EXHIBIT 10.2
CONDITIONAL WAIVER AND CONSENT AGREEMENT
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This Conditional Waiver and Consent Agreement (the
"AGREEMENT"), dated as of May 11, 2005, is entered into by and among Motient
Corporation, a Delaware corporation ("MOTIENT"), Motient Ventures Holding Inc.,
a Delaware corporation ("MOTIENT SUB" and, together with Motient, the "MOTIENT
ENTITIES") and each other party named on the signature pages hereto
(collectively, the "OTHER MSV INVESTORS").
RECITALS
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WHEREAS, certain parties to this Agreement are stockholders of
Mobile Satellite Ventures GP Inc., a Delaware corporation, the general partner
("GENERAL PARTNER") of Mobile Satellite Ventures LP, a Delaware limited
partnership ("MSV LP"), and limited partners of MSV LP.
WHEREAS, certain parties to this Agreement are parties to (i)
the 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, as amended (the "PARTNERSHIP AGREEMENT"), (ii) the Amended and Restated
Stockholders' Agreement, dated November 12, 2004, by and among the stockholders
of General Partner (the "STOCKHOLDERS' AGREEMENT"), (iii) the First Amended and
Restated Investment Agreement, dated as of August 8, 2003, by and among MSV LP
and the stockholders of the General Partner (the "INVESTMENT AGREEMENT"), (iv)
the Voting Agreement, dated as of November 12, 2004, by and among certain of the
stockholders of the General Partner (the "VOTING AGREEMENT"), and (v) the Second
Amended and Restated Parent Transfer/Drag Along Agreement, dated as of November
12, 2004, by and among the stockholders of the General Partner and their related
entities named therein (the "PARENT AGREEMENT", and together with the
Partnership Agreement, the Stockholders' Agreement, the Voting Agreement and the
Investment Agreement, the "JV AGREEMENTS").
WHEREAS, on the date hereof MSV LP will distribute all of the
shares of common stock, par value $0.001 per share, of TerreStar Networks Inc.
("TERRESTAR STOCK"), a Delaware corporation ("TERRESTAR"), owned by it to its
limited partners (or their affiliates) on a pro rata basis and Motient Sub will
purchase 8,190,008 shares of TerreStar Stock for aggregate consideration of
$200,000,000.00 (the "MOTIENT SUB FINANCING").
WHEREAS, it is a condition precedent to the consummation of
the Motient Sub Financing that the MSV LP limited partners waive certain rights
and consent to such transaction (the "TERRESTAR WAIVER AND CONSENT") pursuant to
the TerreStar Securityholders' Agreement, dated as of December 20, 2004, by and
among TerreStar, MSV LP and certain other parties named therein (the "EXISTING
SECURITYHOLDERS' AGREEMENT").
WHEREAS, it is also a condition precedent to the consummation
of the Motient Sub Financing that the Existing Securityholders' Agreement be
terminated and the following agreements, among others, be entered into on the
date hereof: (i) a Stockholders' Agreement, by and among the stockholders of
TerreStar (the "NEW TERRESTAR STOCKHOLDERS' AGREEMENT"), (ii) a Third Amendment
to the Pledge and Guarantee Agreement, by and among TMI Communications Delaware,
Limited Partnership and the parties listed on Schedule 1 thereto (the "THIRD
AMENDMENT," and the Pledge and Guarantee Agreement as amended by such Third
Amendment, the "NEW PLEDGE AGREEMENT") and (iii) a Parent Transfer/Drag Along
Agreement, by and among the stockholders of TerreStar and their related entities
named therein (the "NEW TERRESTAR PARENT AGREEMENT," and, together with the New
TerreStar Stockholders' Agreement and the New Pledge Agreement, the "NEW
TERRESTAR DOCUMENTS").
WHEREAS, the Other MSV Investors intend, at some future date,
that there may occur a transaction or series of transactions involving the
consolidation of control, directly or indirectly (by transfer of ownership or
through contract), of units of limited partnership interest in MSV LP ("MSV LP
UNITS") and shares of common stock, par value $0.01 per share, of the General
Partner ("GP SHARES"), owned by MSV Investors, L.L.C. ("MSV INVESTORS") and TMI
Communications Delaware, Limited Partnership ("TMI SUB") (or their respective
affiliates), and which also may involve the consolidation of control (by
transfer of ownership or through contract) of (i) shares of TerreStar Stock
owned by MSV Investors and TMI Sub (or their respective affiliates) and/or (ii)
MSV LP Units, GP Shares, TerreStar Stock and/or outstanding employee options
granted under an employee option plan of MSV LP (the "MSV OPTIONS") owned or
held by any member of the Columbia/Spectrum Investor Group (and/or the Spectrum
Entities (as such term is defined in the New TerreStar Stockholders' Agreement)
if such entities cease to be members of the Columbia/Spectrum Investor Group),
the Limited Holders, the TSTR Group (or their respective affiliates) (each as
defined in the New TerreStar Stockholders' Agreement) and/or the Limited
Investors (as defined in the Stockholders' Agreement) (or their affiliates),
into the Roll-Up Entity (as defined below) (the "SECOND TRANSACTION," provided,
that should any such consolidation of control occur other than by way of a
direct or indirect transfer of ownership (and all rights associated therewith)
in the shares of TerreStar Stock, or the MSV LP Units and GP Shares, the
transaction or series of transactions giving rise to such consolidation of
control shall be deemed to fall within this definition of "Second Transaction"
only if any and all rights and obligations of the Roll-Up Entity and any Other
MSV Investor party to such transaction or transactions under any of the
TerreStar Documents or the JV Agreements, as applicable, are allocated among the
Roll-Up Entity and such Other MSV Investor. For the purposes of this Agreement,
"ROLL-UP ENTITY" shall mean a single entity or group of related entities that
will acquire direct or indirect ownership or control of any shares of TerreStar
Stock, MSV LP Units, GP Shares or MSV Options pursuant to the Second
Transaction, and any person to whom the Roll-Up Entity transfers MSV LP Units
and GP Shares pursuant to Section 8.2(c)(i) or Section 8.2(c)(ii) of the
Stockholders' Agreement, or shares of TerreStar Stock pursuant to Section
8.2(b)(ii) or Section 8.2(b)(iii) of the New TerreStar Stockholders' Agreement.
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WHEREAS, on February 9, 2005, the Motient Entities and their
affiliates acquired direct and indirect ownership of certain MSV LP Units and GP
Shares, by way of a merger of Telcom Satellite Ventures Inc. and Telcom
Satellite Ventures II, Inc. with and into a Motient Entity, and by way of the
purchase of shares of Spectrum Space Equity Investors IV, Inc., Spectrum Space
IV Parallel, Inc., Spectrum Space IV Managers, Inc., Columbia Space (QP), Inc.,
Columbia Space (AI), Inc. and Columbia Space Partners, Inc. (the "FEBRUARY
TRANSACTION");
NOW, THEREFORE, in consideration of the agreements contained
herein and for other good and valuable consideration (including, but not limited
to, the MSV LP limited partners' willingness to provide the TerreStar Waiver and
Consent with respect to the Motient Sub Financing and enter into the New
TerreStar Documents), the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. CONSENT.
(a) Subject to (i) the satisfaction of the conditions set
forth in Section 3 hereof and (ii) the consummation of the Motient Sub
Financing, the Motient Entities hereby consent, on behalf of themselves, their
affiliates and on behalf of any other stockholder of the General Partner or
limited partner of MSV LP in which they or their affiliates hold an ownership
interest (and on behalf of any transferee or successor of the foregoing), to the
extent of such stock or partnership ownership interest (collectively, the
"MOTIENT RELATED PARTIES"), for the purposes of the JV Agreements and the
TerreStar Documents, to the entry into, and consummation of, the Second
Transaction. For purposes hereof, TSTR Investors, LLC and Xx. Xxxxxxxx Xxxxx
shall not constitute Motient Related Parties.
(b) The Other MSV Investors hereby ratify and consent, on
behalf of themselves, their affiliates and on behalf of any other stockholder of
the General Partner or limited partner of MSV LP in which they or their
affiliates hold an ownership interest (and on behalf of any transferee or
successor of the foregoing), to the extent of such stock or partnership
ownership interest (collectively, the "OTHER MSV INVESTOR RELATED PARTIES"), to
the entry into, and consummation of, the February Transaction. The Other MSV
Investors hereby waive, on behalf of the Other MSV Investors Related Parties,
solely in connection with the consummation of the February Transaction, (i) the
restriction on the ability to sell or otherwise dispose of GP Shares pursuant to
Section 7 of the Stockholders' Agreement applicable to the stockholders that
sold or otherwise disposed of their GP Shares pursuant to the February
Transaction; (ii) their rights of first refusal pursuant to Section 8.2 of the
Stockholders' Agreement (and incorporated into the Partnership Agreement
pursuant to Section 9.1 thereof and into the Parent Agreement pursuant to
Section 8 thereof), including, without limitation, their rights to notice and
their right to purchase GP Shares and MSV LP Units that were sold or otherwise
disposed of pursuant to the February Transaction; (iii) their tag-along rights
pursuant to Section 8.2 of the Stockholders' Agreement (and incorporated into
the Partnership Agreement pursuant to Section 9.1 thereof and into the Parent
Agreement pursuant to Section 8 thereof), including, without limitation, their
rights to notice and their right to require the purchase of their GP Shares and
MSV LP Units as part of the February Transaction; and (iv) covenant and agree
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not to challenge or otherwise seek to limit or set aside the February
Transaction on the basis of any of the foregoing rights, restrictions or
privileges. The ratification and consent set forth in this Section 1(b) is based
on the Other MSV Investors' understanding that no Motient Entity violated the
ownership limitation set forth in Section 8.6 of the Stockholders' Agreement in
connection with the February Transaction and shall not be deemed to be a
ratification of, or consent to, any waiver of the ownership limitation set forth
in Section 8.6 of the Stockholders' Agreement in connection with the
consummation of the February Transaction. In addition, the ratification and
consent set forth in this Section 1(b) is based solely on the Other MSV
Investors' review of the Motient Transaction Agreements (as defined in the New
TerreStar Stockholders' Agreement) and on the representation that the Motient
Transaction Agreements are the only material documents and agreements related to
the February Transaction.
2. WAIVER. Subject to (a) the satisfaction of the conditions set forth
in Section 3 hereof and (b) the consummation of the Motient Sub Financing, the
Motient Entities hereby waive, on behalf of the Motient Related Parties, solely
in connection with the consummation of the Second Transaction, (i) the
restriction on the right of the stockholders (as defined in the Stockholders'
Agreement) to transfer their rights to designate the directors of the General
Partner pursuant to Section 6 of the Stockholders' Agreement; (ii) the
restriction on the stockholders' ability to sell, assign, transfer, pledge,
encumber, hypothecate, mortgage or otherwise dispose of their GP Shares pursuant
to Section 7 of the Stockholders' Agreement; (iii) their rights of first refusal
pursuant to Section 8.2 of the Stockholders' Agreement (and incorporated into
the Partnership Agreement pursuant to Section 9.1 thereof and into the Parent
Agreement pursuant to Section 8 thereof), including, without limitation, their
rights to notice and their right to purchase GP Shares and MSV LP Units; (iv)
their tag-along rights pursuant to (x) Section 8.2 of the Stockholders'
Agreement (and incorporated into the Partnership Agreement pursuant to Section
9.1 thereof and into the Parent Agreement pursuant to Section 8 thereof),
including, without limitation, their rights to notice and their right to require
the purchase of their GP Shares and MSV LP Units and (y) Section 8.2 of the New
TerreStar Stockholders' Agreement (and incorporated into the TerreStar Parent
Agreement pursuant to Section 4 thereof), including, without limitation, their
rights to notice and their right to purchase shares of TerreStar Stock; (v) the
ownership restrictions which limit ownership of GP Shares or MSV LP Units to 49%
pursuant to Section 8.6 of the Stockholders' Agreement (and incorporated into
the Partnership Agreement pursuant to Section 9.1 thereof) and Section 2.01(c)
of the Voting Agreement (as defined below), insofar as such restrictions relate
to any of the Other MSV Investors; and (vi) any other rights or privileges
pursuant to any of the JV Agreements, the TerreStar Documents and the Motient
Transaction Agreements (as defined in the New TerreStar Stockholders' Agreement)
which would otherwise prohibit, limit, restrict or interfere with the
consummation of the Second Transaction.
3. CONDITIONS. The consent set forth in Section 1(a) hereof and the
waiver set forth in Section 2 hereof shall remain effective subject to the
satisfaction of the following conditions upon the consummation of the Second
Transaction:
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(a) OWNERSHIP OF ROLL-UP ENTITY. Immediately following the
Second Transaction, either (i) one of the Other MSV Investors shall be the
Roll-Up Entity or (ii) all of the equity interests in the Roll-Up Entity shall
be beneficially owned by one or more of the Other MSV Investors or a Control
Party (as such term is defined in the New Stockholders' Agreement) of such Other
MSV Investor.
(b) CONSENT RIGHTS. The Stockholders' Agreement shall be
amended such that it provides the Motient Entities with the rights set forth in
Section 2.01 (other than Section 2.01(c)) of the Voting Agreement, dated as of
November 12, 2004 (the "VOTING AGREEMENT"), by and among certain stockholders of
the General Partner and certain limited partners of MSV LP (with such changes as
are necessary or reasonable to give effect to the Second Transaction and, so far
as the consent rights relate to drag along transactions, amended in a manner
consistent with the fair market value limitations in Section 3(c) hereof). In
addition, the Stockholders' Agreement shall be amended to provide the Motient
Entities with the right to consent (such consent not to be unreasonably
withheld) to any grant of a license of the intellectual property owned by ATC
Technologies LLC to third parties for the purpose of developing, operating,
providing, implementing, or maintaining any communications system or network not
making use of L-band spectrum or S-band spectrum; provided, that such consent
right shall terminate when the Motient Entities cease to own at least 25% of the
outstanding MSV LP Units.
(c) JV AGREEMENTS. The JV Agreements (and any related,
incidental or ancillary documents) shall be amended as may be necessary or
reasonable to provide the Motient Entities with the rights contained in such
agreements that would be customarily referred to as "minority protection"
provisions which are substantively and economically the same as the rights
currently held by any of the stockholders of General Partner and the limited
partners of MSV LP under the JV Agreements and "minority protection" provisions
which are substantively and economically the same as the rights granted under
the New TerreStar Stockholders' Agreement. Notwithstanding the foregoing, the JV
Agreements shall be amended to provide that the Motient Entities shall have the
right to consent to a drag-along transaction, other than a drag along
transaction at fair market value (as determined using a methodology that is the
same as that provided in Section 8.4(b) of the New TerreStar Stockholders'
Agreement), initiated by any party other than the Motient Entities in accordance
with such JV Agreements.
(d) ROLL-UP ENTITY CHANGE OF CONTROL. The JV Agreements shall
be amended such that they provide the Motient Entities with rights in the event
of a change of control of the Roll-Up Entity, other than among the stockholders
of the Roll-Up Entity immediately following the consummation of the Second
Transaction, substantially the same as those rights conferred on entities other
than Motient Entities in Section 8.5(c) of the New TerreStar Stockholders'
Agreement in respect of a change of control of Motient.
(e) BOARD REPRESENTATION. The JV Agreements shall be amended
such that they provide the Motient Entities with the right to designate a number
of directors to the board of directors of the General Partner that is
proportionate to its holdings in the General Partner.
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4. COVENANTS.
(a) The Motient Entities hereby agree on behalf the Motient
Related Parties, not to directly or indirectly seek to increase their direct or
indirect percentage ownership or control of MSV LP or the General Partner for a
period of eighteen (18) months following the consummation of the Motient Sub
Financing, provided, however, that except with respect to the MSV LP Options and
the MSV LP Units issued upon the exercise of the MSV Options owned by the
Limited Investors, the foregoing agreement will expire upon consummation of the
Second Transaction.
(b) The Other MSV Investors hereby agree that they will not
make any offer, directly or indirectly, to Option Holders (as defined in the New
TerreStar Stockholders' Agreement) to acquire (by way of exchange or otherwise)
any Options (as defined in the New TerreStar Stockholders' Agreement) (or the
TerreStar Stock issuable or issued upon the exercise of such Options) until
January 1, 2006. If any of the Motient Entities makes an offer during such
period to acquire the Options, the Motient Entities agree that such offer shall
be made to all Option Holders and the terms of any such offer shall include a
condition that the vesting schedule of such Options revert to the vesting
schedule in effect on the date of this Agreement (instead of being accelerated
in connection with the consummation of the Motient Sub Financing). In
structuring any such offer, the Motient Entities agree that they shall seek, to
the extent reasonably possible, to minimize tax consequences for Option Holders,
and that they shall comply with applicable securities laws.
5. MISCELLANEOUS.
(a) SECOND TRANSACTION. Notwithstanding anything herein to the
contrary, nothing in this Agreement shall be deemed to bind or commit any of the
Other MSV Investors (other than any Motient Related Party) to consummate the
Second Transaction and nothing herein shall constitute a waiver or consent under
any of the JV Agreements by any of the Other MSV Investors (other than any
Motient Related Party) with respect to the Second Transaction.
(b) TERM. This Agreement, and the obligations of the parties
hereunder, shall expire on such date that is 24 months following the date of
this Agreement.
(c) 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) or amended if and only if such waiver or
amendment is consented to in writing by the parties hereto.
(d) GOVERNING LAW. This Agreement shall be governed in all
respects by the law of the State of New York as such law is applied to
agreements between New York residents entered into and performed entirely in the
State of New York, without regard to the conflict of laws provisions hereof.
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(e) SUCCESSORS AND ASSIGNS. The provisions hereof shall be
binding upon the transferees, successors, assigns, heirs, executors and
administrators of the parties hereto.
(f) 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.
(g) 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.
(h) 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 party 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.
(i) 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 (including, without limitation, in the case
of the Motient Entities, causing the GP Shares held by Motient Sub to be voted,
and causing Motient Sub's designee to the board of directors of the General
Partner to vote, in favor of such stockholder or board resolutions, as the case
may be, as are necessary to give effect to or facilitate the Second Transaction)
in order to carry out the full intent and purpose of this Agreement.
(j) NON-CIRCUMVENTION. The Motient Entities agree, on behalf
of the Motient Related Parties, that they shall not, and shall not permit or
encourage any third party to, directly or indirectly, take any action or omit to
take any action where such action or omission is intended or would reasonably be
expected to result in the circumvention or avoidance by the Motient Entities of
the respective consents, waivers, covenants or the intent of this Agreement or
otherwise seek to impede or frustrate the Second Transaction.
(k) 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.
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(l) 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.
(m) ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement among the parties with regard to the subject
matter hereof and supersedes any and all prior and contemporaneous agreements or
understandings, whether expressed or implied, written or oral, between or among
the parties with respect to such subject matter. No party shall be liable or
bound to any other in any manner by any representations, warranties, covenants
and agreements except as specifically set forth herein.
[THE REMAINDER OF THE PAGE LEFT INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered effective as of the date first above
written.
MOTIENT CORPORATION
By: /S/ Xxxxxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Executive Vice President
MOTIENT VENTURE HOLDINGS INC.
By: /S/ Xxxxxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Executive Vice President
TMI COMMUNICATIONS AND COMPANY,
LIMITED PARTNERSHIP
By: TMI COMMUNICATIONS INC.,
Its General Partner
By: /S/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: President
By: /S/ Xxx Xxxxxx
---------------------------------
Name: Xxx Ignacy
Title: Vice President, Finance
TMI COMMUNICATIONS DELAWARE, LIMITED
PARTNERSHIP
By: 3924505 CANADA INC., Its General
Partner
By: /S/ Xxxxxxx X'Xxxxxx
---------------------------------
Name: Xxxxxxx X'Xxxxxx
Title: President
[SIGNATURE PAGE TO CONDITIONAL WAIVER AND CONSENT AGREEMENT]
TSTR INVESTORS, LLC
By: /S/ Xxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxx Xxxxx
Title:
[SIGNATURE PAGE TO CONDITIONAL WAIVER AND CONSENT AGREEMENT]
SPECTRUM SPACE EQUITY INVESTORS IV, INC.
By: /S/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Partner
SPECTRUM SPACE IV PARALLEL, INC.
By: /S/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Partner
SPECTRUM SPACE IV MANAGERS, INC.
By: /S/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Partner
[SIGNATURE PAGE TO CONDITIONAL WAIVER AND CONSENT AGREEMENT]
COLUMBIA SPACE (QP), INC.
By: /S/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
COLUMBIA SPACE (AI), INC.
By: /S/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
COLUMBIA SPACE PARTNERS, INC.
By: /S/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
SKYTERRA COMMUNICATIONS, INC.
By: /S/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
MSV INVESTORS, L.L.C.
By: /S/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
[SIGNATURE PAGE TO CONDITIONAL WAIVER AND CONSENT AGREEMENT]
