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REGISTRATION RIGHTS AGREEMENT
This
REGISTRATION RIGHTS AGREEMENT (this “
Agreement ”),
dated as of December 20, 2007, is by and among Inmarsat Global
Limited (the “
Holder ”)
and SkyTerra Communications, Inc., a Delaware corporation
(“
SkyTerra ”).
Certain capitalized terms used herein are defined in Section 7
below.
RECITALS:
WHEREAS,
pursuant to the Subscription Agreement by and between SkyTerra
and the Holder, dated as of December 14, 2007 (the
“
Subscription Agreement ”),
SkyTerra will issue shares of its Voting Common Stock, par value
$0.01 per share (the “
Voting Common Stock ”)
to the Holder (the “
Effective Date Shares ”);
WHEREAS,
pursuant to the terms that certain Cooperation Agreement dated
as of December 14, 2007 (the “
Cooperation Agreement ”),
SkyTerra may issue an additional $31,250,000 worth of Voting Common
Stock to the Holder upon the satisfaction of certain conditions, as
more fully set forth in the Cooperation Agreement (the
“
Trigger Shares ”);
WHEREAS,
pursuant to the terms of the Cooperation Agreement, SkyTerra
may issue an additional $56,250,000 worth of Voting Common
Stock to the Holder upon the satisfaction of certain
conditions, as more fully set forth in the Cooperation
Agreement (the “
Phase I Shares” and
together with the Effective Date Shares and the Trigger Shares, the
“
Acquired Shares ”);
and
WHEREAS,
in order to induce the Holder to consummate the transactions
under the Subscription Agreement and the Cooperation
Agreement, SkyTerra has agreed to provide certain registration
rights to the Holder on the terms and subject to the
conditions set forth herein.
NOW,
THEREFORE, the parties hereto hereby agree as
follows:
SECTION 1.
REGISTRATION UNDER THE SECURITIES ACT.
(a)
SkyTerra
shall use its reasonable best efforts to file with the
Securities and Exchange Commission (the “
SEC ”)
no later than thirty (30) Business Days after the later of (i) two
years following the Effective Date (the “
Second Anniversary ”)
and (ii) the receipt of a written request from the Holder
requesting the registration of all of the Effective Date Shares and
all of the Trigger Shares then held by the Holder (the
“
Registration Request ”,
and along with the Second Anniversary, the “
Resale Registration Conditions
”) a registration statement on the appropriate form for the
purpose of registering such Acquired Shares under the Securities
Act for resale by the Holder (the “
Resale Registration Statement ”).
If, at the time of the filing of the Resale Registration Statement
any or all of the Trigger Shares have not yet been issued, SkyTerra
will upon the written request of the Holder and receipt by the
Holder of any or all of the Trigger Shares (the “
Second Registration Request ”),
use its reasonable best efforts to file one additional registration
statement on the appropriate form or file a post-effective
amendment to the Resale Registration Statement for the purpose of
registering the Trigger Shares that have been subsequently acquired
by the Holder (the “
Second Resale Shelf ”)
no later than thirty (30) Business Days following such Second
Registration Request,
provided ,
however ,
that SkyTerra shall not be obligated to file more than one
registration statement in any six-month period pursuant to
this
Section 1.1
or more than one Second Resale Shelf or Third Resale Shelf (as
defined herein). Additionally, SkyTerra shall use its reasonable
best efforts to file one additional registration statement (or a
post effective amendment to the Resale Registration Statement or
Second Resale Shelf) (the
"Third Resale Shelf" )
on the appropriate form for the purpose of registering the Phase I
Shares for resale no later than thirty (30) Business Days following
(i) one year following the Phase 1 Completion Date (the
"Phase I Anniversary" ),
and (ii) the receipt of a written request by the Holder requesting
the registration of all of the Phase I Shares then held by the
Holder (the
"Third Registration Request" ).
At the request of the Holder, the Third Resale Shelf will include
any Trigger Shares not previously included in the Resale
Registration Statement or Second Resale Shelf. In the event of a
Second Resale Shelf or a Third Resale Shelf, all other terms
applicable to the Resale Registration Statement, other than with
respect to the timing of its filing, shall be applicable to the
Second Resale Shelf or the Third Resale Shelf, as applicable, and
all references herein to the Resale Registration Statement shall be
deemed to include the Second Resale Shelf and the Third Resale
Shelf, as applicable, (references to the Resale Registration
Conditions will include the Second Registration Request or the
Third Registration Request, as applicable). SkyTerra will cause the
Resale Registration Statement to comply as to form in all material
respects with the applicable provisions of the Securities Act and
the rules and regulations thereunder. SkyTerra shall use its
reasonable best efforts, and the Holder will provide reasonable
cooperation with SkyTerra, to have the Resale Registration
Statement declared effective by the SEC as promptly as practicable,
but no later than one hundred fifty (150) calendar days following
the occurrence of the applicable Resale Registration Conditions.
Upon notice to the Holder, SkyTerra may postpone filing or
effecting the Resale Registration Statement, the Second Resale
Shelf and/or Third Resale Shelf for a reasonable time, but not
exceeding ninety (90) calendar days from the receipt of such
notice, if (i) SkyTerra’s Board of Directors (the
“
Board ”)
shall determine that effecting the registration would adversely
affect an offering of securities of SkyTerra the preparation of
which had then been commenced, or (ii) SkyTerra is in possession of
material non-public information the disclosure of which would not
be in the best interest of SkyTerra. Nothing herein shall prevent
SkyTerra from including SkyTerra securities held by other holders
in the Resale Registration Statement, any Second Resale Shelf or
Third Resale Shelf. Additionally, in the event SkyTerra files the
Second Resale Shelf or the Third Resale Shelf, nothing in this
Agreement shall prevent SkyTerra from combining the latest
registration statement with any registration statement previously
filed for the benefit of the Holder.
(b)
SkyTerra
shall keep the Resale Registration Statement effective
(including through the filing of any required post-effective
amendments) until the earlier to occur of (i) such time as the
Holder has sold all of the Acquired Shares registered
thereunder or (ii) such time as the shares no longer
constitute Acquired Shares.
(c)
The
plan of distribution contained in the Resale Registration
Statement shall be substantially in the form attached as
Exhibit A hereto.
1.2
Registration
Procedures .
Subject to the terms and conditions hereof, SkyTerra shall use its
reasonable best efforts to effect the registration and the
disposition of the Acquired Shares in accordance with the intended
method of disposition thereof (which method will not include an
underwritten offering), and pursuant thereto SkyTerra shall, as
expeditiously as possible:
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(a)
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after
the occurrence of the Resale Registration Conditions and in
accordance with the filing deadlines set forth in
Section 1.1(a) ,
prepare and file with the SEC the Resale Registration Statement
(and any amendments, including any post-effective amendments or
supplements to the Resale Registration Statement SkyTerra deems to
be necessary) and use its reasonable best efforts to cause the
Resale Registration Statement to become effective as promptly as
reasonably possible and to comply with the provisions of the
Securities Act applicable to it;
provided ,
that before filing the Resale Registration Statement or prospectus
or any amendments or supplements thereto (other than filings made
pursuant to the Exchange Act or exhibits to such registration
statements), SkyTerra shall furnish to counsel for the Holder
copies of all such documents proposed to be filed, including
documents incorporated by reference in the Registration Statement,
so as to provide the Holder and their counsel a reasonable
opportunity to review and comment on such documents, and SkyTerra
(i) will make such changes and additions thereto as reasonably
requested by counsel to the Holder prior to filing the Resale
Registration Statement or amendment thereto or any prospectus or
any supplement thereto and (ii) if the Holder is a controlling
person of SkyTerra, will include therein material relating to the
Holder or the plan of distribution for the Acquired Shares
registered thereunder (which shall not include an underwritten
offering), furnished to SkyTerra in writing, which, in the
reasonable judgment of the Holder, should be included;
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(b)
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furnish
to the Holder such number of copies of the Resale Registration
Statement, each amendment and supplement thereto, the prospectus
included in the Resale Registration Statement and such other
documents as the Holder may reasonably request in order to
facilitate the disposition of the Acquired Shares registered
thereunder;
provided ,
however ,
that SkyTerra shall have no obligation to furnish copies of a final
prospectus if the conditions of Rule 172(c) under the Securities
Act are satisfied by SkyTerra;
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(c)
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prepare
and file with the SEC such amendments and supplements to the Resale
Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Resale Registration
Statement effective for the time period as specified in Section 1.1
in order to complete the disposition of the Acquired Shares covered
by the Resale Registration Statement and comply with the provisions
of the Securities Act with respect to the disposition of all
Acquired Shares covered by the Resale Registration Statement during
such period in accordance with the intended methods of disposition
thereof as set forth in the Resale Registration
Statement;
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(d)
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use
its reasonable best efforts to register or qualify the Acquired
Shares under such other securities or blue sky laws of such
jurisdictions as the Holder reasonably request and do any and all
other acts and things which may be reasonably necessary or
advisable to enable the Holder to consummate the disposition of the
Acquired Shares in such jurisdictions of (provided that SkyTerra
shall not be required to (i) qualify generally to do business in
any jurisdiction where it would not otherwise be required to
qualify but for this subsection, (ii) subject itself to taxation in
any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
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(e)
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notify
the Holder, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, (i) when the
Resale Registration Statement or any post-effective amendment has
become effective under the Securities Act, (ii) of any written
request by the SEC for amendments or supplements to the Resale
Registration Statement or prospectus, (iii) of the happening of any
event as a result of which the prospectus included in the Resale
Registration Statement contains an untrue statement of a material
fact or omits any fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading (whereupon the Holder shall immediately cease any
offers, sales or other distribution of Acquired Shares registered
thereunder), and, subject to 1.3(c), SkyTerra shall promptly
prepare a supplement or amendment to such prospectus so that, as
thereafter used by the Holder for the resale of the Acquired
Shares, such prospectus shall not contain an untrue statement of a
material fact or omit to state any fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, and (iv) of the issuance of any stop
order suspending the effectiveness of the Resale Registration
Statement, or of any order suspending or preventing the use of any
related prospectus or suspending the qualification of any of the
Acquired Shares included in the Resale Registration Statement for
sale or distribution in any jurisdiction;
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(f)
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in
the event of the issuance of any stop order suspending the
effectiveness of the Resale Registration Statement, or of any order
suspending or preventing the use of any related prospectus or
suspending the qualification of any Acquired Shares included in the
Resale Registration Statement for sale or distribution in any
jurisdiction, SkyTerra shall use its reasonable best efforts to
promptly obtain the withdrawal of such order and shall prepare and
file an amended or supplemented prospectus, if
required;
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(g)
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provide
a transfer agent and registrar for all the Acquired Shares not
later than the effective date of the Resale Registration
Statement;
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(h)
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use
its reasonable best efforts to cause the Acquired Shares covered by
the Resale Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be
necessary to enable the Holder to complete the disposition of the
Acquired Shares covered by the Registration Statement and comply
with the provisions of the Securities Act with respect to the
disposition of all Acquired Shares covered by the Resale
Registration Statement during such period in accordance with the
intended methods of disposition by the Holder thereof set forth in
the Resale Registration Statement;
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(i)
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make
available for inspection by the Holder and any attorney, accountant
or other agent retained by the Holder, all financial and other
records, pertinent corporate documents and properties of SkyTerra,
and cause SkyTerra’s officers, managers, employees and
independent accountants to supply all information reasonably
requested by the Holder and such attorneys, accountants or agents
in connection with the
Resale Registration Statement; and
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(j)
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make
generally available to its stockholders a consolidated earnings
statement (which need not be audited) for the 12 months beginning
after the effective date of such registration statement as soon as
reasonably practicable after the end of such period, which earnings
statement shall satisfy the requirements of an earning statement
under Section 11(a) of the Securities Act .
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1.3
Other Procedural Matters.
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(a)
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SEC Correspondence .
SkyTerra shall make available to the Holder promptly after the same
is prepared and publicly distributed, filed with the SEC, or
received by SkyTerra, one copy of the Resale Registration Statement
and any amendment thereto, each preliminary prospectus and each
amendment or supplement thereto (other than filings made pursuant
to the Exchange Act or exhibits to such registration statements),
each letter written by or on behalf of SkyTerra to the SEC or the
staff of the SEC (or other governmental agency or self-regulatory
body or other body having jurisdiction, including any domestic or
foreign securities exchange), in each case relating to the Resale
Registration Statement. SkyTerra will promptly respond to any and
all comments received from the SEC, with a view towards causing the
Resale Registration Statement or any amendment thereto to be
declared effective by the SEC as soon as reasonably practicable and
shall file an acceleration request as soon as reasonably
practicable following the resolution or clearance of all SEC
comments or, if applicable, following notification by the SEC that
the Resale Registration Statement or any amendment thereto will not
be subject to review.
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(b)
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The
Holder shall furnish SkyTerra with any other information regarding
the Holder and the disposition of the Acquired Shares, including
without limitation the plan of distribution of the Acquired Shares
(substantially in the form attached as Exhibit A hereto), as
SkyTerra reasonably determines, is required to be included in the
Resale Registration Statement. At least ten (10) Business Days
prior to the first anticipated filing date of a Registration
Statement for any registration under this Agreement, SkyTerra will
notify the Holder of the information SkyTerra requires from the
Holder other than information contained in the Selling
Securityholder Questionnaire attached hereto as
Exhibit B ,
which shall be completed and delivered to SkyTerra promptly
concurrently with any request for inclusion in any Resale
Registration Statement pursuant to Section 1.1.
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(c)
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The
Holder agrees that, upon notice from SkyTerra of the happening of
any event as a result of which the prospectus included in the
Resale Registration Statement contains an untrue statement of a
material fact or omits any material fact necessary to make the
statements therein not misleading (a “
Suspension Notice ”),
the Holder will forthwith discontinue disposition of Acquired
Shares pursuant to the Resale Registration Statement until the
Holder is advised in writing by SkyTerra that the use of the
prospectus may be resumed and is furnished with a supplemented or
amended prospectus as contemplated by Section 1.2 hereof;
provided ,
however ,
that such postponement of sales of Acquired Shares by the Holder
shall not in any event exceed (i) twenty (20) consecutive days or
(ii) forty-five (45) days in the aggregate in any 12 month period.
The Holder agrees to keep confidential the existence of any
Suspension Notice and, if disclosed to the Holder, the facts and
circumstances giving rise thereto. If SkyTerra shall give the
Holder any Suspension Notice, SkyTerra shall extend the period of
time during which SkyTerra is required to maintain the Resale
Registration Statement effective pursuant to this Agreement by the
number of days during the period from and including the date of the
giving of such Suspension Notice to and including the date the
Holder is advised by SkyTerra that the use of the prospectus may be
resumed. In any event, SkyTerra shall not be entitled to deliver
more than a total of three (3) Suspension Notices in any 12 month
period.
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(d)
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Neither
SkyTerra nor the Holder shall permit any officer, manager,
underwriter, broker or any other person acting on behalf of
SkyTerra to use any free writing prospectus (as defined in Rule 405
under the Securities Act) in connection with the Resale
Registration Statement filed pursuant to this Agreement without the
prior written consent of SkyTerra and the Holder.
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1.4
Expenses.
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(a)
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Registration Expenses. All
Registration Expenses shall be borne by SkyTerra.
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(b)
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Selling Expenses. All
expenses incident to the Holder’s performance of or
compliance with this Agreement, including, without limitation, all
fees and expenses of counsel for the Holder, fees and expenses of
any broker or dealer discounts or commissions attributable to the
disposition of Acquired Shares shall be borne solely by the
Holder.
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SECTION 2.
LOCKUP AGREEMENT.
2.1 The
Holder hereby agrees to not effect any public sale or distribution
(including any sales pursuant to Rule 144) of equity securities of
SkyTerra, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and
the 90-day period beginning on the effective date of any
underwritten registered public offering (or the filing of a
prospectus supplement to any effective shelf registration
statement) of equity securities of SkyTerra or securities
convertible or exchangeable into or exercisable for equity
securities of SkyTerra (except as part of such underwritten
registration), unless the underwriters managing the registered
public offering otherwise consent in writing, and the Holder will
deliver an undertaking to the managing underwriters (if requested)
consistent with this covenant. The Holder shall not be obligated to
comply with the provisions of this Section 2.1 more than two times
in any 12-month period.
SECTION 3.
INDEMNIFICATION.
3.1
Indemnification by SkyTerra. SkyTerra
agrees to indemnify, to the extent permitted by law, each of the
Holder, its officers, directors, employees and Affiliates and each
Person who controls the Holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities,
and expenses caused by any untrue or alleged untrue statement of
material fact contained in the Resale Registration Statement or any
prospectus forming a part of the Resale Registration Statement or
any “issuer free writing prospectus” (as defined in
Securities Act Rule 433), or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading or any violation or alleged violation by SkyTerra of
the Securities Act, the Exchange Act or applicable “blue
sky” laws, except insofar as the same are made in reliance
and in conformity with any information furnished in writing to
SkyTerra by the Holder expressly for use therein or by the failure
of the Holder to deliver a copy of such registration statement or
prospectus or any amendments or supplements thereto as required by
law after SkyTerra has furnished the Holder with a sufficient
number of copies of the same.
3.2
Indemnification by the Holder. In
connection with the Resale Registration Statement in which the
Holder is participating, the Holder shall furnish to SkyTerra in
writing the Selling Securityholder Questionnaire and such other
information as SkyTerra reasonably requests for use in connection
with any such registration statement or prospectus and, to the
extent permitted by law, the Holder shall indemnify SkyTerra, its
directors, officers, employees and Affiliates, and each Person who
controls SkyTerra (within the meaning of the Securities Act),
against any losses, claims, damages, liabilities, and expenses
resulting from any untrue or alleged untrue statement of material
fact contained in the Resale Registration Statement, the prospectus
or preliminary prospectus forming a part of the Resale Registration
Statement or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, but only to the extent that any information so
furnished in writing by the Holder contains such untrue statement
or omits a material fact required to be stated therein necessary to
make the statements therein not misleading;
provided ,
however ,
that the obligation of the Holder to indemnify SkyTerra hereunder
shall be limited to the net proceeds to the Holder from the sale of
the Holder’s Acquired Shares pursuant to the Resale
Registration Statement.
3.3
Indemnification Procedures. Any
Person entitled to indemnification hereunder shall (i) give prompt
written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to
give prompt notice shall not impair any Person’s right to
indemnification hereunder to the extent such failure has not
prejudiced the indemnifying party) and (ii) unless in such
indemnified party’s reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for
any settlement made by the indemnified party without its consent
(but such consent shall not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume
the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel (in addition to local counsel)
for all parties indemnified by such indemnifying party with respect
to such claim, unless in the reasonable judgment of any indemnified
party
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