EXHIBIT 10.25
[EXECUTION COPY]
SUPPLEMENTAL STOCKHOLDERS AGREEMENT
This SUPPLEMENTAL STOCKHOLDERS AGREEMENT (INCLUDING ATTACHMENTS, this
"AGREEMENT") is made as of January 31, 2003 between LIBERTY SATELLITE &
TECHNOLOGY, INC., a Delaware corporation ("LSAT") and INTELSAT USA SALES CORP.,
a Delaware corporation ("INTELSAT").
RECITALS
A. Each of LSAT and Intelsat (each, a "SUBSCRIBER"), as well as National
Rural Telecommunications Cooperative, a District of Columbia cooperative
corporation ("NRTC"), has entered into one or more Subscription Agreements dated
December 9, 2002 (each, a "SUBSCRIPTION AGREEMENT"), for the purchase of shares
of the Senior Convertible Preferred Stock, par value $.001 per share ("SENIOR
PREFERRED STOCK"), of WildBlue Communications, Inc., a Delaware corporation
("WILDBLUE"), and warrants to purchase additional shares of Senior Preferred
Stock ("WARRANTS").
B. In order to receive the consent of KPCB Holdings, Inc., a Delaware
corporation and an existing shareholder of WildBlue ("KPCB"), to the
transactions contemplated by the Subscription Agreements, LSAT entered in a
letter agreement with KPCB dated December 9, 2002 (the "KPCB PUT"), a copy of
which is attached hereto as EXHIBIT A, whereby in consideration for KPCB's
consent to the transactions contemplated by the Subscription Agreements, LSAT
granted KPCB the irrevocable right and option to sell to LSAT, and to require
LSAT to purchase from KPCB, all, and not less than all, of KPCB's shares of
Senior Preferred Stock, Warrants (and all shares of capital stock of WildBlue
acquired by KPCB upon any exercise of such Warrants) and all shares of capital
stock of WildBlue held by KPCB as of the date of the KPCB Put (collectively, the
"KPCB SECURITIES") for an aggregate purchase price in cash equal to the purchase
price of the Senior Securities subscribed for by KPCB under its Subscription
Agreement with WildBlue dated December 9, 2002 (the "AGGREGATE PUT PRICE").
C. This Agreement provides for certain mutual covenants regarding actions
of Subscribers relating to the governance of WildBlue, as well as a right of
first refusal with respect to certain transfers by Subscribers of Senior
Securities (as defined herein) and the understanding that each of the
Subscribers should bear its PRO RATA share of the rights and obligations of LSAT
under the KPCB Put.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Section 1. CERTAIN DEFINITIONS. In this Agreement, the following terms
have the corresponding meanings:
AFFILIATE. When used with reference to a specified Person, any other Person
that, directly or through one or more intermediaries, Controls, is Controlled
by, or is under common Control with, the Person specified.
AGGREGATE PUT PRICE. As defined in Recital B.
AGREEMENT. As defined in the preamble.
BENEFICIAL OWNERSHIP AND DERIVATIVE TERMS. As determined pursuant to Rule
13d-3 and Rule 13d-5 under the Exchange Act and any successor regulation.
BUSINESS DAY. Any day other than Saturday, Sunday and a day on which banks
are required or permitted to close in Denver, Colorado, New York, New York, or
Washington, D.C.
CLOSING. As defined in Section 7(a).
CONTRACT. Any note, bond, indenture, debenture, security agreement, trust
agreement, Lien, mortgage, lease, agreement, contract, license, franchise,
permit, guaranty, joint venture agreement, or other agreement, instrument,
understanding, commitment or obligation, oral or written.
CONTROLLED AFFILIATE. When used with reference to a specified Person, an
Affiliate of such Person that such Person Controls, directly or through one or
more intermediaries.
CONTROL AND DERIVATIVE TERMS. Possession of the power to direct or cause
the direction of the management and policies of another Person, whether through
the ownership of voting securities, by contract or otherwise.
EXCHANGE ACT. The Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder.
FIFTH CHARTER. The Fifth Amended and Restated Certificate of Incorporation
of WildBlue, which, pursuant to the Subscription Agreements, will be executed
and effective upon its filing with the Secretary of State of the State of
Delaware prior to the Closing.
FIRST REFUSAL ACCEPTANCE. As defined in Section 2(c).
FIRST REFUSAL ELECTION PERIOD. As defined in Section 2(c).
FIRST REFUSAL NOTICE. As defined in Section 2(b).
FIRST REFUSAL SECURITIES. As defined in Section 2(b).
FREE TO SELL PERIOD. As defined in Section 2(e).
FREE TO SELL SECURITIES. Senior Securities of a Subscriber which may then
be transferred in accordance with the restrictions on transfer set forth in
Section 2 upon the satisfaction of the conditions and for such period of time
set forth in Section 2.
GOVERNMENTAL APPROVAL. Any notice to, filing with, or approval or consent
of a Governmental Authority required by applicable Law with respect to any
action, including the expiration or termination of any applicable waiting period
under the HSR Act, or the comparable provisions of any other U.S. federal, state
or local or any foreign Law.
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GOVERNMENTAL AUTHORITY. Any U.S. federal, state or local or any foreign
court, governmental department, commission, authority, board, bureau, agency or
other instrumentality.
HSR ACT. The Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended.
INTELSAT. As defined in the preamble of this Agreement.
JUDGMENT. Any order, writ, injunction, award, judgment, ruling or decree of
any Governmental Authority.
JUNIOR SECURITIES. Any securities of WildBlue held by a Subscriber that do
not constitute Senior Securities.
KPCB. As defined in Recital B.
KPCB PUT. As defined in Recital B.
KPCB SECURITIES. As defined in Recital B.
LAW. Any U.S. federal, state or local or any foreign law, statute, code,
ordinance, injunction, judgment, order, ruling, decree, rule, regulation or
general principle of common or civil law or equity.
LEGALLY BINDING COMMITMENT. With respect to any proposed transaction that
would constitute a Transfer, a legally binding commitment between the principal
parties to such proposed transaction (or Affiliates of such parties that Control
such Parties) to undertake such transaction, which commitment may be subject to
reasonable and customary conditions precedent and/or other reasonable conditions
precedent not within the control of the party in whose favor the condition runs,
including without limitation the right for a party to terminate such commitment
upon the occurrence of a material adverse change or effect. For the avoidance of
doubt, a letter of intent or similar document (howsoever styled) that otherwise
meets the definition of Legally Binding Commitment shall not be disqualified as
such because it contemplates the negotiation, execution and delivery of
definitive agreements with respect to such proposed transaction and/or related
matters, provided that such document sets forth the principal terms of such
transaction (or an agreed mechanism for fixing any such terms) and may be
enforced independently of any such definitive agreement, if such definitive
agreement is not entered into by the parties as contemplated thereby.
LICENSE. Any license, franchise, authorization, permit, certificate,
variance, exemption, concession, consent, lease, right of way, easement,
instrument, order or approval domestic or foreign, of any Governmental
Authority.
LIEN. Any mortgage, pledge, lien, encumbrance, charge, or security
interest.
LSAT. As defined in the preamble of this Agreement.
NOTICE PERIOD. As defined in Section 3(b).
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NRTC. As defined in Recital A.
OFFERING NOTICE. As defined in Section 3(b).
OFFERING SUBSCRIBER. As defined in Section 3(b).
OTHER SUBSCRIBER. The Subscriber that is not a Transferring Subscriber for
the purposes of Section 2 or the Offering Subscriber for the purposes of Section
3(b).
PERSON. An individual, firm, corporation, partnership, limited liability
company, trust, joint venture, or other entity, including a Specified Person.
RESTRICTION. With respect to any capital stock, equity interest or
security, any voting or other trust or agreement, option, warrant, preemptive
right, right of first offer, right of first refusal, escrow arrangement, proxy,
buy-sell agreement, power of attorney or other Contract, any License or any
Judgment that, conditionally or unconditionally, (a) grants to any Person the
right to purchase or otherwise acquire, or obligates any Person to sell or
otherwise dispose of or issue, or otherwise results or, whether upon the
occurrence of any event or with notice or lapse of time or both or otherwise,
may result in any Person acquiring, (i) any of such capital stock or other
equity interest or security; (ii) any of the proceeds of, or any distributions
paid or that are or may become payable with respect to, any of such capital
stock or other equity interest or security; or (iii) any interest in such
capital stock or other equity interest or security or any such proceeds or
distributions; (b) restricts or, whether upon the occurrence of any event or
with notice or lapse of time or both or otherwise, may restrict the transfer or
voting of, or the exercise of any rights or the enjoyment of any benefits
arising by reason of ownership of, any such capital stock or other equity
interest or security or any such proceeds or distributions; or (c) constitutes,
creates or, whether upon the occurrence of any event or with notice or lapse of
time or both or otherwise, may create a Lien or purported Lien affecting such
capital stock or other equity interest or security, proceeds or distributions.
SENIOR PREFERRED STOCK. As defined in Recital A.
SENIOR SECURITIES. Any shares of Senior Preferred Stock, any Warrants, any
Underlying Shares (as defined in the Subscription Agreements) of Series B Common
Stock, and any securities issued in exchange for any of the foregoing (PROVIDED,
HOWEVER, that shares of Series A Common Stock (as defined in the Subscription
Agreements) issued upon any conversion of shares Series B Common Stock shall not
be deemed to constitute Underlying Shares, or securities issued in exchange for
any of the foregoing), held at any time by a Subscriber.
SERIES B COMMON STOCK. The Series B Common Stock, par value $.001 per
share, of WildBlue, to be established under the Fifth Charter.
SIGNIFICANT BOARD MATTER. Any matter brought for a vote of the board of
directors of WildBlue relating to (i) the appointment, termination or
replacement of the Chief Executive Officer, Chief Operating Officer or Chief
Financial Officer of WildBlue, (ii) the approval of WildBlue's general budget or
operating plan, (iii) the raising of capital through debt or equity financings,
(iv) the approval of any transaction of the type requiring the consent of the
holders of Senior Preferred Stock contemplated by Section 4.3(k) of the form of
the Fifth Charter attached
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to the Subscription Agreements, (v) any commitment of WildBlue funds in the
amount of $5 million or more or in a single transaction or a series of related
transactions, or (vi) any incurrence by WildBlue of indebtedness or other
obligations or liabilities in the amount of $5 million or more in a single
transaction or a series of related transactions.
SPECIFIED PERSON. With respect to a Subscriber, any Person specified on
SCHEDULE I attached hereto opposite the name of such Subscriber, any successor
(by merger, consolidation, transfer or otherwise, and in one transaction or a
series of transactions) to all or substantially all of the assets of such
Person, or any Controlled Affiliate of any such Person or successor.
STRATEGIC TRANSFER. Any Transfer of Senior Securities where (i) less than
80% of the non-contingent consideration for such Senior Securities is paid in
cash, cash equivalents or debt securities, or (ii) the Senior Securities
represent 40% or less of the value of the aggregate consideration to be paid,
performed and/or conveyed by a Subscriber in a transaction involving the
Transfer of Senior Securities.
SUBSCRIBER. As defined in Recital A, or any successor (by merger,
consolidation, transfer or otherwise, and in one transaction or a series of
transactions) to all or substantially all of its assets.
SUBSCRIPTION AGREEMENT. As defined in Recital A.
TRANSFER. Any sale, exchange, gift or other transfer, direct or indirect,
of any Senior Securities (including through the sale, exchange, relinquishment
or other transfer, direct or indirect, of a Controlling interest in any Person
holding such Senior Securities), other than: (x) any BONA FIDE pledge of Senior
Securities to any Person; PROVIDED, HOWEVER, that any foreclosure on such shares
in connection with a pledge thereof shall constitute a Transfer for purposes
hereof, or (y) transfers of Series B Common Stock having an aggregate value at
the time of transfer of less than $5 million (PROVIDED that, in the case of a
series of related transactions with the transferee of such Series B Common
Stock, such DE MINIMIS qualification must be determined with respect to the
aggregate number of shares being transferred in all such related transactions).
TRANSFERRING SUBSCRIBER. As defined in Section 2(b).
WARRANTS. As defined in Recital A.
WILDBLUE. As defined in Recital A.
Section 2. RIGHT OF FIRST REFUSAL.
(a) During the term of this Agreement, no Subscriber shall Transfer any
Senior Securities to a Person that is a Specified Person with respect to the
Other Subscriber without first complying with this Section 2.
(b) If a Subscriber (the "TRANSFERRING SUBSCRIBER") proposes to Transfer
any Senior Securities to a Person that is a Specified Person with respect to the
Other Subscriber (after discussions between the Specified Person and the
Transferring Subscriber have taken place and
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an indication of interest from the Specified Person has been received), it shall
first deliver to the Other Subscriber a written notice of such intention (a
"FIRST REFUSAL NOTICE"), stating the series and number of Senior Securities and
the type and amount of Junior Securities, if any, proposed to be Transferred
(the "FIRST REFUSAL SECURITIES"), the name of the proposed Specified Person
transferee, and the principal terms and conditions on which the Transferring
Subscriber is willing to offer the First Refusal Securities to the Other
Subscriber.
(c) The Other Subscriber may accept the offer of all or any portion of the
First Refusal Securities by delivering a written notice of acceptance (a "FIRST
REFUSAL ACCEPTANCE") to the Transferring Subscriber agreeing to purchase, or to
cause its designee to purchase, all or any of the First Refusal Securities at
the price and on the other terms and conditions (including tax consequences) set
forth in the First Refusal Notice. In order to be effective, a First Refusal
Acceptance must be signed by the Other Subscriber and be given to the
Transferring Subscriber no later than 5:00 p.m., Eastern Time, on the last day
of the 15-day period following the date the First Refusal Notice is given, or if
such day is not a Business Day, then on the following Business Day (the period
following delivery of a First Refusal Notice during which a First Refusal
Acceptance may be given being the "FIRST REFUSAL ELECTION PERIOD"). The
consideration to be paid by the Other Subscriber delivering a First Refusal
Acceptance must be in the form set forth in the First Refusal Notice; PROVIDED
that if the consideration set forth in the First Refusal Notice is not wholly in
cash, then the Other Subscriber may pay the non-cash portion of such
consideration in cash in an amount equal to the fair market value of such
non-cash consideration as appropriately adjusted to reflect all tax consequences
affecting the Transferring Subscriber resulting from the consideration not being
paid in the same form as set forth in the First Refusal Notice.
(d) Upon receipt by the Transferring Subscriber of a First Refusal
Acceptance with respect to all, but not less than all, First Refusal Securities,
a binding agreement shall exist between the Transferring Subscriber and the
Other Subscriber obligating the Transferring Subscriber to sell to such Other
Subscriber or its designee, and obligating the Other Subscriber or its designee
to buy from the Transferring Subscriber, all the First Refusal Securities, on
the terms and subject to the conditions set forth in the First Refusal Notice
and, to the extent not inconsistent therewith, this Agreement (subject to the
proviso in the last sentence of Section 2(c)).
(e) If the Transferring Subscriber does not receive a First Refusal
Acceptance during the First Refusal Election Period, all the First Refusal
Securities shall constitute Free to Sell Securities for the 90-day period
beginning on the first Business Day after the First Refusal Election Period. As
used in this Agreement, such 90-day period, and any extension thereof pursuant
to Section 2(l), are referred to collectively as the "FREE TO SELL PERIOD".
(f) If the Transferring Subscriber receives a First Refusal Acceptance
agreeing to purchase some, but not all, First Refusal Securities, the
Transferring Subscriber may elect to accept or reject the First Refusal
Acceptance by giving written notice thereof to the Other Subscriber . If the
Transferring Subscriber accepts the First Refusal Acceptance, then (i) a binding
agreement shall exist between the Transferring Subscriber and the Other
Subscriber obligating the Transferring Subscriber to sell to the Other
Subscriber or its designee, and obligating the Other Subscriber or its designee
to buy from the Transferring Subscriber, the
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number of First Refusal Securities covered by the First Refusal Acceptance, on
the terms and subject to the conditions set forth in the First Refusal Notice
and, to the extent not inconsistent therewith, this Agreement (subject to the
proviso in the last sentence of Section 2(c)), and (ii) those First Refusal
Securities that the First Refusal Acceptance does not provide for an agreement
to purchase shall constitute Free to Sell Securities for the Free to Sell
Period. If the Transferring Subscriber rejects such First Refusal Acceptances,
then all the First Refusal Securities shall constitute Free to Sell Securities
for the Free to Sell Period; PROVIDED, HOWEVER, that notwithstanding Section
2(j), in such case the Transferring Subscriber shall not be permitted to make
any partial sale of the Free to Sell Securities to a Specified Person during the
Free to Sell Period, without complying again with this Section 2.
(g) Notwithstanding anything herein to the contrary, it shall be a
condition to the obligations of both the Transferring Subscriber and, subject to
Section 2(m), the Other Subscriber to consummate the purchase and sale of the
First Refusal Securities pursuant to this Section 2 that any Governmental
Approval required with respect to the purchase and sale of First Refusal
Securities pursuant to Section 2(d) or Section 2(f)(i), as applicable, shall
have been obtained (other than any Governmental Approval as to which the failure
to obtain would not have a material adverse effect on any party hereto) and that
such purchase and sale not violate or conflict with any applicable Law (other
than any such violation or conflict that would not have a material adverse
effect on any party hereto). In that connection, Transferring Subscriber and the
Other Subscriber shall cooperate in good faith in seeking to obtain any such
required Governmental Approvals.
(h) The closing of any purchase and sale of First Refusal Securities
pursuant to this Section 2 (any such purchase and sale, a "FIRST REFUSAL SALE")
shall occur at such time and place as the parties thereto may agree, but in any
event no later than the fifth Business Day after the end of the First Refusal
Election Period (or, if earlier, the fifth Business Day after a First Refusal
Acceptance has been given by the Other Subscriber), subject to the condition in
Section 2(g). The First Refusal Sale shall be without representation or
warranty, except that each party to the First Refusal Sale shall represent and
warrant that it has all requisite power and authority, including without
limitation any necessary corporate authorizations, to enter into the First
Refusal Sale, and the Transferring Subscriber shall represent and warrant that
such Transferring Subscriber is transferring good and valid title to the First
Refusal Securities being sold, free and clear of any Lien or Restriction.
(i) If, notwithstanding Section 2(h), the First Refusal Sale has not been
consummated by the First Refusal Sale Deadline, for any reason other than a
material default by the Transferring Subscriber of its obligations hereunder,
then, notwithstanding anything to the contrary herein, the Transferring
Subscriber and the Other Subscriber shall not be obligated to consummate the
First Refusal Sale, and the First Refusal Securities shall be Free to Sell
Securities for the then following 90 days (which 90-day period, as the same may
be extended pursuant to Section 2(l), shall constitute a Free to Sell Period).
As used herein, "FIRST REFUSAL SALE DEADLINE" means the first to occur of any of
the following: (i) if the condition in Section 2(g) has been satisfied, the
fifth Business Day after the end of the First Refusal Election Period, or, if
later, the fifth Business Day after satisfaction of such condition; (ii) if the
condition in Section 2(g) has not theretofore been satisfied, the 300th day
after the end of the First Refusal Election Period; and
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(iii) if the Transferring Subscriber shall terminate the First Refusal Sale
pursuant to Section 2(m)(ii), the date of such termination.
(j) During any Free to Sell period, subject to Section 2(l), the
Transferring Subscriber shall be free to Transfer any or all of the Free to Sell
Securities, to the Specified Person named in the relevant First Refusal Notice
or any of its Controlled Affiliates (but to no other Specified Person), in one
transaction or a series of transactions, and on any terms or conditions as the
Transferring Subscriber shall determine in its sole discretion; PROVIDED,
HOWEVER, that the Transferring Subscriber shall not sell the Free to Sell
Securities to such Specified Person for aggregate consideration having a fair
value less than 90% of the fair value of the aggregate consideration described
in the First Refusal Notice (as adjusted to take into account the relative tax
consequences to the Transferring Subscriber, if such consideration is in whole
or in part in different form from the consideration described in the First
Refusal Notice). If the Transferring Subscriber fails to consummate the sale of
the Free to Sell Securities to the Specified Person named in the First Refusal
Notice prior to the expiration of the Free to Sell Period, then in such case the
Transferring Subscriber shall not be permitted to sell such Free to Sell
Securities to any Person without complying again with this Section 2 or Section
3 below, as applicable; PROVIDED, HOWEVER, that if, prior to the expiration of
the Free to Sell Period, the Transferring Subscriber shall have entered into a
Legally Binding Commitment for the Transfer of such Free to Sell Securities to
the Specified Person, the Transferring Subscriber shall be entitled to
consummate such Transfer pursuant to such Legally Binding Commitment, or
pursuant to definitive documentation entered into pursuant to such Legally
Binding Commitment, in either case as the same may be amended from time to time,
notwithstanding the expiration of the Free to Sell Period.
(k) During the First Refusal Election Period, at the request of the Other
Subscriber, the Transferring Subscriber shall negotiate with the Other
Subscriber in good faith with respect to any changes in the terms and conditions
offered by the Transferring Subscriber in the First Refusal Notice. Accordingly,
if after delivery of a First Refusal Notice pursuant to Section 2(b), the
Transferring Subscriber shall deliver a revised First Refusal Notice to the
Other Subscriber, then such revised First Refusal Notice shall constitute the
First Refusal Notice for all purposes of this Section 2 with respect to the
First Refusal Securities described in such revised First Refusal Notice and the
First Refusal Election Period with respect to such revised First Refusal Notice
shall expire on the later of (i) the fifth Business Day after delivery of such
revised First Refusal Notice and (ii) the Business Day on which the First
Refusal Election Period with respect to the original (or any prior revised)
First Refusal Notice would otherwise have expired.
(i) If, on or before the 90th day of the Free to Sell Period, the
Transferring Subscriber has not entered into a Legally Binding Commitment for
the Transfer of Free to Sell Securities to the Specified Person, then the
Transferring Subscriber shall have the right to extend such Free to Sell Period
as provided in this Section 2(l). If the Transferring Subscriber intends to
extend the Free to Sell Period pursuant to this Section 2(l), it shall deliver
to the Other Subscriber a notice to such effect. The Other Subscriber may make
an offer (a "BEST AND FINAL OFFER") within five days after receiving such notice
for the purchase and sale of all, but not less than all, of the Free to Sell
Securities not sold during the first 90 days of the Free to Sell Period. If the
Other Subscriber makes a Best and Final Offer, the Transferring Subscriber and
the Other Subscriber shall promptly undertake to negotiate in good faith, for
the 10-day period (the "Best and Final
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Offer Period") commencing on the date that the Best and Final Offer is delivered
to the Transferring Subscriber, the terms of a possible sale or other Transfer
of the Free to Sell Securities to the Other Subscriber. However, neither the
Transferring Subscriber nor the Other Subscriber shall have any obligation to
the other with respect to any such possible sale or other Transfer in the
absence of a Legally Binding Commitment between them with respect thereto,
except such obligation to negotiate in good faith for the Best and Final Offer
Period. If, for any reason, the Transferring Subscriber and the Other Subscriber
do not enter into a Legally Binding Commitment during the Best and Final Offer
Period, then the Free to Sell Period shall be extended (without hiatus) from the
end of the first 90 day period of the Free to Sell Period through the 90 days
following the end of the Best and Final Offer Period, and the Transferring
Subscriber shall be free to Transfer any or all of the Free to Sell Securities
in accordance with Section 2(j).
(m) Anything contained herein to the contrary notwithstanding: (i) if a
First Refusal Sale has not been consummated within 60 days after the end of the
First Refusal Election Period, then the aggregate purchase price payable by the
Other Subscriber in such First Refusal Sale shall be increased by an amount
equal to the amount of interest that would accrue on such aggregate purchase
price from the first business day following the end of the First Refusal
Election Period through the day immediately preceding the closing of such First
Refusal Sale, at a per annum interest rate equal to the average of the daily
effective federal funds rate during such period (as published by the Federal
Reserve Bank of New York), plus 2% per annum; and (ii) if a First Refusal Sale
has not been consummated within 90 days after the end of the First Refusal
Election Period, the Transferring Subscriber shall have the right to terminate
such First Refusal Sale, unless the Other Subscriber shall have theretofore
agreed in writing, on terms reasonably satisfactory to the Transferring
Subscriber, to bear the risk that any required Government Approvals are not
obtained (or that the First Refusal Sale would violate or conflict with any
applicable Law). For the avoidance of doubt, if the Other Subscriber does agree
to bear the risk that any required Government Approvals are not obtained, then
the Transferring Subscriber shall be entitled to the full benefit of the bargain
described in the First Refusal Notice, the First Refusal Acceptance and this
Agreement, including receipt of the aggregate consideration described therein
(as increased pursuant to Section 2(m)(i) through the actual closing of such
transaction) against delivery of the First Refusal Securities subject thereto.
Section 3. TRANSFERS TO AFFILIATES; NOTICE OF PROPOSED TRANSFERS TO THIRD
PARTIES.
(a) No Subscriber shall Transfer any Senior Securities to any Affiliate of
such Subscriber, unless such Affiliate agrees to be become a party to this
Agreement, and to be bound hereby, and entitled to the benefits hereunder, as if
such Affiliate were an original party to this Agreement named a Subscriber
hereunder.
(b) Prior to a Subscriber (an "OFFERING SUBSCRIBER") entering into a
Legally Binding Commitment to Transfer (other than a Strategic Transfer) Senior
Securities to any Person (other than an Affiliate of the Offering Subscriber or
a Specified Person with respect to the Other Subscriber, for which such Transfer
is subject to Section 2), the Offering Subscriber shall send written notice (the
"OFFERING NOTICE") to the Other Subscriber stating its intention to Transfer
Senior Securities. In such event, the Offering Subscriber shall not enter into a
Legally Binding Commitment with any third party until after the expiration of
the 21-day period commencing on
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the date of the receipt of the Offering Notice by the Other Subscriber (the
"NOTICE PERIOD"). The Other Subscriber may make one or more offers to purchase
such Senior Securities during the Notice Period and the Offering Subscriber
shall consider each such offer in good faith and may, but shall not be required
to, negotiate with the Other Subscriber regarding the terms of any offer. In the
event that the Offering Subscriber and the Other Subscriber do not enter into a
Legally Binding Commitment during the Notice Period, then the Offering
Subscriber shall be free for a period of 180 days after the Notice Period to
enter into a Legally Binding Commitment to Transfer any or all of such Senior
Securities to such Person or Persons (and to thereafter consummate such Transfer
whether or not within such 180-day period), in one transaction or a series of
transactions, and at such price and on any such other terms or conditions as the
Offering Subscriber shall determine in its sole discretion. If the Offering
Subscriber fails to enter into a Legally Binding Commitment to Transfer Senior
Securities prior to the expiration of such 180-day period, then in such case the
Offering Subscriber shall not be permitted to Transfer such Senior Securities to
any Person without complying again with this Section 3. For the avoidance of
doubt, this Section 3(b) shall not apply to any Transfer by a Subscriber that is
a Strategic Transfer.
Section 4. CONSULTATION PRIOR TO VOTE.
(a) At the request of a Subscriber, the Subscribers agree to consult with
each other prior to voting by (i) stockholders on any matter submitted to the
stockholders of WildBlue or (ii) directors on any Significant Board Matter.
(b) In the event that a Subscriber intends to vote on any stockholder
matter or reasonably believes that its director designee(s) will vote on any
Significant Board Matter in any manner different from the other Subscriber or
its board designee(s) (or in the event that any of its director designees are
required to abstain from voting on such matter in reasonable observance of his
or her fiduciary duties), the Subscribers shall make their representatives or
board designees, as the case may be, available to discuss in good faith the
issues and the merits of each Subscriber's (or such board designee's) position
on the same for a period of 5 days prior to the vote being taken (or such lesser
period as is available prior to the stockholder or board vote) and, if
reasonably requested by a Subscriber, shall seek to have the vote delayed so
that there will be such a 5-day period prior to the vote (unless such a delay
could reasonably result in a significant adverse impact on WildBlue).
Section 5. ASSIGNMENT AND ASSUMPTION OF OBLIGATIONS UNDER THE KPCB PUT.
(a) To induce LSAT to enter into this Agreement, LSAT agrees to assign to
Intelsat, and Intelsat agrees to assume, its PRO RATA share of the rights and
obligations of LSAT under the KPCB Put. Payment of each Subscriber's PRO RATA
share of the Aggregate Put Price shall be made at the time and upon the terms
and conditions set forth in the KPCB Put. LSAT further agrees not to amend,
modify, waive or novate the KPCB Put or any provision thereof, except as may be
contemplated in subsection (c) hereof, without the prior written consent of
Intelsat.
(b) The PRO RATA share of the Aggregate Put Price assigned to and to be
assumed by Intelsat shall be determined by dividing (x) the aggregate purchase
price for the shares of Senior Preferred Stock and warrants subscribed for by
Subscriber under all of its Subscription
10
Agreements entered into with WildBlue by (y) the sum of the aggregate purchase
prices subscribed for by each of the Subscribers under all of the Subscription
Agreements entered into by the Subscribers. For the avoidance of doubt, (i) LSAT
shall be obligated to purchase 50% of the KPCB Securities for an aggregate
purchase price equal to 50% of the Aggregate Put Price, and (ii) Intelsat shall
be obligated to purchase 50% of the KPCB Securities for an aggregate purchase
price equal to 50% of the Aggregate Put Price.
(c) Intelsat agrees that upon a modification or novation of the KPCB Put
which reduces the obligation of LSAT to purchase all of the KPCB Securities to
such amount of KPCB Securities equal to its PRO RATA share of such securities,
it will offer to enter into an agreement with KPCB upon substantially the same
terms as the KPCB Put whereby it will be obligated upon exercise by KPCB
thereunder to purchase its PRO RATA share of the KPCB Securities; PROVIDED,
HOWEVER, that if KPCB does not agree to so modify or novate the KPCB Put,
Intelsat agrees that it will enter into an agreement with LSAT whereby it will
agree to purchase its PRO RATA share of the KPCB Securities from LSAT (or its
designee) at a purchase price in cash equal to its PRO RATA share of the
Aggregate Put Price concurrently with the closing of purchase of the KPCB
Securities by LSAT under the KPCB Put. The provisions of this Section 5 may be
novated by Intelsat to any Person that purchases Free to Sell Securities in
accordance with the terms of this Agreement and that is financially qualified to
perform the obligations under this Section 5.
Section 6. REPRESENTATIONS AND WARRANTIES.
Each of the Subscribers, severally and not jointly, represents and
warrants, as to itself only, to the other Subscriber as of the date of this
Agreement, as follows:
(a) it has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and the transactions contemplated
hereby, and this Agreement constitutes its valid and binding obligation,
enforceable against it in accordance with the terms hereof, subject, as to
enforceability, to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditor's rights and
remedies generally, and to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity);
(b) it has obtained all authorizations, permits, approvals or consents of
any Persons, as well as all authorizations, permits, approvals or consents of
any Governmental Authorities, necessary to enter into and perform its
obligations under this Agreement (including, in the case of WildBlue, Board
approval), except as would not, individually or in the aggregate, materially
adversely affect such party's ability to perform its obligations under this
Agreement; and
(c) this Agreement and the transactions contemplated hereby do not conflict
with any applicable Law or any agreement to which it is a party or constitute a
default under any such agreement, except as would not, individually or in the
aggregate, materially adversely affect its ability to perform its obligations
under this Agreement and the transactions contemplated hereby.
11
Section 7. EFFECTIVENESS; TERM AND TERMINATION.
(a) This Agreement shall automatically become effective, without further
action on the part of any Person, immediately upon the issuance of the Senior
Securities by WildBlue to the Subscribers at the closing of the transactions
contemplated by the Subscription Agreements (the "CLOSING").
(b) This Agreement shall terminate automatically upon the first to occur of
any of the following: (i) any termination of the Subscription Agreements prior
to the Closing; (ii) the consummation of an initial public offering of common
stock of WildBlue pursuant to a firm commitment underwriting for cash; (iii) the
written agreement of the Subscribers; or (iv) the fourth anniversary of the
Closing date. In addition, this Agreement shall terminate automatically as to
any Subscriber, at such time as such Subscriber and its Controlled Affiliates
shall not Beneficially Own any Senior Securities. Notwithstanding any
termination of this Agreement, a Subscriber shall be liable for any breach of
its obligations hereunder prior to the effectiveness of such termination, and
the obligations of Intelsat under Section 5 shall not terminate without the
written consent of LSAT so long as the KPCB Put is in effect.
Section 8. NOTICES. All notices and other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and shall be mailed by registered or certified mail, postage prepaid, or
otherwise delivered by hand, by nationally recognized overnight courier, or by
same day receipted messenger service, addressed in each case to a Subscriber and
such Subscriber's address set forth opposite its name on the signature pages
hereto or at such other address as the Subscriber shall have furnished to the
other Subscriber in writing pursuant to this notice provision. Each such notice
or other communication shall for all purposes of this Agreement be treated as
effective or having been given (i) when delivered personally, at the time of
receipt by the addressee, (ii) if delivered by overnight courier, one Business
Day after depositing the same with such courier, (iii) if delivered by same day
messenger, upon delivery to the addressee or the addressee's agent or employee
or, if delivered to a residence, to any adult person at such residence, or (iv)
if sent by mail, at the earlier of its receipt or three Business Days after the
same has been deposited in a regularly maintained receptacle for the deposit of
the United States mail, addressed and mailed as aforesaid.
Section 9. ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the Subscribers with regard to the
subject matter hereof.
Section 10. THIRD PARTY BENEFICIARIES. This Agreement does not create any
rights in any parties who are not otherwise a party to this Agreement.
Section 11. SEVERABILITY. Each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held by a court of competent
jurisdiction to be prohibited by or invalid under applicable law, such
provisions will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement (which shall thereafter be CONSTRUED TO
preserve, as nearly as possible, the original intent of the parties to this
Agreement and the benefit of the bargains provided for herein).
12
Section 12. NO STRICT CONSTRUCTION. The language used in this Agreement
will be deemed to be the language chosen by the Subscribers to express their
mutual intent, and no rule of strict construction will be applied against either
Subscriber.
Section 13. CAPTIONS. The captions used in this Agreement are for
convenience of reference only and do not constitute a part of this Agreement and
will not be deemed to limit, characterize or in any way affect any provision of
this Agreement, and all provisions of this Agreement will be enforced and
construed as if no caption had been used in this Agreement.
Section 14. GOVERNING LAW. Disputes arising under this Agreement shall be
governed by and interpreted and construed in accordance with the substantive law
of the State of New York applicable to contracts made and performed solely
therein.
Section 15. JURISDICTION AND VENUE. ANY JUDICIAL PROCEEDING INVOLVING ANY
DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE RIGHTS OR INTERESTS OF A SUBSCRIBER OR THE BREACH OR ALLEGED BREACH OF THIS
AGREEMENT (EACH OF THE FOREGOING DISPUTES, CONTROVERSIES AND CLAIMS HEREINAFTER
REFERRED TO AS AN "AGREEMENT DISPUTE"), SHALL BE BROUGHT ONLY IN A FEDERAL OR
STATE COURT LOCATED IN THE COUNTY, CITY AND STATE OF NEW YORK, AND EACH
SUBSCRIBER (I) UNCONDITIONALLY ACCEPTS THE EXCLUSIVE JURISDICTION OF SUCH COURTS
AND ANY RELATED APPELLATE COURT AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY AND (II) IRREVOCABLY WAIVES ANY OBJECTION SUCH PARTY
MAY NOW HAVE OR HEREAFTER HAS AS TO THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. EACH SUBSCRIBER HEREBY
WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH IT IS A PARTY INVOLVING
AN AGREEMENT DISPUTE.
Section 16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and on separate counterparts, but all such counterparts taken
together will constitute one and the same agreement, and each of which shall be
an original instrument for purposes of any "best evidence" or similar rule.
Section 17. WAIVERS AND AMENDMENTS. No waiver of any provision of this
Agreement shall be deemed a further or continuing waiver of that provision or a
waiver of any other provision of this Agreement. This Agreement may not be
amended except in a writing signed by the Subscribers.
13
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Stockholders Agreement to be duly executed and delivered, as of the date first
set forth above.
Address: LIBERTY SATELLITE & TECHNOLOGY, INC.
Liberty Satellite & Technology, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 By:
---------------------------------
Name:
with a copy to: Title:
Xxxx X. Leaf, Esq.
Xxxxx Xxxxx L.L.P.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Address: INTELSAT USA SALES CORP.
Intelsat USA Sales Corp.
0000 Xxxxxxxxxxxxx Xxxxx, X.X.
Xxxxxxxxxx, XX 00000 By:
---------------------------------
Name:
with a copy to: Title:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx X.X.
Xxxxxxxxxx, XX 00000
SCHEDULE I
SPECIFIED PERSONS
SUBSCRIBER NAMES OF SPECIFIED PERSONS
---------- --------------------------
LSAT EchoStar Communications Corporation
Xxxxxx Electronics Corporation
Intelsat Eutelsat S.A.
PanAmSat Corporation
SES Global S.A.
New Skies Satellites N.V.
Asia Satellite Telecommunications Holdings Limited
Loral Skynet
EXHIBIT A
KPCB PUT
