exv4w6



 









Exhibit 4.6







Final Form


THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD OR
OFFERED FOR SALE OR OTHERWISE TRANSFERRED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR THE SECURITIES ARE SOLD AND TRANSFERRED IN A
TRANSACTION THAT IS EXEMPT FROM OR NOT SUBJECT TO REGISTRATION UNDER SAID ACT
AND ANY APPLICABLE STATE SECURITIES LAWS. THE OFFERING OF THIS SECURITY HAS
NOT BEEN REVIEWED OR APPROVED BY ANY STATE SECURITIES ADMINISTRATOR.




STOCK SUBSCRIPTION WARRANT




To Purchase Common Stock of

ORBIMAGE Inc.




	 	 	 
	Date of Initial Issuance:
	 	 
	Number of Shares:
	 	 
	Initial Warrant Price:

	 	$10.00 per share
	Expiration Date:

	 	November 16, 2009







     THIS CERTIFIES THAT for value received,                                       , or its
registered assigns (hereinafter called “Holder”), is entitled to purchase from
ORBIMAGE Inc., a Delaware corporation (“Company”), at any time during the Term
of this Warrant,                                       shares of common stock, $0.01 par value, of
Company (the “Common Stock”), at the Warrant Price, payable as provided herein.
The exercise of this Warrant shall be subject to the provisions, limitations
and restrictions herein contained. This Warrant may be exercised in whole or
in part.



SECTION 1. Definitions.



     For all purposes of this Warrant, the following terms shall have the
meanings indicated:



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



     “Registration Rights Agreement” shall mean that certain Registration
Rights Agreement dated as of November 16, 2004 among Company and certain
holders of its securities.



     “Securities Act” shall mean the Securities Act of 1933, as amended from
time to time.



     “Term of this Warrant” shall mean the period beginning on the date of
initial issuance hereof and ending on the fifth (5th) anniversary of such date
of initial issuance.



     “Warrant Price” shall mean $10.00 per share, subject to adjustment in
accordance with Section 4 hereof.



     “Warrants” shall mean this Warrant and any other Warrant or Warrants
issued to any transferees, successors or assigns of such original holder or
subsequent holder.



 









 





     “Warrant Shares” shall mean shares of Common Stock, subject to adjustment
or change as herein provided, purchased or purchasable by Holder upon the
exercise hereof.



SECTION 2. Exercise of Warrant.



     2.1 Procedure for Exercise of Warrant. To exercise this Warrant in whole or in
part (but not as to any fractional share of Common Stock), Holder shall deliver
to Company at its office referred to in Section 11 hereof at any time and from
time to time during the Term of this Warrant: (i) the Notice of Exercise in the
form of Exhibit A attached hereto, (ii) cash, certified or official bank check
payable to the order of Company, wire transfer of funds to Company’s account in
the amount of the Warrant Price for each share being purchased and any amount
required to be paid by the Holder on account of a transfer of a Warrant or
Warrant Shares pursuant to Section 3, and (iii) this Warrant.


In the event of any exercise of the rights represented by this Warrant, a
certificate or certificates for the shares of Common Stock so purchased,
registered in the name of Holder or, subject to compliance with Section 6.2,
such other name or names as may be designated by Holder, shall be delivered to
Holder hereof within a reasonable time, not exceeding fifteen (15) days, after
the rights represented by this Warrant shall have been so exercised; and,
unless this Warrant has expired, a new Warrant representing the number of
shares (except a remaining fractional share), if any, with respect to which
this Warrant shall not then have been exercised shall also be issued to Holder
hereof within such time. The person in whose name any certificate for shares
of Common Stock is issued upon exercise of this Warrant shall for all purposes
be deemed to have become the holder of record of such shares on the date on
which Holder shall have complied with the conditions for exercise of this
Warrant set forth above, irrespective of the date of delivery of such
certificate, except that, if the date of such compliance is a date when the
stock transfer books of Company are closed, such person shall be deemed to have
become the holder of such shares at the close of business on the next
succeeding date on which the stock transfer books are open.




     2.2 Transfer Restriction Legend. Each certificate for Warrant Shares
shall bear the following legend (and any additional legend required by (i) any
applicable state securities laws and (ii) any securities exchange upon which
such Warrant Shares may, at the time of such exercise, be listed) on the face
thereof unless at the time of exercise such Warrant Shares shall be registered
under the Securities Act:




“The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may
not be sold or transferred unless pursuant to a registration
statement or in a transaction exempt from or ot subject to
registration under the Securities Act.


Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon
completion of a public distribution under a registration statement of the
securities represented thereby) shall also bear such legend unless, in the
opinion of counsel for Holder thereof (which counsel shall be reasonably
satisfactory to Company) the securities represented thereby are not, at such time, required by
law to bear such legend.


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SECTION 3. Covenants as to Common Stock. The Company shall at all times
reserve and keep available out of its authorized but unissued Common Stock (or
out of shares of Common Stock held in its treasury) solely for the purpose of
issuance upon the exercise of this Warrant, the maximum number of Warrant
Shares issuable upon the exercise of this Warrant. The Company covenants and
agrees that all shares of Common Stock that may be issued upon the exercise of
the rights represented by this Warrant shall, upon issuance, be validly issued,
fully paid and nonassessable, and free from all taxes, liens, preemptive rights
and charges with respect to the issue thereof. The Company shall take all such
actions as may be necessary to ensure that all such Warrant Shares may be so
issued without violation by the Company of any applicable law or governmental
regulation or any requirements of any domestic securities exchange or quotation
system upon which shares of Common Stock or other securities constituting
Warrant Shares may be listed or quoted (except for official notice of issuance
which shall be immediately delivered by the Company upon each such issuance).
The Company will use its best efforts to cause the Warrant Shares, immediately
upon such exercise, to be listed on any domestic national securities exchange
or quotation system upon which shares of Common Stock or other securities
constituting Warrant Shares are listed or quoted at the time of such exercise.
The Company further covenants and agrees that it shall pay when due and payable
any and all federal and state documentary or stamp taxes (other than federal or
state income taxes or similar laws) or other costs which may be payable in
respect of the issue of this Warrant or any Common Stock or certificates
therefor issuable upon the exercise of this Warrant (provided, however, the
Company’s obligations in this regard will in all events be conditioned upon the
Holder cooperating with the Company in any reasonable arrangement designed to
minimize or eliminate any such taxes), except that, if Warrant Shares or new
Warrants shall be registered in a name or names other than the name of the
Holder, funds sufficient to pay all transfer taxes payable as a result of such
transfer shall be paid by the Holder at the time of delivery of the Notice of
Exercise.



SECTION 4. Adjustment of Number of Shares. Upon each adjustment of the
Warrant Price as provided in Section 5, Holder shall thereafter be entitled to
purchase, at the Warrant Price resulting from such adjustment, only the number
of shares (calculated to the nearest tenth of a share) obtained by multiplying
the Warrant Price in effect immediately prior to such adjustment by the number
of shares purchasable pursuant hereto immediately prior to such adjustment and
dividing the product thereof by the Warrant Price resulting from such
adjustment.



SECTION 5. Adjustment of Warrant Price. The Warrant Price shall be
subject to adjustment from time to time as follows:




     (i) If, at any time during the Term of this Warrant, the number of shares
of Common Stock outstanding is increased by a stock dividend payable in shares
of Common Stock or by a subdivision or split-up of shares of Common Stock,
then, following the record date fixed for the determination of holders of
Common Stock entitled to receive such stock dividend, subdivision
or split-up, the Warrant Price shall be appropriately decreased so that
the number of shares of Common Stock issuable upon the exercise hereof shall be
increased in proportion to such increase in outstanding shares.



     (ii) If, at any time during the Term of this Warrant, the number of shares
of Common Stock outstanding is decreased by a combination of the outstanding
shares of Common Stock, then, following the record date for such combination,
the Warrant Price shall be appropriately



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increased so that the number of shares
of Common Stock issuable upon the exercise hereof shall be decreased in
proportion to such decrease in outstanding shares.



     (iii) Whenever the Warrant Price shall be adjusted as provided in this
Section 5, Company shall promptly prepare a statement showing the facts
requiring such adjustment and the Warrant Price that shall be in effect after
such adjustment, setting forth in reasonable detail and certifying the
calculation of such adjustment. Company shall cause a copy of such statement
to be sent by mail, first class postage prepaid, to each Holder at its, his or
her address appearing on Company’s records. Where appropriate, such copy may
be given in advance and may be included as part of the notice required to be
mailed under the provisions of clause (v) of this Section 5.



     (iv) Adjustments made pursuant to this Section 5 shall be made on the date
such dividend, subdivision, split-up, combination or distribution, as the case
may be, is made, and shall become effective at the opening of business on the
business day next following the record date for the determination of
stockholders entitled to such dividend, subdivision, split-up, combination or
distribution.



     (v) In the event Company shall propose to take any action of the types
described in this Section 5, Company shall forward, at the same time and in the
same manner, to Holder such notice, if any, which Company shall give to the
holders of capital stock of Company.



     (vi) In any case in which the provisions of this Section 5 shall require
that an adjustment shall become effective immediately after a record date for
an event, Company may defer until the occurrence of such event, issuing to any
Holder of all or any part of this Warrant that exercised all or part of this
Warrant after such record date, and before the occurrence of such event, the
additional shares of capital stock issuable upon such exercise by reason of the
adjustment required by such event over and above the shares of capital stock
issuable upon such exercise before giving effect to such adjustment exercise;
provided, however, that Company shall deliver to such Holder a due bill or
other appropriate instrument evidencing such Holder’s right to receive such
additional shares upon the occurrence of the event requiring such adjustment.



SECTION 6. Ownership.



     6.1 Ownership of This Warrant. Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than Company) for all purposes and shall not be affected by any notice to
the contrary until presentation of this Warrant for registration of transfer as
provided in this Section 6.



     6.2 Transfer and Replacement. This Warrant and all rights hereunder are
transferable in whole or in part upon the books of Company by Holder hereof in
person or by duly authorized attorney, together with a properly executed
Assignment (in the form of Exhibit B or Exhibit C hereto, as the case may be)
and a new Warrant or Warrants, of the same tenor as this Warrant but registered
in the name of the transferee or transferees (and in the name of Holder, if a
partial transfer is effected) shall be promptly made and delivered by Company
upon surrender of this Warrant duly endorsed, at the office of Company referred
to in Section 11 hereof. Upon receipt by Company of evidence reasonably
satisfactory to it of the loss, theft or destruction, and,



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in such case, of
indemnity or security reasonably satisfactory to it (provided, that if the
Holder is a financial institution or other institutional investor its own
agreement shall be satisfactory), and upon surrender of this Warrant if
mutilated, Company shall promptly make and deliver a new Warrant of like tenor,
in lieu of this Warrant. This Warrant shall be promptly cancelled by Company
upon the surrender hereof in connection with any transfer or replacement.
Except as otherwise provided above, in the case of the loss, theft or
destruction of a Warrant, Company shall pay all expenses, taxes and other
charges payable in connection with any transfer or replacement of this Warrant,
other than documentary or stamp taxes (if any) payable in connection with a
transfer of this Warrant, which shall be payable by Holder. Holder shall not
transfer this Warrant and the rights hereunder except in compliance with
federal and state securities laws.



SECTION 7.



     7.1 Mergers, Consolidation, Sales. In the case of any proposed
consolidation or merger of Company with another entity, or the proposed sale of
all or substantially all of its assets to another person or entity, or any
proposed reorganization, recapitalization, reclassification of the capital
stock of Company or other transaction, then, as a condition of such
consolidation, merger, sale, reorganization, recapitalization, reclassification
or other transaction, Company shall give 30 days’ prior written notice thereof
to Holder hereof and lawful and adequate provision shall be made whereby Holder
shall thereafter have the right to receive upon the basis and upon the terms
and conditions specified herein, in lieu of the shares of the Common Stock of
Company immediately theretofore purchasable hereunder, such shares of stock,
securities or assets as may (by virtue of such consolidation, merger, sale,
reorganization, recapitalization, reclassification or other transaction) be
issued or payable with respect to or in exchange for the number of shares of
such Common Stock purchasable hereunder immediately before such consolidation,
merger, sale, reorganization, recapitalization, reclassification or other
transaction. In any such case appropriate provision shall be made with respect
to the rights and interests of Holder to the end that the provisions hereof
shall thereafter be applicable as nearly as may be practicable, in relation to
any shares of stock, securities or assets thereafter deliverable upon the
exercise of this Warrant. The Company shall not effect any such consolidation,
merger, sale, reorganization, recapitalization, reclassification or other
transaction unless, prior to the consummation thereof, the successor entity (if
other than the Company) resulting from such consolidation, merger, sale,
reorganization, recapitalization, reclassification or other transaction
(including a purchaser of all or substantially all the Company’s assets)
assumes by written instrument the obligation to deliver to each Holder of
Warrants such shares of stock, securities or assets as, in accordance with the
foregoing provisions, such Holder may be entitled to acquire upon exercise of
Warrants.


SECTION 8. Fractional Shares. Fractional shares shall not be issued upon
the exercise of this Warrant but in any case where Holder would, except for the
provisions of this Section 8, be entitled under the terms hereof to receive a
fractional share upon the complete exercise of this Warrant, Company shall,
upon the exercise of this Warrant for the largest number of whole shares then
called for, pay a sum in cash equal to the excess of the value of such
fractional share (determined in such reasonable manner as may be prescribed in
good faith by the Board of Directors of Company) over the Warrant Price for
such fractional share.


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SECTION 9. Special Arrangements of Company. Company covenants and agrees
that during the Term of this Warrant, unless otherwise approved by Holder:




     9.1 Certain Actions. The Company shall not amend its certificate or
articles, as the case may be, of incorporation to eliminate as an authorized
class of capital stock that class denominated as “Common Stock” on the date
hereof. The Company shall not, and shall not permit its subsidiaries to,
directly or indirectly, by any action (including, without limitation,
reincorporation in a jurisdiction other than Delaware, amending its Third
Amended and Restated Certificate of Incorporation or through any merger, sale,
consolidation, reorganization, reclassification, issuance or sale of securities
or any other action) avoid or seek to avoid the observance or performance of
any terms of this Warrant or impair or diminish its value, but shall at all
times in good faith assist in the carrying out of all such terms of Warrant.
Without limiting the generality of the foregoing, the Company shall (a) obtain
all such authorizations, exemptions or consents from any public regulatory body
having jurisdiction thereof as may be necessary to enable the Company to
perform its obligations under this Warrant and (b) not undertake any reverse
stock split, combination, reorganization or other reclassification of its
capital stock which would have the effect of making the Warrant exercisable for
less than one share of Common Stock.



     9.2 Shall Bind Successors. This Warrant and the rights evidenced hereby
shall be binding upon the successors of the Company.



     9.3 No Exercise Interference; Par Value. The Company shall not close its
books against the transfer of this Warrant or of any Warrant Shares issued or
issuable upon the exercise of this Warrant in any manner which interferes with
the timely exercise of this Warrant. The Company shall from time to time take
all such action as may be necessary to assure that the par value per share of
the unissued Warrant Shares acquirable upon exercise of this Warrant is at all
times equal to or less than the Warrant Price then in effect.



     9.4 Governmental Filings. The Company shall assist and cooperate with any reasonable request by the
Holder which is required to make any governmental filings or obtain any
governmental approvals prior to or in connection with any exercise of this
Warrant.



     9.5 Notices of Certain Actions.



     The Company shall give written notice to the Holder at least 30 days prior
to the date on which the Company closes its books or takes a record (A) with
respect to any dividend or distribution upon the Common Stock, (B) with respect
to any pro rata subscription offer to holders of Common Stock, or (C) for
determining rights to vote with respect to any recapitalization,
reorganization, reclassification, consolidation, merger, dissolution,
liquidation or sale of all or substantially all of the Company’s assets or
other transaction which is effected in such a way that holders of Common Stock
are entitled to receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for Common Stock.


SECTION 10. Registration Rights. Company covenants and agrees that the
Holder shall be offered the right to become a party to the Registration Rights
Agreement with respect to the “piggyback” registration rights provided in
Section 5 thereof.


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SECTION 11. Notices. Any notice or other document required or permitted
to be given or delivered to Holder shall be delivered at, or sent by certified
or registered mail to, Holder at such address as shall have been furnished to
Company in writing by Holder. Any notice or other document required or
permitted to be given or delivered to Company shall be delivered at, or sent by
certified or registered mail to, Company at its address for notices set forth
in the Agreement or to such other address as shall have been furnished in
writing to Holder by Company. Any notice so addressed and mailed by registered
or certified mail shall be deemed to be given when so mailed. Any notice so
addressed and otherwise delivered shall be deemed to be given when actually
received by the addressee.



SECTION 12. No Rights as Stockholder; Limitation of Liability. This
Warrant shall not entitle Holder to any of the rights of a stockholder of
Company (including, without limitation, any preemption rights, voting rights or
rights to dividends) except upon exercise in accordance with the terms hereof.
No provision hereof, in the absence of affirmative action by Holder to purchase
shares of Common Stock, and no mere enumeration herein of the rights or
privileges of Holder, shall give rise to any liability of Holder for the
Warrant Price hereunder or as a stockholder of Company, whether such liability
is asserted by Company or by creditors of Company.



SECTION 13. Law Governing. THE VALIDITY, INTERPRETATION, AND ENFORCEMENT
OF THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAW PRINCIPLES THEREOF.



SECTION 14. Public Offering; Sale of Company. Notwithstanding any other
provision hereof, if an exercise of any portion of this Warrant is to be made
in connection with a public offering or a sale of the Company (pursuant to a
merger, sale of stock or otherwise), such exercise may at the election of the
Holder be conditioned upon the consummation of such transaction, in which case
such exercise shall not be deemed to be effective until immediately prior to
consummation of such transaction.



SECTION 15. Representations of the Company. The Company has all requisite
corporate power and authority to enter into and perform its obligations under
this Warrant and to issue and deliver the Warrant to the Holder. The
execution, delivery, and performance by the Company of its obligations under
this Warrant, including the issuance and delivery of the Warrant to the
Purchaser, have been duly authorized by all necessary corporate action on the
part of the Company. This Warrant has been duly executed and delivered by the
Company and is a legal, valid, and binding obligation of the Company and is
enforceable against the Company in accordance with its terms.



SECTION 16. Warrant Register. The Company shall maintain at its principal
executive offices books for the registration and the registration of transfer
of Warrants.



SECTION 17. Company to Reaffirm Obligations. The Company will, at the
time of each exercise of this Warrant, upon the request of the Holder hereof,
acknowledge in writing its continuing obligation to afford to such Holder all
rights (including, without limitation, any rights to registration, pursuant to
the Registration Rights Agreement, of the Warrants and the Warrant Shares
issued upon such exercise) to which such Holder shall continue to be entitled
after such


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exercise in accordance with the terms of this Warrant, provided,
that if the Holder of this Warrant shall fail to make any such request, such
failure shall not affect the continuing obligation of the Company to afford
such rights to such Holder.



SECTION 18. Amendments. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by both parties (or any respective predecessor in interest thereof).
The headings in this Warrant are for purposes of reference only and shall not
affect the meaning or construction of any of the provisions hereof.


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IN WITNESS WHEREOF, Company has caused this Warrant to be signed by its
duly authorized officer this 16th day of November, 2004.




	 	 	 
	

	 	ORBIMAGE Inc.
	 
	 	 
	

	 	By:                                                      
Name: Tony Anzilotti

Title: Vice President







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EXHIBIT A




FORM OF NOTICE OF EXERCISE




[To be signed only upon exercise of the Warrant]




TO BE EXECUTED BY THE REGISTERED HOLDER

TO EXERCISE THE ATTACHED WARRANT



The undersigned hereby exercises the right to purchase                    shares of
Common Stock which the undersigned is entitled to purchase by the terms of the
attached Warrant according to the conditions thereof, and herewith makes
payment of $                    therefor in cash.



All shares to be issued pursuant hereto shall be issued in the name of, and the
initial address of such person to be entered on the books of ORBIMAGE Inc.
shall be:



The shares are to be issued in certificates of the following denominations:




	 	 	 
	

	 	                                      
	

	 	[Type Name of Holder]
	 
	 	 
	

	 	By:                                       
	

	 	Title:                                       







Dated:                                       



 









 








EXHIBIT B




FORM OF ASSIGNMENT

(ENTIRE)




[To be signed only upon transfer of entire Warrant]




TO BE EXECUTED BY THE REGISTERED HOLDER

TO TRANSFER THE ATTACHED WARRANT



FOR VALUE RECEIVED                                        hereby sells, assigns and
transfers unto                                        all rights of the undersigned
under and pursuant to the attached Warrant, and the undersigned does hereby
irrevocably constitute and appoint                     Attorney to transfer
said Warrant on the books of ORBIMAGE Inc., with full power of substitution.




	 	 	 
	

	 	                                      
	

	 	[Type Name of Holder]
	 
	 	 
	

	 	By:                                       
	

	 	Title:                                       







Dated:                                       



NOTICE



The signature to the foregoing Assignment must correspond to the name as
written upon the face of the attached Warrant in every particular, without
alteration or enlargement or any change whatsoever.




 









 








EXHIBIT C




FORM OF ASSIGNMENT

(PARTIAL)




[To be signed only upon partial transfer of Warrant]




TO BE EXECUTED BY THE REGISTERED HOLDER

TO TRANSFER THE ATTACHED WARRANT



FOR VALUE RECEIVED                                        hereby sells, assigns and
transfers unto                                        (i) the rights of the
undersigned to purchase                    shares of Common Stock under and pursuant to the
attached Warrant, and (ii) on a non-exclusive basis, all other rights of the
undersigned under and pursuant to the attached Warrant, it being understood
that the undersigned shall retain, severally (and not jointly) with the
transferee(s) named herein, all rights assigned on such non-exclusive basis.
The undersigned does hereby irrevocably constitute and appoint
                 
                     Attorney to transfer said Warrant on the books of
ORBIMAGE Inc., with full power of substitution.




	 	 	 
	

	 	                                      
	

	 	[Type Name of Holder]
	 
	 	 
	

	 	By:                                       
	

	 	Title:                                       







     Dated:                                       



NOTICE


The signature to the foregoing Assignment must correspond to the name as
written upon the face of the attached Warrant in every particular, without
alteration or enlargement or any change whatsoever.


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