AVAILABLE TO SUCH
INDEMNIFIED PARTY THAT ARE IN ADDITION TO OR MAY CONFLICT WITH THOSE AVAILABLE
TO ANOTHER INDEMNIFIED PARTY WITH RESPECT TO SUCH CLAIM. FAILURE TO GIVE PROMPT
WRITTEN NOTICE SHALL NOT RELEASE THE INDEMNIFYING PARTY FROM ITS OBLIGATIONS
HEREUNDER.
3.4
INVESTIGATION; CONTRIBUTION. THE INDEMNIFICATION PROVIDED FOR UNDER
THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF ANY
INVESTIGATION MADE BY OR ON BEHALF OF THE INDEMNIFIED PARTY OR ANY OFFICER,
DIRECTOR, OR CONTROLLING PERSON OF SUCH INDEMNIFIED PARTY AND SHALL SURVIVE THE
TRANSFER OF SECURITIES. IF THE INDEMNIFICATION PROVIDED UNDER SECTION 3.1 OR
SECTION 3.2 OF THIS AGREEMENT IS HELD BY A COURT TO BE UNAVAILABLE OR
UNENFORCEABLE IN RESPECT OF ANY LOSSES, CLAIMS, DAMAGES, LIABILITIES OR EXPENSES
REFERRED TO HEREIN, THEN EACH APPLICABLE
6
INDEMNIFYING PARTY, IN LIEU OF INDEMNIFYING SUCH INDEMNIFIED PARTY, SHALL
CONTRIBUTE TO THE AMOUNT PAID OR PAYABLE BY SUCH INDEMNIFIED PERSON AS A RESULT
OF SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR EXPENSES IN SUCH PROPORTION AS
IS APPROPRIATE TO REFLECT THE RELATIVE FAULT OF THE INDEMNIFYING PARTY ON THE
ONE HAND AND OF THE INDEMNIFIED PARTY ON THE OTHER IN CONNECTION WITH THE
STATEMENTS OR OMISSIONS THAT RESULT IN SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES
OR EXPENSES AS WELL AS ANY OTHER RELEVANT EQUITABLE CONSIDERATIONS. THE RELATIVE
FAULT OF THE INDEMNIFYING PARTY ON THE ONE HAND AND OF THE INDEMNIFIED PERSON 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
INDEMNIFYING PARTY OR BY THE INDEMNIFIED PARTY, AND BY SUCH PARTY'S RELATIVE
INTENT, KNOWLEDGE, ACCESS TO INFORMATION AND OPPORTUNITY TO CORRECT OR PREVENT
SUCH STATEMENT OR OMISSION. IN NO EVENT SHALL THE LIABILITY OF THE HOLDERS FOR
CONTRIBUTION PURSUANT TO THIS SECTION 3.4 BE GREATER THAN THE AMOUNT FOR WHICH
THE HOLDERS WOULD HAVE BEEN LIABLE PURSUANT TO SECTION 3.2 HAD INDEMNIFICATION
BEEN AVAILABLE AND ENFORCEABLE.
SECTION 4.
RULE 144 TRANSACTIONS.
4.1
UNDERTAKING TO FILE REPORTS AND COOPERATE IN RULE 144 TRANSACTIONS.
FOR AS LONG AS THE HOLDERS CONTINUE TO HOLD ANY ACQUIRED SHARES, SKYTERRA SHALL
USE ITS COMMERCIALLY REASONABLE EFFORTS TO FILE WITH THE SEC, ON A TIMELY BASIS,
ALL ANNUAL, QUARTERLY AND OTHER PERIODIC REPORTS REQUIRED TO BE FILED BY IT
UNDER SECTIONS 13 AND 15(D) OF THE EXCHANGE ACT, AND THE RULES AND REGULATIONS
THEREUNDER; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT BE CONSTRUED TO
REQUIRE SKYTERRA TO PREPARE AND FILE PERIODIC REPORTS IF IT IS NOT REQUIRED TO
DO SO UNDER THE EXCHANGE ACT. IN THE EVENT OF ANY PROPOSED SALE BY THE HOLDERS
OF ACQUIRED SHARES PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OR OTHERWISE AS
PROVIDED HEREIN, WHICH SALE IS TO BE MADE IN ACCORDANCE WITH THE TERMS OF
SECTION 5.1(B) HEREOF, SKYTERRA SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS TO
COOPERATE WITH THE HOLDERS SO AS TO ENABLE SUCH SALES TO BE MADE