Exhibit 10.55
VOTING AGREEMENT
This VOTING AGREEMENT (this "Voting Agreement"), dated as of November
12, 2004, is entered into by and among those stockholders of Mobile Satellite
Ventures GP Inc., a Delaware corporation ("General Partner") and General Partner
of Mobile Satellite Ventures LP, a Delaware limited partnership ("MSV LP"),
listed on Schedule I hereto (each individually, a "Stockholder," and
collectively, the "Stockholders")).
RECITALS
WHEREAS, each Stockholder owns shares of common stock, par value $0.01
per share, of General Partner (the "Shares"), as well as units of limited
partnership interest of MSV LP;
WHEREAS, MSV LP and General Partner have entered into purchase
agreements (the "Purchase Agreements") with Motient Ventures Holding
Inc.("Motient") and certain other purchasers (collectively, the "Purchasers"),
pursuant to which the Purchasers will make an equity investment in MSV LP and
General Partner (the "Equity Investments");
WHEREAS, in connection with the Equity Investments, General Partner,
the Stockholders, and Motient are entering into that certain Amended and
Restated Stockholders' Agreement, dated as of November 12, 2004 (the "GP
Stockholders' Agreement");
WHEREAS, in connection with the Equity Investments and the concurrent
execution of the GP Stockholders' Agreement, the Stockholders wish to enter into
this Voting Agreement to memorialize their understandings and agreements
regarding the manner in which the Stockholders will vote with respect to certain
matters.
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 to this Voting Agreement hereby agree as
follows:
Article I Defined Terms
Section 1.01. Definitions. The terms defined in this Article I shall,
for the purposes of this Voting Agreement, have the meanings herein specified.
In addition, any capitalized terms used in this Voting Agreement but not defined
herein shall have the meanings given such term in the GP Stockholders'
Agreement.
"Affiliate" means any person or entity that directly or indirectly
controls, is controlled by, or is under common control with, the specified
person or entity. As used in this definition, the term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of an entity, whether through ownership
of voting securities, by contract or otherwise.
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"Board" means General Partner's Board of Directors.
"Columbia Group" means the entities listed under the caption "Columbia
Group" in Schedule I, as well as any subsequent owner of Shares or Units owned
by the Columbia Group as of the date of this Agreement, where such Shares or
Units are transferred to such subsequent owner in accordance with the terms of
Section 2.03 of this Agreement.
"Equity Investments" has the meaning given to such term in the
Recitals.
"General Partner" has the meaning given to such term in the Preamble.
"GP Stockholders' Agreement" has the meaning given to such term in the
Recitals.
"Investor Group" means each of the following: (i) the TMI Group; (ii)
the MSV Investors Group; (iii) the Telcom/Columbia/Spectrum Group, and (iv) the
Motient Group.
"Major Transaction" means (a) the merger or consolidation of MSV LP or
General Partner into or with another corporation in which the limited partners
of MSV LP or the stockholders of General Partner, as applicable, and the
Affiliates of such limited partners or stockholders immediately preceding such
merger or consolidation (solely by virtue of their units, shares or other equity
interests of MSV LP or General Partner, as applicable) shall own less than 51%
of the outstanding voting securities of the surviving corporation; (b) the sale,
transfer or lease (but not including a transfer or lease by pledge or mortgage
to a bona fide lender for so long as such lender has no right to accelerate the
maturity of the indebtedness to which such pledge or mortgage relates), whether
in a single transaction or pursuant to a series of related transactions or plan,
of all or substantially all the assets of MSV LP or General Partner, which
assets shall include for these purposes 50% or more of the outstanding voting
capital stock of any subsidiaries of MSV LP or General Partner, as applicable,
the assets of which constitute all or substantially all the assets of MSV LP or
General Partner and its subsidiaries taken as a whole; (c) the sale, transfer or
lease (but not including a transfer or lease by pledge or mortgage to a bona
fide lender for so long as such lender has no right to accelerate the maturity
of the indebtedness to which such pledge or mortgage relates), whether in a
single transaction or pursuant to a series of related transactions, of all or
substantially all the assets of subsidiaries of MSV LP or General Partner, the
assets of which constitute all or substantially all of the assets of MSV LP or
General Partner, as applicable, and its subsidiaries taken as a whole; or (d)
the liquidation, dissolution or winding up MSV LP or General Partner or of such
of MSV LP's or General Partner's subsidiaries, as applicable, the assets of
which constitute all or substantially all of the assets of the business of MSV
LP or General Partner, as applicable, and its subsidiaries taken as a whole,
whether voluntarily or involuntarily.
"Motient" has the meaning given to such term in the Recitals.
"Motient Group" means Motient and any other Affiliate of Motient that
owns Shares or Units, as well as any subsequent owner of Shares or Units owned
by the Motient Group as of the date of this Agreement.
"MSV Investors Group" means the entities listed under the caption "MSV
Investors Group" in Schedule I, as well as any subsequent owner of Shares or
Units owned by the MSV Investors Group as of the date of this Agreement, where
such Shares or Units are transferred to such subsequent owner in accordance with
the terms of Section 2.03 of this Agreement.
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"MSV LP" has the meaning given to such term in the Preamble.
"Parent Transfer/Drag Along Agreement" means that certain Amended and
Restated Parent Transfer/Drag Along Agreement, dated as of August 21, 2003, by
and among MSV LP, General Partner, Motient Corporation, Motient Ventures Holding
Inc., TMI Communications and Company, Limited Partnership, TMI Communications
Delaware, Limited Partnership, and the Investor Parents (as defined therein), as
amended.
"Partnership Agreement" means that certain Amended and Restated Limited
Partnership Agreement of MSV LP, dated as of November 12, 2004, as amended from
time to time, by and among General Partner and the limited partners named
therein.
"Purchase Agreements" has the meaning given to such term in the
Recitals.
Purchasers" has the meaning given to such term in the Recitals.
"Shares" has the meaning given to such term in the Recitals.
"Spectrum Group" means the entities listed under the caption "Spectrum
Group" in Schedule I, as well as any subsequent owner of Shares or Units owned
by the Spectrum Group as of the date of this Agreement, where such Shares or
Units are transferred to such subsequent owner in accordance with the terms of
Section 2.03 of this Agreement.
"Telcom Group" means the entities listed under the caption "Telcom
Group" in Schedule I, as well as any subsequent owner of Shares or Units owned
by the Telcom Group as of the date of this Agreement, where such Shares or Units
are transferred to such subsequent owner in accordance with the terms of Section
2.03 of this Agreement.
"Telcom/Columbia/Spectrum Group" means, collectively, the Telcom Group,
the Columbia Group, and the Spectrum Group.
"TMI Group" means the entities listed under the caption "TMI Group" in
Schedule I, as well as any subsequent owner of Shares or Units owned by the TMI
Group as of the date of this Agreement, where such Shares or Units are
transferred to such subsequent owner in accordance with the terms of Section
2.03 of this Agreement.
"Unit" means a unit of limited partnership interest in MSV LP with the
rights and privileges specified in the Partnership Agreement.
Article II Voting Agreements
Section 2.01. Voting of Shares and Units. To the extent the
Stockholders are entitled or required to vote their Shares or Units with respect
to any of the following actions (whether pursuant to law or agreement or
otherwise), none of the Stockholders shall vote its Shares or Units, or execute
a written consent with respect to such Shares or Units, in favor of any of the
following actions, unless at least three of the four Investor Groups are in
favor of such action:
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(a) Major Transactions. The consummation by General Partner or MSV LP,
directly or indirectly, of any Major Transaction, or the entry by MSV LP or
General Partner into a binding agreement with respect to a Major Transaction;
(b) Material Changes to Organizational Documents. The amendment,
alteration, waiver or termination of any provision of (i) the certificate of
incorporation of General Partner, (ii) the bylaws of General Partner, (iii) the
Certificate of Limited Partnership of MSV LP, (iv) the Partnership Agreement,
(v) the GP Stockholders' Agreement, or (v) the Parent Transfer/Drag Along
Agreement, in each case in any manner that materially affects the rights,
privileges or obligations of the stockholders of General Partner or the limited
partners of MSV LP;
(c) Acquisition of More than 49% of Shares or Units. The acquisition,
in any transaction or series of related transactions, by any stockholder of
General Partner or limited partner of MSV LP (including any Affiliates of such
stockholders or limited partners) of direct or indirect ownership of more than
49% of (i) the outstanding Shares or (ii) the outstanding Units (including in
each case any Shares or Units attributable to unexercised options or warrants or
other similar securities owned by such stockholder or limited partner or their
Affiliates); or
(d) Exercise of Drag Along Rights. Any exercise of the "drag along"
rights set forth in Section 8.5(b) of the GP Stockholders' Agreement, including,
for the avoidance of doubt, any delivery of a Drag-Along Notice (as defined in
Section 8.5(b) of the GP Stockholders' Agreement).
Section 2.02. Board Votes. For so long as any Stockholder or Investor
Group is entitled to designate one or more directors on the Board, each
Stockholder agrees to cause its (or its Investor Group's) designees on the Board
to cast their votes as directors with respect to any of the matters described in
Section 2.01 above in a manner consistent with the agreements set forth in
Section 2.01 above; provided, that nothing in this Voting Agreement shall be
deemed to require a director to take any action, or refrain from acting, in a
manner inconsistent with such director's fiduciary duties under Delaware law.
Section 2.03. Purchasers and Transferees Bound. In addition to any
other requirements of the Partnership Agreement or the GP Stockholders'
Agreement relating to a transfer of Units or Shares, no Units or Shares shall be
sold, assigned, transferred or otherwise disposed of by any of the Stockholders
unless the purchaser or transferee of such Units or Shares executes a written
agreement or instrument accepting, with respect to the Units or Shares acquired
by such purchaser or transferee, all of the terms and conditions set forth in
this Voting Agreement and agreeing to be bound thereby. Following any such
transfer of Shares or Units, such Shares or Units shall remain subject to the
provisions of this Voting Agreement, and the purchaser or transferee of such
Shares or Units shall be deemed, for all purposes of this Voting Agreement, to
be a member of the same Investor Group as the Stockholder from which such Shares
or Units were acquired.
Section 2.04. Rules of Construction.
(a) Telcom/Columbia/Spectrum Group. Concurrent with the execution of
this Voting Agreement, the Telcom/Columbia/Spectrum Group shall deliver a
written instrument, signed by each Stockholder that is a member of such Group,
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to the other Stockholders, stating the method by which the
Telcom/Columbia/Spectrum Group will express its binding vote to the other
Stockholders for matters to be voted on pursuant to this Voting Agreement. Such
methodology shall be selected by the members of the Telcom/Columbia/Spectrum
Group in their discretion, but the methodology indicated in such written
instrument shall be binding on such Stockholders unless and until a subsequent
written instrument is delivered, signed by each Stockholder that is a member of
the Telcom/Columbia/Spectrum Group, changing such methodology.
(b) Shares and Units Transferred to Other Parties. For the avoidance of
doubt, in the case of any votes or consents required by this Voting Agreement,
Shares or Units that are sold or transferred by Stockholders who are members of
one of the Investor Groups shall continue to be counted as Shares or Units, as
the case may be, owned by members of such selling Stockholder's Investor Group.
In addition, after the date of this Agreement, if any Stockholders sell or
transfer less than all of the Shares or Units owned by such Stockholder's
Investor Group to one or more persons not already members of such Stockholder's
Investor Group, then, no later than the effective date of such sale or transfer,
the Stockholder shall deliver a written instrument signed by both the transferor
and transferee(s) to each other Stockholder, stating the method by which such
transferring Stockholder's Investor Group will express its binding vote to the
other Stockholders for matters to be voted on pursuant to this Voting Agreement.
Article III Miscellaneous
Section 3.01. Term. This Voting Agreement, and the obligations of the
parties hereunder, shall survive and remain in effect until November 12, 2007,
or such other date as shall be agreed by two of the three Investor Groups party
to this Agreement (including, for this purpose, any of such Investor Group's
permitted transferees or assignees).
Section 3.02. Amendments. This Voting Agreement may be amended or
modified, and the rights and obligations of the parties to this Agreement may be
waived, only upon the written consent of two of the three Investor Groups party
to this Agreement (including, for this purpose, any of such Investor Group's
permitted transferees or assignees).
Section 3.03. Governing Law. This Agreement shall be governed in all
respects by the law of the State of New York as such law is applied to
agreements between New York residents entered into and performed entirely in the
State of New York, without regard to the conflict of laws provisions thereof.
Section 3.04. Successors and Assigns. Without in any way limiting the
applicability of other provisions of this Agreement that may be applicable, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
Nothing in this Agreement, express or implied, is intended to confer upon any
other party (other than the parties to this Agreement or their respective
successors and assigns) any rights, remedies, obligations or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
Section 3.05. Severability. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby; provided, that no such severability shall be effective if it
materially and adversely affects the economic benefit of this Agreement to any
party.
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Section 3.06. Notices. All notices required or permitted hereunder
shall be in writing and shall be deemed effectively given (a) upon personal
delivery to the party to be notified, (b) when sent by confirmed facsimile if
sent during normal business hours of the recipient, if not, then on the next
business day, (c) five days after having been sent by registered or certified
mail, return receipt requested, postage prepaid, or (d) one day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to each
Stockholder at the address designated by such party in Schedule I.
Section 3.07. Equitable Relief. Each Stockholder agrees that if it
fails to perform its obligations under this Agreement for any reason whatsoever,
the other parties hereto shall be entitled to specific performance and
injunctive or other equitable relief, and each Stockholder hereby further agrees
to waive any requirement for the securing or posting of any bond in connection
with the obtaining of any injunctive or other equitable relief. This provision
is without prejudice to any other rights that the other parties to this
Agreement may have against any other party for any failure to perform its
obligations under this Agreement.
Section 3.08. Further Assurances. Each Stockholder shall at any time
and from time to time promptly execute and deliver to the other Stockholders
such further instruments, consents and other documents and take such further
action as such other Stockholders may reasonably require in order to carry out
the full intent and purpose of this Agreement.
Section 3.09. Interpretation. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement. All pronouns contained herein,
and any variations thereof, shall be deemed to refer to the masculine, feminine
or neutral, singular or plural, as to the identity of the parties hereto may
require.
Section 3.10. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument. Delivery of an executed counterpart of
a signature page of this Agreement by facsimile shall be effective as delivery
of a manually executed counterpart of this Agreement.
Section 3.11. Entire Agreement. This Agreement, the Schedules hereto
and any other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and supersede any and all prior and contemporaneous agreements or
understandings, whether expressed or implied, written or oral, between the
parties with respect hereto and thereto. No party shall be liable or bound to
any other in any manner by any representations, warranties, covenants and
agreements except as specifically set forth herein and therein.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Voting
Agreement as of the date first above written.
MSV INVESTORS, LLC
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: CEO
TMI COMMUNICATIONS DELAWARE, LIMITED PARTNERSHIP
By: 3924505 Canada, Inc., its General Partner
By: /s/ Xxxx XxXxxxxxx
---------------------------------------
Name: Xxxx XxXxxxxxx
Title: President
TELCOM SATELLITE VENTURES II, INC.
By: /s/ Xxxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Chairman and CEO
TELCOM SATELLITE VENTURES INC.
By: /s/ Xxxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Chairman and CEO
SPECTRUM SPACE EQUITY INVESTORS IV-II, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
SPECTRUM SPACE IV PARALLEL II, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
SPECTRUM SPACE IV MANAGERS II, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
SPECTRUM SPACE EQUITY INVESTORS IV, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
SPECTRUM SPACE IV PARALLEL, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
SPECTRUM SPACE IV MANAGERS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
COLUMBIA SPACE (QP) II, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
COLUMBIA SPACE (AI) II, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
COLUMBIA SPACE PARTNERS II, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
COLUMBIA SPACE (QP), INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
COLUMBIA SPACE (AI), INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
COLUMBIA SPACE PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
