Exhibit 10.13


 


REGISTRATION RIGHTS AGREEMENT


 


 


THIS REGISTRATION RIGHTS AGREEMENT, dated as of October 2, 2002, is
between ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED, a Delaware corporation
(the “Company”) and ELLIPSO PRIVATE HOLDINGS, INC., a Delaware corporation (the
“Holder”).


 


RECITALS


 


WHEREAS, Holder has purchased on or about the date of this Agreement
1,570,832 shares and will acquire, upon the satisfaction of certain conditions,
another 1,570,833 shares and, upon the conversion of certain convertible
securities, up to another 93,000 shares of Class A common stock, $.01 par
value, of the Company (collectively, the “Class A Common Stock”); and


 


WHEREAS, the Company wishes to grant Holder certain registration rights
with respect to the shares of Class A Common Stock purchased by Holder, as
provided further herein.


 


NOW THEREFORE, in consideration of the promises herein contained and
other good and valuable consideration, the parties hereto agree as follows:


 


AGREEMENT


 


1.                         Definitions.


 


As used in this Agreement:


 


(i) the term “Act”
means the Securities Act of 1933, as amended;


 


(ii) the term “Affiliate”
or “Holder Affiliate” means any entity, or any employee or member of any
entity, over which Holder or an Other Holder, as applicable, has direct or indirect
majority voting control or which has direct or indirect majority voting control
over Holder;


 


(iii) the term “Commission”
means the Securities and Exchange Commission or any other federal agency at the
time administering the Act;


 


(iv) the term “Common
Stock” means any and all classes of the Company’s common stock as
authorized pursuant to the Company’s Restated Certificate of Incorporation, as
may be amended or restated from time to time;


 


(v) the term “Exchange
Act” means the Securities Exchange Act of 1934;


 


(vi) the term “Holder”
means any Holder or any Holder Affiliate that holds Registrable Securities;


 


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(vii) the term “Other
Holders” means those parties listed on Schedule A hereto and any Affiliate
of such Other Holders;


 


(viii) the terms “register,”
“registered” and “registration” mean a registration effected by
preparing and filing a registration statement in compliance with the Act (and
any post-effective amendments filed or required to be filed) and the
declaration or ordering of effectiveness of such registration statement;


 


(ix) the term “Registrable
Securities” means (A) the Class A Common Stock and (B) any capital stock of
the Company issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the shares of Class A Common Stock; and


 


(x) the term “Registration
Expenses” means all third-party expenses incurred by the Company in
compliance with Section 2 hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel for the
Company and the underwriters, if any, blue sky fees and expenses and the
third-party expenses of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company).


 


2.                         Company
Registration.


 


(a)       Right
to Register. Whenever Company proposes to register any of its
Common Stock under the Act (other than (i) a registration relating solely to
employee benefit plans, or (ii) a registration relating to a transaction
covered by Rule 145 under the Act or effected on Form S-4 or any successor
form, or (iii) a registration pursuant to a demand by one or more Other Holders)
and the registration form to be used may be used for the registration of
Registrable Securities (a “Piggyback Registration”), Company will: (a) give
prompt written notice thereof to Holder (which shall include a list of the
jurisdictions in which Company intends to attempt to qualify such securities
under the applicable blue sky or other state securities laws) and (b) subject
to Section 3 hereof, include in such registration and any related qualification
under blue sky laws or other compliance, and in any underwriting involved
therein, all Registrable Securities of Holder as specified in a written request
or requests made within twenty (20) days after receipt of such written notice
from Company.


 


(b)       Priority
on Registrations. Holder acknowledges and agrees that (i) its
rights under this Section 2 shall, on a pro rata basis with all other
holders of Registrable Securities (subject to clause (ii) below, and further
subject to the priority of any Common Stock to be registered by Company), be
subject to cutback provisions imposed by a managing underwriter, and (ii) the
Company may grant rights from time to time that have priority over the rights
granted by this Agreement where the Company determines that it is in its best
interests to do so. If, as a result of the cutback provisions of the preceding
sentence, Holder is not entitled to include all of its requested Registrable
Shares in such registration, then Holder may elect to withdraw its request to
include any or all of its Registrable Shares in such registration.


 


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(c)       Underwritten
Offerings. In the event of an underwritten offering, Holder
shall make such arrangements with the underwriters so that each Holder may
participate in the offering on the same terms as Company and any other holders
selling securities in such offering.


 


(d)       Registration
Procedures. Whenever Holder requests that any Registrable
Securities be registered pursuant to this Agreement, Company will use
commercially reasonable efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
therefor, and pursuant thereto Company will as expeditiously as possible:


 


(i)        Cause
the registration statement to be used for the Piggyback Registration to include
Holder’s Registrable Securities. If at any time after giving written notice of
its intention to register any securities and prior to the effective date of the
registration statement filed in connection with such Piggyback Registration,
Company shall determine for any reason to withdraw or delay effectiveness of
the registration statement, Company may, at its election, give written notice
of such determination to Holder and, (x) in the case of a determination to
withdraw the registration statement, Company shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration statement, and (y) in the case of a determination to delay
effectiveness, Company shall be permitted to delay effectiveness for any period
of the delay.


 


(ii)       Prepare
and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may
be necessary to keep such registration statement effective for a period of not
less than thirty (30) days and comply with the provisions of the Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition thereof by Holder set forth in such registration statement.


 


(iii)     Furnish
to Holder such number of copies of such registration statement, each amendment
and supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as Holder may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by Holder.


 


(iv)      Use
commercially reasonable efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such United States
jurisdictions as Holder may reasonably request and do any and all other acts
and things which may be reasonable necessary or advisable to enable Holder to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by Holder, provided that Company will not be required to (a) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify for this subparagraph, (b) subject itself to taxation in
any such jurisdiction or (c) consent to general service of process in any such
jurisdiction.


 


(v)        Notify
Holder, at any time when a registration statement under the Act that registers
any of Holder’s Registrable Securities is effective, of the happening of any
event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the request of
Holder, Company will prepare a supplement or amendment to


 


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such prospectus so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not contain an untrue statement of a material fact or
omit to state a fact necessary to make the statements therein not misleading.


 


(vi)      Cause all such Registrable Securities to
be listed on such securities exchange or market on which the Company’s Common
Stock is then listed.


 


(vii)     Furnish,
at Holder’s request, on the date that Holder’s Registrable Securities are
delivered to the underwriters for sale in connection with a registration
pursuant to this Agreement, if such securities are being sold through
underwriters, or, if such securities are not being sold through underwriters,
on the date that the registration statement with respect to such securities
becomes effective, (A) an opinion, dated such date, of the counsel representing
the Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to Holder, if Holder requests registration and
(B) a letter dated such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public
offering, addressed to the underwriters, if any.


 


(e) Holder
agrees that, upon receipt of any notice from Company of the happening of any
event of the kind described in Section 2(d)(v), Holder will discontinue
disposition of its Registrable Securities pursuant to such registration
statement until Holder’s receipt of the copies of the supplemented or amended
prospectus contemplated by Section 2(d)(v), or until Holder is advised in
writing by Company that the use of the prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the prospectus, and, if so directed by Company, Holder will
deliver to Company (at Company’s expense) all copies, other than permanent file
copies then in Holder’s possession, of the prospectus covering such Registrable
Securities which are current at the time of the receipt of such notice.


 


(f) Expenses of Company
Registration. Company shall pay Registration Expenses. Holder
shall pay all fees and disbursements of its attorneys and accountants, as well
as all transfer taxes and brokerage and underwriters’ discounts and commissions
attributable to the Registrable Securities being sold by Holder.


 


(g) Indemnification.


 


(i)        Company
agrees to indemnify, to the extent permitted by law, Holder and its legal
counsel, against all losses, liabilities, claims, damages and expenses (“Losses”)
caused by any untrue or alleged untrue statement of material fact contained in
any registration statement in which Holder is participating, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information furnished in writing to
Company or any underwriter by Holder expressly for use therein or results from
Holder’s failure to deliver a copy of the registration statement or prospectus
or any amendments or supplements thereto after Company has furnished Holder
with the number of copies of the same requested by Holder.


 


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(ii)       Holder will indemnify Company, its
directors and officers and each person who controls Company (within the meaning
of the Act) and any of such person’s agents or representatives, against any Losses
resulting from (i) any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary prospectus
or any amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished
in writing by Holder expressly for use in such registration statement, or (ii)
Holder’s failure to deliver a copy of the registration statement or prospectus
or any amendments or supplements thereto after Company has furnished Holder
with the number of copies of the same requested by Holder.


 


(iii)     The indemnification provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Party (as defined herein) or any
officer, director, or controlling person of such Indemnified Party and will
survive the transfer of Registrable Securities. The Indernnifying Party also
agrees to make such provisions, as are reasonably requested by an Indemnified
Party, for contribution to such party in the event such Indemnifying Party’s
indemnification is unavailable for any reason.


 


(iv)      Each party entitled to indemnification
under this Section 2(g) (the “Indemnified Party”) shall give notice to
the party required to provide indemnification (the “Indemnifying Party”)
promptly after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom;
provided that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld) and the
Indemnified Party may participate in such defense at the Indemnified Party’s
expense (unless the Indemnified Party shall have reasonably concluded that
there may be a conflict of interest between the Indemnifying Party and the
Indemnified Party in such action, in which case the fees and expenses of
counsel shall be at the expense of the Indemnifying Party), and provided
further that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this Section
2(g) unless the Indemnifying Party is materially prejudiced thereby. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of the Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. The Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with the defense
of such claim and litigation resulting therefrom.


 


(v)        If the indemnification provided for in
this Section 2(g) is held
by a court of competent jurisdiction to be unavailable to an Indemnified Party
with respect to any Losses, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such loss, liability,
claim, damage or expense in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and of the Indemnified
Party on the other in connection


 


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with the
statements or omissions which resulted in Losses, as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party and of
the Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.


 


(vi)      Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with any underwritten public offering contemplated by this Agreement are in
conflict with the foregoing provisions, the provisions in such underwriting
agreement shall be controlling.


 


3. Information by Holder. Holder
shall furnish to the Company such information regarding Holder and the
distribution of shares proposed by Holder as the Company may reasonably request
in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.


 


4. Rule 144 Reporting.


 


With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted
securities to the public without registration, the Company agrees to:


 


(a)       make and keep public information available
as those terms are understood and defined in Rule 144 of the Act, at all times
from and after ninety (90) days following the effective date of the first
registration under the Act filed by the Company for an offering of its Common
Stock to the general public;


 


(b)       use its best efforts to file with the
Commission in a timely manner all reports and other documents required of the
Company under the Act and the Exchange Act at any time after it has become
subject to such reporting requirements; and


 


(c)       so long as Holder owns any Registrable
Securities, furnish to Holder upon request, a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 (at any time
from and after ninety (90) days following the effective date of the first
registration statement filed by the Company for an offering of its securities
to the general public), and of the Act and the Exchange Act (at any time after
it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed as Holder may reasonably request in availing himself of any
rule or regulation of the Commission allowing Holder to sell any such
securities without registration.


 


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5.    ”Market
Stand-off” Agreement. Holder will agree, if requested by the
Company or an underwriter of capital stock or other securities of the Company,
not to sell or otherwise transfer or dispose of any capital stock or other
securities of the Company held by Holder, except in connection with a Piggyback
Registration, during the 180 day period following any registration statement
filed under the Act to register capital stock or other securities of the Company.


 


If requested by a managing underwriter of a registered offering, Holder
shall execute a separate agreement to the foregoing effect. The Company may
impose stop-transfer instructions with respect to the shares (or securities)
subject to the foregoing restriction until the end of such period.


 


6.    Termination. The
registration rights set forth in this Agreement shall not be available to
Holder or any Holder Affiliate if, in the opinion of counsel to the Company,
all of the Registrable Securities then owned by Holder or any Holder Affiliate
could be sold in any 90-day period pursuant to Rule 144 under the Act (without
giving effect to the provisions of Rule 144(k)). In addition, the registration
rights set forth in this Agreement shall terminate upon the transfer or
assignment of the Registrable Securities to any non-affiliated third party
other than a transfer to an Other Holder. Upon termination pursuant to this Section
6, the Company shall no longer be obligated to provide notice of a proposed
registration to Holder.


 


7.   Notices. All
communications provided for hereunder shall be sent by first-class mail or
facsimile and (a) if addressed to Holder, addressed to Holder at the address or
fax number set forth below Holder’s signature, or at such other address or fax
number as Holder shall have furnished to the Company in writing or (b) if
addressed to the Company, at the address or fax number set forth below the
Company’s signature, or at such other address or fax number, or to the
attention of such other officer, as the Company shall have furnished to Holder
in writing. Notices sent by first-class mail shall be deemed received three
days after the date of deposit of such notice in the United States mail.
Notices sent by facsimile shall be deemed received upon receipt by the notified
party’s facsimile machine.


 


8.   No Assignment. This
Agreement is personal to Holder and shall not be assignable, by operation of
law or otherwise to any third party.


 


9.   Descriptive
Headings. The descriptive headings of the several sections
and paragraphs of this Agreement are inserted for reference only and shall not
limit or otherwise affect the meaning hereof.


 


10.   GOVERNING LAW. THIS
AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF
THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF DELAWARE.


 


11.   No Inconsistent
Agreements. The Company will not on or after the date of this
Agreement enter into any agreement with respect to its securities that
conflicts with or would limit the rights granted to Holder in this Agreement or
otherwise conflicts with the provisions hereof.


 


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12.   Amendments and
Waivers. No provision of this Agreement may be amended or
waived except by an instrument in writing signed by the party sought to be
bound.


 


13.   Counterparts. This
Agreement may be executed simultaneously in any number of counterparts, each of
which shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.


 


14.   Term. This
Agreement and the rights granted hereunder shall expire on the fifth
anniversary of the date set forth in the preamble to this Agreement.


 


 


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IN WITNESS
WHEREOF, the parties have caused this agreement to be executed and delivered as
of the date first above written.


 


	
   

  	
  ELLIPSO PRIVATE
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David Castiel

  
	
   

  	
  Name:

  	
   

  	
  David Castiel

  
	
   

  	
  Title:

  	
   

  	
  President

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
  1133 21st
  Street, N.W.

  
	
   

  	
   

  	
  8th floor 

  
	
   

  	
   

  	
  Washington, D.C. 20036 

  
	
   

  	
   

  	
  Attn: James Bailey,
  Esq. 

  
	
   

  	
   

  	
  Fax: (202) 466-5726

  
	
   

  	
   

  
	
   

  	
  ICO GLOBAL
  COMMUNICATIONS 

  
	
   

  	
  (HOLDINGS) LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig Jorgens

  
	
   

  	
  Name:

  	
  Craig Jorgens

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
  4 Orinda Way 

  
	
   

  	
   

  	
  Suite B240 

  
	
   

  	
   

  	
  Orinda, CA 94563 

  
	
   

  	
   

  	
  Attn: General Counsel 

  
	
   

  	
   

  	
  Fax: (925) 253-4912

  
										



 


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SCHEDULE A


 


OTHER
HOLDERS’ ADDRESSES FOR NOTICES


 


Eagle River
Investments, LLC


2300 Carillon
Point


Kirkland, WA 98033


Fax: (425)
828-8061


 


CDR-Satco, LLC


c/o Clayton,
Dubilier & Rice, Inc.,


375 Park Avenue


New York, NY 10152


Fax: 212-893-7050


 


Cascade
Investment, LLC 


2365 Carillon
Point 


Kirkland, WA 98033



Fax: (425)
889-0288


 


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