to provide for
payment of the first six scheduled interest payments due on the Notes and (ii)
place the Pledged Securities in an account held by the Trustee for the benefit
of Holders of the Notes; and
WHEREAS, upon the purchase of the Pledged Securities, the
Pledgor will be the beneficial owner of the Pledged Securities; and
WHEREAS, to secure the obligation of the Pledgor under the
Indenture and the Notes to pay in full the first six scheduled interest payments
on the Notes and to secure repayment of the Notes in the event that the Notes
become due and payable prior to such time as the first six scheduled interest
payments thereon shall have been paid in full (the "Obligations"), the Pledgor
has agreed to (i) pledge to the Trustee for its benefit and the ratable benefit
of the Holders of the Notes, a security interest in the Pledged Securities, all
book-entry interests therein and the Pledge Account (as defined herein) and (ii)
execute and deliver this Pledge Agreement in order to secure the payment and
performance by the Pledger of all the Obligations.
<PAGE>
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and in order to induce the Holders of the Notes to purchase the
Notes, the Pledgor hereby agrees with the Trustee, for the benefit of the
Trustee and for the ratable benefit of the Holders of the Notes, as follows:
SECTION 1. Pledge and Grant of Security Interest. The Pledgor
hereby pledges to the Trustee for its benefit and for the ratable benefit of the
Holders of the Notes, and grants to the Trustee for its benefit and for the
ratable benefit of the Holders of the Notes, a continuing first priority
security interest in and to (a) all of Pledgor's right, title and interest in
the Pledged Securities and the Pledge Account, (b) all book-entry interests in
the Pledged Securities and any certificates or other evidence of ownership
representing the Pledged Securities and the Pledge Account, and (c) except as
otherwise provided herein, all products and proceeds of any of the Pledged
Securities and the Pledge Account, including, without limitation, all dividends,
interest, principal payments, cash, options, warrants, rights, instruments,
subscriptions and other property or proceeds from time to time received,
receivable or otherwise distributed or distributable in respect of or in
exchange for any or all of the Pledged Securities (collectively, the
"Collateral").
SECTION 2. Security for Obligation. This Pledge Agreement
secures the prompt and complete payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of all the Obligations.
SECTION 3. Delivery of Collateral; Pledge Account; Interest.
(a) All certificates or instruments, if any, representing or evidencing the
Collateral shall be delivered to and held by or on behalf of the Trustee
pursuant hereto and shall be in suitable form for transfer by delivery, or shall
be accompanied by duly executed instruments of transfer or assignment in blank,
all in form reasonably satisfactory to the Trustee, and all book-entry interests
in the Pledged Securities shall be transferred to the Pledge Account through the
individual account of the Trustee at the Federal Reserve Bank of New York. The
Trustee in its individual capacity shall confirm in writing (such confirmation
to be in the form of Exhibit A hereto) to the Pledgor and to the Trustee in its
capacity as Trustee hereunder that it is holding the book-entry Pledged
Securities for the benefit of the Trustee in its capacity as Trustee hereunder
and the ratable benefit of the Holders of Notes and the Trustee shall duly
record in its books and records that the Pledgor has pledged and granted a
security interest in such book-entry interests in the Pledged Securities and in
the Pledge Account to the Trustee on behalf of itself and the holders of the
Notes.
(b) Concurrently with the execution and delivery hereof and
prior to the delivery of any certificates or instruments representing
or evidencing the Collateral or transfer of book-entry interests in the
Pledged Securities as provided in subsection (a) of this Section 3, the
Trustee shall establish an account segregated from all other custodial
or collateral accounts for the deposit of the Pledged Securities (the
"Pledge Account") at its office at 4 Albany Street, New York, New York,
10006, Attention: Corporate Trustee Administration Department. Subject
to the other terms and conditions of this Pledge Agreement, all funds
or other property accepted by the Trustee pursuant to this Pledge
<PAGE>
Agreement shall be held in the Pledge Account for the benefit of the
Trustee and for the ratable benefit of the Holders of the Notes and
segregated from all other funds or other property otherwise held by the
Trustee and all book-entry interests in the Pledged Securities shall be
transferred to and held in the Pledge Account for the benefit of the
Trustee and for the ratable benefit of the Holders of the Notes.
(c) All interest earned on any Collateral shall be retained in
the Pledge Account for the benefit of the Pledgor, pending disbursement
pursuant to the terms hereof.
SECTION 4. Disbursements. (a) Immediately prior to the due
date of any of the first six scheduled interest payments on the Notes, the
Pledgor may, pursuant to an Issuer Order, direct the Trustee to release from the
Pledge Account proceeds sufficient to provide for payment in full of such
interest then due on the Notes. Upon receipt of an Issuer Order, the Trustee
will take any action necessary to provide for the payment of the interest on the
Notes in accordance with the payment provisions of the Indenture to the Holders
of the Notes from (and to the extent of) proceeds of the Pledged Securities in
the Pledge Account. Nothing in this Section 4 shall affect the Trustee's rights
to apply the Pledged Securities to the payments of amounts due on the Notes upon
acceleration thereof.
(b) If the Pledgor makes any interest payment or portion of an
interest payment for which the Pledged Securities are collateral from a
source of funds other than the Pledge Account ("Pledgor Funds"), the
Pledgor may, after payment in full of such interest payment or portion
thereof from proceeds of the Pledged Securities or such Pledgor Funds
or both, direct the Trustee to release to the Pledgor or to another
party at the direction of the Pledgor (the "Pledgor's Designee")
proceeds from the Pledge Account in an amount less than or equal to the
amount of Pledgor Funds applied to such interest payment. Upon receipt
of an Issuer Order by the Trustee and any other documentation
reasonably satisfactory to the Trustee to substantiate such use of
Pledgor Funds by the Pledgor (including the certificate described in
the following sentence), the Trustee will pay over to the Pledgor or
the Pledgor's Designee, as the case may be, the requested amount from
proceeds in the Pledge Account. Concurrently with any release of funds
to the Pledgor pursuant to this Section 4(b), the Pledgor will deliver
to the Trustee an Officers' Certificate stating that such release has
been duly authorized by the Pledgor and will not contravene any
provision of applicable law or the Certificate of Incorporation of the
Pledgor or any material agreement or other material instrument binding
upon the Pledgor or any of its subsidiaries or any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Pledgor or any of its subsidiaries or result in the creation
or imposition of any Lien on any assets of the Pledgor, except for the
security interest granted under the Pledge Agreement.
(c) If at any time the principal of and interest on the
Pledged Securities held in the Pledge Account exceeds 100% of the
amount sufficient, in the written opinion of a nationally recognized
firm of independent accountants selected by the Pledgor and delivered
to the Trustee, to provide for payment in full of the first six
scheduled interest payments due on the Notes (or, in the event one or
more interest payments have been
<PAGE>
made thereon, an amount sufficient to provide for the payment in full
of any and all interest payments on the Notes then remaining, up to
and including the sixth scheduled interest payment), the Pledgor may
direct the Trustee to release any such overfunded amount to the
Pledgor or to such other party as the Pledgor may direct. Upon receipt
of an Issuer Order and any other documentation reasonably satisfactory
to the Trustee to substantiate such excess, the Trustee shall pay over
to the Pledgor or the Person designated by the Pledgor, as the case
may be, any such overfunded amount.
(d) Upon payment in full of the first six scheduled interest
payments on the Notes in a timely manner, the security interest in the
Collateral evidenced by this Pledge Agreement will automatically
terminate and be of no further force and effect. Furthermore, upon the
release of any Collateral from the Pledge Account in accordance with
the terms of this Pledge Agreement, whether upon release of Collateral
to Holders as payment of interest or otherwise, the security interest
evidenced by this Pledge Agreement in such released Collateral will
automatically terminate and be of no further force and effect.
(e) The Pledgor covenants to give the Trustee at least one
Business Day's notice (by Issuer Order) as to whether payment of
interest will be made pursuant to Section 4(a) or 4(b) and as to the
respective amounts of interest that will be paid pursuant to Section
4(a) or 4(b). If no such notice is given, the Trustee will act pursuant
to Section 4(a) as if it had received an Issuer Order pursuant thereto
for the payment in full of the interest then due.
(f) The Trustee shall not be required to liquidate any Pledged
Security in order to make any scheduled payment of interest or any
release hereunder unless instructed to do so by Issuer Order.
SECTION 5. Representations and Warranties. The Pledgor hereby
represents and warrants that:
(a) The execution and delivery by the Pledgor of, and the
performance by the Pledgor of its obligations under, this Pledge
Agreement will not contravene any provision of applicable law or the
Certificate of Incorporation of the Pledgor or any material agreement
or other material instrument binding upon the Pledgor or any of its
subsidiaries or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Pledgor or any of its
subsidiaries, or result in the creation or imposition of any Lien on
any assets of the Pledgor, except for the security interest granted
under this Pledge Agreement; no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for (i) the performance by the Pledgor of its obligations
under this Pledge Agreement, (ii) the pledge by the Pledgor of the
Collateral pursuant to this Pledge Agreement or (iii) the exercise by
the Trustee of the rights provided for in this Pledge Agreement or the
remedies in respect of the Collateral pursuant to this Pledge
Agreement.
<PAGE>
(b) The Pledgor is the beneficial owner of the Collateral,
free and clear of any Lien or claims of any person or entity (except
for the security interests granted under this Pledge Agreement). No
financing statement covering the Pledged Securities is on file in any
public office other than the financing statements, if any, filed
pursuant to this Pledge Agreement.
(c) This Pledge Agreement has been duly authorized, validly
executed and delivered by the Pledgor and (assuming the due
authorization and valid execution and delivery of this Pledge Agreement
by the Trustee and enforceability of the Pledge Agreement against the
Trustee in accordance with its terms) constitutes a valid and binding
agreement of the Pledgor, enforceable against the Pledgor in accordance
with its terms, except as (i) the enforceability hereof may be limited
by bankruptcy, insolvency, fraudulent conveyance, preference,
reorganization, moratorium or similar laws now or hereafter in effect
relating to or affecting creditors' rights or remedies generally, (ii)
the availability of equitable remedies may be limited by equitable
principles of general applicability and the discretion of the court
before which any proceeding therefor may be brought, (iii) rights to
indemnification hereunder may be limited by U.S. federal and state
securities laws and public policy considerations and (iv) the waiver of
rights and defenses contained in Section 12(b), Section 15.11 and
Section 15.16 hereof may be limited by applicable law.
(d) Upon the delivery to the Trustee of the certificates or
instruments, if any, representing or evidencing the Pledged Securities,
the filing of financing statements, if any, required by the Uniform
Commercial Code (the "UCC") in the appropriate offices in the State of
New York, and upon the transfer by the Trustee in its individual
capacity and the due recording in the books and records of the Trustee
in its capacity as trustee hereunder of interests in the Pledged
Securities to and in the name of the Trustee for its benefit and the
ratable benefit of the Holders of the Notes and the due recording by
the Trustee in its books and records that the Pledgor has pledged and
granted a security interest in such interests in the Pledged Securities
to the Trustee on behalf of itself and the holders of the Notes and
receipt by the Trustee and the Pledgor of written confirmation thereof
in the form of Exhibit A hereto, the pledge of and grant of a security
interest in the Collateral securing the payment of the Obligations for
the benefit of the Trustee and the Holders of the Notes will constitute
a first priority perfected security interest in such Collateral,
enforceable as such against all creditors of the Pledgor and any
persons purporting to purchase any of the Collateral from the Pledgor,
other than as permitted by the Indenture.
(e) There are no legal or governmental proceedings pending or,
to the best of the Pledgor's knowledge, threatened to which the Pledgor
or any of its subsidiaries is a party or to which any of the properties
of the Pledgor or any such subsidiary is subject that would materially
adversely affect the power or ability of the Pledgor to perform its
obligations under this Pledge Agreement or to consummate the
transactions contemplated hereby.
<PAGE>
(f) The pledge of the Collateral pursuant to this Pledge
Agreement is not prohibited by any applicable law or governmental
regulation, release, interpretation or opinion of the Board of
Governors of the Federal Reserve System or other regulatory agency
(including, without limitation, Regulations G, T, U and X of the Board
of Governors of the Federal Reserve System).
(g) No Event of Default exists.
SECTION 6. Further Assurances. The Pledgor will, promptly upon
request by the Trustee, execute and deliver or cause to be executed and
delivered, or use its reasonable best efforts to procure, all stock powers,
proxies, assignments, instruments and other documents, all in form and substance
reasonably satisfactory to the Trustee, deliver any instruments to the Trustee
and take any other actions that are necessary or, in the reasonable opinion of
the Trustee, desirable to perfect, continue the perfection of, or protect the
first priority of the Trustee's security interest in and to the Collateral, to
protect the Collateral against the rights, claims, or interests of third persons
or to effect the purposes of this Pledge Agreement. The Pledgor also hereby
authorizes the Trustee to file any financing or continuation statements in the
United States with respect to the Collateral without the signature of the
Pledgor (to the extent permitted by applicable law). The Pledgor will promptly
pay all reasonable costs incurred in connection with any of the foregoing within
45 days of receipt of an invoice therefor. The Pledgor also agrees, whether or
not requested by the Trustee, to take all actions that are necessary to perfect
or continue the perfection of, or to protect the first priority of, the
Trustee's security interest in and to the Collateral, including the filing of
all necessary financing and continuation statements, and to protect the
Collateral against the rights, claims or interests of third persons.
SECTION 7. Covenants. The Pledgor covenants and agrees with
the Trustee and the Holders of the Notes from and after the date of this Pledge
Agreement until the earlier of payment in full in cash of (x) each of the first
six scheduled interest payments due on the Notes under the terms of the
Indenture or (y) all obligations due and owing under the Indenture and the Notes
in the event such obligations become due and payable prior to the payment of the
first six scheduled interest payments on the Notes:
(a) that it will not (i) sell or otherwise dispose of, or
grant any option or warrant with respect to, any of the Collateral or
(ii) create or permit to exist any Lien upon or with respect to any of
the Collateral (except for the Lien created pursuant to this Pledge
Agreement) and at all times will be the sole beneficial owner of the
Collateral; or
(b) that it will not (i) enter into any agreement or
understanding that purports to or may restrict or inhibit the Trustee's
rights or remedies hereunder, including, without limitation, the
Trustee's right to sell or otherwise dispose of the Collateral or (ii)
fail to pay or discharge any tax, assessment or levy of any nature with
respect to the Collateral not later than five days prior to the date of
any proposed sale under any judgment, writ or warrant of attachment
with respect to the Collateral.
<PAGE>
SECTION 8. Power of Attorney. In addition to all of the powers
granted to the Trustee pursuant to the Indenture, the Pledgor hereby appoints
and constitutes the Trustee as the Pledgor's attorney-in-fact (with full power
of substitution) to exercise to the fullest extent permitted by law all of the
following powers upon and at any time after the occurrence and during the
continuance of an Event of Default; (a) collection of proceeds of any
Collateral; (b) conveyance of any item of Collateral to any purchaser thereof;
(c) giving of any notices or recording of any Liens under Section 6 hereof: (d)
making of any payments or taking any acts under Section 9 hereof and (e) paying
or discharging taxes or Liens levied or placed upon the Collateral, the legality
or validity thereof and the amounts necessary to discharge the same to be
determined by the Trustee in its sole reasonable discretion, and such payments
made by the Trustee to become part of the Obligations of the Pledgor to the
Trustee, due and payable immediately upon demand. The Trustee's authority under
this Section 8 shall include, without limitation, the authority to endorse and
negotiate any checks or instruments representing proceeds of Collateral in the
name of the Pledgor, execute and give receipt for any certificate of ownership
or any document constituting Collateral, transfer title to any item of
Collateral, sign the Pledgor's name on all financing statements (to the extent
permitted by applicable law) or any other documents deemed necessary or
appropriate by the Trustee to preserve, protect or perfect the security interest
in the Collateral and to file the same, prepare, file and sign the Pledgor's
name on any notice of Lien, and to take any other actions arising from or
incident to the powers granted to the Trustee in this Pledge Agreement. This
power of attorney is coupled with an interest and is irrevocable by the Pledgor.
SECTION 9. Trustee May Perform. If the Pledgor fails to
perform any agreement contained herein, the Trustee may itself perform, or cause
the performance of, such agreement, and the reasonable expenses of the Trustee
incurred in connection therewith shall be payable by the Pledgor under Section
13 hereof.
SECTION 10. No Assumption of Duties; Reasonable Care. The
rights and powers granted to the Trustee hereunder are being granted in order to
preserve and protect the Trustee's and the Holders' of the Notes security
interest in and to the Collateral granted hereby and shall not be interpreted
to, and shall not impose any duties on the Trustee in connection therewith other
than those expressly provided herein or imposed under applicable law. Except as
provided by applicable law, the Trustee shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which the Trustee accords similar property in similar situations, it being
understood that the Trustee shall not have any responsibility for (a)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities or other matters relative to any Collateral, whether or not the
Trustee has or is deemed to have knowledge of such matters, (b) taking any
necessary steps to preserve rights against any parties with respect to any
Collateral or (c) investing or reinvesting any of the Collateral.
SECTION 11. Indemnity. The Pledgor shall indemnify, hold
harmless and defend the Trustee and its directors, officers, agents and
employees, from and against any and all claims, actions, obligations,
liabilities and expenses, including reasonable defense costs, reasonable
investigative fees and costs, and reasonable legal fees and damages arising from
the Trustee's
<PAGE>
performance under this Pledge Agreement, except to the extent that such claim,
action, obligation, liability or expense is directly attributable to the bad
faith, gross negligence or wilful misconduct of such indemnified person.
SECTION 12. Remedies Upon Event of Default. If any Event of
Default under the Indenture or default hereunder (any such Event of Default or
default being referred to in this Pledge Agreement as an "Event of Default")
shall have occurred and be continuing:
(a) The Trustee and the Holders of the Notes shall have, in
addition to all other rights given by law or by this Pledge Agreement
or the Indenture, all of the rights and remedies with respect to the
Collateral of a secured party under the UCC in effect in the State of
New York at that time. In addition, with respect to any Collateral that
shall then be in or shall thereafter come into the possession or
custody of the Trustee, the Trustee may sell or cause the same to be
sold at any broker's board or at public or private sale, in one or more
sales or lots, at such price or prices as the Trustee may deem best,
for cash or on credit or for future delivery, without assumption of any
credit risk. The purchaser of any or all Collateral so sold shall
thereafter hold the same absolutely, free from any claim, encumbrance
or right of any kind whatsoever created by or through the Pledgor.
Unless any of the Collateral threatens, in the reasonable judgment of
the Trustee, to decline speedily in value or is or becomes of a type
sold on a recognized market, the Trustee will give the Pledgor
reasonable notice of the time and place of any public sale thereof, or
of the time after which any private sale or other intended disposition
is to be made. Any sale of the Collateral conducted in conformity with
reasonable commercial practices of banks, insurance companies,
commercial finance companies, or other financial institutions disposing
of property similar to the Collateral shall be deemed to be
commercially reasonable. Any requirements of reasonable notice shall be
met if such notice is mailed to the Pledgor as provided in Section 15.1
hereof at least ten (10) days before the time of the sale or
disposition. The Trustee or any Holder of Notes may, in its own name or
in the name of a designee or nominee, buy any of the Collateral at any
public sale and, if permitted by applicable law, at any private sale.
All expenses (including court costs and reasonable attorneys' fees,
expenses and disbursements) of, or incident to, the enforcement of any
of the provisions hereof shall be recoverable from the proceeds of the
sale or other disposition of the Collateral.
(b) The Pledgor further agrees to use its reasonable best
efforts to do or cause to be done all such other acts as may be
necessary to make such sale or sales of all or any portion of the
Collateral pursuant to this Section 12 valid and binding and in
compliance with any and all other applicable requirements of law. The
Pledgor further agrees that a breach of any of the covenants contained
in this Section 12 will cause irreparable injury to the Trustee and the
Holders of the Notes, that the Trustee and the Holders of the Notes
have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this Section 12
shall be specifically enforceable against the Pledgor, and the Pledgor
hereby waives and agrees not to assert any defenses against an action
for specific performance of such covenants except for a defense that no
Event of Default has occurred.
<PAGE>
SECTION 13. Expenses. The Pledgor will upon demand pay to the
Trustee the amount of any and all reasonable expenses, including, without
limitation, the reasonable fees, expenses and disbursements of its counsel,
experts and agents retained by the Trustee, that the Trustee may incur in
connection with (a) the review, negotiation and administration of this Pledge
Agreement, (b) the custody or preservation of, or the sale of, collection from,
or other realization upon, any of the Collateral, (c) the exercise or
enforcement of any of the rights of the Trustee and the Holders of the Notes
hereunder or (d) the failure by the Pledgor to perform or observe any of the
provisions hereof. The lien in favor of the Trustee created by Section 10.01 of
the Indenture shall in addition to securing the Pledgor's payment obligations
under such Section 10.01 secure the Pledgor's payment obligations under Section
11 and 13 hereof.
SECTION 14. Security Interest Absolute. All rights of the
Trustee and the Holders of the Notes and security interests hereunder, and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Indenture or
any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the
Indenture;
(c) any exchange, surrender, release or non-perfection of any
Liens on any other collateral for all or any of the Obligations; or
(d) to the extent permitted by applicable law, any other
circumstance which might otherwise constitute a defense available to,
or a discharge of, the Pledgor in respect of the Obligations or of this
Pledge Agreement.
SECTION 15. Miscellaneous Provisions.
Section 15.1. Notices. All notices, approvals, consents or
other communications required or desired to be given hereunder shall be in the
form and manner, and delivered to each of the parties hereto at their respective
addresses, as set forth or provided for in Section 12.02 of the Indenture.
Section 15.2. No Adverse Interpretation of Other Agreements.
This Pledge Agreement may not be used to interpret another pledge, security or
debt agreement of the Pledgor or any subsidiary thereof. No such pledge,
security or debt agreement may be used to interpret this Pledge Agreement.
Section 15.3. Severability. The provisions of this Pledge
Agreement are severable, and if any clause or provision shall be held invalid,
illegal or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall affect in that jurisdiction only such
clause or provision, or part thereof, and shall not in any manner affect such
clause or
<PAGE>
provision in any other jurisdiction or any other clause or provision of this
Pledge Agreement in any jurisdiction.
Section 15.4. Headings. The headings in this Pledge Agreement
have been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
Section 15.5. Counterpart Originals. This Pledge Agreement may
be signed in two or more counterparts, each of which shall be deemed an
original, but all of which shall together constitute one and the same agreement.
Section 15.6. Benefits of Pledge Agreement. Nothing in this
Pledge Agreement, express or implied, shall give to any person, other than the
parties hereto and their successors hereunder, and the Holders of the Notes, any
benefit or any legal or equitable right, remedy or claim under this Pledge
Agreement.
Section 15.7. Amendments, Waivers and Consents. Any amendment
or waiver of any provision of this Pledge Agreement and any consent to any
departure by the Pledgor from any provision of this Pledge Agreement shall be
effective only if made or duly given in compliance with all of the terms and
provisions of the Indenture, and neither the Trustee nor any Holder of Notes
shall be deemed, by any act, delay, indulgence, omission or otherwise, to have
waived any right or remedy hereunder or to have acquiesced in any Default or
Event of Default or in any breach of any of the terms and conditions hereof.
Failure of the Trustee or any Holder of Notes to exercise, or delay in
exercising, any right, power or privilege hereunder shall not preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Trustee or any Holder of Notes of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy that the Trustee or such Holder of Notes would otherwise have on any
future occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or remedies
provided by law.
Section 15.8. Interpretation of Agreement. All terms not
defined herein or in the Indenture shall have the meaning set forth in the
applicable UCC, except where the context otherwise requires. To the extent a
term or provision of this Pledge Agreement conflicts with the Indenture, the
Indenture shall control with respect to the subject matter of such term or
provision. Acceptance of or acquiescence in a course of performance rendered
under this Pledge Agreement shall not be relevant to determine the meaning of
this Pledge Agreement even though the accepting or acquiescing party had
knowledge of the nature of the performance and opportunity for objection.
Section 15.9. Continuing Security Interest; Termination. (a)
This Pledge Agreement shall create a continuing security interest in and to the
Collateral and shall, unless otherwise provided in the Indenture or in this
Pledge Agreement, remain in full force and effect until the earlier of payment
in full in cash of (i) each of the first six scheduled interest payments due on
the Notes under the terms of the Indenture or (ii) all obligations due and owing
under the
<PAGE>
Indenture and the Notes in the event such obligations become payable prior to
the payment of the first six scheduled interest payments on the Notes. This
Pledge Agreement shall be binding upon the Pledgor, its transferees, successors
and assigns, and shall inure, together with the rights and remedies of the
Trustee hereunder, to the benefit of the Trustee, the Holders of the Notes and
their respective successors, transferees and assigns.
(b) Subject to the provisions of Section 15.10 hereof, this
Pledge Agreement shall terminate upon the earlier of payment in full in
cash of (i) each of the first six scheduled interest payments due on
the Notes under the terms of the Indenture or (ii) all obligations due
and owing under the Indenture and the Notes in the event such
obligations become payable prior to the payment of the first six
scheduled interest payments on the Notes. At such time, the Trustee
shall, pursuant to an Issuer Order, reassign and redeliver to the
Pledgor all of the Collateral hereunder that has not been sold,
disposed of, retained or applied by the Trustee in accordance with the
terms of this Pledge Agreement and the Indenture. Such reassignment and
redelivery shall be without warranty by or recourse to the Trustee,
except as to the absence of any prior assignments by the Trustee of its
interest in the Collateral, and shall be at the reasonable expense of
the Pledgor.
Section 15.10. Survival Provisions. All representations,
warranties and covenants of the Pledgor contained herein shall survive the
execution and delivery of this Pledge Agreement, and shall terminate only upon
the termination of this Pledge Agreement. The obligations of the Pledgor under
Sections 11 and 13 hereof shall survive the termination of this Agreement.
Section 15.11. Waivers. The Pledgor waives presentment and
demand for payment of any of the Obligations, protest and notice of dishonor or
default with respect to any of the Obligations, and all other notices to which
the Pledgor might otherwise be entitled, except as otherwise expressly provided
herein or in the Indenture.
Section 15.12. Authority of the Trustee. (a) The Trustee shall
have and be entitled to exercise all powers hereunder that are specifically
granted to the Trustee by the terms hereof, together with such powers as are
reasonably incident thereto. The Trustee may perform any of its duties hereunder
or in connection with the Collateral by or through agents or employees and shall
be entitled to retain counsel and to act in reliance upon the advice of counsel
concerning all such matters. Neither the Trustee nor any director, officer,
employee, attorney or agent of the Trustee shall be liable to the Pledgor for
any action taken or omitted to be taken by it hereunder, except for its own bad
faith, gross negligence or wilful misconduct, and the Trustee shall not be
responsible for the validity, effectiveness or sufficiency hereof or of any
document or security furnished pursuant hereto. The Trustee and its directors,
officers, employees, attorneys and agents shall be entitled to rely on any
communication, instrument or document believed by it or them to be genuine and
correct and to have been signed or sent by the proper person or persons.
(b) The Pledgor acknowledges that the rights and
responsibilities of the Trustee under this Pledge Agreement with
respect to any action taken by the Trustee or the exercise or
non-exercise by the Trustee of any option, right, request, judgment or
other
<PAGE>
right or remedy provided for herein or resulting or arising out
of this Pledge Agreement shall, as between the Trustee and the Holders
of the Notes, be governed by the Indenture and by such other agreements
with respect thereto as may exist from time to time among them, but, as
between the Trustee and the Pledgor, the Trustee shall be conclusively
presumed to be acting as agent for the Holders of the Notes with full
and valid authority so to act or refrain from acting, and the Pledgor
shall not be obligated or entitled to make any inquiry respecting such
authority.
Section 15.13. Limitation by Law. All rights, remedies and
powers provided herein may be exercised only to the extent that they will not
render this Pledge Agreement not entitled to be recorded, registered or filed
under provisions of any applicable law.
Section 15.14. Final Expression. This Pledge Agreement,
together with any other agreement executed in connection herewith, is intended
by the parties as a final expression of this Pledge Agreement and is intended as
a complete and exclusive statement of the terms and conditions thereof.
Section 15.15. Rights of Holders of the Notes. No Holder of
Notes shall have any independent rights hereunder other than those rights
granted to individual Holders of the Notes pursuant to Section 6.06 of the
Indenture; provided that nothing in this subsection shall limit any rights
granted to the Trustee under the Notes or the Indenture.
Section 15.16. GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL; WAIVER OF DAMAGES. (a) THIS PLEDGE AGREEMENT SHALL BE
GOVERNED BY AND INTERPRETED UNDER THE LAWS OF THE STATE OF NEW YORK, AND ANY
DISPUTE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THE PLEDGOR, THE TRUSTEE AND THE HOLDERS OF THE
NOTES IN CONNECTION WITH THIS PLEDGE AGREEMENT, AND WHETHER ARISING IN CONTRACT,
TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
(b) THE PLEDGOR HAS APPOINTED [NAME OF AGENT FOR SERVICE OF
PROCESS], [ADDRESS OF AGENT FOR SERVICE OF PROCESS], AS ITS AGENT FOR SERVICE OF
PROCESS IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND FOR
ACTIONS BROUGHT UNDER U.S. FEDERAL OR STATE SECURITIES LAWS BROUGHT IN ANY
FEDERAL OR STATE COURT LOCATED IN THE CITY OF NEW YORK AND AGREES TO SUBMIT TO
THE JURISDICTION OF ANY SUCH COURT.
(c) THE PLEDGOR AGREES THAT THE TRUSTEE SHALL, IN ITS CAPACITY
AS TRUSTEE OR IN THE NAME AND ON BEHALF OF ANY HOLDER OF NOTES, HAVE THE RIGHT,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE PLEDGOR OR ITS
PROPERTY IN A COURT IN ANY LOCATION REASONABLY SELECTED IN GOOD FAITH (AND
HAVING PERSONAL OR
<PAGE>
IN REM JURISDICTION OVER THE PLEDGOR OR ITS PROPERTY, AS THE CASE MAY BE) TO
ENABLE THE TRUSTEE TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER ENTERED IN FAVOR OF THE TRUSTEE. THE PLEDGOR AGREES THAT IT
WILL NOT ASSERT ANY COUNTERCLAIMS, SETOFFS OR CROSSCLAIMS IN ANY PROCEEDING
BROUGHT BY THE TRUSTEE TO REALIZE ON SUCH PROPERTY OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF THE TRUSTEE, EXCEPT FOR SUCH COUNTERCLAIMS,
SETOFFS OR CROSSCLAIMS WHICH, IF NOT ASSERTED IN ANY SUCH PROCEEDING, COULD NOT
OTHERWISE BE BROUGHT OR ASSERTED. THE PLEDGOR WAIVES ANY OBJECTION THAT IT MAY
HAVE TO THE LOCATION OF THE COURT IN THE CITY OF NEW YORK ONCE THE TRUSTEE HAS
COMMENCED A PROCEEDING DESCRIBED IN THIS PARAGRAPH INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS.
(d) THE PLEDGOR AND THE TRUSTEE EACH WAIVE ANY RIGHT TO HAVE A
JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR
OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS PLEDGE AGREEMENT.
INSTEAD, ANY DISPUTES RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL
WITHOUT A JURY.
(e) THE PLEDGOR AGREES THAT NEITHER THE TRUSTEE NOR ANY HOLDER
OF NOTES SHALL HAVE ANY LIABILITY TO THE PLEDGOR (WHETHER ARISING IN TORT,
CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY THE PLEDGOR IN CONNECTION WITH,
ARISING OUT OF, OR IN ANY WAY RELATED TO, THE TRANSACTIONS CONTEMPLATED AND THE
RELATIONSHIP ESTABLISHED BY THIS PLEDGE AGREEMENT, OR ANY ACT, OMISSION OR EVENT
OCCURRING IN CONNECTION THEREWITH, UNLESS IT IS DETERMINED BY A FINAL AND
NONAPPEALABLE JUDGMENT OF A COURT THAT IS BINDING ON THE TRUSTEE OR SUCH HOLDER
OF NOTES, AS THE CASE MAY BE, THAT SUCH LOSSES WERE THE RESULT OF ACTS OR
OMISSIONS ON THE PART OF THE TRUSTEE OR SUCH HOLDERS OF NOTES, AS THE CASE MAY
BE, CONSTITUTING BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(f) TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS
OTHERWISE PROVIDED IN THIS PLEDGE AGREEMENT, THE PLEDGOR WAIVES ALL RIGHTS OF
NOTICE AND HEARING OF ANY KIND PRIOR TO THE EXERCISE BY THE TRUSTEE OR ANY
HOLDER OF NOTES OF ITS RIGHTS DURING THE CONTINUANCE OF ALL EVENTS OF DEFAULT TO
REPOSSESS THE COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY
UPON THE COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE PLEDGOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF THE TRUSTEE OR ANY HOLDER OF NOTES IN CONNECTION WITH ANY
JUDICIAL PROCESS OR PROCEEDING TO OBTAIN POSSESSION OF REPLEVY, ATTACH OR LEVY
UPON THE COLLATERAL OR OTHER
<PAGE>
SECURITY FOR THE OBLIGATIONS, TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF THE TRUSTEE OR ANY HOLDER OF NOTES, OR TO ENFORCE BY
SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER OR PRELIMINARY OR PERMANENT
INJUNCTION, THIS PLEDGE AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN THE
PLEDGOR ON THE ONE HAND AND THE TRUSTEE AND/OR THE HOLDERS OF THE NOTES ON THE
OTHER HAND.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, the Pledgor and the Trustee have each
caused this Pledge Agreement to be duly executed and delivered as of the date
first above written.
Pledgor:
ORION NEWCO SERVICES, INC.
By:____________________________
Name:__________________________
Title:_________________________
Trustee:
BANKERS TRUST COMPANY,
as Trustee
By:____________________________
Name:__________________________
Title:_________________________
<PAGE>
EXHIBIT A TO THE
COLLATERAL PLEDGE
AND SECURITY AGREEMENT
Orion Newco Services, Inc.
2440 Research Boulevard
Suite 40
Rockville, Maryland 20850
Attention: [___________________]
Bankers Trust Company,
as Trustee
4 Albany Street
New York, New York 10006
Attention: Corporate Trustee Administration Department
Ladies and Gentlemen:
Reference is made to the Indenture dated as [__________], 1997
between Orion Newco Services, Inc., as issuer (the "Issuer"), each of the
Issuer's Restricted Subsidiaries (as defined in the Indenture), as guarantors,
and Bankers Trust Company, as trustee thereunder (the "Trustee"), relating to
the [___]% Senior Notes due 2007 of the Issuer (the "Notes") and the Collateral
Pledge and Security Agreement dated as of [__________], 1997 (the "Pledge
Agreement") between the Issuer and the Trustee, for the benefit of the Trustee
and the ratable benefit of the holders of the Notes.
We hereby confirm that we are holding the Pledged Securities
(as defined in the Pledge Agreement) in account no. [Account Number] (the
"Account") at our office at 4 Albany Street, New York, New York, 10006, for the
benefit of the Trustee and the ratable benefit of the holders of the Notes as
provided in the Pledge Agreement and that we have indicated the same in our
books and records relating to the Pledged Securities and the Account.
Very truly yours,
BANKERS TRUST COMPANY,
in its individual capacity
By:____________________________
Name:__________________________
Title:_________________________
S&S DRAFT
01/20/97
WARRANT AGREEMENT
between
ORION NEWCO SERVICES, INC.
and
BANKERS TRUST COMPANY,
Warrant Agent
Dated as of [___________], 1997
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE I
CERTAIN DEFINITIONS
ARTICLE II
ORIGINAL ISSUE OF WARRANTS
<S> <C> <C>
Section 2.1. Form of Warrant Certificates................................................................ 5
Section 2.2. Legends..................................................................................... 6
Section 2.3. Execution and Delivery of Warrant Certificates.............................................. 7
Section 2.4. Transfer and Exchange....................................................................... 7
Section 2.5. Surrender of Warrant Certificates........................................................... 10
ARTICLE III
EXERCISE PRICE; EXERCISE AND REPURCHASE OF WARRANTS
Section 3.1. Exercise Price.............................................................................. 10
Section 3.2. Exercise; Restrictions on Exercise.......................................................... 10
Section 3.3. Method of Exercise; Payment of Exercise Price............................................... 11
Section 3.4. Repurchase Offers........................................................................... 12
ARTICLE IV
ADJUSTMENTS
Section 4.1. Adjustments................................................................................. 15
Section 4.2. Notice of Adjustment........................................................................ 22
Section 4.3. Statement on Warrants....................................................................... 22
Section 4.4. Notice of Consolidation, Merger, Etc........................................................ 22
Section 4.5. Fractional Interests........................................................................ 23
ARTICLE V
DECREASE IN EXERCISE PRICE
ARTICLE VI
LOSS OR MUTILATION
ARTICLE VII
AUTHORIZATION AND RESERVATION
OF COMMON SHARES
<PAGE>
ii
Page
ARTICLE VIII
WARRANT HOLDERS
Section 8.1. Warrant Holder Not Deemed a Stockholder..................................................... 24
Section 8.2. Right of Action............................................................................. 25
ARTICLE IX
REMEDIES
Section 9.1. Defaults.................................................................................... 25
Section 9.2. Payment Obligations......................................................................... 25
Section 9.3. Remedies; No Waiver......................................................................... 25
ARTICLE X
THE WARRANT AGENT
Section 10.1. Duties and Liabilities..................................................................... 26
Section 10.2. Right to Consult Counsel................................................................... 27
Section 10.3. Compensation; Indemnification.............................................................. 27
Section 10.4. No Restrictions on Actions................................................................. 27
Section 10.5. Discharge or Removal; Replacement Warrant Agent............................................ 28
Section 10.6. Successor Warrant Agent.................................................................... 29
ARTICLE XI
REGISTRATION
Section 11.1. Effectiveness and Availability of Registration Statement................................... 29
Section 11.2. Suspension................................................................................. 29
Section 11.3. Blue Sky................................................................................... 29
Section 11.4. Accuracy of Disclosure..................................................................... 30
Section 11.5. Indemnity.................................................................................. 30
Section 11.6. Expenses................................................................................... 30
Section 11.7. Additional Acts............................................................................ 30
ARTICLE XII
MISCELLANEOUS
Section 12.1. Money Deposited with the Warrant Agent..................................................... 31
Section 12.2. Payment of Taxes........................................................................... 31
Section 12.3. No Merger, Consolidation or Sale of Assets of Newco........................................ 31
<PAGE>
iii
Page
Section 12.4. Reports to Holders......................................................................... 31
Section 12.5. Notices.................................................................................... 32
Section 12.6. Governing Law.............................................................................. 32
Section 12.7. Binding Effect............................................................................. 33
Section 12.8. Counterparts............................................................................... 33
Section 12.9. Amendments................................................................................. 33
Section 12.10. Headings.................................................................................. 33
Section 12.11. Common Shares Legend...................................................................... 33
Section 12.12. Third Party Beneficiaries................................................................. 34
Section 12.13. Submission to Jurisdiction; Appointment of Agent for Service.............................. 34
EXHIBIT A FORM OF WARRANT CERTIFICATE.................................A-1
APPENDIX A LIST OF FINANCIAL EXPERTS
</TABLE>
<PAGE>
2
WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of [_____________], 1997 (this
"Agreement"), between ORION NEWCO SERVICES, INC., a Delaware corporation
("Newco"), and BANKERS TRUST COMPANY, a banking corporation duly organized and
existing under the laws of the State of New York, as warrant agent (the "Warrant
Agent").
Pursuant to the terms of an Underwriting Agreement dated
as of [______________], 1997 (the "Underwriting Agreement"), between Newco and
Orion Network Systems, Inc., a Delaware corporation ("Orion"), on the one hand,
and Morgan Stanley & Co. Incorporated ("Morgan Stanley") and Merrill Lynch &
Co., as Underwriters (collectively, the "Underwriters"), on the other hand,
Newco has agreed to issue and sell to the Underwriters _____ Senior Note Units
(collectively, the "Senior Note Units") and _____ Senior Discount Note Units
(collectively, the "Senior Discount Note Units"; and, together with the Senior
Note Units, the "Units"). Each Senior Note Unit will consist of (i) one ____%
Senior Note due 2007 with a principal amount of $1,000 (collectively, the
"Senior Notes") to be issued pursuant to the provisions of a Senior Note
Indenture (the "Senior Note Indenture") to be dated as of the Closing Date (as
defined below) between Newco, the subsidiaries of Orion, as guarantors (the
"Guarantors") and Bankers Trust Company, as trustee and (ii) a Warrant
(collectively, the "Warrants"), each Warrant entitling the holder thereof to
purchase ______ Common Shares of Newco at a price of $[___] per share, subject
to adjustment as provided herein. Each Senior Discount Note Unit will consist of
(i) one ___% Senior Unsecured Discount Note due 2007 with a principal amount of
maturity of $1,000 (collectively, the "Senior Discount Notes"; and, together
with the Senior Notes, the "Notes") to be issued pursuant to the provisions of a
Senior Discount Note Indenture to be dated as of the Closing Date (the "Senior
Discount Note Indenture"; and, together with the Senior Note Indenture, the
"Indentures") between Newco, the Guarantors, as guarantors, and the Trustee, as
trustee and (ii) a Warrant. The Notes and Warrants included in each Unit will
become separately transferable at the close of business upon the earliest of (i)
the date that is six months after the Closing Date, (ii) such date as the
Underwriters may, in their discretion, deem appropriate and (iii) in the event
of an Offer to Purchase, the date Newco mails notice thereof to holders of the
Notes.
In consideration of the foregoing and of the agreements
contained in the Underwriting Agreement and for the purpose of defining the
terms and provisions of the Warrants and the respective rights and obligations
thereunder of Newco and the record holders of the Warrants (the "Holders"),
Newco and the Warrant Agent hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
"Affiliate" of any Person means any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For purposes of this definition, "control", when used
with respect to any Person, means the power to direct the management and
policies of such Person, whether through the ownership of voting securities,
<PAGE>
by contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agent Members" has the meaning specified in Section 2.4
hereof.
"Business Day" means any day which is not a Saturday, a
Sunday, or any other day on which banking institutions are authorized or
required to be closed in the State of New York or the state in which the
principal corporate trust office of the Warrant Agent is located.
"Certificated Warrants" has the meaning specified in
Section 2.4 hereof.
"Closing Date" means [____________], 1997.
"Commission" means the Securities and Exchange Commission.
"Common Shares" means the common stock, par value $.01 per
share, of Newco and any other capital stock into which such shares may be
converted or reclassified or that may be issued in respect of, in exchange for,
or in substitution of, such Common Shares by reason of any stock splits, stock
dividends, distributions, mergers, consolidations or other like events.
"Current Market Value" has the meaning specified in
Section 4.1(f) hereof.
"Default" has the meaning specified in Article IX hereof.
"Depositary" means The Depository Trust Company, its
nominees and their respective successors.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Exercise Price" has the meaning specified in Section 3.1
hereof.
"Expiration Date" means [________________], 2007.
"Expiration Time" has the meaning specified in Section
4.1(e) hereof.
"Financial Expert" means one of the Persons listed in
Appendix A hereto.
"Global Warrant" has the meaning specified in Section 2.1
hereof.
"Guarantors" has the meaning specified in the recitals to
this Agreement.
"Holders" has the meaning specified in the recitals to
this Agreement.
<PAGE>
"Indentures" has the meaning specified in the recitals to
this Agreement.
"Independent Financial Expert" means a Financial Expert
that does not (and whose directors, executive officers or 5% stockholders do
not) have a direct or indirect financial interest in Newco or any of its
subsidiaries, which has not been for at least five years, and, at the time it is
called upon to give independent financial advice to Newco is not (and none of
its directors, executive officers or 5% stockholders is) a promoter, director,
or officer of Newco or any of its subsidiaries. The Independent Financial Expert
may be compensated and indemnified by Newco for opinions or services it provides
as an Independent Financial Expert.
"Newco" has the meaning specified in the recitals to this
Agreement.
"Notes" has the meaning specified in the recitals to this
Agreement.
"Notice Date" has the meaning specified in Section 3.4(b)
hereof.
"Offer Notice" has the meaning specified in Section 3.4(f)
hereof.
"Offer to Purchase" means an offer to purchase Notes by
Newco from the Holders commenced by mailing a notice to the relevant trustee and
each Holder stating: (i) the covenant of the Indenture 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 Newco 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 (as defined in the Indentures) 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
an integral multiple thereof.
"Orion" has the meaning specified in the recitals to this
Agreement.
<PAGE>
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Registration Statement" has the meaning specified in
Section 11.1 hereof.
"Relevant Value" has the meaning specified in Section
3.4(d) hereof.
"Repurchase Event" means, and shall be deemed to occur on,
any date prior to the Expiration Date when Newco (i) consolidates or merges into
or with another Person (but only where the holders of Common Shares receive
consideration in exchange for all or part of such Common Shares) if the Common
Shares (or other securities) thereafter issuable upon exercise of the Warrants
are not registered under the Exchange Act or (ii) sells all or substantially all
of its assets to another Person if the Common Shares (or other securities)
thereafter issuable upon exercise of the Warrants is not registered under the
Exchange Act; provided that in each case a "Repurchase Event" will not be deemed
to have occurred if the consideration for the Common Shares in such transaction
consists solely of cash.
"Repurchase Notice" has the meaning specified in Section
3.4(a) hereof.
"Repurchase Obligation" has the meaning specified in
Section 9.2 hereof.
"Repurchase Offer" has the meaning specified in Section
3.4(b) hereof.
"Repurchase Price" has the meaning specified in Section
3.4(d) hereof.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Discount Note Indenture" has the meaning specified
in the recitals to this Agreement.
"Senior Discount Notes" has the meaning specified in the
recitals to this Agreement.
"Senior Discount Notes Units" has the meaning specified in
the recitals to this Agreement.
"Senior Note Indenture" has the meaning specified in the
recitals to this Agreement.
"Senior Notes" has the meaning specified in the recitals
to this Agreement.
<PAGE>
"Senior Note Units" has the meaning specified in the
recitals to this Agreement.
"Separation Date" means the close of business upon the
earliest of (i) the date that is six months after the Closing Date, (ii) such
date as the Underwriters may, in their discretion, deem appropriate and (iii) in
the event of an Offer to Purchase, the date Newco mails notice thereof to
holders of the Notes.
"Spread" means, with respect to any Warrant, the Current
Market Value of the Underlying Securities issuable upon exercise of such
Warrant, less the Exercise Price of such Warrant, in each case as adjusted as
provided herein.
"Underlying Securities" means the Common Shares or other
securities or property issuable upon exercise of the Warrants.
"Underwriting Agreement" has the meaning specified in the
recitals to this Agreement.
"Units" has the meaning specified in the recitals to this
Agreement.
"Valuation Date" means the date five Business Days prior
to the Notice Date.
"Value Certificate" has the meaning specified in Section
3.4(d)(ii)(1) hereof.
"Value Report" means the value report prepared by an
Independent Financial Expert in accordance with Section 3.4(d)(ii)(2) hereof.
"Warrant" has the meaning specified in the recitals to
this Agreement.
"Warrant Agent" has the meaning specified in the preamble
to this Agreement.
"Warrant Certificates" has the meaning specified in
Section 2.1 hereof.
ARTICLE II
ORIGINAL ISSUE OF WARRANTS
Section 2.1. Form of Warrant Certificates. Certificates
representing the Warrants (the "Warrant Certificates") shall be issued in
registered form only, shall be substantially in the form attached hereto as
Exhibit A, shall be dated the date on which countersigned by the Warrant Agent
and shall have such insertions as are appropriate or required or permitted by
this Agreement and may have such letters, numbers or other marks of
identification and such legends and endorsements stamped, printed, lithographed
or engraved thereon as Newco may deem
<PAGE>
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation
pursuant thereto or with any rule or regulation of any securities exchange on
which the Warrants may be listed, or to conform to usage.
The Warrants shall be issued initially in the form of one
or more permanent global Warrant Certificates in definitive, fully registered
form, substantially in the form set forth in Exhibit A (the "Global Warrant"),
deposited with the Warrant Agent, as custodian for the Depositary, duly executed
by Newco and countersigned by the Warrant Agent as hereinafter provided.
The definitive Warrant Certificates shall be typed,
printed, lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner permitted by the rules of any
securities exchange on which the Warrants may be listed, all as determined by
the officers executing such Warrant Certificates, as evidenced by their
execution of such Warrant Certificates.
Section 2.2. Legends. (a) Each Global Warrant shall also
bear the following legend on the face thereof:
UNLESS THIS WARRANT CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO NEWCO OR THE WARRANT
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR REPURCHASE AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN ARTICLE II OF THE WARRANT AGREEMENT.
<PAGE>
(b) Each Warrant Certificate issued prior to the
Separation Date shall bear the following legend on the face thereof:
THE WARRANTS EVIDENCED BY THIS CERTIFICATE WERE INITIALLY ISSUED AS PART
OF AN ISSUANCE OF SENIOR NOTE UNITS (CUSIP NO. [______]) AND SENIOR
DISCOUNT NOTE UNITS (CUSIP NO. [_______]), EACH SENIOR NOTE UNIT OF WHICH
CONSISTS OF $[_______] PRINCIPAL AMOUNT OF [__]% SENIOR NOTES DUE 2007 OF
NEWCO (THE "SENIOR NOTES") AND A WARRANT, AND EACH SENIOR DISCOUNT NOTE
UNIT OF WHICH CONSISTS OF $[_____] PRINCIPAL AMOUNT AT MATURITY OF SENIOR
DISCOUNT NOTES DUE 2007 (TOGETHER WITH THE SENIOR NOTES, THE "NOTES") AND
A WARRANT. PRIOR TO THE CLOSE OF BUSINESS UPON THE EARLIEST OF (I) THE
DATE THAT IS SIX MONTHS AFTER THE CLOSING DATE, (II) SUCH DATE AS THE
UNDERWRITERS MAY, IN THEIR DISCRETION, DEEM APPROPRIATE AND (III) THE DATE
NEWCO MAILS NOTICE OF AN OFFER TO REPURCHASE THE NOTES TO HOLDERS OF THE
NOTES PURSUANT TO THE INDENTURES, THE WARRANTS EVIDENCED BY THIS
CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, BUT MAY
BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE NOTES.
Section 2.3. Execution and Delivery of Warrant
Certificates. Warrant Certificates evidencing Warrants to purchase initially an
aggregate of up to [__________] Common Shares may be executed, on or after the
date of this Agreement, by Newco and delivered to the Warrant Agent for
countersignature, and the Warrant Agent shall thereupon countersign and deliver
such Warrant Certificates upon the written order and at the direction of Newco
to the purchasers thereof on the date of issuance. The Warrant Agent is hereby
authorized to countersign and deliver Warrant Certificates as required by this
Section 2.3 or by Section 2.4, Section 3.3, Section 3.4 or Article VI hereof.
The Warrant Certificates shall be executed on behalf of
Newco by its Chairman of the Board, Chief Executive Officer or President or by a
Vice President, either manually or by facsimile signature printed thereon. The
Warrant Certificates shall be countersigned by manual or facsimile signature of
the Warrant Agent and shall not be valid for any purpose unless so
countersigned. In case any officer of Newco whose signature shall have been
placed upon any of the Warrant Certificates shall cease to be such officer of
Newco before countersignature by the Warrant Agent and the issuance and delivery
thereof, such Warrant Certificates may, nevertheless, be countersigned by the
Warrant Agent and issued and delivered with the same force and effect as though
such person had not ceased to be such officer of Newco.
Section 2.4. Transfer and Exchange. Newco shall cause to
be kept at the office of the Warrant Agent a register in which, subject to such
reasonable regulations as it may
<PAGE>
prescribe, Newco shall provide for the registration of Warrant Certificates and
transfers and exchanges of Warrant Certificates as herein provided.
A Holder may transfer its Warrants only by written
application to the Warrant Agent stating the name of the proposed transferee and
otherwise complying with the terms of this Agreement. No such transfer shall be
effected until, and such transferee shall succeed to the rights of a Holder only
upon, final acceptance and registration of the transfer by the Warrant Agent in
the register in accordance with this Agreement. Prior to the registration of any
transfer of Warrants by a Holder as provided herein, Newco, the Warrant Agent
and any agent of Newco may treat the person in whose name the Warrants are
registered as the owner thereof for all purposes and as the person entitled to
exercise the rights represented thereby, any notice to the contrary
notwithstanding. Furthermore, any holder of a Global Warrant shall, by
acceptance of such Global Warrant, agree that transfers of beneficial interests
in such Global Warrant may be effected only through a book-entry system
maintained by the Holder of such Global Warrant (or
its agent), and that ownership of a beneficial interest in the Warrants
represented thereby shall be required to be reflected in a book entry. When
Warrants are presented to the Warrant Agent with a request to register the
transfer thereof or to exchange them for an equal number of Warrants of other
authorized denominations, the Warrant Agent shall register the transfer or make
the exchange as requested if the requirements of this Agreement for such
transaction are met. To permit registrations of transfers and exchanges, Newco
shall execute Warrant Certificates at the Warrant Agent's request. No service
charge shall be made for any registration of transfer or exchange of Warrants,
but Newco may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection with any registration of
transfer or exchange of Warrants.
The Warrants will initially be issued as part of the
issuance of the Units. Prior to the Separation Date, the Warrants may not be
transferred or exchanged separately from, but may be transferred or exchanged
only together with, the Notes issued as part of such Units.
Notwithstanding any other provisions of this Section 2.4,
unless and until it is exchanged in whole or in part for Warrants in definitive
registered form ("Certificated Warrants"), a Global Warrant representing all or
a portion of the Warrants may not be transferred except as a whole by the
Depositary to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. Interests of beneficial owners in the Global Warrant may be
transferred in accordance with the rules and procedures of the Depositary.
Members of, or participants in, the Depositary ("Agent Members") shall have no
rights under this Agreement with respect to the Global Warrant held on their
behalf by the Depositary or the Warrant Agent as its custodian, and the
Depositary may be treated by Newco, the Warrant Agent and any agent of Newco or
the Warrant Agent as the absolute owner of such Global Warrant for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent Newco,
the Warrant Agent or any
<PAGE>
agent of Newco or the Warrant Agent from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Warrants. The registered holder of the Global Warrant may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Agreement or the Warrants.
If the Depositary notifies Newco that it is unwilling or
unable to continue as Depositary for the Global Warrant or Warrants or if at any
time the Depositary shall no longer be eligible under the next sentence of this
paragraph, Newco shall appoint a successor Depositary with respect to the
Warrants. Each Depositary appointed pursuant to this Section 2.4 must, at the
time of its appointment and at all times while it serves as Depositary, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation. Newco will execute, and the Warrant Agent, upon receipt
of written instructions from Newco, will countersign and deliver, Warrants in
definitive registered form in any authorized denominations, in an aggregate
amount equal to the amount of the Global Warrant or Warrants representing such
Warrants in exchange for such Global Warrant or Warrants if the Depositary
notifies Newco that it is unwilling or unable to continue as Depositary for the
Global Warrant or Warrants or if at any time the Depositary shall no longer be
eligible to serve as Depositary and a successor Depositary for the Warrants is
not appointed by Newco within 60 days after Newco receives such notice or
becomes aware of such ineligibility.
Newco may at any time and in its sole discretion determine
that the Warrants shall no longer be represented by a Global Warrant or
Warrants. In such event Newco will execute, and the Warrant Agent, upon receipt
of written instructions from Newco, will countersign and deliver, Certificated
Warrants in any authorized denominations, in an aggregate amount equal to the
amount of Warrants represented by the Global Warrant or Warrants in exchange for
such Global Warrant or Warrants.
Upon the exchange of a Global Warrant for Certificated
Warrants, such Global Warrant shall be cancelled by the Warrant Agent.
Certificated Warrants issued in exchange for a Global Warrant pursuant to this
Section 2.4 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Warrant, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Warrant Agent. The Warrant Agent shall deliver such Certificated
Warrants to or as directed by the Persons in whose names such Warrants are so
registered.
All Warrant Certificates issued upon any registration of
transfer or exchange of Warrants shall be the valid obligations of Newco,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for registration of transfer
or exchange.
<PAGE>
Section 2.5. Surrender of Warrant Certificates. Any
Warrant Certificate surrendered for registration of transfer, exchange, exercise
or repurchase of the Warrants represented thereby shall, if surrendered to
Newco, be delivered to the Warrant Agent, and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly cancelled by
the Warrant Agent and shall not be reissued by Newco and, except as provided in
this Article II in case of an exchange, Article III hereof in case of the
exercise or repurchase of less than all the Warrants represented thereby or
Article VI in case of a mutilated Warrant Certificate, no Warrant Certificate
shall be issued hereunder in lieu thereof. The Warrant Agent shall destroy all
cancelled Warrant Certificates in accordance with its normal procedures.
ARTICLE III
EXERCISE PRICE; EXERCISE AND REPURCHASE OF WARRANTS
Section 3.1. Exercise Price. Each Warrant Certificate
shall, when countersigned by the Warrant Agent, entitle the Holder thereof,
subject to the provisions of this Agreement, to purchase [___________] Common
Shares for each Warrant represented thereby at a purchase price (the "Exercise
Price") of $[_____] per share, subject to adjustment as provided in Section 4.1
and Article V hereof, provided that, at the option of the Holder thereof,
payment of the Exercise Price may be satisfied through the delivery and
cancellation of additional Warrants having an aggregate Spread equal to the
Exercise Price of the Warrants being exercised.
Section 3.2. Exercise; Restrictions on Exercise. (a) At
any time after six months from the Closing Date and on or before the Expiration
Date, any outstanding Warrants may be exercised on any Business Day; provided
that the Registration Statement is, at the time of exercise, effective and
available or the exercise of such Warrants is exempt from the registration
requirements of the Securities Act. Any Warrants not exercised by 5:00 p.m., New
York City time, on the Expiration Date shall expire and all rights of the
Holders of such Warrants shall terminate. Additionally, pursuant to Section
4.1(i)(ii) hereof, the Warrants may expire and all rights of the Holders of such
Warrants shall terminate in the event Newco merges or consolidates with, or
sells all or substantially all of its property and assets to, a Person (other
than an Affiliate of Newco) if the consideration payable to holders of Common
Shares in exchange for their Common Shares in connection with such merger,
consolidation or sale consists solely of cash or in the event of the
dissolution, liquidation or winding up of Newco.
(b) In the event a Holder exercises its Warrants at a time
when the Registration Statement is not effective and available, such Holder must
furnish to the Warrant Agent and Newco such certifications, legal opinions or
other information as either of them may reasonably require to confirm that such
exercise is being made pursuant to an exemption from the registration
requirements of the Securities Act.
<PAGE>
Section 3.3. Method of Exercise; Payment of Exercise
Price. In order to exercise all or any of the Warrants represented by a Warrant
Certificate, the Holder thereof must surrender for exercise the Warrant
Certificate to the Warrant Agent at its corporate trust office set forth in
Section 12.5 hereof, with the Subscription Form set forth in the Warrant
Certificate duly executed, together with payment in full of the Exercise Price
then in effect for each Common Share or other securities or property issuable
upon exercise of the Warrants as to which a Warrant is exercised; such payment
may be made (x) in the form of cash or by certified or official bank check
payable to the order of Newco or (y) as permitted pursuant to the proviso in
Section 3.1. All payments received upon exercise of Warrants shall be delivered
to Newco by the Warrant Agent as instructed in writing by Newco. If less than
all the Warrants represented by a Warrant Certificate are exercised, such
Warrant Certificate shall be surrendered and a new Warrant Certificate of the
same tenor and for the number of Warrants which were not exercised shall be
executed by Newco and delivered to the Warrant Agent and the Warrant Agent shall
countersign the new Warrant Certificate, registered in such name or names as may
be directed in writing by the Holder, and shall deliver the new Warrant
Certificate to the Person or Persons
entitled to receive the same. Upon exercise of any Warrants following surrender
of a Warrant Certificate in conformity with the foregoing provisions, the
Warrant Agent shall instruct Newco to transfer promptly to or upon the written
order of the Holder of such Warrant Certificate appropriate evidence of
ownership of any Common Shares or other securities or property (including money)
to which it is entitled, registered or otherwise placed in such name or names as
may be directed in writing by the Holder, and to deliver such evidence of
ownership and any other securities or property (including money) to the Person
or Persons entitled to receive the same, together with an amount in cash in lieu
of any fractional shares as provided in Section 4.5 hereof; provided that the
Holder of such Warrant shall be responsible for the payment of any transfer
taxes required as the result of any change in ownership of such Warrants or the
issuance of such Common Shares or other securities or property other than to the
registered owner of such Warrants. Upon exercise of a Warrant or Warrants, the
Warrant Agent is hereby authorized and directed to requisition from any transfer
agent of the Common Shares (and all such transfer agents are hereby irrevocably
authorized to comply with all such requests) certificates (bearing the legend
set forth in Section 12.11, if applicable) for the necessary number of shares to
which the Holder of the Warrant or Warrants may be entitled. A Warrant shall be
deemed to have been exercised immediately prior to the close of business on the
date of the surrender for exercise, as provided above, of the Warrant
Certificate representing such Warrant and, for all purposes of this Agreement,
the Person entitled to receive any Common Shares or other securities or property
deliverable upon such exercise shall, as between such Person and Newco, be
deemed to be the Holder of such Common Shares or other securities or property of
record as of the close of business on such date and shall be entitled to
receive, and the Warrant Agent shall deliver to such Person, any money, Common
Shares or other securities or property to which he would have been entitled had
he been the record holder on such date. Without limiting the foregoing, if, at
the date referred to above, the transfer books for the Common Shares or other
securities purchasable upon the exercise of the Warrants shall be closed, the
certificates for the Common Shares or securities in respect of which such
<PAGE>
Warrants are then exercised shall be issuable as of the date on which such books
shall next be opened, and until such date Newco shall be under no duty to
deliver any certificate for such Common Shares or other securities; provided
further that the transfer books or records, unless required by law, shall not be
closed at any one time for a period longer than 20 days.
Section 3.4. Repurchase Offers. (a) Notice of Repurchase
Event. Within five Business Days following the occurrence of a Repurchase Event,
Newco shall give notice (a "Repurchase Notice") to all Holders of the Warrants
and the Warrant Agent that such event has occurred.
(b) Repurchase Offers Generally. Following the occurrence
of a Repurchase Event, Newco shall offer to repurchase for cash all outstanding
Warrants pursuant to the provisions of this Section 3.4 (a "Repurchase Offer").
Newco shall give notice of a Repurchase Offer in accordance with Section 3.4(f)
hereof. The date on which Newco gives any such notice with respect to a
Repurchase Offer is referred to as the "Notice Date". The Repurchase Offer shall
commence on the Notice Date for such Repurchase Offer and shall expire at 5:00
p.m., New York City time, on a date determined by Newco (the "expiration date")
that is at least 30 but not more than 60 calendar days after the Notice Date.
Once a Repurchase Event has occurred, there is no limit on the number of
Repurchase Offers that Newco may make.
(c) Repurchase Offers. (i) In any Repurchase Offer, Newco
shall offer to purchase for cash at the Repurchase Price (as defined below) all
Warrants outstanding on the Notice Date for such Repurchase Offer that are
properly tendered to the Warrant Agent on or prior to the expiration date for
such Repurchase Offer.
(ii) Each Holder may, but shall not be obligated to,
accept such Repurchase Offer by tendering to the Warrant Agent, on or prior to
the expiration date for such Repurchase Offer, the Warrant Certificates
evidencing the Warrants such Holder desires to have repurchased in such offer,
together with a completed Certificate for Surrender in substantially the form
attached to the Warrant Certificate. A Holder may withdraw all or a portion of
the Warrants tendered to the Warrant Agent at any time prior to the expiration
date for such Repurchase Offer. If less than all the Warrants represented by a
Warrant Certificate shall be tendered, such Warrant Certificate shall be
surrendered and a new Warrant Certificate of the same tenor and for the number
of Warrants which were not tendered shall be executed by Newco and delivered to
the Warrant Agent and the Warrant Agent shall countersign the new Warrant
Certificate, registered in such name or names as may be directed in writing by
the Holder, and shall deliver the new Warrant Certificate to the Person or
Persons entitled to receive the same; provided that the Holder of such Warrants
shall be responsible for the payment of any transfer taxes required as the
result of any change in ownership of such Warrants.
(d) Repurchase Price. (i) The purchase price (the
"Repurchase Price") for each Warrant properly tendered to the Warrant Agent
pursuant to a Repurchase Offer shall be
<PAGE>
equal to the value (the "Relevant Value") on the Valuation Date of the Common
Shares issuable, and other securities or property which would have been
delivered, upon exercise of Warrants had the Warrants been exercised (regardless
of whether the Warrants are then exercisable), less the Exercise Price then in
effect.
(ii) The Relevant Value of the Common Shares and other
securities or property issuable upon exercise of the Warrants, on any Valuation
Date, shall be:
(1) (A) If the Common Shares (or other securities) are
registered under the Exchange Act, deemed to be the average of the daily
market prices (on the stock exchange that is the primary trading market
for the Common Shares) of the Common Shares (or other securities) for the
20 consecutive trading days immediately preceding such Valuation Date or
(B) if the Common Shares (or other securities) have been registered under
the Exchange Act for less than 20 consecutive trading days before such
date, then the average of the daily market prices for all of the trading
days before such date for which daily market prices are available, in the
case of each of (A) and (B), as certified to the Warrant Agent by the
President, any Vice President or the Chief Financial Officer of Newco (the
"Value Certificate"). The Warrant Agent shall have no duty with respect to
the Value Certificate, except to keep it on file and available for
inspection by the Holders and the Warrant Agent shall have no duty or
responsibility in determining the accuracy or correctness of the
calculations in such certificate. The market price for each such trading
day shall be: (A) in the case of a security listed or admitted to trading
on any national securities exchange, the closing sales price, regular way,
on such day, or if no sale takes place on such day, the average of the
closing bid and asked prices on such day, (B) in the case of a security
not then listed or admitted to trading on any national securities
exchange, the last reported sale price on such day, or if no sale takes
place on such day, the average of the closing bid and asked prices on such
day, as reported by a reputable quotation source designated by Newco, (C)
in the case of a security not then listed or admitted to trading on any
national securities exchange and as to which no such reported sale price
or bid and asked prices are available, the average of the reported high
bid and low asked prices on such day, as reported by a reputable quotation
service, or a newspaper of general circulation in the Borough of
Manhattan, City and State of New York customarily published on each
Business Day, designated by Newco, or, if there shall be no bid and asked
prices on such day, the average of the high bid and low asked prices, as
so reported, on the most recent day (not more than 30 days prior to the
date in question) for which prices have been so reported and (D) if there
are not bid and asked prices reported during the 30 days prior to the date
in question, the Relevant Value shall be determined as if the Common
Shares (or other securities) were not registered under the Exchange Act;
or
(2) If the Common Shares (or other securities) are not
registered under the Exchange Act or if the value cannot be computed under
clause (1) above, deemed to be
<PAGE>
equal to the value set forth in the Value Report (as defined below) as
determined by an Independent Financial Expert, which shall be selected by
the Board of Directors of Newco in accordance with Section 3.4(e) hereof,
and retained on customary terms and conditions, using one or more
valuation methods that the Independent Financial Expert, in its best
professional judgment, determines to be most appropriate but without
giving effect to any discount for lack of liquidity, the fact that Newco
has no class of equity securities registered under the Exchange Act or the
fact that the Common Shares and other securities or property issuable upon
exercise of the Warrants represent a minority interest in Newco. Newco
shall cause the Independent Financial Expert to deliver to Newco, with a
copy to the Warrant Agent, within 45 days of the appointment of the
Independent Financial Expert in accordance with Section 3.4(e) hereof, a
value report (a "Value Report") stating the Relevant Value of the Common
Shares and other securities or property, if any, being valued as of the
Valuation Date and containing a brief statement as to the nature and scope
of the examination or investigation upon which the determination of
Relevant Value was made. The Warrant Agent shall have no duty with respect
to the Value Report of any Independent Financial Expert, except to keep it
on file and available for inspection by the Holders and the Warrant Agent
shall have no duty or responsibility in determining the accuracy or
correctness of the calculations in such report. The determination as to
Relevant Value in accordance with the provisions of this Section 3.4(d)
shall be conclusive on all Persons. The Independent Financial Expert shall
consult with management of Newco in order to allow management to comment
on the proposed Relevant Value prior to delivery to Newco of any Value
Report of the Independent Financial Expert.
(e) Selection of Independent Financial Expert. If clause
(d)(ii)(2) is applicable, the Board of Directors of Newco shall select an
Independent Financial Expert not more than five Business Days following a
Repurchase Event. Within two calendar days after such selection of the
Independent Financial Expert, Newco shall deliver to the Warrant Agent a notice
setting forth the name of such Independent Financial Expert.
(f) Notice of Repurchase Offer. Each notice of a
Repurchase Offer (an "Offer Notice") given by Newco pursuant to Section 3.4(b)
shall (i) be given by Newco directly to all Holders of the Warrants, with a copy
to the Warrant Agent; (ii) be given simultaneously with the Repurchase Notice
(or, in the event that the Relevant Value of the Common Shares or other
securities or property issuable upon exercise of all the Warrants cannot be
determined pursuant to Section 3.4(d)(ii)(1), then such Offer Notice shall be
given within five Business Days after Newco receives the Value Report with
respect to such offer); and (iii) specify (A) the expiration date for such
Repurchase Offer, (B) the manner in which Warrants may be surrendered to the
Warrant Agent for repurchase by Newco, (C) the Repurchase Price at which the
Warrants will be repurchased by Newco, (D) if applicable, the name of the
Independent Financial Expert whose valuation of the Common Shares or other
securities or property was utilized in connection with determining such
Repurchase Price and (E) that payment of the Repurchase Price will be
<PAGE>
made by the Warrant Agent. Each such notice shall be accompanied by a
Certificate for Surrender for Repurchase Offer in substantially the form
attached to the Warrant Certificate and a copy of the Value Report, if any.
(g) Payment for Warrants. Upon surrender for repurchase of
any Warrants in conformity with the provisions of this Section 3.4, the Warrant
Agent shall thereupon promptly notify Newco of such surrender. Before 10:00
A.M., New York City time, on the expiration date for any Repurchase Offer, Newco
shall deposit with the Warrant Agent funds sufficient to make payment for the
Warrants tendered to the Warrant Agent and not withdrawn. After receipt of such
deposit from Newco, the Warrant Agent shall make payment, by delivering a check
in such amount as is appropriate, to such Person or Persons as it may be
directed in writing by the Holder surrendering such Warrants, net of any
transfer taxes required to be paid in the event payment is made to a Person
other than the Holder.
(h) Compliance with Laws. Notwithstanding anything
contained in this Section 3.4, if Newco is required to comply with laws or
regulations in connection with making
any Repurchase Offer, such laws or regulations shall govern the making of such
Repurchase Offer.
ARTICLE IV
ADJUSTMENTS
Section 4.1. Adjustments. The Exercise Price and the
number of Common Shares issuable upon exercise of each Warrant shall be subject
to adjustment from time to time as follows:
(a) Stock Dividends; Stock Splits; Reverse Stock Splits;
Reclassifications. In the event Newco shall (i) declare or pay a dividend or
make any other distribution with respect to its Common Shares in shares of any
class or series of its capital stock, (ii) subdivide its outstanding Common
Shares, (iii) combine its outstanding Common Shares into a smaller number of
shares, or (iv) issue any shares of its capital stock in a reclassification of
the Common Shares (other than a reclassification in connection with a merger,
consolidation or other business combination which will be governed by Section
4.1(j)), the number of Common Shares purchasable upon exercise of each Warrant
immediately prior to the record date for such dividend or distribution or the
effective date of such subdivision, or combination or reclassification shall be
adjusted so that the Holder of each Warrant shall thereafter be entitled to
receive the kind and number of Common Shares or other securities of Newco which
such Holder would have been entitled to receive after the happening of any of
the events described above had such Warrant been exercised immediately prior to
the happening of such event or any record date with respect thereto (with any
record date requirement being deemed to have been satisfied). An adjustment made
pursuant to this Section 4.1(a) shall become effective
<PAGE>
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
(b) Rights; Options; Warrants. In the event Newco shall
issue rights, options, warrants or convertible or exchangeable securities (other
than a convertible or exchangeable security subject to Section 4.1(a)) to all
holders of its Common Shares, entitling them to subscribe for or purchase Common
Shares at a price per share (determined in the case of such rights, options,
warrants or convertible or exchangeable securities, by dividing (x) the total
amount receivable by Newco in consideration of the issuance of such rights,
options, warrants or convertible or exchangeable securities, if any, plus the
total consideration payable to Newco upon exercise, conversion or exchange
thereof, by (y) the total number of Common Shares covered by such rights,
options, warrants or convertible or exchangeable securities) which is lower (at
the record date for such issuance) than the then Current Market Value per Common
Share, the number of Common Shares thereafter purchasable upon the exercise of
each Warrant shall be determined by multiplying the number of Common Shares
theretofore purchasable upon exercise of each Warrant by a fraction, the
numerator of which shall be the number of Common Shares outstanding immediately
prior to the issuance of such rights, options, warrants or convertible or
exchangeable securities plus the number of additional Common Shares offered for
subscription or purchase or issuable upon conversion or exchange, and the
denominator of which shall be the number of Common Shares outstanding
immediately prior to the issuance of such rights, options, warrants or
convertible or exchangeable securities plus the number of shares which the
aggregate offering price of the total number of Common Shares so offered would
purchase at the then Current Market Value per Common Share. Such adjustment
shall be made whenever such rights, options, warrants or convertible or
exchangeable securities are issued, and shall become effective retroactively
immediately after the record date for the determination of shareholders entitled
to receive such rights, options, warrants or convertible or exchangeable
securities.
(c) Issuance of Common Shares at Lower Values. In the
event Newco shall sell and issue any Common Shares or Right (excluding (i) any
Right issued in any of the transactions described in Section 4.1(a) or (b)
above, (ii) any Common Shares issued pursuant to (x) any Rights outstanding on
the date of this Agreement and (y) a Right, if on the date such Right was
issued, the exercise, conversion or exchange price per Common Share with respect
thereto was at least equal to the then Current Market Value per Common Share and
(iii) any Right issued as consideration when any corporation or business is
acquired, merged into or becomes part of Newco or a subsidiary of Newco in an
arm's-length transaction between Newco and a Person other than an Affiliate of
Newco) at a price per Common Share (determined in the case of such Right, by
dividing (x) the total amount receivable by Newco in consideration of the sale
and issuance of such Right, plus the total consideration payable to Newco upon
exercise, conversion or exchange thereof, by (y) the total number of Common
Shares covered by such Right) that is lower than the Current Market Value per
Common Share in effect immediately prior to such sale or issuance, then the
number of Common Shares thereafter purchasable upon
<PAGE>
the exercise of each Warrant shall be determined by
multiplying the number of Common Shares theretofore purchasable upon exercise of
such Warrant by a fraction, the numerator of which shall be the number of Common
Shares outstanding immediately after such sale or issuance and the denominator
of which shall be the number of Common Shares outstanding immediately prior to
such sale or issuance plus the number of Common Shares which the aggregate
consideration received (determined as provided below) for such sale or issuance
would purchase at such Current Market Value per Common Share. For purposes of
this Section 4.1(c), the Common Shares which the holder of any such Right shall
be entitled to subscribe for or purchase shall be deemed to be issued and
outstanding as of the date of such sale and issuance and the consideration
received by Newco therefor shall be deemed to be the consideration received by
Newco for such Right, plus the consideration or premiums stated in such Right to
be paid for the Common Shares covered thereby. In case Newco shall sell and
issue Common Shares or any Right, for a consideration consisting, in whole or in
part, of property other than cash or its equivalent, then in determining the
"price per Common Share" and the "consideration received by Newco" for purposes
of the first sentence of this Section 4.1(c), the Board of Directors of Newco
shall determine, in good faith, the fair value of said property, which
determination shall be evidenced by a resolution of the Board of Directors of
Newco. In case Newco shall sell and issue any Right together with one or more
other securities as part of a unit at a price per unit, then in determining the
"price per Common Share" and the "consideration received by Newco" for purposes
of the first sentence of this Section 4.1(c), the Board of Directors of Newco
shall determine, in good faith, the fair value of the Right then being sold as
part of such unit, which determination shall be evidenced by a resolution of the
Board of Directors of Newco. For purposes of this paragraph, a "Right" shall
mean any right, option, warrant or convertible or exchangeable security
containing the right to subscribe for or acquire one or more Common Shares,
excluding the Warrants.
(d) Distributions of Debt, Assets, Subscription Rights or
Convertible Securities. In the event Newco shall fix a record date for the
making of a distribution to all holders of its Common Shares of evidences of its
indebtedness, assets, cash dividends or distributions (excluding dividends or
distributions referred to in Section 4.1(a) above and excluding distributions in
connection with the dissolution, liquidation or winding up of Newco which will
be governed by Section 4.1(j)(ii) below) or securities (excluding those referred
to in Section 4.1(a), Section 4.1(b) or Section 4.1(c) above), then in each case
the number of Common Shares purchasable after such record date upon the exercise
of each Warrant shall be determined by multiplying the number of Common Shares
purchasable upon the exercise of such Warrant immediately prior to such record
date by a fraction, the numerator of which shall be the Current Market Value per
Common Share immediately prior to the record date for such distribution and the
denominator of which shall be the Current Market Value per Common Share
immediately prior to the record date for such distribution less the then fair
value (as determined in good faith by the Board of Directors of Newco) of the
portion of the assets, evidence of indebtedness, cash dividends or distributions
or securities so distributed applicable to one Common Share. Such adjustment
shall be made whenever any such distribution is made, and
<PAGE>
shall become effective on the date of distribution retroactive to the record
date for the determination of shareholders entitled to receive such
distribution.
(e) Self-Tenders. In case of the consummation of an issuer
bid or a tender or exchange offer (other than an odd-lot tender offer or a
normal course issuer bid) made by Newco or any subsidiary of Newco for all or
any portion of the Common Shares to the extent that the cash and value of any
other consideration included in such payment per Common Share exceeds the
Current Market Price per share of Common Shares on the trading day next
succeeding the Expiration Time (as defined below), the Exercise Price shall be
reduced so that the same shall equal the price determined by multiplying the
Exercise Price in effect immediately prior to the last time tenders or exchanges
were made pursuant to such issuer bid or tender or exchange offer (the
"Expiration Time") by a fraction of which the numerator shall be the number of
Common Shares outstanding (including any tendered or exchanged shares) on the
Expiration Time multiplied by the Current Market Price of the Common Shares on
the trading day next succeeding the Expiration Time, and the denominator shall
be the sum of (A) the fair market value (determined by the Board of Directors of
Newco, whose determination shall be conclusive and described in a resolution of
the Board of Directors) of the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in the terms of the issuer
bid or tender or exchange offer) of all shares validly tendered or exchanged and
not withdrawn as the Expiration Time (the shares deemed so accepted, up to any
such maximum, as of the Expiration Time (the shares deemed so accepted, up to
any such maximum, being referred to as the "Purchased Shares") and (B) the
product of the number of Common Shares outstanding (less any Purchased Shares)
on the Expiration Time and the Current Market Price of the Common Shares on the
trading day next succeeding the Expiration Time, such reduction to become
effective immediately prior to the opening of business on the day following the
Expiration Time.
(f) Expiration of Rights, Options and Conversion
Privileges. Upon the expiration of any rights, options, warrants or conversion
or exchange privileges that have previously resulted in an adjustment hereunder,
if any thereof shall not have been exercised, the Exercise Price and the number
of Common Shares issuable upon the exercise of each Warrant shall, upon such
expiration, be readjusted and shall thereafter, upon any future exercise, be
such as they would have been had they been originally adjusted (or had the
original adjustment not been required, as the case may be) as if (i) the only
Common Shares so issued were the Common Shares, if any, actually issued or sold
upon the exercise of such rights, options, warrants or conversion or exchange
rights and (ii) such Common Shares, if any, were issued or sold for the
consideration actually received by Newco upon such exercise plus the
consideration, if any, actually received by Newco for issuance, sale or grant of
all such rights, options, warrants or conversion or exchange rights whether or
not exercised; provided that no such readjustment shall have the effect of
increasing the Exercise Price by an amount, or decreasing the number of shares
issuable upon exercise of each Warrant by a number, in excess of the
<PAGE>
amount or number of the adjustment initially made in respect to the issuance,
sale or grant of such rights, options, warrants or conversion or exchange
rights.
(g) Current Market Value. For the purposes of any
computation under this Article IV, the Current Market Value per Common Share or
of any other security (herein collectively referred to as a "security") at any
date herein specified shall be:
(i) if the security is not registered under the
Exchange Act, the value of the security (1) most recently determined as of
a date within the six months preceding such date by an Independent
Financial Expert selected by Newco in accordance with the criteria for
such valuation set out in Section 4.1(l), or (2) if no such determination
shall have been made within such six-month period or if Newco so chooses,
determined as of such date by an Independent Financial Expert selected by
Newco in accordance with the criteria for such valuation set out in
Section 4.1(l), or
(ii) if the security is registered under the Exchange
Act, the average of the daily market prices of the security for the 20
consecutive trading days immediately preceding such date or, if the
security has been registered under the Exchange Act for less than 20
consecutive trading days before such date, then the average of the daily
market prices for all of the trading days before such date for which daily
market prices are available. The market price for each such trading day
shall be: (A) in the case of a security listed or admitted to trading on
any national securities exchange, the closing sales price, regular way, on
such day, or if no sale takes place on such day, the average of the
closing bid and asked prices on such day on the principal national
securities exchange on which such security is listed or admitted, as
determined by the Board of Directors of Newco, in good faith, (B) in the
case of a security not then listed or admitted to trading on any national
securities exchange, the last reported sale price on such day, or if no
sale takes place on such day, the average of the closing bid and asked
prices on such day, as reported by a reputable quotation source designated
by Newco, (C) in the case of a security not then listed or admitted to
trading on any national securities exchange and as to which no such
reported sale price or bid and asked prices are available, the average of
the reported high bid and low asked prices on such day, as reported by a
reputable quotation service, or a newspaper of general circulation in the
Borough of Manhattan, City and State of New York customarily published on
each Business Day, designated by Newco, or, if there shall be no bid and
asked prices on such day, the average of the high bid and low asked
prices, as so reported, on the most recent day (not more than 30 days
prior to the date in question) for which prices have been so reported and
(D) if there are no bid and asked prices reported during the 30 days prior
to the date in question, the Current Market Value of the security shall be
determined as if the security were not registered under the Exchange Act.
<PAGE>
(h) De Minimis Adjustments. No adjustment in the
number of Common Shares purchasable hereunder shall be required unless
such adjustment would require an increase or decrease of at least one
percent (1%) in the number of Common Shares purchasable upon the exercise
of each Warrant; provided, however, that any adjustments which by reason
of this Section 4.1(h) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations shall be made to the nearest one-thousandth of a share.
(i) Adjustment of Exercise Price. Whenever the number
of Common Shares purchasable upon the exercise of each Warrant is
adjusted, as herein provided, the Exercise Price per Common Share payable
upon exercise of such Warrant shall be adjusted (calculated to the nearest
$.0001) so that it shall equal the price determined by multiplying such
Exercise Price immediately prior to such adjustment by a fraction the
numerator of which shall be the number of Common Shares purchasable upon
the exercise of each Warrant immediately prior to such adjustment and the
denominator of which shall be the number of Common Shares so purchasable
immediately thereafter.
(j) Consolidation, Merger, Etc.
(i) Subject to the provisions of subsection (ii)
below of this Section 4.1(j), in case of the consolidation of Newco with,
or merger of Newco with or into, or of the sale of all or substantially
all of the properties and assets of Newco to, any Person, and in
connection therewith consideration is payable to holders of Common Shares
(or other securities or property purchasable upon exercise of Warrants) in
exchange therefor, the Warrants shall remain subject to the terms and
conditions set forth in this Agreement and each Warrant shall, after such
consolidation, merger or sale, entitle the Holder to receive upon exercise
the number of shares of capital stock or other securities or property
(including cash) of Newco, or of such Person resulting from such
consolidation or surviving such merger or to which such sale shall be
made, as the case may be, that would have been distributable or payable on
account of the Common Shares (or other securities or property purchasable
upon exercise of Warrants) if such Holder's Warrants had been exercised
immediately prior to such merger, consolidation or sale (or, if
applicable, the record date therefor); and in any such case the provisions
of this Agreement with respect to the rights and interests thereafter of
the Holders of Warrants shall be appropriately adjusted by the Board of
Directors of Newco in good faith so as to be applicable, as nearly as may
reasonably be, to any shares of stock or other securities or any property
thereafter deliverable on the exercise of the Warrants.
(ii) Notwithstanding the foregoing, (x) if Newco
merges or consolidates with, or sells all or substantially all of its
property and assets to, another Person (other than an Affiliate of Newco)
and consideration is payable to holders of Common Shares in exchange for
their Common Shares in connection with such merger, consolidation or
<PAGE>
sale which consists solely of cash, or (y) in the event of the
dissolution, liquidation or winding up of Newco, then the Holders of
Warrants shall be entitled to receive distributions on the date of such
event on an equal basis with holders of Common Shares (or other securities
issuable upon exercise of the Warrants) as if the Warrants had been
exercised immediately prior to such event, less the Exercise Price.
Notwithstanding the foregoing, if Newco has made, or is required to make,
a Repurchase Offer pursuant to Section 3.4 hereof and such Repurchase
Offer has not expired at the time of such transaction, the Holders of the
Warrants shall be entitled to receive the higher of (i) the amount payable
to the holders of the Warrants as described in the preceding sentence and
(ii) the Repurchase Price payable to the Holders of the Warrants pursuant
to such Repurchase Offer. Upon receipt of such payment, if any, the rights
of a Holder shall terminate and cease and such Holder's Warrants shall
expire. In case of any such merger, consolidation or sale of assets, the
surviving or acquiring Person and, in the event of any dissolution,
liquidation or winding up of Newco, Newco shall deposit promptly with the
Warrant Agent the funds, if any, necessary to pay the Holders of the
Warrants. After receipt of such deposit from such Person or Newco and
after receipt of surrendered Warrant Certificates, the Warrant Agent shall
make payment by delivering a check in such amount as is appropriate (or,
in the case of consideration other than cash, such other consideration as
is appropriate) to such Person or Persons as it may be directed in writing
by the Holder surrendering such Warrants.
(k) In addition to the foregoing adjustments, the Board of
Directors of Newco may make any other adjustment to increase the number of
Common Shares issuable upon exercise of Warrants or to decrease the Exercise
Price as it may, in good faith, deem desirable to protect the rights and
benefits of Holders.
(l) If required pursuant to Section 4.1(g)(i), the Current
Market Value shall be deemed to be equal to the value set forth in the Value
Report (as defined below) as determined by an Independent Financial Expert,
which shall be selected by the Board of Directors of Newco, and retained on
customary terms and conditions, using one or more valuation methods that the
Independent Financial Expert, in its best professional judgment, determines to
be most appropriate. Newco shall cause the Independent Financial Expert to
deliver to Newco, with a copy to the Warrant Agent, within 45 days of the
appointment of the Independent Financial Expert, a value report (the "Value
Report") stating the value of the Common Shares and other securities or property
of Newco, if any, being valued as of the Valuation Date and containing a brief
statement as to the nature and scope of the examination or investigation upon
which the determination of value was made. The Warrant Agent shall have no duty
with respect to the Value Report of any Independent Financial Expert, except to
keep it on file and available for inspection by the Holders and the Warrant
Agent shall have no duty or responsibility in determining the accuracy or
correctness of the calculations in such report. The determination as to value in
accordance with the provisions of this Section 4.1(l) shall be conclusive on all
Persons. The Independent Financial Expert shall consult with
<PAGE>
management of Newco in order to allow management to comment on the proposed
value prior to delivery to Newco of any Value Report of the Independent
Financial Expert.
Section 4.2. Notice of Adjustment. Whenever the number of
Common Shares or other stock or property purchasable upon the exercise of each
Warrant or the Exercise Price is adjusted, as herein provided, Newco shall cause
the Warrant Agent promptly to mail, at the expense of Newco, to each Holder
notice of such adjustment or adjustments and shall deliver to the Warrant Agent
a certificate of a firm of independent public accountants selected by the Board
of Directors of Newco (who may be the regular accountants employed by Newco)
setting forth the number of Common Shares or other stock or property purchasable
upon the exercise of each Warrant and the Exercise Price after such adjustment,
setting forth a brief statement of the facts requiring such adjustment and
setting forth the computation by which such adjustment was made. Such
certificate shall be conclusive evidence of the correctness of such adjustment.
The Warrant Agent shall be entitled to rely on such certificate and shall be
under no duty or responsibility with respect to any such certificate, except to
exhibit the same, from time to time, to any Holder desiring an inspection
thereof during reasonable business hours. The Warrant Agent shall not at any
time be under any duty or responsibility to any Holders to determine whether any
facts exist which may require any adjustment of the Exercise Price or the number
of Common Shares or other securities or property purchasable on exercise of the
Warrants, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed in making such adjustment, or the
validity or value (or the kind or amount) of any Common Shares or other
securities or property which may be purchasable on exercise of the Warrants. The
Warrant Agent shall not be responsible for any failure of Newco to make any cash
payment or to issue, transfer or deliver any Common Shares or other securities
or property upon the exercise of any Warrant.
Section 4.3. Statement on Warrants. Irrespective of any
adjustment in the Exercise Price or the number or kind of shares purchasable
upon the exercise of the Warrants, Warrants theretofore or thereafter issued may
continue to express the same price and number and kind of shares as are stated
in the Warrants initially issuable pursuant to this Agreement.
Section 4.4. Notice of Consolidation, Merger, Etc. In case
at any time after the date hereof and prior to 5:00 p.m., New York City time, on
the Expiration Date, there shall be any (i) consolidation or merger involving
Newco or sale, transfer or other disposition of all or substantially all of
Newco's property, assets or business (except a merger or other reorganization in
which Newco shall be the surviving corporation and holders of Common Shares (or
other securities or property purchasable upon exercise of the Warrants) receive
no consideration in respect of their shares) or (ii) any other transaction
contemplated by Section 4.1(i)(ii) above, then in any one or more of such cases,
Newco shall cause to be mailed to the Warrant Agent and each Holder of a
Warrant, at the earliest practicable time (and, in any event, not less than 20
calendar days before any date set for definitive action), notice of the date on
which such reorganization, sale, consolidation, merger, dissolution, liquidation
or winding up shall take
<PAGE>
place, as the case may be. Such notice shall also set forth such facts as shall
indicate the effect of such action (to the extent such effect may be known at
the date of such notice) on the Exercise Price and the kind and amount of Common
Shares and other securities, money and other property deliverable upon exercise
of the Warrants. Such notice shall also specify the date as of which the holders
of record of the Common Shares or other securities or property issuable upon
exercise of the Warrants shall be entitled to exchange their shares for
securities, money or other property deliverable upon such reorganization, sale,
consolidation, merger, dissolution, liquidation or winding up, as the case may
be.
Section 4.5. Fractional Interests. If more than one
Warrant shall be presented for exercise in full at the same time by the same
Holder, the number of full Common Shares which shall be issuable upon such
exercise thereof shall be computed on the basis of the aggregate number of
Common Shares purchasable on exercise of the Warrants so presented. If any
fraction of an Common Share would, except for the provisions of this Section
4.5, be issuable on the exercise of any Warrant (or specified portion thereof),
Newco shall pay an amount in cash calculated by it to be equal to the then
Current Market Value per Common Share multiplied by such fraction computed to
the nearest whole cent.
ARTICLE V
DECREASE IN EXERCISE PRICE
The Board of Directors of Newco, in its sole discretion,
shall have the right at any time, or from time to time, to decrease the Exercise
Price of the Warrants, such reduction of the Exercise Price to be effective for
a period or periods to be determined by it, but in no event for a period of less
than 30 calendar days. Any exercise by the Board of Directors of Newco of any
rights granted in this Article V must be preceded by a written notice from Newco
to each Holder of the Warrants and to the Warrant Agent setting forth the
reduction in the Exercise Price, which notice shall be mailed at least 30
calendar days prior to the effective date of such decrease in the Exercise
Price. Any reduction of the Exercise Price pursuant to provisions of this
Article V shall not alter or adjust the number of Common Shares or other
securities or property issuable upon the exercise of the Warrants.
ARTICLE VI
LOSS OR MUTILATION
Upon receipt by Newco and the Warrant Agent of evidence
satisfactory to them of the ownership and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity satisfactory to them and
(in the case of mutilation) upon surrender and cancellation thereof, then, in
the absence of notice to Newco or the Warrant Agent that the Warrants
represented thereby have been acquired by a bona fide purchaser, Newco shall
execute and the
<PAGE>
Warrant Agent shall countersign and deliver to the registered Holder of the
lost, stolen, destroyed or mutilated Warrant Certificate, in exchange for or in
lieu thereof, a new Warrant Certificate of the same tenor and for a like
aggregate number of Warrants. Upon the issuance of any new Warrant Certificate
under this Article VI, Newco may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and other expenses (including the fees and expenses of the Warrant
Agent) in connection therewith. Every new Warrant Certificate executed and
delivered pursuant to this Article VI in lieu of any lost, stolen or destroyed
Warrant Certificate shall constitute a contractual obligation of Newco, whether
or not the allegedly lost, stolen or destroyed Warrant Certificates shall be at
any time enforceable by anyone, and shall be entitled to the benefits of this
Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Article VI are exclusive and shall preclude (to the extent lawful) all other
rights or remedies with respect to the replacement of mutilated, lost, stolen,
or destroyed Warrant Certificates.
ARTICLE VII
AUTHORIZATION AND RESERVATION
OF COMMON SHARES
Newco shall at all times reserve and keep available for
issue upon the exercise of Warrants such number of its authorized but unissued
Common Shares or other securities of Newco deliverable upon exercise of Warrants
as will be sufficient to permit the exercise in full of all outstanding Warrants
and will cause appropriate evidence of ownership of such Common Shares or other
securities of Newco to be delivered to the Warrant Agent upon its request for
delivery upon the exercise of Warrants, and all such Common Shares will, at all
times, be duly approved for listing subject to official notice of issuance on
each securities exchange, if any, on which such Common Shares are then listed.
Newco covenants that all Common Shares or other securities of Newco that may be
issued upon the exercise of the Warrants will, upon issuance, be duly
authorized, validly issued, fully paid and not subject to any calls for funds
and nonassessable, and free from preemptive or similar rights (other than those
validly and effectively waived) and all taxes, liens, charges and security
interests.
ARTICLE VIII
WARRANT HOLDERS
Section 8.1. Warrant Holder Not Deemed a Stockholder.
Newco and the Warrant Agent may deem and treat the registered Holder(s) of the
Warrant Certificates as the absolute owner(s) thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone), for the purpose
of any exercise thereof and for all other purposes, and neither Newco nor the
Warrant Agent shall be affected by any notice to the contrary. Prior to the
exercise of the Warrants, no Holder of a Warrant Certificate, as such, shall be
entitled to any
<PAGE>
rights of a stockholder of Newco, including, without limitation, the right to
vote or to consent to any action of the stockholders, to receive dividends or
other distributions, to exercise any preemptive right or to receive any notice
of meetings of stockholders and, except as otherwise provided in this Agreement,
shall not be entitled to receive any notice of any proceedings of Newco.
Section 8.2. Right of Action. All rights of action with
respect to this Agreement are vested in the Holders of the Warrants, and any
Holder of any Warrant, without the consent of the Warrant Agent or the Holders
of any other Warrant, may, in his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding against Newco
suitable to enforce, or otherwise in respect of, his right to exercise his
Warrants in the manner provided in the Warrant Certificate representing his
Warrants and in this Agreement.
ARTICLE IX
REMEDIES
Section 9.1. Defaults. It shall be deemed to be a
"Default" with respect to Newco's (or its successor's) obligations under this
Agreement if:
(a) a Repurchase Event occurs and Newco (or its successor)
shall fail to make a Repurchase Offer pursuant to Section 3.4 hereof; or
(b) Newco (or its successor) shall fail to purchase the
Warrants pursuant to the Repurchase Offer in accordance with the provisions of
Section 3.4 hereof.
Section 9.2. Payment Obligations. Upon the happening of a
Default under this Agreement, Newco shall be obligated to increase the amount
otherwise payable pursuant to Section 3.4(d) hereof in respect of the Repurchase
Offer to which such Default relates by an amount equal to interest thereon at a
rate per annum equal to [__]% from the date of the Default to the date of
payment, which interest shall compound quarterly (all such payment obligations
in respect of such Repurchase Offer, together with all such increased amounts,
being the "Repurchase Obligation").
Section 9.3. Remedies; No Waiver. Notwithstanding any
other provision of this Warrant Agreement, if a Default occurs and is
continuing, the Holders of the Warrants may pursue any available remedy to
collect the Repurchase Obligation or to enforce the performance of any provision
of this Warrant Agreement. A delay or omission by any Holder of a Warrant in
exercising, or a failure to exercise, any right or remedy arising out of a
Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Default. All remedies are cumulative to the extent permitted
by law.
<PAGE>
ARTICLE X
THE WARRANT AGENT
Section 10.1. Duties and Liabilities. The Warrant Agent
hereby accepts the agency established by this Agreement and agrees to perform
the same upon the terms and conditions herein set forth, by all of which Newco
and the Holders of Warrants, by their acceptance thereof, shall be bound. The
Warrant Agent shall not, by countersigning Warrant Certificates or by any other
act hereunder, be deemed to make any representations as to the validity or
authorization of the Warrants or the Warrant Certificates (except as to its
countersignature thereon) or of any securities or other property delivered upon
exercise or repurchase of any Warrant, or as to the accuracy of the computation
of the Exercise Price or the number or kind or amount of stock or other
securities or other property deliverable upon exercise or repurchase of any
Warrant, or as to the independence of any Independent Financial Expert or the
correctness of the representations of Newco made in the certificates that the
Warrant Agent receives. The Warrant Agent shall not be accountable for the use
or application by Newco of the proceeds of the exercise of any Warrant. The
Warrant Agent shall not have any duty to calculate or determine any adjustments
with respect to either the Exercise Price or the kind and amount of shares or
other securities or any property receivable by Holders upon the exercise or
repurchase of Warrants required from time to time and the Warrant Agent shall
have no duty or responsibility in determining the accuracy or correctness of
such calculation. The Warrant Agent shall not be (a) liable for any recital or
statement of fact contained herein or in the Warrant Certificates or for any
action taken, suffered or omitted by it in good faith in the belief that any
Warrant Certificate or any other documents or any signatures are genuine or
properly authorized, (b) responsible for any failure on the part of Newco to
comply with any of its covenants and obligations contained in this Agreement or
in the Warrant Certificates or (c) liable for any act or omission in connection
with this Agreement except for its own gross negligence or willful misconduct.
The Warrant Agent is hereby authorized to accept instructions with respect to
the performance of its duties hereunder from the Chief Executive Officer, the
President, any Vice President, the Chief Financial Officer or the Secretary or
Treasurer of Newco and to apply to any such officer for instructions (which
instructions will be promptly given in writing when requested) and the Warrant
Agent shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with the instructions of any such officer; however, in
its discretion, the Warrant Agent may in lieu thereof accept other evidence of
such or may require such further or additional evidence as it may deem
reasonable. The Warrant Agent shall not be liable for any action taken with
respect to any matter in the event it requests instructions from Newco as to
that matter and does not receive such instructions within a reasonable period of
time after the request therefor.
The Warrant Agent may execute and exercise any of the
rights and powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys, agents or employees, and the Warrant
Agent shall not be answerable or accountable for any act, default, neglect or
misconduct of any such attorneys, agents or employees, provided reasonable care
has
<PAGE>
been exercised in the selection and in the continued employment of any such
attorney, agent or employee. The Warrant Agent shall not be under any obligation
or duty to institute, appear in or defend any action, suit or legal proceeding
in respect hereof, unless first indemnified to its satisfaction, but this
provision shall not affect the power of the Warrant Agent to take such action as
the Warrant Agent may consider proper, whether with or without such indemnity.
The Warrant Agent shall promptly notify Newco in writing of any claim made or
action, suit or proceeding instituted against it arising out of or in connection
with this Agreement.
Newco will perform, execute, acknowledge and deliver or
cause to be delivered all such further acts, instruments and assurances as are
consistent with this Agreement and as may reasonably be required by the Warrant
Agent in order to enable it to carry out or perform its duties under this
Agreement.
The Warrant Agent shall act solely as agent of Newco
hereunder. The Warrant Agent shall not be liable except for the failure to
perform such duties as are specifically set forth herein, and no implied
covenants or obligations shall be read into this Agreement against the Warrant
Agent, whose duties and obligations shall be determined solely by the express
provisions hereof.
Section 10.2. Right to Consult Counsel. The Warrant Agent
may at any time consult with legal counsel (who may be legal counsel for Newco),
and the opinion or advice of such counsel shall be full and complete
authorization and protection to the Warrant Agent and the Warrant Agent shall
incur no liability or responsibility to Newco or to any Holder for any action
taken, suffered or omitted by it in good faith in accordance with the opinion or
advice of such counsel.
Section 10.3. Compensation; Indemnification. Newco agrees
promptly to pay the Warrant Agent from time to time, on demand of the Warrant
Agent, compensation for its services hereunder as Newco and the Warrant Agent
may agree from time to time, and to reimburse it for reasonable expenses and
counsel fees incurred in connection with the execution and administration of
this Agreement, and further agrees to indemnify the Warrant Agent and save it
harmless against any losses, liabilities or expenses arising out of or in
connection with the acceptance and administration of this Agreement, including
the costs and expenses of investigating or defending any claim of such
liability, except that Newco shall have no liability hereunder to the extent
that any such loss, liability or expense results from the Warrant Agent's own
gross negligence or willful misconduct. The obligations of Newco under this
Section shall survive the exercise and the expiration of the Warrants and the
resignation or removal of the Warrant Agent.
Section 10.4. No Restrictions on Actions. The Warrant
Agent and any stockholder, director, officer or employee of the Warrant Agent
may buy, sell or deal in any of the Warrants or other securities of Newco or
become pecuniarily interested in transactions in
<PAGE>
which Newco may be interested, or contract with or lend money to Newco or
otherwise act as fully and freely as though it were not the Warrant Agent under
this Agreement. Nothing herein shall preclude the Warrant Agent from acting in
any other capacity for Newco or for any other legal entity.
Section 10.5. Discharge or Removal; Replacement Warrant
Agent. The Warrant Agent may resign from its position as such and be discharged
from all further duties and liabilities hereunder (except liability arising as a
result of the Warrant Agent's own gross negligence or willful misconduct), after
giving one month's prior written notice to Newco. Newco may remove the Warrant
Agent upon one month's written notice specifying the date when such discharge
shall take effect, and the Warrant Agent shall thereupon in like manner be
discharged from all further duties and liabilities hereunder, except as
aforesaid. Newco shall cause to be mailed to each Holder of a Warrant a copy of
said notice of resignation or notice of removal, as the case may be. Upon such
resignation or removal Newco shall appoint in writing a new warrant agent. If
Newco shall fail to make such appointment within a period of 30 calendar days
after it has been notified in writing of such resignation by the resigning
Warrant Agent or after such removal, then the resigning Warrant Agent or the
Holder of any Warrant may apply to any court of competent jurisdiction for the
appointment of a new warrant agent. Pending appointment of a successor to the
original Warrant Agent, either by Newco or by such a court, the duties of the
Warrant Agent shall be carried out by Newco. Any new warrant agent, whether
appointed by Newco or by such a court, shall be a bank or trust company doing
business under the laws of the United States or any state thereof, in good
standing and having a combined capital and surplus of not less than $25,000,000.
The combined capital and surplus of any such new warrant agent shall be deemed
to be the combined capital and surplus as set forth in the most recent annual
report of its condition published by such warrant agent prior to its
appointment, provided that such reports are published at least annually pursuant
to law or to the requirements of a federal or state supervising or examining
authority. After acceptance in writing of such appointment by the new warrant
agent, it shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as the Warrant Agent,
without any further assurance, conveyance, act or deed; however, the original
Warrant Agent shall in all events deliver and transfer to the successor Warrant
Agent all property, if any, at the time held hereunder by the original Warrant
Agent and if for any reason it shall be necessary or expedient to execute and
deliver any further assurance, conveyance, act or deed, the same shall be done
at the expense of Newco and shall be legally and validly executed and delivered
by the resigning or removed Warrant Agent. Not later than the effective date of
any such appointment, Newco shall file notice thereof with the resigning or
removed Warrant Agent and shall forthwith cause a copy of such notice to be
mailed to each Holder of a Warrant. Failure to give any notice provided for in
this Section 10.5, however, or any defect therein, shall not affect the legality
or validity of the resignation of the Warrant Agent or the appointment of a new
warrant agent, as the case may be.
<PAGE>
Section 10.6. Successor Warrant Agent. Any corporation
into which the Warrant Agent or any new warrant agent may be merged, or any
corporation resulting from any consolidation to which the Warrant Agent or any
new warrant agent shall be a party, shall be a successor Warrant Agent under
this Agreement without any further act, provided that such corporation would be
eligible for appointment as successor to the Warrant Agent under the provisions
of Section 10.5 hereof. Any such successor Warrant Agent shall promptly cause
notice of its succession as Warrant Agent to be mailed to each Holder of a
Warrant.
ARTICLE XI
REGISTRATION
Section 11.1. Effectiveness and Availability of
Registration Statement. (a) Newco shall use its best efforts to maintain the
effectiveness of the registration statement covering the issuance of the
Underlying Securities (the "Registration Statement") until the earlier of (i)
such time as all Warrants have been exercised and (ii) [__________], 2007. Prior
to filing any amendment to the Registration Statement, Newco shall provide a
copy thereof to Morgan Stanley and its counsel and afford them a reasonable time
to comment thereon. Newco will furnish the Warrant Agent with current
prospectuses meeting the requirements of the Securities Act and the rules and
regulations of the Commission thereunder in sufficient quantity to permit the
Warrant Agent to deliver, at Newco's expense, a prospectus to each Holder of a
Warrant upon the exercise thereof. Newco shall promptly inform the Warrant Agent
of any change in the status of the effectiveness or availability of the
Registration Statement.
(b) Newco shall use its best efforts to register the
Underlying Securities on the Nasdaq Stock Market by [__________], 1997.
Section 11.2. Suspension. Notwithstanding the foregoing,
during any consecutive 365-day period, Newco shall have the privilege to suspend
availability of the Registration Statement for up to two 15-consecutive-day
periods, except during the 30-day period immediately prior to the Expiration
Date, if Newco's Board of Directors determines in good faith that there is a
valid business purpose for such suspension and provides notice of such
determination to the Holders at their addresses appearing in the register of
Warrants maintained by the Warrant Agent.
Section 11.3. Blue Sky. Newco shall use its best efforts
to register or qualify the Underlying Securities under all applicable securities
or "blue sky" laws of all jurisdictions in the United States and Canada and
shall use its best efforts to maintain such registration or qualification
through the earlier of the date upon which all Warrants have been exercised and
[__________], 2007; provided, however, that Newco shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise
<PAGE>
be required to qualify but for this Section 11.3, (ii) file any general consent
to service of process or (iii) subject itself to taxation in any jurisdiction if
it is not otherwise so subject.
Section 11.4. Accuracy of Disclosure. Newco represents and
warrants to each Holder and agrees for the benefit of each Holder that (i) the
Registration Statement and the documents incorporated by reference therein will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein not misleading; and (ii) the
prospectus delivered to such Holder upon its exercise of Warrants and the
documents incorporated by reference therein will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
Section 11.5. Indemnity. Newco hereby indemnifies each
beneficial owner of a Warrant (whether or not it is, at the time the indemnity
provided for in this Section 11.5 is sought, such a beneficial owner) against
all losses, damages or liabilities which such beneficial owner suffers as a
result of any breach, on the date of any exercise of a Warrant by such
beneficial owner, of the representations, warranties or agreements contained in
Section 11.4.
Section 11.6. Expenses. All expenses incident to Newco's
performance of or compliance with its obligations under this Agreement will be
borne by Newco, regardless of whether a Registration Statement becomes
effective, including without limitation: (i) all Commission, stock exchange or
National Association of Securities Dealers, Inc. registration and filing fees,
(ii) all fees and expenses incurred in connection with compliance with state
securities or "blue sky" laws, (iii) all expenses of any Persons incurred by or
on behalf of Newco in preparing or assisting in preparing, word processing,
printing and distributing any registration statement, any prospectus, any
amendments or supplements thereto and other documents relating to the
performance of and compliance with this Agreement, (iv) the fees and
disbursements of the Warrant Agent, (v) the fees and disbursements of counsel
for Newco and the Warrant Agent and (vi) the fees and disbursements of the
independent public accountants of Newco, including the expenses of any special
audits or "cold comfort" letters required by or incident to such performance and
compliance.
Section 11.7. Additional Acts. If the issuance or sale of
any Common Shares or other securities issuable upon the exercise of the Warrants
require registration or approval of any governmental authority (other than the
registration requirements under the Securities Act), or the taking of any other
action under the laws of the United States of America or any political
subdivision thereof before such securities may be validly offered or sold in
compliance with such laws, then Newco covenants that it will, in good faith and
as expeditiously as reasonably practicable, endeavor to secure and maintain such
registration or approval or to take such other action, as the case may be.
<PAGE>
ARTICLE XII
MISCELLANEOUS
Section 12.1. Money Deposited with the Warrant Agent. The
Warrant Agent shall not be required to pay interest on any moneys deposited
pursuant to the provisions of this Agreement except such as it shall agree in
writing with Newco to pay thereon. Any moneys, securities or other property
which at any time shall be deposited by Newco or on its behalf with the Warrant
Agent pursuant to this Agreement shall be and are hereby assigned, transferred
and set over to the Warrant Agent in trust for the purpose for which such
moneys, securities or other property shall have been deposited; but such moneys,
securities or other property need not be segregated from other funds, securities
or other property except to the extent required by law. Any money, securities or
other property deposited with the Warrant Agent for payment or distribution to
the Holders that remains unclaimed for two years after the date the money,
securities or other property was deposited with the Warrant Agent shall be
delivered to Newco upon its request therefor.
Section 12.2. Payment of Taxes. All Common Shares or other
securities issuable upon the exercise of Warrants shall be validly issued, fully
paid and not subject to any calls for funds, and Newco shall pay any taxes and
other governmental charges that may be imposed under the laws of the United
States of America or any political subdivision or taxing authority thereof or
therein in respect of the issue or delivery thereof or of other securities
deliverable upon exercise of Warrants or in respect of any Repurchase Offer
(other than income taxes imposed on the Holders). Newco shall not be required,
however, to pay any tax or other charge imposed in connection with any transfer
involved in the issue of any certificate for Common Shares or other securities
or property issuable upon the exercise of the Warrants or in respect of a
Repurchase Offer or payment of cash to any Person other than the Holder of a
Warrant Certificate surrendered upon the exercise or repurchase of a Warrant and
in case of such transfer or payment, the Warrant Agent and Newco shall not be
required to issue any stock certificate or pay any cash until such tax or charge
has been paid or it has been established to the Warrant Agent's and Newco's
satisfaction that no such tax or charge is due.
Section 12.3. No Merger, Consolidation or Sale of Assets
of Newco. Except as otherwise provided herein, Newco will not merge into or
consolidate with any other Person, or sell or otherwise transfer its property,
assets and business substantially as an entirety to a successor of Newco, unless
the Person resulting from such merger or consolidation, or such successor of
Newco, shall expressly assume, by supplemental agreement satisfactory in form to
the Warrant Agent and executed and delivered to the Warrant Agent, the due and
punctual performance and observance of each and every covenant and condition of
this Agreement to be performed and observed by Newco.
Section 12.4. Reports to Holders. Newco shall file with
the Commission the annual, quarterly and other reports required by Section
13(a), 13(c) or 15(d) of the Exchange
<PAGE>
Act, regardless of whether such Sections of the Exchange Act are applicable to
Newco, and shall, at its expense, provide copies of such reports to each Holder,
without cost to such Holder, and the Warrant Agent within seven days after the
date it would have been required to file such reports or other information with
the Commission had it been subject to such sections.
Section 12.5. Notices. (a) Except as otherwise provided in
Section 12.5(b) hereof, any notice, demand or delivery authorized by this
Agreement shall be sufficiently given or made when mailed, if sent by first
class mail, postage prepaid, addressed to any Holder of a Warrant at such
Holder's last known address appearing on the register of Newco maintained by the
Warrant Agent and to Newco or the Warrant Agent as follows:
To Newco:
Orion Newco Services, Inc.
2440 Research Boulevard, Suite 40
Rockville, MD 20850
Attention: [Chief Financial Officer]
To the Warrant Agent:
Bankers Trust Company
4 Albany Street
New York, New York 10006
Attention: Corporate Trust and Agency Group
or such other address as shall have been furnished to the party giving or making
such notice, demand or delivery. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given when mailed,
whether or not the Holder receives the notice.
(b) Any notice required to be given by Newco to the
Holders pursuant to Section 3.4(b) hereof shall be made by mailing by registered
mail, return receipt requested, to the Holders at their last known addresses
appearing on the register maintained by the Warrant Agent. Newco hereby
irrevocably authorizes the Warrant Agent, in the name and at the expense of
Newco, to mail any such notice upon receipt thereof from Newco. Any notice that
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given when mailed, whether or not the Holder receives the notice.
Section 12.6. Governing Law. This Agreement shall be
governed by the laws of the State of New York.
<PAGE>
Section 12.7. Binding Effect. This Agreement shall be
binding upon and inure to the benefit of Newco and the Warrant Agent and their
respective successors and assigns, and the Holders from time to time of the
Warrants. Nothing in this Agreement is intended or shall be construed to confer
upon any Person, other than Newco, the Warrant Agent and the Holders of the
Warrants, any right, remedy or claim under or by reason of this Agreement or any
part hereof.
Section 12.8. Counterparts. This Agreement may be executed
manually or by facsimile in any number of counterparts, each of which shall be
deemed an original, but all of which together constitute one and the same
instrument.
Section 12.9. Amendments. The Warrant Agent may, without
the consent or concurrence of the Holders of the Warrants, by supplemental
agreement or otherwise, join with Newco in making any changes or corrections in
this Agreement that (a) are required to cure any ambiguity or to correct any
defective or inconsistent provision or clerical omission or mistake or manifest
error herein contained or (b) add to the covenants and agreements of Newco in
this Agreement further covenants and agreements of Newco thereafter to be
observed, or surrender any rights or power reserved to or conferred upon Newco
in this Agreement; provided that in either case such changes or corrections do
not and will not adversely affect, alter or change the rights, privileges or
immunities of the Holders of Warrants. Amendments or supplements which do not
meet the requirements of the preceding sentence shall require the written
consent of the Holders of a majority of the then outstanding Warrants; provided,
however, that the consent of each Holder is required for any amendment or
supplement pursuant to which the Exercise Price would be increased or the number
of Common Shares purchasable upon exercises of Warrants would be decreased
(other than pursuant to adjustments as provided in Article IV of this
Agreement).
Section 12.10. Headings. The descriptive headings of the
several Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
Section 12.11. Common Shares Legend. In the event a Holder
exercises its Warrants at a time when the Registration Statement is not
effective and available pursuant to an exemption from the registration
requirements of the Securities Act, any Common Shares or other securities of
Newco issuable upon exercise of such Warrants shall bear the following legend:
THE COMMON SHARES [OR OTHER SECURITIES] EVIDENCED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE "SECURITIES
ACT") AND ACCORDINGLY MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER
<PAGE>
AGREES THAT (1) IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE
144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) IF APPLICABLE)
UNDER THE SECURITIES ACT AS IN EFFECT WITH RESPECT TO THE TRANSFER OF THE
COMMON SHARES [OR OTHER SECURITIES] EVIDENCED HEREBY, RESELL OR OTHERWISE
TRANSFER THE COMMON SHARES [OR OTHER SECURITIES] EVIDENCED HEREBY EXCEPT
(A) TO NEWCO OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE REGISTRAR A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THE COMMON SHARES [OR OTHER SECURITIES] EVIDENCED HEREBY (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE REGISTRAR) AND, IF REQUESTED BY
NEWCO, AN OPINION OF COUNSEL ACCEPTABLE TO NEWCO THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT OR (F) AFTER REGISTRATION UNDER THE
SECURITIES ACT AND (2) IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON
SHARES [OR OTHER SECURITIES] EVIDENCED HEREBY ARE TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Section 12.12. Third Party Beneficiaries. The Holders
shall be third party beneficiaries to the agreements made hereunder between
Newco, on the one hand, and the Warrant Agent, on the other hand, and each
Holder shall have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights or the
rights of Holders hereunder.
Section 12.13. Submission to Jurisdiction; Appointment of
Agent for Service. By the execution and delivery of this Agreement, Newco (i)
acknowledges that it has, by separate written instrument, irrevocably designated
and appointed [NAME AND ADDRESS OF AGENT] (together with any successor, the
"Authorized Agent"), as its authorized agent upon which process may be served in
any suit or proceeding arising out of or relating to this Agreement, the
Warrants or the Underlying Securities that may be instituted in any federal or
<PAGE>
state court in the State of New York, Borough of
Manhattan, or brought under federal or state securities laws, and acknowledges
that the Authorized Agent has accepted such designation, (ii) submits to the
non-exclusive jurisdiction of any such court in any such suit or proceeding, and
waives any objection which it may now or hereafter have to the laying of venue
of any such proceeding or any claim of inconvenient forum and (iii) agrees that
service of process upon the Authorized Agent and written notice of said service
to Newco (mailed or delivered to [its Chief Financial Officer] at the address
provided in Section 12.5, shall be deemed in every respect effective service of
process upon Newco in any such suit or proceeding. Newco further agrees to take
any and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment of the Authorized Agent in full force and effect so long as any of
the Warrants or Underlying Securities shall be outstanding.
To the extent that Newco has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of its obligations under the
above-referenced documents, to the extent permitted by law.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed, as of the day and year first above written.
ORION NEWCO SERVICES, INC.
By:
-----------------------------------
Name:
Title:
BANKERS TRUST COMPANY, as Warrant Agent
By:
-----------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[THE WARRANTS EVIDENCED BY THIS CERTIFICATE WERE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF SENIOR NOTE UNITS (CUSIP NO. [______]) AND SENIOR DISCOUNT NOTE
UNITS (CUSIP NO. [_______]), EACH SENIOR NOTE UNIT OF WHICH CONSISTS OF
$[_______] PRINCIPAL AMOUNT OF [__]% SENIOR NOTES DUE 2007 OF NEWCO (THE "SENIOR
NOTES") AND A WARRANT, AND EACH SENIOR DISCOUNT NOTE UNIT OF WHICH CONSISTS OF
$[_____] PRINCIPAL AMOUNT AT MATURITY OF SENIOR DISCOUNT NOTES DUE 2007
(TOGETHER WITH THE SENIOR NOTES, THE "NOTES") AND A WARRANT. PRIOR TO THE CLOSE
OF BUSINESS UPON THE EARLIEST OF (I) THE DATE THAT IS SIX MONTHS AFTER THE
CLOSING DATE, (II) SUCH DATE AS THE UNDERWRITERS MAY, IN THEIR DISCRETION, DEEM
APPROPRIATE AND (III) THE DATE NEWCO MAILS NOTICE OF AN OFFER TO REPURCHASE THE
NOTES TO HOLDERS OF THE NOTES PURSUANT TO THE INDENTURES, THE WARRANTS EVIDENCED
BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, BUT MAY
BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE NOTES.]*
[UNLESS THIS WARRANT CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO NEWCO OR THE WARRANT AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR REPURCHASE AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN ARTICLE II OF THE WARRANT AGREEMENT.]**
- -----------------------------
* To be included on Warrants issued prior to the Separation Date.
** To be included on any Global Warrant.
<PAGE>
A-2
ORION NEWCO SERVICES, INC.
No. _____ CUSIP No. [_______]
WARRANTS TO PURCHASE COMMON SHARES
This certifies that _____________, or its registered assigns,
is the owner of the number of Warrants set forth above, each of which represents
the right to purchase, after [_____], 1997, from ORION NEWCO SERVICES, INC., a
Delaware corporation ("Newco"), one share of common stock, par value $.01 per
share (collectively, the "Common Shares"), of Newco at the purchase price (the
"Exercise Price") of $[___] per Common Share (subject to adjustment as provided
in the Warrant Agreement hereinafter referred to), upon surrender hereof at the
office of Bankers Trust Company or to its successor as the warrant agent under
the Warrant Agreement hereinafter referred to (any such warrant agent being
herein called the "Warrant Agent"), with the Subscription Form on the reverse
hereof duly executed, with signature guaranteed as therein specified and
simultaneous payment in full (by cash or by certified or official bank or bank
cashier's check payable to the order of Newco, or by the surrender of Warrants
having an aggregate Spread (as defined in the Warrant Agreement) equal to the
Exercise Price of the Warrants being exercised) of the purchase price for the
share(s) as to which the Warrant(s) represented by this Warrant Certificate are
exercised, all subject to the terms and conditions hereof and of the Warrant
Agreement. Notwithstanding the foregoing, Newco shall have the right to not
allow an exercise of any Warrants in the event the Registration Statement is not
effective and available at the time Warrants are exercised, unless prior to the
exercise of such Warrants, the Holder thereof furnishes to the Warrant Agent and
Newco such certifications, legal opinions or other information as either of them
may reasonably require to confirm that such exercise is being made pursuant to
an exemption from the registration requirements of the Securities Act.
This Warrant Certificate is issued under and in accordance
with a Warrant Agreement dated as of [_______], 1997 (the "Warrant Agreement"),
between Newco and Bankers Trust Company, as Warrant Agent, and is subject to the
terms and provisions contained therein, to all of which terms and provisions the
Holder of this Warrant Certificate consents by acceptance hereof. The Warrant
Agreement is hereby incorporated herein by reference and made a part hereof.
Reference is hereby made to the Warrant Agreement for a full description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
Newco and the Holders of the Warrants. The summary of the terms of the Warrant
Agreement contained in this Warrant Certificate is qualified in its entirety by
express reference to the Warrant Agreement. All terms used in this Warrant
Certificate that are defined in the Warrant Agreement shall have the meanings
assigned to them in the Warrant Agreement.
<PAGE>
A-3
Copies of the Warrant Agreement are on file at the office of
the Warrant Agent and may be obtained by writing to the Warrant Agent at the
following address:
Bankers Trust Company
4 Albany Street
New York, New York 10006
Attention: Corporate Trust and Agency Group
A "Repurchase Event", as defined in the Warrant Agreement,
shall be deemed to occur on any date prior to [________], 2007 when Newco (i)
consolidates or merges into or with another Person (but only where the holders
of Common Shares receive consideration in exchange for all or part of such
Common Shares) if the Common Shares (or other securities) thereafter issuable
upon exercise of the Warrants are not registered under the Exchange Act or (ii)
sells all or substantially all of its assets to another Person if the Common
Shares (or other securities) thereafter issuable upon exercise of the Warrants
is not registered under the Exchange Act; provided that in each case a
"Repurchase Event" will not be deemed to have occurred if the consideration for
the Common Shares in such transaction consists solely of cash.
Following a Repurchase Event, Newco must make an offer to
repurchase all outstanding Warrants (a "Repurchase Offer"). If Newco makes a
Repurchase Offer, Holders may, until the expiration date of such offer,
surrender all or part of their Warrants for repurchase by Newco.
Warrants received by the Warrant Agent in proper form during a
Repurchase Offer will, except as otherwise provided in the Warrant Agreement, be
repurchased by Newco at a price in cash (the "Repurchase Price") equal to the
value on the Valuation Date relating thereto of the Common Shares and other
securities or property which would have been delivered upon exercise of the
Warrants had the Warrants been exercised, less the Exercise Price (whether or
not the Warrants are then exercisable). The value of such Common Shares and
other securities will be (i) if the Common Shares (or other securities) are
registered under the Exchange Act, determined based upon the average of the
closing sales prices of the Common Shares (or other securities) for the 20
consecutive trading days immediately preceding such Valuation Date or, if the
Common Shares (or other securities) have been registered under the Exchange Act
for less than 20 consecutive trading days before such date, then the average of
the closing sales prices for all of the trading days before such date for which
closing sales prices are available or (ii) if the Common Shares (or other
securities) are not registered under the Exchange Act or if the value cannot be
computed under clause (i) above, determined by the Independent Financial Expert
(as defined in the Warrant Agreement), in each case as set forth in the Warrant
Agreement.
The "Valuation Date" with respect to a Repurchase Offer is the
date five Business Days prior to the date notice of such Repurchase Offer is
first given.
<PAGE>
A-4
If Newco fails to make or complete a Repurchase Offer (a
"Default") as required by the Warrant Agreement, it shall be obligated to
increase the amount otherwise payable pursuant to the Warrant Agreement in
respect of the Repurchase Offer by an amount equal to interest thereon at a rate
per annum of [__]% from the date of the Default to the date of payment, which
interest shall compound quarterly.
If Newco merges or consolidates with or into, or sells all or
substantially all of its property and assets to, another Person solely for cash,
or in the event of the dissolution, liquidation or winding-up of Newco, the
Holders of Warrants shall be entitled to receive distributions on the date of
such event on an equal basis with holders of Common Shares (or other securities
issuable upon exercise of the Warrants) as if the Warrants had been exercised
immediately prior to such event (less the Exercise Price) or the amount payable
pursuant to an outstanding Repurchase Offer if a Repurchase Offer is then
outstanding or required, if higher.
The number of Common Shares purchasable upon the exercise of
each Warrant and the price per share are subject to adjustment as provided in
the Warrant Agreement. Except as stated in the immediately preceding paragraph,
in the event Newco merges or consolidates with, or sells all or substantially
all of its assets to, another Person, each Warrant will, upon exercise, entitle
the Holder thereof to receive the number of shares of capital stock or other
securities or the amount of money and other property which the holder of a
Common Share (or other securities or property issuable upon exercise of a
Warrant) is entitled to receive upon completion of such merger, consolidation or
sale.
As to any final fraction of a share which the same Holder of
one or more Warrants would otherwise be entitled to purchase upon exercise
thereof in the same transaction, Newco shall pay the cash value thereof
determined as provided in the Warrant Agreement.
All Common Shares or other securities issuable by Newco upon
the exercise of Warrants shall be validly issued, fully paid and not subject to
any calls for funds, and Newco shall pay all taxes and other governmental
charges that may be imposed under the laws of the United States of America or
any political subdivision or taxing authority thereof or therein in respect of
the issue or delivery of such shares or of other securities deliverable upon
exercise of Warrants. Newco shall not be required, however, to pay any tax or
other charge imposed in connection with any transfer involved in the issue of
any certificate for Common Shares, and in such case Newco shall not be required
to issue or deliver any stock certificate until such tax or other charge has
been paid or it has been established to the Warrant Agent's and Newco's
satisfaction that no tax or other charge is due.
This Warrant Certificate and all rights hereunder are
transferable by the registered Holder hereof, in whole or in part, on the
register of Newco maintained by the Warrant Agent for such purpose at its office
in New York, New York, upon surrender of this Warrant Certificate duly endorsed,
or accompanied by a written instrument of transfer in form
<PAGE>
A-5
satisfactory to Newco and the Warrant Agent duly executed, with signatures
guaranteed as specified in the attached Form of Assignment, by the registered
Holder hereof or his attorney duly authorized in writing and upon payment of any
necessary transfer tax or other governmental charge imposed upon such transfer.
Upon any partial transfer, Newco will issue and the Warrant Agent will deliver
to such Holder a new Warrant Certificate or Certificates with respect to any
portion not so transferred. Each taker and Holder of this Warrant Certificate,
by taking and holding the same, consents and agrees that prior to the
registration of transfer as provided in the Warrant Agreement, Newco and the
Warrant Agent may treat the person in whose name the Warrants are registered as
the absolute owner hereof for any purpose and as the Person entitled to exercise
the rights represented hereby, any notice to the contrary notwithstanding.
This Warrant Certificate may be exchanged at the office of the
Warrant Agent maintained for such purpose in New York, New York for Warrant
Certificates representing the same aggregate number of Warrants, each new
Warrant Certificate to represent such number of Warrants as the Holder hereof
shall designate at the time of such exchange.
Prior to the exercise of the Warrants represented hereby, the
Holder of this Warrant Certificate, as such, shall not be entitled to any rights
of a stockholder of Newco, including, without limitation, the right to vote or
to consent to any action of the stockholders, to receive dividends or other
distributions, to exercise any preemptive right or to receive any notice of
meetings of stockholders, and shall not be entitled to receive any notice of any
proceedings of Newco except as provided in the Warrant Agreement.
This Warrant Certificate shall be void and all rights
evidenced hereby shall cease on [________], 2007, unless sooner terminated by
the liquidation, dissolution or winding-up of Newco or as otherwise provided in
the Warrant Agreement upon the consolidation or merger of Newco with, or sale of
Newco to, another Person or unless such date is extended as provided in the
Warrant Agreement.
<PAGE>
A-6
This Warrant Certificate shall not be valid for any purpose
until it shall have been countersigned by the Warrant Agent.
Dated:
ORION NEWCO SERVICES, INC.
By:
----------------------
Name:
Title:
Countersigned:
BANKERS TRUST COMPANY,
as Warrant Agent
By:
---------------------
Authorized Signatory
<PAGE>
A-7
FORM OF REVERSE OF WARRANT CERTIFICATE
SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant) To:
The undersigned irrevocably exercises ________ of the Warrants
represented by the Warrant Certificate for the purchase of [_____] (subject to
adjustment) Common Shares, par value $.01 per share, of ORION NEWCO SERVICES,
INC. and herewith makes payment of $_______ (such payment being by cash or by
certified or official bank or bank cashier's check payable to the order or at
the direction of Newco, or by the surrender of Warrants having an aggregate
Spread (as defined in the Warrant Agreement) equal to the Exercise Price of the
Warrants being exercised), all at the exercise price and on the terms and
conditions specified in the within Warrant Certificate and the Warrant Agreement
therein referred to, surrenders this Warrant Certificate and all right, title
and interest therein to and directs that the Common Shares deliverable upon the
exercise of such Warrants be registered or placed in the name and at the address
specified below and delivered thereto.
Dated:
------------------------------------
(Signature of Owner)
------------------------------------
(Street Address)
------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:1
------------------------------------
- ----------
1 The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution"
as defined by Rule 17Ad-15 under the Exchange Act. Securities and/or check
to be issued to: Please insert social security or identifying number: Name:
<PAGE>
A-8
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
<PAGE>
FORM OF CERTIFICATE FOR SURRENDER FOR REPURCHASE OFFER
(To be executed only upon repurchase
of Warrant by Newco)
To:
The undersigned, having received prior notice of the
consideration for which ORION NEWCO SERVICES, INC. will repurchase the Warrants
represented by the within Warrant Certificate, hereby surrenders this Warrant
Certificate for repurchase by ORION NEWCO SERVICES, INC. of the number of
Warrants specified below for the consideration set forth in such notice.
Dated:
-----------------------------------
(Number of Warrants
to be Repurchased)
-----------------------------------
(Signature of Owner)
-----------------------------------
(Street Address)
-----------------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:1
-----------------------------------
- ----------
1 The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution"
as defined by Rule 17Ad-15 under the Exchange Act. Securities and/or check
to be issued to: Please insert social security or identifying number: Name:
<PAGE>
A-10
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered holder of the
within Warrant Certificate hereby sells, assigns, and transfers unto the
Assignee(s) named below (including the undersigned with respect to any Warrants
constituting a part of the Warrants evidenced by the within Warrant Certificate
not being assigned hereby) all of the right of the undersigned under the within
Warrant Certificate, with respect to the number of Warrants set forth below:
Name(s) of Assignee(s): _____________________________________
Address: __________________________________________________
No. of Warrants: ___________________________________________
Please insert social security or other identifying number of assignee(s):
and does hereby irrevocably constitute and appoint ________________________ the
undersigned's attorney to make such transfer on the books of __________________
maintained for the purposes, with full power of substitution in the premises.
Dated:
-------------------------------------
(Signature of Owner)
-------------------------------------
(Street Address)
-------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:*
-------------------------------------
- ----------
1 The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution"
as defined by Rule 17Ad-15 under the Exchange Act. Securities and/or check
to be issued to: Please insert social security or identifying number: Name:
<PAGE>
APPENDIX A
LIST OF FINANCIAL EXPERTS
- -------------------------
[Alex. Brown & Sons
Bear, Stearns & Co., Inc.
Dillon, Read & Co. Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Goldman, Sachs & Co.
Lazard Freres & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Inc.
Salomon Brothers Inc
Lehman Brothers]
<PAGE>
- --------
11 The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution"
as defined by Rule 17Ad-15 under the Exchange Act.
11 The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution"
as defined by Rule 17Ad-15 under the Exchange Act.
* The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution"
as defined by Rule 17Ad-15 under the Exchange Act.
<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) $(103,156,070)
Interest 455,987 5,636,736 16,280,888 27,291,040 26,049,216 52,893,581
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 $ 455,987 $ 5,636,736 $ 16,280,888 $ 27,291,040 $ 26,049,216 $ 52,893,581
Interest
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 $ 54,219,787
=================================================================================================
DEFICIENCY $(2,573,226) $(8,752,002) $(24,034,090) $(35,195,399) $(28,225,948) $(105,412,851)
=================================================================================================
</TABLE>
Nine months ended September 30,
-------------------------------------------------------
1995 1996 1996 Pro Forma
-------------------------------------------------------
EARNINGS $(19,985,085) $(19,807,287) $(67,262,637)
Net loss
Interest 18,390,916 20,228,519 42,763,127
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 $ 42,763,127
Interest portion of
rental expense 993,099 962,637 962,637
-------------------------------------------------------
$ 19,384,015 $ 21,191,156 $ 43,725,764
=======================================================
DEFICIENCY $(21,295,855) $(19,807,287) $(70,504,512)
=======================================================
