EXHIBIT 10.49
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (this
"AGREEMENT"), dated as of November 12, 2004, by and among Mobile Satellite
Ventures GP Inc., a Delaware corporation ("GENERAL PARTNER") and General Partner
of Mobile Satellite Ventures LP, a Delaware limited partnership ("MSV LP") and
the stockholders of General Partner listed on SCHEDULE I hereto (each
individually, a "STOCKHOLDER," and collectively, the "STOCKHOLDERS").
RECITALS
WHEREAS, each Stockholder is also a limited partner of MSV LP
and owns a portion of the common stock, par value $0.01 per share (the "Stock"),
of General Partner in proportionate amounts based upon its respective ownership
interests in MSV LP; and
WHEREAS, the Stockholders formed General Partner for the
purpose of having it serve exclusively as General Partner of MSV LP pursuant to
the terms of the MSV LP Agreement (as defined herein); and
WHEREAS, the Stockholders wish to assure that General Partner
performs its duties under the MSV LP Agreement and the other agreements by and
among the Stockholders strictly in accordance with the terms of this Agreement;
and
WHEREAS, MSV LP and General Partner have entered into a
purchase agreement (the "PURCHASE AGREEMENT") with Motient Ventures Holding Inc.
("MOTIENT SUB"), pursuant to which such investor will make an equity investment
in MSV LP and General Partner; and
WHEREAS, certain of the parties hereto are parties to that
certain Stockholders' Agreement, dated as of November 26, 2001, as amended (the
"NOVEMBER 2001 STOCKHOLDERS' AGREEMENT"); and
WHEREAS, in connection with the transactions contemplated by
the Purchase Agreement, the parties hereto wish to amend and restate the
November 2001 Stockholders' Agreement as provided herein.
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:
Section 1. DEFINITIONS. Initially capitalized terms used, but
not defined herein, shall have the meanings ascribed thereto in the MSV LP
Agreement or, if not defined therein, in the Investment Agreement, as
applicable. Additionally, terms defined in this Section 1 shall, for the
purposes of this Agreement, have the meanings herein specified.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized to close in New York City.
"COLUMBIA INVESTOR GROUP" means the entities in Columbia Space
(QP), Inc.'s investor group as set forth in SCHEDULE I hereto.
"CONTROL PARTY" means (i) an Affiliate that has direct or
indirect majority voting control of a Limited Partner, or (ii) an Affiliate that
has a majority of its voting interests held, directly or indirectly, by a
Limited Partner or by Persons that have direct or indirect voting control of a
Limited Partner.
"EXCLUDED SECURITIES" means (i) any interests in MSV LP issued
pursuant to the October 2001 Investment Agreement or any of the transactions
contemplated thereby, (ii) any interests in MSV LP issued pursuant to the
Investment Agreement or any of the transactions contemplated thereby, (iii) any
interests in MSV LP issued in connection with the acquisition of the business of
another entity, whether by the purchase of equity securities, assets or
otherwise, (iv) any interests in MSV LP issued as part of an Initial Public
Offering or other registered underwritten public offering of MSV LP's
securities, (v) any interests in MSV LP issued under an employee compensation
plan approved by the General Partner, (vi) any interests in MSV LP issued to
financial institutions, financial syndicates or lessors in connection with bona
fide commercial credit arrangements, equipment financings, or similar
transactions for primarily other than equity financing purposes, (vii) any
interests in MSV LP issued pursuant to Section 8.1(h)(vi) of this Agreement and
(viii) 4,817 Units that may be issued to inOvate Communications Group Services
Company or its Affiliates.
"FAMILY MEMBER" means, with respect to any Person (i) the
spouse, parents, children, siblings, mother and father-in-law, sons and
daughters-in-law and brothers and sisters-in-law of such Person or of any of the
beneficial owners of such Person, (ii) any trust whose beneficiaries consist of
only one or more of such Person and such persons or (iii) any partnership or
other entity whose owners are one or more of such Person and such persons.
"INVESTMENT AGREEMENT" means that certain First Amended and
Restated Investment Agreement, dated as of August 8, 2003, as amended, by and
among the Stockholders (and their affiliates) and certain other parties.
"INVESTOR" has the meaning set forth in the MSV LP Agreement.
"INVESTOR GROUP" means, with respect to Investors in the
Telcom Investor Group, the Columbia Investor Group and the Spectrum Investor
Group, such Investor's Investor Group as identified on SCHEDULE I hereto.
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"INTERVENING ENTITY" means, as applied to any Limited Partner
at any time, any Person the value of which at such time consists principally of
its direct or indirect ownership of interests in, or obligations of, MSV LP or
Canadian Holdco. Without limiting the foregoing, the parties stipulate that, as
of the date hereof, TMI and TMI's general partner are Intervening Entities.
"MSV LP AGREEMENT" means that certain Amended and Restated
Limited Partnership Agreement of MSV LP, dated as of November 12, 2004, by and
among General Partner and the limited partners named therein.
"OCTOBER 2001 INVESTMENT AGREEMENT" means that certain Amended
and Restated Investment Agreement, dated as of October 12, 2001, as amended, by
and among the Stockholders (and their affiliates) and certain other parties.
"PLEDGE AGREEMENT" means that certain Pledge and Guarantee
Agreement, dated as of November 26, 2001, by and among TMI, TMI Sub and the
other parties thereto, as amended, supplemented or revised from time to time.
"REQUIRED MAJORITY" means Limited Partners holding at least a
majority of the Percentage Interests held by the Limited Partners entitled to
vote on any matter as of the date of determination.
"SPECTRUM INVESTOR GROUP" means the entities in Spectrum Space
Equity Investors IV, Inc.'s investor group as set forth in SCHEDULE I hereto.
"TELCOM INVESTOR GROUP" means the entities in Telcom Satellite
Ventures Inc.'s investor group as set forth in SCHEDULE I hereto.
"TMI SUB" means TMI Communications Delaware, Limited
Partnership.
"VOTING AGREEMENT" has the meaning set forth in Section 11(a).
Section 2. BOARD COMPOSITION.
(a) QUALIFICATIONS OF DIRECTORS. No person shall be elected or
appointed a director if that person is less than 18 years of age, is of unsound
mind and has been found so by a court, is not an individual, or has the status
of a bankrupt. Directors may, but need not, be Stockholders.
(b) Subject to clause (vii) below, each Stockholder agrees to
use all commercially reasonable efforts (including approving all necessary or
advisable amendments to General Partner's certificate of incorporation and/or
bylaws) to cause the board of directors of General Partner (the "BOARD") to
consist of thirteen (13) directors and be composed as follows:
(i) The Telcom Investor Group, the Spectrum Investor
Group and the Columbia Investor Group (or an Investor or group of
Investors to which Limited Partners of any such Investor Group
transferred at least a five percent (5%) Percentage Interest and
expressly transferred such Investor Group's right to designate a
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director under this Agreement (each such Person, an "INVESTOR GROUP
ASSIGNEE")), collectively, shall be entitled to designate a total of
one (1) director. Such director shall be selected by the affirmative
vote of at least two of the three such Investor Groups.
(ii) The Telcom Investor Group shall be entitled to
designate one (1) director.
(iii) Motient Sub shall be entitled to designate
three (3) directors.
(iv) TMI Sub shall be entitled to designate three (3)
directors.
(v) MSV Investors, LLC ("MSV INVESTORS") shall be
entitled to designate three (3) directors.
(vi) One director shall be the Chief Executive
Officer of General Partner (the "CEO").
(vii) One director shall be Xxxx X. Xxxxxxx,
currently the Chairman of MSV LP; PROVIDED, that in the event Xx.
Xxxxxxx resigns or is otherwise removed from the Board, such vacancy
shall not be filled and thereafter, the Board shall consist of twelve
(12) directors.
(viii) General Partner shall provide each of the
Columbia Investor Group and the Spectrum Investor Group with notice of
each meeting of the Board and shall permit one designated
representative of each of the Columbia Investor Group and the Spectrum
Investor Group to attend and participate in all discussions of each
such meeting in a nonvoting capacity, and, in this respect shall give
the Columbia Investor Group and the Spectrum Investor Group copies of
all notices, minutes, consents and other material that it provides to
directors (collectively, the "OBSERVATION RIGHTS"); PROVIDED, that
General Partner shall also provide the Telcom Investor Group with
Observation Rights if the Telcom Investor Group does not otherwise have
the right to select a director and if the director selected pursuant to
Section 2(b)(i) hereof is not an owner or an Affiliate of the Telcom
Investor Group; PROVIDED, FURTHER, that the Columbia Investor Group,
the Spectrum Investor Group and the Telcom Investor Group (if
applicable) and their designated representatives that attend any Board
meeting shall, except as otherwise required by law, hold all matters
discussed at any such meeting in strict confidence as if each such
Investor Group and its designated representatives were voting members
of the Board; and PROVIDED FURTHER, that each of the Columbia Investor
Group, the Spectrum Investor Group and the Telcom Investor Group (if
applicable) shall be entitled to Observation Rights in accordance with
the terms of this Section 2(b)(viii) only so long as such Investor
Group continues to be a holder of capital stock of the General Partner.
(c) RESIGNATION. Any director may resign at any time by giving
written notice to the CEO. Such resignation shall take effect at the time
specified in such notice or, if the time be not specified, upon receipt thereof
by the CEO. Unless otherwise specified therein, acceptance of such resignation
shall not be necessary to make it effective. In the event of the death,
disability, resignation or removal of any director, the Stockholder(s) which
designated such director shall designate his or her replacement.
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Section 3. BOARD MEETING.
(a) REGULAR MEETINGS. The Board shall meet no less often than
quarterly, unless otherwise agreed by at least 4/5 of the Board. Such meetings
shall be held on such date as shall be determined by the CEO or a majority of
the Board.
(b) OTHER MEETINGS. Other meetings of the Board shall be held
at such times as the Chairman of General Partner (the "CHAIRMAN"), a
vice-chairman of General Partner (a "VICE-CHAIRMAN"), the CEO or a majority of
the Board shall from time to time determine.
(c) NOTICE OF MEETINGS. The Secretary of General Partner (the
"SECRETARY") or any person that the Board or the Secretary delegate to act in
the capacity of the Secretary shall give written notice to the CEO, the
President of General Partner (the "PRESIDENT") and each director of each meeting
of the Board, which notice shall state the place, date, time and purpose of such
meeting. Notice of each such meeting shall be given to each director, if by
mail, addressed to him at his residence or usual place of business, at least
five (5) Business Days before the day on which such meeting is to be held, or
shall be sent to him at such place by telecopy, telegraph, cable, or other form
of recorded communication, or may be delivered by electronic mail or be
delivered personally or by telephone not later than forty-eight (48) hours
before the time at which such meeting is to be held; provided, however, that if
any director objects to the holding of such Board meeting at the requested time
and date, such meeting shall be held five (5) Business Days following the date
of such notice. A written waiver of notice, signed by the director entitled to
notice, whether before or after the time of the meeting referred to in such
waiver, shall be deemed equivalent to notice. Neither the business to be
transacted at, nor the purpose of any meeting of the Board, need be specified in
any written waiver of notice thereof. Attendance of a director at a meeting of
the Board shall constitute a waiver of notice of such meeting.
(d) PLACE OF MEETINGS. The Board may hold its meetings at such
place or places within or without the State of Delaware as the Chairman or CEO
may from time to time determine, or as shall be designated in the respective
notices or waivers of notice of such meetings.
(e) QUORUM AND MANNER OF ACTING.
(1) A majority of the directors then in office (or who are
members of any committee of the Board) shall be present in person or by
proxy (provided in writing) at any meeting of the Board (or a committee
thereof, as the case may be) in order to constitute a quorum for the
transaction of business at such meeting, and the vote of a majority of
those directors, or members of such committee, present at any such
meeting at which a quorum is present shall be necessary for the passage
of any resolution or act of the Board or such committee, except as
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otherwise expressly required by this Agreement or the Investment
Agreement. In the absence of a quorum for any such meeting, a majority
of the directors present thereat may adjourn such meeting from time to
time until a quorum shall be present.
(2) ORGANIZATION. At each meeting of the Board, one of the
following shall act as chairman of the meeting and preside, in the
following order of precedence:
(A) the Chairman;
(B) the Vice-Chairman; or
(C) any director chosen by a majority of the
directors present.
The Secretary or, in the case of his absence, any person whom the chairman of
the meeting shall appoint shall act as secretary of such meeting and keep the
minutes thereof.
(f) COMMITTEES OF THE BOARD. The Board may, by resolution
passed by a majority of the whole Board, designate one or more committees
consisting of four or more directors; PROVIDED, that each committee shall
consist of at least one designee of the Telcom Investor Group, Columbia Investor
Group and Spectrum Investor Group, collectively, as well as one Motient Sub
designee, one TMI Sub designee, and one MSV Investors designee. Except as
otherwise expressly required by this Agreement, any committee of the Board, to
the extent provided in the resolution of the Board designating such committee,
shall have and may exercise all the powers and authority of the Board in the
management of the business and affairs of General Partner, and may authorize the
seal of General Partner to be affixed to all papers which may require it. Each
committee of the Board shall keep regular minutes of its proceedings and report
the same to the Board and upon request of the Stockholders, to the Stockholders.
(g) DIRECTORS' CONSENT IN LIEU OF MEETING. Any action required
or permitted to be taken at any meeting of the Board or of any committee thereof
may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by all
the directors of the Board, in the case of a Board meeting, or all the members
of a committee, in the case of a committee meeting, and such consent is filed
with the minutes of the proceedings of the Board or such committee.
(h) ACTION BY MEANS OF TELEPHONE OR SIMILAR COMMUNICATIONS
EQUIPMENT. Any one or more members of the Board, or of any committee thereof,
may participate in a meeting of the Board or such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
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(i) COMPENSATION. Directors shall not receive any salary or
compensation for their services as directors or as members of committees, except
as authorized by Stockholders holding a majority of the shares of Stock (the
"SHARES"). The directors shall be entitled to be reimbursed for traveling
expenses properly incurred by them in attending meetings of the Board or any
committee thereof. Nothing herein shall preclude any director from serving
General Partner or MSV LP in any other capacity and receiving compensation
therefor.
(j) SELECTION OF OFFICERS. Any changes to the officers of
General Partner shall be approved by a vote of the majority of the Board
members.
(k) AGREEMENTS WITH LIMITED PARTNERS OR THEIR AFFILIATES.
Notwithstanding the grant of authority to General Partner under Section 6.1 of
the MSV LP Agreement, without the prior written consent of the majority of the
disinterested directors (or, if the majority of the directors are designees of
interested parties, the entire Board) and any prior written consent of Limited
Partners of MSV LP required by the MSV LP Agreement, the Board shall not permit
or cause General Partner or MSV LP to enter into transactions with its Limited
Partners or Affiliates of its Limited Partners except as otherwise permitted in
the Investment Agreement.
Section 4. AGREEMENT OF STOCKHOLDERS AND GENERAL PARTNER.
(a) AGREEMENT TO VOTE SHARES TO ELECT DIRECTORS. Each
Stockholder hereby agrees to take all action necessary (including voting or
causing to be voted, or acting by written consent with respect to, any and all
Shares held by him or it on the record date for establishing the Stockholders
entitled to vote for the election of directors of General Partner) to cause the
designees of the Telcom Investor Group, the Columbia Investor Group, and the
Spectrum Investor Group, the Motient Sub designees, the TMI Sub designees, the
MSV Investors designees, the CEO and Xx. Xxxxxxx to be elected to the Board, in
accordance with the provisions hereof.
(b) AGREEMENT TO EFFECT TERRESTAR SPIN-OFF. Each Stockholder
and General Partner hereby agree to use their best efforts as promptly as
possible, and in any event by November 23, 2004, to take such actions as may be
necessary to effect the distribution by MSV LP of all of the outstanding shares
of common stock of TerreStar Networks Inc. ("TERRESTAR") to the limited partners
of MSV LP.
Section 5. STOCKHOLDER MEETINGS.
(a) REGULAR MEETINGS. The Stockholders shall meet annually,
unless otherwise agreed by the Board. Such meetings shall be held on such date
as shall be determined by the a majority of the Board.
(b) SPECIAL MEETINGS. Special meetings of the Stockholders
shall be held at such times as the Board, the President or a majority in
interest of the Stockholders shall from time to time determine.
(c) NOTICE OF MEETINGS. The Secretary shall give written
notice to the President and each Stockholder of each meeting of the
Stockholders, which notice shall state the place, date, time and purpose of such
meeting. Notice of each such meeting shall be given to each Stockholder, if by
mail, to the address set forth with respect to such Stockholder in SCHEDULE I,
at least five (5) Business Days before the day on which such meeting is to be
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held, or shall be sent to such Stockholder by telecopy, telegraph, cable, or
other form of recorded communication, or be delivered personally or by telephone
not later than forty-eight (48) hours before the time at which such meeting is
to be held; PROVIDED, HOWEVER, that if any Stockholder objects to the holding of
such Stockholder meeting at the requested time and date, such meeting shall be
held five (5) Business Days following the date that such notice was given. A
written waiver of notice, signed by the Stockholder entitled to notice, whether
before or after the time of the meeting referred to in such waiver, shall be
deemed equivalent to notice. Neither the business to be transacted at, nor the
purpose of any meeting of the Stockholders need be specified in any written
waiver of notice thereof. Attendance of a Stockholder at a meeting of the
Stockholders shall constitute a waiver of notice of such meeting.
(d) PLACE OF MEETINGS. The Stockholders may hold their
meetings at such place or places within or without the State of Delaware as the
President may from time to time determine, or as shall be designated in the
respective notices or waivers of notice of such meetings.
(e) QUORUM AND MANNER OF ACTING. The Stockholders holding the
majority of the Shares shall be present in person or by proxy at any meeting of
the Stockholders in order to constitute a quorum for the transaction of business
at such meeting, and, except as otherwise provided herein or in the Investment
Agreement, the vote of those Stockholders holding a majority of the Shares,
present at any such meeting at which a quorum is present, shall be necessary for
the passage of any resolution or act of the Stockholders, except as otherwise
expressly required by this Agreement. In the absence of a quorum for any such
meeting, holders of a majority of the Shares present thereat may adjourn such
meeting from time to time until a quorum shall be present.
(f) STOCKHOLDERS' CONSENT IN LIEU OF MEETING. Any action
required or permitted to be taken at any meeting of the Stockholders may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the
Stockholders holding the requisite number of Shares for the taking the relevant
action and such consent is filed with the minutes of the proceedings of the
Stockholders.
(g) ACTION BY MEANS OF TELEPHONE OR SIMILAR COMMUNICATIONS
EQUIPMENT. Any one or more Stockholders may participate in a meeting of the
Stockholders by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
Section 6. ASSIGNMENT; RESTRICTION ON TRANSFER. The rights of
the Stockholders to designate directors hereunder may not be transferred, except
in accordance with Section 2(b)(i).
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Section 7. TRANSFER OF SHARES. The Stockholders each undertake
to take such actions and execute such documents as may be necessary to insure
that the proportionate ownership of General Partner at all times reflects the
then-current proportional ownership of Limited Partnership Interests in MSV LP,
excluding for this purpose, any Limited Investor. In furtherance of the
foregoing, except for Transfers made simultaneously with permitted transfers of
Limited Partnership Interests made in accordance with the terms of Section 8 of
this Agreement, each Stockholder agrees not to, directly or indirectly, sell,
assign, transfer, pledge, encumber, hypothecate, mortgage or otherwise dispose
of, either voluntarily or involuntarily (or to enter into any contract, option
or other arrangement or understanding to do any of the foregoing) (a
"TRANSFER"), any Shares; PROVIDED, HOWEVER, that TMI Sub shall be permitted to
pledge its Shares pursuant to the Pledge Agreement. In addition, each
Stockholder hereby undertakes to, at the same time that it transfers any of its
Limited Partnership Interests, Transfer its Shares (or the same portion thereof
as the Limited Partnership Interests being transferred bear to its total Limited
Partnership Interests) to the purchaser or assignee of any of its Limited
Partnership Interests in accordance with Section 8 of this Agreement. Following
a Transfer of such Shares, such Shares shall remain subject to the provisions of
this Agreement, and the transferee shall execute and deliver to General Partner
a written agreement to be bound by this Agreement in form and substance
reasonably satisfactory to General Partner. Notwithstanding the foregoing,
except as set forth in Section 2(b)(i) with respect to Transfers to an Investor
Group Assignee, in connection with transfers of Limited Partnership Interests
pursuant to Sections 8.2(c) or (d) of this Agreement, no transferee shall have
the right to designate directors pursuant hereto.
Section 8. TRANSFERS, ADMISSION OF LIMITED PARTNERS AND
CONVERSION.
Section 8.1 ADDITIONAL ISSUANCES OF INTERESTS.
(a) In order to raise capital for MSV LP operations or to
acquire assets, to redeem or retire MSV LP debt, or for any other valid MSV LP
purposes, General Partner may, subject to the provisions of this Section 8.1,
from time to time determine that it is in the best interests of MSV LP to cause
MSV LP to issue additional interests in MSV LP to the Limited Partners or other
Persons and to admit such other Persons to MSV LP as Additional Limited Partners
pursuant to Section 8.4. General Partner shall determine the consideration for
and the terms and conditions with respect to any future issuance of interests in
MSV LP.
(b) Subject to clause (h) below, General Partner shall not
issue any interests in MSV LP unless it first delivers to each Limited Partner
(each such Person being referred to in this Section 8.1 as a "BUYER") a written
notice (the "NOTICE OF PROPOSED ISSUANCE") specifying the type and amount of
such interests that MSV LP then intends to issue (the "OFFERED INTERESTS"), all
of the material terms, including the price (cash or non-cash) upon which MSV LP
proposes to issue the Offered Interests and stating that the Buyers shall have
the right to purchase the Offered Interests in the manner specified in this
Section 8.1 for the same price per share and in accordance with the same terms
and conditions specified in such Notice of Proposed Issuance, PROVIDED, that if
such price consists of non-cash consideration, a Buyer may purchase the Offered
Interest with the same type and amount of non-cash consideration described in
such Notice of Proposed Issuance or, may instead, pay for such Offered Interests
with the cash equivalent of such price.
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(c) During the ten (10) consecutive day period commencing on
the date MSV LP delivers to all of the Buyers the Notice of Proposed Issuance
(the "TEN DAY PERIOD"), the Buyers shall have the option to purchase up to all
of the Offered Interests at the same price and upon the same terms and
conditions specified in the Notice of Proposed Issuance. Each Buyer electing to
purchase Offered Interests must give written notice of its election to General
Partner prior to the expiration of the Ten Day Period.
(d) Each Buyer shall have the right to purchase up to that
percentage of the Offered Interests equal to the Percentage Interest then held
by such Buyer. The amount of such Offered Interests that each Buyer is entitled
to purchase under this Section 8.1 shall be referred to as its "PROPORTIONATE
SHARE."
(e) Each Buyer shall have a right of oversubscription such
that if any other Buyer fails to elect to purchase his or its full Proportionate
Share of the Offered Interests, the other Buyer(s) shall, among them, have the
right to purchase up to the balance of such Offered Interests not so purchased.
The Buyers may exercise such right of oversubscription by electing to purchase
more than their Proportionate Share of the Offered Interests by so indicating in
their written notice given during the Ten Day Period. If, as a result thereof,
such oversubscription elections exceed the total number of the Offered Interests
available in respect to such oversubscription privilege, the oversubscribing
Buyers shall be cut back with respect to oversubscriptions on a pro rata basis
in accordance with their respective Proportionate Share or as they may otherwise
agree among themselves.
(f) If all of the Offered Interests have not been purchased by
the Buyers pursuant to the foregoing provisions, then General Partner shall have
the right, until the expiration of one hundred eighty (180) consecutive days
commencing on the first day immediately following the expiration of the Ten Day
Period, to issue the Offered Interests not purchased by the Buyers at not less
than, and on terms no more favorable in any material respect to the purchaser(s)
thereof than, the price and terms specified in the Notice of Proposed Issuance.
If such remaining Offered Interests are not issued within such period and at
such price and on such terms, the right to issue in accordance with the Notice
of Proposed Issuance shall expire and the provisions of this Agreement shall
continue to be applicable to the Offered Interests.
(g) Notwithstanding the foregoing, the rights described in
this Section 8.1 shall not apply with respect to the issuance of Excluded
Securities.
(h) Notwithstanding the foregoing, General Partner may proceed
with the issuance of interests in MSV LP without first following the procedures
in clauses (b)-(f) above, provided that the purchaser of such interests (the
"NEW PURCHASER") agrees in writing to take such interests subject to the
provisions of this Section 8.1(h). In such event the following provisions shall
apply:
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(i) Within ten (10) days following the issuance of
such interests, General Partner or the New Purchaser shall issue to each Buyer a
written notice (the "NOTICE OF ISSUANCE") specifying the type and amount of such
interests that MSV LP has issued (the "ISSUED INTERESTs"), all of the material
terms, including the price (the "ISSUED INTEREST PRICE") at which MSV LP issued
the Issued Interests and stating that the Buyers shall have the right to
purchase Issued Interests in the manner specified below for the same price per
Unit and in accordance with the same terms and conditions specified in such
Notice of Issuance.
(ii) During the ten (10) consecutive day period
commencing on the date MSV LP or the New Purchaser delivers to all of the Buyers
the Notice of Issuance (the "ISSUANCE TEN DAY PERIOD"), the Buyers shall have
the option to purchase up to all of the Issued Interests for the same type and
amount per Issued Interest of cash or non-cash consideration paid by the New
Purchaser or cash in an amount equivalent in value to the Issued Interest Price
and upon the same terms and conditions specified in the Notice of Issuance. Each
Buyer electing to purchase Issued Interests must give written notice of its
election to the deliverer of the Notice of Issuance prior to the expiration of
the Issuance Ten Day Period.
(iii) Each Buyer shall have the right to purchase
from the New Purchaser up to that percentage of the Issued Interests equal to
the Proportionate Share held by such Buyer immediately prior to the issuance of
the Issued Interests.
(iv) Each Buyer shall have a right of
oversubscription such that if any other Buyer fails to elect to purchase his or
its full Proportionate Share of the Issued Interests, the other Buyer(s) shall,
among them, have the right to purchase up to the balance of such Issued
Interests not so purchased. The Buyers may exercise such right of
oversubscription by electing to purchase more than their Proportionate Share of
the Issued Interests by so indicating in their written notice given during the
Issuance Ten Day Period. If, as a result thereof, such oversubscription
elections exceed the total number of the Issued Interests available in respect
to such oversubscription privilege, the oversubscribing Buyers shall be cut back
with respect to oversubscriptions on a pro rata basis in accordance with their
respective Proportionate Share or as they may otherwise agree among themselves.
(v) Any Issued Interests that have not been purchased
by the Buyers pursuant to the foregoing provisions shall remain owned by the New
Purchaser.
(vi) Notwithstanding anything in this clause (h) to
the contrary, in the event the Buyers elect, within the Issuance Ten Day Period,
to purchase less than all of the Issued Interests then, in lieu of the Buyers
purchasing Issued Interests from the New Purchaser, General Partner may elect to
issue directly to such Buyers, for the same type and amount per Issued Interest
of cash or non-cash consideration paid by the New Purchaser or cash in an amount
equivalent in value to the Issued Interest Price, an equivalent amount of
additional securities that are identical to the Issued Interests in all material
respects.
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Section 8.2 TRANSFERS. No Limited Partner may assign or
transfer all or any part of its Limited Partnership Interest to any Person,
except in compliance with the following:
(a) RIGHT OF FIRST REFUSAL. In the event that a Limited
Partner (a "SELLING PARTY") proposes to transfer all or a portion of its Limited
Partnership Interest to any third party, other than in accordance with Section
8.2(c) or (d), pursuant to a bona fide offer, such Selling Party will provide
notice of such proposed transfer (including the identity of the proposed
purchaser of such interest, the amount of interests proposed to be transferred
and the proposed terms thereof) (the "TRANSFER NOTICE"), at least fifteen (15)
Business Days prior to the proposed transfer, to each other Limited Partner,
whereupon each other Limited Partner shall have the right to purchase, at the
same price and upon the same terms and conditions set forth in the Transfer
Notice, a pro rata portion of such interest based upon such Limited Partner's
portion of the Percentage Interests held by all Limited Partners other than the
Selling Party. Except as set forth in the next sentence, the purchase price
shall be payable in cash. In the event that the Transfer Notice specifies the
payment of consideration other than cash, the purchase price for purposes of
this Section 8.2(a) shall either be (x) the cash equivalent of such
consideration, determined by General Partner in good faith or (y) to the extent
the participating Limited Partner elects, the same type and amount of non-cash
consideration that is proposed to be paid as described in the Transfer Notice.
The Transfer Notice shall constitute an irrevocable offer by the Selling Party
to sell to the other Limited Partners such interests at the price and on the
terms as contained in such Transfer Notice. Each Limited Partner desiring to
participate in such purchase shall provide the Selling Party and each other
Limited Partner notice of its agreement to participate (the "PARTICIPATION
NOTICE") within ten (10) Business Days of receipt of the Transfer Notice
specifying such participation and whether and the extent to which such Limited
Partner wishes to acquire any remaining, unallocated portion of the proposed
transfer (the "UNALLOCATED PORTION"). In the event that one or more of the other
Limited Partners do not provide a timely Participation Notice, the Unallocated
Portion shall be allocated in pro rata proportion to the Percentage Interest
held by each of the Limited Partners who submits a Participation Notice to the
extent of such Limited Partner's indicated willingness to acquire any
Unallocated Portion as provided in such Limited Partners' Participation Notice.
The Participation Notice shall be deemed to be an irrevocable commitment to
purchase from the Selling Party, at the price (or the cash equivalent thereof)
and on the terms as contained in the Transfer Notice, the amount of the
interests that such Limited Partner specifies in the Participation Notice. In
the event that the Limited Partners are not willing to purchase all of the
interests offered pursuant to the Transfer Notice, and the amount of interests
which the Selling Party has offered to sell pursuant to the Transfer Notice less
the amount of interests the Limited Partners are willing to accept is less than
the minimum amount of interests which the offeror is willing to purchase
pursuant to the bona fide offer described in the Transfer Notice, then the
Limited Partners shall be deemed to have rejected the offer contained in the
Transfer Notice in its entirety and the Selling Party shall be permitted to
proceed with the sale described in the Transfer Notice. In the event that the
Limited Partners shall have accepted all or part of the interests offered
pursuant to the Transfer Notice (and shall not have been deemed to have rejected
12
the offer in its entirety as described in the immediately preceding sentence),
then the Selling Party shall sell to such Limited Partners such interests as
have been accepted by such Limited Partners as specified in such Limited
Partner's Participation Notice on the terms contained in the Transfer Notice.
Any interests not sold to the Limited Partners pursuant to the preceding
sentence may be sold to a third party, including the original offeror, at a
price not lower than, and on such other terms and conditions not more favorable
to such third party than, those contained in the original Transfer Notice, at
any time within one hundred eighty (180) days after the expiration of the offer
required by this Section 8.2(a). In the event the interests are not transferred
by the Selling Party on such terms during such one hundred eighty (180) day
period, the restrictions of this Section 8.2(a) shall again become applicable to
any transfer of interests by the Selling Party.
(b) TAG ALONG RIGHTS.
(i) GENERAL. No Selling Party may transfer (other
than pursuant to Section 8.2(c) or 8.2(d)) Limited Partnership Interests held
by such Selling Party to any Person, unless the terms and conditions of such
transfer shall include an offer by the third party transferee to the other
Limited Partners (each, a "TAG ALONG PARTICIPANT"), at a price calculated using
the same methodology used to calculate the price of the Selling Party's Limited
Partnership Interest taking into account the relative capital accounts and
distribution rights of the Tag Along Participants (such price, the "TAG ALONG
PRICE") and on the same terms and conditions as the Selling Party has agreed to
sell its Limited Partnership Interest, to include in the transfer to the third
party transferee a portion of Limited Partnership Interests.
(ii) OBLIGATION OF TRANSFEREE TO PURCHASE. The
third-party transferee of the Selling Party shall purchase from each Tag Along
Participant the portion of such Tag Along Participant's Limited Partnership
Interest that such Tag Along Participant desires to sell, provided that such
portion does not exceed the Maximum Tag Along Portion (as defined below) and, if
such portion exceeds the Maximum Tag Along Portion, the transferee shall
purchase only the Maximum Tag Along Portion. For purposes hereof, the term
"MAXIMUM TAG ALONG PORTION" means a portion of a Tag Along Participant's Limited
Partnership Interest the price of which (based on the Tag Along Price of such
Limited Partnership Interest) equals the total original price proposed to be
paid by the transferee for the Selling Party's Limited Partnership Interest
multiplied by a fraction, the numerator of which is the Tag Along Price of such
portion which such Tag Along Participant desires to include in such sale and the
denominator of which is the aggregate Tag Along Price of the Limited Partnership
Interests that the Selling Party and each Tag Along Participant desires to
include in such sale.
(iii) EXERCISE. The tag-along right may be exercised
by each Tag-Along Participant by delivery of a written notice to the
Selling Party (the "TAG ALONG NOTICE") within 15 calendar days following receipt
of the Transfer Notice. The Tag Along Notice shall state the portion of a
Limited Partnership Interest that such Tag Along Participant wishes to include
in such transfer to the transferee. Upon the giving of a Tag Along Notice, such
Tag Along Participant shall be entitled and obligated to sell the portion of its
Limited Partnership Interest set forth in the Tag Along Notice, to the
transferee on the terms and conditions set forth in the Transfer Notice (the
"TRANSFEREE TERMS"); provided, however, the Selling Party shall not consummate
13
the sale of any Limited Partnership Interest offered by it if the transferee
does not purchase all Limited Partnership Interests which each Tag Along
Participant is entitled and desires to sell pursuant hereto. After expiration of
the 15 calendar-day period referred to above, if the provisions of this Section
have been complied with in all respects, the Selling Party and each Tag Along
Participant that delivered a Tag Along Notice shall transfer the Limited
Partnership Interests determined in accordance with Section 8.2(b)(ii) to the
transferee on the Transferee Terms on the sale date proposed in the Transfer
Notice (or such other date within sixty (60) days of such proposed sale date as
may be agreed among the participants in such transfer).
(iv) SEVERAL LIABILITY. Anything to the contrary
contained herein notwithstanding, the Selling Party agrees to use its
reasonable good faith efforts to seek to ensure that the applicable Transferee
Terms provide for several, and not joint, liability, with respect to the
indemnification and comparable obligations contained within such Transferee
Terms.
(v) The tag-along rights set forth in this Section
8.2(b) shall not be deliberately circumvented by a Selling Party under
circumstances where the other Limited Partners would have a reasonable
expectation that such tag-along rights would apply.
(c) Subject to Sections 8.2(e), (f) and (g), a Limited Partner
may at any time and from time to time (i) transfer all or part of such Limited
Partner's Limited Partnership Interest to any of such Limited Partner's Family
Members provided that such Limited Partner shall provide the other Partners
notice of the identity of such Family Member transferee, (ii) transfer all or
part of its Limited Partnership Interest to its members, partners, shareholders
or other equity holders, as the case may be ("DISTRIBUTEE"), pro-rata in
accordance with the governing documents of the Limited Partner, and without
consideration, or (iii) transfer all or part of such Limited Partner's Limited
Partnership Interest to a Control Party of such Limited Partner; PROVIDED, that
such Limited Partner and Control Party agree with MSV LP in writing that such
Control Party shall transfer such Limited Partnership Interest back to such
Limited Partner immediately upon such Person ceasing to be a Control Party of
such Limited Partner. A Limited Partner may at any time and from time to time
pledge or hypothecate, in connection with its bona fide financing arrangements
(including, in the case of Motient, under its current guaranteed bank
facilities), its Limited Partnership Interest, PROVIDED, that upon foreclosure
or other execution of the pledge or hypothecation, any assignment or transfer
shall be subject to Sections 8.2(e), (f) and (g). Subject to Sections 8.2(e),
(f) and (g) and Section 8.6, a Limited Partner that is a member of the Telcom
Investor Group, Columbia Investor Group or Spectrum Investor Group may at any
time and from time to time transfer all or part of its Limited Partnership
Interest to another Limited Partner that is a member of the Telcom Investor
Group, Columbia Investor Group or Spectrum Investor Group.
14
(d) Each of TMI Sub, Motient Sub and MSV Investors shall have
the right, subject to Sections 8.2(a), (e), (f), and (g), to assign or transfer
its interest in MSV LP to any Person owning 10% or more of the outstanding
common stock of BCE Inc., Motient or SkyTerra Communications, Inc.,
respectively, and each other Limited Partner shall have the right, subject to
Sections 8.2(a), (e), (f), and (g), to assign or transfer its interest in MSV LP
to any Person owning ten percent (10%) or more of the ownership interests in
such Limited Partner; PROVIDED that in the case of a transfer by TMI Sub, such
transferee agrees to be bound by the terms and conditions of (i) the
Non-Interference Agreement, dated as of November 26, 2001, between BCE Inc. and
MSV LP (as amended, supplemented or modified from time to time, the
"NON-INTERFERENCE AGREEMENT") applicable to BCE Inc., (ii) the Stockholders
Agreement, dated as of November 26, 2001, by and among TMI, MSV LP, Canadian
Holdco and Canadian License Co. and (iii) the Pledge Agreement.
(e) In addition to any other requirements of this Agreement
relating to a transfer of Limited Partnership Interests, no Limited Partnership
Interest shall be transferred or assigned unless the transferee (i) executes an
instrument satisfactory to General Partner accepting all of the terms and
conditions relating to a Limited Partner set forth in this Agreement and the MSV
LP Agreement, (ii) pays any reasonable expenses of MSV LP incurred in connection
with such transfer or assignment (including, without limitation, attorney's
fees) and (iii) is either an "accredited investor" (as defined in Rule 501
promulgated under the Securities Act of 1933, as amended (the "SECURITIES ACT"))
or provides an opinion of counsel reasonably acceptable to General Partner that
the transfer will not require registration under the Securities Act.
(f) Notwithstanding any other provisions of this Agreement to
the contrary, General Partner may prohibit any proposed transfer if, in the
reasonable determination of the General Partner, such transfer would (i) result
in the close of MSV LP's taxable year with respect to all Limited Partners, in
the termination of MSV LP within the meaning of ss. 708(b) of the Code or in the
termination of its status as a partnership under the Code, (ii) cause MSV LP to
be in violation of any applicable state or federal securities laws or (iii)
result in an interest in MSV LP being held by a Person whose participation in
the ownership of MSV LP would be detrimental to MSV LP; PROVIDED, HOWEVER, that
no transfer made pursuant to Section 8.2(c) hereof shall be deemed detrimental
to MSV LP.
(g) To the extent that any regulatory approval, notification
or other submission or procedure is required or customarily provided in
connection with the exercise of any right or obligations as set forth in this
Agreement or the MSV LP Agreement with respect to the transfer or assignment of
interests in MSV LP (including, but not limited to, FCC approvals (if required),
filings under the HSR Act and applicable securities laws), such transfer or
assignment pursuant to this Agreement will be delayed and will only take place
after such approval, notification or other submission or procedure has been
obtained, submitted or completed, as determined by General Partner.
(h) In addition to any other restrictions regarding TMI Sub's
right to transfer the Limited Partnership Interests held by it contained herein
or in any Ancillary Agreement, TMI Sub shall not be permitted to transfer its
Limited Partnership Interests except to a Person (or an Affiliate of such
Person) that is also simultaneously acquiring TMI's direct or indirect ownership
interests in Canadian Holdco and Canadian License Co. Any purported transfer of
TMI Sub's Limited Partnership Interests in contravention of this subsection (h)
shall be void and of no effect.
15
(i) Any transfer of Limited Partnership Interests hereunder
shall be deemed to include a proportional transfer of the transferor's Units and
Capital Account, adjusted for all prior allocations and distributions with
respect to the transferred Capital Account for purposes of Articles VII and VIII
of the MSV LP Agreement.
(j) Intentionally Omitted.
(k) For purposes of this Agreement, the sale or transfer of
any equity or other ownership interests in any Intervening Entity (an
"INTERVENING ENTITY OWNERSHIP CHANGE") shall be deemed to constitute a transfer
of the aggregate Limited Partnership Interests held by that Limited Partner
multiplied by a fraction, the numerator of which is the percentage ownership of
the Intervening Entity so sold or transferred and the denominator of which is
100%. If such a deemed transfer of Limited Partnership Interests occurs without
compliance with or as permitted by the provisions of Section 8.2(a) though
8.2(i) (as applicable) of this Agreement then, without limiting the rights of
MSV LP or the other Partners at law or in equity, all of the Limited Partners
(other than the Limited Partner which is so deemed to have transferred Limited
Partnership Interests) shall have the right to purchase the Limited Partnership
Interests so deemed transferred as if such Limited Partnership Interests were
being offered for sale pursuant to the provisions of Section 8.2(a) (the
provisions of which are hereby incorporated by reference, mutatis mutandis) for
the same amount of consideration to be given to the Intervening Entity or its
owners, in respect of the Intervening Entity Ownership Change.
(l) Any attempted transfer of Units or Limited Partnership
Interests in violation of this Agreement shall be void and of no effect.
Section 8.3 ADMISSION OF SUBSTITUTED LIMITED PARTNERS.
(a) An assignee or transferee of an interest in MSV LP shall
not be admitted to MSV LP as a substituted Limited Partner until (i) such
assignee or transferee and transferring Limited Partner has complied with all of
the conditions and procedures set forth in Section 8.2, (ii) such assignee or
transferee has confirmed in writing to General Partner that it has reviewed the
terms and conditions of this Agreement, the MSV LP Agreement, the Investment
Agreement and each of the Ancillary Agreements including, without limitation,
the events of default, remedy and forfeiture provisions of the Pledge Agreement,
and (iii) payment of any reasonable expenses of MSV LP incurred in connection
with such admission (including, without limitation, attorney's fees). Such
assignee or transferee shall automatically be admitted to MSV LP as a Limited
Partner following satisfaction of the provisions of this Section 8.3(a).
16
(b) A Person who acquires any Limited Partnership Interests of
a Limited Partner pursuant to Section 8.2 but who is not admitted as a
substituted Limited Partner pursuant to Section 8.3(a) shall be entitled only to
allocations and distributions with respect to such acquired Limited Partnership
interests in accordance with this Agreement, but shall have no right to vote or
give consent hereunder, to obtain any information or accounting of the affairs
of MSV LP, shall not solely as a result of its acquisition of such Limited
Partnership Interests obtain or have the right to obtain any shares in General
Partner, shall not be entitled to inspect the books or records of MSV LP and
shall not have any rights of a Limited Partner under the Delaware Act, this
Agreement or the MSV LP Agreement.
(c) A transferor of interests shall remain a Limited Partner
of MSV LP with respect to such transferred interests until such time, if ever,
as the transferee of such interests is admitted as a substituted Limited Partner
in accordance with this Agreement.
Section 8.4 ADMISSION OF ADDITIONAL LIMITED PARTNERS. A Person
(other than a current Limited Partner) who purchases from MSV LP interests
issued pursuant to Section 8.1 shall be admitted to MSV LP as an Additional
Limited Partner upon furnishing to MSV LP (a) a subscription agreement, in form
satisfactory to the General Partner, which agreement shall include an acceptance
by such Person of all the terms and conditions of this Agreement, and (b) such
other documents as the General Partner deems necessary or advisable. Such
admission shall become effective on the date that the General Partner determines
that such conditions have been satisfied.
Section 8.5 CORPORATE CONVERSION; DRAG-ALONG RIGHTS.
(a) At the General Partner's discretion, MSV LP shall be
converted into corporate form ("MSV") by merger, statutory conversion or any
other method set forth in such consent (the "CORPORATE CONVERSION"). If the
Corporate Conversion is in connection with an initial public offering of MSV
LP's (or its successor's) securities, the outstanding interests in MSV LP shall
be converted into common stock of MSV in accordance with the Percentage
Interests represented by such Limited Partnership Interests, and each holder of
such interests shall take such steps as may be reasonably requested by the
General Partner in connection therewith, whereupon the rights and obligations of
the Limited Partners hereunder, including, without limitation, those arising
under Article 6, shall cease and have no further force and effect. If a
Corporate Conversion is approved for any purpose other than in connection with
an initial public offering of MSV LP's (or its successor's) securities, (i) the
respective outstanding interests of MSV LP shall be converted into securities of
MSV which track, as closely as practicable, the economic, voting and other
rights represented by such outstanding interests immediately prior to the
Corporate Conversion and (ii) the holders of such interests shall enter into a
shareholders agreement and such other agreements and the organizational
documents of MSV will contain such provisions as may be necessary, to allow MSV
to mimic, as closely as practicable, the governance and other operating
provisions of the MSV LP Agreement, including, without limitation, an agreement
by all shareholders holding stock with special voting, economic or other rights
17
to convert such stock into common stock immediately prior to the initial public
offering of MSV securities on a basis similar to that contemplated by the second
sentence of this Section 8.5(a). In effecting a Corporate Conversion, the
General Partner shall cooperate in good faith with TMI Sub to reduce any adverse
tax consequences to TMI Sub resulting from the Corporate Conversion. In the
event MSV LP effectuates a Corporate Conversion, the Stockholders who are
blocker C corporations ("BLOCKER C CORPORATIONS") shall, if so requested by
their parents, in a reorganization intended to be tax-free, be merged with and
into or contributed to MSV LP's successor corporation in exchange for shares of
the successor corporation, such that the stockholders of the applicable Blocker
C Corporations become direct stockholders of the successor corporation upon the
same terms as would be applicable to the Blocker C Corporations had such merger
or contribution not occurred, and, if such Corporate Conversion is effected
other than in connection with an initial public offering of MSV LP's (or its
successor's) securities, such stockholders shall enter into a stockholders'
agreement and such other agreements as may be necessary to allow MSV to mimic,
as closely as practicable, the governance and other operating provisions of MSV
LP's existing governance documents. The consummation of any such merger or
contribution shall be subject to the receipt or waiver of any third-party or
government consents, approvals and authorizations as may be necessary or
advisable in connection therewith, including, but not limited to, expiration or
termination of any applicable waiting period under the HSR Act, and shall be
effected pursuant to a merger or contribution agreement reasonably acceptable to
MSV LP or the successor corporation, as applicable; provided that such Blocker C
Corporation shall be a corporation permitted under applicable law and its
governing instruments to effectuate such merger or contribution transaction and
shall have represented and warranted to MSV LP or the successor corporation that
such Blocker C Corporation has no assets or liabilities other than its Limited
Partnership Interests and Shares and its rights and obligations under this
Agreement, the MSV LP Agreement, the Investment Agreement, the Pledge Agreement
and the Voting Agreement.
(b) If the Required Majority determines to transfer or
exchange (in a merger, business combination or otherwise) in one or a series of
related bona fide arm's-length transactions (collectively, the "DRAG-ALONG
TRANSACTION") to an unrelated and unaffiliated third party all of the Limited
Partnership Interests held by such Limited Partners, then, upon thirty (30)
days' written notice to the other Limited Partners and MSV LP (the "DRAG-ALONG
NOTICE"), which notice shall include reasonable details of the proposed
transaction, including the consideration to be received by the Limited Partners,
each other Limited Partner and holder of Limited Partnership Interests shall be
obligated to, and shall sell, transfer and deliver, or cause to be sold,
transferred and delivered, to such third party, all of its Limited Partnership
Interests in the same transaction at the closing thereof (and will deliver such
Limited Partnership Interests free and clear of all liens, claims, or
encumbrances except this Agreement or the MSV LP Agreement) (or shall vote in
favor of or consent to any transaction requiring the vote or consent of Limited
Partners), and shall otherwise cooperate in the consummation of such
transaction, and the consideration to be paid to the Limited Partners shall be
deemed to be Capital Proceeds and shall be distributed to the Limited Partners
pursuant to Section 8.6 of the MSV LP Agreement as if such transaction were a
Capital Event. In the event a Drag-Along Transaction is initiated by the
Investors, unless the consideration to be received by the Limited Partners is
18
based solely on the respective Percentage Interests held by such Limited
Partners, after the second anniversary date of the Subsequent Closing, each of
Motient and TMI shall have thirty (30) days from receipt of the Drag-Along
Notice to make, or cause a third party to make, a bona fide offer that is no
less favorable to the Investors and the other Limited Partners than the terms,
conditions and consideration of the Drag-Along Transaction described in such
Drag-Along Notice and which will be consummated within thirty (30) days after
such offer is made.
Section 8.6 ACTIONS REQUIRING CONSENT. Without the prior
written consent of the Required Majority, no Stockholder or Limited Partner
(including any Affiliate of such Stockholder or Limited Partner) shall acquire
in any transaction or series of related transactions direct or indirect
ownership of more than 49% of (a) the outstanding shares of Stock or (b) the
outstanding Units (including in each case any Stock or Units attributable to
unexercised options or warrants or other similar securities owned by such
Stockholder or Limited Partner or their Affiliates).
Section 9. LEGENDS. Each Stockholder consents to General
Partner inserting appropriate legends referencing the restrictions and
obligations contained in this Agreement on the certificates representing the
Shares held by the Stockholders on or after the date of this Agreement.
Section 10. STOCKHOLDERS' REPRESENTATION. Each Stockholder
hereby represents that, notwithstanding anything herein to the contrary, it has
no plan or intention to consummate any Transfer of Shares.
Section 11. MISCELLANEOUS.
(a) REPRESENTATION. No Stockholder is a party to any other
agreement, other than the MSV LP Agreement, the Investment Agreement, the Pledge
Agreement and that certain Voting Agreement, dated as of the date hereof (the
"VOTING AGREEMENT"), by and among the Spectrum Investor Group, the Telcom
Investor Group, the Columbia Investor Group, TMI Sub and MSV Investors, with
respect to the transfer or disposition of voting rights with respect to any
Shares.
(b) SEVERABILITY. Should any one or more of the provisions of
this Agreement be determined to be illegal or unenforceable, each other
provision of this Agreement shall be given effect separately from the provision
or provisions determined to be illegal or unenforceable and shall not be
affected thereby.
(c) NO WAIVER. No failure or delay on the part of any party in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder.
(d) ENTIRE AGREEMENT. This Agreement, the Investment
Agreement, the MSV LP Agreement and the Purchase Agreement, together with the
exhibits thereto constitute the entire agreement among the parties pertaining to
the subject matter hereof and supersede all prior agreements and understandings
of the parties in connection herewith, including but not limited to the November
2001 Stockholders' Agreement.
19
(e) AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified and supplemented only by written agreement of the holders of a majority
of the Shares (or, in the event the provision to be amended contains language
requiring the consent of a greater percentage of the Shares, such greater
percentage); PROVIDED, HOWEVER, that any amendment, modification or supplement
to this Agreement that would adversely affect any individual Stockholder, or
group of Stockholders, in a manner different than its effect on other
Stockholders, shall require the prior written consent of such Stockholder(s).
Notwithstanding the foregoing, if MSV LP shall admit any new limited partner and
the Board shall determine that the Board should be expanded to allow for
representation on the Board by such new limited partner, this Agreement may be
amended by the written agreement of the holders of a majority of the Shares to
provide for one or more additional directors (the number of such additional
directors to be reasonably proportionate to the Percentage Interest in MSV LP
held by such new limited partner), which director(s) shall be designated by such
new limited partner.
(f) REMEDIES. The parties acknowledge and agree that the
breach of any of the terms of this Agreement will cause irreparable injury for
which an adequate remedy at law is not available. Accordingly, it is agreed that
each party hereto shall be entitled to an injunction, restraining order or other
equitable relief to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of competent
jurisdiction in the United States or any state thereof, without the requirement
of the posting of any bond. Such remedies shall be cumulative and non-exclusive
and shall be in addition to any other rights and remedies the parties may have
under this Agreement.
(g) NOTICES. All notices provided for in this Agreement shall
be in writing, duly signed by the party giving such notice, and shall be
delivered personally, sent by a nationally recognized overnight courier,
telecopied or mailed by registered or certified mail, as follows:
(i) If given to General Partner, at General Partner's
mailing address set forth below:
Mobile Satellite Ventures GP Inc.
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to each Stockholder as set forth in clause (ii)
below.
(ii) If given to any Stockholder, at the address set
forth on SCHEDULE I hereof (or as modified from time to time by a Stockholder
upon written notice to General Partner).
20
Notices delivered personally to an addressee or sent by
overnight courier shall be deemed to have been given upon such delivery. Notices
sent by telecopier shall be deemed to have been given upon confirmation by
telecopy answerback (provided that the sending of any such notice is followed
promptly by the mailing of the original of such notice). Notices mailed by
registered or certified mail shall be deemed to have been given upon the
expiration of five (5) Business Days after such notice has been deposited in the
mail.
(h) GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement
shall be governed by and construed in accordance with the law of the State of
Delaware without regard to any applicable principles of conflicts of law. Each
party agrees that, in connection with any legal suit or proceeding arising with
respect to this Agreement, it shall submit to the non-exclusive jurisdiction of
the United States District Court for the Southern District of New York or the
applicable New York state court located in New York County and agrees to venue
in such courts.
(i) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
[SIGNATURE PAGES TO FOLLOW]
21
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first written above.
MOBILE SATELLITE VENTURES GP INC.
By: /S/ XXXXX XXXXX
------------------------------------
Name: Xxxxx Xxxxx
Title: Secretary
MOTIENT VENTURES HOLDING INC.
By: /S/ XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
Title: EVP & COO
[SIGNATURE PAGE - AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT]
22
TMI COMMUNICATIONS DELAWARE, LIMITED
PARTNERSHIP
By: 3924505 Canada, Inc., its General
Partner
By: /S/ XXXX XXXXXXXXX
------------------------------------
Name: Xxxx XxXxxxxxx
Title: President
MSV INVESTORS, LLC
By: MSV Investors Holdings, Inc., its
Managing Member
By: /S/ XXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: CEO
[SIGNATURE PAGE - AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT]
23
TELCOM SATELLITE VENTURES II, INC.
By: /S/ XXX X. XXXXXXX
------------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President and General
Counsel
TELCOM SATELLITE VENTURES INC.
By: /S/ XXX X. XXXXXXX
------------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President and General
Counsel
[SIGNATURE PAGE - AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT]
24
SPECTRUM SPACE EQUITY INVESTORS IV-II, INC.
By: /S/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPECTRUM SPACE IV PARALLEL II, INC.
By: /S/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPECTRUM SPACE IV MANAGERS II, INC.
By: /S/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPECTRUM SPACE EQUITY INVESTORS IV, INC.
25
By: /S/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPECTRUM SPACE IV PARALLEL, INC.
By: /S/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
[SIGNATURE PAGE - AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT]
26
SPECTRUM SPACE IV MANAGERS, INC.
By: /S/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
COLUMBIA SPACE (QP) II, INC.
By: /S/ XXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
COLUMBIA SPACE (AI) II, INC.
By: /S/ XXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
COLUMBIA SPACE PARTNERS II, INC.
By: /S/ XXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
[SIGNATURE PAGE - AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT]
27
COLUMBIA SPACE (QP), INC.
By: /S/ XXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
COLUMBIA SPACE (AI), INC.
By: /S/ XXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
COLUMBIA SPACE PARTNERS, INC.
By: /S/ XXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
[SIGNATURE PAGE - AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT]
28
