exv10w1








Exhibit 10.1




Execution Version




PURCHASE AGREEMENT




GEOEYE, INC.



Series A Convertible Preferred Stock



Purchase Agreement



March 22, 2010




Cerberus Satellite LLC

c/o Cerberus Capital Management, L.P.

22nd Floor

299 Park Avenue

New York, New York 10171




Ladies and Gentlemen:




     GeoEye, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to Cerberus
Satellite LLC (the “Purchaser”) 115,000 (or, if the EnhancedView Imagery Acquisition Contract is
awarded to the Company on a Non-Conforming Basis, 80,000) aggregate number of shares of its Series
A Convertible Preferred Stock (the “Securities”) with an initial liquidation preference of $1,000
per share and an initial Conversion Price of $30.00 (provided that in the event that the
EnhancedView Imagery Acquisition Contract has not been awarded to the Company in a definitive,
final decision for which the GAO bid protest period has expired and is not in full force and effect
(such date the “Initial Award Date”) on or prior to June 30, 2010, then the Conversion Price shall
decrease by 0.5% for each month (prorated for partial months) between July 1, 2010 and the earlier
of (x) September 30, 2010 and (y) the Initial Award Date) at a price equal to 97.5% of the
aggregate initial liquidation preference of the Securities. The terms of the Series A Convertible
Preferred Stock of the Company will be as set forth in the Certificate of Designations for such
series of preferred stock in the form attached hereto as Exhibit A (the “Certificate of
Designations”) which Securities shall be convertible into the Company’s common stock, par value
$0.01 per share (the “Common Stock”), in accordance with the terms of the Certificate of
Designations (as converted, collectively, the “Conversion Shares”).



     The Securities will be sold to the Purchaser without being registered under the Securities Act
of 1933, as amended (the “Securities Act”), in reliance upon an exemption therefrom.



     Holders of the Securities (including the Purchaser and its direct and indirect transferees)
will be entitled to the benefits of a Registration Rights Agreement, to be dated the  Closing Date and substantially in the form attached hereto as Exhibit B (the
“Registration Rights Agreement”), pursuant to which the Company will agree to file one or more
registration statements with the Securities and Exchange Commission (the “Commission”) providing
for the registration under the Securities Act of the Registrable Securities referred to in the
Registration Rights Agreement.













 





     The Company hereby confirms its agreement with the Purchaser concerning the purchase and
resale of the Securities, as follows:



     1. Purchase and Resale of the Securities. (a) The Company agrees to issue and sell
the Securities to the Purchaser as provided in this Agreement, and the Purchaser, on the basis of
the representations, warranties and agreements set forth herein and subject to the conditions set
forth herein, agrees to purchase from the Company the Securities at the price and on the terms set
forth in this Agreement. The Company will not be obligated to deliver any of the Securities except
upon payment for such applicable Securities to be purchased on the Closing Date as provided herein.



     (b) The Purchaser represents, warrants and agrees that:




     (i) The Purchaser is a qualified institutional buyer within the meaning of Rule 144A
under the Securities Act (a “QIB”) or an accredited investor within the meaning of Rule
501(a) under the Securities Act;




     (ii) The Purchaser is acquiring the Securities for its own account and not
with a view towards, or for resale in connection with, the public sale or distribution
thereof, except pursuant to sales registered or exempted under the Securities Act;
provided, however, that by making the representations herein, the Purchaser
does not agree to hold any of the Securities for any minimum or other specific term and
reserves the right to dispose of the Securities at any time in accordance with or pursuant
to a registration statement or an exemption under the Securities Act;




     (iii) The Purchaser and its advisors, if any, have been furnished with all
materials relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Securities and the Conversion Shares which have been
requested by the Purchaser. The Purchaser  and its advisors, if any, have been
afforded the opportunity to ask questions of the Company. Neither such inquiries nor any
other due diligence investigations conducted by the Purchaser or its advisors, if any, or
its representatives shall modify, amend or affect the Purchaser’s right to rely on the
Company’s representations and warranties contained herein. The Purchaser understands that its investment in the Securities and the Conversion Shares involves a
high degree of risk. The Purchaser has sought such accounting, legal and tax advice as it
has considered necessary to make an informed investment decision with respect to its
acquisition of the Securities and the Conversion Shares; and




     (iv) The Purchaser understands that no Governmental Authority has passed on or made any
recommendation or endorsement of the Securities and the Conversion Shares or the fairness or
suitability of the investment in the Securities and the Conversion Shares nor have such
authorities passed upon or endorsed the merits of the offering of the Securities and the
Conversion Shares.



     (c) The Purchaser acknowledges and agrees that the Company and, for purposes of the opinion to
be delivered to the Purchaser pursuant to Sections 5(e), Latham & Watkins LLP,



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counsel for the Company, may rely upon the accuracy on the Closing Date of the representations
and warranties of the Purchaser, and compliance by the Purchaser with its agreements, contained in
paragraph (b) above, and the Purchaser hereby consents to such reliance.




     2. Payment and Delivery. (a) Payment for and delivery of the Securities (the
“Closing”) will be made at the offices of Schulte Roth & Zabel LLP at 10:00 A.M., New York City
time five (5) business days following the satisfaction or waiver of the conditions set forth in
Sections 5 and 6 (other than conditions that by their nature are to be satisfied on the Closing
Date, but subject to the satisfaction or waiver of such conditions on the Closing Date), or at such
other time or place on the same or such other date as the Purchaser and the Company may agree upon
in writing. The time and date of the Closing is referred to herein as the “Closing Date.”



     (b) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account(s) specified by the Company to the Purchaser against delivery to the Purchaser of
one or more certificates representing the Securities, with any transfer taxes payable in connection
with the sale of the Securities duly paid by the Company. The certificates representing the
Securities will be made available for inspection by the Purchaser not later than 1:00 P.M., New
York City time, on the business day prior to the  Closing Date.



     3. Representations and Warranties of the Company. The Company represents and warrants
to the Purchaser that:



     (a) SEC Documents. Except as disclosed in the Filed SEC Documents, since January 1, 2007, the
Company has timely filed all SEC Documents required to be filed by it with the Commission. Except
to the extent that information contained in any Filed SEC Document has been revised or superseded
by a later Filed SEC Document, as of their respective filings dates, the SEC Documents complied in
all material respects with the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder applicable to the SEC Documents, and none of the SEC Documents contain
(or at the time they were filed with the Commission, contained) any untrue statement of a material
fact or omit (or, at the time they were filed with the Commission, omitted) to state a material
fact required to be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. Except to the extent that
information contained in any Delivered Additional Information has been revised or superseded by
later Delivered Additional Information, none of the Additional Information, other than the
projections and other forward-looking statements described in Section 3(jj), contains (or, at the
time provided to the Purchaser or its affiliates, contained) any untrue statement of a material
fact or omits (or, at the time provided to the Purchaser or its affiliates, omitted) to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.



     (b) Financial Statements. Except to the extent that a Filed SEC Document is revised or
superseded by a later Filed SEC Document , the financial statements and the related notes thereto
included or incorporated by reference in each of the SEC Documents present fairly the financial
position of the Company and its subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified, such financial



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statements have been prepared in conformity with generally accepted accounting principles in
the United States applied on a consistent basis throughout the periods covered thereby (“GAAP”),
(except as may be indicated on the notes thereto or, in the case of an interim financial statement,
for normal recurring year-end adjustments that are not material in nature or amount), and the other
financial information included or incorporated by reference in each of SEC Documents has been
derived from the accounting records of the Company and its subsidiaries and presents fairly the
information shown thereby.




     (c) No Material Adverse Effect. Since September 30, 2009 (i) no Material Adverse Effect has
occurred and is continuing; (ii) through the date hereof, there has not been any change in the
capital stock or long-term debt of the Company or any of its subsidiaries, or any dividend or
distribution of any kind declared, set aside for payment, paid or made by the Company on any class
of capital stock; and (iii) through the date hereof, neither the Company nor any of its
subsidiaries has entered into any transaction or agreement that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that
is material to the Company and its subsidiaries taken as a whole; except in the case of each of
clauses (i), (ii) and (iii), as otherwise disclosed in the Filed SEC Documents.



     (d) Organization and Good Standing. The Company and each of its subsidiaries have been duly
organized and are validly existing and in good standing under the laws of their respective
jurisdictions of organization, are duly qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified, in good standing or have such power or authority would
not, individually or in the aggregate, (i) reasonably be expected to have a Material Adverse Effect
or (ii) reasonably be expected to impair in any material respect the ability of the Company to
perform its obligations when due under this Agreement or any other Transaction Document. The
Company has no subsidiary other than the subsidiaries listed in Schedule 3(d) to this
Agreement.



     (e) Capitalization. As of March 18, 2010, the authorized capital stock of the Company
consists of 50,000,000 shares of Common Stock, of which as of the date hereof, 21,105,983 are
issued and outstanding and 2,707,930 shares are reserved for issuance pursuant to securities
exercisable or exchangeable for, or convertible into, shares of Common Stock. All of such
outstanding shares have been, or upon issuance will be, validly issued and are fully paid and
nonassessable. The outstanding shares of a capital stock or other equity interests of the Company
and each subsidiary of the Company have been duly and validly authorized and issued, are fully paid
and non-assessable and, in the case of the subsidiaries, except with respect to the liens securing
the Company’s 9.625% Senior Secured Notes due 2015 (the “Senior Secured Notes”) and inchoate liens
arising by operation of law, are owned directly or indirectly by the Company, free and clear of an
lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim
of any third party. Except as set forth on Schedule 3(e): (i) none of the Company’s capital
stock is subject to preemptive rights or any other similar rights; (ii) except for the Securities,
there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of
any character whatsoever relating to, or securities or rights convertible into, or



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exercisable or exchangeable for, any capital stock of the Company or any of its subsidiaries,
or contracts, commitments, understandings or arrangements by which the Company, any of its
subsidiaries is or may become bound to issue additional capital stock of the Company, any of its
subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into, or exercisable or
exchangeable for, any capital stock of the Company or any of its subsidiaries; (iii) except for the
Registration Rights Agreement and the registration rights agreement relating to the Company’s
Floating Rate Senior Notes due 2016 (the “Floating Rate Senior Notes”) and the Senior Secured Notes
there are no agreements or arrangements under which the Company or any of its subsidiaries is
obligated to register the sale of any of their securities under the Securities Act; (iv) except for
the Securities, the Floating Rate Senior Notes, the Senior Secured Notes and Article IV of the
Company’s Certificate of Incorporation, there are no outstanding securities or instruments of the
Company or any of its subsidiaries which contain any redemption or similar provisions, and there
are no contracts, commitments, understandings or arrangements by which the Company or any of its
subsidiaries is or may become bound to redeem a security of the Company or any of its subsidiaries;
(v) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements
or any similar plan or agreement; and (vi) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance of the Securities or the
Conversion Shares. Except as set forth on Schedule 3(e) or as permitted
pursuant to the indenture for the Senior Secured Notes (the “Senior Secured Notes Indenture”) and
the indenture for the Floating Rate Senior Notes (the “Floating Rate Senior Notes Indenture”),
there are no outstanding debt securities, notes, credit agreements, credit facilities or other
agreements, documents or instruments evidencing Indebtedness of the Company or any of its
subsidiaries or by which the Company or any of its subsidiaries is or may become bound.




     (f) Due Authorization. The Company has the power and authority to execute and deliver this
Agreement, the Securities, the Certificate of Designations and the Registration Rights Agreement
(collectively, the “Transaction Documents”) and to perform its obligations hereunder and
thereunder; and all action required to be taken for the due and proper authorization, execution and
delivery of each of the Transaction Documents and the consummation of the transactions contemplated
thereby has been duly and validly taken.



     (g) The Certificate of Designations. The Certificate of Designations has been duly authorized
by the Company and, when duly executed and delivered in accordance with its terms by the Company
and filed with the Secretary of State of the State of Delaware, will constitute a valid and legally
binding agreement of the Company enforceable against the Company in accordance with its terms; and
upon the filing of the Certificate of Designations with the Secretary of State of the State of
Delaware pursuant to Section 4(l) prior to the Closing the Certificate of Designations will be in
full force and effect, enforceable against the Company in accordance with its terms.



     (h) The Securities. The Securities have been duly authorized by the Company and, when duly
executed, issued and delivered as provided in the Certificate of Designations and paid for as
provided herein, will be duly and validly issued and outstanding and will constitute valid and
legally binding obligations of the Company enforceable against the Company in accordance



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with their terms and shall be free from all preemptive or similar rights or other Liens and
will be entitled to the rights and preferences set forth in the Certificate of Designations; as of
the Closing Date, a number of shares of Common Stock shall have been duly authorized and reserved
for issuance which equals 150% the maximum number of shares of Common Stock issuable upon
conversion of the Securities (assuming for purposes hereof, that the Securities are convertible at
the Conversion Price and without taking into account any limitations on the conversion of the
Securities set forth in the Certificate of Designations). Upon issuance or conversion in
accordance with the Certificate of Designations, the Conversion Shares will be validly issued,
fully paid and nonassessable and free from all preemptive or similar rights or other Liens, with
the holders being entitled to all rights accorded to a holder of Common Stock.




     (i) Purchase and Registration Rights Agreements. This Agreement has been duly authorized,
executed and delivered by the Company; and the Registration Rights Agreement has been duly
authorized by the Company and on the Closing Date will be duly executed and delivered by the
Company and, when duly executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of the Company enforceable against
the Company in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or
by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”)
and except that rights to indemnity and contribution thereunder may be limited by applicable law
and public policy.



     (j) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its subsidiaries is subject; or
(iii) in violation of any law or statute or any Governmental Order, rule or regulation of any
Governmental Authority, except, in the case of clauses (ii) and (iii) above, for any such default
or violation that would not, individually or in the aggregate, (x) reasonably be expected to have a
Material Adverse Effect or (y) reasonably be expected to impair in any material respect the ability
of the Company to perform its obligations when due under this Agreement or any other Transaction
Document.



     (k) No Conflicts. The execution, delivery and performance by the Company of each of the
Transaction Documents to which it is a party, the issuance and sale of the Securities (including
the Conversion Shares) and reservation for issuance of the Conversion Shares and compliance by the
Company with the terms thereof and the consummation of the transactions contemplated by the
Transaction Documents will not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, or give to others any rights of termination, amendment, acceleration or
cancellation of, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a



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party or by which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, (ii) result in any
violation of the provisions of the charter or by-laws or similar organizational documents of the
Company or any of its subsidiaries or (iii) result in the violation of any law or statute or any
judgment, order, rule or regulation of any Governmental Authority (including the rules and
regulations of The NASDAQ Global Select Market (the “Principal Market”), except, in the case of
clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not,
individually or in the aggregate, (x) reasonably be expected to have a Material Adverse Effect or
(y) reasonably be expected to impair in any material respect the ability of the Company to perform
its obligations when due under this Agreement or any other Transaction Document.




     (l) No Consents Required. Except as set forth on Schedule 3(l), no material consent, approval, authorization, order, registration or qualification of or with any
Governmental Authority is required for the execution, delivery and performance by the Company of
each of the Transaction Documents to which each is a party, the issuance and sale of the Securities
(including the Conversion Shares) and reservation for issuance of the Conversion Shares and
compliance by the Company with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents, except for such consents, approvals, authorizations,
orders and registrations or qualifications as may be required under applicable state securities
laws in connection with the purchase and resale of the Securities and the Conversion Shares by the
Purchaser.



     (m) Legal Proceedings. There are no legal, governmental or regulatory investigations,
actions, suits, protests, arbitrations, claims, challenges or proceedings (collectively,
“Litigation”) pending to which the Company or any of its subsidiaries is or may be a party or to
which any property of the Company or any of its subsidiaries is or may be the subject and no such
Litigation is, to the Knowledge of the Company, threatened or contemplated by any Governmental
Authority or by others that, individually or in the aggregate, if determined adversely to the
Company or any of its subsidiaries, would (i) reasonably be expected to have a Material Adverse
Effect or (ii) reasonably be expected to impair in any material respect the ability of the Company
to perform its obligations when due under this Agreement or any other Transaction Document.



     (n) Independent Accountants. Each of KPMG LLP and BDO Seidman, LLP, who have certified
certain financial statements of the Company and its subsidiaries, at all applicable times have been
independent public accountants with respect to the Company and its subsidiaries within the
applicable rules and regulations adopted by the Commission and the Public Company Accounting
Oversight Board (United States) and as required by the Securities Act.



     (o) Real and Personal Property. The Company and its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use, all items of real and
personal property that are material to the respective businesses of the Company and its
subsidiaries, in each case free and clear of all Liens except those that (i) are Permitted Liens,
(ii) do not materially interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries or (iii) would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Except as disclosed in the Filed SEC Documents,



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(x) each of the Satellites are in good operating condition and (y) the Company and its
subsidiaries have maintained in good operating condition and repair (subject to ordinary wear and
tear) all other material items of real and personal property of the Company and its subsidiaries.




     (p) Title to Intellectual Property. In all material respects, the Company and its
subsidiaries own or possess adequate rights to use all patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures) (collectively, the “Intellectual Property”)
necessary for the conduct of their respective businesses as currently conducted. The conduct of
the Company and its subsidiaries’ respective businesses as currently conducted will not conflict
with any Intellectual Property rights of others, and the Company and its subsidiaries have not
received any written notice of any claim of infringement of or conflict with any Intellectual
Property rights of others, except in each case that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.



     (q) No Undisclosed Relationships. As of the date hereof, except as disclosed in the Filed SEC
Documents, no relationship, direct or indirect, exists between or among the Company or any of its
subsidiaries, on the one hand, and the directors, officers, stockholders or other affiliates of the
Company or any of its subsidiaries, on the other hand, that would be required to be disclosed in a
registration statement on Form S-4 pursuant to Rule 404 of Regulation S-K.



     (r) Investment Company Act. Neither the Company nor any of its subsidiaries is, and after
giving effect to the offering and sale of the Securities and the Conversion Shares and the
application of the proceeds thereof as described in Section 4(b) none of them will be, an
“investment company” or an entity “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Investment Company Act”).



     (s) Taxes. Except as set forth in the Filed SEC Documents or as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect, the Company and its
subsidiaries have paid all federal, state, local and foreign taxes (except for any taxes that are
reasonably contested in good faith and as for which adequate reserves are established in accordance
with generally accepted accounting principles) and filed all tax returns required to be paid or
filed through the date hereof; and except as otherwise disclosed in the Filed SEC Documents, there
is no tax deficiency that has been, or would reasonably be expected to be, asserted against the
Company or any of its subsidiaries or any of their respective properties or assets except for any
tax deficiency that, individually or together with any other tax deficiency of the Company and its
subsidiaries, would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.



     (t) Licenses and Permits. The Company and its subsidiaries possess all licenses, approvals,
certificates, permits and other authorizations issued by, and have made all declarations,
notifications and filings with, the appropriate Governmental Authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their



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respective businesses as described in the Filed SEC Documents, except where the failure to
possess or make the same would not, individually or in the aggregate, (x) reasonably be expected to
have a Material Adverse Effect or (y) reasonably be expected to impair in any material respect the
ability of the Company to perform its obligations when due under this Agreement or any other
Transaction Document; and except as described in the Filed SEC Documents, to the Knowledge of the
Company (i) neither the Company nor any of its subsidiaries has received notice of any revocation
or material and adverse modification of any such license, certificate, permit or authorization,
(ii) there are no events, facts, changes or circumstances that would reasonably be expected to
result in any such license, certificate, permit or authorization not being renewed in the ordinary
course and (iii) there are no events facts, changes or circumstances that would reasonably be
expected to result in any material license, certificate, permit or authorization required for
GeoEye-2 not being obtained.




     (u) No Labor Disputes. No labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the Knowledge of the Company, is contemplated or threatened
and to the Knowledge of the Company there is no existing or imminent labor disturbance by, or
dispute with, the employees of any of the Company’s or any of the Company’s subsidiaries’ principal
suppliers, contractors or customers, except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.



     (v) Compliance With Environmental Laws. (i) The Company and its subsidiaries (A) are in
compliance with any and all applicable federal, state, local and foreign laws, rules, regulations,
requirements, decisions and orders relating to the protection of human health or safety, the
environment, hazardous or toxic substances or wastes, pollutants or contaminants (collectively,
“Environmental Laws”), (B) have received and are in compliance with all permits, licenses,
certificates or other authorizations or approvals required of them under applicable Environmental
Laws to conduct their respective businesses, and (C) have not received notice of any actual or
potential liability under or relating to any Environmental Laws, including for the investigation or
remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or
contaminants, and to the Knowledge of the Company there is no event or condition that would
reasonably be expected to result in any such notice, and (ii) there are no costs or liabilities
associated with Environmental Laws of or relating to the Company or its subsidiaries, except in the
case of each of (i) and (ii) above, as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and (iii) except as described in the Filed SEC
Documents, (A) there are no proceedings that are pending, or that are Known by the Company to be
contemplated, against the Company or any of its subsidiaries under any Environmental Laws in which
a Governmental Authority is also a party, other than such proceedings regarding which it is
reasonably believed no monetary sanctions of $100,000 or more will be imposed, (B) the Company has
no Knowledge of any failures to comply with or changes in compliance with Environmental Laws, or
liabilities or other obligations under Environmental Laws or concerning hazardous or toxic
substances or wastes, pollutants or contaminants, that could reasonably be expected to have a
material effect on the capital expenditures, earnings or competitive position of the Company and
its subsidiaries, and (C) none of the Company and its subsidiaries anticipates material capital
expenditures relating to any Environmental Laws.



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     (w) Compliance With ERISA. (i) Each employee benefit plan, within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company
or any member of its “Controlled Group” (defined as any organization which is a member of a
controlled group of corporations within the meaning of Section 414 of the Code) would have any
liability (each, a “Plan”) has been maintained in compliance with its terms and the requirements of
any applicable statutes, Governmental Orders, rules and regulations, including but not limited to
ERISA and the Code, except where the failure to maintain compliance with such terms and
requirements would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; (ii) (A) except as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding
transactions effected pursuant to a statutory or administrative exemption; (B) for each Plan that
is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” (as defined in Section 412 of the Code), whether or not waived, has occurred or
is reasonably expected to occur; (C) the fair market value of the assets of each Plan exceeds the
present value of all benefits accrued under such Plan (determined based on those assumptions used
to fund such Plan); (D) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has
occurred or is reasonably expected to occur; and (E) neither the Company nor any member of the
Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of
ERISA (other than contributions to the Plan or premiums to the PBGC, in the ordinary course and
without default) in respect of a Plan (including a “multiemployer plan”, within the meaning of
Section 4001(a)(3) of ERISA).



     (x) Disclosure Controls. Except as disclosed in the Filed SEC Documents, the Company and its
subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined in
Rule 13a — 15(e) of the Exchange Act) that is designed to ensure that information required to be
disclosed by the Company in reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the Commission’s rules and
forms, including controls and procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate to allow timely decisions regarding
required disclosure. The Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as required by Rule 13a — 15 of the
Exchange Act as of June 30, 2009.



     (y) Accounting Controls. Except as disclosed in the Filed SEC Documents, the Company and its
subsidiaries maintain systems of “internal control over financial reporting” (as defined in Rule
13a — 15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have
been designed by, or under the supervision of, their respective principal executive and principal
financial officers, or Persons performing similar functions, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles. Except as disclosed
in the Filed SEC Documents, the Company and its subsidiaries maintain internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in



10









 




conformity with generally accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any differences. To the
Knowledge of the Company, except as disclosed in the Filed SEC Documents, there are no material
weaknesses or significant deficiencies in the Company’s internal controls.




     (z) Insurance. Schedule 3(z) sets forth all insurance of the Company and its
subsidiaries that are in effect as of the date hereof. The Company and its subsidiaries have
insurance covering against losses and risks in such amounts as is reasonably prudent and customary
in the business in which they are engaged; and neither the Company nor any of its subsidiaries has
Knowledge of any events or circumstances that would reasonably be expected to result in the Company
not being able to renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage at a cost that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The insurance set forth on Schedule 3(z)
complies with the requirements of the indenture for the Company’s Senior Secured Notes. To the
Knowledge of the Company, it will be able to obtain insurance for or in connection with GeoEye-2 at
the levels and amounts required by the Senior Secured Notes Indenture.



     (aa) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the
Knowledge of the Company, any director, officer, employee, agent, consultant, reseller,
distributor, channel partner or other representative of the Company or any of its subsidiaries, or
any other Person acting on behalf of or in concert with the Company or any of its subsidiaries,
has, directly or indirectly, (i) used any funds for any unlawful contribution, gift, gratuity,
entertainment or other unlawful expense related to political activity; (ii) made any payment or
offered, promised or authorized the payment of anything of value, regardless of form, whether in
money, property or services, to any foreign or domestic government official or employee, or any
political party, candidate for political office or official or employee of a public international
organization, for the purpose of influencing any act or decision of any official or government
entity or securing any improper advantage; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977, as amended; or (iv) made or offered any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.



     (bb) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any Governmental Authority (collectively, the “Money Laundering Laws”) and no
Litigation by or before any Governmental Authority involving the Company or any of its subsidiaries
with respect to the Money Laundering Laws is pending or, to the Knowledge of the Company,
threatened.



     (cc) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the Knowledge
of the Company, any director, officer, agent, employee or affiliate of the Company



11









 




or any of its subsidiaries is currently a prohibited person pursuant to or in violation of any
U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the
Treasury (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering
of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other Person, for the purpose of financing the activities of
any Person currently subject to any U.S. sanctions administered by OFAC.




     (dd) Solvency. On and immediately after the  Closing Date, the Company (after
giving effect to the issuance of the Securities and the other transactions related thereto as
described in each of the Transaction Documents) will be Solvent. As used in this paragraph, the
term “Solvent” means, with respect to a particular date, that on such date (i) the present fair
market value (or present fair saleable value) of the assets of the Company is not less than the
total amount required to pay the liabilities of the Company on its total existing debts and
liabilities (including contingent liabilities) as they become absolute and matured; (ii) the
Company is able to realize upon its assets and pay its debts and other liabilities, contingent
obligations and commitments as they mature and become due in the normal course of business; (iii)
assuming consummation of the issuance of the Securities as contemplated by this Agreement and the
other Transaction Documents, the Company is not incurring debts or liabilities beyond its ability
to pay as such debts and liabilities mature; and (iv) the Company is not engaged in any business or
transaction, and does not propose to engage in any business or transaction, for which its property
would constitute unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which the Company is engaged.



     (ee) No Restrictions on Subsidiaries. Except as permitted by both the Senior Secured Notes
Indenture (as in effect on the date hereof) and the Floating Rate Notes Indenture (as if it were in
effect since the date hereof), no subsidiary of the Company is currently prohibited, directly or
indirectly, under any agreement or other instrument to which it is a party or is subject, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s
capital stock, from repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary’s material properties or assets to the Company
or any other subsidiary of the Company.



     (ff) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any Person (other than this Agreement) that would give
rise to a valid claim against any of them or the Purchaser for a brokerage commission, finder’s fee
or like payment in connection with the offering and sale of the Securities and the Conversion
Shares.



     (gg) No Integration. Neither the Company nor any of its affiliates has, directly or through
any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of,
any security (as defined in the Securities Act), that is or will be integrated with the sale of the
Securities and the Conversion Shares in a manner that would require registration of the Securities
and the Conversion Shares under the Securities Act or cause this offering, issuance or sale of the
Securities and the Conversion Shares to require the approval of the stockholders of the Company for
purposes of the Securities Act or any applicable stockholder approval provisions, including



12









 




under the rules and regulations of any exchange or automated quotation system on which any of
the securities of the Company are listed or designated.




     (hh) No General Solicitation or Directed Selling Efforts. None of the Company or any of its
affiliates or any other Person acting on its or their behalf (other than the Purchaser, as to which
no representation is made) has solicited offers for, or offered or sold, the Securities by means of
any form of general solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the
Securities Act.



     (ii) Securities Law Exemptions. Assuming the accuracy of the representations and warranties
of the Purchaser contained in Section 1(b) and its compliance with its agreements set forth
therein, it is not necessary to register the Securities under the Securities Act in connection with
the issuance and sale of the Securities and the Conversion Shares to the Purchaser (other than the
registration requirements pursuant to the Registration Rights Agreement).



     (jj) Forward-Looking Statements. Except to the extent that a Filed SEC Document or Delivered
Additional Information is revised or superseded by a later Filed SEC Document or by later
Delivered Additional Information, as applicable, the projections and other forward-looking
statements (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained in any of the SEC Documents or Additional Information have been prepared in good
faith on the basis of (i) assumptions, methods and tests stated therein which are believed by the
Company to be reasonable and (ii) information believed by the Company to have been accurate based
upon the information available to the Company at the time such projections and other
forward-looking statements were furnished to the Purchaser.



     (kk) Statistical and Market Data. To the Knowledge of the Company, the statistical and
market-related data, as of the applicable dates of such SEC Documents, included or incorporated by
reference in each of the SEC Documents was based on or derived from sources that are reliable and
accurate in all material respects.



     (ll) Sarbanes-Oxley Act. Except as disclosed in the Filed SEC Documents, there is and has
been no failure on the part of the Company or, to the Knowledge of the Company, any of the
Company’s directors or officers, in their capacities as such, to comply in any material respect
with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.



13









 





     (mm) Material Contracts.



          (i) Schedule 3(mm) sets forth a true, correct and complete list of all of the Material
Contracts as of the date hereof. The Company has delivered to, or made available for inspection
by, the Purchaser true, correct and complete copies of each Material Contract as of the date
hereof.




          (ii) Each Material Contract (A) is a valid and binding obligation of the Company or its
subsidiary that is a party thereto, enforceable against such Person in accordance with its terms,
subject to the Enforceability Exceptions, (B) to the Knowledge of the Company, is a valid and
binding obligation of each other party thereto, enforceable against each such other party in
accordance with its terms, subject to the Enforceability Exceptions, and (C) is in all material
respects in full force and effect.




          (iii) Each of the Company and its subsidiaries that is a party to a Material Contract has in
all material respects performed its obligations under such Material Contract, and has not and, to
the Knowledge of the Company, none of the other parties thereto has, violated any material
provision of, or committed or failed to perform any material action under, and no event or
condition exists, that would constitute a material default under such Material Contract (and would
not be with the lapse of time or the giving of notice be in material default), and has not received
from any other party thereto any notice of such party’s intention to cancel, terminate or fail to
renew any Material Contract.




     (nn) Application of Takeover Protections; Rights Agreement. The Company does not have any
control share acquisition, business combination, poison pill (including any distribution under a
rights agreement) or other similar anti-takeover provisions set forth in its Certificate of
Incorporation (other than to the extent set forth in Article IV of the Company’s Certificate of
Incorporation) or any of its certificates of designations or otherwise nor is the Company subject
to any laws of the jurisdiction of its formation or incorporation which, in each case, is or could
become applicable to the Purchaser as a result of the transactions contemplated by this Agreement,
including the Company’s issuance of the Securities and the Conversion Shares and the Purchaser’s
ownership of the Securities and the Conversion Shares. The Company has not adopted a stockholder
rights plan or similar arrangement relating to accumulations of beneficial ownership of Common
Stock or a change in control of the Company.



     (oo) EnhancedView Imagery Acquisition Bid. The Company submitted its bid on March 8, 2010 for
the EnhancedView Imagery Acquisition Contract on terms consistent with the disclosures (the “Bid
Disclosures”) made to the Purchaser by the Company or any of its subsidiaries prior to
March 4, 2010.



     4. Further Agreements of the Company. The Company covenants and agrees with the
Purchaser that:



     (a) Form D; Blue Sky Compliance. The Company will file a Form D with respect to the
Securities and the Conversion Shares as required under Regulation D and will provide a copy thereof
to the Purchaser promptly after such filing. The Company will qualify the Securities and



14









 




the Conversion Shares for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Purchaser shall reasonably request and will continue such qualifications in
effect so long as required for the offering and resale of the Securities and the Conversion Shares;
provided that the Company shall not be required to (i) qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.




     (b) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities
for capital expenditures associated with the design, construction and launch of the Company’s
GeoEye-2 Satellite and general corporate purposes.



     (c) Supplying Information.




     (i) While the Securities remain outstanding and are “restricted securities” within the
meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in
which the Company is not subject to and in compliance with Section 13 or 15(d) of the
Exchange Act, furnish to holders of the Securities and prospective purchasers of the
Securities designated by such holders, upon the request of such holders or such prospective
purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.




     (ii) From the date hereof and until the earlier of the date that the Securities are
issued to the Purchaser and this Agreement is terminated pursuant to Section 8, the Company
shall as soon as practicable (and in no event, unless waived by the Purchaser, later than
five (5) business days prior to an anticipated Closing Date) deliver to the Purchaser a
monthly income statement (including a statement that sets forth a reasonably detailed
computation of Adjusted EBITDA), a balance sheet and cash flow information for each calendar
month during such period. In the event that a calendar month shall end within such five (5)
business day period prior to the Closing Date, the Company shall deliver such monthly
information for such additional month promptly and, unless waived by the Purchaser, in any
case prior to the Closing Date.




     (iii) From the date hereof and until the earlier of the date that the Securities are
issued to the Purchaser and this Agreement is terminated pursuant to Section 8, the Company
shall cause its management to make themselves reasonably available at reasonable times
(without unreasonably interference with the operations of the Company) to the Purchaser in
order to respond to questions and discuss the performance of the Company and the status of
the EnhancedView Imagery Acquisition Contract and related award process.



     (d) No Integration. Neither the Company nor any of its affiliates (other than the Purchaser)
will, directly or through any agent, sell, offer for sale, solicit offers to buy or otherwise
negotiate in respect of, any security, that is or will be integrated with the sale of the
Securities and the Conversion Shares in a manner that would require registration of the Securities
under the Securities Act or cause the offering, issuance or sale of the Securities and the



15









 




Conversion Shares to be integrated with other offerings and sales for purposes of any such
stockholder approval provisions for purposes of the Securities Act or any applicable stockholder
approval provisions, including under the rules and regulations of any exchange or automated
quotation system on which any of the securities of the Company are listed or designated.




     (e) No General Solicitation or Directed Selling Efforts. None of the Company or any of its
affiliates or any other Person acting on its or their behalf (other than the Purchaser, as to which
no covenant is given) will solicit offers for, or offer or sell, the Securities and the Conversion
Shares by means of any form of general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.



     (f) Observer Rights and Board Representation. The Company agrees to take all actions
necessary in order to: (i) permit the board observer designated by the Purchaser pursuant to the
Certificate of Designations to assume such position on the Closing Date; and (ii) permit the member
of the Board of Directors of the Company designated by the Purchaser pursuant to the Certificate of
Designations to assume such position on the Closing Date, including in the case of clause (ii)
increasing the size of the Board of Directors by one director pursuant to Section 3.1 of the Fourth
Amended and Restated Bylaws of the Company and appointing such designee to become a member of the
Board of Directors as of the Closing Date pursuant to Section 3.2 of the Fourth Amended and
Restated Bylaws of the Company. In the event that the Purchaser would be entitled to rights under
Section 9 and/or 10 of the Certificate of Designations after the date that no shares of Series A
Convertible Preferred Stock remain outstanding, the Company and the Purchaser shall enter into
alternative arrangements reasonably acceptable to the Purchaser to provide such rights to the
Purchaser to the extent permitted by applicable law (and if restricted in any way by applicable
law, substantially equivalent rights to the extent permitted by such applicable law).



     (g) EnhancedView Imagery Acquisition Contract. In the event the Company or one of its
wholly-owned subsidiaries receives an award under the EnhancedView Imagery Acquisition Contract, it
shall promptly inform the Purchaser of such award and whether or not the award was on a
non-conforming basis (i.e., without any requirement for posting any letter of credit, any cash
collateralization requirements or any other lien, bond, repayment guarantee, surety, pledged asset
or other credit support or financial protections for the benefit of the U.S. government in
connection with such EnhancedView Imagery Acquisition Contract, at the time of such award or
otherwise) (“Non-Conforming Basis”), and provide the Purchaser with written copies of all award
documentation the disclosure of which is not prohibited by law. The Company shall also promptly
inform the Purchaser of the EnhancedView Imagery Acquisition Contract being awarded to any Person
other than the Company. The Company shall promptly inform the Purchaser of (x) any information it
receives regarding any actual or threatened Litigation related to any such award to the Company
(including before the U.S. Government Accountability Office (“GAO”) or any other applicable
Governmental Authority), including copies of all written correspondence relating to such Litigation
received by the Company and, to the extent Known by the Company, a statement or summary containing
all material details relating to such Litigation and (y) to the extent Known by the Company, a
statement or summary describing all developments and copies of all written communications related
to the



16









 




EnhancedView Imagery Acquisition Contract and the related award process. In the event the
EnhancedView Imagery Acquisition Contract is awarded to the Company on a Non-Conforming Basis, then
the Purchaser may, within five (5) business days after the Company notifies the Purchaser in
writing of such award on a Non-Conforming Basis, give written notice to the Company of its exercise
of its option to purchase 80,000 shares of the Securities. In the event that the EnhancedView
Imagery Acquisition Contract is awarded in the initial award process therefor to a party other than
the Company, then the Purchaser may, at any time thereafter, give written notice to the Company of
its exercise of its option to terminate its obligations hereunder, in which case this Agreement
shall be terminated pursuant to Section 8.




     (h) Litigation. In addition to the obligations under Section 4(g), in the event the Company
learns of any material Litigation involving the Company and/or any of its subsidiaries it shall
promptly so notify the Purchaser and deliver to the Purchaser (1) to the extent Known by the
Company, a statement or summary containing all material details relating to such Litigation and (2)
copies of all written correspondence relating to such Litigation.



     (i) Compliance Policy and Procedure. The Company will use its reasonable best efforts to
complete as soon as practicable the documentation for its updated regulatory compliance procedures
in a manner materially consistent with its discussion of such procedures with the Purchaser and its
counsel.



     (j) Further Assurances. From the date hereof and until the Closing, the Company shall, and
shall cause its subsidiaries to, use reasonable best efforts to do all things necessary, proper or
advisable in order to consummate and make effective the transactions contemplated by this Agreement
(including satisfying the conditions in Section 5) and the Transaction Documents as promptly as
practicable.



     (k) Interim Covenants. From the date hereof and until the Closing, the Company shall comply
with the terms of the Certificate of Designations as if it were effective since March 4, 2010
(other than the provisions therein requiring the payment or accrual of dividends to the Purchaser
and other than the restriction on the payment of dividends or other distributions under Section
11(f) of the Certificate of Designations for which an adjustment to the Conversion Price will be
made under Section 3(e)(iii) therein).



     (l) Filing of the Certificate of Designations. Prior to the Closing, the Company shall file
the Certificate of Designations, which shall be duly executed by an officer of the Company, with
the Secretary of State of the State of Delaware.



     5. Conditions of Purchaser’s Obligations. The obligation of the Purchaser to purchase
Securities on the Closing Date as provided herein is subject to (x) the performance in all material
respects by the Company of its covenants and other obligations hereunder and (y) to the following
additional conditions:



     (a) EnhancedView Imagery Acquisition Contract. (i) The EnhancedView Imagery Acquisition
Contract shall have been awarded to the Company or one of its wholly-owned subsidiaries in the
initial award process under the EnhancedView Imagery Acquisition



17









 




Solicitation on or prior to September 30, 2010 (or such later date as the Purchaser may from time to time designate in writing to the Company) (such date, the “Award Outside
Date”); (ii) the award of the EnhancedView Imagery Acquisition Contract to the Company shall have
been made on terms materially consistent with the Company’s Bid Disclosures in a definitive, final
decision for which the GAO bid protest period has expired and shall be in full force and effect;
(iii) no Litigation against such award shall be pending or threatened (including any bid protest
before the GAO or any proceeding before any applicable Governmental Authority) (and, in the case of
a protest before the GAO, such protest shall have been resolved in a binding and final manner by
the GAO) and such award shall not be stayed pursuant to any such protest or other Litigation; (iv)
the EnhancedView Imagery Acquisition Contract shall not have been amended, supplemented, waived or
otherwise modified since the date of its award to the Company in any material respect that is
adverse to the interests of the Purchaser; (v) in the event that the EnhancedView Imagery
Acquisition Contract is awarded in the initial award process under the EnhancedView Imagery
Acquisition Solicitation to a party other than the Company, then the Purchaser shall not have given
notice of its intent to terminate its obligations pursuant to Section 4(g); and (vi) if the
EnhancedView Imagery Acquisition Contract shall have been awarded to the Company on a
Non-Conforming Basis, the Purchaser shall have given written notice to the Company of its exercise
of its option to purchase 80,000 shares of the Securities pursuant to Section 4(g).




     (b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date;
and the statements of the Company and its respective officers made in any certificates delivered
pursuant to this Agreement shall be true and correct on and as of the  Closing Date.



     (c) No Material Adverse Effect. Since September 30, 2009, no Material Adverse Effect shall
have occurred and be continuing except as has been disclosed by the Company in the Filed SEC
Documents.



     (d) Officer’s Certificate. The Purchaser shall have received at and as of the Closing (i) a
certificate, in a form reasonably satisfactory to the Purchaser, of the Chief Executive Officer or
the Chief Financial Officer of the Company (A) confirming that the representations and warranties
of the Company in this Agreement are true and correct as of the date hereof and on and as of the
Closing Date and that the Company has complied in all material respects with all covenants and
other obligations and satisfied all conditions on their part to be performed or satisfied hereunder
on or prior to the Closing Date and (B) confirming that since September 30, 2009, no Material
Adverse Effect has occurred and is continuing except as has been disclosed by the Company in the
Filed SEC Documents and (ii) a certificate, in a form reasonably satisfactory to the Purchaser, of
the General Counsel of the Company confirming the statements set forth in Annex A-1 hereto.



     (e) Opinion of Counsel for the Company. Latham & Watkins LLP, counsel for the Company, shall
have furnished to the Purchaser, at the request of the Company, its written opinion, dated the
Closing Date and addressed to the Purchaser, in form and substance reasonably satisfactory to the
Purchaser, to the effect set forth in Annex A-2 hereto.



18









 





     (f) Opinion of General Counsel. The Company’s General Counsel, shall have furnished to the
Purchaser, at the request of the Company, his written opinion, dated the Closing Date and addressed
to the Purchaser, in form and substance reasonably satisfactory to the Purchaser, to the effect set
forth in Annex A-3 hereto.



     (g) Consents. (i) all mandatory waiting periods (and any extension thereof) prescribed by the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended and the rules and regulations
promulgated thereunder, shall have expired or shall have been terminated and (ii) all other
material consents, approvals, authorizations, orders, registrations or qualifications of or with
any Governmental Authority that is required for the execution, delivery and performance by the
Company of each of the Transaction Documents to which each is a party, the issuance and sale of the
Securities (including the Conversion Shares) and reservation for issuance of the Conversion Shares
and compliance by the Company with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents and for the operation by the Company of its business
shall have been obtained and be in full force and effect.



     (h) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any Governmental Authority that
would, as of the Closing Date, prevent the issuance or sale of the Securities or the Conversion
Shares; and no injunction or order of any federal, state or foreign court shall have been issued
that would, as of the Closing Date, prevent the issuance or sale of the Securities or the
Conversion Shares.



     (i) No Litigation. There shall exist no Litigation pending, or to the Knowledge of the
Company or the knowledge of the Purchaser, threatened in, or before, any Governmental Authority
which relates to the Securities or which has any reasonable likelihood of having a Material Adverse
Effect or having a material adverse effect on (i) the ability of the Company or any of its
subsidiaries to perform their obligations under the Certificate of Designations or (ii) the ability
of the Purchaser to enforce the Certificate of Designations.



     (j) Good Standing. The Purchaser shall have received on and as of the Closing Date
satisfactory evidence of the good standing of the Company in its jurisdictions of organization and
its good standing in such other material jurisdictions as the Purchaser may reasonably request, in
each case in writing or any standard form of telecommunication, from the appropriate Governmental
Authorities of such jurisdictions.



     (k) Transaction Documents and Securities. The Purchaser shall have received a counterpart of
each of the Transaction Documents in form and substance reasonably satisfactory to the Purchaser
and the Securities being purchased by the Purchaser at the Closing pursuant to this Agreement,
which shall have been executed and delivered by a duly authorized officer of the Company. The
Certificate of Designations shall have been filed with the Secretary of State of the State of
Delaware and shall be in full force and effect, enforceable against the Company in accordance with
its terms, and shall not have been amended.



19









 





     (l) Insurance. The Company and its subsidiaries have insurance covering against losses and
risks in such amounts and with such coverage as is required under all applicable material
contractual and other requirements, including all such requirements contained in the Senior Secured
Notes Indenture or under any other material Indebtedness or other agreement of the Company and its
subsidiaries.



     (m) Defaults. There shall not exist (including after giving effect to the transactions
contemplated by this Agreement and the other Transaction Documents) any default or event of default
under the Senior Secured Notes Indenture or under the Floating Rate Senior Notes Indenture or under
any other material Indebtedness or other material agreement of the Company and its subsidiaries.
The Company shall have been in compliance since March 4, 2010 with the terms of the Certificate of
Designations, as if it were effective since such date (other than the provisions therein requiring
the payment or accrual of dividends).



     (n) Indebtedness. The Company and its subsidiaries shall not have any Indebtedness
outstanding other than Indebtedness under the Company’s Senior Secured Notes and the Floating Rate
Senior Notes Indenture and Indebtedness permitted to be incurred under the Senior Secured Notes
Indenture (as such indenture is in effect on March 4, 2010) and the Floating Rate Senior Notes
Indenture (as if such indenture were in effect since March 4, 2010).



     (o) Fees and Expenses. The Company shall have paid or reimbursed, as applicable, the
Purchaser all fees and expenses required to be paid under the Commitment Letter.



     (p) Certificate of the Transfer Agent. The Purchaser shall have received a certificate dated
as of the close of business on the business day immediately prior to the Closing Date, reasonably
satisfactory to the Purchaser, from the transfer agent of the Company, confirming: (1) that the
number of authorized shares of Common Stock of the Company consist of 50,000,000 shares of Common
Stock and (2) the number of validly issued, fully paid and nonassessable shares of Common Stock
outstanding as of the Closing Date.



     (q) Outside Date. The Closing Date shall not be later than December 31, 2010 (the “Outside
Date”).



     6. Condition of Company’s Obligations. The obligation of the Company to sell
Securities on the Closing Date as provided herein is subject to (x) the Purchaser making payment
for the Securities on the Closing Date against delivery to the Purchaser of one or more
certificates representing the Securities pursuant Section 2(b) and (y) to the following additional
conditions:



     (a) EnhancedView Imagery Acquisition Contract. (i) the EnhancedView Imagery Acquisition
Contract shall have been awarded to the Company in a definitive, final decision for which the GAO
bid protest period has expired and shall be in full force and effect, and (ii) if the EnhancedView
Imagery Acquisition Contract shall have been awarded to the Company on a Non-Conforming Basis, the
Purchaser shall have given written notice to the Company of its exercise of its option to purchase
80,000 shares of the Securities pursuant to Section 4(g), in



20









 





which case the Company shall not be required to issue in excess of 80,000 shares of the
Securities.




     (b) Hart-Scott-Rodino. All mandatory waiting periods (and any extension thereof) prescribed
by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended and the rules and
regulations promulgated thereunder, shall have expired or shall have been terminated.



     7. Indemnification.



     (a) Indemnification of the Purchaser. The Company agrees to indemnify and hold harmless the
Purchaser, its affiliates, directors and officers and each Person, if any, who controls such
Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities (including reasonable legal
fees and other reasonable expenses incurred in connection with any suit, action or proceeding or
any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of,
or are based upon, (i) any misrepresentation or breach of any representation or warranty made by
the Company in the Transaction Documents, (ii) any breach of any covenant, agreement or obligation
of the Company contained in the Transaction Documents or (iii) any cause of action, suit or claim
brought or made against the Purchaser by a third party (including for these purposes a
derivative action brought on behalf of the Company) and arising out of or resulting from (A) the
execution, delivery, performance or enforcement of the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby, (B) any transaction financed or
to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of
the Securities, or (C) the status of the Purchaser or holder of the Securities as an investor in
the Company pursuant to the transactions contemplated by the Transaction Documents.



     (b) Notice and Procedures. If any suit, action, proceeding (including any investigation by a
Governmental Authority), claim or demand shall be brought or asserted against any Person in respect
of which indemnification may be sought pursuant to paragraph (a) above, such Person (the
“Indemnified Person”) shall promptly notify the Person against whom such indemnification may be
sought (the “Indemnifying Person”) in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a)
above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided, further, that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
to an Indemnified Person otherwise than under paragraph (a) above. If any such proceeding shall be
brought or asserted against an Indemnified Person and it shall have notified the Indemnifying
Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the
Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the
Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification
pursuant to paragraph (a) above that the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such proceeding and shall pay the fees and expenses of such
counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Person unless (i) the Indemnifying



21









 




Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory
to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to those available to
the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Purchaser, its affiliates, directors and officers and any control Persons of
the Purchaser shall be designated in writing by Purchaser and any such separate firm for
the Company its directors and officers and any control Persons of the Company shall be designated
in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into more than 45
days after receipt by the Indemnifying Person of such request, and (ii) the Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request within 30 days
after the date of such settlement. No Indemnifying Person shall, without the written consent of
the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification could have been
sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional
release of such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of such proceeding and
(y) does not include any statement as to or any admission of fault, culpability or a failure to act
by or on behalf of any Indemnified Person.




     (c) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at
law or in equity.



     8. Termination.



     (a) This Agreement may be terminated in the absolute discretion of the Purchaser, by written
notice (which, for the avoidance of doubt, may be by electronic mail) to the Company, (i) if after
the execution and delivery of this Agreement and on or prior to the Closing Date any of the
following events set forth in this clause (i) shall have occurred after the date hereof (as
compared to the state of circumstances that existed on March 4, 2010) and prior to Closing Date and
shall be continuing (or the effects thereof shall be continuing) at any time during the ten (10)
business days prior to the Closing Date (or such shorter time period as the Purchaser may from



22









 




time to time designate in writing to the Company): (A) trading generally shall have been
suspended or materially limited on the New York Stock Exchange or the over-the-counter market; (B)
trading of any securities issued by the Company shall have been suspended on any exchange or in any
over-the-counter market; (C) a general moratorium on commercial banking activities shall have been
declared by federal or New York State authorities; and (D) there shall have occurred any outbreak
or escalation of hostilities or any change in financial markets or any calamity or crisis or other
change, event or circumstance, either within or outside the United States, that, in the judgment of
the Purchaser, has or could have a material and adverse effect on financial markets and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement and the other Transaction Documents;
(ii) after the Award Outside Date, if the condition set forth in Section 5(a)(i) shall not have
been satisfied prior to the Award Outside Date; (iii) after the Outside Date; (iv) in the event
that the EnhancedView Imagery Acquisition Contract is awarded in the initial award process therefor
to a Person other than the Company; or (v) if the EnhancedView Imagery Acquisition Contract shall
have been awarded to the Company on a Non-Conforming Basis and the Purchaser shall not have given
written notice to the Company of its exercise of its option to purchase 80,000 shares of the
Securities pursuant to Section 4(g) within the time period set forth therein.




     (b) This Agreement may be terminated in the absolute discretion of the Company, by written
notice (which, for the avoidance of doubt, may be by electronic mail) to the Purchaser, if the
EnhancedView Imagery Acquisition Contract shall have been awarded to the Company on a
Non-Conforming Basis and the Purchaser shall not have given written notice to the Company of its
exercise of its option to purchase 80,000 shares of the Securities pursuant to Section 4(g) within
the time period set forth therein.



     9. Competitors. The Purchaser hereby covenants and agrees not to directly transfer
any Securities in a privately negotiated transaction to any Person that is a Competitor of the
Company. As used herein, “Competitor” means any Person set forth on Schedule 1 attached hereto and
its controlled affiliates (including successors thereof).



     10. Payment of Expenses. Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company agrees to pay or cause to be
paid all costs and expenses incident to the performance of its obligations hereunder, except as
otherwise set forth to the contrary in any Transaction Document. In addition, whether or not the
transactions contemplated by this Agreement are consummated, the Company agrees to pay and
reimburse the fees and expenses of Purchaser as required pursuant to the Commitment Letter.



     11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and any
controlling Persons referred to herein, and the affiliates, officers and directors of the
Purchaser. Nothing in this Agreement is intended or shall be construed to give any other Person
any legal or equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein. No purchaser of Securities from the Purchaser shall be deemed to be a
successor merely by reason of such purchase.



23









 





     12. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Purchaser contained in this Agreement or made by
or on behalf of the Company or the Purchaser pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company or the Purchaser.



     13. Certain Defined Terms. For purposes of this Agreement, except where otherwise
expressly provided:



     (a) the term “accumulated funding deficiency” has the meaning set forth in Section 3(w);



     (b) the term “Additional Information” means all information provided by the Company to the
Purchaser or its affiliates prior to the Closing Date that is not included in SEC Documents;



     (c) the term “Adjusted EBITDA” shall be determined in a manner consistent with the computation
of Adjusted EBITDA in the Company’s Form 10-Q for the quarter ended September 30, 2009;
provided, however, that any revenue or income relating to advance payments
(including any recognition of deferred revenue) for GeoEye-2 and commissions, fees, discounts and
expenses incurred or accrued in connection with the issuance and purchase of the Securities and the
Floating Rate Senior Notes shall be excluded from the calculation thereof;



     (d) the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act;



     (e) the term “Affiliate Contract” means all Contracts between (i) the Company or any of its
subsidiaries, on one hand, and (ii) any of the Company’s or any of its subsidiaries’ respective
affiliates (other than the Company and its subsidiaries) on the other hand;



     (f) the term “Award Outside Date” has the meaning set forth in Section 5(a);



     (a) the term “Bid Disclosures” has the meaning set forth in Section 3(oo);



     (g) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City;



     (h) the term “Certificate of Designations” has the meaning set forth in the Preamble;



     (i) the term “Closing” has the meaning set forth in Section 2(a);



     (j) the term “Closing Date” has the meaning set forth in Section 2(a);



     (k) the term “Code” means the Internal Revenue Code of 1986, as amended;



     (l) the term “Commission” has the meaning set forth in the Preamble;



24









 





     (m) the term “Commitment Letter” means that certain letter agreement dated as of March 4, 2010
by and between the Company and the Purchaser;



     (n) the term “Common Stock” has the meaning as forth in the Preamble;



     (o) the term “Company” has the meaning set forth in the Preamble;



     (p) the term “Company IP Agreements” means all licenses of Intellectual Property (i) from the
Company or any of its subsidiaries to any third party, excluding licenses to customers and end
users granted in the ordinary course of business, and (ii) to the Company or any of its
subsidiaries from any third party;



     (q) the term “Company IT Agreements” means all agreements concerning the use of Company IT
Systems to which the Company or any of its subsidiaries is a party;



     (r) the term “Company IT Systems” means all IT Systems which are used or held for use in
connection with the operation of the Company’s business;



     (s) the term “Competitor” has the meaning set forth in Section 9;



     (t) the term “Computer Software” means any and all computer programs, including operating
system and applications software, implementations of algorithms, program interfaces, and databases
whether in source code or object code and all documentation, including user manuals, relating to
the foregoing;



     (u) the term “Contingent Obligations” has the meaning set forth in the Floating Rate Senior
Notes Indenture;



     (v) the term “Contracts” means contracts, leases, licenses, arrangements, notes, bonds,
mortgages, indentures, franchise agreements, instruments, commitments, undertakings and other
agreements and binding obligations (including any amendments and other modifications thereto),
whether written or oral, to which the Company or any of its subsidiary thereof is a party or by
which any of their respective businesses, properties or assets is bound as of the date hereof;



     (w) the term “Controlled Group” has the meaning set forth in Section 3(w);



     (x) the term “Conversion Price” has the meaning set forth in the Certificate of Designations;



     (y) the term “Conversion Shares” has the meaning set forth in the Preamble;



     (z) the term “Delivered Additional Information” means Additional Information provided by the
Company to the Purchaser or its Affiliates prior to March 4, 2010;



     (aa) the term “disclosure controls and procedures” has the meaning set forth in Section 3(x);



25









 





     (bb) the term “Enforceability Exceptions” has the meaning set forth in Section 3(i);



     (cc) the term “EnhancedView Imagery Acquisition Contract” means the EnhancedView Imagery
Acquisition Contract under the EnhancedView Imagery Acquisition Solicitation;



     (dd) the term “EnhancedView Imagery Acquisition Solicitation” means the “EnhancedView Imagery
Acquisition Program Solicitation” (solicitation number HM021009R0002);



     (ee) the term “Environmental Laws” has the meaning set forth in Section 3(v);



     (ff) the term “ERISA” has the meaning set forth in Section 3(w);



     (gg) the term “Exchange Act” means the Securities Exchange Act of 1934, as amended;



     (hh) the term “Filed SEC Documents” means the SEC Documents filed by the Company on or prior
to March 12, 2010, but excluding the disclosure in such SEC Documents that is predictive or
forward-looking in nature (including risk factors set forth under the heading “Risk Factors” or the
heading “Forward Looking Statements”);



     (ii) the term “Floating Rate Senior Notes” has the meaning set forth in Section 3(e).



     (jj) the term “Floating Rate Senior Notes Indenture” has the meaning set forth in Section
3(e);



     (kk) the term “GAAP” has the meaning set forth in Section 3(b);



     (ll) the term “GAO” has the meaning set forth in Section 4(g);



     (mm) the term “GeoEye-1” means the Company’s satellite of the same name first launched on
September 6, 2008;



     (nn) the term “GeoEye-2” means the Company’s proposed satellite of the same name to be placed
into service pursuant to the EnhancedView Imagery Acquisition Contract;



     (oo) the term “Governmental Authority” means any federal, national, international,
supranational, state, provincial, local or other government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal, or judicial or arbitral body
(including private arbitrators or arbitral panels to the extent empowered to issue binding
decisions), including the Principal Market;



     (pp) the term “Governmental Order” means any order, writ, judgment, injunction, decree,
stipulation, determination or award entered by or with any Governmental Authority;



26









 





     (qq) the term “IKONOS” means the Company’s satellite of the same name acquired in 2006 through
the acquisition of Space Imaging, Inc.;



     (rr) the terms “include,” “includes” or “including” when used in this Agreement shall be
deemed to be followed by the words “without limitation”;



     (ss) the term “Indebtedness” has the meaning set forth in the Floating Rate Senior Notes
Indenture;



     (tt) the term “Indemnified Person” has the meaning set forth in Section 7(b);



     (uu) the term “Indemnifying Person” has the meaning set forth in Section 7(b);



     (vv) the term “Initial Award Date” has the meaning set forth in the Preamble;



     (ww) the term “Intellectual Property” has the meaning set forth in Section 3(p);



     (xx) the term “internal control over financial reporting” has the meaning set forth in Section
3(y);



     (yy) the term “investment company” has the meaning set forth in Section 3(r);



     (zz) the term “Investment Company Act” has the meaning set forth in Section 3(r);



     (aaa) the term “IT Systems” means all Computer Software and all electronic data processing,
data communication lines, telecommunication lines, firmware, hardware, Internet websites and other
information technology equipment;



     (bbb) the term “Knowledge of the Company” means the best knowledge of each of Matt O’Connell,
Joseph Greeves, William Schuster, William Warren and Daniel Connors, after due inquiry of other
employees of the Company and its subsidiaries who, in such Person’s reasonable judgment, are
primarily responsible for the applicable matter, and the terms “to the Company’s Knowledge,” “Known
by the Company” and similar phrases and “Knowledge” of a specified officer each have a
corresponding meaning;



     (ccc) the term “Liens” has the meaning set forth in the Floating Rate Senior Notes Indenture;



     (ddd) the term “Litigation” has the meaning set forth in Section 3(m);



     (eee) the term “Material Adverse Effect” means, with respect to the Company, (i) any effect or
change that would have (or would reasonably be expected to have) a material adverse effect on the
business, results of operations, financial condition or prospects of the Company and its
subsidiaries, taken as a whole, including due to any casualty loss involving a satellite (whether
or not covered by insurance); provided that in no event would any of the following, alone or in
combination, be deemed to constitute, nor shall any of the following (including the effect of any
of the following) be taken into account in determining whether there has been or



27









 




will be, a “material adverse effect” on or in respect of the Company: (A) the irregularity
disclosed by the Company under cover to Form 8-K filed with the Commission on December 16, 2009,
(B) any change in GAAP or any interpretation thereof, (C) any change generally affecting the
economy as a whole, and (D) any failure of the Company to meet any projections or forecasts
(provided that the underlying cause of such failure shall not be excluded); or (ii) for the then
most recent trailing three-month period either revenue being less than $60,000,000 or Adjusted
EBITDA being less than $30,000,000;




     (fff) the term “Material Contracts” means all of the following Contracts to which the Company
or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or the
Company’s or any of its subsidiaries’ assets or properties are bound:




     (i) all Contracts with independent contractors or consultants involving the payment by
the Company or its subsidiaries of more than $5 million annually;




     (ii) any employment, severance, change in control, consulting or similar Contract
requiring payment by the Company or any of its subsidiary of a base annual compensation in
excess of $200,000;




     (iii) all Contracts for the purchase or sale of materials, supplies, equipment or
services (other than purchase orders), involving payment by or to the Company or its
subsidiaries of more than $10 million annually;




     (iv) all Contracts for the lease, sublease or license of real property (whether as
lessor, sublessor, lessee, sublessee, licensor, or licensee), involving payment by or to the
Company or its subsidiaries of more than $1 million annually based on 2008 base rent;




     (v) all Contracts relating to Indebtedness, in each case having an outstanding
principal amount in excess of $5 million, and all Contracts relating to Contingent
Obligations, in each case having an amount in excess of $5 million;




     (vi) all Contracts with any Governmental Authority involving total payments in excess
of $10 million;




     (vii) all material Company IP Agreements and all material Company IT Agreements;




     (viii) any Contract or Governmental Order containing (A) a covenant not to compete or
(B) any other restriction, in each case that materially impairs the ability of the Company
or any of its subsidiaries , or any affiliates of the Company or any of its subsidiaries to
engage in any line of business or to compete with any Person;




     (ix) any joint venture agreement, strategic alliance agreement, partnership agreement,
limited liability company agreement, stockholders agreement or voting agreement or other
similar co-ownership or joint management agreement involving a sharing of profits, losses,
costs or liabilities by the Company or it subsidiary with any other Person (other than the
Company or any of its subsidiary) or relating to any



28









 






ownership or equity interest of the Company or any of its subsidiary in any other
Person (other than the Company or any of its subsidiary), in each case that is (A) material
to the Company or any of its subsidiaries or (B) under which the Company reasonably expects
the Company and its subsidiaries to be required to make payments exceeding $5 million in the
aggregate after the date of this Agreement;




     (x) any Affiliate Contract (or series of related Affiliate Contracts) (other than
purchase orders) involving payment by or to the Company and its subsidiaries of more than
$250,000 annually;




     (xi) any other Contract, or group of related Contracts (other than purchase orders)
that is or would be required to be filed by any of the Company, with the Commission as a
“material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K
promulgated by the Commission);




     (xii) any Contract requiring the Company or any of its subsidiaries to indemnify or
hold harmless any Person whereby the Company is potentially responsible for indemnification
obligations in excess of $5 million; and




     (xiii) any outstanding written commitment to enter into any Contract of the type
described in subsections (i) through (xii) of this Section 13(fff);



     (ggg) the term “Money Laundering Laws” has the meaning set forth in Section 3(bb);



     (hhh) the term “multiemployer plan” has the meaning set forth in Section 3(w);



     (iii) the term “Non-Conforming Basis” has the meaning set forth in Section 4(g);



     (jjj) the term “OFAC” has the meaning set forth in Section 3(cc);



     (kkk) the term “OrbView-2” means the Company’s satellite of the same name that was launched in
August 1997;



     (lll) the term “Outside Date” has the meaning set forth in Section 5(q);



     (mmm) the term “Permitted Liens” has the meaning set forth in the Floating Rate Senior Notes
Indenture;



     (nnn) the term “Person” means an individual, a limited liability company, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization and a government or any
department or agency thereof;



     (ooo) the term “Plan” has the meaning set forth in Section 3(w);



     (ppp) the term “Principal Market” has the meaning set forth in Section 3(k);



     (qqq) the term “Purchaser” has the meaning set forth in the Preamble;



29









 





     (rrr) the term “QIB” has the meaning set forth in Section 1(b)(i);



     (sss) the term “Registrable Securities” has the meaning set forth in the Registration Rights
Agreement;



     (ttt) the term “Registration Rights Agreement” has the meaning set forth in the Preamble;



     (uuu) the term “reportable event” has the meaning set forth in Section 3(w);



     (vvv) the term “Sarbanes-Oxley Act” has the meaning set forth in Section 3(ll);



     (www) the term “Satellites” means GeoEye-1, IKONOS and OrbView-2;



     (xxx) the term “SEC Documents” means all reports, schedules, forms, statements and other
documents required to be filed by the Company with the Commission pursuant to the reporting
requirements of the Exchange Act and the rules and regulations of the Commission thereunder;



     (yyy) the term “Securities” has the meaning set forth in the Preamble;



     (zzz) the term “Securities Act” has the meaning set forth in the Preamble;



     (aaaa) the term “Senior Secured Notes” has the meaning set forth in Section 3(e);



     (bbbb) the term “Senior Secured Notes Indenture” has the meaning set forth in Section 3(e);



     (cccc) the term “Solvent” has the meaning set forth in Section 3(dd);



     (dddd) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act;
and



     (eeee) the term “Transaction Documents” has the meaning set forth in Section 3(f).



     14. Miscellaneous.



     (b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form
of telecommunication. Notices to the Purchaser shall be given to the Purchaser at c/o Cerberus
Capital Management, L.P., 22nd Floor, 299 Park Avenue, New York, New York 10171 (fax:
(212) 891-1540); Attention: Mark A. Neporent. Notices to the Company shall be given to them at
21700 Atlantic Boulevard, Dulles, Virginia 20166 (fax: (703) 450-9570); Attention: General Counsel.



     (c) Governing Law; Jurisdiction; Jury Trial. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by the



30









 




internal laws of the State of New York, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of New York. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law. Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.




     (d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.



     (e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.



     (f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.



     (g) Entire Agreement. This Agreement, the Transaction Documents and the Purchase Agreement
dated of even date herewith by and between the Company and the Purchaser for the purchase of the
Floating Rate Senior Notes (including all exhibits, annexes and schedules attached thereto)
constitute the entire agreement between the Company and the Purchaser with respect to the subject
matter hereof and thereof and supersedes all prior agreements and undertakings, both written and
oral, between the Company and the Purchaser with respect to the subject matter hereof and thereof,
and, for the avoidance of doubt, such agreements supersede the agreements and undertakings in the
Commitment Letter with respect to the issuance, purchase and sale of the Securities and the
Floating Rate Senior Notes except for the Company’s obligations under the paragraphs titled “Fees;
Expense Reimbursement”, “Syndication” and “Indemnification” and except as otherwise specifically
provided in any such agreement (including the Commitment Letter).








31









 









     If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.



	 	 	 	 	 
	 	Very truly yours,



GEOEYE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 	 	 
	 	 	CERBERUS SATELLITE LLC
	 
	 	 	 	 	 	 
	 	 	By:	 	Cerberus Series Four Holdings, LLC, its
	 	 	 	 	Managing Member
	 
	 	 	 	 	 	 
	 	 	By:	 	Cerberus Institutional Partners, L.P. -
	 	 	 	 	Series Four, its Managing Member
	 
	 	 	 	 	 	 
	 	 	By:	 	Cerberus Institutional Associates,
	 	 	 	 	L.L.C., its General Partner
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	   
	 

	 	 	 	Name:
	 	Mark A. Neporent
	 

	 	 	 	Title:
	 	Senior Managing Director







 











 





EXHIBIT A




CERTIFICATE OF DESIGNATIONS, PREFERENCES

AND RIGHTS OF SERIES A CONVERTIBLE PREFERRED STOCK

OF

GEOEYE, INC.




     GeoEye, Inc. (the “Company”), a corporation organized and existing under the General
Corporation Law of the State of Delaware (the “DGCL”), does hereby certify that, pursuant to
authority conferred upon the Board of Directors of the Company (the “Board”) by Article IV of the
Certificate of Incorporation of the Company, and pursuant to Section 151 of the DGCL, the Board of
Directors of the Company adopted resolutions (i) designating a series of the Company’s previously
authorized preferred stock, par value $0.01 per share, and (ii) providing for the designations,
preferences and relative, participating, optional or other rights, and the qualifications,
limitations or restrictions thereof, of [one hundred fifteen thousand (115,000)] [eighty thousand
(80,000)] shares of Series A Convertible Preferred Stock of the Company, as follows:



     RESOLVED, that the Company is authorized to issue [one hundred fifteen thousand (115,000)]
[eighty thousand (80,000)] shares of Series A Convertible Preferred Stock, par value $0.01 per
share (the “Preferred Shares”), which shall have the following powers, designations, preferences
and other special rights:



     (1) Preferred Dividends. The holders of the Preferred Shares (each, a “Holder” and
collectively, the “Holders”) shall be entitled to receive cumulative dividends (“Dividends”) at the
Dividend Rate payable on the Liquidation Preference of such Preferred Shares as of the applicable
Dividend Date (or, for the initial Dividend Period, as of the Initial Issuance Date). Dividends on
the Preferred Shares shall commence accruing on the Initial Issuance Date and shall be computed on
the basis of a 365-day year and actual days elapsed. Dividends shall be payable in arrears on
January 1, April 1, July 1, and October 1 (each, a “Dividend Date” and each such quarterly period
(or shorter period in the case of the first such period following the Initial Issuance Date) being
a “Dividend Period”) with the first Dividend Date
being [     ], 2010. If a Dividend Date is not a
Business Day, then the Dividend shall be payable on the Business Day immediately following such
Dividend Date. At the Company’s option, dividends may be declared and paid in cash out of funds
legally available therefor, when, as and if declared by the Company; provided that if Dividends are
not declared and paid in cash on any Dividend Date for the immediately preceding Dividend Period,
then such Dividend shall automatically accrue and be added to the Liquidation Preference as of such
Dividend Date, whether or not declared by the Board and whether or not in any Dividend Period or
Periods there shall be funds of the Company legally available for the payment of such Dividends.
On each Dividend Date, if the Company does not have current or accumulated “earnings and profits”
within the meaning of Sections 301 and 312 of the Internal Revenue Code of 1986, as amended,
through such Dividend Date, the Company shall not withhold any amount of the applicable Dividend in
respect of U.S. federal income tax.



     (2) Participation in Common Dividends. In addition to the Dividends provided in
Section 1, in the event of any dividend or distribution declared on or paid on the Common Stock
(other than a dividend or distribution in Common Shares that results in an adjustment under Section
3(e)(ii)), the Holders shall, as holders of Preferred Stock, be entitled to such dividends



 









 




paid and distributions made to the holders of Common Stock to the same extent as if such
Holders had converted the Preferred Shares into Common Stock (without regard to any limitations on
conversion herein (including Section 14) or elsewhere) and had held such shares of Common Stock on
the record date for such dividends and distributions. Payments under the preceding sentence shall
be made concurrently with the dividend or distribution to the holders of Common Stock.




     (3) Conversion of Preferred Shares. Preferred Shares shall be convertible into shares
of Common Stock on the terms and conditions set forth in this Section 3.




     (a) Holder’s Conversion Right. Subject to the provisions of Section
14, at any time or times on or after the Initial Issuance Date, any Holder shall be
entitled to convert any whole number of Preferred Shares, plus the amount of any
accrued but unpaid Dividends per Preferred Share, into fully paid and nonassessable
shares of Common Stock in accordance with Section 3(c) at the Conversion Rate.




     (b) Conversion. The number of shares of Common Stock issuable upon
conversion of each Preferred Share pursuant to Section 3(a) shall be determined
according to the following formula (the “Conversion Rate”):



Conversion Amount

Conversion Price




No fractional shares of Common Stock are to be issued upon the conversion of any
Preferred Share, but rather the number of shares of Common Stock to be issued shall
be rounded to the nearest whole number.




     (c) Mechanics of Conversion. The conversion of Preferred Shares shall
be conducted in the following manner:




     (i) Holder’s Delivery Requirements. To convert Preferred
Shares into shares of Common Stock on a date (a “Conversion Date”), the
Holder shall (A) transmit by facsimile (or otherwise deliver), for receipt
on or prior to 11:59 p.m., New York City Time, on such date, a copy of a
properly completed notice of conversion executed by the registered Holder of
the Preferred Shares subject to such conversion in the form attached hereto
as Exhibit I (the “Conversion Notice”) to the Company and the
Company’s designated transfer agent (the “Transfer Agent”) and (B) surrender
to a common carrier for delivery to the Company as soon as practicable
following such date the original certificates representing the Preferred
Shares being converted (or compliance with the procedures set forth in
Section 17) (the “Preferred Stock Certificates”).




     (ii) Company’s Response. Upon receipt by the Company of a
Conversion Notice, the Company shall (A) as soon as practicable, but in any
event within one (1) Trading Day, send, via facsimile, a confirmation of
receipt of such Conversion Notice to such Holder and the Transfer



 - 2 - 









 






Agent, which confirmation shall constitute an instruction to the
Transfer Agent to process such Conversion Notice in accordance with the
terms herein and (B) on or before the third (3rd) Trading Day
following the date of receipt by the Company of such Conversion Notice (the
“Share Delivery Date”), (X) provided the Transfer Agent is participating in
the The Depository Trust Company (“DTC”) Fast Automated Securities Transfer
Program, credit such aggregate number of shares of Common Stock to which the
Holder shall be entitled to the Holder’s or its designee’s balance account
with DTC through its Deposit Withdrawal Agent Commission system, or (Y) if
the Transfer Agent is not participating in the DTC Fast Automated Securities
Transfer Program, issue and deliver to the address as specified in the
Conversion Notice, a certificate, registered in the name of the Holder or
its designee, for the number of shares of Common Stock to which the Holder
shall be entitled. If the number of Preferred Shares represented by the
Preferred Stock Certificate(s) submitted for conversion is greater than the
number of Preferred Shares being converted, then the Company shall, as soon
as practicable and in no event later than three (3) Business Days after
receipt of the Preferred Stock Certificate(s) (the “Preferred Stock Delivery
Date”) and at its own expense, issue and deliver to the Holder a new
Preferred Stock Certificate representing the number of Preferred Shares not
converted. The Person or Persons entitled to receive the shares of Common
Stock issuable upon a conversion of Preferred Shares shall be treated for
all purposes as the record holder or holders of such shares of Common Stock
on the Conversion Date.




     (iii) Record Holder. The Person or Persons entitled to receive
the shares of Common Stock issuable upon a conversion of Preferred Shares
shall be treated for all purposes as the record holder or holders of such
shares of Common Stock on the Conversion Date.




     (iv) Company’s Failure to Timely Convert.




     (A) Cash Damages. If (x) within three (3) Trading Days
after the Company’s receipt of the facsimile copy of a Conversion
Notice the Company shall fail to credit a Holder’s balance account
with DTC or issue and deliver a certificate to such Holder for the
number of shares of Common Stock to which such Holder is entitled
upon such Holder’s conversion of Preferred Shares or (y) within three
(3) Trading Days of the Company’s receipt of a Preferred Stock
Certificate the Company shall fail to issue and deliver a new
Preferred Stock Certificate representing the number of Preferred
Shares to which such Holder is entitled pursuant to Section 3(c)(ii),
then in addition to all other available remedies which such holder
may pursue hereunder and under the Securities Purchase Agreement, the
Company shall pay additional damages to such Holder for each day
after the Share Delivery Date that such



 - 3 - 









 







conversion is not timely effected and/or each day after the
Preferred Stock Delivery Date that such Preferred Stock Certificate
is not delivered in an amount equal to one (1.0%) of the product of
(I) the sum of the number of shares of Common Stock not issued to the
Holder on or prior to the Share Delivery Date and to which such
Holder is entitled as set forth in the applicable Conversion Notice
and, in the event the Company has failed to deliver a new Preferred
Stock Certificate to the Holder on or prior to the Preferred Stock
Delivery Date, the number of shares of Common Stock issuable upon
conversion of the Preferred Shares represented by such Preferred
Stock Certificate as of the Preferred Stock Delivery Date and (II)
the Closing Sale Price of the Common Stock on the Share Delivery Date
in the case of the failure to deliver Common Stock, or the Preferred
Stock Delivery Date, in the case of failure to deliver a Preferred
Stock Certificate. If any such cash damages described above are not
paid when due in cash, then the amount of such cash damages shall
(unless the Required Holders shall have given notice to the Company
otherwise) automatically accrue and be added to the Liquidation
Preference as of such due date. Nothing herein shall limit a
Holder’s right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a
decree of specific performance and/or injunctive relief with respect
to the Company’s failure to timely deliver certificates representing
shares of Common Stock upon conversion of the Preferred Shares as
required pursuant to the terms hereof.




     (B) Void Conversion Notice. If for any reason a Holder
has not received all of the shares of Common Stock to which such
Holder is entitled prior to the fifth (5th) Trading Day
after the Share Delivery Date with respect to a conversion of
Preferred Shares, then the Holder, upon written notice to the
Company, with a copy to the Transfer Agent, may void its Conversion
Notice with respect to, and retain or have returned, as the case may
be, any Preferred Shares that have not been converted pursuant to
such Holder’s Conversion Notice; provided that the voiding of a
Holder’s Conversion Notice shall not effect the Company’s obligations
to make any payments which have accrued prior to the date of such
notice pursuant to Section 3(c)(iv)(A) or otherwise.




     (v) Pro Rata Conversion; Disputes. In the event the Company
receives a Conversion Notice from more than one Holder for the same
Conversion Date and the Company can convert some, but not all, of such
Preferred Shares, the Company shall convert from each Holder electing to
have Preferred Shares converted at such time a pro rata amount of such
Holder’s Preferred Shares submitted for conversion based on the number of
Preferred Shares submitted for conversion on such date by such Holder



 - 4 - 









 







relative to the number of Preferred Shares submitted for conversion on
such date. In the event of a dispute as to the number of shares of Common
Stock issuable to a Holder in connection with a conversion of Preferred
Shares, the Company shall issue to such Holder the number of shares of
Common Stock not in dispute and resolve such dispute in accordance with
Section 19.




     (vi) Book-Entry. Upon conversion of Preferred Shares in
accordance with the terms hereof, the Holder thereof shall be required to
physically surrender the certificate representing the Preferred Shares to
the Company. In the event some, but not all of the Preferred Shares
represented by a certificate physically surrendered are converted, the
Company shall issue and deliver to the Holder a new Preferred Stock
Certificate representing the number of Preferred Shares not converted as
required by Section 3(c)(ii). The Holder and the Company shall maintain
records showing the number of Preferred Shares so converted and the dates of
such conversions. In the event of any dispute or discrepancy, such records
of the Company establishing the number of Preferred Shares to which the
record holder is entitled shall be controlling and determinative in the
absence of manifest error and subject, if applicable to the procedures set
forth in Section 19. Each certificate for Preferred Shares shall bear the
following legend:




ANY TRANSFEREE OF THIS CERTIFICATE SHOULD CAREFULLY
REVIEW THE TERMS OF THE COMPANY’S CERTIFICATE OF
DESIGNATIONS RELATING TO THE PREFERRED SHARES
REPRESENTED BY THIS CERTIFICATE.




(d) Taxes.




     (i) Any and all payments made by the Company hereunder, including any
amounts received on a conversion or redemption of the Preferred Shares, must
be made by it without any Tax Deduction, unless required by law. If the
Company is required by applicable law to make a Tax Deduction (or in
connection therewith that there is a change in the applicable law with
respect to rate or the basis of such Tax Deduction), it must notify the
affected Holders promptly.




     (ii) If the Company is required by applicable law to make a Tax
Deduction, it must make the minimum Tax Deduction allowed by such applicable
law and must make any payment required in connection with that Tax Deduction
within the time allowed by such applicable law.




As soon as practicable after making a Tax Deduction or a payment required in
connection with a Tax Deduction, the Company must deliver



 - 5 - 









 







to the Holder any official receipt or form, if any, provided by or required
by the taxing authority to whom such Tax Deduction was paid.




     (iii) In addition, the Company agrees to pay in accordance with
applicable law any present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies that arise from any
payment made hereunder or in connection with the execution, delivery,
registration or performance of, or otherwise with respect to, the Preferred
Shares (“Other Taxes”). As soon as practicable after making a payment of
Other Taxes, the Company must deliver to such Holder any official receipt or
form, if any, provided by or required by the taxing authority to whom the
Tax Deduction was paid.




     (iv) The obligations of the Company under this Section 3(d) shall
survive any payment for the Preferred Shares and all other amounts payable
hereunder.




     (e) Adjustments to Conversion Price. The Conversion Price will be
subject to adjustment from time to time as provided in this Section 3(e).




     (i) Adjustment of Conversion Price upon Issuance of Common
Stock. If and whenever on or after the Effective Date, the Company
issues or sells, or in accordance with this Section 3(e)(i) is deemed to
have issued or sold, any shares of Common Stock (including the issuance or
sale of shares of Common Stock owned or held by or for the account of the
Company, but excluding Excluded Securities) for a consideration per share
(the “New Issuance Price”) less than a price (the “Applicable Price”) equal
to the Closing Sale Price in effect immediately prior to such issuance
(other than such issuances or sales pursuant to an underwritten public
offering for which the Applicable Price is less than such Closing Sale Price
solely on account of customary selling concessions and discounts) (the
foregoing a “Dilutive Issuance”), then immediately after such Dilutive
Issuance, the Conversion Price then in effect shall be reduced to an amount
equal to the product of (x) the Conversion Price in effect immediately prior
to such Dilutive Issuance and (y) the quotient of (1) the sum of (I) the
product of the Conversion Price in effect immediately prior to such Dilutive
Issuance and the number of shares of Common Stock Deemed Outstanding
immediately prior to such Dilutive Issuance and (II) the consideration, if
any, received by the Company from such Dilutive Issuance, divided by (2) the
sum of (I) the product of (x) the Conversion Price in effect immediately
prior to such Dilutive Issuance multiplied by (y) the number of shares of
Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance
plus (II) the product of (x) the number of shares of Common Stock sold in
such Dilutive Issuance or deemed to be outstanding pursuant to Sections
3(e)(i)(A) and 3(e)(i)(B) with respect to such Dilutive Issuance, as
applicable, and (y) the Applicable Price. For purposes of determining the



 - 6 - 









 







adjusted Conversion Price under this Section 3(e)(i), the following
shall be applicable:




     (A) Issuance of Options. If the Company in any manner
grants or sells any Options and the lowest price per share for which
one share of Common Stock is issuable upon the exercise of any such
Option or upon conversion or exchange or exercise of any Convertible
Securities issuable upon exercise of such Option is less than the
Applicable Price, then each such share of Common Stock underlying
such Option shall be deemed to be outstanding and to have been issued
and sold by the Company at the time of the granting or sale of such
Option for such price per share. For purposes of this Section
3(e)(i)(A), the “lowest price per share for which one share of Common
Stock is issuable upon the exercise of any such Option or upon
conversion or exchange or exercise of any Convertible Securities
issuable upon exercise of such Option” shall be equal to the sum of
the lowest amounts of consideration (if any) received or receivable
by the Company with respect to any one share of Common Stock upon
granting or sale of the Option, upon exercise of the Option and upon
conversion or exchange or exercise of any Convertible Security
issuable upon exercise of such Option. No further adjustment of the
Conversion Price shall be made upon the actual issuance of such share
of Common Stock or of such Convertible Securities upon the exercise
of such Options or upon the actual issuance of such Common Stock upon
conversion or exchange or exercise of such Convertible Securities.




     (B) Issuance of Convertible Securities. If the Company
in any manner issues or sells any Convertible Securities and the
lowest price per share for which one share of Common Stock is
issuable upon such conversion or exchange or exercise thereof is less
than the Applicable Price, then each such share of Common Stock
underlying such Convertible Securities shall be deemed to be
outstanding and to have been issued and sold by the Company at the
time of the issuance or sale of such Convertible Securities for such
price per share. For the purposes of this Section 3(e)(i)(B), the
“lowest price per share for which one share of Common Stock is
issuable upon such conversion or exchange or exercise” shall be equal
to the sum of the lowest amounts of consideration (if any) received
or receivable by the Company with respect to any one share of Common
Stock upon the issuance or sale of the Convertible Security and upon
the conversion or exchange or exercise of such Convertible Security.
No further adjustment of the Conversion Price shall be made upon the
actual issuance of such share of Common Stock upon conversion or
exchange or exercise of such Convertible Securities, and if any such
issue or sale of such Convertible Securities is made upon



 - 7 - 









 







exercise of any Options for which adjustment of the Conversion
Price had been or are to be made pursuant to other provisions of this
Section 3(e)(i), no further adjustment of the Conversion Price shall
be made by reason of such issue or sale.




     (C) Change in Option Price or Rate of Conversion. If
the purchase or exercise price provided for in any Options, the
additional consideration, if any, payable upon the issue, conversion,
exchange or exercise of any Convertible Securities, or the rate at
which any Convertible Securities are convertible into or exchangeable
or exercisable for Common Stock changes at any time, the Conversion
Price in effect at the time of such change shall be adjusted to the
Conversion Price which would have been in effect at such time had
such Options or Convertible Securities provided for such changed
purchase price, additional consideration or changed conversion rate,
as the case may be, at the time initially granted, issued or sold.
For purposes of this Section 3(e)(i)(C), if the terms of any Option
or Convertible Security that was outstanding as of the Effective Date
are changed in the manner described in the immediately preceding
sentence, then such Option or Convertible Security and the Common
Stock deemed issuable upon exercise, conversion or exchange thereof
shall be deemed to have been issued as of the date of such change.
No adjustment shall be made if such adjustment would result in an
increase of the Conversion Price then in effect.




     (D) Calculation of Consideration Received. In case any
Option is issued in connection with the issue or sale of other
securities of the Company, together comprising one integrated
transaction, (x) the Options will be deemed to have been issued for
the Black Scholes Value of such Options and (y) the other securities
issued or sold in such integrated transaction shall be deemed to have
been issued for the difference of (I) the aggregate consideration
received by the Company less (II) the Black Scholes Value of such
Options. If any Common Stock, Options or Convertible Securities are
issued or sold or deemed to have been issued or sold for cash, the
consideration received therefor will be deemed to be the net amount
received by the Company therefor. If any Common Stock, Options or
Convertible Securities are issued or sold for a consideration other
than cash, the amount of such consideration received by the Company
will be the fair value of such consideration, except where such
consideration consists of publicly traded securities, in which case
the amount of consideration received by the Company will be the
Closing Sale Price of such securities on the date of receipt of such
securities. If any Common Stock, Options or Convertible Securities
are issued to the owners of the non-surviving entity in connection
with any



 - 8 - 









 







merger in which the Company is the surviving entity, the amount
of consideration therefor will be deemed to be the fair value of such
portion of the net assets and business of the non-surviving entity as
is attributable to such Common Stock, Options or Convertible
Securities, as the case may be. The fair value of any consideration
other than cash or publicly traded securities will be determined
jointly by the Company and the Required Holders. If such parties are
unable to reach agreement within ten (10) days after the occurrence
of an event requiring valuation (the “Valuation Event”), the fair
value of such consideration will be determined in accordance with
Section 19.




     (E) Record Date. If the Company takes a record of the
holders of Common Stock for the purpose of entitling them (I) to
receive a dividend or other distribution payable in Common Stock,
Options or in Convertible Securities or (II) to subscribe for or
purchase Common Stock, Options or Convertible Securities, then such
record date will be deemed to be the date of the issue or sale of the
shares of Common Stock deemed to have been issued or sold upon the
declaration of such dividend or the making of such other distribution
or the date of the granting of such right of subscription or
purchase, as the case may be.




     (ii) Pro Rata Distributions Prior to Initial Issuance Date. If
the Company shall distribute to holders of Common Stock any assets
(including cash dividends or other dividends or notes, rights or warrants to
subscribe for or purchase any security other than the Common Stock) with a
record date for determining the holders entitled to such distribution at any
time after the Effective Date and prior to the Initial Issuance Date, then
in each such case the Conversion Price then in effect shall be reduced to an
amount equal to the product of (x) the Conversion Price then in effect
immediately prior to the record date fixed for determination of stockholders
entitled to receive such distribution and (y) the quotient of (I) the
Closing Sale Price on such record date less the then per share fair value at
such record date of the assets so distributed applicable to one outstanding
share of the Common Stock, divided by (II) the Closing Sale Price on such
record date. For purposes of this Section 3(e)(ii), fair value shall be
determined in accordance with Section 3(e)(i)(D).




     (iii) Adjustment of Conversion Price upon Subdivision or
Combination of Common Stock. If the Company at any time after the
Effective Date subdivides (by any stock split, stock dividend,
recapitalization or otherwise) its outstanding shares of Common Stock into a
greater number of shares, the Conversion Price and Conversion Floor Price in
effect immediately prior to such subdivision will be proportionately
reduced. If the Company at any time after the Effective Date combines (by
combination, reverse stock split or otherwise) its



 - 9 - 









 







outstanding shares of Common Stock into a smaller number of shares and
the Conversion Price and Conversion Floor Price in effect immediately prior
to such combination will be proportionately increased.




     (iv) Floor Price. Notwithstanding the foregoing, no adjustment
pursuant to Section 3(e)(i) or 3(e)(ii) shall cause the Conversion Price to
be less than $25.55, as such amount may be adjusted pursuant to Section
3(e)(iii) (the “Conversion Floor Price”). The limitations set forth in this
Section 3(e)(iv) shall no longer apply if the Company shall have sought and
obtained an affirmative vote of its stockholders in accordance with
applicable law and the rules and regulations of the Principal Market to
permit adjustments to the Conversion Price as set forth in this Certificate
of Designations without regard to the limitations set forth in this Section
3(e)(iv).




     (v) Events Prior to Initial Issuance Date; Other Events. With
respect to any events giving rise to an adjustment under the provision of
this Section 3(e) that occur after the Effective date and before the Initial
Issuance Date, the applicable adjustment shall be made effective on the
Initial Issuance Date. If any event occurs of the type contemplated by the
provisions of this Section 3(e) but not expressly provided for by such
provisions (including, without limitation, the granting of stock
appreciation rights, phantom stock rights or other rights with equity
features), then the Company’s Board of Directors will make an appropriate
adjustment in the Conversion Price so as to protect the rights of the
Holders; provided that no such adjustment will increase the Conversion Price
as otherwise determined pursuant to this Section 3(e).




(f) Notices.




     (i) Immediately upon any adjustment of the Conversion Price pursuant to
Section 3(e), the Company will give written notice thereof to each Holder,
setting forth in reasonable detail, and certifying, the calculation of such
adjustment. In the case of a dispute as to the determination of such
adjustment, then such dispute shall be resolved in accordance with the
procedures set forth in Section 19.




     (ii) The Company will give written notice to each Holder at least ten
(10) Business Days prior to the date on which the Company closes its books
or takes a record (I) with respect to any dividend or distribution upon the
Common Stock, (II) with respect to any pro rata subscription offer to
holders of Common Stock or (III) for determining rights to vote with respect
to any Fundamental Transaction or Liquidation Event, provided that such
information shall be made known to the public prior to or in conjunction
with such notice being provided to such Holder.



 - 10 - 









 






     (iii) The Company will also give written notice to each Holder at least
ten (10) Business Days prior to the date on which any Fundamental
Transaction or Liquidation Event will take place, provided that such
information shall be made known to the public prior to or in conjunction
with such notice being provided to such Holder.




(4) Redemption at the Option of the Company.




     (a) Option. If at any time after the sixth (6th) anniversary of the
Initial Issuance Date, (i) the Weighted Average Price of the Common Stock listed on
the Principal Market exceeds 175% of the Conversion Price then in effect for a
period of thirty (30) consecutive Trading Days immediately preceding the Company
Optional Redemption Notice Date and (ii) no Equity Conditions Failure has occurred,
the Company shall have the right to redeem at its option all, but not less than all,
of the Preferred Shares; provided, that (i) the Company may redeem less than
all of the Preferred Shares only upon written consent of the Required Holders and
(ii) the Company may not redeem any Preferred Shares that the Holders (x) are not
permitted to convert pursuant to Section 14, except to the extent the Initial Holder
is not permitted to convert pursuant to Section 14 due to the Initial Holder
acquiring Voting Stock or Common Stock after March 19, 2010 other than through the
Preferred Shares or the Common Stock issued or issuable upon conversion thereof
(e.g., as a result of adjustments pursuant to Section 3(e) or stock dividends in
which the Initial Holder participates pursuant to Section 2 and similar actions with
respect to the Common Stock) without the consent of the Company or (y) would not be
able to convert due to a failure by the Company to have sufficient authorized and
unissued shares of Common Stock reserved for issuance upon conversion of Preferred
Shares equal to the number of shares of Common Stock necessary to effect the
conversion at the Conversion Rate with respect to each Preferred Share called for
redemption (a “Company Optional Redemption”). Subject to the consent of the
Required Holders in the preceding sentence, in the event the Company redeems
pursuant to clause (i) or (ii) above less than all of the Preferred Shares held by
the Holders the Company shall redeem such Preferred Shares on a pro
rata basis determined by the aggregate number of shares of Preferred Stock
held by each Holder.




     (b) Redemption Price and Payment. The Preferred Shares to be redeemed
on the Company Optional Redemption Date pursuant to this Section 4 shall be redeemed
by the Company by paying for each such Preferred Share, in cash, out of any assets
of the Company legally available therefor, an amount equal to the Liquidation
Preference plus Accrued Dividends as of the Company Optional Redemption Date (the
“Redemption Price”).




     (c) Mechanics of Redemption. The Company may exercise its right to
require redemption under this Section 4 by delivering an irrevocable written notice
thereof by facsimile and overnight courier to all, but not less than all, of the
Holders (the “Company Optional Redemption Notice” and the date all of the Holders
received such notice is referred to as the “Company Optional



 - 11 - 









 







Redemption Notice Date”). To the extent the Company, subject to consent of the
Required Holders, did not redeem all of the Preferred Shares held by the Holders on
its initial distribution of the Company Optional Redemption Notice, the Company may
deliver an additional Company Optional Redemption Notice hereunder (subject to the
conditions set forth herein) and such additional Company Optional Redemption Notice
shall also be irrevocable. The Company Optional Redemption Notice shall (i) state
the date on which the Company Optional Redemption shall occur (the “Company Optional
Redemption Date”) which date shall not be less than thirty (30) Trading Days nor
more than sixty (60) Trading Days following the Company Optional Redemption Notice
Date, (ii) the Redemption Price, (iii) certify that there has been no Equity
Conditions Failure, (iv) certify that the Company has sufficient authorized and
unissued shares of Common Stock equal to the number of shares of Common Stock
necessary to effect the conversion at the Conversion Rate with respect to each
Preferred Share called for redemption and (v) confirm that such redemption shall
only apply with respect to such Preferred Shares that the Holders are permitted to
convert pursuant to Section 14. Notwithstanding anything to the contrary in this
Section 4, at any time prior to the date the Company Optional Redemption Price is
paid, in full, the Preferred Shares subject to redemption pursuant to a Company
Optional Redemption Notice may be converted, in whole or in part, by the Holders
into shares of Common Stock pursuant to Section 3.



     (5) Protective Redemption. Prior to any redemption of Preferred Shares pursuant to
paragraph (c) of Article IV of the Certificate of Incorporation (the “Protective Redemption
Provisions”), the Holders shall first be given no less than 20 Trading Days written notice prior to
the exercise of the Protective Redemption Provisions, the Preferred Shares subject to redemption
under the Protective Redemption Provisions may be converted, in whole or in part, by the Holder
into shares of Common Stock. To the extent the Board may elect under paragraph (c)(5) of the
Protective Redemption Provisions which Redeemable Holders (as such term is defined in the
Certificate of Incorporation) shall be subject to a Protective Redemption (as such term is defined
in the Certificate of Incorporation), the Board shall, except to the extent as may be prohibited by
applicable Law, first elect to redeem the Voting Stock of Redeemable Holders other than the holders
of Preferred Shares and Common Stock issued upon conversion thereof and only in the event that
after giving effect to such redemptions additional redemptions are still necessary to prevent the
loss of or to reinstate the applicable Licenses (as such term is defined in the Certificate of
Incorporation) subject to License Qualifications (as such term is defined in the Certificate of
Incorporation) which give rise to the redemptions may the Board thereafter elect to redeem the
Preferred Shares or Common Stock issued upon conversion thereof. In the event of any redemption of
Preferred Shares pursuant to the Protective Redemption Provisions, the fair market value of the
Preferred Shares determined under paragraph (c)(6) of the Protective Redemption Provisions shall,
at the election of the Required Holders, be determined pursuant to Section 19; provided that such
fair market value of the Preferred Shares shall be determined assuming that the Company makes all
redemptions necessary to prevent the loss of or to reinstate the applicable Licenses subject to
License Qualifications which give rise to the redemptions. In the event of any redemption of
Preferred Shares pursuant to the Protective Redemption Provisions, the Company shall pay the
redemption price in full in cash, and shall not use any election under paragraph (c)(7) of the
Protective Redemption Provisions to pay any portion of



 - 12 - 









 




the redemption price in notes. The foregoing rights are in addition to and not in
substitution of the rights of holders of Voting Stock set forth in the Protective Redemption
Provisions.




     (6) Change of Control. No sooner than thirty (30) Trading Days nor later than fifteen
(15) Trading Days prior to the consummation of a Change of Control, but not prior to the public
announcement of such Change of Control, the Company shall deliver written notice thereof via
facsimile and overnight courier to the Holders (a “Change of Control Notice”). At any time during
the period beginning after a Holder’s receipt of a Change of Control Notice and ending on the date
that is the later of (x) twenty (20) Trading Days after delivery of the Change of Control Notice
and (y) five (5) Trading Days after the consummation of such Change of Control, such Holder may
require the Company to redeem all or any portion of such Holder’s Preferred Shares by delivering
written notice thereof (“Change of Control Redemption Notice”) to the Company, which Change of
Control Redemption Notice shall indicate the Conversion Amount the Holder is electing to require
the Company to redeem. Any Preferred Shares subject to redemption pursuant to this Section 6 shall
be redeemed by the Company in cash at a price equal to the greater of (i) 115% of the Conversion
Amount being redeemed and (ii) (1) the product of (A) the Conversion Amount being redeemed
multiplied by (B) the quotient determined by dividing (I) the aggregate cash consideration and the
aggregate fair value of any non-cash consideration per share of Common Stock to be paid to the
holders of Common Stock upon consummation of the Change of Control (provided that (x) the fair
value of any such non-cash consideration consisting of publicly traded securities to be valued at
the greatest Closing Sale Price of such securities during the period commencing on the Trading Day
immediately prior to the public announcement of such Change of Control and ending as of the Trading
Day immediately prior to the consummation of such Change of Control and (y) fair value shall
otherwise be determined in accordance with Section 3(e)(i)(D)) by (II) the Conversion Price (the
"Change of Control Redemption Price”). The Company shall make payment of the Change of Control
Redemption Price concurrently with the consummation of such Change of Control if such a Change of
Control Redemption Notice is received prior to the consummation of such Change of Control and
within five (5) Trading Days after the Company’s receipt of such notice otherwise (the “Change of
Control Redemption Date”). Notwithstanding anything to the contrary in this Section 6, until the
Change of Control Redemption Price (together with any interest thereon) is paid in full, the
Conversion Amount submitted for redemption under this Section 6 may be converted, in whole or in
part, by the Holder into shares of Common Stock (or in the event the Conversion Date is after the
consummation of the Change of Control, such substitute securities as provided pursuant to Section
16). The parties hereto agree that in the event of the Company’s redemption of any of the
Preferred Shares under this Section 6, the Holder’s damages would be uncertain and difficult to
estimate because of the parties’ inability to predict future interest rates and the uncertainty of
the availability of a suitable substitute investment opportunity for the Holder. Accordingly, any
redemption premium due under this Section 6 is intended by the parties to be, and shall be deemed,
a reasonable estimate of the Holder’s actual loss of its investment opportunity and not as a
penalty. In the event that the Company does not pay the Change of Control Redemption Price on the
Change of Control Redemption Date, then the Holder shall have the right to void the redemption. If
the Company fails to pay the Change of Control Redemption Price in full when due in accordance with
this Section 6, the Company will pay interest thereon at a rate equal to the lesser of 18% per
annum or the maximum rate permitted by applicable law, accruing daily from such date until the
Change of Control Redemption Price, plus all such interest thereon, is paid in full.
Notwithstanding the



 - 13 - 









 




foregoing, in the event a Change of Control Notice is delivered pursuant to this Section 6 at
a time when the Company is restricted or prohibited (contractually or otherwise) from redeeming the
Preferred Shares subject to redemption pursuant to this Section 6, the Company will use its best
efforts to obtain the requisite consents to remove or obtain an exception or waiver to such
restrictions or prohibition. Nothing herein shall limit a Holder’s right to pursue any other
remedies available to it hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company’s failure to comply with
its obligations under this Section 6. In the event of a Private Cash Acquisition, the Required
Holders shall be deemed to have given a Change of Control Redemption Notice, provided that the
Company and acquiring entity, as applicable, have complied in all respects with the requirements of
the definition of “Private Cash Acquisition”.




     (7) Reservation of Shares.




     (a) The Company shall have sufficient authorized and unissued shares of Common Stock
for each of the Preferred Shares equal to 150% of the number of shares of Common Stock
necessary to effect the conversion at the Conversion Rate with respect to the Conversion
Amount of each such Preferred Share as of the Initial Issuance Date. The Company shall, so
long as any of the Preferred Shares are outstanding, take all action necessary to reserve
and keep available out of its authorized and unissued Common Stock, solely for the purpose
of effecting the conversions of the Preferred Shares, such number of shares of Common Stock
as shall from time to time be necessary to effect the conversion of all of the Preferred
Shares then outstanding; provided that at no time shall the number of shares of Common Stock
so reserved be less than 150% of the number of shares of Common Stock for which the
Preferred Shares are at any time convertible (without regard to any limitations on
conversion herein (including Section 14) or elsewhere) (the “Required Reserve Amount”). The
initial number of shares of Common Stock reserved for conversions of the Preferred Shares
and each increase in the number of shares so reserved shall be allocated pro rata among the
Holders based on the number of Preferred Shares held by each Holder at the time of issuance
of the Preferred Shares or increase in the number of reserved shares, as the case may be
(the “Authorized Share Allocation”). In the event a Holder shall sell or otherwise transfer
any of such Holder’s Preferred Shares, each transferee shall be allocated a pro rata portion
of the number of reserved shares of Common Stock reserved for such transferor. Any shares
of Common Stock reserved and allocated to any Person which ceases to hold any Preferred
Shares (other than pursuant to a transfer of Preferred Shares in accordance with the
immediately preceding sentence) shall be allocated to the remaining Holders of Preferred
Shares, pro rata based on the number of Preferred Shares then held by such Holders.




     (b) Insufficient Authorized Shares. If at any time while any of the Preferred
Shares remain outstanding the Company does not have a sufficient number of authorized and
unreserved shares of Common Stock to satisfy its obligation to reserve for issuance upon
conversion of the Preferred Shares at least a number of shares of Common Stock equal to the
Required Reserve Amount (an “Authorized Share Failure”), then the Company shall immediately
take all action necessary to increase the Company’s authorized shares of Common Stock to an
amount sufficient to allow the Company to reserve the Required Reserve Amount for the
Preferred Shares then outstanding. Without



 - 14 - 









 







limiting the generality of the foregoing sentence, as soon as practicable after the
date of the occurrence of an Authorized Share Failure, but in no event later than one
hundred-twenty (120) days after the occurrence of such Authorized Share Failure, the Company
shall hold a meeting of its stockholders for the approval of an increase in the number of
authorized shares of Common Stock. In connection with such meeting, the Company shall
provide each stockholder with a proxy statement and shall use its best efforts to solicit
its stockholders’ approval of such increase in authorized shares of Common Stock and to
cause its board of directors to recommend to the stockholders that they approve such
proposal.



          (8) Voting Rights. Subject to Section 14, each Holder shall be entitled to the whole
number of votes equal to the number of shares of Common Stock into which such Holder’s Preferred
Shares would be convertible on the record date for the vote or consent of stockholders, and shall
otherwise have voting rights and powers equal to the voting rights and powers of the Common Stock.
Each Holder shall be entitled to receive the same prior notice of any stockholders’ meeting as is
provided to the holders of Common Stock in accordance with the bylaws of the Company, as well as
prior notice of all stockholder actions to be taken by legally available means in lieu of a
meeting, and shall vote as a class with the holders of Common Stock as if they were a single class
of securities upon any matter submitted to a vote of stockholders, except those matters required by
law or by the terms hereof to be submitted to a class vote of the Holders of Preferred Shares, in
which case the Holders of Preferred Shares only shall vote as a separate class.



          (9) Observer Rights. Until the date, if any (the “Board Observer Termination Date”),
that the Initial Holder and its Affiliates do not have either beneficial ownership of not less than
fifty percent (50%) of the Preferred Shares (or an equivalent amount of Common Stock issued upon
conversion thereof) or beneficial ownership of Common Stock (including on account of ownership of
Preferred Shares or other instruments directly or indirectly convertible into or exchangeable or
exercisable for Common Stock) representing in the aggregate not less than 5% of the number of
shares of Common Stock outstanding at such time immediately after giving effect to such conversion
of such Preferred Shares or other instruments beneficially owned by the Initial Holder and its
Affiliates, the Initial Holder shall have the right to designate a board observer to the Board of
Directors of the Company, which observer shall be a U.S. citizen (who may be an employee or
consultant of the Initial Holder and its Affiliates). The rights of the Initial Holder under this
Section 9 shall terminate upon the Board Observer Termination Date. The Company shall invite the
board observer to attend all meetings of the Board of Directors in a nonvoting observer capacity
and, in this respect, shall give such board observer copies of all notices, minutes, consents, and
other materials that it provides to its directors at the same time and in the same manner as
provided to such directors; provided, however, that (i) such board observer shall agree to hold all
information so provided in confidence and trust to the same extent members of the Board of
Directors are required to do so and (ii) such board observer may, upon request of the Board of
Directors that includes an explanation of the basis of such request, be excluded solely from the
portion of a meeting of the Board of Directors during which the Board of Directors discusses or
deliberates regarding any agreements or transactions between the Initial Holder or any of its
Affiliates, on the one hand, and the Company or any of its Subsidiaries, on the other hand, that
would constitute, or would reasonably be expected to



 - 15 - 









 




constitute, a “transaction with related persons, promoters and certain control persons” under
Item 404 of Regulation S-K.




     (10) Board Representation. Until the date, if any (the “Board Member Termination
Date”), that the Initial Holder and its Affiliates do not have either beneficial ownership of not
less than fifty percent (50%) of the Preferred Shares (or an equivalent amount of Common Stock
issued upon conversion thereof) or beneficial ownership of Common Stock (including on account of
ownership of Preferred Shares or other instruments directly or indirectly convertible into or
exchangeable or exercisable for Common Stock) representing in the aggregate not less than seven and
one-half (7.5%) of the number of shares of Common Stock outstanding at such time immediately after
giving effect to such conversion of such Preferred Shares or other instruments beneficially owned
by the Initial Holder and its Affiliates, the Initial Holder shall have the right to designate one
member for appointment to the Board of Directors of the Company, which designee shall be a U.S.
citizen (who may be an employee or consultant of the Initial Holder and its Affiliates) who has
experience in the defense industry, whether as a governmental official or as an executive, director
or consultant to private companies in the defense sector. The rights of the Initial Holder under
this Section 10 shall terminate upon the Board Member Termination Date. The Company agrees to take
all actions necessary to ensure the appointment of any such designee (and any replacement designee,
as applicable) to the Board of Directors.



     (11) Approval Rights. In addition to any other rights provided by law, except where
the vote or written consent of the holders of a greater number of shares is required by law or by
another provision of the Certificate of Incorporation, the affirmative vote at a meeting duly
called for such purpose or the written consent without a meeting of the Required Holders, voting
together as a single class, shall be required before the Company may:




     (a) amend or repeal any provision of, or add any provision to, the Certificate
of Incorporation, this Certificate of Designation or the Company’s bylaws, or file
any articles of amendment, certificate of designations, preferences, limitations and
relative rights of any series of preferred stock, if such action would adversely
alter or change the preferences, rights, privileges or powers of, or restrictions
provided for the benefit of the Preferred Shares, regardless of whether any such
action shall be by means of amendment to the Certificate of Incorporation or by
merger, consolidation or otherwise;




     (b) increase or decrease (other than by conversion) the authorized number of
shares of Preferred Shares;




     (c) create or authorize (by reclassification or otherwise) any new class or
series of shares that has a preference over or is on a parity with the Preferred
Shares with respect to dividends or the distribution of assets on the liquidation,
dissolution or winding up of the Company;




     (d) purchase, repurchase or redeem any shares of Common Stock (other than
pursuant to equity incentive agreements with employees) or any other Capital Stock
of the Company of any class junior in rank to the Preferred Shares



 - 16 - 









 







in respect of the preferences as to distributions and payments on the
liquidation, dissolution and winding up of the Company;




     (e) effect any Liquidation Event;




     (f) declare or pay any dividend or make any other payment or distribution on
account of the Company’s Capital Stock of any class junior in rank to the Preferred
Shares in respect of the preferences as to distributions and payments on the
liquidation, dissolution and winding up of the Company, other than dividends with
respect to which the holders of Preferred Shares are entitled to participate
pursuant to Section 2;




     (g) take any action that would reasonably result in the suspension from trading
or failure of the Common Stock to be listed on an Eligible Market other than as the
result of a Private Cash Acquisition, unless pursuant to Section 16 the Preferred
Shares are convertible into publicly traded common stock (or their equivalent) of
the applicable Successor Entity in a Fundamental Transaction in lieu of the shares
of Common Stock (in which case from and after such date this clause (g) shall apply
to such publicly traded common stock (or their equivalent) of the applicable
Successor Entity in lieu of the Common Stock;




     (h) effect any Affiliate Transactions other than Permitted Affiliate
Transactions;




     (i) whether or not prohibited by the terms of the Preferred Shares, circumvent
a right of the Preferred Shares; and




     (j) enter into any contract, agreement, or understanding with respect any of
the foregoing.




(12) Reports and Other Information.




     (a) Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, or otherwise report on an
annual and quarterly basis on forms provided for such annual and quarterly reporting
pursuant to rules and regulations promulgated by the SEC, the Company shall either
file with the SEC, without cost to each Holder, the following information or comply
with Section 12(b) with respect thereto:




     (i) within 90 days after the end of each fiscal year, annual financial
information that would be required to be contained in a filing with the SEC
on Form 10-K if the Company were required to file such a form, including (i)
a “Management’s Discussion and Analysis of Financial Condition and Results
of Operations” and (ii) a report on the annual financial statements by the
Company’s certified independent accountants; and




 - 17 - 











 






     (ii) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year commencing with the first fiscal quarter
after the Initial Issuance Date, all quarterly information that would be
required to be contained in a filing with the SEC on Form 10-Q if the
Company were required to file such a form, including “Management’s
Discussion and Analysis of Financial Condition and Results of Operations”;




provided; however, that the Company shall not be so
obligated to file such reports with the SEC if the SEC does not permit such
filing, in which event the Company shall make available such information to
securities analysts and prospective investors upon request, in addition to
providing such information to the Holders.




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




     (b) Notwithstanding the foregoing, the Company’s delivery obligations described
in Section 12(a) shall be deemed to be satisfied by posting of the information and
reports referred to in clauses (i) and (ii) of Section 12(a) above on the Company’s
website or one maintained on its behalf for such purpose; provided, that the
Company shall use reasonable efforts to inform Holders of the availability of such
information and reports, which may be satisfied by, among other things, a press
release on any national business press release wire.



          (13) Principal Market Restrictions.





     (a) The Company shall not, and shall cause each of its Subsidiaries and
controlled Affiliates not to, take any action if the effect of such action would be,
in the absence of Section 3(e)(iv), to cause the Conversion Price to be reduced
below the Conversion Floor Price.




     (b) The Company shall not, and shall cause each of its Subsidiaries and
controlled Affiliates not to, issue, purchase, repurchase or redeem any Common Stock
or other Voting Stock or securities convertible or exercisable for or exchangeable
into Common Stock or Voting Stock that in the absence of Section 14 would result in
the Initial Holder of Preferred Shares (or any Group that includes such Initial
Holder) having (x) upon conversion of all such Initial Holder’s (or any Group that
includes such Initial Holder) Preferred Shares, beneficial ownership of in excess of
the Maximum Percentage of the number of shares of Common Stock outstanding at such
time immediately after giving effect to such conversion or (y) the right to exercise
voting rights in the Company in excess of the Maximum Percentage of the voting
rights in the Company outstanding at such time, assuming such exercise as being
equivalent to conversion; provided, that the limitation in clause (x) shall not be
applicable to the extent the Initial Holder has acquired Voting Stock or Common
Stock after March 19, 2010 other than through the Preferred Shares or the Common
Stock issued or



- 18 -









 







issuable upon conversion thereof (e.g., as a result of adjustments pursuant to
Section 3(e) or stock dividends in which the Initial Holder participates pursuant to
Section 2 and similar actions with respect to the Common Stock) without the consent
of the Company.



          (14) Limitations Relating to Beneficial Ownership. The Company shall not effect any
conversion of Preferred Shares, and no Holder shall have the right to convert any Preferred Shares,
to the extent that at such time after giving effect to such conversion, the beneficial owner of
such shares (or any Group that includes such beneficial owner) would have acquired, after giving
effect to such conversion of Preferred Shares, beneficial ownership of a number of shares of Common
Stock that exceeds 19.99% (“Maximum Percentage”) of the number of shares of Common Stock
outstanding at such time immediately after giving effect to such conversion. The Company shall not
give effect to any voting rights of the Preferred Shares, and any Holder shall not have the right
to exercise voting rights with respect to any Preferred Shares pursuant hereto, to the extent that
at such time giving effect to such voting rights would result in such Holder (or any Group that
includes such beneficial owner) being deemed to beneficially own in excess of the Maximum
Percentage of the number of shares of Common Stock outstanding at such time immediately after
giving effect to such exercise, assuming such exercise as being equivalent to conversion. For
purposes of the foregoing, the number of shares of Common Stock beneficially owned by a Person (or
any Group that includes such Person) shall include the number of shares of Common Stock issuable
upon conversion of the Preferred Shares with respect to which the determination of such sentence is
being made, but shall exclude the number of shares of Common Stock which would be issuable upon (A)
conversion of the remaining, nonconverted Preferred Shares beneficially owned by such Person (or
any Group that includes such Person) and (B) exercise or conversion of the unexercised or
unconverted portion of any other securities of the Company (including, without limitation, any
notes or warrants) subject to a limitation on conversion or exercise analogous to the limitation
contained in this Section beneficially owned by such Person (or any Group that includes such
Person). Except as set forth in the preceding sentence, beneficial ownership shall be calculated
in accordance with Section 13(d) of the Exchange Act. For any reason at any time, upon the written
request of any Holder, the Company shall within one (1) Business Day following the receipt of such
notice, confirm orally and in writing to any such Holder the number of shares of Common Stock then
outstanding. The limitations set forth in this Section 14 (x) shall no longer apply if the Company
shall have sought and obtained an affirmative vote of its stockholders in accordance with
applicable law and the rules and regulations of the Principal Market to permit the conversion and
voting of all of the Preferred Shares as set forth in this Certificate of Designations without
regard to the limitations set forth in this Section 14 and (y) shall not apply in the case of any
transaction in which immediately upon conversion the Preferred Shares a Holder transfers the Common
Stock into which such Preferred Shares are converted to a another Person (other than a member of a
Group that includes such Holder).




          (15) Liquidation. In the event of a Liquidation Event, the Holders shall be entitled
to receive in cash out of the assets of the Company, whether from capital or from earnings
available for distribution to its stockholders (the “Liquidation Funds”), before any amount shall
be paid to the holders of any of the Capital Stock of the Company of any class junior in rank to
the Preferred Shares in respect of the preferences as to distributions and payments on the
liquidation, dissolution and winding up of the Company, an amount per






- 19 -









 







Preferred Share equal to the Liquidation Preference plus Accrued Dividends; provided that, if
the Liquidation Funds are insufficient to pay the full amount due to the Holders and holders of
shares of other classes or series of preferred stock of the Company that are of equal rank with the
Preferred Shares as to payments of Liquidation Funds (the “Pari Passu Shares”), if any, then each
Holder and each holder of any such Pari Passu Shares shall receive a percentage of the Liquidation
Funds equal to the full amount of Liquidation Funds payable to such Holder as a liquidation
preference, in accordance with their respective Certificate of Designations, Preferences and
Rights, as a percentage of the full amount of Liquidation Funds payable to all holders of Preferred
Shares and Pari Passu Shares. After the foregoing distributions, the Holders shall be entitled, on
a pari passu basis with the holders of the Common Stock and treating for the purpose thereof all of
the Preferred Shares as having been converted into Common Stock pursuant to Section 3 (without
regard to any limitations on conversion herein (including Section 14) or elsewhere), to participate
in the distribution of any remaining assets of the Company to the holders of the outstanding Common
Stock. To the extent necessary, the Company shall cause such actions to be taken by any of its
Subsidiaries so as to enable, to the maximum extent permitted by law, the proceeds of a Liquidation
Event to be distributed to the Holders in accordance with this Section. All the preferential
amounts to be paid to the Holders under this Section shall be paid or set apart for payment before
the payment or setting apart for payment of any amount for, or the distribution of any Liquidation
Funds of the Company to the holders of shares of other classes or series of preferred stock of the
Company junior in rank to the Preferred Shares in connection with a Liquidation Event as to which
this Section applies. The purchase or redemption by the Company of stock of any class, in any
manner permitted by law, shall not, for the purposes hereof, be regarded as a Liquidation Event.




          (16) Assumption. The Company shall not enter into or be party to a Fundamental
Transaction unless the Successor Entity assumes in writing (with the purchase of at least a
majority of the outstanding shares of the Company’s Common Stock automatically constituting an
assumption in writing) all of the obligations of the Company under this Certificate of Designations
and the other Transaction Documents in accordance with the provisions of this Section 16 pursuant
to written agreements in form and substance reasonably satisfactory to the Required Holders and
approved by the Required Holders prior to such Fundamental Transaction, including (other than in
the case of a Private Cash Acquisition) agreements to deliver to each Holder of Preferred Shares in
exchange for such Preferred Shares a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Certificate of Designations
including, without limitation, having a liquidation preference and dividend rate equal to the
liquidation preference and dividend rate of the Preferred Shares held by such Holder and having
similar ranking to the Preferred Shares, and satisfactory to the Required Holders. Upon the
occurrence of any Fundamental Transaction, the Successor Entity shall succeed to, and be
substituted for (so that from and after the date of such Fundamental Transaction, the provisions of
this Certificate of Designations referring to the “Company” shall refer instead to the Successor
Entity), and may exercise every right and power of the Company and shall assume all of the
obligations of the Company under this Certificate of Designations with the same effect as if such
Successor Entity had been named as the Company herein. Other than in the case of a Private Cash
Acquisition, upon consummation of the Fundamental Transaction, the Successor Entity shall deliver
to the Holder confirmation that there shall be issued upon conversion of the Preferred Shares at
any time after the consummation of the Fundamental Transaction, in lieu of the shares of Common
Stock (or other securities, cash,






- 20 -









 







assets or other property) issuable upon the conversion of the Preferred Shares prior to such
Fundamental Transaction, such shares of publicly traded common stock (or their equivalent) of the
Successor Entity, as adjusted in accordance with the provisions of this Certificate of
Designations. The provisions of this Section 16 shall apply similarly and equally to successive
Fundamental Transactions and shall be applied without regard to any limitations on conversion of
the Preferred Shares herein (including Section 14) or elsewhere. A “Private Cash Acquisition”
shall mean a Fundamental Transaction of the type described in clauses (A), (C) or (D) (for the
avoidance of doubt, so long as clause (y) below is satisfied) of the definition of “Fundamental
Transaction” in the event that (x) the Company has complied in all respects with its obligations
under Section 6 with respect to such transaction and shall have paid the Change of Control
Redemption Price in full on or prior to the date of consummation of such Fundamental Transaction,
(y) pursuant to such transaction 100% of the Common Stock of the Company is acquired in exchange
for all-cash consideration by a third party that is not an Affiliate of the Company and (z) the
applicable Successor Entity does not have any shares of publicly traded common stock (or their
equivalent) into which the Preferred Shares would be convertible in lieu of the shares of Common
Stock pursuant to this Section 16 after the consummation of such Fundamental Transaction.




          (17) Ranking. All shares of Common Stock and any other classes of Capital Stock or
series of preferred stock established by the Company prior to or after the Effective Date shall be
of junior rank to all Preferred Shares with respect to the preferences as to dividends,
distributions and payments upon Liquidation Event. The rights of the shares of Common Stock shall
be subject to the preferences and relative rights of the Preferred Shares. In the event of the
merger or consolidation of the Company with or into another corporation, the Preferred Shares shall
maintain their relative powers, designations and preferences provided for herein (except that the
Preferred Shares may not be pari passu with, or junior to, any Capital Stock of the successor
entity) and no merger shall result inconsistent therewith.




          (18) Lost or Stolen Certificates. Upon receipt by the Company of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any Preferred Stock
Certificates representing the Preferred Shares, and, in the case of loss, theft or destruction, of
an indemnification undertaking by the Holder to the Company in customary form and, in the case of
mutilation, upon surrender and cancellation of the Preferred Stock Certificate(s), the Company
shall execute and deliver new preferred stock certificate(s); provided, however,
the Company shall not be obligated to re-issue preferred stock certificates if the Holder
contemporaneously requests the Company to convert such Preferred Shares into Common Stock.




          (19) Dispute Resolution. In the case of a dispute as to the Conversion Rate, the
Closing Sale Price or Weighted Average Price, or any adjustment pursuant to Section 3(e), the
Company shall instruct the Transfer Agent to issue to the Holder the number of shares of Common
Stock that is not disputed or take all such other required actions with respect to such matters to
the extent they are not disputed, and shall transmit an explanation of the disputed matters to the
Holder via facsimile within five (5) Business Days of receipt of such Holder’s Conversion Notice or
other applicable date of determination that a dispute exists. If such Holder and the Company are
unable to agree upon the disputed matter within five (5) Business Days of such explanation being
transmitted to the Holder, then the Company shall within two (2)






- 21 -









 







Business Days thereafter propose to the Holders via facsimile the investment bank or
appraiser, if applicable, referred to in clauses (B) and (C) below, and cooperate with the Holders
to promptly agree upon an investment bank or appraiser (or in each case if the Company’s proposal
is not approved by the Required Holders, within two (2) further Business Days propose an
alternative investment bank or appraiser). Within five (5) Business Days after (x) agreement with
the Required Holders on the investment bank or appraiser, if applicable, or (y) the explanation
referred to above being transmitted to the Holder the Company in the case of clause (A) below,
submit via facsimile (A) a disputed calculation of the Conversion Rate to the Company’s
independent, outside accountant or (B) a disputed Closing Sale Price or Weighted Average Price or
adjustment pursuant to Section 3(e) to an independent, reputable investment bank selected by the
Company and approved by the Required Holders or (C) a disputed valuation in connection with a
Valuation Event under Section 3(e)(i)(D) to an independent, reputable appraiser selected by the
Company and approved by the Required Holders. The Company shall cause, at the Company’s expense,
the accountant, investment bank or appraiser, as the case may be, to perform the determinations or
calculations and notify the Company and the Holders of the results as soon as practicable and in no
event later than five (5) Business Days from the time it receives the disputed determinations or
calculations (unless such accountant, investment bank or appraiser reasonably concludes that it
cannot make such determinations in that time period, in which case such time period shall be
extended to the extent mutually agreed between the Company and the Required Holders). Such
investment bank’s, accountant’s or appraiser’s determination or calculation, as the case may be,
shall be binding upon all parties absent error.




          (20) Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief.
The remedies provided in this Certificate of Designations shall be cumulative and in addition to
all other remedies available under this Certificate of Designations, at law or in equity (including
a decree of specific performance and/or other injunctive relief). No remedy contained herein shall
be deemed a waiver of compliance with the provisions giving rise to such remedy. Nothing herein
shall limit a Holder’s right to pursue actual damages for any failure by the Company to comply with
the terms of this Certificate of Designations. The Company covenants to each Holder that there
shall be no characterization concerning this instrument other than as expressly provided herein.
Amounts set forth or provided for herein with respect to payments, conversion and the like (and the
computation thereof) shall be the amounts to be received by the Holder thereof and shall not,
except as expressly provided herein, be subject to any other obligation of the Company (or the
performance thereof). The Company acknowledges that a breach by it of its obligations hereunder
will cause irreparable harm to the Holders and that the remedy at law for any such breach may be
inadequate. The Company therefore agrees that, in the event of any such breach or threatened
breach, the Holders shall be entitled, in addition to all other available remedies, to an
injunction restraining any breach, without the necessity of showing economic loss and without any
bond or other security being required.




          (21) Construction. This Certificate of Designations shall be deemed to be jointly
drafted by the Company and the Initial Holder and shall not be construed against any person as the
drafter hereof.




          (22) Failure or Indulgence Not Waiver. No failure or delay on the part of a Holder in
the exercise of any power, right or privilege hereunder shall operate as a waiver






- 22 -









 







thereof, nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or privilege.




          (23) Notice. Whenever notice or other communication is required to be given under
this Certificate of Designations, unless otherwise provided herein, such notice shall be given in
accordance with Section 12(a) of the Securities Purchase Agreement (provided that if the Preferred
Shares are not held by a Purchaser then substituting the words “holder of Securities” for the word
“Purchaser”).




          (24) Preferred Share Register. The Company shall maintain at its principal executive
offices (or such other office or agency of the Company as it may designate by notice to the
Holders), a register for the Preferred Shares, in which the Company shall record the name and
address of the persons in whose name the Preferred Shares have been issued, as well as the name and
address of each transferee. The Company may treat the person in whose name any Preferred Share is
registered on the register as the owner and holder thereof for all purposes, notwithstanding any
notice to the contrary, but in all events recognizing any properly made transfers.




          (25) Stockholder Matters. Any stockholder action, approval or consent required,
desired or otherwise sought by the Company pursuant to the rules and regulations of the applicable
Eligible Market, the DGCL, this Certificate of Designations or otherwise with respect to the
Preferred Shares may be effected by written consent of the Required Holders or at a duly called
meeting of the Company’s stockholders, all in accordance with the applicable rules and regulations
of the applicable Eligible Market and the DGCL. This provision is intended to comply with respect
to the Preferred Shares with the applicable sections of the DGCL permitting stockholder action,
approval and consent affected by written consent in lieu of a meeting.




          (26) Disclosure. Upon receipt or delivery by the Company of any notice in accordance
with the terms of this Certificate of Designations, unless the Company has in good faith determined
that the matters relating to such notice do not constitute material, nonpublic information relating
to the Company or its Subsidiaries, the Company shall within four (4) Business Days after any such
receipt or delivery publicly disclose such material, nonpublic information on a Current Report on
Form 8-K or otherwise, which disclosure shall be deemed to constitute notice to the Holders. In
the event that the Company believes that a notice contains material, nonpublic information relating
to the Company or its Subsidiaries, the Company shall so indicate to the Holders contemporaneously
with delivery of such notice, and in the absence of any such indication, the Holders shall be
allowed to presume that all matters relating to such notice do not constitute material, nonpublic
information relating to the Company or its Subsidiaries.




          (27) Further Assurances. Upon request of the Holders, the Company shall execute and
deliver such further instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purposes of this Certificate of Designation.




          (28) Certain Defined Terms. For purposes of this Certificate of Designations, the
following terms shall have the following meanings:







- 23 -









 









     (a) “Accrued Dividends” means the product of (x) the result of the following
formula: (Dividend Rate)(N/365) and (y) the Liquidation Preference




     (b) “Affiliate” has the meaning set forth in the meaning set forth in Rule 405
under the Securities Act, provided that for purposes of this Certificate of
Designations the Initial Holder shall be deemed not to be an Affiliate of the
Company.




     (c) “Affiliate Transaction” means any of the following by the Company or any of
its Subsidiaries: any payment to, or sale, lease, transfer or other disposition of
any of its properties or assets to, or purchase of any property or assets from, or
entering into or making or amending any transaction, contract, agreement,
understanding, loan, advance or guarantee with or for the benefit of, any Affiliate.




     (d) “Applicable Price” has the meaning set forth in Section 3(e)(i).




     (e) “Approved Stock Plan” means any employee benefit plan which has been
approved by the Board of Directors of the Company, pursuant to which the Company’s
securities may be issued to any employee, consultant, officer or director for
services provided to the Company.




     (f) “Authorized Share Allocation” has the meaning set forth in Section 7(a).




     (g) “Authorized Share Failure” has the meaning set forth in Section 7(b).




     (h) “Black Scholes Value” means the value of an Option based on the Black
Scholes Option Pricing Model obtained from the “OV” function on Bloomberg determined
as of the day immediately following the public announcement of the applicable
Dilutive Issuance and reflecting (i) a risk-free interest rate corresponding to the
U.S. Treasury rate for term of such Option, (ii) an expected volatility equal to the
greater of one hundred percent (100%) and the 100 day volatility obtained from the
HVT function on Bloomberg as of the day immediately following the public
announcement of the applicable Dilutive Issuance, (iii) the underlying price per
share used in such calculation shall be the New Issuance Price, and (iv) a 365 day
annualization factor.




     (i) “Bloomberg” means Bloomberg Financial Markets.




     (j) “Board” has the meaning set forth in the Preamble.




     (k) “Business Day” means any day other than Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized or required by law to
remain closed.



- 24 -









 






     (l) “Capital Stock” means: (A) in the case of a corporation, corporate stock;
(B) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(C) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and (D) any other interest or
participation that confers on a Person the right to receive a share of the profits
and losses of, or distributions of assets of, the issuing Person.




     (m) “Change of Control” means any Fundamental Transaction other than pursuant
to a migratory merger effected solely for the purpose of changing the jurisdiction
of incorporation of the Company.




     (n) “Change of Control Notice” has the meaning set forth in Section 6.




     (o) “Change of Control Redemption Date” has the meaning set forth in Section 6.




     (p) “Change of Control Redemption Notice” has the meaning set forth in Section
6.




     (q) “Change of Control Redemption Price” has the meaning set forth in Section
6.




     (r) “Closing Sale Price” means, for any security as of any date, the last
consolidated closing bid price, respectively, for such security on the Principal
Market, as confirmed by the Principal Market, or, if the Principal Market begins to
operate on an extended hours basis and does not designate the consolidated closing
bid price then the last bid price of such security prior to 4:00:00 p.m., New York
Time, as confirmed by the Principal Market, or, if the Principal Market is not the
principal securities exchange or trading market for such security the last bid price
of such security on the principal securities exchange or trading market where such
security is listed or traded as reported by Bloomberg, or if the foregoing do not
apply, the last bid price of such security in the over-the-counter market on the
electronic bulletin board for such security as reported by Bloomberg, or, if no last
bid price is reported for such security by Bloomberg, the average of the bid prices
of any market makers for such security as reported in the “pink sheets” by Pink
Sheets LLC (formerly the National Quotation Bureau, Inc.). If the Closing Sale
Price cannot be calculated for a security on a particular date on any of the
foregoing bases, the Closing Sale Price, as the case may be, of such security on
such date shall be the fair market value as mutually determined by the Company and
the Required Holders. If the Company and the Required Holders are unable to agree
upon the fair market value of such security, then such dispute shall be resolved
pursuant to Section 3(d)(iii). All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination or other similar
transaction during the applicable calculation period.



- 25 -









 






     (s) “Common Stock Deemed Outstanding” means, at any given time, the number of
shares of Common Stock actually outstanding at such time, plus the number of shares
of Common Stock deemed to be outstanding pursuant to Sections 3(e)(i)(A) and
3(e)(i)(B) hereof (regardless of whether the Options or Convertible Securities, as
applicable, are actually exercisable at such time) but excluding any shares of
Common Stock owned or held by or for the account of the Company or issuable upon
conversion of the Preferred Shares.




     (t) “Company” has the meaning set forth in the Preamble.




     (u) “Company Optional Redemption” has the meaning set forth in Section 4(a).




     (v) “Company Optional Redemption Date” has the meaning set forth in Section
4(c).




     (w) “Company Optional Redemption Notice” has the meaning set forth in Section
4(c).




     (x) “Company Optional Redemption Notice Date” has the meaning set forth in
Section 4(c).




     (y) “Common Stock” means any shares of any class of Capital Stock of the
Company that has no preference with respect to dividends or the distribution of
assets on the liquidation, dissolution or winding up of the Company and that is not
subject to redemption by the Company (other than pursuant to the Protective
Redemption Provisions). Subject to the provisions of Section 16, however, shares
issuable on conversion of the Preferred Shares shall include only shares of the
class designated as common stock, par value $0.01 per share, as of the Effective
Date or shares of any class or classes resulting from any reclassification or
reclassifications thereof and that have no preference with respect to dividends or
the distribution of assets on the liquidation, dissolution or winding up of the
Company and that is not subject to redemption by the Company (other than pursuant to
the Protective Redemption Provisions); provided that if at any time there shall be
more than one such resulting class, the shares of each such class then so issuable
on conversion shall be substantially in the proportion that the total number of
shares of such class resulting from all such reclassifications bears to the total
number of shares of all such classes resulting from all such reclassifications.




     (z) “Conversion Amount” means the sum of the Liquidation Preference plus the
amount of Accrued Dividends.




     (aa) “Conversion Date” has the meaning set forth in Section 3(c)(i).




     (bb) “Conversion Floor Price” has the meaning set forth in Section 3(e)(iv).



- 26 -









 






     (cc) “Conversion Notice” has the meaning set forth in Section 3(c)(i).




     (dd) “Conversion Price” means $[30.00], subject to adjustment as provided
herein.




     (ee) “Conversion Rate” has the meaning set forth in Section 3(b).




     (ff) “Convertible Securities” means any stock or securities (other than
Options) directly or indirectly convertible into or exchangeable or exercisable for
Common Stock.




     (gg) “DGCL” has the meaning set forth in the Preamble.




     (hh) “Dilutive Issuance” has the meaning set forth in Section 3(e)(i).




     (ii) “Dividends” has the meaning set forth in Section 1.




     (jj)“Dividend Date” has the meaning set forth in Section 1.




     (kk) “Dividend Period” has the meaning set forth in Section 1.




     (ll)“Dividend Rate” means five percent (5.0%) per annum.




     (mm) “DTC” has the meaning set forth in Section 3(c)(ii).




     (nn) “Effective Date” means March 4, 2010.




     (oo) “Eligible Market” means The New York Stock Exchange, Inc, NYSE AMEX
Equities, The NASDAQ Global Select Market, The NASDAQ Global Market or The NASDAQ
Capital Market.




     (pp) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.




     (qq) “Equity Conditions” means that each of the following conditions is
satisfied: (i) on each day during the period beginning thirty (30) Trading Days
prior to the applicable date of determination and ending on and including the
applicable date of determination (the “Equity Conditions Measuring Period”), either
(x) the Registration Statement (as defined in the Registration Rights Agreement, the
“Registration Statement”) filed pursuant to the Registration Rights Agreement shall
be effective and available for the resale of all of the Registrable Securities in
accordance with the terms of the Registration Rights Agreement and no Suspension (as
defined in the Registration Rights Agreement) shall have occurred during the Equity
Conditions Measuring Period or (y) all Common Stock issuable upon conversion of the
Preferred Shares shall be eligible for sale by the holder thereof without
restriction pursuant to Rule 144 and without the requirement to be in compliance
with Rule 144(c)(1) (or any successor thereto) promulgated under the Securities Act
and without the need for



- 27 -









 







registration under any applicable federal or state securities laws; (ii) on
each day during the Equity Conditions Measuring Period, the Common Stock is
designated for quotation on the Principal Market or any other Eligible Market and
shall not have been suspended from trading on such exchange or market nor shall
delisting or suspension by such exchange or market been threatened or pending either
(A) in writing by such exchange or market or (B) by falling below the then effective
minimum listing maintenance requirements of such exchange or market; (iii) during
the Equity Conditions Measuring Period, any applicable Preferred Shares to be
redeemed shall be convertible in full without regard to the restrictions set forth
in Section 14 hereof and the rules or regulations of the Principal Market or any
applicable Eligible Market; (iv) during the Equity Conditions Measuring Period,
there shall not have occurred the public announcement of a pending, proposed or
intended Fundamental Transaction which has not been abandoned, terminated or
consummated and publicly announced as such no later than 5 Trading Days prior to the
expiration of the Equity Conditions Measuring Period; and (v) approval of the Board
or holders of Common Stock shall have occurred, if necessary.




     (rr) “Equity Conditions Failure” means that on any day during the period
commencing ten (10) Trading Days prior to the applicable Company Optional Redemption
Notice Date through the applicable Company Optional Redemption Date the Equity
Conditions have not been satisfied (or waived in writing by the Holder).




     (ss) “Equity Conditions Measuring Period” has the meaning set forth in the
definition of “Equity Conditions.”




     (tt) “Excluded Securities” means any Common Stock issued or issuable or deemed
to be issued in accordance with Section 3(e) hereof by the Company: (A) in
connection with any Approved Stock Plan; (B) upon conversion of the Preferred
Shares; (C) upon conversion, exercise or exchange of any Options or Convertible
Securities which are outstanding on the day immediately preceding the Effective
Date, provided that such issuance of Common Stock upon exercise of such Options or
Convertible Securities is made pursuant to the terms of such Options or Convertible
Securities in effect on the date immediately preceding the Effective Date and such
Options or Convertible Securities are not amended, modified or changed on or after
the Effective Date; and (D) in connection with any subdivision, stock split, stock
dividend, recapitalization or similar transaction by the Company for which
adjustment is made pursuant to Section 3(e)(iii).




     (uu) “Fundamental Transaction” means that the Company shall (or in the case of
clause (F) any Person or Group, directly or indirectly, in one or more related
transactions, (A) consolidate or merge with or into (whether or not the Company is
the surviving corporation) another Person, or (B) sell, assign, transfer, convey or
otherwise dispose of all or substantially all of the properties or assets of the
Company to another Person, or (C) allow another Person or Persons



- 28 -









 







to make a purchase, tender or exchange offer that is accepted by the holders of
more than 50% of the outstanding shares of Voting Stock (not including any shares of
Voting Stock held by the Person or Persons making or party to, or associated or
Affiliated with the Person or Persons making or party to, such purchase, tender or
exchange offer), or (D) consummate a stock purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization,
spin-off or scheme of arrangement) with another Person whereby such other Person
acquires more than 50% of the outstanding shares of Voting Stock (not including any shares of Voting Stock held by the other Person or other Persons making or party to,
or associated or Affiliated with the other Persons making or party to, such stock
purchase agreement or other business combination), or (E) reorganize, recapitalize
or reclassify its Common Stock, or (F) is or shall become the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% of the
aggregate ordinary voting power represented by issued and outstanding Common Stock.




     (vv) “Group” has the meaning set forth in Section 13(d) of the Exchange Act.




     (ww) “Holder” has the meaning set forth in Section 1.




     (xx) “Initial Holder” means Cerberus Satellite LLC.




     (yy) “Initial Issuance Date” means the date of this Certificate of
Designations, which is [     ], 2010.




     (zz) “Liquidation Event” means the voluntary or involuntary liquidation,
dissolution or winding up of the Company or such Subsidiaries the assets of which
constitute all or substantially all of the assets of the business of the Company and
its Subsidiaries taken as a whole, in a single transaction or series of
transactions.




     (aaa) “Liquidation Funds” has the meaning set forth in Section 15.




     (bbb) “Liquidation Preference” means an amount equal to the Stated Value of a
Preferred Share plus all Dividends accrued and added to the Liquidation Preference
of such Preferred Share pursuant to Section 1.




     (ccc) “Maximum Percentage” has the meaning set forth in Section 14.




     (ddd) “N” means the number of days from, but excluding (i) the last Dividend
Date with respect to which dividends have been either paid in full by the Company in
cash or added to the Liquidation Preference on the applicable Preferred Share, or
(ii) the Initial Issuance Date if no Dividend Date has occurred.




     (eee) “New Issuance Price” has the meaning set forth in Section 3(e)(i).



- 29 -









 






     (fff) “Options” means any rights, warrants or options to subscribe for or
purchase Common Stock or Convertible Securities.




     (ggg) “Other Taxes” has the meaning set forth in Section 3(d)(iii).




     (hhh) “Parent Entity” of a Person means an entity that, directly or indirectly,
controls the applicable Person and whose common stock or equivalent equity security
is quoted or listed on an Eligible Market, or, if there is more than one such Person
or Parent Entity, the Person or Parent Entity with the largest public market
capitalization as of the date of consummation of the Fundamental Transaction.




     (iii) “Pari Passu Shares” has the meaning set forth in Section 15.




     (jjj) “Permitted Affiliate Transaction” means any of the following Affiliate
Transactions:




     (i) an Affiliate Transaction on terms that are not materially less
favorable, taken as a whole, to the Company or the relevant Subsidiary than
those that would have been obtained in a comparable transaction by the
Company or such Subsidiary with an unrelated Person on an arm’s-length
basis;




     (ii) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration equal to or less
than $5.0 million, an Affiliate Transaction approved by a responsible
officer of the Company;




     (iii) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $5.0
million but less than $25.0 million, an Affiliate Transaction for which the
Company’s Board of Directors adopts a resolution that such Affiliate
Transaction complies with this covenant and which has been approved by a
majority of the disinterested members, if any, of the Company’s Board of
Directors;




     (iv) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration equal to or in
excess of $25.0 million, an Affiliate Transaction in which the Company
receives a favorable opinion as to the fairness of such transaction or
series of related transactions to the Company or the relevant Subsidiary, as
the case may be, from a financial point of view from an independent
financial advisor to the Company and delivers the same to each Holder;




     (v) transactions between or among the Company and/or any of its
Subsidiaries or any entity that becomes a Subsidiary as a result of such
transaction, so long as such transactions are not otherwise prohibited by
this Certificate of Designations;



- 30 -









 






     (vi) the payment of reasonable and customary fees paid to, and
indemnities provided on behalf of, officers, directors, employees or
consultants of the Company or any Subsidiary;




     (vii) payments made in respect of, or performance under, any agreement
as in effect on the Effective Date or any amendment thereto (so long as any
such amendment is not less advantageous to the Holders in any material
respect than the original agreement as in effect on the Effective Date);




     (viii) transactions with a Person that is an Affiliate of the Company
solely because the Company owns, directly or through a Subsidiary, Capital
Stock in, or controls, such Person;




     (ix) any employment agreements, stock option plans and other
compensatory agreements entered into by the Company or any of its
Subsidiaries and which, in each case, are either in the ordinary course of
business or are approved by the Board of Directors of the Company in good
faith; and




     (x) any issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the Board
of Directors of the Company.




     (kkk) “Person” means an individual, a limited liability company, a partnership,
a joint venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.




     (lll) “Preferred Shares” has the meaning set forth in the Preamble.




     (mmm) “Principal Market” means The NASDAQ Global Market.




     (nnn) “Preferred Stock Certificates” has the meaning set forth in Section
3(c)(i).




     (ooo) “Preferred Stock Delivery Date” has the meaning set forth in Section
3(c)(ii).




     (ppp) “Private Cash Acquisition ” has the meaning set forth in Section 16.




     (qqq) “Protective Redemption Provisions” has the meaning set forth in Section
5.




     (rrr) “Redemption Price” has the meaning set forth in Section 4(b).



- 31 -









 






     (sss) “Registration Rights Agreement” means that certain registration rights
agreement with respect to the Preferred Shares by and among the Company and the
initial Holders of the Preferred Shares dated as of the Initial Issuance Date, as
such agreement may be amended from time to time as provided in such agreement.




     (ttt) “Registration Statement” has the meaning set forth in the definition of
“Equity Conditions”.




     (uuu) “Required Holders” means the Holders of Preferred Shares representing at
least a majority of the aggregate Preferred Shares then outstanding.




     (vvv) “Required Reserve Amount” has the meaning set forth in Section (7)(a).




     (www) “SEC” means the Securities and Exchange Commission.




     (xxx) “Securities Act” means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.




     (yyy) “Securities Purchase Agreement” means that certain securities purchase
agreement with respect to the Preferred Shares by and among the Company and the
initial Holders, dated as of March 19, 2010, as such agreement further may be
amended from time to time as provided in such agreement.




     (zzz) “Share Delivery Date” has the meaning set forth in Section 3(c)(ii).




     (aaaa) “Stated Value” means $1,000.




     (bbbb) “Subsidiary” means, with respect to any specified Person:




     (i) any corporation, association or other business entity, of which
more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the
other Subsidiaries of that Person (or a combination thereof); and




     (ii) any partnership, joint venture, limited liability company or
similar entity of which (x) more than 50% of the capital accounts,
distribution rights, total equity and voting interests or general or limited
partnership interests, as applicable, are owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person or a combination thereof whether in the form of membership, general,
special or limited partnership interests or otherwise and (y) such



- 32 -









 







Person or any Subsidiary of such Person is a controlling general
partner or otherwise controls such entity.




     (cccc) “Successor Entity” means the Person, which may be the Company, formed
by, resulting from or surviving any Fundamental Transaction or the Person with which
such Fundamental Transaction shall have been made, provided that if such Person is
not a publicly traded entity whose common stock or equivalent equity security is
quoted or listed for trading on an Eligible Market, Successor Entity shall mean such
Person’s Parent Entity.




     (dddd) “Tax” means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any related penalty or interest).




     (eeee) “Tax Deduction” means a deduction or withholding for or on account of
Tax from a payment under this Certificate of Designations.




     (ffff) “Trading Day” means any day on which the Common Stock is traded on the
Principal Market, or, if the Principal Market is not the principal trading market
for the Common Stock, then on the principal securities exchange or securities market
on which the shares of Common Stock are then traded; provided that “Trading Day”
shall not include any day on which the shares of Common Stock are scheduled to trade
on such exchange or market for less than 4.5 hours or any day that the shares of
Common Stock are suspended from trading during the final hour of trading on such
exchange or market (or if such exchange or market does not designate in advance the
closing time of trading on such exchange or market, then during the hour ending at
4:00:00 p.m., New York Time).




     (gggg) “Transfer Agent” has the meaning set forth in Section 3(c)(i).




     (hhhh) “Valuation Event” has the meaning set forth in Section 3(e)(i)(D).




     (iiii) “Voting Stock” of a Person means Capital Stock of such Person of the
class or classes pursuant to which the holders thereof have the general voting power
to elect, or the general power to appoint, at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not at
the time Capital Stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).




     (jjjj) “Weighted Average Price” means, for any security as of any date, the
dollar volume-weighted average price for such security on the applicable Eligible
Market during the period beginning at 9:30:01 a.m., New York City Time, and ending
at 4:00:00 p.m., New York City Time, as reported by Bloomberg through its “Volume at
Price” function or, if the foregoing does not apply, the dollar volume-weighted
average price of such security in the over-the-counter market on the electronic
bulletin board for such security during the period beginning at 9:30:01 a.m., New
York City Time, and ending at 4:00:00 p.m., New York City Time, as reported by
Bloomberg, or, if no dollar volume-weighted



- 33 -









 







average price is reported for such security by Bloomberg for such hours, the
average of the highest closing bid price and the lowest closing ask price of any of
the market makers for such security as reported in the “pink sheets” by Pink Sheets
LLC (formerly the National Quotation Bureau, Inc.). If the Weighted Average Price
cannot be calculated for such security on such date on any of the foregoing bases,
the Weighted Average Price of such security on such date shall be the fair market
value as mutually determined by the Company and the Required Holders. If the
Company and the Required Holders are unable to agree upon the fair market value of
the Common Stock, then such dispute shall be resolved pursuant to Section 3(d)(iii)
below with the term “Weighted Average Price” being substituted for the term “Closing
Sale Price.” All such determinations shall be appropriately adjusted for any stock
dividend, stock split or other similar transaction during such period.



* * * * *








- 34 -









 








     IN WITNESS WHEREOF, the Company has caused this Certificate of Designations to be signed by
[NAME], its [OFFICE], as of the ___day of ___, 2010.



	 	 	 	 	 
	 	GEOEYE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



- 36 -









 






	 	 	 	 	 



EXHIBIT I




GEOEYE, INC.



CONVERSION NOTICE



     Reference is made to the Certificate of Designations, Preferences and Rights of Series A
Convertible Preferred Stock of GeoEye, Inc. (the “Certificate of Designations”). In accordance
with and pursuant to the Certificate of Designations, the undersigned hereby elects to convert the
number of shares of Series A Convertible Preferred Stock, par value $0.01 per share (the “Preferred
Shares”), of GeoEye, Inc., a Delaware corporation (the “Company”), indicated below into shares of
Common Stock, par value $0.01 per share (the “Common Stock”), of the Company, as of the date
specified below.




	 	 	 	 	 
	 

	 	Date of Conversion:	 	 
	 

	 	 	 	 





	 	 	 	 	 
	 

	 	Number of Preferred Shares to be converted:	 	 
	 

	 	 	 	 





	 	 	 	 	 
	 

	 	Stock certificate no(s). of Preferred Shares to be converted:	 	 
	 

	 	 	 	 





	 	 	 	 	 
	 

	 	Tax ID Number (If applicable):	 	 
	 

	 	 	 	 





	 	 	 
	Please confirm the following information:
	 	 
	 

	 	 





	 	 	 	 	 
	 

	 	Conversion Price:	 	 
	 

	 	 	 	 





	 	 	 	 	 
	 

	 	Number of shares of Common Stock to be issued:	 	 
	 

	 	 	 	 





          Please issue the Common Stock into which the Preferred Shares are being converted in the
following name and to the following address:




	 	 	 	 	 
	 

	 	Issue to:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Address:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Telephone Number:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Facsimile Number:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Authorization:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





     Dated:



	 	 	 	 	 
	 

	 	Account Number (if electronic book entry transfer):	 	 
	 

	 	 	 	 





	 	 	 	 	 
	 

	 	Transaction Code Number (if electronic book entry transfer):	 	 
	 

	 	 	 	 





- 36 -









 






[NOTE TO HOLDER — THIS FORM MUST BE SENT CONCURRENTLY TO TRANSFER AGENT]






- 37 -









 








ACKNOWLEDGMENT




     The Company hereby acknowledges this Conversion Notice and hereby directs American Stock
Transfer and Trust Company to issue the above indicated number of shares of Common Stock in
accordance with the Irrevocable Transfer Agent Instructions dated ___, 2010 from the Company and
acknowledged and agreed to by American Stock Transfer and Trust Company.



	 	 	 	 	 
	 	GEOEYE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




- 38 -











 






EXHIBIT B




REGISTRATION RIGHTS AGREEMENT




     This REGISTRATION RIGHTS AGREEMENT dated [     ], 2010 (the “Agreement”) is entered into
by and among GeoEye, Inc., a Delaware corporation (the “Company”) and Cerberus Satellite LLC, a
Delaware limited liability company (the “Purchaser”).



     The Company and the Purchaser are parties to the Purchase Agreement dated March [     ], 2010
(the “Purchase Agreement”), which provides for the sale by the Company to the Purchaser of
[115,000] [80,000] shares of the Company’s Series A Convertible Preferred Stock, par value $0.01
per share (the “Preferred Shares”), which will, among other things, be convertible into shares of
the Company’s common stock, $0.01 par value per share (the “Common Stock”, as converted, the
“Conversion Shares”) in accordance with the terms of the Certificate of Designations, Preferences
and Rights of the Series A Convertible Preferred Stock, dated as of [     ], 2010 (the
“Certificate of Designations”). In connection with the purchase of the Preferred Shares by the
Purchaser, the Company has agreed to provide to the Purchaser and its direct and indirect
transferees the registration rights set forth in this Agreement. The execution and delivery of this
Agreement is a condition to the closing under the Purchase Agreement.



     In consideration of the foregoing, the parties hereto agree as follows:



     1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:



     “Additional Effective Date” means the date the Additional Registration Statement is declared
effective by the SEC.



     “Additional Effectiveness Deadline” means (i) in the event that the Registration Statement is
not subject to a review by the SEC pursuant to which the SEC issues comments, the date which is
sixty (60) calendar days after the earlier of the Additional Filing Date and the Additional Filing
Deadline or (ii) in the event that the Registration Statement is subject to a review by the SEC
pursuant to which the SEC issues comments, the date which is one hundred twenty (120) calendar days
after the earlier of the Additional Filing Date and the Additional Filing Deadline.



     “Additional Filing Date” means the date on which the Additional Registration Statement is
filed with the SEC.



     “Additional Filing Deadline” means if Cutback Shares are required to be included in the
Additional Registration Statement, the later of (i) the date sixty (60) days after the date
substantially all of the Registrable Securities registered under the immediately preceding
Registration Statement are sold and (ii) the date six (6) months from the Initial Effective Date or
the last Additional Effective Date, as applicable.



     “Additional Registrable Securities” means (i) any Cutback Shares not previously included on a
Registration Statement and (ii) any capital stock of the Company issued or issuable with respect to
the Preferred Shares, the Conversion Shares or the Cutback Shares, as applicable, as a result of
any stock split, stock dividend, recapitalization, exchange or similar event or otherwise, without
regard to any limitations on conversions and/or redemptions of the Preferred Shares.



1









 





     “Additional Registration Statement” means a registration statement or registration statements
of the Company filed under the Securities Act covering any Additional Registrable Securities.



     “Additional Required Registration Amount” means any Cutback Shares not previously included on
a Registration Statement, all subject to adjustment as provided in Section 2(h), without regard to
any limitations on conversion and/or redemption of the Preferred Shares.



     “Blue Sky Filing” shall have the meaning set forth in Section 6(a) hereof.



     “Business Day” shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed.



     “Certificate of Designations” shall have the meaning set forth in the preamble.



     “Closing Date” shall have the meaning set forth in the Purchase Agreement.



     “Common Stock” shall have the meaning set forth in the preamble.



     “Company” shall have the meaning set forth in the preamble and shall also include the
Company’s successors.



     “Conversion Shares” shall have the meaning set forth in the preamble.



     “Cutback Shares” means any of the Initial Required Registration Amount or the Additional
Required Registration Amount of Registrable Securities not included in all Registration Statements
previously declared effective hereunder as a result of a limitation on the maximum number of shares
of Common Stock of the Company permitted to be registered by the staff of the SEC pursuant to Rule
415. The number of Cutback Shares shall be allocated pro rata among the Holders.



     “EDGAR” shall have the meaning set forth in Section 3(a)(iv).



     “Effective Date” means the Initial Effective Date and the Additional Effective Date, as
applicable.



     “Effectiveness Deadline” means the Initial Effectiveness Deadline and the Additional
Effectiveness Deadline, as applicable.



     “Eligible Market” shall mean the Principal Market, The New York Stock Exchange, Inc., The NYSE
Amex Equities, The NASDAQ Capital Market or The NASDAQ Global Market.



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



     “Filing Deadline” means the Initial Filing Deadline, the Additional Filing Deadline, the
Underwritten Shelf Filing Deadline, as applicable.



     “Filing Failure” shall have the meaning set forth in Section 2(i) hereof.



2









 





     “Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405 under the
Securities Act) prepared by or on behalf of the Company or used or referred to by the Company in
connection with the sale of the Registrable Securities.



     “Holders” shall mean the Purchaser, for so long as it owns any Registrable Securities, and
each of its successors, assigns and direct and indirect transferees who become owners of
Registrable Securities.



     “Incidental Registration” shall have the meaning set forth in Section 2(d) hereof.



     “Incidental Registration Statement” means a registration statement of the Company which covers
the Registrable Securities requested to be included therein pursuant to the provisions of Section
2(d) and all amendments and supplements to such registration statement, including post-effective
amendments, in each case including the prospectus contained therein, all exhibits thereto and all
material incorporated by reference (or deemed to be incorporated by reference) therein..



     “Indemnified Person” shall have the meaning set forth in Section 6(c) hereof.



     “Indemnifying Person” shall have the meaning set forth in Section 6(c) hereof.



     “Initial Effective Date” means the date that the Initial Registration Statement has been
declared effective by the SEC.



     “Initial Effectiveness Deadline” means the date which is one hundred eighty (180) calendar
days after the Closing Date.



     “Initial Filing Deadline” means the date which is ninety (90) calendar days after the Closing
Date.



     “Initial Registrable Securities” means (i) the Conversion Shares issued or issuable upon
conversion of the Preferred Shares and (ii) any capital stock of the Company issued or issuable,
with respect to the Conversion Shares or the Preferred Shares as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise, without regard to any
limitations on conversion and/or redemption of the Preferred Shares.



     “Initial Registration Statement” means a registration statement or registration statements of the
Company filed under the Securities Act covering the Initial Registrable Securities.



     “Initial Required Registration Amount” means 150% of the number of Conversion Shares issued
and issuable pursuant to the Preferred Shares as of the Trading Day immediately preceding the
applicable date of determination, subject to adjustment as provided in Section 2(h), without regard
to any limitations on conversions and/or redemptions of the Preferred Shares.



     “Initiating Holders” means, with respect to a particular registration, the Holders who initiated
the Shelf Underwriting Request for such registration.



     “Inspector” shall have the meaning set forth in Section 3(a)(xiii) hereof.



3









 





     “Issuer Information” shall have the meaning set forth in Section 6(a) hereof.



     “Legal Counsel” shall have the meaning set forth in Section 2(f) hereof.



     “Maintenance Failure” shall have the meaning set forth in Section 2(i) hereof.



     “Majority Holders” shall mean the Holders of a majority of the outstanding Registrable
Securities; provided that whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, any Registrable Securities owned
directly or indirectly by the Company or any of its affiliates (other than the Purchaser and its
affiliates) shall not be counted in determining whether such consent or approval was given by the
Holders of such required percentage or amount.



     “Person” shall mean an individual, partnership, limited liability company, corporation, trust
or unincorporated organization, or a government or agency or political subdivision thereof.



     “Preferred Shares” shall have the meaning set forth in the preamble.



     “Principal Market” means The NASDAQ Global Select Market.



     “Prospectus” shall mean the prospectus included in, or, pursuant to the rules and
regulations of the Securities Act, deemed a part of, a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case including any document
incorporated by reference therein.



     “Purchase Agreement” shall have the meaning set forth in the preamble.



     “Purchaser” shall have the meaning set forth in the preamble.



     “Registrable Securities” shall mean the Initial Registrable Securities and the Additional
Registrable Securities; provided that the Securities shall cease to be Registrable
Securities (i) when a Registration Statement with respect to such Securities has become effective
under the Securities Act and such Securities have been exchanged or disposed of pursuant to such
Registration Statement, (ii) when such Securities have been sold pursuant to Rule 144 under the
Securities Act under circumstances in which any legend borne by the Securities relating to
restrictions on transferability thereof is removed or (iii) when such Securities cease to be
outstanding.



     “Registration Delay Payments” shall have the meaning set forth in Section 2(i) hereof.



     “Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company with this Agreement, including without limitation: (i) all SEC,
applicable Eligible Market or Financial Industry Regulatory Authority registration and filing fees,
(ii) all fees and expenses incurred in connection with compliance with state securities or blue sky
laws (including reasonable fees and disbursements of counsel for any Underwriters or



4









 




Holders in connection with blue sky qualification of any Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any Free Writing Prospectus and any
amendments or supplements thereto, any underwriting agreements, securities sales agreements or
other similar agreements and any other documents relating to the performance of and compliance with
this Agreement, (iv) (x) the fees and disbursements of counsel for the Company and (y) the fees and
disbursements of Legal Counsel, (v) the fees and disbursements of all independent public
accountants of the Company, including the expenses of any special audits or “comfort” letters
required by or incident to the performance of and compliance with this Agreement and (vi) the
expenses incurred in connection with making road show presentations and holding meetings with
potential investors to facilitate the distribution and sale of Registrable Securities which are
customarily borne by the Company, but excluding (x) fees and expenses of counsel to the
Underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders (other
than fees and expenses set forth in clause (iv) above) and (y) underwriting discounts and
commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition
of Registrable Securities by a Holder.




     “Registration Expenses Cap” shall have the meaning set forth in Section 2(j).



     “Registration Statement” shall mean any registration statement of the Company that covers any
of the Registrable Securities pursuant to the provisions of this Agreement and all amendments and
supplements to any such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any
document incorporated by reference therein.



     “Required Registration Amount” means either the Initial Required Registration Amount or the
Additional Required Registration Amount, as applicable.



     “Rule 144” shall have the meaning set forth in Section 5.



     “SEC” shall mean the United States Securities and Exchange Commission.



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



     “Shelf Underwriting Request” shall have the meaning set forth in Section 2(c)(I)(i).



     “Suspension” shall have the meaning set forth in Section 3(d).



     “Staff” shall mean the staff of the SEC.



     “Trading Day” means any day on which the Common Stock is traded on the Principal Market, or,
if the Principal Market is not the principal trading market for the Common Stock, then on the
principal securities exchange or securities market on which the Common Stock is then traded;
provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to
trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is
suspended from trading during the final hour of trading on such exchange or market (or if such
exchange or market does not designate in advance the closing time of trading on such exchange or
market, then during the hour ending at 4:00:00 p.m., New York time).



5









 





     “Underwriter” shall mean each of the investment banks and managers of an Underwritten Offering.



     “Underwritten Offering” shall mean an offering in which Registrable Securities are sold to an
Underwriter for reoffering to the public.



     “Underwritten Shelf Effectiveness Deadline” shall have the meaning set forth in Section
2(c)(I)(iv).



     “Underwritten Shelf Filing Deadline” means the date which is thirty (30) calendar days after a
Shelf Underwriting Request.



     “Underwritten Shelf Registration” shall have the meaning set forth in Section 2(c)(I)(i).



     “Underwritten Shelf Registration Statement” means a registration statement of the Company
which covers the Registrable Securities requested to be included therein pursuant to the provisions
of Section 2(c) and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the prospectus contained therein, all exhibits
thereto and all material incorporated by reference (or deemed to be incorporated by reference)
therein.



     “Withdrawn Registration” shall have the meaning set forth in Section 2(c)(I)(ii).



     “Withdrawn Request” shall have the meaning set forth in Section 2(c)(I)(ii).



     2. Registration Under the Securities Act.



          (a) Initial Mandatory Registration. The Company shall prepare, and, as soon as
practicable but in no event later than the Initial Filing Deadline, file with the SEC the Initial
Registration Statement on Form S-3 covering the resale of all of the Initial Registrable Securities
by the Holders as selling stockholders. In the event that Form S-3 is unavailable for such a
registration, the Company shall use Form S-1 or such other appropriate form, subject to the
provisions of Section 2(g). The Initial Registration Statement prepared pursuant hereto shall
register for resale by the Holders as selling stockholders at least the number of shares of Common
Stock equal to the Initial Required Registration Amount determined as of the date the Initial
Registration Statement is initially filed with the SEC, subject to adjustment as provided in
Section 2(h). The Initial Registration Statement shall contain (except if otherwise directed by
the Majority Holders) the “Selling Stockholders” and “Plan of Distribution”
sections in substantially the form attached hereto as Exhibit A. The Company shall use its
best efforts to have the Initial Registration Statement declared effective by the SEC as soon as
practicable, but in no event later than the Initial Effectiveness Deadline. By 9:30 a.m. New York
time on the Business Day following the Initial Effective Date, the Company shall file with the SEC
in accordance with Rule 424(b) under the Securities Act the final prospectus to be used in
connection with resales pursuant to such Initial Registration Statement.




     (b) Additional Mandatory Registrations. The Company shall prepare, and, as soon as
practicable but in no event later than the Additional Filing Deadline, file with the SEC an
Additional Registration Statement on Form S-3 covering the resale of all of the Additional



6









 




Registrable Securities not previously registered for resale by the Holders as selling
stockholders on an Additional Registration Statement hereunder. To the extent the Staff does not
permit the Additional Required Registration Amount to be registered on an Additional Registration
Statement, the Company shall file Additional Registration Statements successively trying to
register on each such Additional Registration Statement the maximum number of remaining Additional
Registrable Securities until the Additional Required Registration Amount has been registered with
the SEC. In the event that Form S-3 is unavailable for such a registration, the Company shall use
Form S-1 or such other appropriate form, subject to the provisions of Section 2(g). Each
Additional Registration Statement prepared pursuant hereto shall register for resale at least that
number of shares of Common Stock equal to the Additional Required Registration Amount determined as
of the date such Additional Registration Statement is initially filed with the SEC. Each
Additional Registration Statement shall contain (except if otherwise directed by the Majority
Holders) the “Selling Stockholders” and “Plan of Distribution” sections in
substantially the form attached hereto as Exhibit A. The Company shall use its best
efforts to have each Additional Registration Statement declared effective by the SEC as soon as
practicable, but in no event later than the Additional Effectiveness Deadline. By 9:30 a.m. New
York time on the Business Day following the Additional Effective Date, the Company shall file with
the SEC in accordance with Rule 424(b) under the Securities Act the final prospectus to be used in
connection with resales pursuant to such Additional Registration Statement.




     (c) Underwritten Shelf Registration.



          I. Right to Underwritten Shelf Registration.




               (i) Subject to the limitations set forth in Section 2(c)(III), at any time or from time to
time, the Majority Holders shall have the right to request (a “Shelf Underwriting Request”) in
writing that the Company file a post-effective amendment or prospectus supplement to the
Registration Statement(s) filed pursuant to Section 2(a) or Section 2(b) (or any other form of
Registration Statement as the Company deems appropriate) to effect a take down of the Registrable
Securities included in such Registration Statement(s) in the form of an Underwritten Offering; and
such Initiating Holders may require that all Persons (including other Holders) participating in
such registration sell their Registrable Securities to the Underwriters at the same price and on
the same terms of underwriting applicable to the Initiating Holders. The sole or managing
Underwriters and any additional investment bankers and managers to be used in connection with such
registration shall be selected by the Initiating Holders holding a majority of the Registrable
Securities for which registration was requested in the Shelf Underwriting Request, subject to the
approval of the Company (such approval not to be unreasonably withheld or delayed). Any
registration filed pursuant to this Section 2(c) shall be referred to herein as an “Underwritten
Shelf Registration”). In no event shall the Company be required to effect, in the aggregate, more
than two (2) Underwritten Shelf Registrations; provided, however, that such number
shall be increased to the extent the Company does not include, pursuant to Section 2(c)(II)
in what would otherwise be the final registration, the number of Registrable Securities required to
be registered; provided, further, that such number shall not include any
registration effected pursuant to this Section 2(c) because the SEC prohibits the Purchaser from
participating in a Registration Statement filed pursuant to Section 2(a) or Section 2(b) as a
selling stockholder (by requiring the Purchaser to be named in such Registration Statement(s) as an
underwriter, or otherwise).



7









 





                    (1) Each Shelf Underwriting Request shall specify the amount of Registrable Securities
intended to be disposed of by such Holders and the intended method of disposition thereof.



                    (2) As promptly as practicable, but no later than five (5) Business Days after receipt of a
Shelf Underwriting Request, the Company shall give written notice of such requested registration to
all other Holders of Registrable Securities.



                    (3) Subject to the limitations set forth in Section 2(c)(II), the Company shall include in an
Underwritten Shelf Registration (i) the Registrable Securities intended to be disposed of by the
Initiating Holders and (ii) the Registrable Securities intended to be disposed of by any other
Holder which shall have made a written request (which request shall specify the amount of
Registrable Securities to be registered and the intended method of disposition thereof) to the
Company for inclusion thereof in such registration within ten (10) Business Days after the receipt
of such written notice from the Company.



                    (4) The Company, as expeditiously as possible, but in no event later than the Underwritten
Shelf Filing Deadline, shall cause to be filed with the SEC an Underwritten Shelf Registration
Statement providing for the registration under the Securities Act of the Registrable Securities
which the Company has been so requested to register by all such Holders, to the extent necessary to
permit the disposition of such Registrable Securities so to be registered in accordance with the
intended methods of disposition thereof specified in such Shelf Underwriting Request or further
requests.



                    (5) The Company shall use its best efforts to have such Underwritten Shelf Registration
Statement declared effective by the SEC as soon as practicable thereafter and to keep such
Underwritten Shelf Registration Statement continuously effective until such time as all of such
Registrable Securities have been disposed of in accordance with the intended methods of disposition
by the seller(s) thereof set forth in such Underwritten Shelf Registration Statement.



                    (6) The Company shall notify the Majority Holders in writing no later than ten (10) days
before filing any other registration statement as contemplated by Section 2(c)(V).



               (ii) A Shelf Underwriting Request may be withdrawn prior to the filing of the Underwritten
Shelf Statement by the Majority Holders of the Registrable Securities to be included in such
Registration Statement (a “Withdrawn Request”) and an Underwritten Shelf Registration Statement may
be withdrawn prior to the effectiveness thereof by the Majority Holders of the Registrable
Securities to be included in such Underwritten Shelf Registration Statement (a “Withdrawn
Registration”) and, for purposes of counting the maximum number of Underwritten Shelf Registrations
to which the Holders are entitled pursuant to the provisions of this Section 2(c), such withdrawals
shall be treated as an Underwritten Shelf Registration which shall have been effected pursuant to
this Section 2(c), unless the Majority Holders of Registrable Securities to be included in such
Registration Statement reimburse the Company for its reasonable out-of-pocket Registration Expenses
relating to the preparation and filing of such Underwritten Shelf Registration Statement within the
later of (i) ten (10) Business



8









 




Days of a Withdrawn Registration and (ii) ten (10) Business Days after the Company delivers to
the Majority Holders a statement detailing such reasonable out-of-pocket Registration Expenses;
provided; however, that if a Withdrawn Request or Withdrawn Registration is made
(A) because of a Material Adverse Effect (as defined in the Purchase Agreement) or an event
described in Section 8(a) of the Purchase Agreement occurs, or (B) because the sole or lead
managing Underwriter advises that the amount of Registrable Securities to be sold in such offering
be reduced pursuant to Section 2(c)(II) by more than 10% of the Registrable Securities to be
included in such Registration Statement, or (C) because of a Suspension pursuant to Section 3(d),
or (D) because the Company files another registration statement during the Post Shelf Underwritten
Request Period (as defined in Section 2(c)(V)), then such withdrawal shall not be treated as an
Underwritten Shelf Registration effected pursuant to this Section 2(c) (and shall not be counted
toward the number of Underwritten Shelf Registrations to which such Holders are entitled), and the
Company shall pay all Registration Expenses in connection therewith (subject to Section 2(j)). Any
Holder requesting inclusion in any Underwritten Shelf Registration may, at any time prior to the
date the Underwritten Shelf Registration Statement is declared effective (and for any reason),
revoke such request by delivering written notice to the Company revoking such requested inclusion,
subject in the case of a Withdrawn Request to the provisions set forth in this section.




                    (iii) The registration rights granted pursuant to the provisions of this Section 2(c) shall be
in addition to the registration rights granted pursuant to the other provisions of Section 2
hereof.



                    (iv) Notwithstanding anything to the contrary contained herein, the Company shall have the
right to delay its participation in, the filing of or the effectiveness of any Underwritten Shelf
Registration if in the good faith opinion of the Board of Directors of the Company, the Company’s
participation in an Underwritten Shelf Registration would be impractical or inadvisable at such
time, provided, however, that any such delay shall not exceed 45 days;
provided, further that any such delay will count towards the maximum number and
duration of any Suspension satisfying the requirements of Section 3(d) (such that (i) if the
Company files the Underwritten Shelf Registration Statement at any time after the Underwritten
Shelf Filing Deadline, each day after the Underwritten Shelf Filing Deadline shall count towards
the Suspension permitted by Section 3(d) and (ii) if the Underwritten Shelf Registration Statement
is declared effective by the SEC (x) in the event that the Registration Statement is not subject to
a review by the SEC pursuant to which the SEC issues comments, at any time after the date which is
sixty (60) calendar days after the Underwritten Shelf Filing Deadline or (y) in the event that the
Registration Statement is subject to a review by the SEC pursuant to which the SEC issues comments,
at any time after the date which is one hundred twenty (120) calendar days after the Underwritten
Shelf Filing Deadline (the “Underwritten Shelf Effectiveness Deadline”), each day after the
Underwritten Shelf Effectiveness Deadline shall count towards the Suspension permitted by Section
3(d)).



               II. Priority in Underwritten Shelf Registrations. If the sole or lead managing
Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing
(with a copy to each Holder requesting registration) on or before the date five (5) Business Days
prior to the date then scheduled for such offering that, in its opinion, the amount of Registrable
Securities, if any, requested to be included in such Underwritten Shelf



9









 




Registration exceeds the number which can be sold in such offering within a price range
reasonably acceptable to the Majority Holders of the Registrable Securities to be included in such
Registration Statement (such writing to state the basis of such opinion and the approximate number
of Registrable Securities which may be included in such offering), the Company shall include in
such Underwritten Shelf Registration to the extent of the number which the Company is so advised
may be included in such offering without such effect, the Registrable Securities requested to be
included in the Underwritten Shelf Registration by the Holders allocated, pro rata among the
Holders based on the number of Registrable Securities held by each Holder (on an as converted,
fully-diluted basis and without giving effect to any exercise or conversion limitations contained
in any such convertible or exercisable securities held by any such party). In the event the Company
shall not, by virtue of this Section 2(c)(II), include in any Underwritten Shelf Registration all
of the Registrable Securities of any Holder requesting to be included in such Underwritten Shelf
Registration, such Holder may, upon written notice to the Company given within five (5) Business
Days of the time such Holder first is notified of such matter, reduce the amount of Registrable
Securities it desires to have included in such Underwritten Shelf Registration, whereupon only the
Registrable Securities, if any, it desires to have included will be so included and the Holders not
so reducing shall be entitled to a corresponding increase in the amount of Registrable Securities
to be included in such Underwritten Shelf Registration.




          III. Limitations on Registrations. In no event shall the Company be required to effect
an Underwritten Shelf Registration unless the reasonably anticipated aggregate offering price to
the public of all Registrable Securities for which registration has been requested by Holders, will
be at least $25,000,000 or, if the foregoing is not satisfied, all of the Registrable Securities
held by the Holders requiring registration are included in the Underwritten Shelf Registration; and




          IV. Effective Registration Statement; Suspension. An Underwritten Shelf Registration
Statement shall not be deemed to have become effective (and the related registration will not be
deemed to have been effected) (i) unless it has been declared effective by the SEC and remains
effective in compliance with the provisions of the Securities Act with respect to the disposition
of all Registrable Securities covered by such Underwritten Shelf Registration Statement, (ii) if
the offering of any Registrable Securities pursuant to such Underwritten Shelf Registration
Statement is interfered with by any stop order, injunction or other order or requirement of the SEC
or any other governmental agency or court, or (iii) if the conditions to closing specified in an
underwriting agreement to which the Company is a party are not satisfied other than by the sole
reason of any breach, failure or action by the Holders of Registrable Securities or are not
otherwise waived by the parties entitled to do so. The Underwritten Shelf Registration Statement
shall contain (except if otherwise directed by the Required Holders) the “Selling
Stockholder” and “Plan of Distribution” sections in substantially the form attached
hereto as Exhibit A. By 9:30 a.m. New York time on the second (2nd) Business
Day following any effective date of any Underwritten Shelf Registration Statement, the Company
shall file with the SEC in accordance with Rule 424 under the Securities Act the final prospectus
to be used in connection with sales pursuant to such Registration Statement. For the avoidance of
doubt, the requirement of the Company to file a final prospectus pursuant to the immediately
preceding sentence shall only apply to the extent any Holders are included in such Underwritten
Shelf Registration Statement.




10









 





          V. Other Registrations. During the period (i) beginning on the date of a Shelf
Underwriting Request and (ii) ending on the date that is 90 days after the date that an
Underwritten Shelf Registration Statement filed pursuant to such Shelf Underwriting Request has
been declared effective by the SEC or, if the Majority Holders of the Registrable Securities to be
included in such Registration Statement shall withdraw such Shelf Underwriting Request or such
Underwritten Shelf Registration Statement, on the date of such Withdrawn Request or such Withdrawn
Registration Statement (such period, the “Post Shelf Underwriting Request Period”), the Company
shall not, without consulting with the Majority Holders of the Registrable Securities to be or that
have been included in such Registration Statement in good faith regarding the timing thereof, file
a registration statement pertaining to any other securities of the Company (other than (i) a
registration relating solely to the sale of securities to participants in a Company employee stock
or similar plan on Form S-8, (ii) another Underwritten Shelf Registration Statement pursuant to the
terms of this Agreement, (iii) a registration statement pursuant to that certain Registration
Rights Agreement dated of even date herewith by and between the Company and the Purchaser regarding
the registration of the Company’s Floating Rate Senior Unsecured Notes due 2016, (iv) a
registration statement pursuant to that certain Registration Rights Agreement dated as of October
9, 2009 regarding the registration of the Company’s 9.625% Senior Secured Notes due 2015 or (v) any
registration of debt securities of the Company that are not convertible or exchangeable for equity
securities of the Company or any of its subsidiaries).




          VI. Information. The Company agrees to include in any such Registration Statement all
information which any selling Holder, upon advice of Legal Counsel, shall reasonably request.




     (d) Incidental Registration.



          I. Right to Include Registrable Securities.




          (i) If the Company at any time or from time to time proposes to register any of its securities
under the Securities Act (other than in a registration on Form S-4 or S-8 or any successor form to
such forms) whether or not pursuant to registration rights granted to other holders of its
securities and whether or not for sale for its own account, the Company shall deliver prompt
written notice (which notice shall be given at least ten (10) Business Days prior to such proposed
registration) to all Holders of Registrable Securities of its intention to undertake such
registration, describing in reasonable detail the proposed registration and method of distribution
(including, if known to the Company, the anticipated range of the proposed offering price, the
class and number of securities proposed to be registered and the distribution arrangements) and of
such Holders’ right to participate in such registration under this Section 2(d) as hereinafter
provided. Subject to the other provisions of this paragraph (i) and Section 2(d)(II), upon the
written request of any Holder made within twenty (20) calendar days after the receipt of such
written notice (which request shall specify the amount of Registrable Securities to be registered
and the intended method of disposition thereof), the Company shall effect the registration under
the Securities Act of all Registrable Securities requested by Holders to be so registered (an
“Incidental Registration”), to the extent requisite to permit the disposition (in accordance with
the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, by
inclusion of such Registrable Securities in the Registration Statement which covers




11









 




the securities which the Company proposes to register and shall cause such Registration
Statement to become and remain effective with respect to such Registrable Securities in accordance
with the registration procedures set forth in Section 3. If an Incidental Registration involves an
Underwritten Offering, immediately upon notification to the Company from the Underwriter of the
price at which such securities are to be sold, the Company shall so advise each participating
Holder. The Holders requesting inclusion in an Incidental Registration may, at any time prior to
the Incidental Registration Statement is declared effective by the SEC (and for any reason), revoke
such request by delivering written notice to the Company revoking such requested inclusion.




          (ii) If at any time after giving written notice of its intention to register any securities
and prior to the date the Incidental Registration Statement is declared effective by the SEC filed
in connection with such registration, the Company shall determine for any reason not to register or
to delay registration of such securities, the Company may, at its election, give written notice of
such determination to each Holder and, thereupon, (A) in the case of a determination not to
register, the Company shall be relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay the Registration Expenses
incurred in connection therewith pursuant to Section 2(j)), without prejudice, however, to the
rights of Holders to cause such registration to be effected as a registration under the other
provisions of Section 2, and (B) in the case of a determination to delay such registration, the
Company shall be permitted to delay the registration of such Registrable Securities for the same
period as the delay in registering such other securities; provided, however, that
if such delay shall extend beyond 120 days from the date the Company received a request to include
Registrable Securities in such Incidental Registration, then the Company shall again give all
Holders the opportunity to participate therein and shall follow the notification procedures set
forth in the preceding paragraph. There is no limitation on the number of such Incidental
Registrations pursuant to this Section 2(d) which the Company is obligated to effect.




          (iii) The registration rights granted pursuant to the provisions of this Section 2(d) shall be
in addition to the registration rights granted pursuant to the other provisions of Section 2
hereof.




          II. Priority in Incidental Registration. If an Incidental Registration involves an
Underwritten Offering, and the sole or the lead managing Underwriter, as the case may be, of such
Underwritten Offering shall advise the Company in writing (with a copy to each Holder requesting
registration) on or before the date five (5) days prior to the date then scheduled for such
offering that, in its opinion, the amount of securities (including Registrable Securities)
requested to be included in such registration exceeds the amount which can be sold in such offering
without materially interfering with the successful marketing of the securities being offered (such
writing to state the basis of such opinion and the approximate number of such securities which may
be included in such offering without such effect), the Company shall include in such registration,
to the extent of the number which the Company is so advised may be included in such offering
without such effect, (i) in the case of a registration initiated by the Company, (A) first,
the securities that the Company proposes to register for its own account, (B) second, the
Registrable Securities requested to be included in such registration by the Holders, allocated
pro rata in proportion to the number of Registrable Securities requested to be
included




12









 




in such registration by each of them, and (C) third, other securities of the Company
to be registered on behalf of any other Person, and (ii) in the case of a registration initiated by
a Person other than the Company, (A) first, the securities proposed to be registered by any
Persons initiating such registration, allocated pro rata in proportion to the
number of securities requested to be included in such registration by each of them, and (B)
second, the Registrable Securities requested to be included in such registration by the
Holders, allocated pro rata in proportion to the number of securities requested to
be included in such registration by each of them; provided, however, that in the
event the Company will not, by virtue of this Section 2(d)(II), include in any such registration
all of the Registrable Securities of any Holder requested to be included in such registration, such
Holder may, upon written notice to the Company given within three (3) days of the time such Holder
first is notified of such matter, reduce the amount of Registrable Securities it desires to have
included in such registration, whereupon only the Registrable Securities, if any, it desires to
have included will be so included and the Holders not so reducing shall be entitled to a
corresponding increase in the amount of Registrable Securities to be included in such registration.




          III. Selection of Underwriters. If any Incidental Registration involves an
Underwritten Offering, the sole or managing Underwriter(s) and any additional investment bankers
and managers to be used in connection with such registration shall be chosen (i) in the case of a
registration initiated by the Company, by the Company in its sole discretion and (ii) in the case
of a registration initiated by a Person other than the Company or any Holder of Registrable
Securities, by such Person in its sole discretion.




     (e) Allocation of Registrable Securities. The initial number of Registrable
Securities included in any Registration Statement and any increase or decrease in the number of
Registrable Securities included therein shall be allocated pro rata among the Holders based on the
number of Registrable Securities held by each Holder at the time the Registration Statement
covering such initial number of Registrable Securities or increase or decrease thereof is declared
effective by the SEC. In the event that a Holder sells or otherwise transfers any of such Holder’s
Registrable Securities, each transferee shall be allocated a pro rata portion of the then remaining
number of Registrable Securities included in such Registration Statement for such transferor. Any
shares of Common Stock included in a Registration Statement and which remain allocated to any
Person which ceases to hold any Registrable Securities covered by such Registration Statement shall
be allocated to the remaining Holders, pro rata based on the number of Registrable Securities then
held by such Holders which are covered by such Registration Statement. In no event shall the
Company include any securities other than Registrable Securities on any Registration Statement
filed with the SEC pursuant to Section 2(a), Section 2(b) or Section 2(c) hereof without the prior
written consent of the Majority Holders.



     (f) Legal Counsel. The Majority Holders shall have the right to select one legal
counsel to review and oversee any registration pursuant to this Section 2 (“Legal Counsel”), which
shall be Schulte Roth & Zabel LLP or such other counsel as thereafter designated by the Majority
Holders. The Company shall reasonably cooperate with Legal Counsel and the Majority Holders shall
cause Legal Counsel to reasonably cooperate with the Company in performing the Company’s
obligations under this Agreement.



     (g) Ineligibility for Form S-3. In the event that Form S-3 is not available for the
registration



13









 




of the resale of Registrable Securities hereunder, the Company shall undertake to (i) register
the resale of the Registrable Securities on another appropriate form and (ii) register the
Registrable Securities on Form S-3 as soon as such form is available, provided that the Company
shall maintain the effectiveness of the Registration Statement then in effect until such time as a
Registration Statement on Form S-3 covering the Registrable Securities has been declared effective
by the SEC.




     (h) Sufficient Number of Shares Registered. In the event the number of shares
available under a Registration Statement filed pursuant to Section 2(a), Section 2(b) or Section
2(c) is insufficient to cover all of the Registrable Securities required to be covered by such
Registration Statement or a Holder’s allocated portion of the Registrable Securities pursuant to
Section 2(e), the Company shall amend the applicable Registration Statement, or file a new
Registration Statement (on the short form available therefor, if applicable), or both, so as to
cover at least the Required Registration Amount as of the Trading Day immediately preceding the
date of the filing of such amendment or new Registration Statement, in each case, as soon as
practicable, but in any event not later than fifteen (15) days after the necessity therefor arises.
The Company shall use its best efforts to cause such amendment and/or new Registration Statement
to become effective as soon as practicable following the filing thereof. For purposes of the
foregoing provision, the number of shares available under a Registration Statement shall be deemed
“insufficient to cover all of the Registrable Securities” if at any time the number of shares of
Common Stock available for resale under the Registration Statement is less than 80% of the Required
Registration Amount required to be included therein. The calculation set forth in the foregoing
sentence shall be made without regard to any limitations and/or redemption on the conversion of the
Preferred Shares and such calculation shall assume that the Preferred Shares are then convertible
into shares of Common Stock at the then prevailing Conversion Rate (as defined in the Certificate
of Designations).



     (i) Effect of Failure to File and Obtain and Maintain Effectiveness of Registration
Statement. If (i) a Registration Statement covering all of the Registrable Securities required
to be covered thereby and required to be filed by the Company pursuant to this Agreement is (A) not
filed with the SEC on or before the respective Filing Deadline (a “Filing Failure”) or (B) not
declared effective by the SEC on or before the respective Effectiveness Deadline, (an
“Effectiveness Failure”) or (ii) on any day after the respective Effective Date sales of all of the
Registrable Securities required to be included on such Registration Statement cannot be made (other
than during a Suspension allowed pursuant to Section 3(d)) pursuant to such Registration Statement
or otherwise (including, without limitation, because of the suspension of trading or any other
limitation imposed by an Eligible Market, a failure to keep such Registration Statement effective,
a failure to disclose such information as is necessary for sales to be made pursuant to such
Registration Statement or a failure to register a sufficient number of shares of Common Stock or to
maintain the listing of the Common Stock) (a “Maintenance Failure”) then, as partial relief for the
damages to any Holder by reason of any such delay in or reduction of its ability to sell the
underlying shares of Common Stock (which remedy shall not be exclusive of any other remedies
available at law or in equity, including, without limitation, specific performance), the Company
shall pay to each holder of Registrable Securities relating to such Registration Statement an
amount equal to one percent (1.0%) of the Liquidation Preference (as defined in the Certificate of
Designations) of such Holder’s Preferred Shares, which underlying shares of Common Stock are
included in such Registration Statement. At the Company’s option,



14









 




such amounts may be paid in cash; provided that if such amounts are not paid in cash on the
dates set forth in the following sentence, then such amounts shall automatically accrue and be
added to the Liquidation Preference as of such date. Such amounts shall be paid on each of the
following dates: (i) on the thirtieth day after the date of a Filing Failure and every thirtieth
day thereafter (pro rated for periods totaling less than thirty days) until such Filing Failure is
cured; (ii) on the thirtieth day after the date of an Effectiveness Failure and every thirtieth day
thereafter (pro rated for periods totaling less than thirty days) until such Effectiveness Failure
is cured; and (iii) on the thirtieth day after the date of a Maintenance Failure and every
thirtieth day thereafter (pro rated for periods totaling less than thirty days) until such
Maintenance Failure is cured. The payments to which a holder shall be entitled pursuant to this
Section 2(i) are referred to herein as “Registration Delay Payments.” Registration Delay Payments
shall be paid on the earlier of (I) the dates set forth above and (II) the third Business Day after
the event or failure giving rise to the Registration Delay Payments is cured. Notwithstanding the
foregoing, no Registration Delay Payments shall be due to a Holder pursuant to this Section 2(i) as
a result of and solely to the extent of (i) a Filing Failure or an Effectiveness Failure caused
solely by such Holder’s exercise of its rights pursuant to Section 3(a)(xii), (ii) an Effectiveness
Failure with respect to any Holder caused solely by such Holder’s exercise of its rights pursuant
to Section 3(e) or (ii) a Filing Failure caused solely by a Holder’s failure to provide to the
Company the information regarding such Holder that is required to be included in the applicable
Registration Statement.




     (j) The Company shall pay all Registration Expenses in connection with any registration
pursuant to Section 2(a) or Section 2(b) hereof. The Company shall pay all Registration Expenses in
connection with any registration pursuant to Section 2(c) or Section 2(d) hereof, provided that the
Company shall not be required to pay for any Registration Expenses incurred pursuant to Section
2(c) or Registration Expenses of the type described in clause (iv)(y) of the definition of
Registration Expenses incurred pursuant to Section 2(d) which in the aggregate exceed $750,000 (the
“Registration Expenses Cap”) (other than, for the avoidance of doubt, any Registration Expenses
incurred by the Company that are not reasonable out-of-pocket expenses). Each Holder shall pay all
underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating
to the sale or disposition of such Holder’s Registrable Securities pursuant to a Registration
Statement.



     (k) A Registration Statement pursuant to Section 2(a), Section 2(b), Section 2(c) or Section
2(d) hereof will not be deemed to have become effective unless it has been declared effective by
the SEC or is automatically effective upon filing with the SEC as provided by Rule 462 under the
Securities Act.



     (l) Without limiting the remedies available to the Purchaser and the Holders, the Company
acknowledges that any failure by the Company to comply with its obligations under Section 2 hereof
may result in material irreparable injury to the Purchaser or the Holders for which there is no
adequate remedy at law, that it will not be possible to measure damages for such injuries precisely
and that, in the event of any such failure, the Purchaser or any Holder may obtain such relief as
may be required to specifically enforce the Company’s obligations under Section 2(a), Section 2(b),
Section 2(c) and Section 2(d) hereof.



     3. Registration Procedures.



15









 





     (a) In connection with its obligations pursuant to Section 2(a), Section 2(b), Section 2(c),
Section 2(d), Section 2(g) or Section 2(h) hereof, the Company shall:



     (i) use its reasonable best efforts to cause such Registration Statement to become effective
and remain effective for the applicable period in accordance with Section 2 hereof;



     (ii) 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 effective for the
applicable period in accordance with Section 2 hereof and cause each Prospectus to be
supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant
to Rule 424(b) under the Securities Act;



     (iii) to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing
Prospectus that is required to be filed by the Company with the SEC in accordance with the
Securities Act and to retain any Free Writing Prospectus not required to be filed;



     (iv) furnish to each Holder of Registrable Securities, to Legal Counsel, to counsel for such
Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, preliminary prospectus or Free Writing
Prospectus, and any amendment or supplement thereto, as such Legal Counsel, Holder, counsel or
Underwriter may reasonably request in order to facilitate the sale or other disposition of the
Registrable Securities thereunder, provided, however, that any such document’s
availability on the SEC’s Electronic Data Gathering Analysis and Retrieval System database (or
any successor thereto) (“EDGAR”) shall satisfy such obligation; and the Company consents to the
use of such Prospectus, preliminary prospectus or such Free Writing Prospectus and any amendment
or supplement thereto in accordance with applicable law by each of the Holders of Registrable
Securities and any such Underwriters in connection with the offering and sale of the Registrable
Securities covered by and in the manner described in such Prospectus, preliminary prospectus or
such Free Writing Prospectus or any amendment or supplement thereto in accordance with applicable
law;



     (vi) use its reasonable best efforts to register or qualify the Registrable Securities under
all applicable state securities or blue sky laws of such jurisdictions as any Holder of
Registrable Securities covered by a Registration Statement shall reasonably request in writing by
the time the applicable Registration Statement becomes effective; cooperate with such Holders in
connection with any filings required to be made with the Financial Industry Regulatory Authority;
and do any and all other acts and things that may be reasonably necessary or advisable to enable
each Holder to complete the disposition in each such jurisdiction of the Registrable Securities
owned by such Holder; provided that the Company shall not be required to (1) qualify as a
foreign corporation or other entity or as a dealer in securities in any such jurisdiction where
it would not otherwise be required to so qualify, (2) file any general consent to service of
process in any such jurisdiction or (3) subject itself to taxation in any such jurisdiction if it
is not so subject; promptly notify Legal Counsel and each Holder who holds Registrable Securities
of the receipt by the Company of any notification with respect to the suspension of the
registration or qualification of any of the Registrable Securities for sale under applicable
state securities or blue sky laws of any jurisdiction or its receipt of notice of the initiation
or threat of any proceeding for such purpose;



16









 





     (vii) notify Legal Counsel and each Holder of Registrable Securities and counsel for such
Holders promptly and, if requested by any such Legal Counsel, Holder or counsel, confirm such
advice in writing (1) when a Registration Statement has become effective, when any post-effective
amendment thereto has been filed and becomes effective, when any Free Writing Prospectus has been
filed or any amendment or supplement to the Prospectus or any Free Writing Prospectus has been
filed, provided, however, that any such document’s availability on EDGAR shall
satisfy such obligation, (2) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement, Prospectus or any Free Writing Prospectus
or for additional information regarding a Holder after the Registration Statement has become
effective, (3) of the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of any proceedings for
that purpose, including the receipt by the Company of any notice of objection of the SEC to the
use of a Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act, (4) if, between the applicable Effective Date of a
Registration Statement and the closing of any sale of Registrable Securities covered thereby, the
representations and warranties of the Company contained in any underwriting agreement, securities
sales agreement or other similar agreement, if any, relating to an offering of such Registrable
Securities cease to be true and correct in all material respects or if the Company receives any
notification with respect to the suspension of the qualification of the Registrable Securities
for sale in any jurisdiction or the initiation of any proceeding for such purpose, (5) of the
happening of any event during the period a Registration Statement is effective that makes any
statement made in such Registration Statement or the related Prospectus or any Free Writing
Prospectus untrue in any material respect or that requires the making of any changes in such
Registration Statement or Prospectus or any Free Writing Prospectus in order to make the
statements therein not misleading and (6) of any determination by the Company that a
post-effective amendment to a Registration Statement or any amendment or supplement to the
Prospectus or any Free Writing Prospectus would be appropriate; for the avoidance of doubt, the
foregoing shall not require the Company to provide notice when the Company files a periodic
report pursuant to the Exchange Act;



     (viii) use its reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement or the resolution of any objection of the SEC pursuant
to Rule 401(g)(2), including by filing an amendment to such Registration Statement on the proper
form, at the earliest possible moment and provide immediate notice to each Holder of the
withdrawal of any such order or such resolution;



     (ix) furnish to each Holder of Registrable Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective amendment thereto (without
any documents incorporated therein by reference or exhibits thereto, unless requested);
provided, however, that any such document’s availability on EDGAR shall satisfy
such obligation;



     (x) cooperate with the Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and enable such Registrable Securities to be issued in such
denominations and registered in such names (to the extent that the delivery of securities is
consistent with the provisions of the Certificate of Designations) as such Holders may reasonably
request upon the later of (i) three (3) Business Days prior to the closing of any sale of
Registrable Securities and



17









 




(ii) three (3) Business Days following such written request and the delivery of the
appropriate documentation to the Company by such Holders of Registrable Securities;




     (xi) upon the occurrence of any event contemplated by Section 3(a)(vii)(5) hereof, use its
reasonable best efforts to prepare and file with the SEC a supplement or post-effective amendment
to such Registration Statement or the related Prospectus or any Free Writing Prospectus or any
document incorporated therein by reference so that, as thereafter publicly filed on EDGAR, or,
otherwise, as delivered to purchasers of the Registrable Securities, such Prospectus or Free
Writing Prospectus, as the case may be, will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and upon the Holders’ receipt of the
notice described in Section 3(a)(vii)(5), such Holders hereby agree to suspend use of the
Prospectus or any Free Writing Prospectus, as the case may be, until the Company has amended or
supplemented the Prospectus or the Free Writing Prospectus, as the case may be, to correct such
misstatement or omission;



     (xii) a reasonable time prior to the filing of any Registration Statement, any Prospectus,
any Free Writing Prospectus, any amendment to a Registration Statement or amendment or supplement
to a Prospectus or a Free Writing Prospectus or of any document that is to be incorporated by
reference into a Registration Statement, a Prospectus or a Free Writing Prospectus after initial
filing of a Registration Statement, provide copies of such document to the Majority Holders of
Registrable Securities included in such Registration Statement and Legal Counsel and make such of
the representatives of the Company as shall be reasonably requested by the Majority Holders of
Registrable Securities included in such Registration Statement or Legal Counsel available for
discussion of such document at reasonable times and upon reasonable prior notice; and the Company
shall not, at any time after initial filing of a Registration Statement, use or file any
Prospectus, any Free Writing Prospectus, any amendment of or supplement to a Registration
Statement or a Prospectus or a Free Writing Prospectus, or any document that is to be
incorporated by reference into a Registration Statement, a Prospectus or a Free Writing
Prospectus, of which the Majority Holders of Registrable Securities included in such Registration
Statement and Legal Counsel shall not have previously been advised and furnished a copy or to
which the Purchaser or Legal Counsel and the Holders of Registrable Securities included in such
Registration Statement or their counsel shall reasonably object;



     (xiii) make available for inspection by a representative of the Holders of the Registrable
Securities (an “Inspector”), any Underwriter participating in any disposition pursuant to such
Registration Statement, any attorneys and accountants designated by a majority of the Holders of
Registrable Securities to be included in such Registration and any attorneys and accountants
designated by such Underwriter, at reasonable times and in a reasonable manner, all pertinent
financial and other records, documents and properties of the Company and its subsidiaries, and
use reasonable efforts to cause the respective officers, directors and employees of the Company
to supply all information reasonably requested by any such Inspector, Underwriter, attorney or
accountant in connection with a Registration Statement, in each case, as is customary for similar
“due diligence” examinations in the context of underwritten offerings; provided that any
information that is provided by the Company to such Inspector, Underwriter, Holder, attorney or
accountant in connection with a Registration



18









 




Statement shall be kept confidential by such Persons, unless disclosure thereof is required
to be made in connection with a court, administrative or regulatory proceeding or required by
law, or such information is or has become available to the public generally through the Company
or through a third party without such Person’s involvement with such disclosure in breach of its
obligations of confidentiality to the Company, or the Company consents to the non-confidential
treatment of such information;




     (xiv) use its reasonable best efforts to cause all Registrable Securities to be listed on
any securities exchange or any automated quotation system on which the Common Stock of the
Company is then listed if requested by the Majority Holders, to the extent such Registrable
Securities satisfy applicable listing requirements;



     (xv) if reasonably requested by any Holder of Registrable Securities covered by a
Registration Statement, promptly include in a Prospectus supplement or post-effective amendment
such information with respect to such Holder as such Holder reasonably requests to be included
therein in accordance with the terms of this Agreement and make all required filings of such
Prospectus supplement or such post-effective amendment as soon as practicable after the Company’s
receipt of such notification of the matters to be so included in such filing;



     (xvi) enter into such customary agreements and take all such other actions in connection
therewith (including those requested by the Holders of a majority of the Registrable Securities
covered by the Registration Statement) in order to expedite or facilitate the disposition of such
Registrable Securities including, but not limited to, an Underwritten Offering and in such
connection, (1) to the extent possible, make such representations and warranties to the Holders and
any Underwriters of such Registrable Securities with respect to the business of the Company and its
subsidiaries and the Registration Statement, Prospectus, any Free Writing 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, (2) obtain opinions of counsel to the Company (which
counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Holders
and such Underwriters and their respective counsel) addressed to each selling Holder and
Underwriter of Registrable Securities, covering the matters customarily covered in opinions
requested in Underwritten Offerings, (3) obtain “comfort” letters from the independent certified
public accountants of the Company (and, if necessary, any other certified public accountant of any
subsidiary of the Company, or of any business acquired by the Company for which financial
statements and financial data are or are required to be included in the Registration Statement)
addressed to each Underwriter of Registrable Securities (including, without limitation, to any
Holder if such Holder is required to be identified as an underwriter pursuant to applicable
securities laws) and, at the request of the Company and subject to the approval of such independent
certified public accountants of the Company, such “comfort” letters may also be addressed to the
Company’s Board of Directors, such letters to be in customary form and covering matters of the type
customarily covered in “comfort” letters in connection with underwritten offerings, including but
not limited to financial information contained in any preliminary prospectus, Prospectus or Free
Writing Prospectus and (4) deliver such documents and certificates to each underwriter (including,
without limitation, to any Holder if such Holder is required to be identified as an underwriter
pursuant to applicable securities laws) as may be reasonably requested by the Holders of a majority
of the Registrable Securities



19









 





being sold or the Underwriters, and which are customarily delivered in underwritten offerings,
to evidence the continued validity of the representations and warranties of the Company made
pursuant to clause (1) above and to evidence compliance with conditions customarily contained in an
underwriting agreement;




     (xvii) use its reasonable best efforts to cause the Registrable Securities covered by a
Registration Statement to be registered with or approved by such other governmental agencies or
authorities as may be necessary to consummate the disposition of such Registrable Securities; and



     (xviii) unless available on EDGAR, make generally available to its security holders as soon as
practical, but not later than 90 days after the close of the period covered thereby, all
information contemplated by the provisions of Rule 158 under the Securities Act covering a 12-month
period beginning not later than the first day of the Company’s fiscal quarter next following the
applicable Effective Date of a Registration Statement.



          (b) The Company may require each Holder of Registrable Securities to furnish to the Company
such information regarding such Holder and the proposed disposition by such Holder of such
Registrable Securities as the Company may from time to time reasonably request in writing.




          (c) Each Holder of Registrable Securities covered in such Registration Statement agrees that,
upon receipt of any notice from the Company of the happening of any event of the kind described in
Section 3(a)(vii) (3) or 3(a)(vii)(5) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement until such Holder’s receipt of the
copies of the supplemented or amended Prospectus and any Free Writing Prospectus contemplated by
Section 3(a)(xi) hereof and, if so directed by the Company, such Holder will deliver to the Company
all copies in its possession, other than permanent file copies then in such Holder’s possession, of
the Prospectus and any Free Writing Prospectus covering such Registrable Securities that is current
at the time of receipt of such notice, and the Company may exclude from such registration the
Registrable Securities of any Holder that unreasonably fails to furnish such information within ten
(10) Business Days after receiving such request, without prejudice to that Holder’s right to
request participation in subsequent amendments to or filings of a Registration Statement.




          (d) Notwithstanding anything to the contrary herein, at any time after the date a Registration
Statement filed pursuant to this Agreement has been declared effective by the SEC, the Company may
delay the disclosure of material, non-public information concerning the Company the disclosure of
which at the time is not, in the good faith opinion of the Board of Directors of the Company and
its counsel, in the best interest of the Company and, in the opinion of counsel to the Company,
otherwise required. If the Company shall give any notice to suspend the disposition of Registrable
Securities pursuant to a Registration Statement by reason of the immediately preceding sentence,
the Company shall extend the period during which such Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the period from and including the
date of the giving of such notice to and including the date when the Holders of such Registrable
Securities shall have received copies of the supplemented or amended Prospectus or any Free Writing
Prospectus necessary to resume



20









 





such dispositions. The Company may give any such notice only twice during any 365-day period and
any such suspensions shall not exceed 45 days for each suspension and there shall not be more than
two suspensions in effect during any 365 day period, unless the Majority Holders consent in writing
to any such additional or longer suspension (each such suspension satisfying the requirements of
this Section 3(d), a “Suspension”).




          (e) Neither the Company nor any subsidiary or affiliate thereof shall identify any Holder as
an underwriter in any public disclosure or filing with the SEC or the Principal Market or any
Eligible Market and any Holder being deemed an underwriter by the SEC shall not relieve the Company
of any obligations it has under this Agreement.




          (f) The Holders included in a Registration Statement shall be required to notify the Company
in writing of any change in the information provided in writing to the Company expressly for use or
expressly for incorporation in a Registration Statement to the extent such change would cause such
Registration Statement to contain an untrue statement of a material fact or would cause such
Registration Statement to omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.




     4. Underwritten Offerings.



          (a) Requests for Underwritten Offerings. If requested by the sole or lead managing
Underwriter for any Underwritten Offering pursuant to Section 2(c), the Company shall enter into a
customary underwriting agreement with the Underwriters for such offering, such agreement to be
reasonably satisfactory in substance and form to the Majority Holders of the Registrable Securities
included in such Registration Statement and the Company.




          (b) Holders of Registrable Securities to be Parties to Underwriting Agreement. The
Holders of Registrable Securities to be distributed by Underwriters in an Underwritten Offering
contemplated by Section 2 shall be parties to the underwriting agreement between the Company and
such Underwriters and may, at such Holders’ option, require that any or all of the representations
and warranties by, and the other agreements on the part of, the Company to and for the benefit of
such Underwriters shall also be made to and for the benefit of such Holders of Registrable
Securities and that any or all of the conditions precedent to the obligations of such Underwriters
under such underwriting agreement be conditions precedent to the obligations of such Holders of
Registrable Securities; provided, however, that the Company shall not be required
to make any representations or warranties with respect to written information specifically provided
by a selling Holder for inclusion in the Registration Statement. No Holder shall be required to
make any representations or warranties to, or agreements with, the Company or the Underwriters
other than representations, warranties or agreements regarding such Holder, such Holder’s
Registrable Securities and such Holder’s intended method of disposition.




          (c) Participation in Underwritten Registration. Notwithstanding anything herein to
the contrary, no Person may participate in any Underwritten Offering hereunder unless such Person
(i) agrees to sell its securities on the same terms and conditions provided in any underwritten
arrangements approved by the Persons entitled hereunder to approve such arrangement and (ii)
accurately completes and executes in a timely manner all questionnaires, powers of attorney,
indemnities, custody agreements, underwriting agreements and other




21









 




documents customary for such an offering and reasonably required under the terms of such
underwriting arrangements.




     5. Reports Under the Exchange Act.



          With a view to making available to the Holders the benefits of Rule 144 promulgated under the
Securities Act or any other similar rule or regulation of the SEC that may at any time permit the
Holders to sell securities of the Company to the public without registration (“Rule 144”), the
Company agrees to:




               (a) make and keep public information available, as those terms are understood and defined in
Rule 144;



               (b) file with the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act so long as the Company remains subject to
such requirements and the filing of such reports and other documents is required for the applicable
provisions of Rule 144; and



               (c) furnish to each Holder so long as such Holder owns Registrable Securities, promptly upon
request, (i) a written statement by the Company, if true, that it has complied with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act, (ii) unless available on EDGAR,
a copy of the most recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as may be reasonably requested
to permit the Holders to sell such securities pursuant to Rule 144 without registration; provided
that the Holders shall accept certificates and opinions from the Company’s general counsel as
satisfying the Company’s requirement under this clause (iii) only to the extent such certificates
and opinions are acceptable to the Company’s transfer agent in order for the Company’s transfer
agent to transfer legend free securities.



     6. Indemnification and Contribution.



     (a) The Company agrees to indemnify and hold harmless the Purchaser and each Holder, their
respective affiliates, directors and officers and each Person, if any, who controls the Purchaser
or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other reasonable expenses incurred in connection with any suit, action
or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several,
that arise out of, or are based upon, (1) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (including any post-effective amendment
thereto) or in any filing made in connection with the qualification of the offering under the
securities or other “blue sky” laws of any jurisdiction in which Registrable Securities are offered
(“Blue Sky Filing”) or any omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein not misleading or (2) any
untrue statement or alleged untrue statement of a material fact contained in any Prospectus, any
Free Writing Prospectus or any “issuer information” (“Issuer Information”) filed or required to be
filed pursuant to Rule 433(d) under the Securities Act, or any omission or alleged omission to
state therein a material fact necessary in order to make the statements



22









 




therein, in the light of the circumstances under which they were made, not misleading, in each
case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with any information relating to the Purchaser or information relating to any Holder
furnished to the Company in writing expressly for use therein. In connection with any Underwritten
Offering permitted by Section 3, the Company will also indemnify the Underwriters, if any, selling
brokers, dealers and similar securities industry professionals participating in the distribution,
their respective affiliates and each Person who controls such Persons (within the meaning of the
Securities Act and the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration Statement, any
Prospectus, any Free Writing Prospectus or any Issuer Information.




     (b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company,
the directors of the Company, each officer of the Company who signed the Registration Statement and
each Person, if any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph
(a) above, but only with respect to any losses, claims, damages or liabilities that arise out of,
or are based upon, any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to such Holder furnished to the
Company in writing by such Holder expressly for use or expressly for incorporation in any
Registration Statement, any Prospectus and any Free Writing Prospectus.



     (c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified Person”)
shall promptly notify the Person against whom such indemnification may be sought (the “Indemnifying
Person”) in writing; provided that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have under this Section 6 except to the extent that it
has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the Indemnifying Person
shall not relieve it from any liability that it may have to an Indemnified Person otherwise than
under this Section 6. If any such proceeding shall be brought or asserted against an Indemnified
Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall
retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 6 that the Indemnifying
Person may designate in such proceeding and shall pay the fees and expenses of such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any
such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory
to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to those available to
the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying



23









 




Person and the Indemnified Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is understood and
agreed that the Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm (x) for the Purchaser,
its affiliates, directors and officers and any control Persons of the Purchaser shall be designated
in writing by the Purchaser, (y) for any Holder, its directors and officers and any control Persons
of such Holder shall be designated in writing by the Majority Holders and (z) in all other cases
shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into more than 45
days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request within 30 days
after the date of such settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification could have been
sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional
release of such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of such proceeding and
(y) does not include any statement as to or any admission of fault, culpability or a failure to act
by or on behalf of any Indemnified Person.




     (d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company from the
offering of the Registrable Securities, on the one hand, and by the Holders from receiving
Registrable Securities, on the other hand, or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Company on the one hand and
the Holders on the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and the Holders on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Company or by the Holders and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.



     (e) The Company and the Holders agree that it would not be just and equitable if



24









 




contribution pursuant to this Section 6 were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in connection with any such
action or claim. No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation. The Holders’ obligations to contribute pursuant to this
Section 6 are several and not joint.




     (f) The remedies provided for in this Section 6 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.



     (g) The indemnity and contribution provisions contained in this Section 6 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Purchaser or any Holder or any Person controlling the
Purchaser or any Holder, or by or on behalf of the Company or the officers or directors of or any
Person controlling the Company and (iii) any sale of Registrable Securities pursuant to a
Registration Statement.



     (h) Notwithstanding anything herein to the contrary, no Holder shall not be liable under this
Section 6 (including, without limitation, under the indemnification obligations pursuant to Section
6(b) or the contribution obligations pursuant to Section 6(e)) for any amounts which in the
aggregate exceed the net proceeds to such Holder as a result of the sale of Registrable Securities
pursuant to such Registration Statement.



     7. General.



     (a) No Inconsistent Agreements. The Company represent, warrant and agree that (i) the
rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of any other outstanding securities issued by the Company
under any other agreement and (ii) the Company has not entered into, or on or after the date of
this Agreement will enter into, any agreement that is inconsistent with the rights granted to the
Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions
hereof.



     (b) Amendments and Waivers. The provisions of this Agreement, including the provisions
of this sentence, may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the Company has obtained the written
consent of Holders of at least a majority of the outstanding Registrable Securities affected by
such amendment, modification, supplement, waiver or consent; provided that no amendment,
modification, supplement, waiver or consent to any departure from the provisions of Section 6
hereof shall be effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder. Any amendments, modifications, supplements, waivers or consents pursuant to
this Section 7(b) shall be by a writing executed by each of the



25









 






parties hereto.




     (c) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, registered first-class mail (return receipt requested),
telex, telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder, at the most
current address given by such Holder to the Company by means of a notice given in accordance with
the provisions of this Section 7(c), which address initially is, with respect to the Purchaser, the
address set forth in the Purchase Agreement; (ii) if to the Company, initially at the Company’s
address set forth in the Purchase Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 7(c); and (iii) if to the Company’s
transfer agent, to BNY Mellon Shareowner Services, 480 Washington Boulevard, Jersey City, New
Jersey 07310, Telephone: [(     ) -  ], Facsimile: [(     ) -  ], Attention [
     ], (iv) if to Legal Counsel, to Schulte Roth & Zabel LLP, 919 Third Avenue, New York,
New York 10022, Telephone: (212) 756-2000, Facsimile: (212) 593-5955, Attention: Stuart D.
Freedman, Esq., Email: stuart.freedman@srz.com, (iv) if to such other Persons at their respective
addresses as provided in the Purchase Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 7(c). All such notices and
communications shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied; and on the
next Business Day if timely delivered to an air courier guaranteeing overnight delivery.



     (d) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties, including, without
limitation and without the need for an express assignment, subsequent Holders; provided
that nothing herein shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement. If any transferee of
any Holder shall acquire Registrable Securities in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement,
and by taking and holding such Registrable Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof. The Purchaser shall have no liability
or obligation to the Company with respect to any failure by a Holder to comply with, or any breach
by any Holder of, any of the obligations of such Holder under this Agreement.



     (e) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Company, on the one hand, and the Purchaser, on the other
hand, and shall have the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of other Holders hereunder.



     (f) Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement. Delivery
of an executed signature page by facsimile transmission or other electronic imaging means shall be
as effective as delivery of a manually executed counterpart of this



26









 





Agreement.




     (g) Headings. The headings in this Agreement are for convenience of reference only,
are not a part of this Agreement and shall not limit or otherwise affect the meaning hereof.



     (h) Governing Law. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision or rule (whether of
the State of New York or any other jurisdictions) that would cause the application of the laws of
any jurisdictions other than the State of New York. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of
Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not
to assert in any suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient
forum or that the venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof to such party at the address for such notices
to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.



     (j) Entire Agreement; Severability. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof and supersedes all oral
statements and prior writings with respect thereto. If any term, provision, covenant or restriction
contained in this Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable or against public policy, the remainder of the terms, provisions, covenants and
restrictions contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Company and the Purchaser shall endeavor in good faith
negotiations to replace the invalid, void or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid, void or unenforceable
provisions.



* * * * * *




[Signature Page Follows]




27









 






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



	 	 	 	 	 	 	 
	 	 	COMPANY:	 	 
	 
	 	 	 	 	 	 
	 	 	GEOEYE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	PURCHASER:	 	 
	 
	 	 	 	 	 	 
	 	 	CERBERUS SATELLITE LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Cerberus Series Four Holdings,	 	 
	 

	 	 	 	LLC, its Managing Member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Cerberus Institutional Partners,	 	 
	 

	 	 	 	L.P. - Series Four, its Managing Member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Cerberus Institutional Associates,	 	 
	 

	 	 	 	L.L.C., its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name: Mark A. Neporent
	 	 
	 

	 	 	 	Title: Senior Managing Director	 	 






[Signature Page to Registration Rights Agreement]




 









 





EXHIBIT A




SELLING STOCKHOLDERS




     The shares of common stock being offered by the selling stockholders are those issuable upon
conversion of the convertible preferred shares. For additional information regarding the issuances
of the convertible preferred shares, see “Private Placement of the Convertible Preferred Shares “
above. We are registering the shares of common stock in order to permit the selling stockholders
to offer the shares for resale from time to time. Except for the ownership of the convertible
preferred shares, the ownership of the Company’s Floating Rate Senior Notes due 2016, the
designation of a member on the Company’s board of directors and an observer who is entitled to
observe meetings of the Company’s board of directors, the selling stockholders have not had any
material relationship with us within the past three years.



     The table below lists the selling stockholders and other information regarding the beneficial
ownership of the shares of common stock by each of the selling stockholders. The second column
lists the number of shares of common stock beneficially owned by each selling stockholder, based on
its ownership of the shares of the convertible preferred shares, as of ___, assuming
conversion of all convertible preferred shares held by the selling stockholders on that date,
without regard to any limitations on conversions and/or redemptions of the convertible preferred
shares and without including any dividend not yet accrued.



     The third column lists the shares of common stock being offered by this prospectus by the
selling stockholders.



     In accordance with the terms of a registration rights agreement with the holders of the
convertible preferred shares, this prospectus generally covers the resale of at least 150% of the
number of shares of common stock issued and issuable upon conversion of the convertible preferred
shares as of the trading day immediately preceding the date the registration statement is initially
filed with the SEC, determined as if the outstanding preferred shares were exercised in full, as of
the Trading Day immediately preceding the date this registration statement is initially filed with
the SEC, without regard to any limitations on conversions and/or redemptions of the Preferred
Shares. The fourth column assumes the sale of all of the shares offered by the selling
stockholders pursuant to this prospectus.



     The selling stockholders may sell all, some or none of their shares in this offering. See
“Plan of Distribution.”



Annex A - 1




 









 






	 	 	 	 	 	 	 	 	 
	 	 	Number of Shares of	 	Maximum Number of Shares	 	Number of Shares of
	 	 	Common Stock Owned	 	of Common Stock to be Sold	 	Common Stock Owned
	Name of Selling stockholder	 	Prior to Offering	 	Pursuant to this Prospectus	 	After Offering
	 
	Cerberus Satellite LLC (1)

	 	 	 	 	 	 	0	 
	 
	 	 	 	 	 	 	 	 
	(1)
	 	 	 	 	 	 	 	 





Annex A - 2




 









 








 




			
	PLAN OF DISTRIBUTION





     We are registering the shares of common stock issuable upon conversion of the convertible
preferred shares to permit the resale of these shares of common stock by the holders of the
convertible preferred shares from time to time after the date of this prospectus. We will not
receive any of the proceeds from the sale by the selling stockholders of the shares of common
stock. We will bear all fees and expenses incident to our obligation to register the resale of
shares of common stock by the holders as selling stockholders.



     The selling stockholders may sell all or a portion of the shares of common stock beneficially
owned by them and offered hereby from time to time directly or through one or more underwriters,
broker-dealers or agents. If the shares of common stock are sold through underwriters or
broker-dealers, the selling stockholders will be responsible for underwriting discounts or
commissions or agent’s commissions and all fees and expenses related thereto. The shares of common
stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the
time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These
sales may be effected in transactions, which may involve crosses or block transactions,




	 	•	 	on any national securities exchange or quotation service on which the securities may
be listed or quoted at the time of sale;
	 
	 	•	 	in the over-the-counter market;
	 
	 	•	 	in transactions otherwise than on these exchanges or systems or in the
over-the-counter market;
	 
	 	•	 	through the writing of options, whether such options are listed on an options
exchange or otherwise;
	 
	 	•	 	ordinary brokerage transactions and transactions in which the broker-dealer solicits
purchasers;
	 
	 	•	 	block trades in which the broker-dealer will attempt to sell the shares as agent but
may position and resell a portion of the block as principal to facilitate the
transaction;
	 
	 	•	 	purchases by a broker-dealer as principal and resale by the broker-dealer for its
account;
	 
	 	•	 	an exchange distribution in accordance with the rules of the applicable exchange;
	 
	 	•	 	privately negotiated transactions;
	 
	 	•	 	short sales;
	 
	 	•	 	sales pursuant to Rule 144;





Annex A - 3




 









 






	 	•	 	broker-dealers may agree with the selling securityholders to sell a specified number
of such shares at a stipulated price per share;
	 
	 	•	 	a combination of any such methods of sale; and
	 
	 	•	 	any other method permitted pursuant to applicable law.





     If the selling stockholders effect such transactions by selling shares of common stock to or
through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may
receive commissions in the form of discounts, concessions or commissions from the selling
stockholders or commissions from purchasers of the shares of common stock for whom they may act as
agent or to whom they may sell as principal (which discounts, concessions or commissions as to
particular underwriters, broker-dealers or agents may be in excess of those customary in the types
of transactions involved). In connection with sales of the shares of common stock or otherwise, if
so permitted by the applicable securities laws, the selling stockholders may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales of the shares of common
stock in the course of hedging in positions they assume. The selling stockholders may also, if so
permitted by the applicable securities laws, sell shares of common stock short and deliver shares
of common stock covered by this prospectus to close out short positions and to return borrowed
shares in connection with such short sales. The selling stockholders may also loan or pledge
shares of common stock to broker-dealers that in turn may sell such shares.



     The selling stockholders may pledge or grant a security interest in some or all of the
convertible preferred shares or shares of common stock owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may offer and sell the
shares of common stock from time to time pursuant to this prospectus or any amendment to this
prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933, as
amended, amending, if necessary, the list of selling stockholders to include the pledgee,
transferee or other successors in interest as selling stockholders under this prospectus. The
selling stockholders also may transfer and donate the shares of common stock in other circumstances
in which case the transferees, donees, pledgees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus.



     The selling stockholders and any broker-dealer participating in the distribution of the shares
of common stock may be deemed to be “underwriters” within the meaning of the Securities Act, and
any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be
deemed to be underwriting commissions or discounts under the Securities Act. At the time a
particular offering of the shares of common stock is made, a prospectus supplement, if required,
will be distributed which will set forth the aggregate amount of shares of common stock being
offered and the terms of the offering, including the name or names of any underwriters,
broker-dealers or agents, any discounts, commissions and other terms constituting compensation from
the selling stockholders and any discounts, commissions or concessions allowed or reallowed or paid
to broker-dealers.



     Under the securities laws of some states, the shares of common stock may be sold in such
states only through registered or licensed brokers or dealers. In addition, in some states the



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shares of common stock may not be sold unless such shares have been registered or qualified
for sale in such state or an exemption from registration or qualification is available and is
complied with.




     There can be no assurance that any selling stockholder will sell any or all of the shares of
common stock registered pursuant to the shelf registration statement, of which this prospectus
forms a part.



     The selling stockholders and any other person participating in such distribution will be
subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which
may limit the timing of purchases and sales of any of the shares of common stock by the selling
stockholders and any other participating person. Regulation M may also restrict the ability of any
person engaged in the distribution of the shares of common stock to engage in market-making
activities with respect to the shares of common stock. All of the foregoing may affect the
marketability of the shares of common stock and the ability of any person or entity to engage in
market-making activities with respect to the shares of common stock.



     We will pay all expenses of the registration of the shares of common stock required to be paid
pursuant to the registration rights agreement, estimated to be $[      ] in total, including,
without limitation, Securities and Exchange Commission filing fees and expenses of compliance with
state securities or “blue sky” laws; provided, however, that a selling stockholder will pay all
underwriting discounts and selling commissions, if any. We will indemnify the selling stockholders
against liabilities, including some liabilities under the Securities Act, in accordance with the
registration rights agreements, or the selling stockholders will be entitled to contribution. We
may be indemnified by the selling stockholders against civil liabilities, including liabilities
under the Securities Act, that may arise from any written information furnished to us by the
selling stockholder specifically for use in this prospectus, in accordance with the related
registration rights agreement, or we may be entitled to contribution.



     Once sold under the shelf registration statement, of which this prospectus forms a part, the
shares of common stock will be freely tradable in the hands of persons other than our affiliates.



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