exv4w01



 




Exhibit 4.01 


Execution Copy




PREFERRED STOCK PURCHASE AGREEMENT




among




ORBIMAGE HOLDINGS INC.




and




THE PURCHASERS



named herein




Dated as of January 10, 2006,




Relating to:




1,000 shares, par value $0.01, of Series A Preferred Stock



of ORBIMAGE Holdings Inc.




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	Section 1. DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	1.1	 	 	Definitions
	 	 	1	 
	 

	 	 	1.2	 	 	Computation of Time Periods
	 	 	5	 
	 

	 	 	1.3	 	 	Terms Generally
	 	 	5	 
	 

	 	 	1.4	 	 	Accounting Terms
	 	 	5	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 2. AUTHORIZATION AND ISSUANCE OF SHARES	 	 	5	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	2.1	 	 	Authorization of Issue
	 	 	5	 
	 

	 	 	2.2	 	 	Sale and Purchase of the Shares
	 	 	5	 
	 

	 	 	2.3	 	 	Closing
	 	 	5	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 3. CONDITIONS TO CLOSING	 	 	6	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	3.1	 	 	Representations and Warranties
	 	 	6	 
	 

	 	 	3.2	 	 	Performance
	 	 	6	 
	 

	 	 	3.3	 	 	Officers’ Certificate
	 	 	6	 
	 

	 	 	3.4	 	 	Proceedings and Documents
	 	 	7	 
	 

	 	 	3.5	 	 	Legal Opinion
	 	 	7	 
	 

	 	 	3.6	 	 	Purchase Permitted by Applicable Law, Etc
	 	 	7	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 4. REPRESENTATIONS AND WARRANTIES	 	 	7	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	4.1	 	 	Existence, Qualification and Power; Compliance with Laws
	 	 	7	 
	 

	 	 	4.2	 	 	Authorization; No Contravention
	 	 	7	 
	 

	 	 	4.3	 	 	Governmental Authorization; Other Consents
	 	 	8	 
	 

	 	 	4.4	 	 	Binding Effect
	 	 	8	 
	 

	 	 	4.5	 	 	Capitalization
	 	 	8	 
	 

	 	 	4.6	 	 	Valid Issuance of Shares
	 	 	9	 
	 

	 	 	4.7	 	 	Private Offering; No Integration or General Solicitation; Rule 144A Eligibility
	 	 	9	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE PURCHASERS	 	 	9	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	5.1	 	 	Purchase for Investment
	 	 	9	 
	 

	 	 	5.2	 	 	Senior Secured Note Indenture
	 	 	10	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 6. AFFIRMATIVE COVENANTS	 	 	10	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	6.1	 	 	Reports and Other Information
	 	 	10	 
	 

	 	 	6.2	 	 	Preservation of Existence Etc
	 	 	11	 
	 

	 	 	6.3	 	 	Maintenance of Properties
	 	 	11	 






 









 





	 	 	 	 	 	 	 	 	 	 	 
	Section 7. PROVISIONS RELATING TO RESALES OF SHARES	 	 	12	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	7.1	 	 	Private Offerings
	 	 	12	 
	 

	 	 	7.2	 	 	Restriction on Transfers of Shares
	 	 	12	 
	 

	 	 	7.3	 	 	Implementation of Restrictions
	 	 	13	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 8. MISCELLANEOUS	 	 	13	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	8.1	 	 	Notices; Effectiveness; Electronic Communication
	 	 	13	 
	 

	 	 	8.2	 	 	Benefit of Agreement and Assignments
	 	 	14	 
	 

	 	 	8.3	 	 	No Waiver; Remedies Cumulative
	 	 	14	 
	 

	 	 	8.4	 	 	Amendments, Waivers and Consents
	 	 	14	 
	 

	 	 	8.5	 	 	Counterparts; Integration; Effectiveness
	 	 	14	 
	 

	 	 	8.6	 	 	Headings
	 	 	15	 
	 

	 	 	8.7	 	 	Survival of Covenants
	 	 	15	 
	 

	 	 	8.8	 	 	Governing Law; Jurisdiction Etc
	 	 	15	 
	 

	 	 	8.9	 	 	Severability
	 	 	16	 
	 

	 	 	8.10	 	 	Survival of Representations and Warranties
	 	 	16	 
	 

	 	 	8.11	 	 	Construction
	 	 	16	 
	 

	 	 	8.12	 	 	No Personal Obligations
	 	 	17	 
	 

	 	 	8.13	 	 	Currency
	 	 	17	 
	 

	 	 	8.14	 	 	Further Assurances
	 	 	17	 






EXHIBITS:




Exhibit A–Form of Certificate of Designation

Exhibit B–Form of Officers’ Certificate

Exhibit C–Form of Opinion of Latham & Watkins LLP




SCHEDULES:




Schedule 2.2–Information Relating to the Purchasers

Schedule 4.5–Warrants





ii









 






PREFERRED STOCK PURCHASE AGREEMENT




          PREFERRED STOCK PURCHASE AGREEMENT, dated as of January 10, 2006, among ORBIMAGE Holdings
Inc., a corporation incorporated under the laws of the state of Delaware (the “Company”),
and the other parties listed on the signature pages hereof (collectively, the
“Purchasers”).




RECITALS




          WHEREAS, ORBIMAGE SI Opco Inc., a Delaware corporation, and an indirect wholly owned
subsidiary of the Company (the “Borrower”), has entered into that certain Credit Agreement,
dated as of the Closing Date (as amended from time to time, the “Credit Agreement”),
between the Borrower, the Company, ORBIMAGE SI Holdco Inc., a Delaware corporation that owns all of
the capital stock of the Borrower (“Holdings”), the lenders from time to time parties
thereto (the “Lenders”), the guarantors from time to time parties thereto, Credit Suisse
First Boston, LLC, as Lead Arranger and Bookrunner, Credit Suisse, Cayman Islands Branch, as
administrative agent for the Lenders (the “Administrative Agent”), and The Bank of New
York, as collateral agent;




          WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make term loans to the
Borrower in the principal amount of Fifty Million Dollars ($50,000,000) to provide financing for
the acquisition by the Borrower of the Acquired Business (as defined in the Credit Agreement)
pursuant to the Acquisition Documents (as defined in the Credit Agreement); and




          WHEREAS, it is a condition to the funding of the term loans under the Credit Agreement that
the Company issue and sell to each Purchaser the number of shares of Series A Preferred Stock, par
value $0.01 per share (the “Series A Preferred Stock”), set forth opposite such Purchaser’s
name on Schedule 2.2 to this Agreement, for a cash purchase price equal to $0.01 per share
(the shares of Series A Preferred Stock issued to the Purchasers hereunder being referred to as the
“Shares”). The Series A Preferred Stock shall initially have the rights, preferences and
other terms set forth in the Certificate of Designation of Series A Preferred Stock (the
“Certificate of Designation”) in the form attached as Exhibit A hereto.




          NOW, THEREFORE, the parties hereto agree as follows:




SECTION 1.

DEFINITIONS AND ACCOUNTING TERMS




          1.1 Definitions. As used herein, the following terms shall have the meanings
specified herein unless the context otherwise requires:




          “Accredited Investor” means any Person that is an “accredited investor” within the
meaning of Rule 501(a) under the Securities Act.




          “Administrative Agent” is defined in the first recital hereto.




 









 








          “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by or is under common
control with the Person specified.




          “Agreement” means this Agreement as it may from time to time be amended, supplemented
or modified.




          “Borrower” is defined in the first recital hereto.




          “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the laws of, or are in fact closed, the state where
the Administrative Agent’s Office is located or, if there is no Administrative Agent, in the State
of New York.




          “Certificate” is defined in Section 2.3(a).




          “Certificate of Designation” is defined in the third recital hereto.




          “Closing” is defined in Section 2.3(a).




          “Closing Date” is defined in Section 2.3(a).




          “Code” means the Internal Revenue Code of 1986, as amended from time to time, and the
rules and regulations promulgated thereunder from time to time.




          “Commission” means the United States Securities and Exchange Commission.




          “Common Stock” is defined in Section 4.5.




          “Company” is defined in the preamble to this agreement.




          “Credit Agreement” is defined in the first recital hereto.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time.




          “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other governmental entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the
European Central bank).




          “Holders” shall mean each of the holders, from time to time, of any shares of Series A
Preferred Stock.




          “Holdings” is defined in the first recital hereto.




          “Indebtedness” shall have the meaning ascribed thereto in the Credit Agreement.




2









 








          “Institutional Accredited Investor” is defined in Section 7.1(a).




          “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, regulations, ordinances, codes and administrative precedents or
authorities, including the interpretation or administration thereof by any Governmental Authority
charged with the enforcement, interpretation or administration thereof, and all applicable
administrative orders, directives, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authority, having the force of Law.




          “Lenders” is defined in the first recital hereto.




          “Lien” shall have the meaning ascribed thereto in the Credit Agreement.




          “Loan Documents” shall have the meaning ascribed thereto in the Credit Agreement.




          “Loans” shall have the meaning ascribed thereto in the Credit Agreement.




          “Material Adverse Effect” means (i) any material adverse effect upon the financial
condition, business, operations, assets, liabilities or property of the Company and its
Consolidated Subsidiaries (as defined in the Credit Agreement), taken as a whole, after giving pro
forma effect to the Transaction (as defined in the Credit Agreement), (ii) a material adverse
effect on the ability of the Company to consummate the transactions contemplated hereby to occur on
the Closing Date, (iii) a material impairment of the ability of the Company to perform any of its
material obligations hereunder that is materially adverse to the interests of the Holders or (iv) a
material impairment of the rights and benefits of the Holders hereunder.




          “Organizational Documents” means, (i) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-United States jurisdiction); (ii) with respect to any limited liability
company, the certificate or articles of formation or organization and operating agreement; and
(iii) with respect to any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or organization and any
agreement, instrument, filing or notice with respect thereto filed in connection with its formation
or organization with the applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or organization of such
entity.




          “Permitted Lien” shall have the meaning ascribed thereto in the Credit Agreement.




          “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.




          “Private Offering” means any offering by the Holders of some or all of the Shares in a
transaction not required to be registered under the Securities Act.




          “Purchase Price” is defined in Section 2.2(b).




3









 








          “Purchasers” is defined in the preamble to this Agreement.




          “Qualified Institutional Buyer” means any Person that is a “qualified institutional
buyer” within the meaning of Rule 144A.




          “Regulation U, T or X” means Regulation U, T or X, respectively, of the Board of
Governors of the Federal Reserve System as amended, or any successor regulation.




          “Required Holders” means the holders, from time to time, of a majority of the shares
of Series A Preferred Stock then issued and outstanding.




          “Rule 144” means Rule 144 under the Securities Act (or any successor provision), as it
may be amended from time to time.




          “Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as
it may be amended from time to time.




          “Securities Act” means the Securities Act of 1933, as amended.




          “Senior Secured Note Indenture” means that certain Indenture, dated as of June 29,
2005, between the Company and The Bank of New York, as Trustee, governing the Senior Secured
Floating Rate Notes due 2012 of the Company (the “Senior Notes”), as in effect on the
Closing Date.




          “Series A Preferred Stock” is defined in the third recital hereto.




          “Shares” is defined in the third recital hereto.




          “Subsequent Purchaser” means a purchaser of any Shares who acquired such Shares in a
Private Offering in accordance with Section 7.1.




          “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association or other business entity of which (i) if a corporation, more than
50% of the total voting power of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, limited liability
company, association or business entity other than a corporation, more than 50% of the partnership
or other similar ownership interests thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have more than 50% ownership interest
in a partnership, limited liability company, association or other business entity if such Person or
Persons shall be allocated more than 50% of partnership, association or other business entity gains
or losses or shall be or control the managing director, manager or a general partner of such
partnership, association or other business entity.




          “Transaction” shall have the meaning ascribed thereto in the Credit Agreement.




4









 








          “Trigger Event” shall have the meaning ascribed thereto in the Certificate of
Designation.




          1.2 Computation of Time Periods. For purposes of computation of periods of time
hereunder, the word “from” means “from and including” and the words “to” and “until” each mean “to
but excluding.”




          1.3 Terms Generally. Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be construed as referring to
such agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to include such
Person’s successors and assigns, and (c) the word “including” shall mean “including without
limitation.” Any reference to defined terms contained in the Credit Agreement shall also
incorporate the definition of any other defined terms used therein.




          1.4 Accounting Terms. Accounting terms used but not otherwise defined herein shall
have the meanings provided, and be construed in accordance with, Generally Accepted Accounting
Principles in the United States.




SECTION 2.




AUTHORIZATION AND ISSUANCE OF SHARES




          2.1 Authorization of Issue. On or prior to the Closing Date, the Company will file
the Certificate of Designation with the Secretary of State of the State of Delaware, and will
authorize the issuance and sale of the Shares.




          2.2 Sale and Purchase of the Shares.




          (a) Subject to the terms and conditions of this Agreement, the Company will issue and sell to
each Purchaser, and each Purchaser will purchase from the Company, at the Closing, the Shares, with
each Purchaser purchasing the number of Shares set forth opposite such Purchaser’s name on
Schedule 2.2 at a purchase price of $0.01 per share.




          (b) The aggregate cash purchase price (the “Purchase Price”) for the Shares shall be
equal to the sum of (i) the number of Shares being issued at the Closing multiplied by (ii) $0.01.




          (c) Payment of all transfer taxes, fees and duties incurred in connection with the sale and
transfer of the Shares under this Agreement shall be the Company’s responsibility and the Company
shall promptly reimburse each Purchaser for any such tax, fee or duty that such Purchaser is
required to pay in the first instance.




          2.3 Closing.




          (a) The sale and purchase of the Shares shall occur at the offices of Latham & Watkins LLP,
555 Eleventh Street, N.W., Washington, D.C. at 10:00 a.m. local time, at a closing




5









 







(the “Closing”) on January 10, 2006, or on such other Business Day thereafter as may be agreed
upon by the Company and the Purchasers (in either case, the date and time of the Closing is
referred to herein as the “Closing Date”). At the Closing, (i) the Company will deliver to
each Purchaser one stock certificate (each, a “Certificate” and, collectively, the
“Certificates”) representing the full number of Shares to be purchased by such Purchaser on
the Closing Date, dated such Closing Date and registered in such Purchaser’s name against payment
by such Purchaser to the Company or to its order of immediately available funds in the amount of
the applicable portion of the Purchase Price by wire transfer of immediately available funds to
such bank account or accounts as the Company may request in writing at least one Business Day prior
to the Closing Date.




          (b) If at the Closing the Company shall fail to deliver to the Purchasers the Certificates as
provided in Section 2.3(a), or any of the conditions specified in Section 3 shall
not have been fulfilled or waived, then each Purchaser shall, at its election, be relieved of all
further obligations under this Agreement, without thereby waiving any rights such Purchaser may
have by reason of such failure or such nonfulfillment; provided, that upon payment for and receipt
of such Certificates by the Purchasers, all such conditions shall be deemed satisfied or waived.




SECTION 3.




CONDITIONS TO CLOSING




          Each Purchaser’s obligation to purchase and pay for the Shares to be purchased by it at the
Closing is subject to the satisfaction by the Company or waiver by such Purchaser, on or before the
Closing Date, of each of the conditions specified below in this Section 3:




          3.1 Representations and Warranties. Each of the representations and warranties of the
Company in this Agreement that are qualified as to materiality or Material Adverse Effect shall be
true and correct, and each of the representations and warranties of the Company in this Agreement
that are not so qualified shall be true and correct in all material respects, in each such case, on
or as of the Closing Date as if made on and as of the Closing Date (unless stated to relate to a
specific earlier date, in which case such representations and warranties qualified as to
materiality or Material Adverse Effect shall be true and correct and those not so qualified shall
be true and correct in all material respects as of such earlier date).




          3.2 Performance. The transactions contemplated by the Credit Agreement, the Notes
(as defined in the Credit Agreement) and the Guarantee (as defined in the Credit Agreement) shall
have occurred or concurrently herewith shall occur. The Company shall have performed and complied
in all material respects with all agreements and covenants contained herein required to be
performed or complied with by it prior to or at the Closing (or shall concurrently herewith perform
or comply).




          3.3 Officers’ Certificate. The Company shall have delivered to the Purchasers an
Officer’s Certificate, dated as of the Closing Date, in the form of Exhibit B hereto,
certifying, among other things, as to (i) the Company’s certificate of incorporation (as amended by
the Certificate of Designation) and bylaws, (ii) the incumbency and signatures of certain officers
of the Company, (iii) the corporate proceedings of the Company (including board resolutions or a




6









 







written consent of the Board of Directors of the Company in a form previously provided to the
Purchasers) relating to the authorization, execution and delivery of the Shares and this Agreement
and (iv) that the conditions specified in Sections 3.1 and 3.2 have been fulfilled.




          3.4 Proceedings and Documents. The Purchasers (or Cahill Gordon & Reindel
llp on their behalf) shall have received counterpart originals or copies of this
Agreement. All conditions (other than the issuing of the Shares) to the funding of the Loans to be
made by the Lenders under the Credit Agreement to the Borrower at the Closing shall have been
satisfied or waived by the Lenders in all respects. The Company shall have duly and properly
authorized and filed the Certificate of Designation with the Secretary of State of the State of
Delaware, and the Certificate of Designation shall have become effective and be in full force and
effect as of the Closing Date.




          3.5 Legal Opinion. The Purchasers shall have received from Latham & Watkins LLP,
legal counsel to the Company, an opinion addressed to the Purchasers, dated as of the Closing Date,
substantially in the form set forth in Exhibit C hereto (subject to customary assumptions
and exclusions).




          3.6 Purchase Permitted by Applicable Law, Etc. On the Closing Date, each Purchaser’s
purchase of the Shares shall (a) be permitted by the applicable Laws and regulations of each
jurisdiction to which it is subject, and (b) not violate any applicable Law (including, without
limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System).




SECTION 4.




REPRESENTATIONS AND WARRANTIES 




          The Company represents and warrants to the Purchasers on and as of the date hereof, that:




          4.1 Existence, Qualification and Power; Compliance with Laws. Each of the Company and
its Subsidiaries (i) is duly organized or formed, validly existing and in good standing under the
Laws of the jurisdiction of its incorporation or organization, (ii) has all requisite corporate
power and authority and all requisite governmental licenses, authorizations, consents and approvals
to own or lease its assets and carry on its business, (iii) is duly qualified and is licensed and
in good standing under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or license, and (iv) is in
compliance with all Laws; except in each case referred to in clause (ii), (iii) or
(iv), to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect. The Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and under the Certificate of Designation
and the Shares.




          4.2 Authorization; No Contravention. The execution, delivery and performance by the
Company of this Agreement have been duly authorized by all necessary corporate action, and do not
and will not (i) contravene the terms of the Organization Documents




7









 







of the Company; (ii) conflict
with or constitute or result in a breach of or a default under or a violation of any of the terms
or provisions of any indenture, mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, permit, certificate, contract or other agreement or instrument to which the
Company is a party or to which the Company or its properties or assets is subject; (iii) conflict
with or result in any breach or contravention of, or the creation of any Lien under any order,
injunction, writ or decree of any Governmental Authority or any arbitral award to which the Company
or its property is subject; or (iv) violate any Law, except in the case of clauses (ii),
(iii) or (iv) for such violations could not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect.




          4.3 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, the Company of this Agreement except as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.




          4.4 Binding Effect. This Agreement has been duly executed and delivered by the
Company. This Agreement constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except (i) as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and (ii) that rights of acceleration and
the availability
of equitable remedies may be limited by equitable principles of general applicability
(regardless of whether enforcement is sought by proceedings in equity or at law).




          4.5 Capitalization. At the Closing, after giving effect to the consummation of the
Transaction, (i) the authorized number of shares of capital stock of the Company will consist only
of 25,000,000 shares of common stock, par value $0.01 per share (the “Common Stock”), and
5,000,000 shares of Series A preferred stock, par value $0.01, of which 17,434,889 shares of common
stock have been issued and are outstanding and 1,000 shares of Series A preferred stock have been
issued and are outstanding and (ii) no shares of any class of the capital stock of the Company will
be held by the Company in its treasury or by its Subsidiaries. All of the issued and outstanding
shares or interests of the Company (other than the Shares) have been duly authorized and validly
issued, fully paid and nonassessable. Except for (a) options to acquire 129,927 shares of common
stock issued under the Company’s employee stock option plans, and (b) warrants to acquire 4,102,353
shares of common stock pursuant to the warrants and warrant agreements listed on Schedule
4.5 at the exercise prices set forth on Schedule 4.5 with respect to each such
warrants, there are no securities of the Company that will be convertible into or exchangeable for
shares of any capital stock of the Company, and no options, warrants, calls, subscriptions,
convertible securities, or other rights, agreements or commitments which will obligate the Company
to issue, transfer or sell any shares of capital stock of, or other interests in, the Company.
There are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire any
shares of capital stock of the Company. There are no voting trusts or other agreements or
understandings to which the Company is a party with respect to the holding, voting or disposing of
capital stock of the Company. The Company has no outstanding bonds, debentures, notes or other
obligations or other securities that entitle the holders thereof to vote with the shareholders of
the Company on any matter or, other than the options and warrants set forth above, which are
convertible into or exercisable for securities having such a right to vote.




8









 







As of the Closing, and
after giving effect to the sale of the Shares to the Purchasers, all shares of capital stock of the
Company and all options to acquire such shares will have been offered, issued, sold and delivered
in compliance with applicable federal and state securities laws. As of the Closing and after giving
effect to the Transaction, and except as disclosed in Schedule 4.5, there are (i) no
preemptive rights, rights of first refusal, put or call rights or obligations or anti-dilution
rights with respect to the issuance, sale or redemption of the Company’s capital stock, (ii) no
rights to have the Company’s capital stock registered for sale to the public in connection with the
laws of any jurisdiction and (iii) no documents, instruments or agreements relating to the voting
of the Company’s securities or restrictions on the transfer of the Company’s capital stock.




          4.6 Valid Issuance of Shares. The Shares, when issued, sold, and delivered in
accordance with the terms of this Agreement, will be duly and validly issued, fully paid and
nonassessable, and will be free of restrictions on transfer other than restrictions on transfer
under this Agreement and under applicable Laws.




          4.7 Private Offering; No Integration or General Solicitation; Rule 144A Eligibility.




          (a) Subject to compliance by the Purchasers with the representations and warranties set forth
in Sections 5 and the provisions relating to the resale of Shares set forth in Section
7, it is not necessary in connection with the offer, issue, sale and delivery of the Shares to
the Purchasers in the manner contemplated by this Agreement to register the Shares under the
Securities Act.




          (b) The Company has not, directly or indirectly, offered, issued, sold or solicited any offer
to buy nor will any of them, directly or indirectly, offer, issue, sell or solicit any offer to
buy, any security of a type or in a manner which would be integrated with the sale of the Shares
and require the Shares to be registered under the Securities Act. None of the Company, its
Affiliates or any person acting on any of their behalf has engaged or will engage in any form of
general solicitation or general advertising (within the meaning of Rule 502(c) under the Securities
Act) in connection with the offering of the Shares.




SECTION 5.




REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE PURCHASERS



Each Purchaser, severally and not jointly, represents and warrants to, and agrees with, the Company
as of the date hereof as follows:




          5.1 Purchase for Investment.




          (a) Such Purchaser is acquiring the Shares it is purchasing for its own account, for
investment and not as a nominee or agent for any other Person and not with a view to, or for resale
in connection with, any distribution thereof within the meaning of the Securities Act.




9









 








          (b) Such Purchaser (i) understands that the Shares have not been registered under the
Securities Act and the Shares are being issued by the Company in transactions exempt from the
registration requirements of the Securities Act and (ii) agrees that it will not sell all or any
part of the Shares and the Shares may not be offered or sold, except pursuant to effective
registration statements under the Securities Act or pursuant to applicable exemptions from
registration under the Securities Act and in compliance with applicable State laws.




          (c) Such Purchaser further understands that the exemption from registration afforded by Rule
144 (the provisions of which are known to such Purchaser) promulgated under the Securities Act
depends on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the
basis for sales only in limited amounts.




          (d) Such Purchaser did not employ any broker or finder in connection with the transactions
contemplated in this Agreement and no fees or commissions are payable to or by the Purchasers
except as otherwise provided for in this Agreement.




          (e) Such Purchaser is an “Accredited Investor” (as defined in Rule 501(a) under the Securities
Act).




          (f) Except as disclosed in writing by each Purchaser, the source of funds to be used by such
Purchaser to pay the purchase price of the Shares purchased by such Purchaser hereunder does not
include assets of any employee benefit plan (other than a plan exempt from the coverage of ERISA)
or plan or any other entity the assets of which consist of “plan assets” as defined in Department
of Labor regulation Section 2510.3-101. As used in this Section 5.1(f), the term “employee
benefit plan” shall have the meaning assigned to such term in Section 3 of ERISA, and the term
“plan” shall have the meaning assigned thereto in Section 4975(e)(1) of the Code.




          5.2 Senior Secured Note Indenture. Notwithstanding anything in this Agreement to the
contrary, in the event that any Event of Default (as defined in the Credit Agreement) under
Sections 8.01(a) through (e) or (g) through (k) of the Credit Agreement (but not following the
occurrence of any other Event of Default) shall have occurred and so long as the Senior Notes are
outstanding and are not then due and payable, no Holder shall take any action hereunder that would
result in the occurrence of an “Event of Default” (as that term is defined in the Senior Secured
Note Indenture) pursuant to any of Sections 6.01(e), (f) (as to ORBIMAGE SI Opco Inc. or any of its
Subsidiaries only) or (g) of the Senior Secured Note Indenture.




SECTION 6.




AFFIRMATIVE COVENANTS




          The Company agrees that so long as any shares of Series A Preferred Stock remain outstanding:




          6.1 Reports and Other Information. Notwithstanding that the Company may not be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, or otherwise
report on an annual and quarterly basis on forms provided for such annual




10









 







and quarterly reporting
pursuant to rules and regulations promulgated by the Commission, the Company shall provide to the
Holders, without cost to each Holder, the following information:




          (a) within 90 days after the end of each fiscal year, commencing with the fiscal year ended
December 31, 2005, annual financial information that would be required to be contained in a filing
with the Commission on Form 10-K (other than the information required by items 307 and 308 of
Regulation S-K) if the Company were required to file such a form, including (i) a “Management’s
Discussion and Analysis of Financial Condition and Results of
Operations” and (ii) a report on the annual financial statements by the Company’s certified
independent accountants, and




          (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal
year commencing with the fiscal quarter ending March 31, 2006, all quarterly information that would
be required to be contained in a filing with the Commission on Form 10-Q (other than the
information required by items 307 and 308 of Regulation S-K) if the Company were required to file
such a form, including “Management’s Discussion and Analysis of Financial Condition and Results of
Operations”;




          and shall make available such information to prospective investors upon request, in addition to
providing such information to the Holders, within 15 days after the time the Company would be
required to file such information with the Commission if it were subject to Section 13 or 15(d) of
the Exchange Act.




          The Company shall also furnish to Holders and prospective investors upon request the
information required to be delivered pursuant Rule 144A(d)(4) under the Securities Act.




          Notwithstanding the foregoing, the availability of the foregoing materials on the Commission’s
EDGAR service shall be deemed to satisfy the Company’s delivery obligation to the Holders.




          6.2 Preservation of Existence Etc. Except as a result of or in connection with a
dissolution, merger or disposition of a Subsidiary of the Company permitted under this Agreement,
each of the Company and its Subsidiaries will: (i) preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction of its
organization; (ii) take all reasonable action to maintain all rights, privileges, permits, licenses
and franchises necessary or desirable in the normal conduct of its business, except to the extent
that failure to do so could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and (iii) preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.




          6.3 Maintenance of Properties. Each of the Company and its Subsidiaries will
maintain, preserve and protect all of its material properties and equipment necessary in the
operation of its business in good working order and condition, ordinary wear and tear excepted
except where the failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.





11










 






SECTION 7.




PROVISIONS RELATING TO RESALES OF SHARES




          7.1 Private Offerings. At any time after the Closing Date, the Shares may be sold, pledged or otherwise
transferred in Private Offerings; provided that the following provisions shall apply to any Private
Offering and the Holders agree to comply, and to cause any Person acting on their respective behalf
to comply, with the following:




          (a) Offers and Sales only to Institutional Accredited Investors, Qualified Institutional
Buyers or Non-U.S. Persons. Offers and sales of the Shares will be made only by the Holders or
Affiliates thereof who are qualified to do so in the jurisdictions in which such offers or sales
are made. Each such offer or sale shall only be made (i) to persons who are Qualified
Institutional Buyers, (ii) to a limited number of other institutional accredited investors (as such
term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities
Act) that the offeror or seller reasonably believes to be and, with respect to sales and
deliveries, that are Accredited Investors who are not Qualified Institutional Buyers
(“Institutional Accredited Investors”) or (iii) non-U.S. persons outside the United States
to whom offers and sales of the Shares may be made in reliance upon, and which offers and sales are
made in accordance with, the provisions of Regulation S under the Securities Act.




          (b) No General Solicitation. The Shares will be offered by approaching prospective
Subsequent Purchasers (“Subsequent Purchasers”) on an individual basis. No general
solicitation or general advertising (within the meaning of Rule 502(c) under the Securities Act)
will be used in the United States and no directed selling efforts (as defined in Regulation S) will
be made outside the United States in connection with the offering of the Shares.




          (c) Purchases by Non-Bank Fiduciaries. In the case of a non-bank Subsequent Purchaser
acting as a fiduciary for one or more third parties, in connection with an offer and sale to such
purchaser pursuant to this Section 7.1, each such third party shall be an Institutional
Accredited Investor or a Qualified Institutional Buyer or a non-U.S. person outside the United
States.




          (d) Restrictive Legend. Upon original issuance by the Company, and until such time as
the same is no longer required under the applicable requirements of the Securities Act, the Shares
(and all securities issued in exchange therefor or in substitution thereof) shall bear the
following legend and any legend required under any applicable state securities laws:





“The securities evidenced by this certificate have not been registered under the
Securities Act of 1933, as amended, and may not be sold or transferred unless there
is an effective registration statement under such Act covering such securities or
the securities are sold and transferred in a transaction that is exempt from or not
subject to the registration and prospectus delivery requirements of such Act.”



          7.2 Restriction on Transfers of Shares. Notwithstanding anything to the contrary contained herein, so long as any Loans are
outstanding under the Credit Agreement,







12









 







Shares may only, and are required to, be transferred in
connection with any permitted transfer of the Loans then outstanding under the Credit Agreement by
the holders thereof such that at all times, all holders of the Loans outstanding from time to time
under the Credit Agreement shall also own the Shares in the same proportion as such Holders own the
Loans then outstanding under the Credit Agreement.




          7.3 Implementation of Restrictions. Each Purchaser consents to the Company’s making a
notation on its records or giving instructions to any transfer agent of the Shares in order to
implement the restrictions on transfer of the Shares set forth in this Section 7.




SECTION 8.




MISCELLANEOUS




          8.1 Notices; Effectiveness; Electronic Communication.




          (a) Notices Generally. Except as set forth herein (including in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows:





          (i) if to a Purchaser or its nominee, to such Purchaser or its nominee at the address
specified for such communications in Schedule 2.2 or at another address notified to
the Company in writing in accordance with this Section 8.1, with a copy (which,
shall not constitute notice) to Cahill Gordon & Reindel llp, 80 Pine Street, New
York, New York 10005, Attention: William M. Hartnett, Esq. and Ann Makich, Esq., Fax:
(212) 269-5420 or at such other address as such Purchaser or its nominee shall have
specified to the Company in writing; and




          (ii) if to the Company, to it at 21700 Atlantic Boulevard, Dulles, VA 20166, Attn:
William Lee Warren, Esq., Fax: 703-480-4659 or at another address notified to the Purchasers
in writing in accordance with this Section 8.1, with a copy to Latham & Watkins LLP,
555 Eleventh Street, N.W., Suite 1000, Washington, D.C. 20004-1304, Attn: William P.
O’Neill, Esq., Fax: (202) 637-2201.


Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).




          (b) Electronic Communications. Notices and other communications to the Purchasers hereunder
may be delivered or furnished by electronic communication (including e-mail and Internet or
intranet websites) in accordance with the second paragraph of this subsection (b), provided that
the foregoing shall not apply to notices to any Purchaser if such Purchaser has notified the
Company that it is incapable of receiving notices by electronic communication. The Company and any
Purchaser may, in its discretion, agree to accept notices








13









 







and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.




          Notices and other communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written acknowledgement), provided that
if such notice or other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent at the opening of
business on the next business day for the recipient. Notices or communications posted to an
Internet or intranet website shall be deemed received upon the deemed receipt by the intended
recipient at its e-mail address as described in the foregoing sentence of notification that such
notice or communication is available and identifying the website address therefor.




          8.2 Benefit of Agreement and Assignments.




          (a) Except as otherwise expressly provided herein, all covenants, agreements and other
provisions contained in this Agreement by or on behalf of any of the parties hereto shall bind,
inure to the benefit of and be enforceable by their respective successors and assigns (including,
without limitation, any subsequent Holder of Shares).




          (b) Nothing in this Agreement, express or implied, shall give to any Person other than the
parties hereto or thereto and their permitted successors and assigns any benefit or any legal or
equitable right, remedy or claim under this Agreement.




          (c) Notwithstanding anything to the contrary contained herein, the Purchasers may assign the
rights to purchase all or any portion of the Shares allocated to such Purchaser pursuant to
Schedule 2.2 to any Affiliate of such Purchaser, and each such Person shall be entitled to
the full benefit and be subject to the obligations of this Agreement as if such Person were a
Purchaser hereunder.




          8.3 No Waiver; Remedies Cumulative. No failure or delay on the part of any party
hereto or any Purchaser in exercising any right, remedy, power or privilege hereunder or under the
Shares shall operate as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder or under the Shares preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege hereunder or thereunder.
The rights, remedies, powers, and privileges provided herein and in the Shares are cumulative and not exclusive of
any rights, remedies powers and privileges provided by Law.




          8.4 Amendments, Waivers and Consents. This Agreement may be amended, and the
observance of any term hereof may be waived (either retroactively or prospectively), with the
written consent of the Company and the Required Holders and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given.




          8.5 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which






14









 







shall constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.




          8.6 Headings. The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of any provision of
this Agreement.




          8.7 Survival of Covenants. All covenants set forth herein shall survive the execution
and delivery of this Agreement, and all covenants set forth herein which contemplate performance
after the issuance of the Shares pursuant hereto shall survive the issuance of the Shares and shall
remain in full force and effect as long as any Shares remain outstanding.




          8.8 Governing Law; Jurisdiction Etc.




          (a) Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK).




          (b) Submission to Jurisdiction. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY
PARTY HERETO MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
AGAINST ANY OTHER PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.




          (c) Waiver of Venue. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR







15









 







RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.




          (d) Service of Process. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.1. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT
OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.




          (e) Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.




          8.9 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, (i) the
legality, validity and enforceability of the remaining provisions of this Agreement shall not be
affected or impaired thereby and (ii) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.
The invalidity of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.




          8.10 Survival of Representations and Warranties. All representations and warranties
made hereunder shall survive the execution and delivery hereof. Such representations and
warranties have been or will be relied upon by each Purchaser, regardless of any investigation made
by such Purchaser or on their behalf, and shall continue in full force and effect as long as any
Shares remain outstanding.




          8.11 Construction. Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained herein, so that
compliance with any one covenant shall not (absent such an express contrary provision) be deemed to
excuse compliance with any other covenant. Where any provision herein refers to action to be taken
by any Person, or which such Person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.






16









 








          8.12 No Personal Obligations. Notwithstanding anything to the contrary contained
herein or in any Loan Document, it is expressly understood and the Purchasers expressly agree that
nothing contained herein or in any other Loan Document or in any other document contemplated hereby
or thereby (whether from a covenant, representation, warranty or other provision herein or therein)
shall create, or be construed as creating, any personal liability of any stockholder, director,
officer, employee, agent, partner or Affiliate of the Company and its Subsidiaries in such Person’s
capacity as such or otherwise, with respect to (a) any payment obligation of the Company, (b) any
obligation of the Company to perform any covenant, undertaking, indemnification or agreement,
either express or implied, contained herein or in any other Loan Document, (c) any other claim or
liability to the Purchasers under or arising under this Agreement or any other Loan Document or in
any other document contemplated hereby or thereby, or (d) any credit extended or loan made.




          8.13 Currency. All dollar amounts referred to in this Agreement are in lawful money
of the United States.




          8.14 Further Assurances . Each of the parties hereto shall, upon reasonable request of any other party hereto, do,
make and execute all such documents, act, matters and things as may be reasonably required in order
to give effect to the transactions contemplated hereby and the provisions of this Agreement.





17










 






          IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement
to be duly executed and delivered as of the date first above written.




	 	 	 	 	 
	 	ORBIMAGE HOLDINGS INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 	 	 	 	 
	 	 	WINGATE CAPITAL LTD.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	Citadel Limited Partnership, Portfolio

Manager	 	 
	 

	 	 	 	By:
	 	Citadel Investment Group, L.L.C., its
General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	 
	 	 	 	 	Title:	 	 






ii









 






	 	 	 	 	 	 	 	 	 
	 	 	DEEPHAVEN EVENT SUBFUND TRADING LTD.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	Deephaven Capital Management, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	 
	 	 	 	 	Title:	 	 






iii









 






	 	 	 	 	 
	 	ORION FUNDING, L.L.C.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



iv









 






	 	 	 	 	 



	 	 	 	 	 	 	 	 	 
	 	 	CONCORDIA DISTRESSED DEBT FUND, L.P. ACTING BY AND
THROUGH CONCORDIA ADVISORS, L.L.C.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robert J. Capozzi	 	 
	 

	 	 	 	Title:
	 	Portfolio Manager and Co-head of
Distressed Debt Trading	 	 






v









 






Exhibit A




Form of Certificate of Designation




See attached Certificate of Designation




 









 





Exhibit B




Form of Opinion of Latham & Watkins LLP




See attached form of opinion.




ii









 





Exhibit C




Form of Officers’ Certificate




See attached Officers’ Certificate.





iii









 





Schedule 4.5




Warrants





	•	 	Warrants, each dated as of December 31, 2003, to purchase
in aggregate 318,947 shares of Common Stock at an exercise
price of $28.22 per share.
	 
	•	 	Warrant Agreement, dated as of March 14, 2005, and
warrants issued pursuant thereto to purchase in aggregate
3,258,406 shares of Common Stock at an exercise price of
$10.00 per share.
	 
	•	 	Warrant Agreement, dated as of January 10, 2006, and
warrants issued or being issued on the date hereof pursuant
thereto to purchase in aggregate 500,000 shares of Common
Stock at an exercise price of $15.00 per share.






ii