exv4w5



 






Exhibit 4.5




REGISTRATION RIGHTS AGREEMENT




by and between










ORBIMAGE INC.




AND




THE STOCK HOLDERS SIGNATORY HERETO










Dated as of November 16, 2004




 









 









TABLE OF CONTENTS




	 	 	 	 	 
	1. Definitions.
	 	 	3	 
	2. General Registration; Listing.
	 	 	5	 
	(a) Form 10.
	 	 	5	 
	(b) Listing.
	 	 	5	 
	(c) NASD Rule 4350.
	 	 	5	 
	3. Demand Registration.
	 	 	5	 
	(a) Requests for Registration.
	 	 	5	 
	(b) Filing and Effectiveness.
	 	 	6	 
	(c) Priority in Demand Registrations.
	 	 	7	 
	4. Shelf Registration.
	 	 	7	 
	(a) Filing and Effectiveness.
	 	 	7	 
	(b) Continued Effectiveness.
	 	 	8	 
	(c) Effect on Demand Registration Obligation.
	 	 	8	 
	(d) Shelf Registration Other Than Form S-1.
	 	 	8	 
	5. Piggyback Registration.
	 	 	8	 
	(a) Right to Piggyback.
	 	 	8	 
	(b) Priority in Piggyback Registrations.
	 	 	9	 
	6. Holdback Agreements.
	 	 	10	 
	(a) Restrictions on Sale by Holders of Registrable Securities.
	 	 	10	 
	(b) Restrictions on the Sale by the Company.
	 	 	10	 
	7. Registration Procedures.
	 	 	10	 
	8. Registration Expenses.
	 	 	16	 
	9. Indemnification.
	 	 	17	 
	(a) Indemnification by the Company.
	 	 	17	 
	(b) Indemnification by Holders of Registrable Securities.
	 	 	18	 
	(c) Conduct of Indemnification Proceedings.
	 	 	18	 
	(d) Contribution.
	 	 	19	 
	10. Rule 144.
	 	 	20	 
	11. Miscellaneous.
	 	 	20	 
	(a) Remedies.
	 	 	20	 
	(b) No Inconsistent Agreements.
	 	 	20	 
	(c) Amendments and Waivers.
	 	 	20	 
	(d) Notices.
	 	 	21	 
	(e) Owner of Registrable Securities.
	 	 	22	 
	(f) Successors and Assigns.
	 	 	22	 
	(g) Counterparts; Effectiveness.
	 	 	22	 
	(h) Headings.
	 	 	22	 
	(i) Governing Law.
	 	 	22	 
	(j) Jurisdiction; Consent to Service of Process.
	 	 	22	 
	(k) WAIVER OF JURY TRIAL.
	 	 	23	 
	(l) Severability.
	 	 	23	 
	(m) Entire Agreement.
	 	 	23	 
	(n) No Strict Construction.
	 	 	23	 
	(o) Third Party Beneficiaries.
	 	 	23	 
	(p) Registration of Securities other than Registrable Securities.
	 	 	24	 
	(q) Termination.
	 	 	24	 
	Exhibit A
	 	 	1	 







 









 






REGISTRATION RIGHTS AGREEMENT




          REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of November 16,
2004, between those holders of Common Stock and Warrants signatory hereto (the
“Stock Holders”) and ORBIMAGE Inc., a Delaware corporation (the “Company”).



          A. Pursuant to the various Investment Agreements, each dated as of
November 16, 2004 (collectively, the “Investment Agreement”), upon the
satisfaction of certain conditions, the Company will issue Additional Common
Stock and Warrants to certain Stock Holders.



          B. In order to induce the Stock Holders party to the Investment Agreement
to enter into the Investment Agreement and to purchase the Additional Common
Stock and Warrants pursuant thereto, the Company has agreed to grant certain
registration rights with respect to the Additional Common Stock to the Stock
Holders and other Beneficiaries as set forth herein.



          C. Pursuant to the various commitment letters, each dated on or about
September 24, 2004 (the “Commitment Letters”), upon the satisfaction of certain
conditions, the Company will issue Additional Common Stock to certain Stock
Holders in consideration for each such Stock Holders’ commitment to purchase
certain debt securities of the Company in the future with the terms and subject
to the conditions set forth therein.



          D. Pursuant to the various subscription letters, each dated on or about
November 2, 2004 (the “Subscription Letters”), entered into in furtherance of
the matters set forth in the Commitment Letters, in consideration for the
covenants and agreements set forth in the Commitment Letters and the
Subscription Letters, the Company has agreed to grant certain registration
rights with respect to the Additional Common Stock to the Stock Holders and
other Beneficiaries as set forth herein.



          NOW, THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:



1. Definitions.




          In addition to the terms defined elsewhere herein and the terms set forth
in the Investment Agreement that are not otherwise defined herein, which shall
have the same meanings herein as in the Investment Agreement, the following
terms shall have the following meanings when used herein with initial capital
letters:



          “Additional Common Stock” means the Company’s Common Stock issued to the
Stock Holders pursuant to the Investment Agreement or the Commitment Letters or
pursuant to the exercise of Warrants.



          “Beneficiaries” means, at any time, those Persons who receive beneficial
or record ownership of shares of Additional Common Stock or Warrants
distributed pursuant to the



 









 





Investment Agreement or the Commitment Letters, in each case, for so long
as and only to the extent that they hold such Additional Common Stock or
Warrants; provided, however, in each case, upon the request of the Company,
such Persons submits a written statement to the Company substantially in the
form attached hereto as Exhibit A.




          “Common Stock” means all of the common stock, par value $0.01 per share,
of the Company, including the Additional Common Stock.



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



          “Person” means a natural person, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or other entity, or a governmental
entity or any department, agency or political subdivision thereof.



          “Prospectus” means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to the
Prospectus, including amendments thereto after the effective date of the
related Registration Statement, and all material incorporated by reference or
deemed to be incorporated by reference in such Prospectus.



          “Registrable Securities” means the shares of Additional Common Stock and
the Warrants acquired by the Beneficiaries on or after the date hereof,
pursuant to the Investment Agreement or the Commitment Letters or otherwise,
and any shares of Common Stock or other securities that may be received by the
Beneficiaries (x) as a result of a stock dividend, stock split or other
distribution of Common Stock in relation to the Additional Common Stock or (y)
on account of Additional Common Stock in a recapitalization or other
transaction involving the Company, in each case upon the respective original
issuance thereof, and at all times subsequent thereto;
provided, however, that
the foregoing securities shall cease to be “Registrable Securities” to the
extent that (i) such securities have been effectively registered under the
Securities Act and disposed of in accordance with the Registration Statement
covering them or (ii) such securities are then saleable by the holder thereof
pursuant to Rule 144(k).



          “Registration Statement” means any registration statement of the Company
under the Securities Act that covers any of the Registrable Securities pursuant
to the provisions of this Agreement, including the related Prospectus, all
amendments and supplements to such registration statement (including
post-effective amendments), all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.



          “Rule 144” means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.



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          “SEC” means the Securities and Exchange Commission.



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



          “Subsidiary” when used with respect to any party, means any corporation or
other organization, whether incorporated or unincorporated, of which such party
directly or indirectly owns or controls more than 50% of the securities or
other interests having by their terms ordinary voting power to elect a majority
of the board of directors or others performing similar functions.



          “Underwritten Offering” means a distribution, registered pursuant to the
Securities Act, in which securities of the Company are sold to an underwriter
for reoffering to the public.



          “Warrant” means a warrant to purchase Additional Common Stock under the
terms and subject to the conditions set forth in the Investment Agreement.



2. General
Registration; Listing.




     (a) Form 10.



          The Company shall use its reasonable best efforts to cause the Existing
Registration Statement to be declared effective as soon as practicable after
the date hereof.



     (b) Listing.



          The Company shall use its reasonable best efforts to cause its Common
Stock to be quoted on The NASDAQ National Market or, if the Common Stock does
not qualify to be so quoted, on a national securities exchange or other
national trading market, concurrently with, or as soon as practicable after,
any registration statement of the Company under the Securities Act that covers
any of the Company’s Common Stock is declared effective.



     (c) NASD Rule 4350.



          For the period beginning on the date hereof until the date the Common
Stock is listed and admitted and authorized for trading on The Nasdaq National
Market or a national securities exchange, the Company shall comply with the
requirements of NASD Rule 4350 as if it were subject thereto, other than those
set forth in subsections (b), (j), (k) and (m) thereof.



3. Demand Registration.




     (a) Requests for Registration.



          Subject to Section 4(c), at any time and from time to time after any
registration statement of the Company under the Securities Act or the Exchange
Act with respect to any of the Company’s Common Stock is declared effective,
the Beneficiaries holding at least 40% of the total number of Registrable
Securities held by Beneficiaries then outstanding will have the right by
written notice delivered to the Company (a “Demand Notice”), to require the
Company to register, under and in accordance with the provisions of the
Securities Act on a Registration



5









 





Statement filed on
Form S-1 (a “Demand Registration Statement”), a number
of Registrable Securities the estimated market value of which is not less than
$5 million; provided, however, that no Demand Notice may be given until at
least 90 calendar days after the effective date of the immediately preceding
Demand Registration Statement.




          Within five calendar days after receipt of such Demand Notice, the Company
will serve written notice thereof (the “Company Notice”) to all other
Beneficiaries. Subject to the provisions of Section 3(c) hereof, the Company
shall include in such Demand Registration Statement all Registrable Securities
with respect to which the Company receives written requests for inclusion
within 20 calendar days after the delivery of the Company Notice.



          The number of Demand Registration Statements required to be filed pursuant
to this Section 3(a) shall not exceed three; provided,
however, that in
determining the number of Demand Registration Statements to which the
Beneficiaries are entitled, there shall be excluded (1) any Demand Registration
Statement involving an Underwritten Offering if the managing underwriter or
underwriters have advised the Beneficiaries that the total number of
Registrable Securities requested to be included therein exceeds the number of
Registrable Securities that can be sold in such offering in accordance with the
provisions of this Agreement without materially and adversely affecting the
success of such offering and (2) any Demand Registration Statement that does
not become effective or is not maintained effective for the period required
pursuant to Section 3(b) hereof, unless in the case of this clause (2) such
Demand Registration Statement does not become effective after being filed by
the Company solely by reason of the refusal to proceed by the Beneficiaries.



     (b) Filing and Effectiveness.



          The Company will (subject to Section 7(a)) file a Demand Registration
Statement within 30 calendar days of receipt of a Demand Notice, and will use
its reasonable best efforts to cause the same to be declared effective under
the Securities Act as soon as practicable thereafter but in any event within 75
calendar days of receipt of a Demand Notice pursuant to Section 3(a).



          The Demand Notice shall specify the number of Registrable Securities to be
registered and the intended methods of disposition thereof. If the
Beneficiaries holding not less than a majority of the Registrable Securities to
be included in any offering pursuant to a Demand Registration Statement so
elect by written request to the Company, such offering shall be in the form of
an Underwritten Offering. Beneficiaries holding a majority of the Registrable
Securities to be included in such Underwritten Offering shall have the right to
select the managing underwriter or underwriters for the offering, subject to
the right of the Company to approve such managing underwriter or underwriters
(which approval shall not be unreasonably withheld) and to select one
co-managing underwriter reasonably acceptable to such Beneficiaries.



          The Company will keep the Registration Statement filed in respect of a
Demand Registration Statement effective for a period of up to 180 calendar days
from the date the Registration Statement is declared effective (subject to
extensions pursuant to the last paragraph of Section 7 hereof) or such shorter
period that will terminate when all Registrable Securities included in such
Registration Statement have been sold in accordance with the intended methods
of disposition thereof set forth in such Registration Statement.



6









 





          The Beneficiaries will be permitted to withdraw Registrable Securities
from a Demand Registration Statement at any time prior to the effective date of
such Registration Statement.



     (c) Priority in Demand Registrations.



          If any of the Registrable Securities registered pursuant to a Demand
Registration Statement are to be sold in one or more firm commitment
Underwritten Offerings, the Company may also provide written notice to holders
of securities of the Company other than Beneficiaries, if any, who have
piggyback registration rights with respect thereto and will permit all such
holders who request to be included in the Demand Registration Statement to
include any or all securities of the Company held by such holders in such
Demand Registration Statement on the same terms and conditions as the
Registrable Securities. Notwithstanding the foregoing, if the managing
underwriter or underwriters of the offering to which such Demand Registration
Statement relates advises the Beneficiaries that the total amount of
Registrable Securities and securities that such holders of securities of the
Company (other than Beneficiaries) intend to include in such Demand
Registration Statement is in the aggregate such as to materially and adversely
affect the success of such offering, then (i) first, the amount of securities
to be offered for the account of the holders of such other securities of the
Company will be reduced, to zero if necessary (pro rata among such holders on
the basis of the amount of such other securities to be included therein by each
such holder), and (ii) second, the number of Registrable Securities included in
such Demand Registration Statement will, if necessary, be reduced and there
will be included in such firm commitment Underwritten Offering only the number
of Registrable Securities that, in the opinion of such managing underwriter or
underwriters, can be sold without materially and adversely affecting the
success of such offering, allocated pro rata among the Beneficiaries on the
basis of the number of Registrable Securities held by each such holder.



4. Shelf Registration.




     (a) Filing and Effectiveness.



          The Company, within 90 days of the effectiveness of any registration
statement of the Company under the Securities Act that covers any of the
Company’s Common Stock, shall (subject to Section 7(a)) file with the SEC a
Registration Statement (the “Shelf Registration Statement”) on Form S-1 to
register all Registrable Securities then held by Beneficiaries and not
previously registered under the Securities Act pursuant to Section 3 or Section
5 hereof and shall use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective under the Securities Act as
soon as practicable thereafter. The Company will not permit any securities
other than Registrable Securities or Common Stock to be sold for its own
account to be included in the Shelf Registration Statement.



          If the Beneficiaries holding not less than a majority of the Registrable
Securities included in any offering pursuant to a Shelf Registration Statement
so elect by written request to the Company, such offering shall be in the form
of an Underwritten Offering. Beneficiaries holding a majority of the
Registrable Securities included in such Underwritten Offering shall, after
consulting with the Company, have the right to select the managing underwriter
or underwriters for the offering, subject to the right of the Company to
approve such managing



7









 





underwriter or underwriters (which approval shall not be unreasonably
withheld) and to select one co-managing underwriter reasonably acceptable to
such Beneficiaries. In no event will the Beneficiaries be entitled to request
the Company to effect more than an aggregate of two Underwritten Offerings
pursuant to the Shelf Registration Statement.




     (b) Continued Effectiveness.



          The Company shall use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective in order to permit any Prospectus
that forms a part thereof to be usable by Beneficiaries until the earlier of
(i) such time as all of the Registrable Securities offered in such underwritten
offering have been disposed of in accordance with the intended methods of
disposition thereof set forth in such Shelf Registration Statement and (ii) the
date on which there cease to be any Registrable Securities outstanding.



     (c) Effect on Demand Registration Obligation.



          The provisions of Section 3 of this Agreement shall not apply at any time
that the Company has a Shelf Registration Statement that has become effective
and remains effective in compliance with the provisions of the Securities Act
until such time as all of the Registrable Securities offered in such offering
have been disposed of in accordance with the intended methods of disposition
thereof set forth in such Shelf Registration Statement, and is otherwise
complying with its obligations under this Section 4.



     (d) Shelf Registration Other Than Form S-1.



          If the book-runner(s) for any Underwritten Offering pursuant to this
Section 4 advises the Company that it is of material importance to the success
of the proposed offering that either (i) the offering be effected pursuant to a
Registration Statement other than the Shelf Registration Statement or (ii)
information be included in the Shelf Registration Statement that is not
required by Form S-1, then the Company shall file a Registration Statement on
such other form, or shall include such other information in the Shelf
Registration Statement, as the case may be, as the book-runner(s) for such
Offering shall so request. All references in this Agreement to a “Shelf
Registration Statement” shall also be deemed to refer to any other Registration
Statement filed in accordance with this Section 4(d).



5. Piggyback
Registration.




     (a) Right to Piggyback.



          If the Company proposes to file a Registration Statement under the
Securities Act with respect to an offering of any class of securities (other
than a Registration Statement (i) pursuant to the Company’s obligations under
Section 4 hereof, (ii) on Form S-4 or S-8 or any successor form to such forms,
or (iii) filed solely in connection with a rights offering made to all of the
holders of Common Stock or an offering made solely to employees of the
Company), whether or not for its own account, then the Company will give
written notice of such proposed filing to all Beneficiaries at least 30
calendar days before the anticipated filing date. Such notice will offer
Beneficiaries the opportunity to register under the Company’s Registration
Statement (a “Piggyback Registration Statement”) such amount of Registrable
Securities as each



8









 





Beneficiary may request. Subject to Section 5(b) hereof, the Company will
include in each such Piggyback Registration Statement all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein no later than five calendar days before the anticipated
filing date. The Beneficiaries will be permitted to withdraw all or part of
the Registrable Securities from a Piggyback Registration Statement at any time
prior to the effective date of such Piggyback Registration Statement. The
Company will be permitted to withdraw any proposed Piggyback Registration
Statement at any time without liability to any Beneficiary, in which case the
Company will not be required to effect a registration of the requested
Registrable Securities, unless the requisite percentage of Beneficiaries
notifies the Company that they wish to convert the request into a Demand
Notice, in which case the provisions of Section 3 shall apply. No registration
affected under this Section 5 will relieve the Company of its obligations under
Section 3 or Section 4 hereof with respect to Registrable Securities not
registered and sold pursuant to this Section 5.




     (b) Priority in Piggyback Registrations.



          The Company will cause the managing underwriter or underwriters of a
proposed Underwritten Offering to permit Beneficiaries requested to be included
in the registration for such offering to include therein all such Registrable
Securities requested to be so included on the same terms and conditions as any
similar securities, if any, of the Company included therein. Notwithstanding
the foregoing, if the managing underwriter or underwriters of such offering
advises the Beneficiaries to the effect that the total amount of securities
which such Beneficiaries, the Company and any other Persons having rights to
participate in such registration propose to include in such offering is such as
to materially and adversely affect the success of such offering, then:




	(i)	 	if such registration is a primary registration on
behalf of the Company, the Company will include therein: (x)
first up to the full amount of securities to be included
therein for the account of the Company that in the opinion of
such managing underwriter or underwriters can be sold, and (y)
second, up to the full amount of Registrable Securities which
such Beneficiaries propose to include in such registration
that in the opinion of such managing underwriter or
underwriters can be sold without adversely affecting the
success of the offering (allocated pro rata in proportion to
the number of Registrable Securities held by such
Beneficiaries to the extent necessary to reduce the total
amount of securities to be included in such offering to the
amount recommended by such managing underwriter or
underwriters); and
	 
	(ii)	 	if such registration is an underwritten secondary
registration on behalf of holders of securities of the Company
other than Registrable Securities, the Company will include
therein: (x) first, up to the full number of securities of
such Persons exercising “demand” registration rights that, in
the opinion of such managing underwriter or underwriters, can
be sold (allocated pro rata among such Persons in proportion
to the number of securities held by such Persons, or as the
Company may otherwise determine), (y) second, up to the full
amount of Registrable Securities that,




9









 






	 	 	in the opinion of such managing underwriter or underwriters,
can be sold (allocated pro rata among the Beneficiaries in
proportion to the number of Registrable Securities held by
such Beneficiaries), and (z) third, all other securities
proposed to be sold by any other Persons that, in the opinion
of such managing underwriter or underwriters can be sold
(allocated pro rata among such Persons in proportion to the
number of securities held by such Persons, or as the Company
may otherwise determine).
	 
	(iii)	 	If any Holder advises the book-runner(s) of any
underwritten offering that the Registrable Securities covered
by the Registration Statement cannot be sold in such offering
within a price range acceptable to such Holder, then such
Holder shall have the right to exclude its Registrable
Securities from registration.





6. Holdback Agreements.




     (a) Restrictions on Sale by Holders of Registrable Securities.



          Each Beneficiary whose Registrable Securities are covered by a
Registration Statement filed pursuant to Section 3, 4 or 5 hereof, agrees, and
will confirm such agreement in writing, if such Beneficiary is so requested
(pursuant to a timely written notice) by the managing underwriter or
underwriters in an Underwritten Offering, not to effect any public sale or
distribution of any of the Company’s equity securities (except as part of such
Underwritten Offering), including a sale pursuant to Rule 144, (a) during the
seven-calendar day period prior to the closing date of each Underwritten
Offering made pursuant to such Registration Statement and (b) during such
period of time, not to exceed 90 calendar days, as any managing underwriter or
underwriters may reasonably request beginning on the closing date of each
Underwritten Offering made pursuant to such Registration Statement, or, in
either case, such other shorter period to which the Beneficiaries and such
managing underwriter or underwriters may agree.



     (b) Restrictions on the Sale by the Company.



          In connection with any underwritten public offering pursuant to Section 3,
4 or 5 hereof, the Company agrees (i) not to effect any public sale or
distribution of any securities substantially similar to the Registrable
Securities (other than in connection with an employee stock option or other
benefit plan) during the 15 days prior to, and during such period as the
book-runner(s) may request (not to exceed 90 days) beginning on, the offering
date of the Registrable Securities pursuant to an effective Registration
Statement (except as part of such registration) and (ii) that any agreement
entered into after the date of this Agreement pursuant to which the Company
issues or agrees to issue any privately placed Common Stock or other securities
substantially similar to the Registrable Securities shall contain a provision
under which holders of such securities agree not to effect any sale or
distribution of any such securities during the period referred to in the
foregoing clause (i), including any sale pursuant to Rule 144 under the
Securities Act (except as part of such registration, if permitted).



7. Registration Procedures.




10









 








          In connection with the Company’s registration obligations pursuant to
Sections 3, 4 and 5 hereof, the Company will effect such registrations to
permit the sale of such Registrable Securities in accordance with the intended
method or methods of disposition thereof, and pursuant thereto the Company will
as expeditiously as possible:




	(a)	 	Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities
Act available for the sale of the Registrable Securities by the
holders thereof in accordance with the holders’ notice to the
Company as to the intended method or methods of distribution thereof
(including, without limitation, distributions in connection with
transactions with broker-dealers or others for the purpose of
hedging Registrable Securities, involving possible sales, short
sales, options, pledges or other transactions which may require
delivery and sale to broker-dealers or others of Registrable
Securities), and cause each such Registration Statement to become
effective and remain effective as provided herein; provided, however, that before filing a Registration Statement or Prospectus
or any amendments or supplements thereto (including documents that
would be incorporated or deemed to be incorporated therein by
reference) the Company will furnish to the holders of the
Registrable Securities covered by such Registration Statement and
their counsel and the managing underwriters, if any, copies of all
such documents proposed to be filed, which documents will be subject
to the review of, and comments by, such holders, their counsel and
such underwriters. The Company will not file pursuant to Section
3(b) or 4(a) any such Registration Statement or amendment thereto or
any Prospectus or any supplement thereto (including such documents
which, upon filing, would or would be incorporated or deemed to be
incorporated by reference therein) to which the holders of a
majority of the Registrable Securities covered by such Registration
Statement or the managing underwriter, if any, shall reasonably
object.
	 
	(b)	 	Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective
for the applicable period specified in Section 3 or 4, as
applicable; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424(b) (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period
in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement as so
amended or in such Prospectus as so supplemented.
	 
	(c)	 	Notify the selling Beneficiaries and the managing
underwriters, if any, promptly, and (if requested by any such
Person) confirm such notice in writing, (i) when a Prospectus or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of the receipt of any comments from
the SEC with respect to any such document or a document incorporated
by reference therein, (iii) of




11









 






	 	 	any request by the SEC or any other federal or state governmental
authority for amendments or supplements to a Registration Statement
or related Prospectus or for additional information, (iv) of the
issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for
that purpose, (v) if at any time the representations and warranties
of the Company contained in any agreement contemplated by Section
7(m) hereof (including, without limitation, any underwriting
agreement) cease to be true and correct, (vi) of the receipt by the
Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (vii)
of the occurrence of any event which makes any statement made in
such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference
untrue in any material respect or which requires the making of any
changes in a Registration Statement, Prospectus or documents so
that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading and, in the case of the
Prospectus, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated or is
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and
(viii) of the Company’s reasonable determination that a
post-effective amendment to a Registration Statement would be
appropriate.
	 
	(d)	 	Use its best efforts to prevent the issuance, and obtain the
withdrawal, of any order suspending the effectiveness of a
Registration Statement, and prevent the issuance, and obtain the
lifting, of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment.
	 
	(e)	 	If requested by the managing underwriters, if any, or the
holders of a majority of the Registrable Securities being
registered, (i) promptly incorporate in a Prospectus supplement or
amendment such information as the managing underwriters, if any, and
such holders agree should be included therein, including, without
limitation, information relating to the plan of distribution with
respect to such Registrable Securities or information with respect
to the number or amount of Registrable Securities being sold to such
underwriters, the purchase price being paid therefor by such
underwriters and any other terms of the underwritten (or best
efforts underwritten) offering of the Registrable Securities, and
(ii) make all required filings of such Prospectus supplement or such
amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus
supplement or amendment.
	 
	(f)	 	Furnish to each selling Beneficiary and each managing
underwriter, if any, without charge, at least one conformed copy of
the Registration Statement and any post-effective amendment thereto,
including financial statements, schedules, all documents
incorporated or deemed incorporated therein by reference and all




12









 






	 	 	exhibits and copies of any correspondence with the SEC or its staff
relating to the Registration Statement.
	 
	(g)	 	Promptly furnish to each selling Beneficiary and each
underwriter, if any, of Registrable Securities covered by such
Registration Statement such number of copies of the Prospectus
included in such Registration Statement (including each preliminary
Prospectus), in conformity with the requirements of the Securities
Act and such other documents as such Persons may reasonably request
in order to facilitate the disposition of the Registrable
Securities; and the Company hereby consents to the use of such
Prospectus or each amendment or supplement thereto by each of the
selling Beneficiaries and the underwriters, if any, in connection
with the offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto.
	 
	(h)	 	Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling Beneficiaries, the
underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for
offer and sale under the securities or blue sky laws of such
jurisdictions within the United States as any seller or underwriter
reasonably requests in writing to the extent such registration or
qualification would be required taking into account federal
securities laws; keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other
acts or things necessary or advisable to enable the disposition in
such jurisdiction of the Registrable Securities covered by the
applicable Registration Statement; provided, however, that the
Company will not be required to (i) qualify generally to do business
in any jurisdiction in which it is not then so qualified or (ii)
take any action that would subject it to general service of process
in any such jurisdiction in which it is not then so subject.
	 
	(i)	 	Cooperate with the selling Beneficiaries and the managing
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold, which certificates will not bear any restrictive legends; and
enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or
the selling holders shall request at least two business days prior
to any sale of Registrable Securities to the underwriters or
otherwise.
	 
	(j)	 	Use reasonable best efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be
registered with or approved by such other governmental agencies or
authorities within the United States as may be required to comply
with laws governing the sale of securities, except that if such
registration or approval is required solely as a consequence of the
nature of such selling Beneficiary’s business, such registration or
approval shall be at the expense of such selling Beneficiary, and to
obtain approvals from any such governmental agencies or authorities
to the extent necessary to enable the seller or




13









 






	 	 	sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities.
	 
	(k)	 	Upon the occurrence of any event contemplated by Section
7(c)(vi) or 7(c)(vii) hereof, prepare a supplement or post-effective
amendment to each Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter delivered
to the Beneficiary being sold thereunder, such Prospectus will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
	 
	(l)	 	Use its reasonable best efforts to cause all Registrable
Securities covered by such Registration Statement to be listed on
each securities exchange or other national trading market, if any,
on which similar securities issued by the Company are then listed
or, if the Registrable Securities do not qualify to be so listed, on
another national securities exchange or other national trading
market, to provide a transfer agent and registrar for such
Registrable Securities covered by such Registration Statement no
later than the effective date of such Registration Statement and to
maintain such listing for the period of effectiveness of such
Registration Statement.
	 
	(m)	 	If the registration is an Underwritten Offering or as
reasonably requested in writing by Beneficiaries constituting at
least 40% of the total number of Registrable Securities then
outstanding, enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in
Underwritten Offerings) and take all such other actions in
connection therewith (including those reasonably requested by the
holders of a majority of the Registrable Securities being sold or
those reasonably requested by the managing underwriters) in order to
expedite or facilitate the disposition of such Registrable
Securities and in such connection, (i) make such representations and
warranties to the underwriters, if any, with respect to the business
of the Company and its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in
Underwritten Offerings and confirm the same if and when requested;
(ii) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and
the holders of a majority of the Registrable Securities being sold)
addressed to such selling Beneficiaries and each of the
underwriters, if any, covering the matters customarily covered in
opinions requested in Underwritten Offerings and such other matters
as may be reasonably requested by such holders and underwriters,
including, without limitation, the matters referred to in clause (i)
of this Section 7(m); (iii) use its reasonable best efforts to
obtain “comfort” letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any
other certified public accountants of any subsidiary of the Company
or of any business acquired




14









 






	 	 	by the Company for which financial statements and financial data
is, or is required to be, included in the Registration Statement),
addressed to each selling Beneficiary and each of the underwriters,
if any, such letters to be in customary form and covering matters
of the type customarily covered in “comfort” letters in connection
with Underwritten Offerings; (iv) deliver such documents and
certificates as may be requested by the holders of a majority of
the Registrable Securities being sold and the managing
underwriters, if any, to evidence the continued validity of the
representations and warranties of the Company and its subsidiaries
made pursuant to clause (i) above and to evidence compliance with
any customary conditions contained in the underwriting agreement or
similar agreement entered into by the Company; (v) provide
customary indemnification; (vi) support each selling Beneficiary’s
efforts to execute block trades with institutional buyers; and
(vii) cooperate with any reasonable request by holders of a
majority of the Registrable Securities offered for sale, including
by ensuring participation by the executive management of the
Company in road shows, so long as such participation does not
materially interfere with the operation of the Company’s business.
The foregoing actions will be taken in connection with each closing
under such underwriting or similar agreement as and to the extent
required thereunder.
	 
	(n)	 	Make available for inspection by a representative of the
selling Beneficiaries, any underwriter participating in any
disposition of Registrable Securities, and any attorney or
accountant retained by such selling holders or underwriter, all
financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the
officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in
connection with such Registration Statement; provided, however, that
any records, information or documents that are designated by the
Company in writing as confidential at the time of delivery of such
records, information or documents will be kept confidential by such
Persons unless (i) such records, information or documents are in the
public domain or otherwise publicly available, (ii) disclosure of
such records, information or documents is required by court or
administrative order or is necessary to respond to inquires of
regulatory authorities, or (iii) disclosure of such records,
information or documents, in the opinion of counsel to such Person,
is otherwise required by law (including, without limitation,
pursuant to the requirements of the Securities Act).
	 
	(o)	 	Comply with all applicable rules and regulations of the SEC
and make generally available to its security holders earning
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 calendar days
after the end of any 12-month period (or 90 calendar days after the
end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best
efforts Underwritten Offering, and (ii) if not sold to underwriters
in such an offering, commencing on the first day of the first fiscal
quarter of the Company




15









 






	 	 	after the effective date of a Registration Statement, which
statements shall cover said 12-month period.
	 
	(p)	 	Cooperate with each selling Beneficiary and each underwriter
or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any
filings required to be made with the NASD or any other applicable
securities exchange.





          The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish to the Company such information
regarding the distribution of such Registrable Securities as the Company may,
from time to time, reasonably request in writing, and the Company may exclude
from such registration the Registrable Securities of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request.



          Each Beneficiary will be deemed to have agreed by virtue of its
acquisition of Registrable Securities that, upon receipt of any notice from the
Company of the occurrence of any event of the kind described in Section
7(c)(ii), 7(c)(iii), 7(c)(v), 7(c)(vi) or 7(c)(vii) hereof (a “Black-Out
Notice”), such Beneficiary will (but in the case of an event described in
7(c)(vi), only with respect to the applicable jurisdictions) forthwith
discontinue disposition of such Registrable Securities covered by such
Registration Statement or Prospectus (a “Black-Out”) until such Beneficiary’s
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 7(k) hereof, or until it is advised in writing (the “Advice”) by the
Company that the use of the applicable Prospectus may be resumed and has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such Prospectus;
provided, however, that in no event shall the aggregate number of days during which a
Black-Out is effective during any period of twelve consecutive months exceed 45
calendar days. In the event the Company shall give a Black-Out Notice, the
time period prescribed in Section 3(b) hereof or the Shelf Period, as the case
may be, will be extended by the number of days during the time period from and
including the date of the giving of the Black-Out Notice to and including the
date when each seller of Registrable Securities covered by such Registration
Statement shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 7(k) hereof or (y) the Advice.



8. Registration Expenses.




          All Registration Expenses will be borne by the Company whether or not any
of the Registration Statements become effective. “Registration Expenses” means
all fees and expenses incident to the performance of, or compliance with, this
Agreement by the Company, including, without limitation, (i) all registration
and filing fees (including, without limitation, fees and expenses (x) with
respect to filings required to be made with the National Association of
Securities Dealers, Inc. and (y) of compliance with securities or “blue sky”
laws (including, without limitation, fees and disbursements of counsel for the
underwriters or selling holders in connection with “blue sky” qualifications of
the Registrable Securities and determination of the eligibility of the
Registrable Securities for investment under the laws of such jurisdictions as
the managing underwriters, if any, or holders of a majority of the Registrable
Securities being sold may designate)), (ii) printing expenses (including,
without limitation, expenses of printing



16









 





certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company and of printing Prospectuses if the printing
of Prospectuses is requested by the holders of a majority of the Registrable
Securities included in any Registration Statement), (iii) messenger, telephone
and delivery expenses, (iv) fees and disbursements of counsel for the Company
and one single special counsel for the Beneficiaries, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 7(m)(iii) hereof (including the expenses of any special audit and
“comfort” letters required by or incident to such performance), (vi) fees and
expenses of any “qualified independent underwriter” or other independent
appraiser participating in an offering pursuant to Section 3 of Schedule E to
the By-laws of the National Association of Securities Dealers, Inc., (vii)
Securities Act liability insurance if the Company so desires such insurance,
(viii) all fees and expenses of listing the Registrable Securities pursuant to
Section 2(a) and 7(l), and (ix) fees and expenses of all other Persons retained
by the Company in connection with this Agreement; provided, however, that
Registration Expenses shall not include fees and expenses of any counsel for
the Beneficiaries except as provided in clause (iv) above and any local counsel
that are not included in the definition of Registration Expenses nor shall it
include underwriting fees, discounts or commissions relating to the offer and
sale of Registrable Securities, which shall be borne by the Beneficiaries
included in such registration pro rata in proportion to the number of
Registrable Securities of such Beneficiary included in such registration. In
addition, the Company will pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange on which similar securities issued by the
Company are then listed and the fees and expenses of any Person, including
special experts, retained by the Company.




9. Indemnification.




     (a) Indemnification by the Company.



          The Company will, without limitation as to time, indemnify and hold
harmless, to the fullest extent permitted by law, each Beneficiary whose
Registrable Securities are registered pursuant to this Agreement, the officers,
directors, agents and employees of each of them, each Person who controls such
Beneficiary (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, agents and employees of
any such controlling Person, from and against all losses, claims, damages,
liabilities, costs (including, without limitation, the costs of investigation
and attorneys’ fees) and expenses (collectively, “Losses”), as incurred,
arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, preliminary Prospectus,
Prospectus or form of Prospectus or in any amendment or supplement thereto, or
arising out of or based upon any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are based solely
upon information furnished in writing to the Company by such Beneficiary
expressly for use therein; provided, however, that the Company will not be
liable to any Beneficiary to the extent that any such Losses arise out of or
are based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary Prospectus if either (A) (i) such
Beneficiary failed to send or deliver a copy of the Prospectus with or prior to
the delivery of written confirmation of the sale by such Beneficiary to the
Person asserting the claim from which



17









 





such Losses arise and (ii) the Prospectus would have corrected in all
material respects such untrue statement or alleged untrue statement or such
omission or alleged omission; or (B) such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in all material respects
in an amendment or supplement to the Prospectus previously furnished by or on
behalf of the Company with copies of the Prospectus as so amended or
supplemented, and such Beneficiary thereafter fails to deliver such Prospectus
as so amended or supplemented prior to or concurrently with the sale of a
Registrable Security to the Person asserting the claim from which such Losses
arise.




     (b) Indemnification by Holders of Registrable Securities.



          In connection with any Registration Statement in which a Beneficiary is
participating, such Beneficiary will furnish to the Company in writing such
information as the Company reasonably requests for use in connection with any
Registration Statement or Prospectus and will severally and not jointly
indemnify, to the fullest extent permitted by law, the Company, its directors
and officers, agents and employees, each Person who controls the Company
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), and the directors, officers, agents or employees of such
controlling Persons, from and against all Losses arising out of or based upon
(i) any disposition of Registrable Securities after receiving notice of a
Black-Out and prior to receiving Advice under Section 7 that use of the
Prospectus may be resumed or (ii) any untrue statement of a material fact
contained in any Registration Statement, Prospectus or preliminary Prospectus
or arising out of or based upon any omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, to
the extent, but only to the extent, that such untrue statement or omission is
finally judicially determined by a court of competent jurisdiction to have been
contained in any information so furnished in writing by such Beneficiary to the
Company expressly for use in such Registration Statement or Prospectus and to
have been relied upon by the Company in the preparation of such Registration
Statement, Prospectus or preliminary Prospectus. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf
of the Company or any officer, director, agent or employee of the Company. In
no event will the liability of any selling Beneficiary under this Section 9(b)
be greater in amount than the excess of the amount by which the total price at
which the Registrable Securities sold by such Indemnifying Party and
distributed to the public pursuant to the applicable Registration Statement
(net of all related expenses and underwriters’ discounts and commissions) over
the amount of any damages which such Indemnifying Party has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.



     (c) Conduct of Indemnification Proceedings.



          If any Person shall become entitled to indemnity hereunder (an
“Indemnified Party”), such Indemnified Party shall give prompt notice to the
party from which such indemnity is sought (the “Indemnifying Party”) of any
claim or of the commencement of any action or proceeding with respect to which
such Indemnified Party seeks indemnification or contribution pursuant hereto;
provided, however, that the failure to so notify the Indemnifying Party will
not relieve the Indemnifying Party from any obligation or liability except to
the extent that the Indemnifying Party has been prejudiced materially by such
failure. All Losses (including any



18









 





fees and expenses incurred in connection with investigating or preparing
to defend such action or proceeding) will be paid to the Indemnified Party, as
incurred, within five calendar days of written notice thereof to the
Indemnifying Party upon receipt of an undertaking to repay such amount if it is
ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder. The Indemnifying Party will not consent to entry of
any judgment or enter into any settlement or otherwise seek to terminate any
action or proceeding in which any Indemnified Party is or could be a party and
as to which indemnification or contribution could be sought by such Indemnified
Party under this Section 9, unless such judgment, settlement or other
termination includes, as an unconditional term thereof, the giving by the
claimant or plaintiff to such Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such claim or litigation for which such Indemnified Party would
be entitled to indemnification hereunder.




     (d) Contribution.



          If the indemnification provided for in this Section 9 is unavailable to an
Indemnified Party under Section 9(a) or 9(b) hereof in respect of any Losses or
is insufficient to hold such Indemnified Party harmless, then each applicable
Indemnifying Party, in lieu of or in addition to indemnifying such Indemnified
Party, as applicable, will, jointly and severally, contribute to the amount
paid or payable by such Indemnified Party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party or Indemnifying Parties, on the one hand, and such Indemnified Party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party or Indemnifying Parties, on the
one hand, and such Indemnified Party, on the other hand, will be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or related to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses will be deemed to include any
legal or other fees or expenses incurred by such party in connection with any
action or proceeding.



          The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 9(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 9(d), an
Indemnifying Party that is a selling Beneficiary will not be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities sold by such Indemnifying Party and distributed to
the public pursuant to the applicable Registration Statement (net of all
related expenses) exceeds the amount of any damages which such Indemnifying
Party has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.



19









 





          The indemnity, contribution and expense reimbursement obligations of the
Company hereunder will be in addition to any liability the Company may
otherwise have hereunder or otherwise.



10. Rule 144.




          The Company will file all reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner, or, during the period
prior to the date upon which any registration statement of the Company under
the Securities Act covering any Common Stock of the Company is declared
effective, all other information, and will cooperate with any Beneficiary
(including, without limitation, by making such representations as any such
Beneficiary may reasonably request), all to the extent required from time to
time to enable such Beneficiary to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemptions
provided by Rule 144. Upon the request of any Beneficiary, the Company will
deliver to such Beneficiary a written statement as to whether it has complied
with such filing requirements.



11. Miscellaneous.




     (a) Remedies.



          In the event of a breach by the Company of its obligations under this
Agreement, each Beneficiary, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of any of the provisions of this Agreement and
hereby further agrees that, in the event of any action for specific performance
in respect of such breach, it will waive the defense that a remedy at law would
be adequate.



     (b) No Inconsistent Agreements.



          The Company has not, as of the date hereof, and will not, on or after the
date hereof, except as provided in Section 11(p), enter into any agreement with
respect to its securities which conflicts with the rights granted to the
Beneficiaries in this Agreement or otherwise conflicts with the provisions
hereof.



     (c) Amendments and Waivers.




	(i)	 	The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given except
as described in the following sentence, unless the Company has
obtained the written consent of holders of a majority of the
then-outstanding Registrable Securities. A waiver or consent
to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Beneficiaries whose
securities are being sold pursuant to a particular
Registration Statement and that does not directly or
indirectly affect the rights of other Beneficiaries may be
given




20









 






	 	 	by holders of at least 51% of the Registrable Securities
being sold by such holders pursuant to such Registration
Statement.
	 
	(ii)	 	No failure or delay by any party in exercising
any right, power or privilege hereunder will operate as a
waiver thereof, nor will any single or partial exercise
thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights
and remedies herein provided will be cumulative and not
exclusive of any rights or remedies provided by law.





     (d) Notices.



          All notices, requests and other communications to either party hereunder
must be in writing (including telecopy or similar writing) and must be given:




	(i)	 	if to a Stock Holder, to the address set forth
opposite such Stock Holder’s name on the signature pages
hereto, with a copy to:
	 
	 	 	Jones Day

222 East 41st Street

New York, New York 10017

Attention: Kevin D. Cramer, Esq.

Fax: (212) 755-7306;






	(ii)	 	if to a Beneficiary other than a Stock Holder, to
the address set forth on the stock record books of the
Company; and
	 
	(iii)	 	If to the Company, to:
	 
	 	 	ORBIMAGE Inc.

21700 Atlantic Boulevard

Dulles, VA 20166

Attention: General Counsel

Fax: (703) 480-7544
	 
	 	 	with a copy to:
	 
	 	 	Latham & Watkins LLP

555 Eleventh Street, N.W., Suite 1000

Washington, DC 20001

Attention: Bill O’Neill

Fax: (22) 637-2201,





or such other address or telecopier number as such Person may hereafter specify

by notice to the other parties hereto and/or Beneficiaries. Each such notice,
request or other communication will be effective only when actually delivered
at the address specified in this Section 11(d), if delivered prior to 5 p.m.
(local time) and such day is a business day, and if not, then such notice,
request or other communication will not be effective until the next succeeding
business day.




21









 








     (e) Owner of Registrable Securities.



          The Company will maintain, or will cause its registrar and transfer agent
to maintain, a stock book with respect to the Common Stock, in which all
transfers of Registrable Securities of which the Company has received notice
will be recorded. The Company may deem and treat the Person in whose name
Registrable Securities are registered in the stock book of the Company as the
owner thereof for all purposes, including, without limitation, the giving of
notices under this Agreement.



     (f) Successors and Assigns.



          Subject to this paragraph (f), this Agreement will inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and will inure to the benefit of each of the Beneficiaries. The Company may
not assign its rights or obligations hereunder. Beneficiaries may not assign
their rights and obligations under this Agreement; provided, however, that a
Beneficiary may, with the prior written consent of the Company, assign its
rights and obligations under this Agreement to a third party in connection with
any transfer of Registrable Securities (a “Permitted Transferee”).
Notwithstanding the foregoing, no Permitted Transferee shall be entitled to any
of the transferring Beneficiary’s rights under this Agreement (i) unless and
until such Permitted Transferee shall have acknowledged in writing its
acceptance of such obligations hereunder or (ii) if the transferring
Beneficiary notifies the Company in writing on or prior to such transfer that
the Permitted Transferee shall not have such rights.



     (g) Counterparts; Effectiveness.



          This Agreement may be signed in any number of counterparts, each of which
will be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement will become effective
when each party hereto receives a counterpart hereof signed by the other party
hereto.



     (h) Headings.



          The headings in this Agreement are for convenience of reference only and
will not limit or otherwise affect the meaning hereof.



     (i) Governing Law.



          This Agreement will be construed in accordance with and governed by the
laws of the State of New York, without giving effect to the principles of
conflict of laws thereof.



     (j) Jurisdiction; Consent to Service of Process.




          Each party hereby irrevocably submits, for itself and its property, to the
non-exclusive jurisdiction of the Supreme Court of the State of New York
located in New York, New York or the United States District Court for the
Southern District of New York, and any appellate court from any such court (as
applicable, a “New York Court”), in any suit, action or proceeding arising out
of or relating to this Agreement, or for recognition or enforcement of any



22









 





judgment resulting from any such suit, action or proceeding, and each
party hereby irrevocably and unconditionally agrees that all claims in respect
of any such suit, action or proceeding may be heard and determined in the New
York Court. Each party hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, (i) any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in the New York Court,
(ii) the defense of an inconvenient forum to the maintenance of such suit,
action or proceeding in any such court, and (iii) the right to object, with
respect to such suit, action or proceeding, that such court does not have
jurisdiction over such party. Each party irrevocably consents to service of
process in any manner permitted by law.




     (k) WAIVER OF JURY TRIAL.



EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM,
WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR
IN ANY WAY RELATED TO THIS AGREEMENT.



     (l) Severability.



          In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein will not be in any way impaired thereby,
it being intended that all of the rights and privileges of the parties hereto
will be enforceable to the fullest extent permitted by law.



     (m) Entire Agreement.



          This Agreement constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior agreements and
representations, both written and oral, with respect thereto.



     (n) No Strict Construction.



          The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement will be construed as if drafted jointly
by the parties hereto, and no presumption or burden of proof will arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.



     (o) Third Party Beneficiaries.



          It is expressly contemplated hereby that Beneficiaries which are not Stock
Holders shall be third party beneficiaries of this Agreement, subject to any
and all limitations, restrictions and obligations provided herein. This
Agreement and all of its provisions and conditions are for the benefit of the
parties to this Agreement and each Beneficiary which is not a Stock Holder as
an intended third party beneficiary.



23









 





     (p) Registration of Securities other than Registrable Securities.



          Without the written consent of the holders of a majority of the
then-outstanding Registrable Securities, the Company will not grant to any
Person the right to request the Company to register any securities of the
Company under the Securities Act unless the rights so granted are subject to
the prior rights of the Beneficiaries set forth herein, and, if exercised,
would not otherwise conflict or be inconsistent with the provisions of this
Agreement.



     (q) Termination.



          This Agreement shall terminate on the date on which there cease to be any
Registrable Securities outstanding. The provisions of Section 9 and Section
11(o) shall survive the termination of this Agreement.



[Signature page follows]




24









 








          IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.



	 	 	 	 	 
	 	 	ORBIMAGE INC.
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







S-1









 





	 	 	 	 	 
	 	 	Triage Capital Management L.P.
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	Triage Offshore Fund, Ltd
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	Triage Capital Management B, LP
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







S-2









 





	 	 	 	 	 
	 	 	CSS, LLC
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







S-3









 





	 	 	 	 	 
	 	 	River Run Partners LP
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	Cold Springs LP
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	River Run Fund Ltd.
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







S-4









 





	 	 	 	 	 
	 	 	Harbert Distressed Investment Master Fund,
Ltd.
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







S-5









 





	 	 	 	 	 
	 	 	Redwood Master Fund Ltd.
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







S-6









 





	 	 	 	 	 
	 	 	Deephaven Distressed Opportunities Trading,
Ltd.
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







S-7









 





	 	 	 	 	 
	 	 	Pandora Select Partners, L.P.
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	Whitebox Hedged High Yield Partners, L.P.
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	Whitebox Convertible Arbitrage Partners,
L.P.
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







S-8









 






	 	 	 	 	 
	 	 	Credit Suisse First Boston LLC
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







S-9









 





	 	 	 	 	 
	 	 	Concordia Distressed Debt Fund LP
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	Concordia MAC29, Ltd.
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







S-10









 





	 	 	 	 	 
	 	 	Sagamore Hill Hub Fund Ltd.
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







S-11









 





	 	 	 	 	 
	 	 	Deutsche Bank Securities, Inc.
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







S-12









 





	 	 	 	 	 
	 	 	Rockbay Capital Fund, LLC
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	Rockbay Capital Institutional Fund, LLC
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	Rockbay Capital Offshore Fund, Ltd.
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







S-13









 





EXHIBIT A




Affidavit




     By executing signature line(s), the undersigned hereby certifies that
he/she/it is the principal beneficial owner of the securities of the Company
set forth below.



     The undersigned certifies that it is (i) the sole beneficial owner of the
securities of the Company set forth below, or (ii) if not the sole beneficial
owner of the securities set forth below, shares beneficial ownership of the
securities set forth below with the additional signatories set forth below.



     The undersigned understands that to be granted rights under the Agreement,
it must fill in the information on this form and return it to the Company, at
the address set forth in Section 11(d)(iii) of the Agreement.



     SUBMISSION OF THIS AFFIDAVIT WILL ENTITLE THE UNDERSIGNED TO RIGHTS UNDER
THE AGREEMENT BUT THESE RIGHTS ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE
AGREEMENT.



	 	 	 	 
	 	Class of Securities of the Company
	 	 
	 	Which the Undersigned Beneficially Owns:

	 	

	 	 
	 	 
	 	Number of Securities of the Company
	 	 
	 	Which the Undersigned Beneficially Owns:

	 	








	 	 	 	 	 	 
	 	 
	 	 	 	 
	 	Name of Beneficiary:	 	

	 	 
	 	 	 	 
	 	By:	 	

	 	 	 	Authorized Representative
	 	Name:
	 	 	 	 
	 	Title:
	 	 	 	 
	 	 
	 	 	 	 
	 	If more than one beneficial owner:
	 	 
	 	 	 	 
	 	Name of other beneficial owner:	 	 

	 	 
	 	 	 	 
	 	By:	 	

	 	 	 	Authorized Representative
	 	Name:
	 	 	 	 
	 	Title:
	 	 	 	 








A-1