EXHIBIT 10.26
CONFIDENTIAL SETTLEMENT MATERIAL
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MASTER AGREEMENT REGARDING
RESTRUCTURING OF ASTROLINK INTERNATIONAL LLC
BY AND AMONG
LIBERTY SATELLITE & TECHNOLOGY, INC.,
LSAT ASTRO LLC,
LSAT ASTRO HOLDING, INC.,
LIBERTY MEDIA CORPORATION,
LOCKHEED ▇▇▇▇▇▇ CORPORATION,
LOCKHEED ▇▇▇▇▇▇ COMMERCIAL LAUNCH SERVICES, INC.,
LOCKHEED ▇▇▇▇▇▇ COMMERCIAL SPACE COMPANY, INC.,
LOCKHEED ▇▇▇▇▇▇ GLOBAL TELECOMMUNICATIONS, INC.,
LOCKHEED-KHRUNICHEV-ENERGIA, INTERNATIONAL, INC.,
LOCKHEED ▇▇▇▇▇▇ AUSTRALIA PTY LIMITED,
LOCKHEED ▇▇▇▇▇▇ INVESTMENTS INC.,
COMSAT CORPORATION,
NORTHROP GRUMMAN SPACE & MISSION SYSTEMS CORP.,
BY AND THROUGH NORTHROP GRUMMAN SPACE TECHNOLOGY SECTOR,
TELESPAZIO S.P.A.,
TELESPAZIO LUXEMBOURG, S.A.,
TELESPAZIO NORTH AMERICA, INC.,
ASTROLINK INTERNATIONAL LLC,
ASTROLINK ITALIA - S.R.L.,
ASTROLINK AUSTRALIA PTY LIMITED,
AND
ASTROLINK HOLDING LLC
DATED: JANUARY 17, 2003
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CONFIDENTIAL SETTLEMENT MATERIAL
TABLE OF CONTENTS
PAGE
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SECTION 1: DEFINITIONS..........................................................................2
1.1 Definitions............................................................................2
1.2 Construction of Certain Terms..........................................................2
1.3 Meaning of Cash........................................................................2
SECTION 2: TRANSACTIONS.........................................................................2
2.1 LSAT/Astrolink Interim Credit Agreement Amendment......................................2
2.2 ViaSat Settlement......................................................................2
2.3 Motorola Settlement....................................................................3
2.4 Lockheed ▇▇▇▇▇▇ and LSAT Capital Contributions.........................................3
2.5 Redemption of NGST Units...............................................................3
2.6 TPZ Settlement.........................................................................3
2.7 Evidian Settlement.....................................................................3
2.8 NGST Settlement........................................................................4
2.9 Lockheed ▇▇▇▇▇▇ Settlement.............................................................4
2.10 Mutual Release.........................................................................4
2.11 Redemption of TSA Units................................................................5
2.12 LSAT Termination Contingency...........................................................5
2.13 NGST Initial Interim Loans.............................................................5
2.14 Fourth Amended and Restated LLC Agreement..............................................5
2.15 LSAT and Lockheed ▇▇▇▇▇▇ Initial Interim Loans.........................................5
2.16 Contributions to LMII..................................................................5
2.17 Contribution by Astrolink to New Astrolink.............................................6
2.18 Contributions to LSAT..................................................................7
2.19 Contribution by LSAT to LSAT Subsidiary................................................7
2.20 Warrant Agreement......................................................................7
2.21 Contributions to LMII..................................................................8
SECTION 3: REPRESENTATIONS AND WARRANTIES.......................................................8
3.1 Representations and Warranties of Each Party...........................................8
3.2 Representations and Warranties of Astrolink............................................9
SECTION 4: COVENANTS...........................................................................10
4.1 Reasonable Efforts....................................................................10
4.2 Public Announcements..................................................................10
4.3 Proprietary Information...............................................................10
4.4 Notification of Certain Matters.......................................................11
4.5 Tax Information; Transfer Taxes.......................................................12
4.6 Tax Reporting.........................................................................12
4.7 Reservation of Funds for Third Party Creditors........................................13
4.8 Astrolink Obligations.................................................................13
4.9 Astrolink's Unit Incentive Plan.......................................................13
SECTION 5: CLOSING.............................................................................13
5.1 Date..................................................................................13
5.2 Location..............................................................................13
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TABLE OF CONTENTS
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SECTION 6: CONDITIONS TO THE PARTIES' OBLIGATIONS TO EFFECT THE CLOSING....................... 13
6.1 Conditions to Each Party's Obligations to Effect the Closing..........................13
6.2 Conditions to Obligations of LSAT to Effect the Closing...............................14
6.3 LSAT Closing Notice...................................................................14
SECTION 7: TERMINATION.........................................................................14
7.1 Events of Termination.................................................................14
7.2 Automatic Termination.................................................................15
7.3 Effect of Termination.................................................................15
7.4 FCC Authorizations....................................................................15
7.5 Procurement Contracts.................................................................15
7.6 ▇▇▇▇▇▇▇▇ Lease and ▇▇▇▇▇▇▇▇ Products..................................................16
7.7 Employee Termination..................................................................16
SECTION 8: SURVIVAL; INDEMNIFICATION...........................................................16
8.1 Survival of Representations, Warranties, Covenants and Agreements.....................16
8.2 General Indemnification...............................................................17
8.3 Specific Indemnification..............................................................17
8.4 Indemnification Procedures............................................................17
SECTION 9: MISCELLANEOUS.......................................................................18
9.1 Expenses..............................................................................18
9.2 Notices...............................................................................18
9.3 Amendments, Waivers, Etc..............................................................21
9.4 Parties Obligated and Benefited.......................................................21
9.5 Entire Agreement......................................................................21
9.6 Specific Performance..................................................................22
9.7 Remedies Cumulative...................................................................22
9.8 No Waiver.............................................................................22
9.9 No Third Party Beneficiaries..........................................................22
9.10 Jurisdiction..........................................................................22
9.11 Governing Law.........................................................................22
9.12 Governing Language....................................................................23
9.13 Headings..............................................................................23
9.14 Counterparts..........................................................................23
9.15 Severability..........................................................................23
9.16 Further Assurances....................................................................23
9.17 Attorneys' Fees.......................................................................23
9.18 Time..................................................................................23
9.19 Construction..........................................................................24
9.20 Consents of Parties...................................................................24
APPENDIX A......................................................................................A-1
LIST OF EXHIBITS
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CONFIDENTIAL SETTLEMENT MATERIAL
MASTER AGREEMENT REGARDING
RESTRUCTURING OF ASTROLINK INTERNATIONAL LLC
This Agreement is entered into as of January 17, 2003 (the "Execution
Date"), by and among Liberty Satellite & Technology, Inc., a corporation
organized under the laws of Delaware, U.S.A. ("LSAT"), LSAT Astro LLC, a limited
liability company organized under the laws of Delaware, U.S.A. ("Astro LLC"),
LSAT Astro Holding, Inc., a corporation organized under the laws of Delaware,
U.S.A. ("LSAT Subsidiary," and together with LSAT and Astro LLC, the "LSAT
Parties"), Liberty Media Corporation, a corporation organized under the laws of
Delaware, U.S.A. ("Liberty"), Lockheed ▇▇▇▇▇▇ Corporation, a corporation
organized under the laws of Maryland, U.S.A. ("Lockheed ▇▇▇▇▇▇"), Lockheed
▇▇▇▇▇▇ Commercial Launch Services, Inc., a corporation organized under the laws
of Delaware, U.S.A. ("LMCLS"), Lockheed ▇▇▇▇▇▇ Commercial Space Company, Inc., a
corporation organized under the laws of California, U.S.A. ("LMCSC"), Lockheed
▇▇▇▇▇▇ Global Telecommunications, Inc., a corporation organized under the laws
of Delaware, U.S.A. ("LMGT"), Lockheed-Khrunichev-Energia, International, Inc.,
a corporation organized under the laws of Delaware, U.S.A. ("LKE"), Lockheed
▇▇▇▇▇▇ Investments Inc., a corporation organized under the laws of Delaware,
U.S.A. ("LMII"), Lockheed ▇▇▇▇▇▇ Australia PTY Limited, a company limited by
shares organized under the laws of Australia ("LMPTY"), COMSAT Corporation, a
corporation organized under the laws of the District of Columbia, U.S.A.
("Comsat," and together with Lockheed ▇▇▇▇▇▇, LMCLS, LMCSC, LMGT, LKE, LMPTY,
and LMII, the "Lockheed ▇▇▇▇▇▇ Parties"), Northrop Grumman Space & Mission
Systems Corp., a corporation organized under the laws of Ohio, U.S.A., by and
through Northrop Grumman Space Technology sector, formerly known as TRW Inc.
("NGST"), Telespazio S.p.A., a company organized under the laws of Italy
("TPZ"), Telespazio Luxembourg, S.A., a company organized under the laws of
Luxembourg ("TSA"), Telespazio North America, Inc., a corporation organized
under the laws of Delaware, U.S.A. ("TNA," and together with TPZ and TSA, the
"TPZ Parties"), ASTROLINK International LLC, a limited liability company
organized under the laws of Delaware, U.S.A. ("Astrolink"), Astrolink Australia
PTY Limited, a company limited by shares organized under the laws of Australia
("AIL Australia"), Astrolink Italia - S.r.l., a company organized under the laws
of Italy ("AIL Srl," and together with Astrolink and AIL Australia, the
"Astrolink Parties"), and Astrolink Holding LLC, a limited liability company
organized under the laws of Delaware, U.S.A. ("New Astrolink").
BACKGROUND
Astro LLC, LMGT, NGST, and TSA collectively own all of the Units
representing all of the Membership Interests in Astrolink.
The Parties desire to set forth their agreements relating to a
restructuring of Astrolink and a settlement of all claims among the Parties
relating to Astrolink and with respect to certain other matters.
NOW THEREFORE, in consideration of their mutual promises contained in this
Agreement, and intending to be legally bound, the Parties agree as follows:
CONFIDENTIAL SETTLEMENT MATERIAL
SECTION 1: DEFINITIONS
1.1 DEFINITIONS. For all purposes of this Agreement, all terms used in
capitalized form will have the meanings set forth in Appendix A.
1.2 CONSTRUCTION OF CERTAIN TERMS. All pronouns (and any variation)
will be deemed to refer to the masculine, feminine, or neuter, as the identity
of the Person may require. The singular or plural includes the other, as the
context requires or permits. The word "include" (and any variation) is used in
an illustrative sense rather than a limiting sense. The word "or" is not
exclusive. The word "day," if not otherwise qualified, means a calendar day.
1.3 MEANING OF CASH. Whenever this Agreement provides for a payment,
advance, or other transfer of cash, the Person responsible for making such
payment, advance, or other transfer will cause the amount of cash specified to
be paid on the date specified by wire transfer of immediately available funds in
United States currency in accordance with wire transfer instructions provided by
the Person designated to receive such payment, advance, or other transfer at
least two Business Days prior to the date on which such payment, advance, or
other transfer is required to be made.
SECTION 2: TRANSACTIONS
Subject to the terms and conditions of this Agreement, the Parties agree to
take the following actions at the times specified (with any actions specified to
be taken with the execution of this Agreement taken substantially simultaneously
but in the sequence set forth in this Section 2, and the actions specified to be
taken at the Closing being taken substantially simultaneously but in the
sequence set forth in this Section 2) with respect to the Transactions:
2.1 LSAT/ASTROLINK INTERIM CREDIT AGREEMENT AMENDMENT. Simultaneously
with the execution of this Agreement, LSAT and Astrolink will enter into
Amendment No. 4 to the LSAT/Astrolink Interim Credit Agreement, attached as
EXHIBIT A-1 (the "Credit Agreement Amendment"), pursuant to which LSAT will
provide funding for Astrolink's operations until the Closing occurs or this
Agreement is terminated in accordance with the terms hereof. Simultaneously with
the execution of this Agreement, LSAT and Astrolink will enter into, and
Astrolink will cause its subsidiaries that are parties to the LSAT/Astrolink
Interim Security Agreement to enter into, Amendment No. 2 to the LSAT/Astrolink
Interim Security Agreement, attached as EXHIBIT A-2, pursuant to which LSAT will
release its liens on certain assets of Astrolink and AIL Srl.
2.2 VIASAT SETTLEMENT. Simultaneously with the execution of this
Agreement, Astrolink, Lockheed ▇▇▇▇▇▇, LSAT, TSA and NGST will enter into the
Settlement and Release Agreement with ViaSat, Inc. ("ViaSat") attached as
EXHIBIT B (the "ViaSat Settlement Agreement"), pursuant to which all claims
relating to certain contracts between Astrolink and ViaSat identified in the
ViaSat Settlement Agreement will be settled in accordance with the terms
thereof, and Astrolink and all its directors, officers, members and Affiliates
will be released with respect to all claims related thereto.
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2.3 MOTOROLA SETTLEMENT. Simultaneously with the execution of this
Agreement, Astrolink, Lockheed ▇▇▇▇▇▇, and LSAT will enter into the Settlement
and Release Agreement with Motorola, Inc. ("Motorola") attached as EXHIBIT C
(the "Motorola Settlement Agreement"), pursuant to which all claims relating to
the contract between Astrolink and Motorola identified in the Motorola
Settlement Agreement will be settled in accordance with the terms thereof, and
Astrolink and all its directors, officers, members and Affiliates will be
released with respect to all claims related thereto.
2.4 LOCKHEED ▇▇▇▇▇▇ AND LSAT CAPITAL CONTRIBUTIONS. Simultaneously with
the execution of this Agreement, Lockheed ▇▇▇▇▇▇ will contribute to Astrolink
(i) $550,000 in cash and (ii) the contingent promissory note attached as EXHIBIT
E (the "Lockheed ▇▇▇▇▇▇ TPZ Redemption Note"). Simultaneously with the execution
of this Agreement, LSAT will contribute to Astrolink $250,000 in cash.
2.5 REDEMPTION OF NGST UNITS. Simultaneously with the execution of this
Agreement, NGST and Astrolink will execute and deliver the Redemption Agreement
(the "NGST Redemption Agreement") attached as EXHIBIT F, pursuant to which
Astrolink will redeem the 25,510,000 Units owned by NGST in accordance with the
terms and conditions thereof (the "NGST Redemption"). Simultaneously with the
execution of this Agreement, immediately after the NGST Redemption, LMGT, Astro
LLC, TSA, and Astrolink will execute and deliver the Second Amended and Restated
Limited Liability Company Agreement of Astrolink attached as EXHIBIT G.
2.6 TPZ SETTLEMENT.
(a) Simultaneously with the execution of this Agreement, New
Astrolink, the Astrolink Parties, TPZ, and TNA will execute and deliver the
Settlement and Release Agreement attached as EXHIBIT H (the "TPZ Settlement
Agreement"), settling all claims under the vendor contracts between TPZ or TNA,
on the one hand, and Astrolink or AIL Srl, on the other hand, as the case may be
(the "TPZ Vendor Contracts"), in accordance with the terms and conditions
thereof.
(b) Simultaneously with the execution of this Agreement, the
designated Lockheed ▇▇▇▇▇▇ Parties, NGST, and the TPZ Parties will execute and
deliver the Settlement and Release Agreement attached as EXHIBIT I, pursuant to
which such Parties will settle all claims under all subcontracts relating to any
of the TPZ Vendor Contracts.
2.7 EVIDIAN SETTLEMENT. Simultaneously with the execution of this
Agreement, Astrolink will enter into the Settlement and Release Agreement with
Evidian, Inc. ("Evidian") attached as EXHIBIT J (the "Evidian Settlement
Agreement"), pursuant to which all claims relating to the End User License,
Support and Services Agreement, dated September 28, 2001, between Astrolink and
Evidian (the "Evidian License Agreement") will be settled in accordance with the
terms of the Evidian Settlement Agreement, and Astrolink and all its directors,
officers, members and Affiliates will be released with respect to all claims
related to the Evidian License Agreement. Astrolink and Evidian will promptly
cause Evidian, Inc. v. ASTROLINK
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CONFIDENTIAL SETTLEMENT MATERIAL
International LLC, Middlesex Superior Court, Civil Action No. 2002-00309L to be
dismissed with prejudice.
2.8 NGST SETTLEMENT.
(a) Simultaneously with the execution of this Agreement, Lockheed
▇▇▇▇▇▇ and NGST will execute and deliver the Settlement and Release Agreement
attached as EXHIBIT K, pursuant to which Lockheed ▇▇▇▇▇▇ and NGST will settle
all claims under the Firm Fixed Price Subcontract Number MK01J5701A for the
Astrolink Payload between Lockheed ▇▇▇▇▇▇ and NGST dated April 27, 1999, as
amended (the "Old Lockheed ▇▇▇▇▇▇/NGST Subcontract"), in accordance with the
terms thereof.
(b) Simultaneously with the execution of this Agreement, Lockheed
▇▇▇▇▇▇ and Astrolink will execute and deliver the Assignment and Assumption
Agreement attached as EXHIBIT L, pursuant to which Lockheed ▇▇▇▇▇▇ will assign
to Astrolink, and Astrolink will assume, the Old Lockheed ▇▇▇▇▇▇/NGST
Subcontract, effective as of the Execution Date, in accordance with the terms
thereof.
(c) Simultaneously with the execution of this Agreement,
Astrolink and NGST will execute and deliver a Procurement Contract (the "New
NGST Procurement Contract"), which will supersede the Old Lockheed ▇▇▇▇▇▇/NGST
Subcontract, and (ii) Astrolink, New Astrolink, and NGST will execute and
deliver the Settlement and Release Agreement attached as EXHIBIT N, pursuant to
which Astrolink and NGST will settle all claims under all vendor contracts
between NGST and Astrolink, including the Old Lockheed ▇▇▇▇▇▇/NGST Subcontract
assigned to Astrolink as described in Section 2.8(b).
2.9 LOCKHEED ▇▇▇▇▇▇ SETTLEMENT. Simultaneously with the execution of
this Agreement, (i) the Astrolink Parties, New Astrolink, and the designated
Lockheed ▇▇▇▇▇▇ Parties will execute and deliver the Settlement and Release
Agreement attached as EXHIBIT O, pursuant to which the Astrolink Parties, New
Astrolink, and the designated Lockheed ▇▇▇▇▇▇ Parties will settle all claims
under all vendor contracts between such Lockheed ▇▇▇▇▇▇ Parties, on the one
hand, and Astrolink or any of the Astrolink Parties, on the other hand, as the
case may be, in accordance with the terms thereof, and (ii) Astrolink and
Lockheed ▇▇▇▇▇▇ will execute and deliver a Procurement Contract (the "New
Lockheed ▇▇▇▇▇▇ Procurement Contract"), which will supersede both Contract
#AILLMCSS1 dated April 23, 1999, between Astrolink and Lockheed ▇▇▇▇▇▇ for the
Astrolink Space Segment and SCF Segment, as amended, and the Contract for Launch
Services dated April 7, 2000 among Astrolink, LMCLS and LKE, as amended.
2.10 MUTUAL RELEASE. Simultaneously with the execution of this Agreement,
Astrolink, New Astrolink Lockheed ▇▇▇▇▇▇, LMGT, NGST, Astro LLC, TSA, Liberty,
LSAT, TPZ and LMGT Astro License LLC will mutually release all claims against
one another relating to ownership of Membership Interests in Astrolink (other
than claims under this Agreement or any Transaction Document), including any
claims against directors of Astrolink, and such Parties will execute and deliver
the Settlement and Release Agreement attached as EXHIBIT Q.
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CONFIDENTIAL SETTLEMENT MATERIAL
2.11 REDEMPTION OF TSA UNITS. Simultaneously with the execution of this
Agreement, Astrolink and TSA will execute and deliver the Redemption Agreement
(the "TPZ Redemption Agreement") attached as EXHIBIT R, pursuant to which
Astrolink will redeem the 25,000,000 Units owned by TSA on the earlier of: (i)
two Business Days after receipt of all approvals, and the expiration of all
waiting periods, required by Governmental Authorities and (ii) two Business Days
after termination of this Agreement (the "TPZ Redemption Date"), in accordance
with the terms and conditions thereof (the "TPZ Redemption"). On the TPZ
Redemption Date immediately after the TPZ Redemption, LMGT, Astro LLC, and
Astrolink will execute and deliver the Third Amended and Restated Limited
Liability Agreement of Astrolink attached as EXHIBIT S.
2.12 LSAT TERMINATION CONTINGENCY. Simultaneously with the execution of
this Agreement, Lockheed ▇▇▇▇▇▇, LSAT, Astrolink, and Astro LLC will execute and
deliver the agreement attached as EXHIBIT T (the "LSAT Plan B Agreement"),
pursuant to which upon termination of this Agreement, Lockheed ▇▇▇▇▇▇, or an
Affiliate of Lockheed ▇▇▇▇▇▇, ▇▇▇▇ acquire the notes evidencing any Initial
Interim Loans made by LSAT to Astrolink and LSAT Subsequent Interim Loans and
will acquire, or cause Astrolink to redeem, the 42,500,000 Units owned by Astro
LLC; provided that, if an Affiliate of Lockheed ▇▇▇▇▇▇ is the acquirer or if the
Units owned by Astro LLC are redeemed, Lockheed ▇▇▇▇▇▇ will guarantee all
payments under the LSAT Plan B Agreement.
2.13 NGST INITIAL INTERIM LOANS. On the first Business Day after the TPZ
Redemption Date, NGST will forgive any Initial Interim Loans made by NGST to
Astrolink in full, and NGST will deliver to Astrolink the original promissory
notes evidencing any such Initial Interim Loans marked "Cancelled."
2.14 FOURTH AMENDED AND RESTATED LLC AGREEMENT. At the Closing, LMGT,
Astro LLC, and Astrolink will execute and deliver the Fourth Amended and
Restated Limited Liability Company Agreement of Astrolink attached as EXHIBIT U.
2.15 LSAT AND LOCKHEED ▇▇▇▇▇▇ INITIAL INTERIM LOANS. At the Closing, each
of LSAT and Lockheed ▇▇▇▇▇▇ will contribute to Astrolink the promissory notes
evidencing any Initial Interim Loans made by such Party to Astrolink. No
additional Units will be issued by Astrolink with respect to the contributions
of the promissory notes evidencing any Initial Interim Loans as described in the
preceding sentence.
2.16 CONTRIBUTIONS TO LMII.
(a) At the Closing, Lockheed ▇▇▇▇▇▇, Astro LLC, and LMII will
execute and deliver the Contribution Agreement attached as EXHIBIT V (the "LMII
Contribution Agreement"), pursuant to which, in a Section 351 Transaction, the
following steps will occur at a single closing (the "LMII Contribution
Closing"): (a) Astro LLC will transfer the 42,500,000 Units owned by Astro LLC
to LMII in exchange for cash and preferred stock in LMII ("LMII Preferred
Stock") and (b) Lockheed ▇▇▇▇▇▇ will transfer to LMII cash, property, or notes
(or any combination thereof) (the "Lockheed ▇▇▇▇▇▇ Contributed Property") having
an aggregate value of not less than 10% of the value of Lockheed ▇▇▇▇▇▇'▇
holdings of LMII stock determined
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CONFIDENTIAL SETTLEMENT MATERIAL
immediately prior to the LMII Contribution Closing, in exchange for common stock
of LMII ("LMII Common Stock") and LMII Preferred Stock, which shares of LMII
Common Stock and LMII Preferred Stock will have an aggregate value equal to the
value of the Lockheed ▇▇▇▇▇▇ Contributed Property, all in accordance with the
terms and conditions of the LMII Contribution Agreement.
(b) Prior to the LMII Contribution Closing, LMII will file the
Second Certificate of Amendment to the Certificate of Incorporation of LMII and
the Certificate of Designations for the LMII Preferred Stock attached as
exhibits to the LMII Contribution Agreement.
2.17 CONTRIBUTION BY ASTROLINK TO NEW ASTROLINK. Prior to the Closing,
New Astrolink will be a wholly owned subsidiary of Astrolink and New Astrolink
will not have any assets or liabilities and will not engage in any business or
activities except those incident to the consummation of the Transactions.
Subject to Section 2.18(c), at the Closing, Astrolink will transfer all of its
assets, including all FCC Authorizations, and all its right, title and interest
in its severance pay plans (the "Severance Plans"), the Trust Agreement, dated
as of December 21, 2001, between Astrolink and Citibank, N.A., as amended (the
"Severance Trust"), the New NGST Procurement Contract and the New Lockheed
▇▇▇▇▇▇ Procurement Contract, but excluding any cash received by Astrolink
pursuant to its 2000 Unit Incentive Plan adopted by Astrolink's Board of
Directors as of March 31, 2000 and amended as of October 2, 2001 (the "Unit
Incentive Plan") after the Execution Date and cash in an amount equal to the
lesser of (a) the excess, if any, of $1,800,000 over the sum of (i) the amount
of cash paid by Astrolink at or prior to the Closing to settle the claims of
specified creditors identified on SCHEDULE 2.17 (the "Scheduled Creditor
Claims"), and (ii) the sum of the amounts of the Scheduled Creditor Claims that
have not been settled and remain outstanding as of the Closing, and (b) $300,000
(the lesser of (a) and (b) being referred to as the "Excess Settlement Cash"),
to New Astrolink, and New Astrolink will assume all liabilities of Astrolink,
including (u) liability arising from any breach of representations and
warranties made by Astrolink hereunder or any other Transaction Document, (v)
liability relating to nonperformance of any covenants of Astrolink to be
performed hereunder or any other Transaction Document on or prior to the
Closing, (w) any notes evidencing LSAT Subsequent Interim Loans, (x) the New
NGST Procurement Contract, (y) the New Lockheed ▇▇▇▇▇▇ Procurement Contract and
(z) liability arising under the Unit Incentive Plan (subject to Section 4.9 of
this Agreement); provided, however, that New Astrolink will not assume any
liabilities of Astrolink related to Units acquired under the Unit Incentive Plan
after the Execution Date or any liabilities of Astrolink to any of the Lockheed
▇▇▇▇▇▇ Parties or to any Affiliate of any of the Lockheed ▇▇▇▇▇▇ Parties, except
pursuant to the New Lockheed ▇▇▇▇▇▇ Procurement Contract (the "Assumed
Liabilities"). At the Closing, (a) Astrolink and New Astrolink will execute and
deliver the Assignment and Assumption Agreement attached as EXHIBIT W, and (b)
Astrolink and New Astrolink will execute and deliver such other instruments and
documents as may be reasonably necessary to effect and evidence such transfer of
assets and assumption of liabilities.
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CONFIDENTIAL SETTLEMENT MATERIAL
2.18 CONTRIBUTIONS TO LSAT.
(a) Simultaneously with the execution of this Agreement, Liberty,
Astrolink and LSAT will execute and deliver the Contribution Agreement attached
as EXHIBIT X (the "LSAT Contribution Agreement"), pursuant to which, in a
Section 351 Transaction, the following steps will occur at the Closing: (i)
Liberty will transfer, or cause to be transferred, as provided in the LSAT
Contribution Agreement, to LSAT cash, property, or notes (or any combination
thereof) (the "Liberty Contributed Property"), having an aggregate value of not
less than 10% of the value of Liberty's holdings of LSAT stock (the "Liberty 10%
Value Requirement"), in exchange for shares of Series B Common Stock of LSAT
having a value equal to the value of the Liberty Contributed Property, all as
determined in the manner provided in the LSAT Contribution Agreement, and (ii)
Astrolink will transfer all of its membership interests in New Astrolink to LSAT
in exchange for cash (the "LSAT Cash") and shares of Series A Common Stock of
LSAT (the "LSAT Stock"), in accordance with the terms and conditions of the LSAT
Contribution Agreement. Notwithstanding the foregoing, in no event will Liberty
have an obligation to transfer, or to cause to be transferred, assets to LSAT
having a value in excess of $55 million, and, if the Liberty 10% Value
Requirement would not be met by Liberty transferring, or causing to be
transferred, Liberty Contributed Property valued at $55 million to LSAT at the
Closing, then Liberty, Astrolink and LSAT will use commercially reasonable
efforts to consummate an alternative transaction that qualifies as a Section 351
Transaction and is reasonably acceptable to Lockheed ▇▇▇▇▇▇, as provided in the
LSAT Contribution Agreement.
(b) At the Closing, LSAT and Astrolink will execute and deliver
the Registration Rights Agreement attached as an exhibit to the LSAT
Contribution Agreement.
(c) For the avoidance of doubt, since the transactions
contemplated pursuant to Section 2.17 will be consummated prior to the
transactions contemplated pursuant to this Section 2.18 (as specifically
provided in Section 2), Astrolink will not assign or transfer to New Astrolink
the LSAT Cash and the LSAT Stock pursuant to the Assignment and Assumption
Agreement referenced in Section 2.17.
2.19 CONTRIBUTION BY LSAT TO LSAT SUBSIDIARY. Prior to the Closing, LSAT
Subsidiary will not have any assets or liabilities and will not engage in any
business activities except those incident to the consummation of the
Transactions. At the Closing, LSAT will transfer all of the membership interests
in New Astrolink received by LSAT pursuant to the LSAT Contribution Agreement to
LSAT Subsidiary in exchange for 9,000 shares of common stock of LSAT Subsidiary,
which will represent all of the outstanding capital stock of LSAT Subsidiary
immediately after the Closing, in a Section 351 Transaction. At the Closing,
LSAT and LSAT Subsidiary will execute and deliver the Assignment and Assumption
Agreement attached as EXHIBIT Y.
2.20 WARRANT AGREEMENT. At the Closing, LSAT Subsidiary and Lockheed
▇▇▇▇▇▇ will execute and deliver the Agreement Regarding Warrants and Warrant
Shares attached as EXHIBIT Z if Lockheed ▇▇▇▇▇▇ notifies LSAT Subsidiary at
least one Business Day prior to the Closing that it desires to enter into such
agreement.
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CONFIDENTIAL SETTLEMENT MATERIAL
2.21 CONTRIBUTIONS TO LMII. At the LMII Contribution Closing, the
transactions contemplated by the LMII Contribution Agreement will be
consummated.
SECTION 3: REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF EACH PARTY. Each Party to this
Agreement represents and warrants to all other Parties to this Agreement that:
(a) EXISTENCE AND POWER. Such Party (i) is a Person duly
organized, validly existing, and in good standing under the laws of its
jurisdiction of organization, (ii) is authorized to transact business and is in
good standing in each jurisdiction in which its ownership of assets or conduct
of business requires such qualification, and (iii) has all powers required to
carry on its business as currently conducted, with such exceptions to clauses
(i), (ii) and (iii) as would not materially and adversely affect the ability of
such Party to consummate the Transactions to be consummated by it pursuant to
this Agreement and the Transaction Documents.
(b) AUTHORIZATION. The execution, delivery, and performance by
such Party of this Agreement and of the Transaction Documents to which it is a
party, and the consummation by such Party of the Transactions to be consummated
by it pursuant to this Agreement and the Transaction Documents, are within the
powers of such Party and have been duly authorized by all necessary action on
the part of such Party.
(c) GOVERNMENTAL APPROVALS. SCHEDULE 3.1(c) sets forth all
material actions by or in respect of, and all material filings with, any
Governmental Authority, including the FCC, that are required in connection with
the execution, delivery, and performance by such Party of this Agreement and of
the Transaction Documents to which it is a party, and the consummation by such
Party of the Transactions to be consummated by it pursuant to this Agreement and
the Transaction Documents (the "Governmental Approvals").
(d) CONSENTS. SCHEDULE 3.1(d) sets forth all consents by any
Person under any contract to which it is a party or to which its assets are
subject that are required in connection with the execution, delivery, and
performance by such Party of this Agreement and of the Transaction Documents to
which it is a party, and the consummation by such Party of the Transactions to
be consummated by it pursuant to this Agreement and the Transaction Documents,
except for the consents granted pursuant to Section 9.20, with such exceptions
as would not materially and adversely affect the ability of such Party to
consummate the Transactions to be consummated by it pursuant to this Agreement
and the Transaction Documents (the "Required Consents").
(e) NON-CONTRAVENTION. The execution, delivery, and performance
by such Party of this Agreement and the Transaction Documents to which it is a
party, and the consummation by such Party of the Transactions to be consummated
by it pursuant to this Agreement and the Transaction Documents, do not, and
before the Closing or the LMII Contribution Closing, as applicable, will not (x)
contravene the constituent documents of such Party or (y) subject to obtaining
the approvals, making the filings, or taking the actions required with respect
to the Governmental Approvals and obtaining the Required Consents, result in, or
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CONFIDENTIAL SETTLEMENT MATERIAL
constitute a breach or default (including any event that, with the passage of
time or giving of notice, or both, would become a breach or default) under, or
violation of, any applicable Legal Requirement or any contract, license, lease,
indenture, mortgage, loan agreement, note, or other agreement or instrument as
to which it is a party or by which any of its properties may be bound, the
effect of which would be to materially and adversely affect the ability of such
Party to consummate the Transactions to be consummated by it pursuant to this
Agreement and the Transaction Documents.
(f) BINDING EFFECT. This Agreement has been duly executed and
delivered by such Party, and when executed by such Party in accordance with the
terms of this Agreement, each Transaction Document to be executed by such Party
will be duly executed and delivered by such Party. This Agreement constitutes a
valid and binding obligation of such Party, and when executed by such Party in
accordance with the terms of this Agreement, each Transaction Document to be
executed by such Party will constitute a valid and binding obligation of such
Party, enforceable against such Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditors' rights
generally or by the principles governing the availability of equitable remedies.
(g) FINDERS' FEES. There is no investment banker, broker, finder,
or other intermediary that has been retained by or is authorized to act on
behalf of such Party who might be entitled to any fee or commission from any
other Party in connection with the execution, delivery, or performance of this
Agreement or the Transaction Documents or the consummation of the Transactions.
3.2 REPRESENTATIONS AND WARRANTIES OF ASTROLINK. Astrolink represents
and warrants to all other Parties to this Agreement that:
(a) MISCELLANEOUS CREDITOR CLAIMS. SCHEDULE 3.2(a) sets out the
names of each creditor of Astrolink, other than any Person that is a Party to
this Agreement or any Transaction Document (the "Party Creditors"), with a claim
against Astrolink with a value greater than $10,000 and the nature of the claims
of each such creditor ("Miscellaneous Creditor Claims"). Except the
Miscellaneous Creditor Claims, as of the Closing there will be no creditors of
Astrolink (other than Party Creditors) with claims against Astrolink that would
exceed in the aggregate $100,000.
(b) EMPLOYEE CLAIMS. SCHEDULE 3.2(b) sets out all severance and
retention obligations and all other monetary obligations of Astrolink to
employees of Astrolink.
(c) LITIGATION. SCHEDULE 3.2(c) sets out (i) all suits,
proceedings, arbitrations, or investigations pending or, to Astrolink's
knowledge, threatened against Astrolink, or initiated by Astrolink, other than
those to which any Party is a party that are covered by any of the Transaction
Documents attached to this Agreement as EXHIBITS ▇, ▇, ▇, ▇, ▇, ▇, ▇, ▇, ▇, and
T (collectively, the "Settlement Agreements") and (ii) all written claims, other
than those involving an amount in dispute of less than $10,000 individually or
$100,000 in the aggregate.
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CONFIDENTIAL SETTLEMENT MATERIAL
(d) MATERIAL CONTRACTS. SCHEDULE 3.2(d) sets out all material
contracts (including the date of each contract and the names of each party
thereto) to which Astrolink is a party, other than any contract to which any
Party is a party that is covered by any of the Settlement Agreements.
(e) CONSENTS. SCHEDULE 3.2(e) sets out all consents, other than
the Required Consents and other than the consent of any Party to this Agreement,
that are required in connection with the execution, delivery, and performance by
Astrolink of this Agreement and of the Transaction Documents to which Astrolink
is a party, except any consent which if not obtained would not reasonably be
expected to result in damages to Astrolink in excess of $10,000 individually or
$100,000 in the aggregate.
SECTION 4: COVENANTS
4.1 REASONABLE EFFORTS. Upon the terms and subject to the conditions of
this Agreement, each Party will fully cooperate in good faith and in a timely
manner and use commercially reasonable efforts to take, or to cause to be taken,
all appropriate actions, and to do, or to cause to be done, all things
necessary, proper, or advisable under applicable Legal Requirements to permit it
to execute and deliver the Transaction Documents to which it is a party in
accordance with Section 2, and to consummate and make effective the
Transactions, including using commercially reasonable efforts unless and until
this Agreement is terminated in accordance with Section 7 to obtain all
Governmental Approvals and Required Consents as are necessary for the
consummation of the Transactions and using commercially reasonable efforts to
satisfy, or to cause to be satisfied, all conditions to the Parties' obligations
to effect the Closing and the LMII Contribution Closing.
4.2 PUBLIC ANNOUNCEMENTS. Each Party will consult with each other Party
before issuing any press release or otherwise making any public statements with
respect to this Agreement or any of the Transactions and will not issue any such
press release or make any such public statement without the prior consent of the
other Parties, which consent will not be unreasonably withheld, delayed, or
conditioned; provided, however, that any Party may, without the prior consent of
the other Parties, issue such press release or make such public statement as may
be required by applicable Legal Requirements or any listing agreement or
arrangement to which such Party or any of its Affiliates is a party with a
national securities exchange or association if it has used commercially
reasonable efforts to consult with the other Parties and to obtain such Parties'
consent but has been unable to do so in a timely manner; provided further that
promptly after issuing such release or making such statement such Party will
give written notice thereof to the other Parties, including a copy of such
release or statement.
4.3 PROPRIETARY INFORMATION.
(a) In connection with the negotiation, execution, delivery, and
performance of this Agreement and the Transaction Documents and the consummation
of the Transactions, a Party may disclose Confidential Information to another
Party. For purposes of this Section 4.3, the term "Confidential Information"
means (x) written or documentary technical, financial, or business information
identified by the disclosing party with a conspicuous legend indicating that
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CONFIDENTIAL SETTLEMENT MATERIAL
it contains confidential information of the disclosing party and (y) orally or
visually disclosed technical, financial, or business information that is
identified at the time of disclosure as confidential information of the
disclosing party by written notification to the receiving party. Each Party will
hold, and will cause its Affiliates and its and their respective directors,
officers, employees, consultants, advisors, and agents to hold, in confidence
all Confidential Information concerning any other Party obtained in connection
with this Agreement or any Transaction Document and will use any such
Confidential Information only in connection with the Transactions; provided,
however, that any Party may disclose Confidential Information to any Person
whose knowledge of such Confidential Information is necessary to facilitate the
consummation of the Transactions so long as such Person agrees to comply with
the terms of this Section 4.3. Each Party's obligation to hold Confidential
Information in confidence will be satisfied if it exercises the same care with
respect to such Confidential Information as it would exercise to preserve the
confidentiality of its own similar information. Notwithstanding the foregoing
provisions of this Section 4.3, there will be no obligation of confidence or
limitation on use or disclosure as to any Confidential Information that (i) is
or becomes available to the public without breach of the terms of this
Agreement; (ii) is known by the receiving party prior to its receipt by the
disclosing party as Confidential Information hereunder; (iii) is approved for
release by written authorization of the disclosing party; (iv) is lawfully
obtained from a third party who is not subject to a duty of confidentiality; (v)
is disclosed by the disclosing party to a third party without imposing a duty of
confidentiality; (vi) is determined to have been developed independently by the
receiving party by a Person without substantive knowledge of the disclosing
party's information; or (vii) is required to be disclosed in accordance with any
applicable Legal Requirements or by the rules and regulations of any applicable
self-regulatory organization if the Party required to make such disclosure has
used commercially reasonable efforts to notify the disclosing party as far in
advance of the required disclosure as is reasonably practicable under the
circumstances and cooperated in all reasonable respects with the disclosing
party, if requested by the disclosing party and at the expense of the disclosing
party, to obtain a protective order or otherwise seek confidential treatment
with respect to such information.
(b) Notwithstanding the provisions of Section 4.3(a), if any
Transaction Document contains specific provisions regarding the treatment of
proprietary or confidential information, then such provisions will apply, and
the provisions of Section 4.3(a) will not apply, with respect to any
Confidential Information disclosed in connection with and governed by the terms
of such Transaction Document.
4.4 NOTIFICATION OF CERTAIN MATTERS. Each Party will promptly notify the
other Parties of:
(a) any notice or other communication of which it has knowledge
alleging that a material consent of any Person is or may be required in
connection with the Transactions other than the Required Consents or the
consents set forth on SCHEDULE 3.2(e);
(b) any material notice or other material communication from any
Governmental Authority that is received by it in connection with the
Transactions;
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CONFIDENTIAL SETTLEMENT MATERIAL
(c) any Legal Proceeding commenced or, to its knowledge,
threatened against, relating to, involving or otherwise affecting, this
Agreement, any of the Transaction Documents, or any of the Transactions;
(d) any event, condition or circumstance of which it has
knowledge that is reasonably likely to have a material adverse impact on the
consummation of the Transactions in a timely manner; or
(e) any pending or threatened United States federal, state,
local, municipal or foreign Tax audits, examinations, claims, settlements,
proposed adjustments, assessments or reassessments or related matters that could
reasonably be expected to address the Tax treatment of any of the Transactions.
4.5 TAX INFORMATION; TRANSFER TAXES. The Parties will cooperate in
providing any information required for any Party to file any Tax returns or
information reports. Except as otherwise provided in this Section 4.5, if the
Closing occurs, the LSAT Parties or Liberty, as appropriate (the "Liberty
Taxpayer"), will pay all sales, use, gross receipts or other transfer Taxes
("Transfer Taxes") incurred as a result of or in connection with the
consummation of any of the Transactions. Lockheed ▇▇▇▇▇▇ will reimburse the
Liberty Taxpayer for one-half of any Transfer Taxes arising as a result of the
transfer of Astrolink's assets to New Astrolink (as described in Section 2.17)
or the transfer of membership interests in New Astrolink to LSAT (as described
in Section 2.18(a)); provided, however, that Lockheed ▇▇▇▇▇▇ will not be
responsible for any such Transfer Taxes or other Taxes that are incurred as a
result of or in connection with the Transactions described in Sections 2.17 and
2.18(a) to the extent such Transfer Taxes or other Taxes would have been
incurred if Astro LLC had acquired the Membership Interests of LMGT, NGST, and
TSA in Astrolink; and provided further that if any Transaction Document
(including any of the Settlement Agreements) contains specific provisions
regarding the payment of any Transfer Taxes or other Taxes, then such provisions
will apply, and the provisions of this Section 4.5 will not apply, with respect
to the payment of such Transfer Taxes or other Taxes. If the Closing occurs, the
Liberty Taxpayer will prepare and file, or cause to be prepared and filed, all
Transfer Tax returns and reports, and will pay all Taxes shown to be due
thereon. Within five Business Days after receipt of a written request by the
Liberty Taxpayer, Lockheed ▇▇▇▇▇▇ will reimburse the Liberty Taxpayer for
Lockheed ▇▇▇▇▇▇'▇ share, as provided in this Section 4.5, of the Transfer Taxes
paid by the Liberty Taxpayer; provided, however, that Lockheed ▇▇▇▇▇▇ will not
be responsible for any interest or penalties arising as a result of any late or
inaccurate Transfer Tax filings or payments. The Liberty Taxpayer will promptly
repay to Lockheed ▇▇▇▇▇▇ the portion of any Transfer Tax refunds or credits
(including interest) received by the Liberty Taxpayer that were reimbursed by
Lockheed ▇▇▇▇▇▇ under this Section 4.5. If the Closing does not occur, any
Transfer Taxes that may be imposed with respect to any of the Transactions will
be paid by the Party legally responsible therefor, and such Party will prepare
and file, or cause to be prepared and filed, all Transfer Tax returns and
reports with respect thereto.
4.6 TAX REPORTING. None of Astrolink, its successors, or any of its
members will file any return or take a position that for U.S. federal income Tax
purposes Astrolink was engaged in,
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CONFIDENTIAL SETTLEMENT MATERIAL
or had income which is treated as derived in, the conduct of a trade or business
within the United States during any period during which any of the TPZ Parties
was a member of Astrolink.
4.7 RESERVATION OF FUNDS FOR THIRD PARTY CREDITORS. Astrolink will
segregate and hold all sums paid to Astrolink by the TPZ Parties under the TPZ
Settlement Agreement (the "TPZ Settlement Funds") separate and will use such
funds solely for the purpose of making settlement payments in respect of
Scheduled Creditor Claims. The Parties hereby waive any right to payment from
the TPZ Settlement Funds or any earnings thereon or proceeds thereof, including
rights to payment under the Interim Loans and the LSAT Subsequent Interim Loans,
and agree not to make any Claims against Astrolink for any TPZ Settlement Funds,
until the earliest to occur of (i) all Scheduled Creditor Claims having been
indefeasibly paid in full, (ii) the Closing, and (iii) termination of this
Agreement.
4.8 ASTROLINK OBLIGATIONS. None of Astro LLC, LMGT or TSA will incur any
obligation on behalf of Astrolink, or cause or affirmatively permit Astrolink to
incur any obligation which would remain as an unfunded obligation of Astrolink
after the Closing or after termination of this Agreement, without the prior
consent of all members of Astrolink at the time such obligation is incurred.
4.9 ASTROLINK'S UNIT INCENTIVE PLAN. New Astrolink will not assume the
Unit Incentive Plan or assume or substitute for the Unit Options (as defined in
the Unit Incentive Plan). Astrolink agrees that no later than April 30, 2003 (or
such later date agreed upon by Lockheed ▇▇▇▇▇▇ and LSAT and specified in a
notice to Astrolink), it will give the notice specified in Section 7.2 of the
Unit Incentive Plan to each participant with outstanding Unit Options as of the
date such notice is sent, in form and substance reasonably satisfactory to LSAT
and Lockheed ▇▇▇▇▇▇. Astrolink also agrees that it will take all actions
necessary to terminate the Unit Incentive Plan in its entirety prior to the
Closing.
SECTION 5: CLOSING
5.1 DATE. Unless this Agreement has been terminated and the Transactions
have been abandoned pursuant to Section 7, the Closing will take place on the
date specified in the LSAT Closing Notice that is not fewer than five Business
Days after the date of delivery of the LSAT Closing Notice pursuant to Section
6.3 (or on another date mutually agreed upon by the Parties); provided that the
date specified may be no later than October 31, 2003.
5.2 LOCATION. The Closing will be held at the offices of O'Melveny &
▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ or such
other location as the Parties mutually agree.
SECTION 6: CONDITIONS TO THE PARTIES' OBLIGATIONS TO EFFECT THE CLOSING
6.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS TO EFFECT THE CLOSING. The
respective obligations of each Party to effect the Closing will be subject to
satisfaction, or to the extent permitted by applicable Legal Requirements the
waiver, of the following conditions:
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CONFIDENTIAL SETTLEMENT MATERIAL
(a) No judgment or order shall have been issued pursuant to a
Legal Proceeding, and no Legal Requirement shall have been enacted, entered,
promulgated, or enforced (and not repealed, superseded, lifted, or otherwise
made inapplicable), that restrains, enjoins, or otherwise prohibits the
consummation of any of the Transactions to be consummated at the Closing or at
the LMII Contribution Closing.
(b) All Governmental Approvals shall have been obtained, in form
and substance reasonably satisfactory to LSAT.
6.2 CONDITIONS TO OBLIGATIONS OF LSAT TO EFFECT THE CLOSING. The
obligations of LSAT to effect the Closing will be subject to satisfaction of the
following conditions unless waived by LSAT in accordance with applicable Legal
Requirements:
(a) Astrolink shall have entered into settlement and release
agreements with all holders of Miscellaneous Creditor Claims other than
Miscellaneous Creditor Claims included in the ViaSat Settlement Agreement and
the Motorola Settlement Agreement, except Miscellaneous Creditor Claims that are
less than $10,000 individually and $100,000 in the aggregate, on terms and
conditions satisfactory to LSAT in its reasonable discretion.
(b) Astrolink shall have received releases from all employees and
independent contractors of Astrolink other than releases relating to Employee
Claims that are in an amount less than $10,000 individually, and $100,000 in the
aggregate, on terms and conditions satisfactory to LSAT in its reasonable
discretion.
(c) LSAT shall have received funding for New Astrolink from
investors, third party sources of financing, firm capacity commitments from
prospective customers, or otherwise, satisfactory to LSAT in its sole
discretion.
6.3 LSAT CLOSING NOTICE. If the conditions in Section 6.1 have been
satisfied or waived by each Party, and LSAT determines in its sole discretion
that all conditions to its obligations to effect the Closing pursuant to Section
6.2 have been satisfied or waives such conditions, LSAT will deliver notice to
that effect to each other Party pursuant to Section 9.2 at any time prior to an
effective termination of this Agreement in accordance with Section 7 (the "LSAT
Closing Notice").
SECTION 7: TERMINATION
7.1 EVENTS OF TERMINATION. This Agreement may be terminated and the
closing with respect to the applicable Transactions may be abandoned at any time
prior to the Closing:
(a) by mutual written consent of the Parties (other than any of
the Astrolink Parties or New Astrolink); or
(b) by LSAT, at any time by delivering written notice of
termination to each other Party pursuant to Section 9.2 (a "Termination
Notice").
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CONFIDENTIAL SETTLEMENT MATERIAL
7.2 AUTOMATIC TERMINATION. This Agreement will be terminated and the
Closing with respect to the applicable Transactions will be abandoned if the
Closing has not occurred on or before October 31, 2003.
7.3 EFFECT OF TERMINATION. In the event of termination of this Agreement
and abandonment of the Closing with respect to the applicable Transactions
pursuant to Section 7.1 or Section 7.2, this Agreement will become null and void
and no Party will have any liability or any further obligation to any Person
under this Agreement arising hereunder or in connection with such Transactions
contemplated hereby, except that no Party will be relieved from liability for
any breach by it of this Agreement or of any Transaction Document to which it is
a party, and the Parties' respective obligations under this Section 7 will
remain in full force and effect in accordance with their terms. For avoidance of
doubt, termination of this Agreement will not terminate the Transaction
Documents previously executed and delivered by the parties thereto, including
the Settlement Agreements, the NGST Redemption Agreement, the TPZ Redemption
Agreement and the LSAT Plan B Agreement.
7.4 FCC AUTHORIZATIONS. Immediately upon termination of this Agreement
pursuant to Section 7.1 or Section 7.2, and in any event prior to the
consummation of the transactions contemplated by the LSAT Plan B Agreement,
Astrolink will abandon its FCC Authorizations.
7.5 PROCUREMENT CONTRACTS. Immediately upon termination of this
Agreement pursuant to Section 7.1 or Section 7.2, and in any event prior to the
consummation of the transactions contemplated by the LSAT Plan B Agreement,
Astrolink will terminate for convenience the New NGST Procurement Contract and
the New Lockheed ▇▇▇▇▇▇ Procurement Contract. Astrolink will have no obligations
under the New NGST Procurement Contract upon or after such termination for
convenience, except those relative to the relinquishment of its rights in and to
any work in progress thereunder. The Parties who are parties to such contracts
acknowledge that the terms of the New NGST Procurement Contract have not been
disclosed to the Lockheed ▇▇▇▇▇▇ Parties, and that the terms of the New Lockheed
▇▇▇▇▇▇ Procurement Contract have not been disclosed to NGST. LSAT, NGST and
Astrolink each represents and warrants that the New NGST Procurement Contract
provides that upon a termination of this Agreement pursuant to Section 7.1 or
7.2, Astrolink will have the right to terminate the New NGST Procurement
Contract for convenience with immediate effect by written notice to NGST and
without any other action (other than, as termination liability thereunder, the
relinquishment of rights to work in progress and the execution and delivery of
any documents reasonably requested by NGST to evidence Astrolink's
relinquishment of rights or claims in and to the work in progress), payment or
notice period and Astrolink will not have any further obligations under the New
NGST Procurement Contract (other than obligations with respect to
confidentiality and non-disclosure of the type that typically survive such an
agreement). Additionally, Astrolink represents and warrants that the New NGST
Procurement Contract provides that upon a termination of such agreement as
provided in the proceeding sentence in connection with a termination of this
Agreement pursuant to Section 7.1 or Section 7.2, Astrolink will have no right
or claim to or against the work in progress under the New NGST Procurement
Contract and the Old Lockheed ▇▇▇▇▇▇/NGST Subcontract.
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CONFIDENTIAL SETTLEMENT MATERIAL
7.6 ▇▇▇▇▇▇▇▇ LEASE AND ▇▇▇▇▇▇▇▇ PRODUCTS. If this Agreement is
terminated pursuant to Section 7.1 or Section 7.2, each of LMGT and Astro LLC
will use their respective commercially reasonable efforts to cause Astrolink to
fulfill its obligations to assign all its rights in the ▇▇▇▇▇▇▇▇ Products (as
defined in the TPZ Settlement Agreement) and the ▇▇▇▇▇▇▇▇ Lease (as defined in
the TPZ Settlement Agreement) pursuant to the TPZ Settlement Agreement as and
when such obligations are required to be performed. Upon any termination of this
Agreement pursuant to Section 7.1 or Section 7.2, Lockheed ▇▇▇▇▇▇ and LSAT each
agrees to release, and to cause each of its Affiliates to release, any and all
liens, claims and encumbrances on the ▇▇▇▇▇▇▇▇ Lease or any ▇▇▇▇▇▇▇▇ Product,
and to file any documents reasonably requested by TPZ to effect or evidence such
release.
7.7 EMPLOYEE TERMINATION. In the event of termination of this Agreement
pursuant to Section 7.1 or 7.2:
(a) Astrolink will provide notice of termination of employment to
each remaining employee of Astrolink, with each such termination of employment
effective not later than 60 days after termination of this Agreement (each such
date, an "Employee Termination Date"); provided, however, that Astrolink may
extend any Employee Termination Date up to an additional 30 days with respect to
the applicable employee. During the period of time from the date of termination
of this Agreement through the latest Employee Termination Date hereunder,
Lockheed ▇▇▇▇▇▇ will not cause Astrolink to take any action to reduce the
salaries or benefits of employees of Astrolink from those in effect immediately
prior to the date of this Agreement or to amend the Severance Plans or the
Severance Trust in any manner materially adverse to the current or former
employees of Astrolink.
(b) The members of Astrolink at the time of termination of this
Agreement will cause Astrolink to amend the Severance Plans, effective upon such
termination, to provide that Astrolink will pay the entire amount of severance
payments of any employee who remains employed by Astrolink at the date of such
amendment in a lump sum (including the initial lump sum and all monthly
payments) on the Employee Termination Date of such employee, and to eliminate
from each of the Severance Plans the provision which reserves the right to
amend, suspend or terminate such plan, until March 31, 2004. Further, Astrolink
will request that the trustee enter into an amendment to the Severance Trust
extending the earliest termination date thereof from December 31, 2003 to March
31, 2004, and will execute and deliver such amendment if acceptable to the
trustee.
(c) In accordance with applicable law, Astrolink and its
subsidiaries (domestic and foreign) (the "Astrolink Entities") will accept the
resignations of all officers and directors of the Astrolink Entities who are
current or former Astrolink employees, and LMGT will cause the Astrolink
Entities to promptly replace such current or former employees as officers and/or
directors of such Astrolink Entities.
SECTION 8: SURVIVAL; INDEMNIFICATION
8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS.
The respective representations, warranties, covenants, and agreements of the
Parties contained in this
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CONFIDENTIAL SETTLEMENT MATERIAL
Agreement or in any of the Transaction Documents delivered prior to or at the
Closing will survive the execution and delivery of this Agreement,
notwithstanding any investigation made or information obtained by the other
Parties, and also will survive the Closing and the LMII Contribution Closing,
except to the extent that any Transaction Document specifically provides
otherwise.
8.2 GENERAL INDEMNIFICATION. Except for claims covered under
Section 8.3, each Party will indemnify and hold harmless the other Parties
(other than another Party that is an Affiliate of such Party) (and their
directors, officers, employees, and Affiliates) from and against and with
respect to, and shall reimburse such Parties and their directors, officers,
employees, and Affiliates for, any and all losses, liabilities, obligations, and
damages ("Losses") resulting from, based upon, arising out of, or otherwise in
respect of, and all claims, actions, suits, proceedings, demands, judgments,
assessments, fines, interest, penalties, costs, and expenses (including
reasonable attorneys' fees and expenses) ("Claims") incident or relating to or
resulting from any untrue representation, breach of warranty, or breach or
nonfulfillment of any covenant or agreement made herein, or in any Transaction
Document other than the New Lockheed ▇▇▇▇▇▇ Procurement Contract and the New
NGST Procurement Contract, or certificate delivered pursuant hereto, by the
Party from whom indemnification is claimed (the "Indemnifying Party").
8.3 SPECIFIC INDEMNIFICATION. Except as specifically provided otherwise
herein or in any Transaction Document, from and after the Closing, New Astrolink
and LSAT, jointly and severally, will indemnify and hold harmless Astrolink,
LMGT, TSA, NGST, and Astro LLC from and against and with respect to, and will
reimburse LMGT, TSA, NGST, and Astro LLC and their directors, officers,
employees, and Affiliates for any and all Losses resulting from, based upon,
arising out of, or otherwise in respect to, and all Claims incident or relating
to or resulting from any of the Assumed Liabilities.
8.4 INDEMNIFICATION PROCEDURES The procedure for indemnification will be
as follows:
(a) The Party claiming indemnification (the "Claimant") will
promptly give written notice to the Indemnifying Party of any pending or
threatened claim, action, suit, investigation, or proceeding brought by a third
party (a "Third Party Action"), specifying (i) the factual basis for such claim,
including copies of any documents relating to the claim, and (ii) the amount of
the claim. Such notice will be given by the Claimant within ten Business Days
after written notice of the assertion or commencement thereof was given to the
Claimant, but failure to give timely notice will not affect the indemnities
given hereunder except to the extent that such failure actually prejudices the
Indemnifying Party in defending against any such claim.
(b) If a Claimant gives notice to the Indemnifying Party of a
Third Party Action, the Indemnifying Party will be entitled to participate
therein and, if it so desires, to assume the defense thereof with counsel
reasonably satisfactory to the Claimant and, after notice from the Indemnifying
Party to the Claimant of its election to assume the defense thereof, except as
provided below, the Indemnifying Party will not be liable to such Claimant under
this Section 8.4 for any fees of other counsel or any other expenses, in each
case subsequently incurred by such Claimant in connection with the defense
thereof, other than reasonable costs of
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CONFIDENTIAL SETTLEMENT MATERIAL
investigation. Notwithstanding an Indemnifying Party's election to assume the
defense of a Third Party Action, the Claimant will have the right to employ
separate counsel and to participate in the defense of such Third Party Action,
and the Indemnifying Party will bear the reasonable fees, costs and expenses of
such separate counsel if: (i) the use of counsel chosen by the Indemnifying
Party to represent the Claimant would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
Third Party Action include both the Indemnifying Party and the Claimant, and the
Claimant reasonably concludes that there may be legal defenses available to it
which are different from or additional to those available to the Indemnifying
Party (in which case the Indemnifying Party will not have the right to assume
the defense of such claim on the Claimant's behalf), (iii) the Indemnifying
Party has not employed counsel reasonably satisfactory to the Claimant to
represent the Claimant within a reasonable time after notice of the Third Party
Action, or (iv) the Indemnifying Party authorizes the Claimant to employ
separate counsel at the Indemnifying Party's expense. If an Indemnifying Party
assumes the defense of a claim, no compromise or settlement thereof may be
effected by the Indemnifying Party without the Claimant's written consent unless
(x) there is no finding or admission of any violation of law by the Claimant and
no effect on any other claims that may be made against the Claimant, (y) there
is a full and unconditional release of the Claimant, and (z) the sole relief
sought is monetary damages that are to be paid in full by the Indemnifying
Party.
(c) If any Claimant should have a claim against any Indemnifying
Party hereunder that does not involve a Third Party Action, the Claimant will as
promptly as is practical notify the Indemnifying Party of such claim, describing
such claim, the amount thereof (if known), and the method of computation of the
amount of the claim, all with reasonable particularity. The failure to give any
such notice will not relieve the Indemnifying Party of its obligations hereunder
except to the extent that such failure results in actual material prejudice to
the Indemnifying Party. Upon the giving of such written notice as aforesaid, the
Claimant will have the right to enforce its rights under this Section 8.
(d) The provisions of this Section 8 are intended to be for the
benefit of, and will be enforceable by, each Claimant and its successors in
interest.
SECTION 9: MISCELLANEOUS
9.1 EXPENSES. Whether or not the Transactions are consummated, each
Party will bear its own expenses, including the fees and expenses of any
attorneys, accountants, investment bankers, or other Persons engaged by it,
incurred in connection with this Agreement, the Transaction Documents, or the
Transactions.
9.2 NOTICES. All notices, requests, demands, or other communications
required by or otherwise with respect to this Agreement or any Transaction
Document must be in writing and will be deemed to have been duly given to any
Party when delivered personally (by courier service or otherwise), when
delivered by telecopy and confirmed by return telecopy, or upon receipt after
being mailed by first-class mail, postage prepaid and return receipt requested
in each case to the applicable addresses set forth below:
18
CONFIDENTIAL SETTLEMENT MATERIAL
To any
Astrolink Party ASTROLINK International LLC
or New Astrolink: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President & Chief
Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
ASTROLINK International LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Vice President &
General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To any Lockheed
▇▇▇▇▇▇ Party: Lockheed ▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President & Treasurer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Lockheed ▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Senior Vice President & General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to:
O'Melveny & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
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CONFIDENTIAL SETTLEMENT MATERIAL
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To NGST: Northrop Grumman Space & Mission Systems Corp.,
by and through Northrop Grumman Space Technology
sector
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Strategic
Development
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Northrop Grumman Space & Mission Systems Corp.,
by and through Northrop Grumman Space Technology
sector
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To any
LSAT Party: Liberty Satellite & Technology, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Acting President & Chief
Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To Liberty: Liberty Media Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President and
Chief Operating Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
20
CONFIDENTIAL SETTLEMENT MATERIAL
With a copy to:
Liberty Media Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Senior Vice President
and General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To any
TPZ Party: Telespazio S.p.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, General Counsel
Fax: ▇▇▇-▇▇-▇▇-▇▇▇▇-▇▇▇▇
With a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as such Party may have designated by notice so given to
each other Party.
9.3 AMENDMENTS, WAIVERS, ETC. This Agreement or any Transaction Document
may be amended, changed, supplemented, waived, or otherwise modified only by an
instrument in writing signed by the Party against whom enforcement is sought.
9.4 PARTIES OBLIGATED AND BENEFITED. This Agreement and the Transaction
Documents will be binding upon, and will inure to the benefit of and be
enforceable by, the Parties and their respective successors and assigns,
provided that, except as otherwise expressly set forth in this Agreement or any
Transaction Document, neither the rights nor the obligations of any Party may be
assigned or delegated without the prior written consent of the other Parties,
and any such assignment or purported assignment without such consent will be
void.
9.5 ENTIRE AGREEMENT. Except as otherwise provided herein, this
Agreement and the Transaction Documents constitute the entire agreement and
understanding among the Parties relating to the subject matter hereof and
supersede all prior agreements and understandings relating to such subject
matter, including the Letter of Intent dated April 9, 2002, and Term Sheets
attached thereto as Exhibits A and B. There are no representations, warranties,
or covenants by the Parties relating to such subject matter other than those
expressly set forth in this Agreement or the Transaction Documents and any
writings expressly required hereby or thereby.
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CONFIDENTIAL SETTLEMENT MATERIAL
9.6 SPECIFIC PERFORMANCE. The Parties acknowledge that money damages are
not an adequate remedy for violations of this Agreement or any Transaction
Document and that any Party may, in its sole discretion, apply to a court of
competent jurisdiction for specific performance or injunctive or such other
relief as such court may deem just and proper in order to enforce this Agreement
or any Transaction Document or prevent any violation hereof or thereof and, to
the extent permitted by applicable Legal Requirements, each Party waives any
objection to the imposition of such relief.
9.7 REMEDIES CUMULATIVE. All rights, powers, and remedies provided under
this Agreement or any Transaction Document or otherwise available in respect
hereof or thereof at law or in equity will be cumulative and not alternative,
and the exercise or beginning of the exercise of any thereof by any Party will
not preclude the simultaneous or later exercise of any other such right, power,
or remedy by such Party.
9.8 NO WAIVER. The failure of any Party to exercise any right, power, or
remedy provided under this Agreement or any Transaction Document or otherwise
available in respect hereof or thereof at law or in equity, or to insist upon
compliance by any other Party with its obligations hereunder or thereunder, and
any custom or practice of the Parties at variance with the terms hereof or
thereof, will not constitute a waiver by such Party of its right to exercise any
such or other right, power, or remedy or to demand such compliance.
9.9 NO THIRD PARTY BENEFICIARIES. Neither this Agreement nor any
Transaction Document is intended to be for the benefit of and will not be
enforceable by any Person who is not a party to this Agreement or such
Transaction Document, as applicable.
9.10 JURISDICTION. Except as may be otherwise specifically provided in
any Transaction Document, each Party hereby irrevocably submits to the
non-exclusive jurisdiction of the federal courts of the United States located in
the City of
New York,
New York, U.S.A., in any action, suit, or proceeding
arising in connection with this Agreement and the Transaction Documents, and
waives (and agrees not to assert) any objection based on FORUM NON CONVENIENS or
any other objection to venue therein; provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this Section 9.10 and will
not be deemed to be a general submission to the jurisdiction of such courts or
in the State of
New York, U.S.A. other than for such purpose. Each Party hereby
waives any right to a trial by jury in connection with any such action, suit, or
proceeding. Service of process with respect to any such action, suit, or
proceeding may be made upon any Party by mailing a copy thereof by registered or
certified mail, postage prepaid, to such Party at its address as provided in
Section 9.2, provided that service of process also may be accomplished in any
other manner permitted by applicable Legal Requirements.
9.11 GOVERNING LAW. Except as may be otherwise specifically provided in
any Transaction Document, this Agreement and the Transaction Documents and all
disputes hereunder will be governed by and construed and enforced in accordance
with the internal laws of the State of
New York, U.S.A., applicable to contracts
made and to be performed within that State.
22
CONFIDENTIAL SETTLEMENT MATERIAL
9.12 GOVERNING LANGUAGE. This Agreement and the Transaction Documents
will be executed in English only, and no translation thereof into any other
language will be binding on the Parties or consulted in order to interpret this
Agreement or any Transaction Document.
9.13 HEADINGS. The names assigned this Agreement and the Transaction
Documents and the section captions used herein and therein are for convenience
of reference only and will not affect the interpretation or construction of this
Agreement or any Transaction Document. Unless otherwise specified, (a) the terms
"hereof," "herein" and similar terms refer to this Agreement or the applicable
Transaction Document as a whole and (b) references herein or therein to Sections
refer to sections of this Agreement or the applicable Transaction Document.
9.14 COUNTERPARTS. This Agreement and any Transaction Document may be
executed in any number of counterparts, each of which will be deemed to be an
original, but all of which together will constitute one instrument. Each
counterpart may consist of a number of copies each signed by less than all, but
together signed by all, the Parties. A signature on a counterpart copy of this
Agreement or any Transaction Document transmitted in facsimile form shall
constitute an original executed copy of the same.
9.15 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal, or incapable of being enforced by applicable law or public
policy, all other terms and provisions of this Agreement will nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any Party.
9.16 FURTHER ASSURANCES. Each of the Parties will execute and deliver,
without additional consideration, such other documents and instruments of
further assurance as may be reasonably necessary to give effect to the
provisions of this Agreement and the Transaction Documents. Each Party will act
in good faith to take, and to cause any Person that is an Affiliate of such
Party that such Party controls (as defined in the definition of Affiliate) but
that is not a Party to take, all actions reasonably required to cause the
Transactions to be consummated, including executing any Transaction Documents,
in accordance with the terms and conditions of this Agreement if such action by
such Party or any such Affiliate would be appropriate to carry out the purpose
and intent of the Transactions and this Agreement.
9.17 ATTORNEYS' FEES. In the event of any action, suit, or proceeding
based on or arising out of any alleged breach by any Party of any
representation, warranty, covenant, or agreement contained in this Agreement or
in any Transaction Document, the prevailing Party or Parties will be entitled to
recover reasonable attorneys' fees and other costs associated with such action,
suit, or proceeding from any Party determined to have breached any provision of
this Agreement or any Transaction Document.
9.18 TIME. Time is of the essence under this Agreement and the
Transaction Documents. If the giving of any notice or the performance of any act
required or permitted under this Agreement or any Transaction Document falls on
a day that is not a Business Day, the time for giving such notice or performing
such act will be extended to the next succeeding Business Day.
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CONFIDENTIAL SETTLEMENT MATERIAL
9.19 CONSTRUCTION. This Agreement and the Transaction Documents have been
negotiated by the Parties and their respective legal counsel, and legal or
equitable principles that might require the construction of this Agreement or
any Transaction Document or any provision of this Agreement or any Transaction
Document against the Party responsible for drafting this Agreement or any
Transaction Document will not apply in any construction or interpretation of
this Agreement or any Transaction Document.
9.20 CONSENTS OF PARTIES. The execution of this Agreement by each of
Astro LLC, LMGT, NGST, and TSA (a) constitutes the consent of such Party to all
of the Transactions, pursuant to section 6.6(b) of the LLC Agreement, and (b)
constitutes an acknowledgment and agreement by such Party that the provisions of
section 10.1 of the LLC Agreement shall not apply after the Closing to New
Astrolink or Astro LLC with respect to any Confidential Information of
Astrolink. The execution of this Agreement by each Party constitutes the consent
of such Party to all of the Transactions to the extent that the consent of such
Party would be required with respect to any of the Transactions pursuant to any
contract or other agreement between or among any of the Parties, including
contracts and other agreements covered by any of the Settlement Agreements. The
execution of this Agreement by each of LMGT and TSA constitutes the consent of
such Party to (i) any amendments to the LSAT/Astrolink Interim Credit Agreement
in addition to the Credit Agreement Amendment that may be proposed by LSAT, in
its sole discretion, as long as such amendments solely increase LSAT's
commitment thereunder, (ii) all borrowings under any such amendments and (iii)
the uses for such borrowed funds designated by LSAT in its sole discretion.
(SIGNATURE PAGE FOLLOWS)
24
CONFIDENTIAL SETTLEMENT MATERIAL
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the Parties set forth below as of the date first above written.
LIBERTY SATELLITE & TECHNOLOGY, INC.
By:
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Acting President
and Chief Financial Officer
LSAT ASTRO LLC
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
LSAT ASTRO HOLDING, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
LIBERTY MEDIA CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
LOCKHEED ▇▇▇▇▇▇ CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(Signature page #1 to
Master Agreement)
CONFIDENTIAL SETTLEMENT MATERIAL
LOCKHEED ▇▇▇▇▇▇ COMMERCIAL
LAUNCH SERVICES, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
LOCKHEED ▇▇▇▇▇▇ COMMERCIAL SPACE
COMPANY, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
LOCKHEED ▇▇▇▇▇▇ GLOBAL
TELECOMMUNICATIONS, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
LOCKHEED-KHRUNICHEV-ENERGIA,
INTERNATIONAL, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
LOCKHEED ▇▇▇▇▇▇ AUSTRALIA PTY
LIMITED
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(Signature page #2 to
Master Agreement)
CONFIDENTIAL SETTLEMENT MATERIAL
LOCKHEED ▇▇▇▇▇▇ INVESTMENTS INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
COMSAT CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
NORTHROP GRUMMAN SPACE & MISSION
SYSTEMS CORP., by and through Northrop
Grumman Space Technology sector
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
TELESPAZIO S.P.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
TELESPAZIO LUXEMBOURG, S.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(Signature page #3 to
Master Agreement)
CONFIDENTIAL SETTLEMENT MATERIAL
TELESPAZIO NORTH AMERICA, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
ASTROLINK INTERNATIONAL LLC
By:
--------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
and Chief Financial Officer
ASTROLINK ITALIA - S.R.L.
By:
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
ASTROLINK AUSTRALIA PTY LIMITED
By:
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By:
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Director
ASTROLINK HOLDING LLC
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(Signature page #4 to
Master Agreement)
CONFIDENTIAL SETTLEMENT MATERIAL
APPENDIX A
DEFINITIONS
A.1 DEFINED TERMS. The following terms will have the following meanings
for all purposes of this Agreement and the Transaction Documents except as
otherwise specifically provided in any Transaction Document:
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by, or under common control with such Person, with
"control" for such purpose meaning the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities or voting interests,
by contract, or otherwise.
"Business Day" means any day other than a Saturday, Sunday, or national
holiday in either the United States or Italy.
"Closing" means the consummation of the Transactions specified in Section
2.14 through 2.20 of this Agreement and the other Transactions contemplated by
this Agreement to occur substantially simultaneously therewith.
"Code" means the United States Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder.
"FCC" means the United States Federal Communications Commission.
"FCC Authorizations" means all licenses, permits, construction permits, and
other authorizations issued by the FCC in connection with the business and
operations of the Astrolink Parties.
"Governmental Authority" means (a) the United States of America, (b) any
state, commonwealth, territory, or possession of the United States of America
and any political subdivision thereof (including counties, municipalities, and
the like), (c) any foreign (as to the United States of America) sovereign entity
and any political subdivision thereof, or (d) any agency, authority, or
instrumentality of any of the foregoing, including any court, tribunal,
department, bureau, commission, or board.
"Initial Interim Loans" means any advances made to Astrolink by LSAT,
Lockheed ▇▇▇▇▇▇, and NGST pursuant to the Loan Agreement dated as of April 30,
2002, among LSAT, Lockheed ▇▇▇▇▇▇, NGST, and Astrolink.
"Legal Proceeding" means any judgment or order outstanding, or any action,
suit, complaint, proceeding, or investigation by or before any Governmental
Authority or any arbitrator, pending or threatened.
"Legal Requirements" means any applicable statute, ordinance, code, law,
rule, regulation, order, or other requirement, standard, or procedure enacted,
adopted, or applied by
A-1
CONFIDENTIAL SETTLEMENT MATERIAL
any Governmental Authority, including judicial decisions or administrative
actions or pronouncements applying common law or interpreting any other Legal
Requirement.
"LLC Agreement" means the Amended and Restated Limited Liability Agreement
of Astrolink dated as of December 13, 1999.
"LSAT/Astrolink Interim Credit Agreement" means the Credit Agreement dated
as of September 30, 2002, between Astrolink, as Borrower, and LSAT, as Lender,
as supplemented, modified, amended, restated, or extended from time to time.
"LSAT/Astrolink Interim Security Agreement" means the Security Agreement,
dated as of September 30, 2002, among Astrolink, AIL Srl, Astrolink Global
Services Corporation, Astrolink Worldtrade LLC, Astrolink Leasing LLC and LSAT,
as supplemented, modified, amended, restated, or extended from time to time.
"LSAT Subsequent Interim Loans" means any advances made to Astrolink by
LSAT pursuant to the LSAT/Astrolink Interim Credit Agreement.
"Membership Interests" means the ownership interests in Astrolink, as
defined in the LLC Agreement.
"Parties" or a "Party" means the LSAT Parties, Liberty, the Lockheed ▇▇▇▇▇▇
Parties, NGST, and the TPZ Parties, or any one or more of them, as the context
requires, and includes Astrolink and/or the Astrolink Parties and/or New
Astrolink, as the context requires.
"Person" means any natural person, corporation, limited liability company,
partnership, trust, unincorporated organization, association, Governmental
Authority, or other entity.
"Section 351 Transaction" means a transaction intended to qualify for
nonrecognition of gain or loss under Section 351(a) of the Code, except to the
extent that gain is required to be recognized pursuant to Section 351(b) of the
Code.
"Tax" means any income, corporation, gross receipts, profits, gains,
capital stock, capital duty, franchise, business, license, payroll, withholding,
social security, unemployment, disability, property, wealth, welfare, stamp,
environmental, transfer, excise, occupation, sales, use, value added,
alternative minimum, estimated or other similar Tax (including any fee,
assessment or other charge in the nature of any Tax) imposed by any Governmental
Authority (whether national, federal, state, local, municipal, foreign or
otherwise) or political subdivision thereof, and any interest, penalties,
addition to Tax or additional amounts in respect of the foregoing.
"Transaction Documents" means this Agreement and all other documents and
instruments to be executed and delivered in connection with the Transactions,
specifically including those attached as Exhibits hereto or as exhibits to such
Exhibits, the New Lockheed ▇▇▇▇▇▇ Procurement Contract and the New NGST
Procurement Contract.
A-2
CONFIDENTIAL SETTLEMENT MATERIAL
"Transactions" means all of the transactions contemplated by this Agreement
and the Transaction Documents.
"Units" means the units that have been issued to the Parties by Astrolink
representing the Membership Interests, as defined in the LLC Agreement.
A.2 OTHER DEFINITIONS. The following terms will have the meanings for
all purposes of this Agreement and the Transaction Documents set forth in the
Section reference provided next to such term:
DEFINITION SECTION REFERENCE
---------- -----------------
AIL Australia Preamble
AIL Srl Preamble
Assumed Liabilities 2.17
Astro LLC Preamble
Astrolink Preamble
Astrolink Entities 7.7
Astrolink Parties Preamble
Claimant 8.4(a)
Claims 8.2
Comsat Preamble
Confidential Information 4.3(a)
Credit Agreement Amendment 2.1
Employee Termination Date 7.7
Evidian 2.7
Evidian License Agreement 2.7
Evidian Settlement Agreement 2.7
Excess Settlement Cash 2.17
Execution Date Preamble
Governmental Approvals 3.1(c)
Indemnifying Party 8.2
Liberty Preamble
Liberty Contributed Property 2.18(a)
Liberty Taxpayer 4.5
Liberty 10% Value Requirement 2.18(a)
LKE Preamble
LMCLS Preamble
A-3
CONFIDENTIAL SETTLEMENT MATERIAL
DEFINITION SECTION REFERENCE
---------- -----------------
LMCSC Preamble
LMGT Preamble
LMII Preamble
LMII Common Stock 2.16(a)
LMII Contribution Agreement 2.16(a)
LMII Contribution Closing 2.16(a)
LMII Preferred Stock 2.16(a)
LMPTY Preamble
Lockheed ▇▇▇▇▇▇ Preamble
Lockheed ▇▇▇▇▇▇ Contributed Property 2.16(a)
Lockheed ▇▇▇▇▇▇ Parties Preamble
Lockheed ▇▇▇▇▇▇ TPZ Redemption Note 2.4
Losses 8.2
LSAT Preamble
LSAT Cash 2.18(a)
LSAT Closing Notice 6.3
LSAT Contribution Agreement 2.18(a)
LSAT Parties Preamble
LSAT Plan B Agreement 2.12
LSAT Stock 2.18(a)
LSAT Subsidiary Preamble
Miscellaneous Creditor Claims 3.2(a)
Motorola 2.3
Motorola Settlement Agreement 2.3
New Astrolink Preamble
New Lockheed ▇▇▇▇▇▇ Procurement Contract 2.9
New NGST Procurement Contract 2.8(c)
NGST Preamble
NGST Redemption 2.5
NGST Redemption Agreement 2.5
Old Lockheed ▇▇▇▇▇▇/NGST Subcontract 2.8(a)
Party Creditors 3.2(a)
Required Consents 3.1(d)
A-4
CONFIDENTIAL SETTLEMENT MATERIAL
DEFINITION SECTION REFERENCE
---------- -----------------
Scheduled Creditor Claims 2.17
Settlement Agreements 3.2(c)
Severance Plans 2.17
Severance Trust 2.17
Termination Notice 7.1(b)
Third Party Action 8.4(a)
TNA Preamble
TPZ Preamble
TPZ Parties Preamble
TPZ Redemption 2.11
TPZ Redemption Agreement 2.11
TPZ Redemption Date 2.11
TPZ Settlement Agreement 2.6(a)
TPZ Settlement Funds 4.8
TPZ Vendor Contracts 2.6(a)
Transfer Taxes 4.5
TSA Preamble
Unit Incentive Plan 2.17
ViaSat 2.2
ViaSat Settlement Agreement 2.2
A-5
LIST OF EXHIBITS
Exhibit A-1 Amendment No. 4 to LSAT/Astrolink Interim Credit Agreement
Exhibit A-2 Amendment No. 2 to LSAT/Astrolink Interim Security Agreement
Exhibit B ViaSat Settlement Agreement
Exhibit C Motorola Settlement Agreement
Exhibit D RESERVED
Exhibit E Lockheed ▇▇▇▇▇▇ TPZ Redemption Note
Exhibit F NGST Redemption Agreement
Exhibit G Second Amended and Restated Limited Liability Company
Agreement of Astrolink
Exhibit H TPZ Settlement Agreement
Exhibit I Settlement and Release Agreement among the designated Lockheed
▇▇▇▇▇▇ Parties, NGST, and the TPZ Parties
Exhibit J Evidian Settlement Agreement
Exhibit K Settlement and Release Agreement between Lockheed ▇▇▇▇▇▇ and
NGST
Exhibit L Assignment and Assumption Agreement among Lockheed ▇▇▇▇▇▇ and
Astrolink
Exhibit M RESERVED
Exhibit N Settlement and Release Agreement between Astrolink, New
Astrolink and NGST
Exhibit O Settlement and Release Agreement among the Astrolink Parties,
New Astrolink, and the designated Lockheed ▇▇▇▇▇▇ Parties
Exhibit P RESERVED
Exhibit Q Settlement and Release Agreement among Astrolink, New
Astrolink Lockheed ▇▇▇▇▇▇, LMGT, NGST, Astro LLC, TSA,
Liberty, LSAT, TPZ and LMGT Astro License LLC
Exhibit R TPZ Redemption Agreement
Exhibit S Third Amended and Restated Limited Liability Company Agreement
of Astrolink
Exhibit T LSAT Plan B Agreement
Exhibit U Fourth Amended and Restated Limited Liability Company
Agreement of Astrolink
Exhibit V LMII Contribution Agreement
Exhibit W Assignment and Assumption Agreement between Astrolink and New
Astrolink
Exhibit X LSAT Contribution Agreement
Exhibit Y Assignment and Assumption Agreement between LSAT and LSAT
Subsidiary
Exhibit Z Agreement Regarding Warrants and Warrant Shares
