Exhibit 10.2
Execution Copy
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (this "Agreement"),
dated as of November 12, 2004, by and among Mobile Satellite Ventures GP Inc.,
a Delaware corporation ("General Partner") and General Partner of Mobile
Satellite Ventures LP, a Delaware limited partnership ("MSV LP") and the
stockholders of General Partner listed on Schedule I hereto (each
individually, a "Stockholder," and collectively, the "Stockholders").
RECITALS
WHEREAS, each Stockholder is also a limited partner of MSV LP and
owns a portion of the common stock, par value $0.01 per share (the "Stock"),
of General Partner in proportionate amounts based upon its respective
ownership interests in MSV LP; and
WHEREAS, the Stockholders formed General Partner for the purpose of
having it serve exclusively as General Partner of MSV LP pursuant to the terms
of the MSV LP Agreement (as defined herein); and
WHEREAS, the Stockholders wish to assure that General Partner
performs its duties under the MSV LP Agreement and the other agreements by and
among the Stockholders strictly in accordance with the terms of this
Agreement; and
WHEREAS, MSV LP and General Partner have entered into a purchase
agreement (the "Purchase Agreement") with Motient Ventures Holding Inc.
("Motient Sub"), pursuant to which such investor will make an equity
investment in MSV LP and General Partner; and
WHEREAS, certain of the parties hereto are parties to that certain
Stockholders' Agreement, dated as of November 26, 2001, as amended (the
"November 2001 Stockholders' Agreement"); and
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreement, the parties hereto wish to amend and restate the November
2001 Stockholders' Agreement as provided herein.
NOW, THEREFORE, in consideration of the agreements contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
Section 1. Definitions. Initially capitalized terms used, but not
defined herein, shall have the meanings ascribed thereto in the MSV LP
Agreement or, if not defined therein, in the Investment Agreement, as
applicable. Additionally, terms defined in this Section 1 shall, for the
purposes of this Agreement, have the meanings herein specified.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City.
"Columbia Investor Group" means the entities in Columbia Space (QP),
Inc.'s investor group as set forth in Schedule I hereto.
"Control Party" means (i) an Affiliate that has direct or indirect
majority voting control of a Limited Partner, or (ii) an Affiliate that has a
majority of its voting interests held, directly or indirectly, by a Limited
Partner or by Persons that have direct or indirect voting control of a Limited
Partner.
"Excluded Securities" means (i) any interests in MSV LP issued
pursuant to the October 2001 Investment Agreement or any of the transactions
contemplated thereby, (ii) any interests in MSV LP issued pursuant to the
Investment Agreement or any of the transactions contemplated thereby, (iii)
any interests in MSV LP issued in connection with the acquisition of the
business of another entity, whether by the purchase of equity securities,
assets or otherwise, (iv) any interests in MSV LP issued as part of an Initial
Public Offering or other registered underwritten public offering of MSV LP's
securities, (v) any interests in MSV LP issued under an employee compensation
plan approved by the General Partner, (vi) any interests in MSV LP issued to
financial institutions, financial syndicates or lessors in connection with
bona fide commercial credit arrangements, equipment financings, or similar
transactions for primarily other than equity financing purposes, (vii) any
interests in MSV LP issued pursuant to Section 8.1(h)(vi) of this Agreement
and (viii) 4,817 Units that may be issued to inOvate Communications Group
Services Company or its Affiliates.
"Family Member" means, with respect to any Person (i) the spouse,
parents, children, siblings, mother and father-in-law, sons and
daughters-in-law and brothers and sisters-in-law of such Person or of any of
the beneficial owners of such Person, (ii) any trust whose beneficiaries
consist of only one or more of such Person and such persons or (iii) any
partnership or other entity whose owners are one or more of such Person and
such persons.
"Investment Agreement" means that certain First Amended and Restated
Investment Agreement, dated as of August 8, 2003, as amended, by and among the
Stockholders (and their affiliates) and certain other parties.
"Investor" has the meaning set forth in the MSV LP Agreement.
"Investor Group" means, with respect to Investors in the Telcom
Investor Group, the Columbia Investor Group and the Spectrum Investor Group,
such Investor's Investor Group as identified on Schedule I hereto.
"Intervening Entity" means, as applied to any Limited Partner at any
time, any Person the value of which at such time consists principally of its
direct or indirect ownership of interests in, or obligations of, MSV LP or
Canadian Holdco. Without limiting the foregoing, the parties stipulate that,
as of the date hereof, TMI and TMI's general partner are Intervening Entities.
"MSV LP Agreement" means that certain Amended and Restated Limited
Partnership Agreement of MSV LP, dated as of November 12, 2004, by and among
General Partner and the limited partners named therein.
"October 2001 Investment Agreement" means that certain Amended and
Restated Investment Agreement, dated as of October 12, 2001, as amended, by
and among the Stockholders (and their affiliates) and certain other parties.
"Pledge Agreement" means that certain Pledge and Guarantee Agreement,
dated as of November 26, 2001, by and among TMI, TMI Sub and the other parties
thereto, as amended, supplemented or revised from time to time.
"Required Majority" means Limited Partners holding at least a
majority of the Percentage Interests held by the Limited Partners entitled to
vote on any matter as of the date of determination.
"Spectrum Investor Group" means the entities in Spectrum Space Equity
Investors IV, Inc.'s investor group as set forth in Schedule I hereto.
"Telcom Investor Group" means the entities in Telcom Satellite
Ventures Inc.'s investor group as set forth in Schedule I hereto.
"TMI Sub" means TMI Communications Delaware, Limited Partnership.
"Voting Agreement" has the meaning set forth in Section 11(a).
Section 2. Board Composition.
(a) Qualifications of Directors. No person shall be elected or
appointed a director if that person is less than 18 years of age, is of
unsound mind and has been found so by a court, is not an individual, or has
the status of a bankrupt. Directors may, but need not, be Stockholders.
(b) Subject to clause (vii) below, each Stockholder agrees to use all
commercially reasonable efforts (including approving all necessary or
advisable amendments to General Partner's certificate of incorporation and/or
bylaws) to cause the board of directors of General Partner (the "Board") to
consist of thirteen (13) directors and be composed as follows:
(i) The Telcom Investor Group, the Spectrum Investor Group
and the Columbia Investor Group (or an Investor or group of Investors
to which Limited Partners of any such Investor Group transferred at
least a five percent (5%) Percentage Interest and expressly
transferred such Investor Group's right to designate a director under
this Agreement (each such Person, an "Investor Group Assignee")),
collectively, shall be entitled to designate a total of one (1)
director. Such director shall be selected by the affirmative vote of
at least two of the three such Investor Groups.
(ii) The Telcom Investor Group shall be entitled to
designate one (1) director.
(iii) Motient Sub shall be entitled to designate three (3)
directors.
(iv) TMI Sub shall be entitled to designate three (3)
directors.
(v) MSV Investors, LLC ("MSV Investors") shall be entitled
to designate three (3) directors.
(vi) One director shall be the Chief Executive Officer of
General Partner (the "CEO").
(vii) One director shall be Xxxx X. Xxxxxxx, currently the
Chairman of MSV LP; provided, that in the event Xx. Xxxxxxx resigns
or is otherwise removed from the Board, such vacancy shall not be
filled and thereafter, the Board shall consist of twelve (12)
directors.
(viii) General Partner shall provide each of the Columbia
Investor Group and the Spectrum Investor Group with notice of each
meeting of the Board and shall permit one designated representative
of each of the Columbia Investor Group and the Spectrum Investor
Group to attend and participate in all discussions of each such
meeting in a nonvoting capacity, and, in this respect shall give the
Columbia Investor Group and the Spectrum Investor Group copies of all
notices, minutes, consents and other material that it provides to
directors (collectively, the "Observation Rights"); provided, that
General Partner shall also provide the Telcom Investor Group with
Observation Rights if the Telcom Investor Group does not otherwise
have the right to select a director and if the director selected
pursuant to Section 2(b)(i) hereof is not an owner or an Affiliate of
the Telcom Investor Group; provided, further, that the Columbia
Investor Group, the Spectrum Investor Group and the Telcom Investor
Group (if applicable) and their designated representatives that
attend any Board meeting shall, except as otherwise required by law,
hold all matters discussed at any such meeting in strict confidence
as if each such Investor Group and its designated representatives
were voting members of the Board; and provided further, that each of
the Columbia Investor Group, the Spectrum Investor Group and the
Telcom Investor Group (if applicable) shall be entitled to
Observation Rights in accordance with the terms of this Section
2(b)(viii) only so long as such Investor Group continues to be a
holder of capital stock of the General Partner.
(c) Resignation. Any director may resign at any time by giving
written notice to the CEO. Such resignation shall take effect at the time
specified in such notice or, if the time be not specified, upon receipt
thereof by the CEO. Unless otherwise specified therein, acceptance of such
resignation shall not be necessary to make it effective. In the event of the
death, disability, resignation or removal of any director, the Stockholder(s)
which designated such director shall designate his or her replacement.
Section 3. Board Meeting.
(a) Regular Meetings. The Board shall meet no less often than
quarterly, unless otherwise agreed by at least 4/5 of the Board. Such meetings
shall be held on such date as shall be determined by the CEO or a majority of
the Board.
(b) Other Meetings. Other meetings of the Board shall be held at such
times as the Chairman of General Partner (the "Chairman"), a vice-chairman of
General Partner (a "Vice-Chairman"), the CEO or a majority of the Board shall
from time to time determine.
(c) Notice of Meetings. The Secretary of General Partner (the
"Secretary") or any person that the Board or the Secretary delegate to act in
the capacity of the Secretary shall give written notice to the CEO, the
President of General Partner (the "President") and each director of each
meeting of the Board, which notice shall state the place, date, time and
purpose of such meeting. Notice of each such meeting shall be given to each
director, if by mail, addressed to him at his residence or usual place of
business, at least five (5) Business Days before the day on which such meeting
is to be held, or shall be sent to him at such place by telecopy, telegraph,
cable, or other form of recorded communication, or may be delivered by
electronic mail or be delivered personally or by telephone not later than
forty-eight (48) hours before the time at which such meeting is to be held;
provided, however, that if any director objects to the holding of such Board
meeting at the requested time and date, such meeting shall be held five (5)
Business Days following the date of such notice. A written waiver of notice,
signed by the director entitled to notice, whether before or after the time of
the meeting referred to in such waiver, shall be deemed equivalent to notice.
Neither the business to be transacted at, nor the purpose of any meeting of
the Board, need be specified in any written waiver of notice thereof.
Attendance of a director at a meeting of the Board shall constitute a waiver
of notice of such meeting.
(d) Place of Meetings. The Board may hold its meetings at such place
or places within or without the State of Delaware as the Chairman or CEO may
from time to time determine, or as shall be designated in the respective
notices or waivers of notice of such meetings.
(e) Quorum and Manner of Acting.
(1) A majority of the directors then in office (or who are
members of any committee of the Board) shall be present in person or
by proxy (provided in writing) at any meeting of the Board (or a
committee thereof, as the case may be) in order to constitute a
quorum for the transaction of business at such meeting, and the vote
of a majority of those directors, or members of such committee,
present at any such meeting at which a quorum is present shall be
necessary for the passage of any resolution or act of the Board or
such committee, except as otherwise expressly required by this
Agreement or the Investment Agreement. In the absence of a quorum for
any such meeting, a majority of the directors present thereat may
adjourn such meeting from time to time until a quorum shall be
present.
(2) Organization. At each meeting of the Board, one of the
following shall act as chairman of the meeting and preside, in the
following order of precedence:
(A) the Chairman;
(B) the Vice-Chairman; or
(C) any director chosen by a majority of the
directors present.
The Secretary or, in the case of his absence, any person whom the chairman of
the meeting shall appoint shall act as secretary of such meeting and keep the
minutes thereof.
(f) Committees of the Board. The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees consisting of
four or more directors; provided, that each committee shall consist of at
least one designee of the Telcom Investor Group, Columbia Investor Group and
Spectrum Investor Group, collectively, as well as one Motient Sub designee,
one TMI Sub designee, and one MSV Investors designee. Except as otherwise
expressly required by this Agreement, any committee of the Board, to the
extent provided in the resolution of the Board designating such committee,
shall have and may exercise all the powers and authority of the Board in the
management of the business and affairs of General Partner, and may authorize
the seal of General Partner to be affixed to all papers which may require it.
Each committee of the Board shall keep regular minutes of its proceedings and
report the same to the Board and upon request of the Stockholders, to the
Stockholders.
(g) Directors' Consent in Lieu of Meeting. Any action required or
permitted to be taken at any meeting of the Board or of any committee thereof
may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by all
the directors of the Board, in the case of a Board meeting, or all the members
of a committee, in the case of a committee meeting, and such consent is filed
with the minutes of the proceedings of the Board or such committee.
(h) Action by Means of Telephone or Similar Communications Equipment.
Any one or more members of the Board, or of any committee thereof, may
participate in a meeting of the Board or such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
(i) Compensation. Directors shall not receive any salary or
compensation for their services as directors or as members of committees,
except as authorized by Stockholders holding a majority of the shares of Stock
(the "Shares"). The directors shall be entitled to be reimbursed for traveling
expenses properly incurred by them in attending meetings of the Board or any
committee thereof. Nothing herein shall preclude any director from serving
General Partner or MSV LP in any other capacity and receiving compensation
therefor.
(j) Selection of Officers. Any changes to the officers of General
Partner shall be approved by a vote of the majority of the Board members.
(k) Agreements with Limited Partners or their Affiliates.
Notwithstanding the grant of authority to General Partner under Section 6.1 of
the MSV LP Agreement, without the prior written consent of the majority of the
disinterested directors (or, if the majority of the directors are designees of
interested parties, the entire Board) and any prior written consent of Limited
Partners of MSV LP required by the MSV LP Agreement, the Board shall not
permit or cause General Partner or MSV LP to enter into transactions with its
Limited Partners or Affiliates of its Limited Partners except as otherwise
permitted in the Investment Agreement.
Section 4. Agreement of Stockholders and General Partner.
(a) Agreement to Vote Shares to Elect Directors. Each Stockholder
hereby agrees to take all action necessary (including voting or causing to be
voted, or acting by written consent with respect to, any and all Shares held
by him or it on the record date for establishing the Stockholders entitled to
vote for the election of directors of General Partner) to cause the designees
of the Telcom Investor Group, the Columbia Investor Group, and the Spectrum
Investor Group, the Motient Sub designees, the TMI Sub designees, the MSV
Investors designees, the CEO and Xx. Xxxxxxx to be elected to the Board, in
accordance with the provisions hereof.
(b) Agreement to Effect TerreStar Spin-off. Each Stockholder and
General Partner hereby agree to use their best efforts as promptly as
possible, and in any event by November 23, 2004, to take such actions as may
be necessary to effect the distribution by MSV LP of all of the outstanding
shares of common stock of TerreStar Networks Inc. ("TerreStar") to the limited
partners of MSV LP.
Section 5. Stockholder Meetings.
(a) Regular Meetings. The Stockholders shall meet annually, unless
otherwise agreed by the Board. Such meetings shall be held on such date as
shall be determined by the a majority of the Board.
(b) Special Meetings. Special meetings of the Stockholders shall be
held at such times as the Board, the President or a majority in interest of
the Stockholders shall from time to time determine.
(c) Notice of Meetings. The Secretary shall give written notice to
the President and each Stockholder of each meeting of the Stockholders, which
notice shall state the place, date, time and purpose of such meeting. Notice
of each such meeting shall be given to each Stockholder, if by mail, to the
address set forth with respect to such Stockholder in Schedule I, at least
five (5) Business Days before the day on which such meeting is to be held, or
shall be sent to such Stockholder by telecopy, telegraph, cable, or other form
of recorded communication, or be delivered personally or by telephone not
later than forty-eight (48) hours before the time at which such meeting is to
be held; provided, however, that if any Stockholder objects to the holding of
such Stockholder meeting at the requested time and date, such meeting shall be
held five (5) Business Days following the date that such notice was given. A
written waiver of notice, signed by the Stockholder entitled to notice,
whether before or after the time of the meeting referred to in such waiver,
shall be deemed equivalent to notice. Neither the business to be transacted
at, nor the purpose of any meeting of the Stockholders need be specified in
any written waiver of notice thereof. Attendance of a Stockholder at a meeting
of the Stockholders shall constitute a waiver of notice of such meeting.
(d) Place of Meetings. The Stockholders may hold their meetings at
such place or places within or without the State of Delaware as the President
may from time to time determine, or as shall be designated in the respective
notices or waivers of notice of such meetings.
(e) Quorum and Manner of Acting. The Stockholders holding the
majority of the Shares shall be present in person or by proxy at any meeting
of the Stockholders in order to constitute a quorum for the transaction of
business at such meeting, and, except as otherwise provided herein or in the
Investment Agreement, the vote of those Stockholders holding a majority of the
Shares, present at any such meeting at which a quorum is present, shall be
necessary for the passage of any resolution or act of the Stockholders, except
as otherwise expressly required by this Agreement. In the absence of a quorum
for any such meeting, holders of a majority of the Shares present thereat may
adjourn such meeting from time to time until a quorum shall be present.
(f) Stockholders' Consent in Lieu of Meeting. Any action required or
permitted to be taken at any meeting of the Stockholders may be taken without
a meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the Stockholders holding
the requisite number of Shares for the taking the relevant action and such
consent is filed with the minutes of the proceedings of the Stockholders.
(g) Action by Means of Telephone or Similar Communications Equipment.
Any one or more Stockholders may participate in a meeting of the Stockholders
by means of conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute presence in person
at such meeting.
Section 6. Assignment; Restriction on Transfer. The rights of the
Stockholders to designate directors hereunder may not be transferred, except
in accordance with Section 2(b)(i).
Section 7. Transfer of Shares. The Stockholders each undertake to
take such actions and execute such documents as may be necessary to insure
that the proportionate ownership of General Partner at all times reflects the
then-current proportional ownership of Limited Partnership Interests in MSV
LP, excluding for this purpose, any Limited Investor. In furtherance of the
foregoing, except for Transfers made simultaneously with permitted transfers
of Limited Partnership Interests made in accordance with the terms of Section
8 of this Agreement, each Stockholder agrees not to, directly or indirectly,
sell, assign, transfer, pledge, encumber, hypothecate, mortgage or otherwise
dispose of, either voluntarily or involuntarily (or to enter into any
contract, option or other arrangement or understanding to do any of the
foregoing) (a "Transfer"), any Shares; provided, however, that TMI Sub shall
be permitted to pledge its Shares pursuant to the Pledge Agreement. In
addition, each Stockholder hereby undertakes to, at the same time that it
transfers any of its Limited Partnership Interests, Transfer its Shares (or
the same portion thereof as the Limited Partnership Interests being
transferred bear to its total Limited Partnership Interests) to the purchaser
or assignee of any of its Limited Partnership Interests in accordance with
Section 8 of this Agreement. Following a Transfer of such Shares, such Shares
shall remain subject to the provisions of this Agreement, and the transferee
shall execute and deliver to General Partner a written agreement to be bound
by this Agreement in form and substance reasonably satisfactory to General
Partner. Notwithstanding the foregoing, except as set forth in Section 2(b)(i)
with respect to Transfers to an Investor Group Assignee, in connection with
transfers of Limited Partnership Interests pursuant to Sections 8.2(c) or (d)
of this Agreement, no transferee shall have the right to designate directors
pursuant hereto.
Section 8. Transfers, Admission of Limited Partners and Conversion.
Section 8.1 Additional Issuances of Interests.
(a) In order to raise capital for MSV LP operations or to acquire
assets, to redeem or retire MSV LP debt, or for any other valid MSV LP
purposes, General Partner may, subject to the provisions of this Section 8.1,
from time to time determine that it is in the best interests of MSV LP to
cause MSV LP to issue additional interests in MSV LP to the Limited Partners
or other Persons and to admit such other Persons to MSV LP as Additional
Limited Partners pursuant to Section 8.4. General Partner shall determine the
consideration for and the terms and conditions with respect to any future
issuance of interests in MSV LP.
(b) Subject to clause (h) below, General Partner shall not issue any
interests in MSV LP unless it first delivers to each Limited Partner (each
such Person being referred to in this Section 8.1 as a "Buyer") a written
notice (the "Notice of Proposed Issuance") specifying the type and amount of
such interests that MSV LP then intends to issue (the "Offered Interests"),
all of the material terms, including the price (cash or non-cash) upon which
MSV LP proposes to issue the Offered Interests and stating that the Buyers
shall have the right to purchase the Offered Interests in the manner specified
in this Section 8.1 for the same price per share and in accordance with the
same terms and conditions specified in such Notice of Proposed Issuance,
provided, that if such price consists of non-cash consideration, a Buyer may
purchase the Offered Interest with the same type and amount of non-cash
consideration described in such Notice of Proposed Issuance or, may instead,
pay for such Offered Interests with the cash equivalent of such price.
(c) During the ten (10) consecutive day period commencing on the date
MSV LP delivers to all of the Buyers the Notice of Proposed Issuance (the "Ten
Day Period"), the Buyers shall have the option to purchase up to all of the
Offered Interests at the same price and upon the same terms and conditions
specified in the Notice of Proposed Issuance. Each Buyer electing to purchase
Offered Interests must give written notice of its election to General Partner
prior to the expiration of the Ten Day Period.
(d) Each Buyer shall have the right to purchase up to that percentage
of the Offered Interests equal to the Percentage Interest then held by such
Buyer. The amount of such Offered Interests that each Buyer is entitled to
purchase under this Section 8.1 shall be referred to as its "Proportionate
Share."
(e) Each Buyer shall have a right of oversubscription such that if
any other Buyer fails to elect to purchase his or its full Proportionate Share
of the Offered Interests, the other Buyer(s) shall, among them, have the right
to purchase up to the balance of such Offered Interests not so purchased. The
Buyers may exercise such right of oversubscription by electing to purchase
more than their Proportionate Share of the Offered Interests by so indicating
in their written notice given during the Ten Day Period. If, as a result
thereof, such oversubscription elections exceed the total number of the
Offered Interests available in respect to such oversubscription privilege, the
oversubscribing Buyers shall be cut back with respect to oversubscriptions on
a pro rata basis in accordance with their respective Proportionate Share or as
they may otherwise agree among themselves.
(f) If all of the Offered Interests have not been purchased by the
Buyers pursuant to the foregoing provisions, then General Partner shall have
the right, until the expiration of one hundred eighty (180) consecutive days
commencing on the first day immediately following the expiration of the Ten
Day Period, to issue the Offered Interests not purchased by the Buyers at not
less than, and on terms no more favorable in any material respect to the
purchaser(s) thereof than, the price and terms specified in the Notice of
Proposed Issuance. If such remaining Offered Interests are not issued within
such period and at such price and on such terms, the right to issue in
accordance with the Notice of Proposed Issuance shall expire and the
provisions of this Agreement shall continue to be applicable to the Offered
Interests.
(g) Notwithstanding the foregoing, the rights described in this
Section 8.1 shall not apply with respect to the issuance of Excluded
Securities.
(h) Notwithstanding the foregoing, General Partner may proceed with
the issuance of interests in MSV LP without first following the procedures in
clauses (b)-(f) above, provided that the purchaser of such interests (the "New
Purchaser") agrees in writing to take such interests subject to the provisions
of this Section 8.1(h). In such event the following provisions shall apply:
(i) Within ten (10) days following the issuance of such
interests, General Partner or the New Purchaser shall issue to each
Buyer a written notice (the "Notice of Issuance") specifying the type
and amount of such interests that MSV LP has issued (the "Issued
Interests"), all of the material terms, including the price (the
"Issued Interest Price") at which MSV LP issued the Issued Interests
and stating that the Buyers shall have the right to purchase Issued
Interests in the manner specified below for the same price per Unit
and in accordance with the same terms and conditions specified in
such Notice of Issuance.
(ii) During the ten (10) consecutive day period commencing
on the date MSV LP or the New Purchaser delivers to all of the Buyers
the Notice of Issuance (the "Issuance Ten Day Period"), the Buyers
shall have the option to purchase up to all of the Issued Interests
for the same type and amount per Issued Interest of cash or non-cash
consideration paid by the New Purchaser or cash in an amount
equivalent in value to the Issued Interest Price and upon the same
terms and conditions specified in the Notice of Issuance. Each Buyer
electing to purchase Issued Interests must give written notice of its
election to the deliverer of the Notice of Issuance prior to the
expiration of the Issuance Ten Day Period.
(iii) Each Buyer shall have the right to purchase from the
New Purchaser up to that percentage of the Issued Interests equal to
the Proportionate Share held by such Buyer immediately prior to the
issuance of the Issued Interests.
(iv) Each Buyer shall have a right of oversubscription such
that if any other Buyer fails to elect to purchase his or its full
Proportionate Share of the Issued Interests, the other Buyer(s)
shall, among them, have the right to purchase up to the balance of
such Issued Interests not so purchased. The Buyers may exercise such
right of oversubscription by electing to purchase more than their
Proportionate Share of the Issued Interests by so indicating in their
written notice given during the Issuance Ten Day Period. If, as a
result thereof, such oversubscription elections exceed the total
number of the Issued Interests available in respect to such
oversubscription privilege, the oversubscribing Buyers shall be cut
back with respect to oversubscriptions on a pro rata basis in
accordance with their respective Proportionate Share or as they may
otherwise agree among themselves.
(v) Any Issued Interests that have not been purchased by the
Buyers pursuant to the foregoing provisions shall remain owned by the
New Purchaser.
(vi) Notwithstanding anything in this clause (h) to the
contrary, in the event the Buyers elect, within the Issuance Ten Day
Period, to purchase less than all of the Issued Interests then, in
lieu of the Buyers purchasing Issued Interests from the New
Purchaser, General Partner may elect to issue directly to such
Buyers, for the same type and amount per Issued Interest of cash or
non-cash consideration paid by the New Purchaser or cash in an amount
equivalent in value to the Issued Interest Price, an equivalent
amount of additional securities that are identical to the Issued
Interests in all material respects.
Section 8.2 Transfers. No Limited Partner may assign or transfer all
or any part of its Limited Partnership Interest to any Person, except in
compliance with the following:
(a) Right of First Refusal. In the event that a Limited Partner (a
"Selling Party") proposes to transfer all or a portion of its Limited
Partnership Interest to any third party, other than in accordance with Section
8.2(c) or (d), pursuant to a bona fide offer, such Selling Party will provide
notice of such proposed transfer (including the identity of the proposed
purchaser of such interest, the amount of interests proposed to be transferred
and the proposed terms thereof) (the "Transfer Notice"), at least fifteen (15)
Business Days prior to the proposed transfer, to each other Limited Partner,
whereupon each other Limited Partner shall have the right to purchase, at the
same price and upon the same terms and conditions set forth in the Transfer
Notice, a pro rata portion of such interest based upon such Limited Partner's
portion of the Percentage Interests held by all Limited Partners other than
the Selling Party. Except as set forth in the next sentence, the purchase
price shall be payable in cash. In the event that the Transfer Notice
specifies the payment of consideration other than cash, the purchase price for
purposes of this Section 8.2(a) shall either be (x) the cash equivalent of
such consideration, determined by General Partner in good faith or (y) to the
extent the participating Limited Partner elects, the same type and amount of
non-cash consideration that is proposed to be paid as described in the
Transfer Notice. The Transfer Notice shall constitute an irrevocable offer by
the Selling Party to sell to the other Limited Partners such interests at the
price and on the terms as contained in such Transfer Notice. Each Limited
Partner desiring to participate in such purchase shall provide the Selling
Party and each other Limited Partner notice of its agreement to participate
(the "Participation Notice") within ten (10) Business Days of receipt of the
Transfer Notice specifying such participation and whether and the extent to
which such Limited Partner wishes to acquire any remaining, unallocated
portion of the proposed transfer (the "Unallocated Portion"). In the event
that one or more of the other Limited Partners do not provide a timely
Participation Notice, the Unallocated Portion shall be allocated in pro rata
proportion to the Percentage Interest held by each of the Limited Partners who
submits a Participation Notice to the extent of such Limited Partner's
indicated willingness to acquire any Unallocated Portion as provided in such
Limited Partners' Participation Notice. The Participation Notice shall be
deemed to be an irrevocable commitment to purchase from the Selling Party, at
the price (or the cash equivalent thereof) and on the terms as contained in
the Transfer Notice, the amount of the interests that such Limited Partner
specifies in the Participation Notice. In the event that the Limited Partners
are not willing to purchase all of the interests offered pursuant to the
Transfer Notice, and the amount of interests which the Selling Party has
offered to sell pursuant to the Transfer Notice less the amount of interests
the Limited Partners are willing to accept is less than the minimum amount of
interests which the offeror is willing to purchase pursuant to the bona fide
offer described in the Transfer Notice, then the Limited Partners shall be
deemed to have rejected the offer contained in the Transfer Notice in its
entirety and the Selling Party shall be permitted to proceed with the sale
described in the Transfer Notice. In the event that the Limited Partners shall
have accepted all or part of the interests offered pursuant to the Transfer
Notice (and shall not have been deemed to have rejected the offer in its
entirety as described in the immediately preceding sentence), then the Selling
Party shall sell to such Limited Partners such interests as have been accepted
by such Limited Partners as specified in such Limited Partner's Participation
Notice on the terms contained in the Transfer Notice. Any interests not sold
to the Limited Partners pursuant to the preceding sentence may be sold to a
third party, including the original offeror, at a price not lower than, and on
such other terms and conditions not more favorable to such third party than,
those contained in the original Transfer Notice, at any time within one
hundred eighty (180) days after the expiration of the offer required by this
Section 8.2(a). In the event the interests are not transferred by the Selling
Party on such terms during such one hundred eighty (180) day period, the
restrictions of this Section 8.2(a) shall again become applicable to any
transfer of interests by the Selling Party.
(b) Tag Along Rights.
(i) General. No Selling Party may transfer (other than
pursuant to Section 8.2(c) or 8.2(d)) Limited Partnership Interests held by
such Selling Party to any Person, unless the terms and conditions of such
transfer shall include an offer by the third party transferee to the other
Limited Partners (each, a "Tag Along Participant"), at a price calculated
using the same methodology used to calculate the price of the Selling Party's
Limited Partnership Interest taking into account the relative capital accounts
and distribution rights of the Tag Along Participants (such price, the "Tag
Along Price") and on the same terms and conditions as the Selling Party has
agreed to sell its Limited Partnership Interest, to include in the transfer to
the third party transferee a portion of Limited Partnership Interests.
(ii) Obligation of Transferee to Purchase. The third-party
transferee of the Selling Party shall purchase from each Tag Along Participant
the portion of such Tag Along Participant's Limited Partnership Interest that
such Tag Along Participant desires to sell, provided that such portion does
not exceed the Maximum Tag Along Portion (as defined below) and, if such
portion exceeds the Maximum Tag Along Portion, the transferee shall purchase
only the Maximum Tag Along Portion. For purposes hereof, the term "Maximum Tag
Along Portion" means a portion of a Tag Along Participant's Limited
Partnership Interest the price of which (based on the Tag Along Price of such
Limited Partnership Interest) equals the total original price proposed to be
paid by the transferee for the Selling Party's Limited Partnership Interest
multiplied by a fraction, the numerator of which is the Tag Along Price of
such portion which such Tag Along Participant desires to include in such sale
and the denominator of which is the aggregate Tag Along Price of the Limited
Partnership Interests that the Selling Party and each Tag Along Participant
desires to include in such sale.
(iii) Exercise. The tag-along right may be exercised by each
Tag-Along Participant by delivery of a written notice to the Selling Party
(the "Tag Along Notice") within 15 calendar days following receipt of the
Transfer Notice. The Tag Along Notice shall state the portion of a Limited
Partnership Interest that such Tag Along Participant wishes to include in such
transfer to the transferee. Upon the giving of a Tag Along Notice, such Tag
Along Participant shall be entitled and obligated to sell the portion of its
Limited Partnership Interest set forth in the Tag Along Notice, to the
transferee on the terms and conditions set forth in the Transfer Notice (the
"Transferee Terms"); provided, however, the Selling Party shall not consummate
the sale of any Limited Partnership Interest offered by it if the transferee
does not purchase all Limited Partnership Interests which each Tag Along
Participant is entitled and desires to sell pursuant hereto. After expiration
of the 15 calendar-day period referred to above, if the provisions of this
Section have been complied with in all respects, the Selling Party and each
Tag Along Participant that delivered a Tag Along Notice shall transfer the
Limited Partnership Interests determined in accordance with Section 8.2(b)(ii)
to the transferee on the Transferee Terms on the sale date proposed in the
Transfer Notice (or such other date within sixty (60) days of such proposed
sale date as may be agreed among the participants in such transfer).
(iv) Several Liability. Anything to the contrary contained
herein notwithstanding, the Selling Party agrees to use its reasonable good
faith efforts to seek to ensure that the applicable Transferee Terms provide
for several, and not joint, liability, with respect to the indemnification and
comparable obligations contained within such Transferee Terms.
(v) The tag-along rights set forth in this Section 8.2(b)
shall not be deliberately circumvented by a Selling Party under circumstances
where the other Limited Partners would have a reasonable expectation that such
tag-along rights would apply.
(c) Subject to Sections 8.2(e), (f) and (g), a Limited Partner may at
any time and from time to time (i) transfer all or part of such Limited
Partner's Limited Partnership Interest to any of such Limited Partner's Family
Members provided that such Limited Partner shall provide the other Partners
notice of the identity of such Family Member transferee, (ii) transfer all or
part of its Limited Partnership Interest to its members, partners,
shareholders or other equity holders, as the case may be ("Distributee"),
pro-rata in accordance with the governing documents of the Limited Partner,
and without consideration, or (iii) transfer all or part of such Limited
Partner's Limited Partnership Interest to a Control Party of such Limited
Partner; provided, that such Limited Partner and Control Party agree with MSV
LP in writing that such Control Party shall transfer such Limited Partnership
Interest back to such Limited Partner immediately upon such Person ceasing to
be a Control Party of such Limited Partner. A Limited Partner may at any time
and from time to time pledge or hypothecate, in connection with its bona fide
financing arrangements (including, in the case of Motient, under its current
guaranteed bank facilities), its Limited Partnership Interest, provided, that
upon foreclosure or other execution of the pledge or hypothecation, any
assignment or transfer shall be subject to Sections 8.2(e), (f) and (g).
Subject to Sections 8.2(e), (f) and (g) and Section 8.6, a Limited Partner
that is a member of the Telcom Investor Group, Columbia Investor Group or
Spectrum Investor Group may at any time and from time to time transfer all or
part of its Limited Partnership Interest to another Limited Partner that is a
member of the Telcom Investor Group, Columbia Investor Group or Spectrum
Investor Group.
(d) Each of TMI Sub, Motient Sub and MSV Investors shall have the
right, subject to Sections 8.2(a), (e), (f), and (g), to assign or transfer
its interest in MSV LP to any Person owning 10% or more of the outstanding
common stock of BCE Inc., Motient or SkyTerra Communications, Inc.,
respectively, and each other Limited Partner shall have the right, subject to
Sections 8.2(a), (e), (f), and (g), to assign or transfer its interest in MSV
LP to any Person owning ten percent (10%) or more of the ownership interests
in such Limited Partner; provided that in the case of a transfer by TMI Sub,
such transferee agrees to be bound by the terms and conditions of (i) the
Non-Interference Agreement, dated as of November 26, 2001, between BCE Inc.
and MSV LP (as amended, supplemented or modified from time to time, the
"Non-Interference Agreement") applicable to BCE Inc., (ii) the Stockholders
Agreement, dated as of November 26, 2001, by and among TMI, MSV LP, Canadian
Holdco and Canadian License Co. and (iii) the Pledge Agreement.
(e) In addition to any other requirements of this Agreement relating
to a transfer of Limited Partnership Interests, no Limited Partnership
Interest shall be transferred or assigned unless the transferee (i) executes
an instrument satisfactory to General Partner accepting all of the terms and
conditions relating to a Limited Partner set forth in this Agreement and the
MSV LP Agreement, (ii) pays any reasonable expenses of MSV LP incurred in
connection with such transfer or assignment (including, without limitation,
attorney's fees) and (iii) is either an "accredited investor" (as defined in
Rule 501 promulgated under the Securities Act of 1933, as amended (the
"Securities Act")) or provides an opinion of counsel reasonably acceptable to
General Partner that the transfer will not require registration under the
Securities Act.
(f) Notwithstanding any other provisions of this Agreement to the
contrary, General Partner may prohibit any proposed transfer if, in the
reasonable determination of the General Partner, such transfer would (i)
result in the close of MSV LP's taxable year with respect to all Limited
Partners, in the termination of MSV LP within the meaning of ss. 708(b) of the
Code or in the termination of its status as a partnership under the Code, (ii)
cause MSV LP to be in violation of any applicable state or federal securities
laws or (iii) result in an interest in MSV LP being held by a Person whose
participation in the ownership of MSV LP would be detrimental to MSV LP;
provided, however, that no transfer made pursuant to Section 8.2(c) hereof
shall be deemed detrimental to MSV LP.
(g) To the extent that any regulatory approval, notification or other
submission or procedure is required or customarily provided in connection with
the exercise of any right or obligations as set forth in this Agreement or the
MSV LP Agreement with respect to the transfer or assignment of interests in
MSV LP (including, but not limited to, FCC approvals (if required), filings
under the HSR Act and applicable securities laws), such transfer or assignment
pursuant to this Agreement will be delayed and will only take place after such
approval, notification or other submission or procedure has been obtained,
submitted or completed, as determined by General Partner.
(h) In addition to any other restrictions regarding TMI Sub's right
to transfer the Limited Partnership Interests held by it contained herein or
in any Ancillary Agreement, TMI Sub shall not be permitted to transfer its
Limited Partnership Interests except to a Person (or an Affiliate of such
Person) that is also simultaneously acquiring TMI's direct or indirect
ownership interests in Canadian Holdco and Canadian License Co. Any purported
transfer of TMI Sub's Limited Partnership Interests in contravention of this
subsection (h) shall be void and of no effect.
(i) Any transfer of Limited Partnership Interests hereunder shall be
deemed to include a proportional transfer of the transferor's Units and
Capital Account, adjusted for all prior allocations and distributions with
respect to the transferred Capital Account for purposes of Articles VII and
VIII of the MSV LP Agreement.
(j) Intentionally Omitted.
(k) For purposes of this Agreement, the sale or transfer of any
equity or other ownership interests in any Intervening Entity (an "Intervening
Entity Ownership Change") shall be deemed to constitute a transfer of the
aggregate Limited Partnership Interests held by that Limited Partner
multiplied by a fraction, the numerator of which is the percentage ownership
of the Intervening Entity so sold or transferred and the denominator of which
is 100%. If such a deemed transfer of Limited Partnership Interests occurs
without compliance with or as permitted by the provisions of Section 8.2(a)
though 8.2(i) (as applicable) of this Agreement then, without limiting the
rights of MSV LP or the other Partners at law or in equity, all of the Limited
Partners (other than the Limited Partner which is so deemed to have
transferred Limited Partnership Interests) shall have the right to purchase
the Limited Partnership Interests so deemed transferred as if such Limited
Partnership Interests were being offered for sale pursuant to the provisions
of Section 8.2(a) (the provisions of which are hereby incorporated by
reference, mutatis mutandis) for the same amount of consideration to be given
to the Intervening Entity or its owners, in respect of the Intervening Entity
Ownership Change.
(l) Any attempted transfer of Units or Limited Partnership Interests
in violation of this Agreement shall be void and of no effect.
Section 8.3 Admission of Substituted Limited Partners.
(a) An assignee or transferee of an interest in MSV LP shall not be
admitted to MSV LP as a substituted Limited Partner until (i) such assignee or
transferee and transferring Limited Partner has complied with all of the
conditions and procedures set forth in Section 8.2, (ii) such assignee or
transferee has confirmed in writing to General Partner that it has reviewed
the terms and conditions of this Agreement, the MSV LP Agreement, the
Investment Agreement and each of the Ancillary Agreements including, without
limitation, the events of default, remedy and forfeiture provisions of the
Pledge Agreement, and (iii) payment of any reasonable expenses of MSV LP
incurred in connection with such admission (including, without limitation,
attorney's fees). Such assignee or transferee shall automatically be admitted
to MSV LP as a Limited Partner following satisfaction of the provisions of
this Section 8.3(a).
(b) A Person who acquires any Limited Partnership Interests of a
Limited Partner pursuant to Section 8.2 but who is not admitted as a
substituted Limited Partner pursuant to Section 8.3(a) shall be entitled only
to allocations and distributions with respect to such acquired Limited
Partnership interests in accordance with this Agreement, but shall have no
right to vote or give consent hereunder, to obtain any information or
accounting of the affairs of MSV LP, shall not solely as a result of its
acquisition of such Limited Partnership Interests obtain or have the right to
obtain any shares in General Partner, shall not be entitled to inspect the
books or records of MSV LP and shall not have any rights of a Limited Partner
under the Delaware Act, this Agreement or the MSV LP Agreement.
(c) A transferor of interests shall remain a Limited Partner of MSV
LP with respect to such transferred interests until such time, if ever, as the
transferee of such interests is admitted as a substituted Limited Partner in
accordance with this Agreement.
Section 8.4 Admission of Additional Limited Partners. A Person (other
than a current Limited Partner) who purchases from MSV LP interests issued
pursuant to Section 8.1 shall be admitted to MSV LP as an Additional Limited
Partner upon furnishing to MSV LP (a) a subscription agreement, in form
satisfactory to the General Partner, which agreement shall include an
acceptance by such Person of all the terms and conditions of this Agreement,
and (b) such other documents as the General Partner deems necessary or
advisable. Such admission shall become effective on the date that the General
Partner determines that such conditions have been satisfied.
Section 8.5 Corporate Conversion; Drag-Along Rights.
(a) At the General Partner's discretion, MSV LP shall be converted
into corporate form ("MSV") by merger, statutory conversion or any other
method set forth in such consent (the "Corporate Conversion"). If the
Corporate Conversion is in connection with an initial public offering of MSV
LP's (or its successor's) securities, the outstanding interests in MSV LP
shall be converted into common stock of MSV in accordance with the Percentage
Interests represented by such Limited Partnership Interests, and each holder
of such interests shall take such steps as may be reasonably requested by the
General Partner in connection therewith, whereupon the rights and obligations
of the Limited Partners hereunder, including, without limitation, those
arising under Article 6, shall cease and have no further force and effect. If
a Corporate Conversion is approved for any purpose other than in connection
with an initial public offering of MSV LP's (or its successor's) securities,
(i) the respective outstanding interests of MSV LP shall be converted into
securities of MSV which track, as closely as practicable, the economic, voting
and other rights represented by such outstanding interests immediately prior
to the Corporate Conversion and (ii) the holders of such interests shall enter
into a shareholders agreement and such other agreements and the organizational
documents of MSV will contain such provisions as may be necessary, to allow
MSV to mimic, as closely as practicable, the governance and other operating
provisions of the MSV LP Agreement, including, without limitation, an
agreement by all shareholders holding stock with special voting, economic or
other rights to convert such stock into common stock immediately prior to the
initial public offering of MSV securities on a basis similar to that
contemplated by the second sentence of this Section 8.5(a). In effecting a
Corporate Conversion, the General Partner shall cooperate in good faith with
TMI Sub to reduce any adverse tax consequences to TMI Sub resulting from the
Corporate Conversion. In the event MSV LP effectuates a Corporate Conversion,
the Stockholders who are blocker C corporations ("Blocker C Corporations")
shall, if so requested by their parents, in a reorganization intended to be
tax-free, be merged with and into or contributed to MSV LP's successor
corporation in exchange for shares of the successor corporation, such that the
stockholders of the applicable Blocker C Corporations become direct
stockholders of the successor corporation upon the same terms as would be
applicable to the Blocker C Corporations had such merger or contribution not
occurred, and, if such Corporate Conversion is effected other than in
connection with an initial public offering of MSV LP's (or its successor's)
securities, such stockholders shall enter into a stockholders' agreement and
such other agreements as may be necessary to allow MSV to mimic, as closely as
practicable, the governance and other operating provisions of MSV LP's
existing governance documents. The consummation of any such merger or
contribution shall be subject to the receipt or waiver of any third-party or
government consents, approvals and authorizations as may be necessary or
advisable in connection therewith, including, but not limited to, expiration
or termination of any applicable waiting period under the HSR Act, and shall
be effected pursuant to a merger or contribution agreement reasonably
acceptable to MSV LP or the successor corporation, as applicable; provided
that such Blocker C Corporation shall be a corporation permitted under
applicable law and its governing instruments to effectuate such merger or
contribution transaction and shall have represented and warranted to MSV LP or
the successor corporation that such Blocker C Corporation has no assets or
liabilities other than its Limited Partnership Interests and Shares and its
rights and obligations under this Agreement, the MSV LP Agreement, the
Investment Agreement, the Pledge Agreement and the Voting Agreement.
(b) If the Required Majority determines to transfer or exchange (in a
merger, business combination or otherwise) in one or a series of related bona
fide arm's-length transactions (collectively, the "Drag-Along Transaction") to
an unrelated and unaffiliated third party all of the Limited Partnership
Interests held by such Limited Partners, then, upon thirty (30) days' written
notice to the other Limited Partners and MSV LP (the "Drag-Along Notice"),
which notice shall include reasonable details of the proposed transaction,
including the consideration to be received by the Limited Partners, each other
Limited Partner and holder of Limited Partnership Interests shall be obligated
to, and shall sell, transfer and deliver, or cause to be sold, transferred and
delivered, to such third party, all of its Limited Partnership Interests in
the same transaction at the closing thereof (and will deliver such Limited
Partnership Interests free and clear of all liens, claims, or encumbrances
except this Agreement or the MSV LP Agreement) (or shall vote in favor of or
consent to any transaction requiring the vote or consent of Limited Partners),
and shall otherwise cooperate in the consummation of such transaction, and the
consideration to be paid to the Limited Partners shall be deemed to be Capital
Proceeds and shall be distributed to the Limited Partners pursuant to Section
8.6 of the MSV LP Agreement as if such transaction were a Capital Event. In
the event a Drag-Along Transaction is initiated by the Investors, unless the
consideration to be received by the Limited Partners is based solely on the
respective Percentage Interests held by such Limited Partners, after the
second anniversary date of the Subsequent Closing, each of Motient and TMI
shall have thirty (30) days from receipt of the Drag-Along Notice to make, or
cause a third party to make, a bona fide offer that is no less favorable to
the Investors and the other Limited Partners than the terms, conditions and
consideration of the Drag-Along Transaction described in such Drag-Along
Notice and which will be consummated within thirty (30) days after such offer
is made.
Section 8.6 Actions Requiring Consent. Without the prior written
consent of the Required Majority, no Stockholder or Limited Partner (including
any Affiliate of such Stockholder or Limited Partner) shall acquire in any
transaction or series of related transactions direct or indirect ownership of
more than 49% of (a) the outstanding shares of Stock 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).
Section 9. Legends. Each Stockholder consents to General Partner
inserting appropriate legends referencing the restrictions and obligations
contained in this Agreement on the certificates representing the Shares held
by the Stockholders on or after the date of this Agreement.
Section 10. Stockholders' Representation. Each Stockholder hereby
represents that, notwithstanding anything herein to the contrary, it has no
plan or intention to consummate any Transfer of Shares.
Section 11. Miscellaneous.
(a) Representation. No Stockholder is a party to any other agreement,
other than the MSV LP Agreement, the Investment Agreement, the Pledge
Agreement and that certain Voting Agreement, dated as of the date hereof (the
"Voting Agreement"), by and among the Spectrum Investor Group, the Telcom
Investor Group, the Columbia Investor Group, TMI Sub and MSV Investors, with
respect to the transfer or disposition of voting rights with respect to any
Shares.
(b) Severability. Should any one or more of the provisions of this
Agreement be determined to be illegal or unenforceable, each other provision
of this Agreement shall be given effect separately from the provision or
provisions determined to be illegal or unenforceable and shall not be affected
thereby.
(c) No Waiver. No failure or delay on the part of any party in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder.
(d) Entire Agreement. This Agreement, the Investment Agreement, the
MSV LP Agreement and the Purchase Agreement, together with the exhibits
thereto constitute the entire agreement among the parties pertaining to the
subject matter hereof and supersede all prior agreements and understandings of
the parties in connection herewith, including but not limited to the November
2001 Stockholders' Agreement.
(e) Amendment and Modification. This Agreement may be amended,
modified and supplemented only by written agreement of the holders of a
majority of the Shares (or, in the event the provision to be amended contains
language requiring the consent of a greater percentage of the Shares, such
greater percentage); provided, however, that any amendment, modification or
supplement to this Agreement that would adversely affect any individual
Stockholder, or group of Stockholders, in a manner different than its effect
on other Stockholders, shall require the prior written consent of such
Stockholder(s). Notwithstanding the foregoing, if MSV LP shall admit any new
limited partner and the Board shall determine that the Board should be
expanded to allow for representation on the Board by such new limited partner,
this Agreement may be amended by the written agreement of the holders of a
majority of the Shares to provide for one or more additional directors (the
number of such additional directors to be reasonably proportionate to the
Percentage Interest in MSV LP held by such new limited partner), which
director(s) shall be designated by such new limited partner.
(f) Remedies. The parties acknowledge and agree that the breach of
any of the terms of this Agreement will cause irreparable injury for which an
adequate remedy at law is not available. Accordingly, it is agreed that each
party hereto shall be entitled to an injunction, restraining order or other
equitable relief to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of competent
jurisdiction in the United States or any state thereof, without the
requirement of the posting of any bond. Such remedies shall be cumulative and
non-exclusive and shall be in addition to any other rights and remedies the
parties may have under this Agreement.
(g) Notices. All notices provided for in this Agreement shall be in
writing, duly signed by the party giving such notice, and shall be delivered
personally, sent by a nationally recognized overnight courier, telecopied or
mailed by registered or certified mail, as follows:
(i) If given to General Partner, at General Partner's
mailing address set forth below:
Mobile Satellite Ventures GP Inc.
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to each Stockholder as set forth in clause (ii)
below.
(ii) If given to any Stockholder, at the address set forth
on Schedule I hereof (or as modified from time to time by a Stockholder upon
written notice to General Partner).
Notices delivered personally to an addressee or sent by
overnight courier shall be deemed to have been given upon such delivery.
Notices sent by telecopier shall be deemed to have been given upon
confirmation by telecopy answerback (provided that the sending of any such
notice is followed promptly by the mailing of the original of such notice).
Notices mailed by registered or certified mail shall be deemed to have been
given upon the expiration of five (5) Business Days after such notice has been
deposited in the mail.
(h) Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the law of the State of Delaware
without regard to any applicable principles of conflicts of law. Each party
agrees that, in connection with any legal suit or proceeding arising with
respect to this Agreement, it shall submit to the non-exclusive jurisdiction
of the United States District Court for the Southern District of New York or
the applicable New York state court located in New York County and agrees to
venue in such courts.
(i) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
[Signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first written above.
MOBILE SATELLITE VENTURES GP INC.
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Secretary
MOTIENT VENTURES HOLDING INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: EVP and COO
TMI COMMUNICATIONS DELAWARE, LIMITED
PARTNERSHIP
By: 3924505 Canada, Inc., its General
Partner
By: /s/ Xxxx XxXxxxxxx
----------------------------------
Name: Xxxx XxXxxxxxx
Title: President
MSV INVESTORS, LLC
By: MSV Investors Holdings, Inc., its
Managing Member
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: CEO
TELCOM SATELLITE VENTURES II, INC.
By: /s/ Xxx X. Xxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxx
Title: VP and General Counsel
TELCOM SATELLITE VENTURES INC.
By: /s/ Xxx X. Xxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxx
Title: VP and General Counsel
SPECTRUM SPACE EQUITY INVESTORS IV-II, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPECTRUM SPACE IV PARALLEL II, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPECTRUM SPACE IV MANAGERS II, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPECTRUM SPACE EQUITY INVESTORS IV, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPECTRUM SPACE IV PARALLEL, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPECTRUM SPACE IV MANAGERS, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
COLUMBIA SPACE (QP) II, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
COLUMBIA SPACE (AI) II, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
COLUMBIA SPACE PARTNERS II, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
COLUMBIA SPACE (QP), INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
COLUMBIA SPACE (AI), INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
COLUMBIA SPACE PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
