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EXHIBIT 4.4
ICO-TELEDESIC GLOBAL LIMITED
STOCKHOLDERS AGREEMENT
AS OF
JUNE 19, 2000
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ICO-TELEDESIC GLOBAL LIMITED
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (this "Agreement") is made as of the 19th
day of June, 2000, by and among ICO-Teledesic Global Limited, a Delaware
corporation (the "Company"), and the stockholders of the Company listed on
Schedule A hereto executing this Agreement (each, a "Stockholder"). The parties
acknowledge that Schedule A may be amended from time to time in accordance with
the terms of this Agreement.
BACKGROUND
A. The Company has been formed by Eagle River Investments, L.L.C.
("Eagle River") in order to assemble, through a series of strategic acquisitions
and mergers, certain global telecommunications networks, distribution
capabilities, operations systems and other assets to be a global satellite
communications company.
B. The Company desires to provide certain information rights to the
Stockholders in connection with their equity interests.
C. The Stockholders desire to restrict the sale, assignment, transfer,
encumbrance or other disposition of the shares of capital stock of the Company,
any warrants or other rights to purchase capital stock that the Stockholders
currently own or have subscribed for (as set forth in the attached Schedule A),
and any such securities of the Company that the Stockholders may later acquire
(collectively, the "Stock"), and to provide for certain rights and obligations
with respect to the Stock.
Therefore, for good and valuable consideration the receipt and
sufficiency of which is acknowledged by each party, the parties agree as
follows:
AGREEMENT
1. DEFINITIONS
Capitalized terms used in this Agreement shall have the meanings set
forth in Annex I to this Agreement.
2. STOCK TRANSFERS
2.1 DEFINITION OF "TRANSFER"
For purposes of this Agreement, a "Transfer" is any direct or indirect
sale, assignment, pledge, encumbrance or other transfer or disposition of Stock.
With respect to a Stockholder that is an entity that (i) was formed for the
principal purpose of owning the Stock or (ii) whose assets solely or primarily
consist of the Stock, for purposes of this Agreement the term "Transfer"
includes but is not limited to (x) the direct or indirect transfer of a
controlling ownership or voting interest in such Stockholder or in the ultimate
direct or indirect
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controlling Person (or group of Persons acting in concert) of such Stockholder
and (y) any corporate transaction such as new issuances of equity, a merger or
other business combination, spin-off or distribution that would result in a
Change in Control of such Stockholder or of the ultimate direct or indirect
controlling Person (or group of Persons acting in concert) of such Stockholder.
2.2 CONDITIONS TO TRANSFERS
Except for Permitted Transfers (as defined in Section 2.3 below) and
other Transfers that comply with Articles 3, 4 and 5 of this Agreement, no
Stockholder shall Transfer any Stock.
2.3 PERMITTED TRANSFERS
The general prohibition against Transfer described in Section 2.2 and
the Transfer restrictions contained in Articles 3, 4 and 5 of this Agreement
shall not apply:
(a) to any Transfer by a Stockholder to the spouse or any lineal
descendant of such Stockholder, including adopted children, or to
a trust for the exclusive benefit of such Stockholder or such
Stockholder's spouse or lineal descendants (provided, in the case
of a trust, that the existing trustee(s) of such trust have the
power to act with respect to the trust's assets without court
approval);
(b) to any Transfer to the personal representative of a deceased
Stockholder;
(c) with respect to a Stockholder that is a corporation, limited
liability company, partnership or trust, to any Transfer to any
Affiliate, stockholder, member (in the case of a Stockholder that
is a limited liability company), partner (in the case of a
Stockholder that is a partnership) or beneficiary (in the case of
a Stockholder that is a trust) of such entity, or to any Transfer
by such entity in connection with the liquidation, dissolution or
other disposition of all or substantially all such entity's
assets;
(d) subject to the provisions of this Section 2.3, to any Transfer by
Eagle River, Xx. XxXxx or any of their respective Affiliates of,
in the aggregate, less than fifteen percent (15%) of their shares
(on a fully diluted basis) of Stock to strategic partners or
Associates of Eagle River, Xx. XxXxx or any of their respective
Affiliates;
(e) to any Transfer by any Stockholder of its Stock to Eagle River,
Xx. XxXxx or any of their respective Affiliates (other than the
Company and its subsidiaries);
(f) to any bona fide pledge of Stock to a financial institution or
investment banking firm; provided, however, that the subsequent
Transfer of such Stock to such institution or firm pursuant to
the terms of such pledge or to any person purchasing on the
foreclosure of such pledged Stock shall be subject to Section 2.2
and Articles 3, 4 and 5;
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(g) to any Transfer of the Gates Fiduciary Stock or the XxXxx
Settlement Stock;
(h) to any conversion, exchange or exercise of convertible,
exchangeable or exercisable securities, stock options or
warrants if in all cases the holder of the issued Stock after
such conversion or exercise is the same as the holder of the
converted or exercised securities; or
(i) to any Transfer by Drag Along Stockholders under Section 4 of
this Agreement;
(any of the foregoing Transfers, a "Permitted Transfer"); provided, that as a
condition precedent to each Permitted Transfer, the transferee of the Stock
executes and delivers to the Company and each other Stockholder a written
acknowledgment in favor of the Company and each Stockholder stating that by
acquiring such Stock, the transferee has become a party to this Agreement and
will be entitled to all the rights and subject to all the obligations of a
Stockholder hereunder. Notwithstanding the foregoing, any financial institution
or investment banking firm acquiring the Stock pursuant to a pledge as described
in Section 2.2(f) above, shall not be subject to the terms of this Agreement but
shall take the Stock free and clear of any of the restrictions set forth in this
Agreement. In addition, shares of Class B Common Stock may be subject to
conversion upon Transfer pursuant to the terms of the Company's Restated
Certificate of Incorporation, as the same may be amended from time to time.
3. RIGHT OF CO-SALE
3.1 CO-SALE NOTICE
Subject to Articles 4 and 5 of this Agreement, a Stockholder may
Transfer Stock only if the Stockholder proposing to Transfer Stock has complied
with this Section 3. Any Stockholder who intends to Transfer Stock (the "Selling
Stockholder") must first receive a written, bona fide, binding offer from a
non-Affiliate of the Selling Stockholder (the "Proposed Transferee"), to
purchase Stock (conditioned only on the exercise of Stockholder rights under
this Agreement and satisfaction of customary closing conditions). Upon receipt
and acceptance of such an offer, the Selling Stockholder shall give written
notice (the "Seller's Notice") to each other Stockholder (the "Other
Stockholders") stating that the Selling Stockholder intends to Transfer Stock.
The Seller's Notice shall identify the Proposed Transferee, specify the type and
number of shares of Stock to be Transferred to the Proposed Transferee (the
"Co-Sale Shares"), and specify the per share price (in cash or other
consideration) (the "Sale Price") that the Proposed Transferee has agreed to pay
for the Co-Sale Shares. A copy of the binding offer from the Proposed Transferee
shall be attached to Seller's Notice.
3.2 EXERCISE OF RIGHT OF CO-SALE
Each Other Stockholder shall have the right (subject to any required
regulatory approvals), exercisable upon written notice to the Selling
Stockholder within 15 calendar days after the delivery of the Seller's Notice
(the "Co-Sale Exercise"), to participate in the Selling Stockholder's Transfer
of Co-Sale Shares at the Sale Price and upon the other terms and
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conditions set forth in the Seller's Notice. The Co-Sale Exercise shall be
subject to the following terms and conditions:
(a) Each Other Stockholder electing to Transfer all or any part of
its Stock (the "Exercising Stockholder") shall specify in the
Co-Sale Exercise the maximum number of shares of Stock up to the
number of Co-Sale Shares that the Exercising Stockholder wishes
to Transfer under the terms and conditions set forth in the
Seller's Notice (the "Maximum Number"). The Selling Stockholder's
Maximum Number shall be equal to the number of Co-Sale Shares. A
Co-Sale Exercise shall constitute an irrevocable offer to
Transfer such Maximum Number of Stock in accordance with this
Section 3.2.
(b) Initially, the number of shares to be sold by the Selling
Stockholder and each Exercising Stockholder (the "Initial
Number") shall be limited to the lesser of (i) the Maximum Number
for such Selling Stockholder or Exercising Stockholder or (ii)
the product obtained by multiplying (A) the aggregate number of
Co-Sale Shares by (B) a fraction, the numerator of which is the
number of shares of Stock owned at the time (not assuming
conversion, exchange or exercise of convertible securities) by
the Selling Stockholder or such Exercising Stockholder and the
denominator of which is the combined amount of Stock owned at the
time (not assuming conversion, exchange or exercise of
convertible securities) by the Selling Stockholder and all the
Exercising Stockholders.
(c) If the sum of all Initial Numbers is less than the number of
Co-Sale Shares (thereby leaving a "Remaining Number"), then the
Selling Stockholder and each Exercising Stockholder shall
Transfer its Initial Number plus an additional number (the
"Additional Number") equal to the lesser of (i) the difference
between the Maximum Number and the Initial Number or (ii) the
product obtained by multiplying (A) the Remaining Number by (B) a
fraction the numerator of which is the number of shares of Stock
owned at the time by such Exercising Stockholder or Selling
Stockholder and the denominator of which is the sum of the number
of shares of Stock owned at the time by the Selling Stockholder
and all Exercising Stockholders.
(d) If the sum of all Initial Numbers and all Additional Numbers is
less than the number of Co-Sale Shares (thereby leaving a "Final
Remaining Number"), then each Stockholder (including the Selling
Stockholder) that has not yet sold its Maximum Number (together,
the "Maximum Stockholders") shall Transfer the sum of its Initial
Number plus its Additional Number, plus an additional number (the
"Final Additional Number") equal to the lesser of (i) the
difference between the Maximum Number and the sum of the Initial
Number and the Additional Number or (ii) the product obtained by
multiplying (A) the Final Remaining Number by (B) a fraction the
numerator of which is the number of shares of Stock owned at the
time by such Maximum Stockholder and the denominator of which is
the sum of the number of shares of Stock owned at the time by all
Maximum Stockholders. The procedure specified by
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this paragraph shall be continued with respect to each Exercising
Stockholder that has not yet sold its respective Maximum Number
until (y) the maximum number of Co-Sale Shares has been allocated
to the Stockholders or (z) each Exercising Stockholder has been
allocated its respective Maximum Number.
(e) Each of the Exercising Stockholders shall effectuate the Transfer
of its Stock pursuant to this Section 3.2 by promptly delivering
to the Selling Stockholder for transfer to the Proposed
Transferee one or more certificates, properly endorsed for
transfer, that represent the number of shares of Stock that such
Exercising Stockholder is permitted and obligated to Transfer
under this Section 3.2. Fractional shares shall be rounded to the
nearest whole share.
(f) The certificates that the Exercising Stockholders deliver to the
Selling Stockholder shall be transferred by the Selling
Stockholder to the Proposed Transferee in consummation of the
Transfer of the Stock pursuant to the terms and conditions
specified in the Co-Sale Notice, and the Selling Stockholder
shall promptly thereafter remit to each Exercising Stockholder
its pro rata portion of the aggregate Sale Price paid for the
Co-Sale Shares.
(g) This Section 3.2 shall terminate at such time as Xx. XxXxx, Eagle
River and their respective Affiliates do not own or control
securities of the Company representing more than 50% of the
voting power of the Company.
3.3 CLOSING
The Selling Stockholder and Exercising Stockholders must complete the
Transfer of Co-Sale Shares on the terms of the Co-Sale Notice and as provided in
this Section 4 within the 45-day period following the expiration of the 15-day
period following delivery of the Co-Sale Notice; provided that such period shall
be extended until necessary governmental permits or regulatory approvals have
been obtained ; provided, however, that the Transfer may be completed earlier if
the Selling Stockholder has received from each Other Stockholder a written
waiver of the rights set forth in this Section 4.
4. RIGHT TO REQUIRE PARTICIPATION IN TRANSFER
4.1 DRAG ALONG RIGHTS
Notwithstanding Article 3 and notwithstanding Section 5.2, if Xx. XxXxx,
Eagle River or any of their respective Affiliates agrees to engage in or effect
a Transfer of all the Stock then held by Xx. XxXxx, Eagle River and their
respective Affiliates and Xx. XxXxx, Eagle River and their respective Affiliates
own or control securities of the Company representing more than 50% of the
voting power of the Company, in a bona fide arm's-length transaction with a
person not an Affiliate of Xx. XxXxx, Eagle River or their respective Affiliates
or in connection with a transaction in which an internationally recognized
investment banking firm has opined that the transaction is fair to the
Stockholders, then Xx. XxXxx, Eagle River or any of their respective Affiliates
may invoke its "Drag Along Right," which is the right to require all other
Stockholders (the "Drag Along Stockholders") to Transfer all shares of Stock
then held by the Drag Along Stockholders concurrently with the
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Transfer by Xx. XxXxx, Eagle River and their respective Affiliates on the same
terms and conditions and for the same consideration per share or other unit of
Stock (the "Drag Along Price"); provided, however, that the Transfer of the
Stock by the Drag Along Stockholders is in accordance with all applicable
securities laws and does not violate any law or regulation applicable to the
Drag Along Stockholders. Such election shall be made by Xx. XxXxx, Eagle River
or any of their respective Affiliates by delivering to the Drag Along
Stockholders a written notice (the "Drag Along Notice") informing them of the
material terms of the Transfer, including, without limitation, the identity of
the potential purchaser, the Drag Along Price to be paid by the potential
purchaser and the other related terms and the scheduled closing date for the
Transfer (the "Transfer Date").
4.2 DELIVERY OF SHARES; CLOSING
At least three days prior to the Transfer Date, the Drag Along
Stockholders shall deliver to the Company the certificate(s) evidencing the
shares of the Stock held by them duly endorsed for transfer to the potential
purchaser. On the Transfer Date and provided that Xx. XxXxx, Eagle River and
their respective Affiliates consummate the Transfer of all the Stock then held
by such parties to the potential purchaser at the Sale Price, then the Company
shall deliver the certificate(s) evidencing all Stock held by the Drag Along
Stockholders to the potential purchaser against payment of the Drag Along Price
for such Stock, and the Company shall promptly remit such payment to the Drag
Along Stockholders in the respective amounts due them without reduction or
adjustment of any kind except as may be required by law.
4.3 INAPPLICABILITY OF TRANSFER RESTRICTIONS
Article 3 of this Agreement shall not apply to a Transfer in which Xx.
XxXxx, Eagle River or any of their respective Affiliates exercises a Drag Along
Right under this Article 4 but shall apply to any Transfer by such parties
(other than a Permitted Transfer) as to which such parties do not exercise a
Drag Along Right.
4.4 INCLUSION VIOLATION
In the event a Drag Along Stockholder fails to comply with the
requirements of this Section 4, Xx. XxXxx, Eagle River, their respective
Affiliates and the potential purchaser shall have, in addition to whatever other
rights they may have in law or in equity, such call options against such
Stockholder as shall be necessary and appropriate to effect the intent of this
Section 4, and the Stockholders agree to be bound by such call options.
4.5 VOTING OBLIGATION
In the event any proposed Transfer under Section 4.1 (together with any
subsequent Transfers by the Drag Along Stockholders) would result in a corporate
transaction that would require the approval of the Company's stockholders, each
Drag Along Stockholder agrees to vote in favor of approving such corporate
transaction.
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5. ADDITIONAL TRANSACTIONS; PROHIBITED TRANSFERS
5.1 ADDITIONAL TRANSACTIONS
The exercise or nonexercise of the rights of a Stockholder under this
Agreement to participate in one or more Transfers of Stock made by a Selling
Stockholder shall not adversely affect such Stockholder's rights to participate
in subsequent Transfers by a Selling Stockholder.
5.2 PROHIBITED TRANSFERS
All Stockholders agree not to effect a Transfer (other than a Permitted
Transfer, a Transfer in which a Stockholder (other than Xx. XxXxx, Eagle River
or any of their respective Affiliates) exercises its Co-Sale Rights pursuant to
Section 3 or a Transfer in which Xx. XxXxx, Eagle River or any of their
respective Affiliates exercises its Drag Along Right) from and after the date of
this Agreement until the earlier of (a) termination of this Agreement in
accordance with Section 9 or (b) the second anniversary of the original date of
this Agreement. Article 3 shall be subject to, and limited by, this Section 5.2.
6. MARKET STAND-OFF AGREEMENT
6.1 STAND-OFF OBLIGATION
All Stockholders hereby agree that, in connection with each of the first
two underwritten public offerings by the Company of its equity securities
pursuant to an effective registration statement filed under the Act or under
similar laws of any other nation or commonwealth (as the case may be) subsequent
to the date hereof, and upon the request of the Company, each such Stockholder
shall enter into a customary agreement with the underwriters to not directly or
indirectly Transfer, offer to Transfer, contract to Transfer (including, without
limitation, any short sale) or grant any option to Transfer any Stock (except
any Stock that may be included in such public offering), as may be reasonably
required by the underwriters of such public offering, provided that Eagle River
and the officers and directors of the Company agree to the same restriction and
provided further that such restriction shall not extend for a period beyond 180
days following the commencement of such offering.
6.2 ENFORCEMENT OF STAND-OFF OBLIGATION
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Stock of each Stockholder until
the end of the market stand-off period.
6.3 INAPPLICABLE REGISTRATIONS
The obligations described in this Section 6 shall not apply to (a) a
registration relating solely to employee benefit plans (including any
registration pursuant to any Form X-0, Xxxx X-0 or similar forms that may be
promulgated under the Act in the future or as may be applicable under similar
laws of any other nation or commonwealth), (b) a registration
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relating solely to a Securities and Exchange Commission Rule 145 transaction on
Form S-4 or similar forms that may be promulgated under the Act in the future or
as may be applicable under similar laws of any other nation or commonwealth, or
(c) to a Permitted Transfer (as described in Section 2) so long as the
transferee agrees to be bound by this Section 6.
7. INFORMATION RIGHTS
7.1 DELIVERY OF FINANCIAL STATEMENTS
At any time that the Company is not subject to the reporting
requirements of the 1934 Act, the Company shall deliver to each Stockholder who,
together with all persons to which such Stockholder has made a Permitted
Transfer under Section 2.3 (each, a Related Stockholders") owns securities
representing not less than ___% of the voting power of the Company :
(a) as soon as practicable, but in any event within 90 days after the
end of the Company's fiscal year, a consolidated balance sheet
and a statement of stockholders' equity as of the end of such
year and a statement of operations and a statement of cash flows
for such year (which statements, shall be on a consolidated
basis), such year-end financial statements to be in reasonable
detail, prepared in accordance with generally accepted accounting
principles in the U.S., and audited and certified by independent
public accountants selected by the Company; and
(b) as soon as practicable, but in any event within 45 days after the
end of each of the first three quarters of each fiscal year of
the Company, an unaudited balance sheet and statement of
stockholders' equity as of the end of such fiscal quarter and a
statement of operations and a statement of cash flows for such
fiscal quarter (which statements, shall be on a consolidated
basis), in reasonable detail.
7.2 INSPECTION
Until the Company is subject to the reporting requirements of the 1934
Act, the Company shall permit each Stockholder who, together with its Related
Stockholders, owns securities representing not less than ___% of the voting
power of the Company , at such Stockholder's expense, to visit and inspect its
properties, to examine its books of account and records and to discuss its
affairs, finances and accounts with its officers, all at such reasonable times
as may be requested by the Stockholder; provided, however, that (i) the Company
shall not be obligated pursuant to this Section 7.2 to provide access to any
information it reasonably considers to be a trade secret or similar confidential
information; (ii) prior to any disclosure under this Section 7.2, the Company
may require that the Stockholder agree in writing to such confidentiality
provisions as any of such entities may reasonably request and (iii) disclosure
of or access to information pursuant to this Section 7.2 shall not violate ITAR
or any other applicable law. Nothing in this Section 7.2 is intended to limit
the statutory rights of a director or stockholder to inspection of the entity's
properties, books and records.
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8. LEGENDED CERTIFICATES
Each certificate representing shares of Stock shall be endorsed with
substantially the following legend:
This certificate and the shares represented hereby may not be sold,
assigned, transferred, encumbered, or in any manner disposed of except
in conformity with the terms of a written stockholders agreement among
ICO-Teledesic Global Limited and the registered holder of the shares (or
the predecessor in interest to the shares). Such agreement contains
certain rights and obligations regarding corporate governance and
regarding the voting, sale, assignment, transfer, encumbrance or other
disposition of such corporations' shares. The Corporation will upon
written request furnish a copy of such agreement to the holder hereof
without charge.
The legend provided by this Section 8 may be removed upon termination of
this Agreement in accordance with the provisions of Section 9. Notwithstanding
any termination of this Agreement, each Stockholder acknowledges that shares of
Stock may not be transferred absent compliance with applicable federal, state
and foreign securities laws.
9. TERMINATION
Except as otherwise provided herein, the Transfer restrictions and other
rights and obligations set forth in Sections 2, 3, 4 and 5 of this Agreement
shall terminate upon the closing of an IPO or a transaction in which all of the
shares of the Company's Class A common stock is exchanged for unrestricted
securities that are listed on a recognized securities exchange or Nasdaq. The
rights and obligations of a Stockholder pursuant to this Agreement (other than
pursuant to Section 6) shall terminate at such time as that Stockholder (alone
or together with its Affiliates) shall no longer be the legal or beneficial
owner of, or have the right to vote, securities representing not less than ___%
of the voting power of the Company; provided, however, that this provision shall
not apply to a Stockholder that has not transferred any Stock except to one or
more Permitted Transferees. This Agreement may be terminated in its entirety
upon agreement of Eagle River and Stockholders who possess not less than
__________ percent (__%) of the votes assigned under the Company's Restated
Certificate of Incorporation and Certificate of Designation (including the votes
of Eagle River) to the issued and outstanding Stock. Unless sooner terminated in
accordance with the preceding sentences, and except as otherwise provided
herein, this Agreement shall terminate upon its fifth anniversary.
10. MISCELLANEOUS
10.1 ESCROW
At the request of any Stockholder participating in a Transfer governed
by this Agreement, an escrow shall be set up to effect the transfer of any
certificates or funds. Costs of such escrow shall be borne by such Stockholder.
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10.2 SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES
Except as otherwise provided in this Agreement, the terms and conditions
of this Agreement shall inure to the benefit of and be binding on the respective
successors and assigns of the parties (including transferees in Permitted
Transfers). Nothing in this Agreement, express or implied, is intended to confer
on any 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.
10.3 GOVERNING LAW
This Agreement shall in all respects, including all matters of
construction, validity and performance, be governed by, and construed and
enforced in accordance with, the laws of the state of Delaware, U.S.A., without
reference to any rules governing conflicts of laws. However, in light of Eagle
River's presence in the State of Washington, U.S.A., and in light of the
location of the Company's headquarters in the State of Washington, any dispute
arising out of this Agreement shall be resolved in a court of appropriate
jurisdiction located in King County, Washington. Each party specifically and
expressly consents to the personal jurisdiction of the state and federal courts
located in King County, Washington.
10.4 LANGUAGE
The official language of this Agreement and all communications connected
with this Agreement (including any arbitration proceedings) shall be English.
English shall be the governing language for interpreting the meaning of this
Agreement and all related communications. If this Agreement or any part of this
Agreement is translated into any language other than English, the English
version shall for all purposes be authoritative and shall at all times prevail
over any translation. Except as otherwise specifically agreed to by the parties
in writing, all reports, technical data, certificates and documents pertaining
to this Agreement shall be in English.
10.5 COUNTERPARTS AND EFFECTIVENESS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement shall become effective as to all
parties executing and delivering this Agreement when it has been executed and
delivered by all Stockholders.
10.6 TITLES AND SUBTITLES
The titles and subtitles used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement.
10.7 NOTICES
All notices, demands, requests or other communications that may be or
are required to be given, served, transmitted or delivered by any party to any
other party pursuant to this
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Agreement shall be in writing and shall be hand delivered, or transmitted by
verified facsimile or internationally recognized air courier, addressed to the
party to be notified at the address indicated for such party on the signature
page hereof, or at such other address as such party may designate by 10 days'
advance written notice to the other party given in the foregoing manner. Each
notice, demand, request or other communication that shall be hand delivered,
telecopied or delivered in the manner described above shall be deemed
sufficiently given, served, transmitted or delivered for all purposes at such
time as it is delivered to the addressee (with the delivery receipt or, with
respect to a telecopy, the answer back being deemed conclusive, but not
exclusive, evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.
10.8 EXPENSES
If any action at law or in equity is necessary to enforce or interpret
the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
10.9 AMENDMENTS AND WAIVERS
Any term of this Agreement may be amended and the observance of any term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of Stockholders
who own securities representing not less than 75% of the voting power of the
Company's then outstanding securities at the time of such amendment; provided
that (y) the Co-Sale Rights shall not be terminated or amended if such amendment
would cause any material adverse effect on any Stockholder, and (z) no
Stockholder shall be subject to additional obligations or diminished rights not
generally applicable to all Stockholders as a result of any such amendment
unless such Stockholder approved the amendment. Notwithstanding the foregoing,
Schedule A to this Agreement may be amended from time to time by (a) the Company
to reflect the actual holdings of the Stockholders of shares of Stock without
formally amending this Agreement or (b) a joinder agreement executed by a new
stockholder, the Company and Eagle River and delivered to all other
Stockholders. Any amendment or waiver effected in accordance with this Section
shall be binding on each Stockholder then a party to this Agreement, each future
Stockholder and the Company.
The failure of any party to insist on or to enforce strict performance
by the other parties of any of the provisions of this Agreement or to exercise
any right or remedy under this Agreement shall not be construed as a waiver or
relinquishment to any extent of that party's right to assert or rely on any
provisions, rights or remedies in that or any other instance; rather, the
provisions, rights and remedies shall remain in full force and effect.
10.10 SEVERABILITY
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement and
the balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
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10.11 NO PARTNERSHIP OR JOINT VENTURE
Neither execution nor performance of this Agreement shall be construed
or deemed to have established any joint venture or partnership or to have
created the relationship of agent and principal among the Company or its
Affiliates and the Stockholders or among any of the Stockholders. Except as
otherwise set forth in this Agreement or agreed in writing, at no time shall the
Company or its Affiliates make any commitments or incur any charges or expenses
in the name of any Stockholders, and vice versa, nor shall any Stockholders make
any commitments or incur any charges or expenses for, or in the name of, any
other Stockholders.
10.12 FURTHER ASSURANCES
Each party agrees from time to time to do and perform such other and
future acts (including the taking of board and stockholder action) and execute
and deliver any and all such other instruments as may be required by law or
reasonably requested by the other parties to establish, maintain or protect the
rights and remedies of the requesting party or to carry out and effect the
intent and purpose of this Agreement.
10.13 DAMAGES AND INJUNCTIVE RELIEF
No party shall be liable for any unforeseeable, special, consequential
or indirect damages arising from any breach or nonobservance of any term or
condition of this Agreement. It is acknowledged that it will be impossible to
measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in the event
of any such failure, an aggrieved person will be irreparably damaged and will
not have an adequate remedy at law. Any such person shall, therefore, be
entitled to injunctive relief, including specific performance, to enforce such
obligations, and if any action shall be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law.
10.14 ENTIRE AGREEMENT
This Agreement (including the annexes and schedules hereto) supersedes
all prior or contemporaneous agreements and all related understandings, written
or oral, among the parties with regard to the subject matter of this Agreement
(but not other contracts to which the Company may be subject) and constitutes
the full and entire understanding and agreement between the parties with regard
to the subject matter of this Agreement.
10.15 WAIVER OF IMMUNITY
Each party agrees that in any arbitration, legal action or other
proceedings against it or its assets in connection with this Agreement, no
immunity from legal action or proceedings (such as attachment prior to judgment,
other attachment, the obtaining of judgment, execution or other enforcement)
shall be claimed by it or on its behalf or with respect to its assets. Each
party acknowledges that this Agreement and its investment in the Stock are
commercial in nature and irrevocably waives (such waiver in relation to any
proceedings in the United States to have effect under and be construed in
accordance with the United States Foreign Sovereign Immunities Act of 1976) any
such right of immunity that it or its assets now have or may
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hereafter acquire or that may be attributed to it or its assets, and consents
generally in respect of any such arbitration, legal action or other proceedings
to the giving of any relief or the issue of any process in connection with such
action or proceedings, including the making, enforcement or execution against
any property whatsoever (irrespective of its use or intended use) of any order
or judgment made or given in such arbitration, legal action or other
proceedings.
10.16 CONFIDENTIALITY
The terms of this Agreement are confidential and may not be disclosed to
any third party (other than good faith advisors or consultants to a party who
agree to respect the confidentiality of this Agreement or as required by law)
without the prior written consent of the Company except as permitted by this
Section 10.16. Notwithstanding the foregoing, the Company shall be entitled to
disclose the terms of this Agreement to (a) other good-faith potential
investors, lenders, business partners and service providers and (b) in
connection with any registration of Stock under the Act. Each Stockholder shall
be entitled to disclose the terms of this Agreement to good-faith potential
Transferees whose purchases do not or will not violate the terms of this
Agreement and to good-faith potential lenders to such Stockholder. Any
disclosures (other than pursuant to clause (b) of the second sentence of this
Section 10.16) shall only be made to Persons who have agreed in writing to keep
the terms of this Agreement confidential.
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IN WITNESS WHEREOF, the parties have executed this Stockholders
Agreement as of the date first above written.
ICO-TELEDESIC GLOBAL LIMITED
By: ___________________________________________
Name: _________________________________________
Title: ________________________________________
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
STOCKHOLDERS:
EAGLE RIVER INVESTMENTS, L.L.C.
By: ___________________________________________
Name: _________________________________________
Title: ________________________________________
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
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CASCADE INVESTMENT L.L.C.
By: ___________________________________________
Xxxxxxx Xxxxxx
Title: ________________________________________
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
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SCHEDULE A
TO
STOCKHOLDERS AGREEMENT
LIST OF STOCKHOLDERS
CLASS A CLASS B
COMMON COMMON
NAME STOCK STOCK WARRANTS OPTIONS
---------------------------------------------------------------------------------------------------
Eagle River Investments, L.L.C. 0 50,000,000 0 0
Cascade Investment L.L.C. 0 10,000,000 0 0
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ANNEX I - DEFINITIONS
Whenever used in the Agreement, the following terms shall have the
respective meanings set forth below:
"1934 Act" means the Securities and Exchange Act of 1934, as amended.
"Act" means the Securities Act of 1933, as amended.
"Additional Number" has the meaning assigned to that term in Section 3.2
of the Agreement.
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, controls, is controlled by or is under common control with
the Person specified. For purposes of this definition, an entity shall be deemed
to be controlled by a stockholder if (and only for so long as) (i) such
stockholder has the right to vote by ownership, proxy or otherwise securities
constituting 5% or more of the voting power of such entity if such entity has
equity securities registered and files reports under the 1934 Act or otherwise
(if not reporting) securities constituting 50% or more of the voting power of
such entity; (ii) such stockholder possesses, directly or indirectly, the power
to direct or cause the direction of the management and policies of such entity,
whether through the ownership of voting securities, by contract or otherwise; or
(iii) with respect to a charitable trust, foundation or nonprofit corporation,
such stockholder is the sole trustee or director or has the power to appoint a
majority of the trustees or directors thereof.
"Agreement" has the meaning assigned to that term in the initial
paragraph of this Stockholders Agreement.
"Associate" means (i) any corporation or organization of which such
Person is an officer or partner or is, directly or indirectly, the beneficial
owner of 10% or more of any class of equity securities, (ii) any trust or other
estate in which such Person has a substantial beneficial interest or as to which
such Person serves as trustee or in a similar fiduciary capacity and (iii) any
relative or spouse of such Person or any relative of such spouse, who has the
same home as such Person.
"Change of Control" with respect to any entity means that the
stockholders, partners or members controlling the entity immediately before a
merger, consolidation or sale of all or substantially all the assets do not,
immediately after such transaction, own or control more than 50% of the voting
power of the successor entity.
"Company" has the meaning assigned to that term in the initial paragraph
of this Agreement.
"Co-Sale Exercise" has the meaning assigned to that term in Section 3.2
of the Agreement.
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"Co-Sale Shares" has the meaning assigned to that term in Section 3.1 of
the Agreement.
"Drag Along Notice" has the meaning assigned to that term in Section 4.1
of the Agreement.
"Drag Along Right" has the meaning assigned to that term in Section 4.1
of the Agreement.
"Drag Along Stockholders" has the meaning assigned to that term in
Section 4.1 of the Agreement.
"Eagle River" has the meaning assigned to that term in the paragraph A
of the Background to this Agreement.
"Exercising Stockholder" has the meaning assigned to that term in
Section 3.2 of the Agreement.
"Final Additional Number" has the meaning assigned to that term in
Section 3.2 of the Agreement.
"Final Remaining Number" has the meaning assigned to that term in
Section 3.2 of the Agreement.
"Gates Fiduciary Stock" means that Stock owned by Xxxxxxx X. Xxxxx III,
the ownership of which he determines in his sole discretion constitutes a
conflict of interest with his fiduciary duties to the equity holders of another
business entity and so advises the Company, or which he determines in his sole
discretion to transfer to Microsoft Corporation or its successors or Affiliates.
"Initial Number" has the meaning assigned to that term in Section 3.2 of
the Agreement.
"IPO" means the consummation of an underwritten public offering
registered under the Act, or an equivalent law under the laws of any other
nation or commonwealth, of at least $50 million in equity securities of the
Company.
"ITAR" means the International Traffic in Arms Regulations, 22 CFR
120-130.
"Maximum Number" has the meaning assigned to that term in Section 3.2 of
the Agreement.
"Maximum Stockholders" has the meaning assigned to that term in Section
3.2 of the Agreement.
"XxXxx Settlement Stock" means Stock held by Eagle River for the benefit
of Xxxxx X. XxXxx.
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"Other Stockholders" has the meaning assigned to that term in Section
3.1 of the Agreement.
"Permitted Transfer" has the meaning assigned to that term in Section
2.3 of the Agreement.
"Person" means any individual, corporation, partnership, company, trust
or other entity.
"Proposed Transferee" has the meaning assigned to that term in Section
3.1 of the Agreement.
"Remaining Number" has the meaning assigned to that term in Section 3.2
of the Agreement.
"Sale Price" has the meaning assigned to that term in Section 3.1 of the
Agreement.
"Seller's Notice" has the meaning assigned to that term in Section 3.1
of the Agreement.
"Selling Stockholder" has the meaning assigned to that term in Section
3.1 of the Agreement.
"Stock" has the meaning assigned to that term in paragraph C of the
Background to this Agreement.
"Stockholder" has the meaning assigned to that term in the initial
paragraph of the Agreement.
"Transfer" has the meaning assigned to that term in Section 2.1 of the
Agreement.
"Transfer Date" has the meaning assigned to that term in Section 4.1 of
the Agreement.
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