Exhibit 10.5


REGISTRATION RIGHTS AGREEMENT


 


THIS REGISTRATION RIGHTS AGREEMENT, dated as of April 29, 2000,
is between NEW SATCO HOLDINGS,
INC., a Delaware corporation (the “Company”) and Eagle River Investments,
L.L.C., a Washington limited liability company, (the “Holder”)


 


WHEREAS, Holder has subscribed for the purchase of 50,000,000 shares of
Class B common stock, $.0001 par value, of the Company, and holds warrants to
acquire 0 shares of Class B common stock, $.0001 par value, of the Company
(such shares and the shares issuable upon the exercise of such warrants
collectively referred to as the “Class B Common Stock”); and


 


WHEREAS, the Company wishes to grant Holder certain registration rights
with respect to shares of Class A common stock, $.0001 par value, of the
Company(the “Class A Common Stock”) into which the shares of the Class B Common
Stock are convertible, 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:


 


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 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;
and


 


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


 


(vii) 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;


 


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(viii) the term “Registrable Securities” means (A) any shares of the
Class A Common Stock held by Holder or a Holder Affiliate, whether acquired
through conversion of Class B Common Stock or otherwise, 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
referred to in clause (A) above;


 


(ix) the term “Registration Expenses” means all third-party expenses
incurred by the Company in compliance with Sections 2 and 3 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.      Requested Registration.


 


(i)     Request for Registration.
If the Company shall receive from Holder a written request that the Company
effect any registration with respect to all or a part of the Registrable
Securities, the Company will, subject to compliance with any applicable
underwriters’ lock-up agreements in effect as of the date of such request:


 


(A) promptly give written notice of the proposed registration
qualification or compliance to all Other Stockholders (as defined below); and


 


(B) as soon as practicable, use its diligent best efforts to effect
such registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Act) as may be so requested and as
would permit or facilitate the sale and distribution as soon as is practicable
of all or such portion of such Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of any
Other Stockholders joining in such request as are specified in a written
request received by the Company within twenty (20) business days after written
notice from the Company is given under Section 2(i)(A) above; provided
that the Company shall not be obligated to effect, or take any action to
effect, any such registration pursuant to this Section 2:


 


(a) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already
subject to service in such jurisdiction and except as may be required by the
Act or applicable rules or regulations thereunder;


 


(b) After the Company has effected two (2) such registrations pursuant
to this Section 2 and such registrations have been declared or ordered
effective and the sales of such Registrable Securities shall have closed;


 


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(c) If the securities requested by Holder to be registered pursuant to
such request have an anticipated aggregate public offering price (before any
underwriting discounts and commissions) of less than $10,000,000.


 


The registration statement filed pursuant to the request of Holder may,
subject to the provisions of Section 2(ii) below, include other securities of
the Company which are held by officers or directors of the Company, or which
are held by persons who, by virtue of agreements with the Company, are entitled
to include their securities in any such registration, but the Company shall
have no absolute right to include any of its securities in any such
registration.


 


The registration rights set forth in this Section 2 are personal to
Holder and shall not be assignable, by operation of law or otherwise, to any
third party other than a Holder Affiliate.


 


(ii) Underwriting. If Holder intends to distribute the
Registrable Securities covered by its request by means of an underwriting, then
Holder shall so advise the Company as a part of their request made pursuant to
Section 2.


 


If officers or directors of the Company holding other securities of the
Company shall request inclusion in any registration pursuant to Section 2, or
if holders of securities of the Company other than Registrable Securities who
are entitled, by contract with the Company or otherwise, to have securities
included in such a registration (the “Other Stockholders”) request such
inclusion, Holder shall offer to include the securities of such officers,
directors and Other Stockholders in the underwriting and may condition such
offer on their acceptance of the further applicable provisions of this Section
2. Holder, any Holder Affiliate participating in the registration, and the
Company shall (together with all officers, directors and Other Stockholders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by Holder and reasonably
acceptable to the Company. Notwithstanding any other provision of this Section
2, if the representative advises Holder that marketing factors require a
limitation on the number of shares to be underwritten, the securities of the
Company held by officers or directors of the Company shall be excluded from
such registration to the extent so required by such limitation. If, after the
exclusion of such shares, further reductions are still required, the number of
shares included in the registration by Holder and each Other Stockholder shall
be reduced on a pro rata basis (based on the number of shares proposed to be
sold by Holder and such Other Stockholders), by such minimum number of shares
as is necessary to comply with such request. No Registrable Securities or any
other securities excluded from the underwriting by reason of the underwriter’s
marketing limitation shall be included in such registration. If any officer,
director or Other Stockholder who has requested inclusion in such registration
as provided above disapproves of the terms of the underwriting, such person may
elect to withdraw therefrom by written notice to the Company, the underwriter
and Holder. The securities so withdrawn shall also be withdrawn from
registration. If the underwriter has not limited the number of Registrable
Securities or other securities to be underwritten, the Company may include its
securities for its own account in such registration if the representative so
agrees and if the number of Registrable Securities and other securities which
would otherwise have been included in such registration and underwriting will
not thereby be limited.


 


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(iii) Notwithstanding the foregoing, if the Company shall furnish to
Holder a certificate signed by the President or Chief Executive Officer of the
Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
shareholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, then the Company
shall have the right to defer such filing for a period of not more than 120
days after receipt of the request of Holder; provided, however,
that the Company may not utilize this right more than once in any twelve (12)
month period.


 


3.      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
1933 Act or effected on Form S-4 or any successor form 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 its rights under this Section 2
shall, on a pro rata basis with all other holders of Registrable Securities
participating in the registration, be subject to cutback provisions imposed by
a managing underwriter. 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.


 


(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


 


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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 1933 Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition 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 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


 


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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 2.5(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.


 


(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
Indemnifying Party also agrees to make


 


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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(e) (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(e) 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(e) 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 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.


 


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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, 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.


 


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.
Upon termination pursuant to this Section 6, the Company shall no longer
be obligated to provide notice of a proposed registration to Holder.


 


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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 Eagle River Investments, L.L.C., Attention:
General Counsel, or fax number (425) 828-8061 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
other than a Holder Affiliate.


 


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.


 


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
tenth 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.


 


	
   

  	
   

  	
   

  	
  HOLDER:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ C. James Judson

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  C. James Judson

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Address:

  	
  2300
  Carillon Point

  
	
   

  	
   

  	
   

  	
   

  	
  Kirkland,
  WA 98033

  
	
   

  	
   

  	
   

  	
  Fax:
  (425) 828-8061

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  NEW
  SATCO HOLDINGS, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ W. A. Hoglund

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  William A. Hoglund

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President

  	
   

  
											



 


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