Exhibit 10.61
FORM OF STOCKHOLDER'S AGREEMENT
This Stockholder's Agreement, dated as of February 9, 2005
("Agreement"), is entered into by and among [Parent] and MVH Holdings Inc., a
Delaware corporation ("MVH"), in their capacity as the stockholders of [Blocker]
("Corporation") (each of [Parent], and MVH individually, and their permitted
successors and assigns, is a "Stockholder", and together the "Stockholders").
RECITALS
WHEREAS, Mobile Satellite Ventures GP Inc., a Delaware corporation, is
the general partner ("General Partner") of Mobile Satellite Ventures LP, a
Delaware limited partnership ("MSVLP");
WHEREAS, the Corporation is a party to that certain Amended and
Restated Stockholders' Agreement by and among the stockholders of the General
Partner, dated November 12, 2004 (the "MSV Stockholders' Agreement") and the
Stockholders are parties to that certain Second Amended and Restated Parent
Transfer/Drag Along Agreement, dated November 12, 2004 by and among the
stockholders of the General Partner ("MSV Parent Transfer/Drag Along
Agreement");
WHEREAS, the Corporation is a party to that certain Voting Agreement
dated as of November 12, 2004 among certain of the stockholders of General
Partner (the "Voting Agreement");
WHEREAS, the Corporation is a party to that certain Amended and
Restated Consent Agreement dated as of the date hereof among certain of the
stockholders of General Partner (the "Consent Agreement");
WHEREAS, Telcom Satellite Ventures Inc. and Telcom Satellite Ventures
II, Inc. delivered a Notice of Proposed Transfer to the limited partners of
MSVLP, dated January 12, 2005 (the "Telcom Transfer Notice");
WHEREAS, pursuant to Section 8 of the MSV Parent Transfer/Drag Along
Agreement and Section 8.2(b) of the MSV Stockholders' Agreement, on January 27,
2005, the Corporation and Columbia Capital Equity Partners III (QP), L.P.
delivered a tag-along notice as contemplated therein and thereby exercised its
"tag along" rights pursuant thereto ("Tag Along Exercise");
WHEREAS, upon consummation of the transactions contemplated by the Tag
Along Exercise, Columbia Capital Equity Partners III (QP), L.P. is receiving
shares of common stock of Motient Corporation, a Delaware corporation
("Motient") and MVH is receiving shares of the Corporation (the "Transfer"); and
WHEREAS, Columbia Capital Equity Partners III (QP), L.P. and MVH as the
stockholders of the Corporation wish to enter into this Agreement to memorialize
their understandings and agreements regarding certain matters.
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NOW, THEREFORE, in consideration of the agreements contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
1 Acknowledgement. Each of Columbia Capital Equity Partners III (QP),
L.P., on behalf of itself and its affiliates, and MVH, on behalf of itself,
Motient and its other affiliates, hereby acknowledges and agrees that the Tag
Along Exercise was properly made and the "tag along" transactions were
consummated as contemplated by the Telcom Transfer Notice and the Tag Along
Exercise.
2 Agreements of the Stockholders. Each of the parties hereto hereby agree
as follows:
A. Provided that it is acting in compliance with the MSV Parent
Transfer/Drag Along Agreement and MSV Stockholders' Agreement, a Stockholder may
transfer any of its shares in the Corporation, provided that in any such
transfer the selling Stockholder shall promptly offer the right to participate
in such transfer ("Participation Right") on a pro-rata basis to, and shall
permit such participation by, the non-selling Stockholder; provided, further
that Columbia Capital Equity Partners III (QP), L.P. may transfer its shares to
any fund affiliated therewith without entitling MVH to a Participation Right and
MVH may transfer its shares to Motient Corporation, the entity that indirectly
owns all of the outstanding stock MVH, or any entity directly or indirectly
wholly-owned by Motient Corporation without entitling Columbia Capital Equity
Partners III (QP), L.P. to a Participation Right.
B. A vote of the majority of the shares of common stock of the
Corporation issued and outstanding at the time of any vote of the stockholders
of the Corporation shall be sufficient to authorize the corporate action subject
to such stockholder vote, except that:
(i) Subject to Xxxxxxx 0X xxxxx, the Stockholders shall cause the
Corporation to vote all shares owned in the General Partner at any time by the
Corporation and all units held at any time in MSVLP by the Corporation pro rata
as directed by the Stockholders based upon the respective ownership of each of
the Stockholders in the Corporation at the time such vote is taken;
(ii) The Corporation may not issue any additional equity
interests, incur any debt or sell any asset without the affirmative vote of all
of the Stockholders;
(iii) The Corporation will not engage in any transaction with any
of its affiliates or the affiliates of any Stockholders without the affirmative
vote or consent of all of the Stockholders; and
(iv) From the date hereof through the earlier of (i) June 30, 2005
or (ii) the transfer by MVH of any of its shares in the Corporation (other than
a transfer to Motient Corporation, the entity that indirectly owns all of the
outstanding stock MVH, or any entity directly or indirectly wholly-owned by
Motient Corporation) or the entry by MVH into any agreement pursuant to which
MVH becomes obligated under any circumstances to transfer any of its shares in
the Corporation (other than a transfer to Motient Corporation, the entity that
indirectly owns all of the outstanding stock MVH, or any entity directly or
indirectly wholly-owned by Motient Corporation), the Corporation may not merge
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or combine with any other entity without the affirmative vote of all of the
Stockholders; provided however, that such unanimity is not required if the
transfer of such shares in the Corporation is to be conducted pursuant to (a)
the "drag along" provisions of the MSV Parent Transfer/Drag Along Agreement or
(b) a transaction or series of transactions the nature of which is a sale or
change of control of General Partner and/or MSVLP; and, provided, further, that
prior to any such merger or combination (regardless of whether before or after
the events described in clauses (i) and (ii) above), the Corporation shall, upon
the request of a Stockholder and such Stockholder's agreement to indemnify (and
actual payment of or the giving of security therefor) the Corporation and the
other Stockholder from any adverse tax consequences actually incurred by the
Corporation or the other Stockholder resulting therefrom, redeem the shares of
the Corporation owned by such requesting Stockholder in exchange for a
segregated portion of each asset owned by the Corporation equal to the
percentage of the total stock of the Corporation owned by such requesting
Stockholder.
In lieu of conducting a vote, the Stockholders may act upon any matter submitted
to them for a vote by written consent, provided that all Stockholders shall have
received at least five (5) business days' prior notice of the action to be
taken.
C. Notwithstanding the provisions of Section 2B(a) above, from and
after the date hereof and until such time as the Columbia Funds (as defined
below) no longer own, directly or indirectly, at least 25% of the shares owned
in General Partner and units owned in MSVLP by the Columbia Blocker Corps (as
defined below) immediately prior to the Transfer, with respect matters to be
voted on or consented to pursuant to Sections 2.01, 2.02, 3.01, or 3.02 of the
Voting Agreement, the Stockholders of the Corporation shall cause the
Corporation to vote all shares owned in General Partner and all units owned in
MSVLP held by the Corporation as directed by the vote of Columbia Capital Equity
Partners III (QP), L.P., having one vote, and MVH, having one vote, provided
that in the event of a tie between Columbia Capital Equity Partners III (QP),
L.P. and MVH, the vote of Columbia Capital Equity Partners III (QP), L.P. shall
prevail. For purposes of this Agreement, the "Columbia Funds" shall mean (i)
Columbia Capital Equity Partners III (QP), L.P., (ii) Columbia Capital Equity
Partners III (AI), L.P., (iii) Columbia Capital Equity Partners III (Cayman),
L.P., (iv) Columbia Capital Investors III, LLC, (v) Columbia Capital Employee
Investors III, LLC and/or (vi) any affiliated fund of the foregoing. For
purposes of this Agreement, the "Columbia Blocker Corps" shall mean (i) the
Corporation, (ii) Columbia Space (AI), Inc., and (iii) Columbia Space Partners,
Inc.
D. If pursuant to Section 2C of the Consent Agreement, the
Telcom/Columbia/Spectrum Group votes or executes a written consent for a waiver
of the 49% limitation with respect to the acquisition by any other stockholder
of General Partner or limited partner of MSVLP in accordance with the terms and
provisions of Section 2C of the Consent Agreement, then Columbia Capital Equity
Partners III (QP), L.P. shall cause the Corporation to vote its pro rata portion
of the shares owned in the General Partner by the Corporation and units held in
MSVLP by the Corporation for a waiver of the 49% limitation with respect to MVH.
E. If pursuant to Section 11 of the MSV Parent Transfer/Drag Along
Agreement a payment or allocation is made to the Corporation or any Stockholder
to mitigate any Adverse Tax Consequences (as such term is defined in the MSV
Parent Transfer/Drag Along Agreement), then each Stockholder shall take any and
all actions necessary to ensure that such payment is shared among all the
Stockholders pro-rata based upon the respective ownership of each of the
Stockholders in the Corporation.
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F. A representative designated by Columbia Capital Equity Partners III
(QP), L.P. shall represent the Corporation in any meetings of the Board of
Directors of General Partner pursuant to any Observation Right granted pursuant
to, and as such term is defined in, the MSV Stockholders' Agreement.
3 Circumvention. Each party agrees that it will not circumvent the intent
of this Agreement and the provisions hereof.
4 Equity Interests in TerreStar Networks Inc. As of execution of this
Agreement, the Corporation holds rights (the "Rights Certificates") to receive
shares of common stock ("Common Stock") of TerreStar Networks Inc.
("TerreStar"). As a holder of such Rights Certificates, the Corporation is a
party to that certain TerreStar Securityholders' Agreement dated as of December
20, 2004 , the Corporation is a party to that certain TerreStar Voting Agreement
dated as of December 20, 2004 (the "TerreStar Voting Agreement") and the
Stockholders are party to that certain TerreStar Parent Transfer/Drag Along
Agreement dated as of December 20, 2004. The Stockholders agree that the Rights
Certificates, any shares of Common Stock issued upon conversion of the Rights
Certificates and any other equity securities of TerreStar held by the
Corporation, shall be subject to the rights and obligations contained in Section
2 and Section 3 of this Agreement (the provisions of which are hereby
incorporated by reference, mutatis, mutandis into this Section 4) as if such
Rights Certificates, Common Stock, or other equity securities in TerreStar, as
applicable, were units in MSVLP. Upon the request of any Stockholder, all
Stockholders will consent to the Corporation distributing such Rights
Certificates, Common Stock, or other equity securities in TerreStar, as
applicable, to the Stockholders pro rata based upon the respective ownership of
each of the Stockholders in the Corporation at the time of such distribution.
5 Miscellaneous.
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A. Term. This Agreement, and the obligations of the parties hereunder,
shall survive and remain in effect so long as the Corporation has more than one
Stockholder, but shall terminate and be of no further force and effect upon all
of the outstanding shares of the Corporation being owned by one Stockholder.
B. Amendments. This Agreement, and the rights and obligations of the
parties hereto may be waived (either generally or in a particular instance,
either retroactively or prospectively, and either for a specified period of time
or indefinitely), amended or terminated if and only if such waiver, amendment or
termination is consented to in writing by each Stockholder.
C. Governing Law. This Agreement shall be governed in all respects by
the laws of the State of Delaware, without regard to the conflict of laws
provisions thereof.
D. Successors and Assigns. The provisions hereof shall be binding upon,
the successors, assigns, heirs, executors and administrators of the parties
hereto. Each Stockholder shall require the acquirer of any of its shares in the
Corporation to become a party to this Agreement, and no such transfer shall be
valid unless and until the acquirer so agrees and becomes a party to this
Agreement.
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E. Severability. In case any provisions of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby;
provided, that no such severability shall be effective if it materially and
adversely affects the economic benefit of this Agreement to any party hereto.
F. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given (a) upon personal delivery to the
party to be notified, (b) when sent by confirmed facsimile if sent during normal
business hours of the recipient, if not, then on the next business day, (c) five
days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to each party at the
address previously provided by such party.
G. Equitable Relief. Each party agrees that if it fails to perform its
obligations under this Agreement for any reason whatsoever, the other parties
hereto shall be entitled to specific performance and injunctive or other
equitable relief, and each Stockholder hereby further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any injunctive or other equitable relief. This provision is without
prejudice to any other rights that the other parties to this Agreement may have
against any other party for any failure to perform its obligations under this
Agreement.
H. Further Assurances. Each party shall at any time and from time to
time promptly execute and deliver to the other parties such further instruments,
consents and other documents and take such further action as such other parties
may reasonably require in order to carry out the full intent and purpose of this
Agreement.
I. Interpretation. The titles of the sections and subsections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement. All pronouns contained herein, and any variations
thereof, shall be deemed to refer to the masculine, feminine or neutral,
singular or plural, as to the identity of the parties hereto may require.
J. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. Delivery of an executed counterpart of a
signature page of this Agreement by facsimile shall be effective as delivery of
a manually executed counterpart of this Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
[PARENT]
By:
By: ____________________
Name:
Title:
MVH HOLDINGS INC.
By: ____________________
Name:
Title:
(Signature Page to Columbia Space (QP), Inc. Stockholder's Agreement)
