EXHIBIT 10.56a
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of November 26, 2001,
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 ("Newco LP") and the Stockholders of General Partner listed
on Schedule I hereto (each individually, a "Stockholder," and collectively, the
"Stockholders", and together with General Partner, the "Parties").
RECITALS
WHEREAS, each Stockholder is also either a limited partner of Newco LP or a
holder of notes convertible into limited partnership interests in Newco 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 Newco LP (on an as-converted basis in the case of the holders of
the Convertible Notes); and
WHEREAS, the Stockholders have formed General Partner for the purpose of
having it serve exclusively as General Partner of Newco LP pursuant to the terms
of that certain Limited Partnership Agreement of Mobile Satellite Ventures LP,
dated as of November 26, 2001, (the "Newco LP Agreement"); and
WHEREAS, the Stockholders wish to assure that General Partner performs its
duties under the Newco LP Agreement and the other agreements by and among the
Stockholders strictly in accordance with the terms of this Agreement; and
WHEREAS, General Partner and the Stockholders are entering into this
agreement pursuant to the terms of that certain Amended and Restated Investment
Agreement, dated as of October 12, 2001, as amended, by and among the
Stockholders (and their affiliates), the LLC and certain other parties (as in
effect on the date hereof, and without giving effect to any modification,
amendment, supplement or restatement thereof or waiver thereunder, the "October
Investment Agreement");
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 Newco LP Agreement or,
if not defined therein, in the October 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 the October Investment Agreement.
"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 any interests in the Partnership (i) issued
pursuant to the October Investment Agreement or any of the transactions
contemplated thereby, (ii) issued in connection with the acquisition of the
business of another entity, whether by the purchase of equity securities, assets
or otherwise, (iii) issued as part of an Initial Public Offering or other
registered underwritten public offering of the Partnership's securities, (iv)
issued under an employee compensation plan approved by the General Partner, (v)
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, and (vi) issued
pursuant to Section 8.1(h)(vi) of this Agreement.
"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.
"Intervening Entity" shall mean, 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, the Partnership
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.
"Pledge Agreement" means that certain Pledge and Guarantee Agreement, dated
as of even date herewith, by and among TMI, TMI Sub and the other parties
thereto, as amended, supplemented or revised from time to time.
"Spectrum Investor Group" means the entities in Spectrum Space Equity
Investors IV, Inc.'s Investor Group as set forth in the October Investment
Agreement.
"Telcom Investor Group" means the entities in Telcom Satellite Ventures
Inc.'s Investor Group as set forth in the October Investment Agreement.
"TMI Sub" means TMI Communications Delaware, Limited Partnership.
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) 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 be composed as follows:
(i) Subject to clause (ii) below, assuming the First Closing has occurred, the
Board shall consist of twelve (12) directors as follows:
(1) Each of 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 director under this Agreement (each such Person, an "Investor Group
Assignee")), acting through its respective Investor Group Designee, shall be
entitled to designate one (1) director. For the avoidance of doubt, in no event
shall the Telcom Investor Group, the Spectrum Investor Group and the Columbia
Investor Group, or any transferees therefrom, be entitled to designate more than
three (3) directors in the aggregate.
(2) Motient Sub shall be entitled to designate three (3) directors.
(3) TMI Sub shall be entitled to designate three (3) directors.
(4) The Note Investors shall be entitled to designate three (3) directors.
(ii) In the event that the Second Closing has not occurred on or prior to June
30, 2003, then beginning on July 1, 2003, the Board shall consist of ten (10)
directors as follows:
(1) The Telcom Investor Group, the Spectrum Investor Group and the Columbia
Investor Group (or an Investor Group Assignee), as a group, shall be entitled to
designate a total of one (1) director.
(2) Motient Sub shall be entitled to designate three (3) directors.
(3) TMI Sub shall be entitled to designate three (3) directors.
(4) The Note Investors shall be entitled to designate three (3) directors.
(iii) For so long as the Spectrum Investor Group continues to be entitled to
designate a director under this Agreement, Spectrum Space Equity Investors IV,
Inc., a wholly-owned subsidiary of Spectrum Equity IV, L.P., shall be entitled
to designate such director, and such director shall be a representative of
Spectrum Equity Investors IV, L.P. Spectrum Equity Investors IV, L.P. shall be a
third-party beneficiary of this Agreement to the extent necessary in order to
enforce its rights under this Section 2(b)(iii).
(iv) For so long as the Columbia Investor Group continues to be entitled to
designate a director under this Agreement, Columbia Space (QP), Inc., a
wholly-owned subsidiary of Columbia Capital Equity Partners (QP), L.P., shall be
entitled to designate such director, and such director shall be a representative
of Columbia Capital Equity Partners (QP), L.P. Columbia Capital Equity Partners
(QP), L.P. shall be a third-party beneficiary of this Agreement to the extent
necessary in order to enforce its rights under this Section 2(b)(iv).
(v) For so long as the Note Investors continue to be entitled to designate
directors under this Agreement, MSV Investors LLC shall be entitled to designate
such directors, and such directors shall be representatives of MSV Investors
LLC.
(c) Resignation. Any director may resign at any time by giving written notice to
the President of General Partner (the "President"). Such resignation shall take
effect at the time specified in such notice or, if the time be not specified,
upon receipt thereof by the President. 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.
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 President 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"), the President or a majority of
the Board shall from time to time determine.
(c) Notice of Meetings. The Secretary of General Partner (the "Secretary") shall
give written notice to 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 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 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.
(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 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 otherwise expressly
required by this Agreement or the October 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:
(1) the Chairman;
(2) the President; or
(3) 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 Investor
Group designee, one Motient Sub designee, one TMI Sub designee, and one Note
Investor 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 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.
(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 travelling 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 Newco
LP in any other capacity and receiving compensation therefor.
(j) Selection of Officers. The initial officers of General Partner shall be
those set forth in General Partner's organizational resolutions and any changes
thereto 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 Newco 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 Newco LP required by the Newco LP Agreement, the Board shall not
permit or cause General Partner or Newco LP to enter into transactions with its
Limited Partners or Affiliates of its Limited Partners except as otherwise
permitted in the October Investment Agreement; provided that Newco LP shall be
permitted to enter into each of the other Ancillary Agreements.
Section 4. 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 Investors' designees, the
Motient Sub designees, the TMI Sub designees, and the Note Investor designees to
be elected to the Board, in accordance with the provisions hereof.
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 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 October 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 by Investors to
an Investor Group Assignee in accordance with Section 2(b)(i)(1).
Section 7. Transfer of Shares; Redemption.
(a) 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 Newco LP (on an as-converted basis
in the case of the holders of the Convertible Notes). 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 or Articles 3 and 7 of the October Investment 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 or Convertible Notes, Transfer its Shares (or the same portion thereof
as the Limited Partnership Interests or Convertible Notes being transferred bear
to its total Limited Partnership Interests (on an as-converted basis in the case
of the holders of the Convertible Notes)) to the purchaser or assignee of any of
its Limited Partnership Interests or Convertible Notes in accordance with
Section 8 of this Agreement or the applicable provisions of the Convertible
Notes. 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)(1) 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.
(b) Redemption; Effect of Redemption and Transfer. In the event that Newco LP
repays any of the principal amount of Convertible Notes, in whole or in part,
General Partner shall purchase from each Note Investor whose Convertible Notes
are being repaid (in whole or in part), and each Note Investor whose Convertible
Notes are being repaid (in whole or in part) shall sell to General Partner, a
number of Shares equal to the product of (I) the sum of the total number of
Shares issued to such Note Investor by General Partner (appropriately adjusted
for stock splits, combinations, stock dividends, reorganizations and the like)
multiplied by (II) a fraction, the numerator of which shall equal the amount of
principal of such Note Investor's Convertible Note so paid and the denominator
of which shall equal the original principal amount of such Convertible Note. The
consideration for any such purchase shall be $0.01 per Share, and the Note
Investor holding such Shares shall deliver such Shares to General Partner for
cancellation promptly following any such repayment. Additionally, in the event
that:
(i) Newco LP repays in cash a total of more than one-third of the original
aggregate principal amount of the Convertible Notes, the size of the Board shall
be reduced by one (1) director, the Note Investors shall only be entitled to
designate two (2) directors, and the Note Investors shall cause one (1) of the
directors designated by them to resign from the Board;
(ii) Newco LP repays in cash a total of more than two-thirds of the original
aggregate principal amount of the Convertible Notes, the size of the Board shall
be reduced by a total of two (2) directors, the Note Investors shall only be
entitled to designate one (1) director and the Note Investors shall cause all
directors designated by them, other than such one (1) remaining director, to
resign from the Board; and
(iii) Newco LP repays in cash a total of more than ninety percent (90%) of the
original aggregate principal amount of the Convertible Notes, the size of the
Board shall be reduced by a total of three (3) directors, the Note Investors
shall not be entitled to designate any directors, the Note Investors shall not
be entitled to designate any directors to serve on committees of the Board and
the Note Investor shall cause all directors designated by them to resign from
the Board.
Section 8 Transfers, Admission of Limited Partners and Conversion.
Section 8.1 Additional Issuances of Interests.
(a) In order to raise capital for Newco LP operations or to acquire assets, to
redeem or retire Newco LP debt, or for any other valid Newco 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 Newco LP to cause Newco LP to
issue additional interests in Newco LP to the Limited Partners or other Persons
and to admit such other Persons to Newco 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
Newco LP.
(b) Subject to clause (h) below, General Partner shall not issue any interests
in Newco LP unless it first delivers to each Limited Partner and Note Investor
(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 Newco LP then intends to issue (the "Offered Interests"),
all of the material terms, including the price (cash or non-cash) upon which
Newco 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.
(c) During the ten (10) consecutive day period commencing on the date Newco 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 Newco 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:
(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
Newco LP has issued (the "Issued Interests"), all of the material terms,
including the price (the "Issued Interest Price") at which Newco 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 Newco 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.
Section 8.2 Transfers. Except as set forth in Sections 8.2(c) and (d) or in the
October Investment Agreement, until September 30, 2002, no Limited Partner or
Note Investor shall be permitted to transfer any of its Limited Partnership
Interests or Convertible Notes to any Person without the consent of a majority
in interest (determined on an as-converted basis) of the Limited Partners and
Note Investors who are neither transferors nor transferees, nor members of an
Investor Group which includes a transferee or transferor. After September 30,
2002, no Limited Partner or Note Investor may assign or transfer all or any part
of its Limited Partnership Interest or Convertible Notes to any Person, except
in compliance with the following:
(a) Right of First Refusal. In the event that after September 30, 2002, a
Limited Partner or Note Investor (a "Selling Party") proposes to transfer all or
a portion of its Limited Partnership Interest or Convertible Notes 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 or Convertible Notes 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 and Note Investor,
whereupon each other Limited Partner and Note Investor 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 or Convertible Note
based upon such Limited Partner's or Note Investor's portion of the Percentage
Interests (determined on an as-converted basis with respect to holders of the
Convertible Notes) held by all Limited Partners and Note Investors 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 or Note Investor 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 and Note Investors such
interests or Convertible Notes at the price and on the terms as contained in
such Transfer Notice. Each Limited Partner or Note Investor desiring to
participate in such purchase shall provide the Selling Party and each other
Limited Partner and Note Investor 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 or Note Investor 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 or Note Investors do not provide a
timely Participation Notice, the Unallocated Portion shall be allocated in pro
rata proportion to the Percentage Interest (after giving effect to the
conversion of the Convertible Notes) held by each of the Limited Partners and
Note Investors who submits a Participation Notice to the extent of such Limited
Partner's or Note Investor's indicated willingness to acquire any Unallocated
Portion as provided in such Limited Partners' or Note Investor's 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 or Convertible Notes that such Limited Partner or Note Investor
specifies in the Participation Notice. In the event that the Limited Partners or
Note Investors are not willing to purchase all of the interests or Convertible
Notes 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 or Convertible Notes the Limited Partners and Note Investors
are willing to accept is less than the minimum amount of interests or
Convertible Notes which the offeror is willing to purchase pursuant to the bona
fide offer described in the Transfer Notice, then the Limited Partners and Note
Investors 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 and Note Investors shall have accepted all or part of the interests or
Convertible Notes offered pursuant to the Transfer Notice (and shall not have
been deemed to have rejected the offer in its entirety as described in the
immediately preceding sentence), then the Selling Party shall sell to such
Limited Partners and Note Investors such interests or Convertible Notes as have
been accepted by such Limited Partners and Note Investors as specified in such
Limited Partner's or Note Investor's Participation Notice on the terms contained
in the Transfer Notice. Any interests or Convertible Notes not sold to the
Limited Partners or Note Investors 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 or Convertible Notes 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 or Convertible Notes 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 or any portion of
the Convertible Notes 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 and Note Investors (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, or, with respect to the Convertible
Notes, at a purchase price per Unit calculated by dividing the purchase
price of such offer divided by the number of Common Units into which the
portion of such Convertible Note proposed to be transferred is then
convertible (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 or portion of such Convertible Note, to include in the transfer to
the third party transferee a portion of Limited Partnership Interests, or,
with respect to transfers of Convertible Notes, a number of Units
determined in accordance with this Section 8.2(b).
(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 or
Convertible Note 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 or Convertible Note the price of
which (based on the Tag Along Price of such Limited Partnership Interest or
Convertible Note) equals the total original price proposed to be paid by
the transferee for the Selling Party's Limited Partnership Interest or
portion of a Convertible Note 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 or
portion of a Convertible Note 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 or Convertible Note 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 or
Convertible Note 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 the sale
of any Limited Partnership Interest or Convertible Note offered by it if
the transferee does not purchase all Limited Partnership Interests and
portions of Convertible Notes 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 and portions of Convertible Notes 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.
(c) Subject to Sections 8.2(e), (f) and (g), a Limited Partner or Note Investor
may at any time and from time to time (i) transfer all or part of such Limited
Partner's Limited Partnership Interest or Note Investor's Convertible Notes to
any of such Limited Partner's or Note Investor's Family Members provided that
such Limited Partner or Note Investor shall provide the other Partners and Note
Investors notice of the identity of such Family Member transferee, (ii) transfer
all or part of its Limited Partnership Interest or Convertible Notes 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 or Note Investor, as the case may be, 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 or of such Note Investor's
Convertible Notes to a Control Party of such Note Investor; provided, that such
Limited Partner or Note Investor and Control Party agree with Newco LP in
writing that such Control Party shall transfer such Limited Partnership Interest
or Convertible Notes back to such Limited Partner or Note Investor immediately
upon such Person ceasing to be a Control Party of such Limited Partner or Note
Investor. A Limited Partner or Note Investor 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 or Convertible Notes,
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), a Class A Limited Partner
may at any time and from time to time transfer all or part of its Limited
Partnership Interest to another Class A Limited Partner.
(d) Each of TMI Sub, Motient Sub and the Lead Note Investor shall have the
right, subject to Sections 8.2(a), (e), (f), and (g), to assign or transfer its
interest in Newco LP to any Person owning 10% or more of the outstanding common
stock of BCE Inc., Motient or Rare Medium Group, 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 Newco 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, of the date even herewith between BCE Inc. and Newco LP (the
"Non-Interference Agreement") applicable to BCE Inc., (ii) the Stockholders
Agreement, of the date even herewith, by and among TMI, Newco 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 or Convertible Notes, no Limited
Partnership Interest or Convertible Note 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 or Note
Investor set forth in this Agreement and the Newco LP Agreement, (ii) pays any
reasonable expenses of Newco 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 Newco LP's taxable year with respect to all Limited Partners, in the
termination of Newco 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 Newco LP
to be in violation of any applicable state or federal securities laws or (iii)
result in an interest in Newco LP being held by a Person whose participation in
the ownership of Newco LP would be detrimental to Newco LP; provided, however,
that no transfer made pursuant to Section 8.2(c) hereof shall be deemed
detrimental to Newco 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 Newco LP
Agreement with respect to the transfer or assignment of interests in Newco 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.
(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 Newco
LP Agreement.
(j) Except as set forth in the last sentence of this paragraph, (1) upon any
transfer of Class A Preferred Units and Limited Partnership Interests by a Class
A Limited Partner to Motient Sub, TMI Sub or any Affiliate of either of them, or
(2) if any Class A Preferred Units otherwise become held by Motient Sub, TMI Sub
or any Affiliate of either of them, except with the prior written consent of the
Class A Limited Partners other than the transferring Class A Limited Partner,
none of Motient Sub, TMI Sub or any Affiliate of either of them, shall be deemed
to be a Class A Limited Partner or shall be entitled to vote as a Class A
Limited Partner and the Class A Preferred Units so acquired or held shall
automatically convert into the number of Common Units which at the time of such
conversion equals the Percentage Interest represented by the Class A Preferred
Units so acquired. Notwithstanding the foregoing, in the event that any of
Motient Sub, TMI Sub, or any Affiliates of either of them pay a portion of the
Investor Purchase Price at the Second Closing pursuant to Section 2.3 of the
October Investment Agreement, such Units purchased by such Persons at the
Closing shall be Class A Preferred Units and shall not be converted, or be
deemed to have been converted, into Common Units by operation of this Section
8.2(j).
(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 or the aggregate amount of
Convertible Notes owned directly or indirectly by such Intervening Entity
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 or Convertible
Notes occurs without compliance with the provisions of this Agreement then,
without limiting the rights of Newco LP or the other Partners or Note Investors
at law or in equity, all of the Limited Partners and Note Investors (other than
the Limited Partner which is so deemed to have transferred Limited Partnership
Interests or Note Investor deemed to have transferred Convertible Notes) shall
have the right to purchase the Limited Partnership Interests or Convertible
Notes so deemed transferred as if such Limited Partnership Interests or
Convertible Notes 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, Limited Partnership Interests or
Convertible Notes 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 Newco LP shall not be admitted
to Newco 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 Newco LP Agreement, the October
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 Newco LP
incurred in connection with such admission (including, without limitation,
attorney's fees). Such assignee or transferee shall automatically be admitted to
Newco LP as a Limited Partner following satisfaction of the provisions of this
Section 8.3(a).
(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 Newco 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 Newco LP and shall not
have any rights of a Limited Partner under the Delaware Act, this Agreement or
the Newco LP Agreement.
(c) A transferor of interests shall remain a Limited Partner of Newco 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 Newco LP interests issued pursuant
to Section 8.1 shall be admitted to Newco LP as an Additional Limited Partner
upon furnishing to Newco 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. Additionally, any Note Investor who converts its
Convertible Notes into Limited Partnership Interests shall be admitted to Newco
LP as an Additional Limited Partner (to the extent that such holder is not
already a Limited Partner) on the terms and conditions set forth in such
Convertible Notes and this Agreement. Additionally, any Second Closing Investors
who purchase Limited Partnership Interests at the Second Closing shall be
admitted to Newco LP as an Additional Limited Partner on the terms and
conditions set forth in the October Investment Agreement.
Section 8.5 Corporate Conversion; Drag-Along Rights.
(a) At any time prior to the Second Closing, upon the consent of Motient Sub,
TMI Sub and Class A Limited Partners holding a majority of the Percentage
Interests held by all Class A Limited Partners, and at any time after the Second
Closing, at the General Partner's discretion, Newco LP shall be converted into
corporate form ("Newco") 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 Newco LP's (or its
successor's) securities, the outstanding interests in Newco LP shall be
converted into common stock of Newco 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 Newco LP's (or its successor's) securities, (i) the
respective outstanding interests of Newco LP shall be converted into securities
of Newco 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 Newco will contain such provisions as may be necessary, to allow
Newco to mimic, as closely as practicable, the governance and other operating
provisions of the Newco LP Agreement, including, without limitation, an
agreement by all shareholders holding stock with special voting, economic or
other rights to convert such stock into common stock immediately prior to the
initial public offering of Newco securities on a basis similar to that
contemplated by the second sentence of this Section 8.5(a). To the extent
permitted by applicable law (including without limitation, Section 17-219 of the
Delaware Act), the consents of Limited Partners, required by the first sentence
of this Section 8.5(a) shall be the only consents of Limited Partners necessary
for Newco LP to effect a Corporate Conversion and no other class votes or
consents of Limited Partners or the General Partner shall be required in
connection therewith.
(b) At any time after the Second Closing, 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 Newco 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 Newco 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 Newco 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
based solely on the respective Percentage Interests held by such Limited
Partners, (i) until the second anniversary of the date of the Second Closing,
the consent of the Limited Partners holding a majority of the Common Units shall
be required with respect to any Drag-Along Transaction in which the value of the
aggregate consideration to be paid to the Investors for their Limited
Partnership Interests is less than an amount equal to twice the sum of such
Investors' aggregate Capital Contributions and (ii) after the second anniversary
date of the Second 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 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 Newco LP Agreement and the October Investment Agreement, 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 October Investment Agreement and the
Newco LP 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.
(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 Newco LP shall admit any new limited partner (other than upon the
conversion of any Convertible Notes) 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 Newco LP held by such new limited
partner (after giving effect to the conversion of the Convertible Notes then
outstanding)), which director(s) shall be designated by such new limited
partner. Additionally, any Second Closing Investors who purchase Shares at the
Second Closing shall be added by General Partner as a Party hereto on the terms
and conditions set forth in the October Investment Agreement.
(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: President
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).
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 laws 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
GENERAL PARTNER:
MOBILE SATELLITE VENTURES GP INC.
By: /s/Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: President
STOCKHOLDERS:
MOTIENT VENTURES HOLDING INC.
By: /s/Xxxxx X. Xxxxxxx
-------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President, General Counsel and Secretary
TMI COMMUNICATIONS DELAWARE, LIMITED PARTNERSHIP
By: 3924505 CANADA INC.,
Its General Partner
By: /s/Xxxx XxXxxxxxx
-----------------
Name: Xxxx XxXxxxxxx
Title: President
INVESTORS:
EXISTING INVESTORS:
-------------------
TELCOM SATELLITE VENTURES INC.
By: /s/Xxx X. Xxxxxxx
-----------------
Name: Xxx X. Xxxxxxx
Title: Vice President
NOTE INVESTORS:
--------------
TELCOM SATELLITE VENTURES II INC.
By: /s/Xxx X. Xxxxxxx
-----------------
Name: Xxx X. Xxxxxxx
Title: Vice President
EXISTING INVESTORS:
------------------
COLUMBIA SPACE (QP), INC.
By: /s/Xxxxxx X. Xxxxxxx
--------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
COLUMBIA SPACE (AI), INC.
By: /s/Xxxxxx X. Xxxxxxx
--------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
COLUMBIA SPACE PARTNERS, INC.
By: /s/Xxxxxx X. Xxxxxxx
--------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
NOTE INVESTORS:
--------------
COLUMBIA SPACE (QP) II, INC.
By: /s/Xxxxxx X. Xxxxxxx
--------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
COLUMBIA SPACE (AI) II, INC.
By: /s/Xxxxxx X. Xxxxxxx
--------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
COLUMBIA SPACE PARTNERS II, INC.
By: /s/Xxxxxx X. Xxxxxxx
--------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
EXISTING INVESTORS:
------------------
SPECTRUM SPACE EQUITY
INVESTORS IV, INC.
By: /s/Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman and CEO
SPECTRUM SPACE IV PARALLEL, INC.
By: /s/Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman and CEO
SPECTRUM SPACE IV MANAGERS, INC.
By: /s/Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman and CEO
NOTE INVESTORS:
--------------
SPECTRUM SPACE EQUITY INVESTORS IV-II, INC.
By: /s/Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman and CEO
SPECTRUM SPACE IV PARALLEL II, INC.
By: /s/Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman and CEO
SPECTRUM SPACE IV MANAGERS II, INC.
By: /s/Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman and CEO
MSV INVESTORS, LLC
By: MSV INVESTORS HOLDINGS,
INC., Its Managing Member
By: /s/Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: President
SCHEDULE I
STOCKHOLDERS
------------------------------ --------------------------------------------------- ------------------------------
Name Address Number of Shares
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
Motient Sub 00000 Xxxxxxxxx Xxxxxxxxx 000.000000
Xxxxxx, Xxxxxxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Vice President and
General Counsel,
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X.X. Xxxxxx, Esq.
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
Telcom Satellite Ventures 000 Xxxxx Xxxxx Xxxxxx 72.0000
Inc. Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
Telcom Satellite Ventures II 000 Xxxxx Xxxxx Xxxxxx 12.926829
Inc. Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
Columbia Space (QP), Inc. 000 Xxxxx Xxxxx Xxxxxx 34.504242
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
Columbia Space (AI), Inc. 000 Xxxxx Xxxxx Xxxxxx 1.906112
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
Columbia Space Partners, Inc. 000 Xxxxx Xxxxx Xxxxxx 27.589646
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
Columbia Space (QP) II, Inc. 000 Xxxxx Xxxxx Xxxxxx 6.943039
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
Columbia Space (AI) II, Inc. 000 Xxxxx Xxxxx Xxxxxx 0.383553
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
Columbia Space Partners II, 000 Xxxxx Xxxxx Xxxxxx 5.600237
Inc. Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
One International Place
Spectrum Space Equity 29th Floor 62.880000
Investors IV, Inc. Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000 Fax: (888)
325-9120
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
Spectrum Space IV Parallel, One International Place .3712
Inc. 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
Spectrum Space IV Managers, One International Place .748800
Inc. 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
One International Place
Spectrum Space Equity 29th Floor 12.700610
Investors IV-II, Inc. Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000 Fax: (888)
325-9120
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
Spectrum Space IV Parallel One International Place .074976
II, Inc. 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
Spectrum Space IV Managers One International Place .151244
II, Inc. 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
663.648151
TMI Sub 0000 Xxxxxxx Xxxxx
Xxxxxxxxxx Xxxxx
Xxxxxx X0X 0X0
Attn: Xxxx XxXxxxxxx
with a copy to:
Salans Xxxxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxx
Xxxxxxxxxxx Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------ --------------------------------------------------- ------------------------------
------------------------------ --------------------------------------------------- ------------------------------
c/o Rare Medium Group, Inc.
MSV Investors LLC 00 Xxxx 00xx Xxxxxx 775.609742
New York, New York 10010
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------ --------------------------------------------------- ------------------------------
