REGISTRATION RIGHTS AGREEMENT
Exhibit
99.2
This
REGISTRATION RIGHTS AGREEMENT (this "Agreement"),
dated as of January •, 2008 is by and among Harbinger Capital Partners Master
Fund I, Ltd., a Cayman Islands fund, ("Harbinger Master
Fund"); Harbinger Capital Special Situations Fund, LP, a limited
partnership organized and existing under the laws of Delaware
("Harbinger Special Situations Fund"); and SkyTerra
Communications, Inc., a Delaware corporation
("SkyTerra"). Certain capitalized terms
used herein are defined in Section 6 below.
RECITALS:
WHEREAS,
pursuant to the Securities Purchase Agreement by and among SkyTerra and the
Holders, dated as of December 14 , 2007 (the "Securities Purchase
Agreement"), SkyTerra will issue a warrant (the
"Warrants") to purchase 7.5% of the issued and
outstanding Common Stock on a fully diluted basis (utilizing the treasury
method) on January 3, 2008 (the "Warrant Shares") of
its Non-Voting Common Stock, par value $0.01 per share (the
"Non-Voting Common Stock") or Voting Common Stock, par
value $0.01 per share (the "Voting Common Stock" and
together with the Non-Voting Common Stock, the "Common
Stock") or any combination thereof to the Holders;
WHEREAS,
pursuant to the terms the Securities Purchase Agreement, the Holders may
exchange the Warrant Shares that are Non-Voting Common Stock on a one-for-one
basis for shares of SkyTerra's Voting Common Stock upon the satisfaction of
certain conditions, as more fully set forth in the Warrant; and
WHEREAS,
in order to induce the Holders to consummate the transactions under the
Securities Purchase Agreement and the Warrant, SkyTerra has agreed to provide
certain registration rights to the Holders on the terms and subject to the
conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual agreements, representations,
warranties and covenants herein contained, the receipt and sufficiency of which
is hereby acknowledged the parties hereto hereby agree as follows:
Section
1. REGISTRATION
UNDER THE SECURITIES ACT.
1.1 Registration.
(a) SkyTerra
shall use reasonable best efforts to file with the Securities and Exchange
Commission (the "SEC") promptly after the receipt of a
written request from the Holders of a majority of the Registrable Securities
(the "Registration Request"), a registration statement
covering the resale of the Registrable Securities held by the Holders for
offerings to be made on a delayed or continuous basis pursuant to Rule 415
of
the Securities Act (together with any amendments thereto, and including any
documents incorporated by reference therein, the "Shelf Registration
Statement") for the purpose of registering such Registrable
Securities under the Securities Act for resale by the
Holders. SkyTerra will cause the Shelf Registration Statement to
comply with the applicable provisions of the Securities Act and the rules and
regulations thereunder. SkyTerra shall use reasonable best efforts to
have the Shelf Registration
Statement
declared effective by the SEC under the Securities Act, as soon as reasonably
practicable following the filing of the Shelf Registration
Statement.
(b) Upon
notice to the Holders, SkyTerra may postpone filing or effecting the Shelf
Registration Statement for a reasonable time, but not exceeding seventy-five
(75) days from the receipt of such notice, if (i) SkyTerra's Board of Directors
(the "Board") shall determine that effecting the
registration would adversely affect an offering of securities of SkyTerra the
preparation of which had then been commenced, or (ii) SkyTerra is in possession
of material non-public information the disclosure of which would not be in
the
best interest of SkyTerra. If SkyTerra postpones the filing of the
Shelf Registration Statement, it will promptly notify the Holders in writing
when the events or circumstances permitting such postponement have ended and
will file the Shelf Registration Statement within ten (10) Business Days after
the events or circumstances permitting such postponement have ended, unless
financial statements required for such Shelf Registration Statement are not
then
available, then as soon as reasonably practicable thereafter. Nothing
herein shall prevent SkyTerra from including SkyTerra securities held by other
holders in the Shelf Registration Statement.
(c) SkyTerra
shall use reasonable best efforts to keep the Shelf Registration Statement
effective under the Securities Act (including through the filing of any required
post-effective amendments) until the earlier to occur of (i) such time as the
Holders have sold all of the Registrable Securities registered thereunder;
or
(ii) such time as the Registrable Securities may be resold without volume
limitation pursuant to Rule 144 under the Securities Act; or (ii) have been
sold
pursuant to Rule 144 under the Securities Act.
(d) Holders
of a majority of the outstanding Registrable Securities shall be entitled to
request an aggregate of two (2) underwritten takedowns to the Shelf Registration
Statement whereby Registrable Securities are sold to one or more underwriters
(as defined in Section 2(a)(ii) of the Securities Act) for resale to the
public. SkyTerra shall not be obligated to effectuate more than one
(1) underwritten takedown in and six (6) month period. The managing
underwriters of any such offering shall be reasonably acceptable to
SkyTerra. Additionally, SkyTerra shall have the right to delay any
underwritten takedown for the time periods and for the reasons set forth in
Section 1.1(b) above.
(e) SkyTerra
represents and warrants that it currently meets the registrant eligibility
and
transaction requirements for the use of Form S-3 (for primary and secondary
offerings) for the registration of the sale of the Warrant Shares by the
Holders. SkyTerra agrees to use reasonable best efforts to cause
SkyTerra to be eligible to use Form S-3 (or any similar form) for the
registration of securities.
1.2 Registration Procedures. Subject
to the terms and conditions hereof, SkyTerra shall use reasonable best efforts
to effect the registration and the disposition of the Registrable Securities
in
accordance with the intended method of disposition thereof, and pursuant thereto
SkyTerra shall:
(a) subject
to the delay period referenced in Section 1.1(b) above, not later than one
hundred and twenty (120) days after receipt of a Registration Notice, prepare
and file with the SEC the Shelf Registration Statement (and any amendments,
including any post-
effective
amendments or supplements to the Shelf Registration Statement SkyTerra deems
to
be necessary) and use reasonable best efforts to cause the Shelf Registration
Statement to become effective as promptly as reasonably possible and to comply
with the provisions of the Securities Act applicable to it; provided,
that before filing the Shelf Registration Statement or Prospectus or any
amendments or supplements thereto (other than filings made pursuant to the
Exchange Act or exhibits to such registration statements), SkyTerra shall
furnish to one counsel for both of the Holders copies of all such documents
proposed to be filed, including documents incorporated by reference in the
Shelf
Registration Statement, so as to provide the Holders and their counsel a
reasonable opportunity to review and comment on such documents, and SkyTerra
(i)
will make such changes and additions thereto as reasonably requested by counsel
to the Holders prior to filing the Shelf Registration Statement or amendment
thereto or any Prospectus or any supplement thereto and (ii) if either of the
Holders is a controlling person of SkyTerra, will include therein material
relating to such Holder or the plan of distribution for the
Registrable Securities registered thereunder, furnished to SkyTerra in
writing, which, in the reasonable judgment of the applicable Holder, should
be
included;
(b) promptly
furnish to the Holders such number of copies of the Shelf Registration
Statement, each amendment and supplement thereto, the Prospectus and such other
documents as the Holders may reasonably request in order to facilitate the
disposition of the Registrable Securities registered thereunder;
provided, however, that SkyTerra shall have no obligation to
furnish copies of a final Prospectus if the conditions of Rule 172(c) under
the
Securities Act are satisfied by SkyTerra;
(c) prepare
and file with the SEC as soon as reasonably possible, such amendments and
supplements to the Shelf Registration Statement and the Prospectus as may be
necessary or advisable to keep the Shelf Registration Statement effective for
the time period as specified in Section 1.1 in order to complete the disposition
of the Registrable Securities covered by the Shelf Registration Statement and
comply with the provisions of the Securities Act with respect to the disposition
of all Registrable Securities covered by the Shelf Registration Statement during
such period in accordance with the intended methods of disposition thereof
as
set forth in the Shelf Registration Statement;
(d) use
reasonable best efforts to register or qualify the Registrable Securities no
later than the time the applicable Registration Statement becomes effective,
under all applicable securities or blue sky laws of such jurisdictions as the
Holders reasonably request and do any and all other acts and things which may
be
reasonably necessary or advisable to enable the Holders to consummate the
disposition of the Registrable Securities (in accordance with the intended
methods of disposition thereof as set forth in the Shelf Registration Statement)
in such jurisdictions; provided that SkyTerra shall not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection, (ii) subject itself
to
taxation in any such jurisdiction or (iii) consent to general service of process
in any such jurisdiction;
(e) promptly
notify the Holders, (i) when a Prospectus relating thereto is required to be
delivered under the Securities Act, (ii) when the Shelf Registration Statement
or any post-effective amendment has become effective under the Securities Act,
(iii) of any written request by the SEC for amendments or supplements to the
Shelf Registration Statement or
Prospectus,
(iv) of the happening of any event as a result of which the Prospectus contains
an untrue statement of a material fact or omits any fact necessary to make
the
statements therein, in light of the circumstances under which they were made,
not misleading (whereupon the Holders shall immediately cease any offers, sales
or other distribution of Registrable Securities registered thereunder), and,
subject to 1.3(c), SkyTerra shall promptly prepare a supplement or amendment
to
such Prospectus so that, as thereafter used by the Holders for the resale of
the
Registrable Securities, such Prospectus shall not contain an untrue statement
of
a material fact or omit to state any fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and (v) of the issuance of any stop order suspending the
effectiveness of the Shelf Registration Statement, or of any order suspending
or
preventing the use of any related Prospectus or suspending the qualification
of
any of the Registrable Securities included in the Shelf Registration Statement
for sale or distribution in any jurisdiction;
(f) in
the event of the issuance of any stop order suspending the effectiveness of
the
Shelf Registration Statement, or of any order suspending or preventing the
use
of any related Prospectus or suspending the qualification of any Registrable
Securities included in the Shelf Registration Statement for sale or distribution
in any jurisdiction, SkyTerra shall use reasonable best efforts to promptly
obtain the withdrawal of such order and shall prepare and file an amended or
supplemented Prospectus, if required;
(g) provide
a transfer agent and registrar for all the Registrable Securities not later
than
the effective date of the Shelf Registration Statement;
(h) use
reasonable best efforts to cause the Registrable Securities covered by the
Shelf
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the Holders
to complete the disposition of the Registrable Securities covered by the
Registration Statement and comply with the provisions of the Securities Act
with
respect to the disposition of all Registrable Securities covered by the Shelf
Registration Statement during such period in accordance with the intended
methods of disposition by the Holders thereof set forth in the Shelf
Registration Statement;
(i) make
available for inspection by the Holders and any attorney, accountant or other
agent retained by the Holders, all financial and other records, pertinent
corporate documents and properties of SkyTerra, and cause SkyTerra's officers,
managers, employees and independent accountants to supply all information
reasonably requested by the Holders and such attorneys, accountants or agents
in
connection with the disposition of the Registrable Securities pursuant to the
Shelf Registration Statement;
(j) make
generally available to its stockholders a consolidated earnings statement (which
need not be audited) for the 12 months beginning after the effective date of
such registration statement as soon as reasonably practicable after the end
of
such period, which earnings statement shall satisfy the requirements of an
earning statement under Section 11(a) of the Securities Act; and
(k) reasonably
cooperate with the Holders to facilitate the timely preparation and delivery
of
certificates representing Registrable Securities to be sold and not bearing
any
restrictive legends (but not prior to such sale).
1.3 Other
Procedural Matters.
(a) SEC
Correspondence. SkyTerra shall make available to the Holders
promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by SkyTerra, one copy of the Shelf Registration Statement
and
any amendment thereto, each preliminary Prospectus and each amendment or
supplement thereto (other than filings made pursuant to the Exchange Act or
exhibits to such registration statements), each letter written by or on behalf
of SkyTerra to the SEC or the staff of the SEC (or other governmental agency
or
self-regulatory body or other body having jurisdiction, including any domestic
or foreign securities exchange), in each case relating to the Shelf Registration
Statement. SkyTerra will promptly respond to any and all comments
received from the SEC, with a view towards causing the Shelf Registration
Statement or any amendment thereto to be declared effective by the SEC as soon
as reasonably practicable and shall file an acceleration request as soon as
reasonably practicable following the resolution or clearance of all SEC
comments or, if applicable, following notification by the SEC that the Shelf
Registration Statement or any amendment thereto will not be subject to
review.
(b) Each
Holder shall furnish SkyTerra with any other information regarding such Holder
and the disposition of the Registrable Securities, including without limitation
the plan of distribution of the Registrable Securities, as SkyTerra reasonably
determines, is required to be included in the Shelf Registration
Statement.
(c) Each
of the Holders agrees that, upon notice from SkyTerra of the happening of any
event as a result of which the Prospectus included in the Shelf Registration
Statement contains an untrue statement of a material fact or omits any material
fact necessary to make the statements therein not misleading (a
"Suspension Notice"), such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to the Shelf
Registration Statement until the Holder is advised in writing by SkyTerra that
the use of the Prospectus may be resumed and is furnished with a supplemented
or
amended Prospectus as contemplated by Section 1.2 hereof; provided,
however, that such postponement of sales of Registrable Securities
by the
Holders shall not in any event exceed (i) twenty (20) consecutive days or (ii)
forty-five (45) days in the aggregate in any 12 month period. Each
Holder agrees to keep confidential the existence of any Suspension Notice and,
if disclosed to the Holders, the facts and circumstances giving rise
thereto. If SkyTerra shall give the Holders any Suspension Notice,
SkyTerra shall extend the period of time during which SkyTerra is required
to
maintain the Shelf Registration Statement effective pursuant to this Agreement
by the number of days during the period from and including the date of the
giving of such Suspension Notice to and including the date the Holders are
advised by SkyTerra that the use of the Prospectus may be resumed. In
any event, SkyTerra shall not be entitled to deliver more than a total of two
(2) Suspension Notices in any 12 month period.
(d) Neither
SkyTerra nor the Holders shall permit any officer, manager, broker or any other
person acting on behalf of SkyTerra to use any free writing Prospectus (as
defined in Rule 405 under the Securities Act) in connection with the Shelf
Registration Statement filed pursuant to this Agreement without the prior
written consent of SkyTerra and the Holders.
1.4 Expenses.
(a) Registration
Expenses. All Registration Expenses shall be borne by
SkyTerra.
(b) Selling
Expenses. All expenses incident to the Holders' performance of
or compliance with this Agreement, including, without limitation, all fees
and
expenses of counsel for the Holders, fees and expenses of any broker or dealer
discounts or commissions attributable to the disposition of Registrable
Securities shall be borne solely by the Holders.
Section
2. LOCKUP
AGREEMENT.
2.1 For
so long as any Holder beneficially owns at least five percent (5%) of the
outstanding equity of SkyTerra, each such Holder hereby agrees to not effect
any
public sale or distribution (including any sales pursuant to Rule 144) of equity
securities of SkyTerra, or any securities convertible into or exchangeable
or
exercisable for such securities, during the seven days prior to and the 90-day
period beginning on the effective date of any underwritten registered
public offering (or the filing of a Prospectus supplement to any effective
shelf
registration statement) of equity securities of SkyTerra or securities
convertible or exchangeable into or exercisable for equity securities
of SkyTerra (except as part of such underwritten registration), unless the
underwriters managing the registered public offering otherwise consent in
writing, and the Holders will deliver an undertaking to the managing
underwriters (if requested) consistent with this covenant. The
Holders shall not be obligated to comply with the provisions of this Section
2.1
more than two times in any 12-month period.
Section
3. INDEMNIFICATION.
3.1 Indemnification
by SkyTerra. SkyTerra agrees to indemnify, to the extent
permitted by law, each of the Holders, their respective officers, directors,
employees and Affiliates and each Person who controls the Holders (within the
meaning of the Securities Act) against all losses, claims, damages, liabilities,
and expenses (including reasonable attorney's fees and expenses) arising out
of,
or based on (i) any untrue or alleged untrue statement of material fact
contained or incorporated by reference in the Shelf Registration Statement
or
any Prospectus forming a part of the Shelf Registration Statement or any "issuer
free writing prospectus" (as defined in Securities Act Rule 433), or any
amendment thereof or supplement thereto; (ii) any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; or (iii) any violation or alleged violation by SkyTerra
of
the Securities Act, the Exchange Act or applicable "blue sky" laws, except
insofar as the same are made in reliance and in conformity with any information
furnished in writing to SkyTerra by the Holders expressly for use therein or
by
the failure of the Holders to deliver a copy of such registration statement
or
Prospectus or any amendments or supplements thereto as required by law after
SkyTerra has furnished the Holders with a sufficient number of copies of the
same.
3.2 Indemnification
by the Holder. In
connection with the Shelf Registration Statement in which any Holder is
participating, the Holder shall furnish to SkyTerra in writing such information
as SkyTerra reasonably requests for use in connection with any such
Shelf
Registration Statement or Prospectus and, to the extent permitted by law, the
Holder shall indemnify SkyTerra, its directors, officers, employees and
Affiliates, and each Person who controls SkyTerra (within the meaning of the
Securities Act), against any losses, claims, damages, liabilities, and expenses
(including reasonable attorneys fees) arising out of or based on (i) any untrue
or alleged untrue statement of material fact contained in the Shelf Registration
Statement, the Prospectus or preliminary Prospectus forming a part of the Shelf
Registration Statement or any amendment thereof or supplement thereto or (ii)
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided always, that such indemnification obligations arise
only to the extent that any information so furnished in writing by the Holder
contains such untrue statement or omits a material fact required to be stated
therein necessary to make the statements therein not misleading; and
provided, further, however, that the obligation of the
Holder to indemnify SkyTerra hereunder shall be limited to the net proceeds
to
the Holder from the sale of the Holder's Registrable Securities pursuant to
the
Shelf Registration Statement.
3.3 Indemnification
Procedures. Any Person entitled to indemnification hereunder
shall (i) give prompt written notice to the indemnifying party of any claim
with
respect to which it seeks indemnification (provided that the failure to give
prompt notice shall not impair any Person's right to indemnification hereunder
to the extent such failure has not prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to
such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such
defense is assumed, the indemnifying party shall not be subject to any liability
for any settlement made by the indemnified party without its consent (but
such consent shall not be unreasonably withheld or delayed). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim shall not be obligated to pay the fees and expenses of more than
one
counsel (in addition to local counsel) for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party there may be one or more legal or equitable defenses
available to such indemnified party that are in addition to or may conflict
with those available to another indemnified party with respect to such
claim. Failure to give prompt written notice shall not release the
indemnifying party from its obligations hereunder.
3.4 Investigation;
Contribution. The indemnification provided
for under this Agreement shall remain in full force and effect regardless of
any
investigation made by or on behalf of the indemnified party or any officer,
director, or controlling Person of such indemnified party and shall survive
the
transfer of the Registrable Securities. If the indemnification
provided under Section 3.1 or Section 3.2 of this Agreement is held by a court
to be unavailable or unenforceable in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to
the
amount paid or payable by such indemnified Person as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate
to
reflect the relative fault of the indemnifying party on the one hand and of
the
indemnified party on the other in connection with the statements or omissions
that result in such losses, claims, damages, liabilities or expenses as well
as
any other relevant equitable considerations. The relative fault of
the indemnifying party on the one hand and of the indemnified Person on the
other shall be
determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or
by
the indemnified party, and by such party's relative intent, knowledge, access
to
information and opportunity to correct or prevent such statement or
omission. In no event shall the liability of the Holders for
contribution pursuant to this Section 3.4 be greater than the amount for which
the Holders would have been liable pursuant to Section 3.2 had
indemnification been available and enforceable.
Section
4. RULE
144 TRANSACTIONS.
4.1 Undertaking
to File Reports and Cooperate in Rule 144 Transactions. SkyTerra shall
use reasonable best efforts to file with the SEC, on a timely basis, all annual,
quarterly and other periodic reports required to be filed by it under Sections
13 and 15(d) of the Exchange Act, and the rules and regulations thereunder
for
so long as such disclosure is required to allow sales of Registrable Securities
pursuant to Rule 144 under the Securities Act; provided, however,
that the foregoing shall not be construed to require SkyTerra to prepare and
file periodic reports if it is not required to do so under the Exchange
Act. In the event of any proposed sale by the Holders of Registrable
Securities pursuant to Rule 144 under the Securities Act or otherwise as
provided herein, SkyTerra shall use its reasonable best efforts to cooperate
with the Holders so as to enable such sales to be made in accordance with
applicable laws, rules and regulations, the requirements of the transfer agent
of SkyTerra, and the reasonable requirements of the broker through which the
sales are proposed to be executed, and shall, upon written request, furnish
unlegended certificates representing ownership of Registrable Securities
sold thereby, such certificates to be furnished in such numbers and
denominations as the Holders may reasonably request.
Section
5. TRANSFER
OF REGISTRATION RIGHTS.
Any
Holder may transfer all or any portion of its rights under this Agreement to
any
permitted transferee of Registrable Securities (such transferee a
"Transferee"). Any transfer of registration
rights pursuant to this Section 5 shall be effective upon receipt by SkyTerra
of
(i) written notice from such Holder stating the name and address of any
Transferee and identifying the number of Registrable Securities with respect
to
which the rights under this Agreement are being transferred and the nature
of
the rights so transferred, and (ii) a written agreement from such Transferee
(reasonably acceptable to SkyTerra) to be bound by the terms of this
Agreement.
Section
6. Definitions
"Affiliate"
means, with respect to any specified Person, any other Person that, directly
or
indirectly or through one or more intermediaries, controls, is controlled by
or
is under common control with such specified Person. The term "control"
(including the correlative terms "controls," "Controlled by," and "under common
Control with") shall mean, with respect to any Person, the power to direct
or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract, or
otherwise.
"Agreement"
has the meaning ascribed to it in the recitals.
"Board"
has the meaning ascribed to it in Section 1.1 hereof.
"Business
Days" means any day other than a Saturday, a
Sunday or when commercial banks in New York, New York are not open for
business.
"Common
Stock" has the meaning ascribed to it in the
recitals.
"Exchange
Act" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, or any successor
statute.
"FINRA"
means the Financial Industry Regulatory Authority.
"Holders"
means Harbinger Master Fund, Harbinger Special Situation Fund, and each other
holder of the Warrants or the Registrable Securities, together with their
permitted successors and assigns.
"Non-Voting
Common Stock" has the meaning ascribed to it in
the recitals.
"Person"
means any individual, firm, partnership, corporation, trust, joint venture,
limited liability company, association, joint stock company, unincorporated
organization, or any other entity or organization, including a governmental
entity or any department, agency, or political subdivision thereof.
"Prospectus"
mean the Prospectus included in the Shelf Registration Statement and any such
Prospectus as amended or supplemented by any Prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities and
by
all other amendments and supplements to such Prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Registration
Expenses" means all expenses incident to
SkyTerra's performance of or compliance with this Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, fees with respect to filings required to
be
made with the FINRA, printing expenses, messenger and delivery and mailing
expenses, fees and disbursements of custodians, and fees and disbursements
of
counsel for SkyTerra and all independent certified public accountants retained
by SkyTerra and other Persons retained by SkyTerra.
"Registration
Request" has the meaning ascribed to it in
Section 1.1 hereof.
"Registrable
Securities" means all Warrant Shares that are
Voting Common Stock, any Voting Common Stock issued in exchange for Warrant
Shares that are Non-Voting Common Stock, and any Voting Common Stock which
may
be issued or distributed to a holder of a Warrant by way of stock dividend
or
stock split or other distribution, recapitalization or
reclassification. Any particular Registrable Securities that are
issued shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale by the Holders of such securities shall
have
become effective under the Securities Act and such securities shall have been
disposed of pursuant to such registration statement, (ii) such securities shall
have been sold by the holders thereof pursuant to Rule 144 and/or Rule 145
(or
any successor provision) under the Securities Act, (iii) such securities shall
have been otherwise transferred, new certificates for such securities not
bearing a legend restricting further transfer shall have been
delivered
by the Company and subsequent disposition of such securities shall not require
registration or qualification of such securities under the Securities Act,
(iv)
such securities shall have ceased to be outstanding, or (v) such securities
may
be sold without volume limitations pursuant to Rule 144.
"SEC"
has the meaning ascribed to it in Section 1.1.
"Securities
Act" means the Securities Act of 1933, as
amended, and the rules and regulations thereunder, or any successor
statute.
"Securities
Purchase Agreement" has the meaning ascribed in the
recitals.
"Shelf
Registration
Statement" has the
meaning ascribed to it in Section 1.1 hereof.
"SkyTerra"
has the meaning ascribed to it in the recitals.
"Suspension
Notice" has the meaning ascribed to it in Section
1.3(c) hereof.
"Transferee" has
the meaning ascribed to it in Section 5 hereof.
"Voting
Common Stock" has the meaning ascribed to it in the
recitals.
"Warrant" has
the meaning ascribed to it in the recitals.
"Warrant
Shares" has the meaning ascribed to it in the
recitals.
Section
7. MISCELLANEOUS.
7.1 Specific
Performance. The parties hereto acknowledge and agree that
in the event of any breach of this Agreement, the non-breaching parties would
be
irreparably harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto shall and
do hereby waive the defense in any action for specific performance that a remedy
at law would be adequate and that the parties hereto, in addition to any other
remedy to which they may be entitled at law or in equity, shall be entitled
to
compel specific performance of this Agreement in any action instituted
hereunder.
7.2 Amendments
and Waivers. The failure of any party to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its
terms. No modification, amendment, or waiver of any provision of this
Agreement shall be effective against the Holders or SkyTerra except by a written
agreement signed by the holders of a majority of the then-outstanding
Registrable Securities and SkyTerra.
7.3 Successors
and Assigns. All covenants and agreements in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and permitted assigns of the parties hereto whether
so expressed or not
including,
without limitation, any Person which is the successor to any of the Holders
or
SkyTerra.
7.4 Severability. If
any term, provision, covenant or restriction of this Agreement, or any part
thereof, is held by a court of competent jurisdiction or any foreign federal,
state, county, or local government or any other governmental, regulatory, or
administrative agency or authority to be invalid, void, unenforceable, or
against public policy for any reason, the remainder of the terms, provisions,
covenants, and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired, or invalidated.
7.5 Entire
Agreement. Except as otherwise expressly set forth herein,
this document embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements, or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way.
7.6 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which shall constitute one and the same
instrument, and it shall not be necessary in making proof of this Agreement
to
produce or account for more than one such counterpart.
7.7 Headings. The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning of terms contained herein.
7.8 Governing
Law; Waiver of Jury Trial. THIS AGREEMENT AND THE VALIDITY AND
PERFORMANCE OF THE TERMS HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW OR CHOICE OF LAW. THE PARTIES HERETO HEREBY AGREE THAT ALL
ACTIONS OR PROCEEDINGS ARISING DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION
WITH
THIS AGREEMENT SHALL BE LITIGATED ONLY IN THE STATE OR FEDERAL COURTS LOCATED
IN
MANHATTAN IN THE STATE OF NEW YORK. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE PARTIES HERETO CONSENT TO THE EXCLUSIVE JURISDICTION AND
VENUE OF THE FOREGOING COURTS AND CONSENT THAT ANY PROCESS OR NOTICE OF MOTION
OR OTHER APPLICATION TO EITHER OF SAID COURTS OR A JUDGE THEREOF MAY BE SERVED
INSIDE OR OUTSIDE THE STATE OF NEW YORK BY REGISTERED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO SUCH PARTY AT ITS ADDRESS SET FORTH IN THIS AGREEMENT
(AND SERVICE SO MADE SHALL BE DEEMED COMPLETE FIVE (5) DAYS AFTER THE SAME
HAS
BEEN POSTED AS AFORESAID) OR BY PERSONAL SERVICE OR IN SUCH OTHER MANNER AS
MAY
BE PERMISSIBLE UNDER THE RULES OF SAID COURTS. THE
PARTIES HERETO HEREBY WAIVE ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH
ANY LITIGATION PURSUANT TO THIS AGREEMENT.
7.9 Notices. Any
notices, reports or other correspondence (hereinafter collectively referred
to
as "correspondence") required or permitted to be given
hereunder shall
be
given in writing and shall be deemed given three business days after the date
sent by certified or registered mail (return receipt requested), one business
day after the date sent by overnight courier or on the date given by telecopy
(with confirmation of receipt) or delivered by hand, to the party to whom such
correspondence is required or permitted to be given hereunder.
To
: HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD.
HARBINGER
CAPITAL PARTNERS SPECIAL SITUATIONS FUND, LP
c/o
Harbinger Capital Partners Funds
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxxx X. Xxxxxxxx, Esq.
Vice
President and Investment Counsel
Fax
-- (000) 000-0000
with
a copy to:
Xxxxxxx
Management Corporation
Xxx
Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxxxx 00000
Attention:
General Counsel
Fax:
(000) 000-0000
with
a copy (which shall not constitute notice) to:
Xxxxxxx
XxXxxxxxx, LLP
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Attn:
Xxxxxx X. Xxxxxx, Xx., Esq.
To
SkyTerra Communications, Inc.:
SkyTerra
Communications, Inc.
00000
Xxxxxxxxx Xxxxxxxxx
Xxxxxx,
Xxxxxxxx 00000
Facsimile:
(000) 000-0000
Attn: General
Counsel
with
a copy (which shall not constitute notice) to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attn: Xxxxxxx
X. Xxxxxxxxx, Esq.
IN
WITNESS WHEREOF, the parties hereto have executed this Registration Rights
Agreement on the day and year first above written.
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SKYTERRA
COMMUNICATIONS, INC.
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By:
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Executive
Vice President, Chief Financial Officer and Treasurer
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HARBINGER
CAPITAL PARTNERS MASTER FUND I, LTD
By:
Harbinger Capital Partners Offshore Manager, L.L.C., as investment
manager
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By:
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Name:
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Title:
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HARBINGER
CAPITAL PARTNERS SPECIAL SITUATIONS FUND, LP
By:
Harbinger Capital Partners Special Situations GP, LLC, as general
partner
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By:
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Name:
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Title:
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