Exhibit 10.56
AMENDED AND RESTATED CONSENT AGREEMENT
This Amended and Restated Consent Agreement ("Consent Agreement"),
dated as of February 9, 2005, 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, listed on the signature pages hereto (collectively, the
"Telcom/Columbia/Spectrum Parties").
RECITALS
WHEREAS, each of the Telcom/Columbia/Spectrum Parties are party to that
certain Voting Agreement by and among the stockholders of General Partner, dated
November 12, 2004, as amended and in effect from time to time (the "Voting
Agreement").
WHEREAS, each of the Telcom/Columbia/Spectrum Parties are party to that
certain Amended and Restated Stockholders Agreement by and among the
stockholders of General Partner, dated November 12, 2004, as amended and in
effect from time to time (the "Stockholders' Agreement ").
WHEREAS, each of the Telcom/Columbia/Spectrum Parties are members of
the Telcom/Columbia/Spectrum Group.
WHEREAS, immediately after execution of this Consent Agreement, Telcom
Satellite Ventures, Inc. and Telcom Satellite Ventures II, Inc. will merge with
and into MVH Holding Inc., a Delaware corporation and wholly owned subsidiary of
Motient Corporation, and immediately thereafter MVH Holding Inc. will contribute
the assets of Telcom Satellite Ventures, Inc. and Telcom Satellite Ventures II,
Inc. to Motient Venture Holdings Inc. ("MVH"), a Delaware corporation and wholly
owned subsidiary of MVH Holding Inc. (the "Telcom/MVH Merger").
WHEREAS, pursuant to Section 2.04(a) of the Voting Agreement, the
Telcom/Columbia/Spectrum Parties must provide the other Stockholders with a
written instrument signed by the Telcom/Columbia/Spectrum Parties stating the
method by which the Telcom/Columbia/Spectrum Group will express its binding vote
to the other Stockholders in respect of matters that are to be voted on by the
Stockholders pursuant to the Voting Agreement.
WHEREAS, capitalized terms not otherwise defined herein shall have the
meanings given such terms in the Voting 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 Telcom/Columbia/Spectrum Parties hereby agree as
follows:
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1. Definitions.
"Columbia Blocker Corps." shall mean (i) Columbia Space (QP), Inc.,
(ii) Columbia Space (AI), Inc., and (iii) Columbia Space Partners, Inc.
"Columbia Funds" shall mean (i) Columbia Capital Equity Partners III
(QP), L.P., (ii) Columbia Capital Equity Partners III (AI), L.P., (iii) Columbia
Capital Equity Partners III (Cayman), L.P., (iv) Columbia Capital Investors III,
LLC, (v) Columbia Capital Employee Investors III, LLC and/or (vi) any affiliated
fund of the foregoing.
"Effective Time" shall mean the effective time of the Telcom/MVH
Merger.
"Spectrum Blocker Corps." shall mean (i) Spectrum Space Equity
Investors IV, Inc., (ii) Spectrum Space IV Parallel, Inc., and (iii) Spectrum
Space IV Managers, Inc.
"Spectrum Funds" shall mean (i) Spectrum Equity Investors IV, L.P.,
(ii) Spectrum Equity Investors Parallel IV, L.P., (iii) Spectrum IV Investment
Managers Fund, L.P and/or (iv) any affiliated fund of the foregoing.
"Telcom Blocker Corps." shall mean (i) Telcom Satellite Ventures Inc.,
and (ii) Telcom Satellite Ventures II Inc. prior to the Effective Time and MVH
after the Effective Time.
"Telcom/Columbia/Spectrum Shares" shall mean any Shares held by the
Columbia Blocker Corps., Spectrum Blocker Corps. and/or Telcom Blocker Corps
immediately prior to the Effective Time.
"Telcom/Columbia/Spectrum Units" shall mean any Units held by the
Columbia Blocker Corps., Spectrum Blocker Corps. and/or Telcom Blocker Corps
immediately prior to the Effective Time.
"Transfer" shall means any transfer, sale, gift, exchange, assignment,
merger, recapitalization, pledge, hypothecation or other disposition of direct
or indirect ownership or voting control of any Telcom/Columbia/Spectrum Shares
and any Telcom/Columbia/Spectrum Units.
"Transferee" shall mean any holder of Telcom/Columbia/Spectrum Shares
and Telcom/Columbia/Spectrum Units received pursuant to a Transfer.
2. Consent.
A. From and after the Effective Time and until such time as the
Columbia Funds no longer own, directly or indirectly, at least 25% of the Shares
and Units owned by the Columbia Blocker Corps. immediately prior to the
Effective Time, the vote or written consent of the Shares or Units owned by the
Columbia Blocker Corps., exclusive of the vote of any Shares or Units owned by
the Spectrum Blocker Corps, and Telecom Blocker Corps. as of the time of such
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vote or written consent shall bind the Telcom/Columbia/Spectrum Group with
respect to matters to be voted on or consented to pursuant to Sections 2.01,
2.02, 3.01, or 3.02 of the Voting Agreement. Promptly following the execution of
this Consent Agreement, the stockholders of each of the Columbia Blocker Corps.,
the Spectrum Blocker Corps. and the Telcom Blocker Corps. (and MVH as successor
pursuant to the Telcom/MVH Merger), will deliver to the other Stockholders of
General Partner the notice attached hereto as Exhibit A advising the other
Stockholders of General Partner of the parties forgoing agreement with respect
to the voting of the Telcom/Columbia/Spectrum Shares and the Telcom/Columbia
Spectrum Shares and Units. The notice delivered pursuant to this Section 2A
shall remain in effect until such time as the parties are required by Section 2B
to give the notice required thereby.
B. From and after such time as the Columbia Funds no longer own,
directly or indirectly, at least 25% of the Shares and Units owned by the
Columbia Blocker Corps. immediately prior to the Effective Time, the vote or
written consent of the holders of a majority of the Telcom/Columbia/Spectrum
Shares or Telcom/Columbia/Spectrum Units, as the case may be, as of the time of
such vote or written consent shall bind the Telcom/Columbia/Spectrum Group with
respect to matters to be voted on or consented to pursuant to Sections 2.01,
2.02, 3.01, or 3.02 of the Voting Agreement. Promptly following the effective
time after which the Columbia Funds no longer own, directly or indirectly, at
least 25% of the shares and Units owned by the Columbia Blocker Corps., the
stockholders of each of the Columbia Blocker Corps., the Spectrum Blocker Corps.
and the Telcom Blocker Corps. (or MVH as successor pursuant to the Telcom/MVH
merger) will deliver to the other Stockholders of General Partner the notice
attached hereto as Exhibit B advising the other Stockholders of General Partner
that from and after such date the parties agreement with respect to the voting
of the Telcom/Columbia/Spectrum Units and the Telcom/Columbia Spectrum Shares
and Units.
C The Telcom/Columbia/Spectrum Group will not vote or execute a written
consent for a waiver of the 49% limitation in Section 8.6 of the Stockholders'
Agreement or Section 2.01(c) of the Voting Agreement with respect to the
acquisition by any stockholder of General Partner or limited partner of MSV
(including any Affiliates (as defined in the MSV LP Agreement (as defined in the
Stockholders' Agreement) of such stockholders or limited partners) other than
MVH of more than 49% of (a) the outstanding Stock (as defined in the
Stockholders' Agreement ) or (b) the outstanding Units (including in each case
any Stock or Units attributable to unexercised options or warrants or other
similar securities owned by such stockholder or limited partner or their
affiliates), unless such limitation is also waived for MVH or otherwise does not
apply to MVH in connection with the same transaction (including application with
regard to rights of first refusal pursuant to the Stockholders Agreement). If
the Telcom/Columbia/Spectrum Group votes to waive the 49% limitation (in
accordance with this Section 2C) with respect to (i) a limited partner of MSV or
stockholder of General Partner other than MVH and (ii) MVH, then MVH (and any
other Affiliate of MVH that owns Shares or Units, as well as any subsequent
owner of Shares or Units owned by the Motient Group (as defined in the Voting
Agreement)) will vote to waive the 49% limitation (in accordance with this
Section 2C) with respect to such other limited partner of MSV or stockholder of
General Partner.
D. The parties that shall bind the Telcom/Columbia/Spectrum Group with
respect to matters to be voted on or consented to pursuant to Sections 2.01,
2.02, 3.01, or 3.02 of the Voting Agreement shall be referred to herein as the
"Binding Parties".
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3. Transfers to Transferees.
A. Except as set forth in Section 2B or 6B (if applicable), no
Transferee shall have any voting power or consent rights under this Consent
Agreement or the Voting Agreement with respect to any Telcom/Columbia/Spectrum
Shares and Telcom/Columbia/Spectrum Units Transferred to such Transferee.
B. Prior to or simultaneously with any Transfer, (i) the Transferee(s)
shall execute a written agreement or instrument accepting, with respect to the
Telcom/Columbia/Spectrum Shares and Telcom/Columbia/Spectrum Units so
Transferred, all of the terms, conditions and provisions set forth in this
Consent Agreement and agreeing to be bound thereby and (ii) the transferor(s)
shall deliver a written instrument signed by the transferor(s) and the
Transferee(s) to each other Stockholder, stating that the transferor(s) and the
Transferee(s) agree to be so bound by this Consent Agreement.
4. Circumvention. The parties intend the provisions of this Consent
Agreement to be construed broadly so as to deprive all Transferees, other than
as set forth in Section 2B or 6B (if applicable), any consenting or voting
rights under or pursuant to the Voting Agreement with respect to
Telcom/Columbia/Spectrum Shares and Telcom/Columbia/Spectrum Units Transferred.
Each party agrees that it will not circumvent the intent of this Consent
Agreement and the provisions hereunder.
5. Equity Interests in TerreStar Networks Inc. As of the Effective
Time, the Columbia Blocker Corps., Spectrum Blocker Corps., and Telcom Blocker
Corps. hold rights (the "Rights Certificates") to receive shares of common stock
("Common Stock") of TerreStar Networks Inc. ("TerreStar"). As a holder of such
Rights Certificates, the Columbia Blocker Corps., Spectrum Blocker Corps., and
Telcom Blocker Corps. are parties to that certain TerreStar Securityholders'
Agreement dated as of December 20, 2004, the Columbia Blocker Corps., Spectrum
Blocker Corps., and Telcom Blocker Corps. are parties to that certain TerreStar
Voting Agreement dated as of December 20, 2004 (the "TerreStar Voting
Agreement") and the stockholders of the Columbia Blocker Corps., Spectrum
Blocker Corps., and Telcom Blocker Corps. are parties to that certain TerreStar
Parent Transfer/Drag Along Agreement dated as of December 20, 2004. The parties
agree that the Rights Certificates, any shares of Common Stock issued upon
conversion of the Rights Certificates and any other equity securities of
TerreStar held by the Columbia Blocker Corps., Spectrum Blocker Corps., and
Telcom Blocker Corps., shall be subject to the provisions of Section 2, Section
3, and Section 4 of this Agreement (the provisions of which are hereby
incorporated by reference, mutatis, mutandis into this Section 5) as if such
Rights Certificates, Common Stock, or other equity securities in TerreStar, as
applicable, were Shares or Units. In the case of the TerreStar Voting Agreement,
the notices contemplated by Section 2A and 2B, which are attached as Exhibits C
or D, shall be delivered to the Holders (as defined in the TerreStar Voting
Agreement).
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6. Miscellaneous.
A. Term. This Consent Agreement, and the obligations of the parties
hereunder, shall survive and remain in effect so long as the Voting Agreement
survives and remains in effect.
B. Amendments. This Consent Agreement, and the rights and obligations
of the parties hereto may be waived (either generally or in a particular
instance, either retroactively or prospectively, and either for a specified
period of time or indefinitely) or amended if and only if such waiver or
amendment is consented to in writing by the Binding Parties; provided, however,
that if any waiver or amendment would materially and adversely affect the rights
of one or more parties in a way that is different from its effect on the other
parties, such waiver or amendment shall not be effective as to any such
adversely affected party unless consented to by such adversely affected party.
Each party to this Consent Agreement shall be bound by any amendment or waiver
effected properly and in accordance with this Section, whether or not such party
has consented to such amendment or waiver.
C. Governing Law. This Consent 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 residence entered into and performed entirely in the
State of New York, without regard to the conflict of laws provisions hereof.
D. Successors and Assigns. The provisions hereof shall be binding upon
the Transferees, successors, assigns, heirs, executors and administrators of the
parties hereto. Except as set forth in Section 2B or 6B (if applicable),
Transferees shall not have any voting power or consent rights under this Consent
Agreement.
E. Severability. In case any provisions of this Consent 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 Consent Agreement to any
party hereto.
F. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given (a) upon personal delivery to the
party to be notified, (b) when sent by confirmed facsimile if sent during normal
business hours of the recipient, if not, then on the next business day, (c) five
days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to each party at the
address previously provided by such party.
G. Equitable Relief. Each party agrees that if it fails to perform its
obligations under this Consent 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 Consent Agreement
may have against any other party for any failure to perform its obligations
under this Consent Agreement.
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H. Further Assurances. Each party shall at any time and from time to
time promptly execute and deliver to the other parties such further instruments,
consents and other documents and take such further action as such other parties
may reasonably require in order to carry out the full intent and purpose of this
Consent Agreement.
I. Interpretation. The titles of the sections and subsections of this
Consent Agreement are for convenience of reference only and are not to be
considered in construing this Consent 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.
J. Counterparts. This Consent 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 Consent Agreement by facsimile shall be effective as
delivery of a manually executed counterpart of this Consent Agreement.
K. Entire Agreement. This Consent Agreement, the Voting Agreement and
any other documents delivered to all parties 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 Consent Agreement
as of the date first above written.
TELCOM SATELLITE VENTURES II, INC.
By: /s/ Xxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxx Xxxxx
Title: President
TELCOM SATELLITE VENTURES INC.
By: /s/ Xxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxx Xxxxx
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
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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
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As a Transferee, the undersigned each agree to be bound all of the terms,
conditions and provisions set forth in this Consent Agreement with respect to
the Telcom/Columbia/Spectrum Shares and Telcom/Columbia/Spectrum Units so
Transferred.
MOTIENT VENTURE HOLDING INC.
By: /s/ Xxxxxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Executive Vice President and Chief
Operating Officer
MVH HOLDINGS INC.
By: /s/ Xxxxxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Executive Vice President and Chief
Operating Officer
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