Exhibit 99.5
INVESTOR RIGHTS AGREEMENT
This INVESTOR RIGHTS AGREEMENT (this "Agreement"), dated as of April
22, 2005, is entered into by and among XXXXXX NETWORK SYSTEMS, LLC, a Delaware
limited liability company (the "Company"), the DTVG Investor (as defined
herein) and the SkyTerra Investor (as defined herein).
WHEREAS, The DIRECTV Group, Inc. ("DTVG"), Xxxxxx Network Systems,
Inc. ("HNS"), SkyTerra Communications, Inc. ("SkyTerra") and the Company have
entered into a Contribution and Membership Interest Purchase Agreement, dated
as of December 3, 2004 (as amended, the "Contribution Agreement"), pursuant to
which, among other things, (i) HNS, contributed to the Company, and the
Company acquired and accepted from HNS certain assets, and assumed certain
liabilities associated therewith, all on the terms and conditions set forth
therein and (ii) HNS sold to SkyTerra and SkyTerra purchased from HNS, 50% of
the membership interests in the Company;
WHEREAS, HNS and SkyTerra have entered into an Amended and Restated
Limited Liability Company Agreement of the Company, of even date herewith (the
"LLC Agreement"), pursuant to which each Investor owns a 50% LLC Interest (as
defined below) in the Company;
WHEREAS, the Company and the Investors desire to provide for certain
arrangements with respect to (i) tag along rights, (ii) drag-along rights,
(iii) registration rights and (iv) other related matters; and
WHEREAS, following the closing of the transactions contemplated by
the Contribution Agreement, SkyTerra may create a wholly owned subsidiary and
assign its rights and obligations hereunder to such subsidiary (the "Drop
Down");
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
1.1 "Commission" means the Securities and Exchange
Commission, or any other Federal agency at the time administering the
Securities Act.
1.2 "DTVG Investor(s)" means HNS, and any Persons to whom
the rights granted under this Agreement are transferred by HNS, its successors
or assigns pursuant to Section 5 hereof. If more than one DTVG Investor
exists, any action requiring the consent, approval or exercise of the DTVG
Investors shall be consented to or approved or exercised by the DTVG Investors
who own a majority of the Class A Units held by all DTVG Investors.
1.3 "Exchange Act" means the Securities Exchange Act of
1934, as amended, or any similar Federal statute, and the rules and
regulations of the Commission issued under such Act, as they each may, from
time to time, be in effect.
1.4 "Fairness Opinion" means a written opinion from a
nationally-recognized investment bank reasonably acceptable to the SkyTerra
Investors and the DTVG Investors opining that the Basic Sales Terms of the
Drag Along Transaction are fair to the Investors.
1.5 "Investors" means the SkyTerra Investor(s) and the DTVG
Investor(s).
1.6 "LLC Interest" means as to any Investor, all of the
interest of that Investor in the Company, including without limitation, such
Investor's (i) right to a distributive share of the income, gain, losses and
deductions of the Company in accordance with the LLC Agreement, and (ii) right
to a distributive share of LLC Assets. In the event that the Managing Member
effects the transactions contemplated by Section 9.5 of the LLC Agreement, the
equity interests issued in connection therewith shall be deemed to be an "LLC
Interest" hereunder.
1.7 "Qualified Initial Public Offering" means the first
underwritten public offering of the equity of the Company on a firm commitment
basis covering the offer and sale of equity of the Company for the account of
the Company in which the aggregate public offering price (before deduction of
underwriters' discounts and commissions) equals or exceeds $50 million
underwritten by a reputable nationally recognized underwriting firm pursuant
to which the equity interests will be quoted on the NASDAQ National Market or
listed or quoted on the New York Stock Exchange or another securities exchange
acceptable to the Investors.
1.8 "Registrable Securities" means (i) the LLC Interests and
(ii) any other equity securities of the Company issued in respect of the
interests described in clause (i), including without limitation because of a
conversion of the Company from a limited liability company to, or merger of
the Company with, a corporation in accordance with Section 9.5 of the LLC
Agreement or other reclassifications, recapitalizations or similar events;
provided, however, that such interests that are Registrable Securities shall
cease to be Registrable Securities (x) upon any sale pursuant to a
Registration Statement, or (y) with respect to an Investor, when such Investor
is eligible to sell, transfer or otherwise convey all of such Investor's
Registrable Securities pursuant to Rule 144 under the Securities Act without
regard to volume and holding period limitations.
1.9 "Registration Statement" means a registration statement
filed by the Company with the Commission for a public offering and sale of
equity securities of the Company (other than a registration statement on Form
S-8 or Form S-4, or their successors, any registration statement covering only
securities proposed to be issued in exchange for securities or assets of
another corporation or a registration statement on Form S-3 solely for the
purpose of registering shares issued in a non-underwritten offering in
connection with a merger, combination or acquisition).
1.10 "Securities Act" means the Securities Act of 1933, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
1.11 "SkyTerra Investor(s)" means SkyTerra, and any Persons
to whom the rights granted under this Agreement are transferred by SkyTerra,
its successors or assigns pursuant to Section 5 hereof. If more than one
SkyTerra Investor exists, any action requiring the consent, approval or
exercise of the SkyTerra Investors shall be consented to or approved or
exercised by the SkyTerra Investors who own a majority of the Class A Units
held by all SkyTerra Investors. After delivery of notice to the DTVG
Investor(s) of the Drop Down, the SkyTerra Sub shall become the SkyTerra
Investor hereunder.
1.12 "SkyTerra Sub" - A wholly owned subsidiary of SkyTerra
formed for the purpose of effecting the Drop Down.
1.13 "Unaffiliated Buyer" means an unrelated and
unaffiliated third party in which the SkyTerra Investors, their respective
Affiliates, Apollo Management, L.P., any investment fund managed by Apollo
Management, L.P., and any direct or indirect portfolio company of any
investment fund managed by Apollo Management, L.P. do not own in the aggregate
(or will not own in the aggregate, following a Drag-Along Transaction, except
as a result of equity interests issued in consideration of, or retained in
connection with, a Drag-Along Transaction) a direct or indirect equity
interest of (i) greater than ten percent (10%) or (ii) if the Sky Terra
Investors deliver a Fairness Opinion to the DTVG Investors in connection with
the Drag-Along Transaction, greater than twenty-five percent (25%).
Capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings given them in the LLC Agreement.
2. Tag Along Rights.
2.1 General. An Investor desiring to transfer any LLC
Interest (a "Selling Investor") shall not be permitted to transfer (other than
to a Permitted Transferee) such LLC Interest to any Person, unless the terms
and conditions of such transfer shall include an offer by the third-party
transferee to the other Investors (each other Investor who wishes to sell LLC
Interests, a "Tag Along Participant"), at a price calculated using the same
methodology used to calculate the price of such Selling Investor's LLC
Interest proposed to be transferred (such price, a "Tag Along Price") and
otherwise on the same terms and conditions as such Selling Investor has agreed
to sell such LLC Interest, to include in the transfer to the third party
transferee a portion of LLC Interests held by each Tag Along Participant
determined in accordance with this Section 2.
2.2 Obligation of Transferee to Purchase. The third-party
transferee of the Selling Investor shall purchase from each Tag Along
Participant who accepts such offer the portion of such Tag Along Participant's
aggregate LLC Interest that such Tag Along Participant desires to sell,
provided that such portion does not exceed the Maximum Tag Along Portion (as
defined below) attributable to such Tag Along Participant and, if such portion
exceeds such Maximum Tag Along Portion, the third-party transferee shall
purchase from such Tag Along Participant only the Maximum Tag Along Portion.
For purposes hereof, the term "Maximum Tag Along Portion" attributable to a
Tag Along Participant means an amount equal to (a) the total number of Units
proposed to be transferred to the third-party transferee by the Selling
Investor and all Tag Along Participants multiplied by (b) a fraction, the
numerator of which is the number of Units held by such Tag Along Participant
and the denominator of which is the number of Units held by the Selling
Investor and all Tag Along Participants.
2.3 Notice. In the event the Selling Investor proposes to
transfer any LLC Interest in a transaction subject to this Section 2, it shall
notify, or cause to be notified, in writing, each Investor of each such
proposed transfer. Such notice (the "Transfer Notice") shall be given not more
than 60 nor less than 20 calendar days prior to the proposed sale date and set
forth: (i) the name of the transferee and the LLC Interest proposed to be
transferred, (ii) the proposed amount and form of consideration and terms and
conditions of payment offered by the transferee (the "Transferee Terms"),
(iii) that the transferee has been informed of the "tag along right" provided
for in this Section 2, and has agreed to purchase LLC Interests from each Tag
Along Participant in accordance with the terms hereof, and (iv) the proposed
sale date.
2.4 Exercise. The tag-along right may be exercised by each
Tag-Along Participant by delivery of a written notice to the Selling Investor
(the "Tag Along Notice") within 15 calendar days following receipt of the
Transfer Notice. The Tag Along Notice shall state the portion of its aggregate
LLC Interest that such Tag Along Participant wishes to include in such
transfer to the third-party transferee. Upon the giving of a Tag Along Notice,
such Tag Along Participant shall be entitled and obligated to sell the portion
of its LLC Interest set forth in the Tag Along Notice (but not in excess of
the Maximum Tag Along Portion), to the third-party transferee on the
Transferee Terms; provided, however, the Selling Investor shall not consummate
the sale of any LLC Interest offered by it if the third-party transferee does
not purchase all LLC Interests which each Tag Along Participant is entitled to
and desires to sell pursuant hereto. After expiration of the 15 calendar-day
period referred to above, if the provisions of this Section 2 have been
complied with in all material respects, the Selling Investor and each Tag
Along Participant that delivered a Tag Along Notice shall transfer the LLC
Interests to the transferee on the Transferee Terms on the sale date proposed
in the Transfer Notice (or such other date within thirty (30) days of such
proposed sale date as may be agreed among the participants in such transfer).
2.5 Several Liability. Anything to the contrary contained
herein notwithstanding, the Selling Investor agrees to use its reasonable good
faith efforts to seek to ensure that the applicable Transferee Terms provide
for several, and not joint, liability, with respect to the indemnification and
comparable obligations contained within such Transferee Terms.
3. Drag-Along Rights.
3.1 Drag-Along Transaction. At any time after the second
anniversary of the date of this Agreement, if the SkyTerra Investors determine
to (i) transfer or exchange (in a merger, business combination or otherwise)
in one or a series of related bona fide arm's-length transactions all or
substantially all of the Class A Units of the Company (including all or
substantially all of the LLC Interests held by the SkyTerra Investors) or (ii)
sell all or substantially all of the assets of the Company (collectively, the
"Drag-Along Transaction") to an Unaffiliated Buyer, and provided that (x)
prior to the proposed Drag-Along Transaction, all of the SkyTerra Investors
own at least twenty five (25%) of the aggregate Percentage Interests of the
Company, (y) the SkyTerra Investors are not then in default of any of their
obligations under this Agreement or the LLC Agreement in a manner that has had
a material adverse impact on the value of the Company, and (z) the transaction
will not result in any material default under any indebtedness of the Company
guaranteed by any DTVG Investor or the triggering of any obligation of any
DTVG Investor to make payments or incur any indebtedness or other significant
liability in connection with any Financial Support Arrangements (as defined in
the Contribution Agreement) retained for the benefit of the Company or other
guaranties or credit support maintained by such DTVG Investor on behalf of the
Company (other than arising out of reasonable and customary indemnification
provisions, typically found in transactions of similar type (a "Standard
Indemnity")), then the SkyTerra Investors shall have the right to implement
the drag along procedures set forth in this Section 3 by delivering a written
notice to all Investors (the "Drag-Along Notice"). Such Drag-Along Notice
shall include reasonable details of the proposed transaction with the
Unaffiliated Buyer, including a description of all consideration, payments,
commitments, compensation, rights or other property of any type to be received
and all material liabilities and obligations to be incurred (other than a
Standard Indemnity) by the Investors or their Affiliates in connection with
such transaction (including any issuance of notes or other securities,
assumption of material liabilities and any other commercial arrangements) and
any other material economic terms of the proposed sale (the "Basic Sale
Terms"). The Basic Sale Terms shall provide for distribution of the economic
benefits and detriments of the transactions among the Investors in accordance
with their respective Percentage Interests.
3.2 Participation in Drag-Along Transaction. In the event
that all of the DTVG Investors then own a Percentage Interest in the LLC at
least equal to the Percentage Interest then owned by all of the SkyTerra
Investors, a representative of the DTVG Investors shall be included in all
material negotiations regarding the proposed Drag-Along Transaction, and shall
be permitted to participate in all material facets of the transaction, but in
such negotiations the DTVG Investors shall cooperate with the SkyTerra
Investors in connection with the proposed Drag-Along Transaction. If the DTVG
Investors do not participate in the material negotiations or other material
facets of the transaction, the DTVG Investors shall be entitled to receive
copies of the proposed definitive transaction documents at least five (5)
business days prior to the proposed approval and execution of the Drag-Along
Transaction. After such five (5) business day period, all of the Investors
shall, (i) vote all of their equity interests of the Company represented by
the Investor's LLC Interest in favor of the Drag-Along Transaction, and (ii)
to the extent applicable, instruct the DTVG Board Members to vote in favor of
any reasonable action deemed necessary to consummate the Drag-Along
Transaction and enter into a definitive agreement to sell, transfer and
deliver, or cause to be sold transferred and delivered, to the Unaffiliated
Buyer, all of its LLC Interests in the Drag-Along Transaction.
3.3 Drag-Along Transaction Not Consummated. In the event
that a binding and definitive agreement for the sale or transfer in a
Drag-Along Transaction pursuant to this Section 3 is not entered into within
ninety (90) days after the Investors receive the Drag-Along Notice or the
Drag-Along Transaction is not consummated following satisfaction or waiver of
all applicable conditions precedent within eight (8) months thereafter, upon
expiration of any definitive agreement for the Drag-Along Transaction then in
effect the Investors shall cease to be bound by the obligations set forth in
Section 3.2 with regard to such transaction.
3.4 Third Party Matters. No DTVG Investor shall be required
to satisfy the obligations set forth in Section 3.2 unless the definitive
agreement to consummate the Drag-Along Transaction contains a provision
reasonably acceptable to the DTVG Investors which provides for the
Unaffiliated Buyer in the Drag-Along Transaction to assume and release the
DTVG Investors and their Affiliates from all indebtedness of the Company
guaranteed by the DTVG Investors or their Affiliates or any obligation of any
DTVG Investor or its respective Affiliates to make payments or incur any
indebtedness or other significant liability in connection with any Financial
Support Arrangements (as defined in the Contribution Agreement) retained for
the benefit of the Company or other guaranties or credit support maintained by
the DTVG Investors or their Affiliates on behalf of the Company (other than
arising out of a Standard Indemnity). The parties further agree that the
closing of the Drag-Along Transaction shall not be consummated unless the DTVG
Investors and their Affiliates are so released as provided for in the
agreement entered into in accordance with the foregoing sentence. Unless
otherwise agreed by the SkyTerra Investors, the DTVG Investors and the
Unaffiliated Buyer, if the Drag-Along Transaction pursuant to this Section 3
would violate any loan document or other material contract to which the
Company is a party, then the Company and the Unaffiliated Buyer shall obtain
the consent of the lender or other third party to such sale prior to closing.
The provisions of this Section 3.4 shall not apply to any Standard Indemnity
entered into in connection with the Drag-Along Transaction.
3.5 Default. In the event that a party fails to fulfill its
obligation to sell or purchase under this Section 3, then the other parties
shall be entitled to exercise all rights and remedies provided by law for such
a default, including specific performance and the right to xxx for damages.
4. Notice of Sale; Auction Participation.
If at any time or from time to time following the date of
this Agreement, the SkyTerra Investors desire to (i) transfer or exchange (in
a merger, business combination or otherwise) in one or a series of related
bona fide arm's-length transactions all of the Class A Units of the Company
(including all of the LLC Interests held by the SkyTerra Investors) or (ii)
sell all or substantially all of the assets of the Company (collectively, a
"Sale Transaction"), in each case, to an Unaffiliated Buyer, prior to
initiating any material discussions regarding a Sale Transaction with any
Unaffiliated Buyer (excluding brokers and investment advisors), the SkyTerra
Investors shall provide a written notice to the DTVG Investors indicating the
intention of the SkyTerra Investors to pursue a Sale Transaction. If the
SkyTerra Investors pursue a Sale Transaction through an auction process, the
SkyTerra Investors shall provide the DTVG Investors an opportunity to
participate in such auction in a manner that is no less favorable than that
offered to other potential bidders or participants in such auction.
5. Transfers of Rights. This Agreement, and the rights and
obligations of any Investor hereunder, may be assigned by such Investor to any
transferee of such Investor's LLC Interests to the extent such Investor
transfers the LLC Interests in accordance with the LLC Agreement, and, subject
to the following sentence, such transferee shall be deemed a "SkyTerra
Investor" or "DTVG Investor", as the case may be, for purposes of this
Agreement; provided that the transferor shall give the Company prior written
notice of any transfer under this Section 5. Notwithstanding the foregoing,
the rights of the SkyTerra Investors under Section 3 may only be assigned to
(i) a Person who will, following such transfer, own at least fifty percent
(50%) of the aggregate Percentage Interests owned by the SkyTerra Investors as
of the date of this Agreement or (ii) any Person, if SkyTerra and its
Affiliates or Persons to whom these rights have been assigned pursuant to this
Section 5 own Percentage Interests greater than the Percentage Interests owned
by DTVG and its Affiliates, and for purposes of Section 3, only SkyTerra and
such Persons described in clause (i) and (ii) will be considered "SkyTerra
Investors".
6. Registration Rights.
6.1 Required Registrations.
6.1.1 At any time following the fifth anniversary
of the date of this Agreement, the SkyTerra Investors, on the one hand, or the
DTVG Investors, on the other, may request, in writing, that the Company effect
a registration on Form S-1 (or any successor form) of Registrable Securities
owned by such Investor or Investors provided that the aggregate public
offering price (before deduction of underwriters' discounts and commissions)
of the LLC Interests or other equity of the Company offered in such
registration equals or exceeds $50 million. In addition, at any time following
the date that the Company has consummated a public offering of its equity
securities pursuant to a Registration Statement, the SkyTerra Investors, on
the one hand, or the DTVG Investors, on the other, may request, in writing,
that the Company effect a registration on Form S-1 (or any successor form) of
Registrable Securities owned by such Investor. If the Investors initiating the
registration intend to distribute the Registrable Securities by means of an
underwriting, they shall so advise the Company in their request. In the event
such registration is underwritten, the right of other Investors to participate
in such registration shall be conditioned on such Investors' participation in
such underwriting. Upon receipt of any such request, the Company shall
promptly give written notice of such proposed registration to all Investors.
Such other Investors shall have the right, by giving written notice to the
Company within 30 days after the Company provides its notice, to elect to have
included in such registration all or a part of their Registrable Securities as
such Investors may request in such notice of election. All Investors proposing
to distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with an underwriter or underwriters
that are mutually agreeable to the Company and the Investors including
Registrable Securities in such offering. Thereupon, the Company shall, at its
own expense and as expeditiously as possible, use its best efforts to effect
the registration, on Form S-1 (or any successor form), of all Registrable
Securities that the Company has been requested so to register.
6.1.2 At any time after the Company becomes
eligible to file a Registration Statement on Form S-3 (or any successor form
relating to secondary offerings, hereinafter, "Form S-3"), each of (i) the
SkyTerra Investors and (ii) the DTVG Investors holding Registrable Securities
will have the right to require the Company to effect a registration on Form
S-3 of Registrable Securities provided that the aggregate public offering
price (before deduction of underwriters' discounts and commissions) of the LLC
Interests or other equity of the Company offered in such registration equals
or exceeds $10 million (or such lesser amount to the extent that such
Investor(s) do not own LLC Interests or other equity securities that equal or
exceed $10 million). Upon receipt of any such request, the Company shall
promptly give written notice of such proposed registration to all Investors.
Such other Investors shall have the right, by giving written notice to the
Company within 30 days after the Company provides its notice, to elect to have
included in such registration such of their Registrable Securities as such
Investors may request in such notice of election. Thereupon, the Company
shall, as expeditiously as possible, use its best efforts to effect the
registration on Form S-3 of all Registrable Securities that the Company has
been requested to register.
6.1.3 The Company shall be required to effect not
more than (a) five (5) registrations initiated by the SkyTerra Investors
pursuant to Section 6.1.1 above, or (b) five (5) registrations initiated by
the DTVG Investors pursuant to Section 6.1.1 above. The Company shall not be
required to effect more than one (1) registration under this Section 6.1 in
any six (6) month period. Each request for registration pursuant to Section
6.1.1 shall be deemed satisfied only when a registration statement covering
all Registrable Securities specified in notices received as aforesaid, for
sale in accordance with the method of disposition specified in such notices,
has become effective and, if the method of disposition is a firm commitment
underwritten public offering all of the Registrable Securities covered thereby
shall have been sold pursuant thereto. A requested registration under this
Section 6.1 may be rescinded by written notice to the Company by the holders
requesting such registration and such rescinded registration shall not count
as a registration statement initiated pursuant to this Section 6.1, if such
holders shall have reimbursed the Company for all out-of-pocket expenses
incurred by the Company in connection with such rescinded registration. Except
for Registration Statements on Form X-0, X-0 or another form not available for
registering securities for sale to the public, or any successor thereto, and
subject to Section 6.1.4 herein, the Company will not, without the consent of
all of the Investors, file with the Commission any other Registration
Statement with respect to its LLC Interests or other equity interests of the
Company whether for its own account or that of other Investors, from the date
of receipt of a notice from requesting Investors pursuant to Section 6.1.1
until the completion of the period of distribution of the securities
contemplated thereby.
6.1.4 If at the time of any request to register
Registrable Securities pursuant to Section 6.1.2, the Company (a) is engaged
or has fixed plans to engage within 30 days of the time of the request in a
registered public offering as to which the Investors may include Registrable
Securities pursuant to Section 6.2, (b) is engaged in any other activity that
the Company certifies, in the good faith determination of the Company's Board
of Managers, would be adversely affected by the requested registration to the
material detriment of the Company or (c) the request to register pursuant to
Section 6.1.2 is in a jurisdiction in which the Company would be required to
qualify to do business or execute a general consent to service of process to
effect such registration, then the Company may at its option direct that such
request be delayed for a period of at least ninety (90) days and not to exceed
one hundred fifty (150) days from the effective date of such offering or the
date of commencement of such other material activity, as the case may be, such
right to delay a request to be exercised by the Company not more than once in
any twelve (12) month period.
6.1.5 In connection with any offering under this
Section 6.1 involving an underwriting, if the representative of the
underwriters advises the Investors in writing that marketing factors require a
limitation on the securities to be so underwritten, the securities which the
Company and/or other Persons have requested to be so included, if any, shall
be entirely excluded from such registration and underwriting, and the number
of Registrable Securities to be included in the registration and underwriting
shall thereafter be allocated pro rata among the Investors based upon their
total ownership of LLC Interests or other equity interests; provided, however,
that such allocation shall not operate to reduce the aggregate number of
securities to be included in such registration, if any Investor does not
request inclusion of the maximum number of Registrable Securities allocated to
such Investor pursuant to the above-described procedure, in which case the
remaining portion of such Investor's allocation shall be reallocated among
those Investors whose allocations did not satisfy their requests, pro rata on
the basis of the LLC Interests or other equity interests which would be held
by such Investors. This procedure shall be repeated until all of the
securities which may be included in the registration on behalf of the
requesting Investors have been so allocated.
6.2. Incidental Registration.
6.2.1 Subject to Section 6.2.2, below, whenever the
Company proposes to file a Registration Statement for the issuance of LLC
Interests or other equity of the Company (except for registrations relating to
the Class B Units, employee benefit plans and corporate reorganizations) at
any time and from time to time, it will, prior to such filing, give written
notice to all Investors of its intention to do so and, upon the written
request of an Investor or Investors given within 20 days after the Company
provides such notice (which request shall state the intended method of
disposition of such Registrable Securities), the Company shall use its best
efforts to cause all Registrable Securities that the Company has been
requested by such Investor or Investors to register to be registered under the
Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified
in the request of such Investor or Investors; provided that the Company shall
have the right to postpone or withdraw any registration effected pursuant to
this Section 6.2 without obligation to any Investor.
6.2.2 In connection with any offering under this
Section 6.2 involving an underwriting, the Company shall not be required to
include any Registrable Securities in such underwriting unless the holders
thereof accept the terms of the underwriting as agreed upon between the
Company and the underwriters selected by it, and then only in such quantity as
will not, in the good faith opinion of the underwriters, jeopardize the
success of the offering by the Company.
6.2.3 In connection with any offering under this
Section 6.2 involving an underwriting, if the representative of the
underwriters advises the Company in writing that marketing factors require a
limitation on the securities to be so underwritten, the securities which the
Company has requested to be so included shall be entirely included in such
registration and underwriting and the number of Registrable Securities to be
included in the registration and underwriting by the Investors shall
thereafter be allocated pro rata among the Investors based upon their total
ownership of LLC Interests or other equity interests; provided, however, that
such allocation shall not operate to reduce the aggregate number of securities
to be included in such registration, if any Investor does not request
inclusion of the maximum number of Registrable Securities allocated to such
Investor pursuant to the above-described procedure, in which case the
remaining portion of such Investor's allocation shall be reallocated among
those Investors whose allocations did not satisfy their requests, pro rata on
the basis of the LLC Interests or other equity interests which would be held
by such Investors. This procedure shall be repeated until all of the
securities which may be included in the registration on behalf of the
requesting Investors have been so allocated.
6.3 Registration Procedures. If and whenever the Company is
required by the provisions of this Agreement to effect the registration of any
of the Registrable Securities under the Securities Act, the Company shall:
6.3.1 as expeditiously as possible use its best
efforts to prepare and file with the Commission a Registration Statement with
respect to such Registrable Securities and use its best efforts to cause that
Registration Statement to become and remain effective for the earlier of 120
days or until the completion of the distribution;
6.3.2 as expeditiously as possible use its best
efforts to prepare and file with the Commission any amendments and supplements
to the Registration Statement and the prospectus included in the Registration
Statement as may be necessary to keep the Registration Statement effective,
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement;
6.3.3 as expeditiously as possible use its best
efforts to furnish to each selling Investor such reasonable numbers of copies
of the Registration Statement, each amendment and supplement thereto,
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as the selling
Investor may reasonably request in order to facilitate the public sale or
other disposition of the Registrable Securities owned by the selling Investor;
6.3.4 as expeditiously as possible use its best
efforts to register or qualify the Registrable Securities covered by the
Registration Statement under the securities or Blue Sky laws of such states as
the selling Investors shall reasonably request, and do any and all other acts
and things that may be necessary or desirable to enable the selling Investors
to consummate the public sale or other disposition in such states of the
Registrable Securities owned by the selling Investor; provided, however, that
the Company shall not be required in connection with this Section 6.3.4 to
qualify as a foreign corporation or execute a general consent to service of
process in any jurisdiction unless the Company is already subject to service
in such jurisdiction and except as may be required under the Securities Act;
6.3.5 in the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter(s) of
such offering and reasonably cooperate in the marketing efforts of the
underwriters and the Investors by, among other things, making available, as
reasonably requested by the underwriters and the Investors, senior executive
officers of the Company for attendance at, and active participation with the
underwriters in, informational meetings with prospective purchasers of the
Registrable Securities being offered, including meeting with groups of such
purchasers or with individual purchasers, providing information and answering
questions about the Company at such meetings, and traveling to locations at
reasonable times and as reasonably selected by the underwriters. Investors
participating in such underwriting shall also enter into and perform their
obligations under such an agreement;
6.3.6 notify each holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening
of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances then existing;
6.3.7 use its best efforts to furnish, on the date
that such Registrable Securities are delivered to the underwriters for sale,
if such securities are being sold through underwriters, (i) an opinion, dated
as of such date, of the counsel representing the Company for the purposes of
such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the
underwriters, if any, and (ii) a letter dated as of such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering addressed to the underwriters;
6.3.8 if the Company has delivered preliminary or
final prospectuses to the selling Investors and after having done so the
prospectus is amended to comply with the requirements of the Securities Act,
the Company shall promptly notify the selling Investors and, if requested, the
selling Investors shall immediately cease making offers of Registrable
Securities and return all prospectuses to the Company. The Company shall
promptly provide the selling Investors with revised prospectuses and,
following receipt of the revised prospectuses, the selling Investors shall be
free to resume making offers of the Registrable Securities;
6.3.9 cause all Registrable Securities to be listed
on securities exchanges, if any, on which similar securities issued by the
Company are then listed or, if they are not so listed, on such exchanges the
selling Investors may reasonably request;
6.3.10 make available for inspection by any
Investor or any underwriter participating in any disposition pursuant to such
Registration Statement and any attorney, accountant or other professional
retained by any such Investor or underwriter (collectively, the "Inspectors"),
all financial and other records, pertinent corporate documents and properties
of the Company as shall be reasonably necessary to enable them to exercise
their due diligence responsibility, and cause the Company's officers, managers
and employees to supply all information reasonably requested by any Inspectors
in connection with such Registration Statement;
6.3.11 if requested by the Investors, provide a
CUSIP number for all Registrable Securities not later than the effective date
of the Registration Statement covering such Registrable Securities and provide
the Company's transfer agent(s) and registrar(s) for the Registrable
Securities with printed certificates for the Registrable Securities;
6.3.12 cooperate and assist in any filings required
to be made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the rules and
regulations of the NASD; and
6.3.13 use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
securityholders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
commencement of any public offering of securities pursuant to the Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act.
6.4. Allocation of Expenses. The Company will pay all
Registration Expenses (as defined below) of all registrations under this
Agreement; provided, however, that if a registration under Section 6.1.1 is
withdrawn at the request of the Investors requesting such registration (other
than as a result of information concerning the business or financial condition
of the Company that is made known to the Investors after the date on which
such registration was requested) and if the requesting Investors elect not to
have such registration counted as a registration requested under Section
6.1.1, the requesting Investors shall pay the Registration Expenses of such
registration pro rata in accordance with the number of their Registrable
Securities included in such registration. For purposes of this Section, the
term "Registration Expenses" shall mean all expenses incurred by the Company
in complying with this Agreement, including, without limitation, all
registration and filing fees, exchange listing fees, printing expenses, fees
and disbursements of counsel for the Company and the reasonable fees and
expenses of one (1) counsel selected by the selling Investors to represent the
selling Investors, state Blue Sky fees and expenses, and the expense of any
special audits incident to or required by any such registration, but excluding
underwriting discounts, selling commissions and the fees and expenses of
selling Investors' own counsel (other than the counsel selected to represent
all selling Investors).
6.5 Indemnification and Contribution. In the event of any
registration of any of the Registrable Securities under the Securities Act
pursuant to this Agreement, the Company will indemnify and hold harmless the
seller of such Registrable Securities (including any member, partner, officer
or director of such seller), each underwriter of such seller of such
Registrable Securities, and each other Person, if any, who controls such
seller or underwriter within the meaning of the Securities Act or the Exchange
Act against any losses, claims, damages or liabilities, joint or several, to
which such seller (including any member, partner, officer or director of such
seller), underwriter or controlling Person may become subject under the
Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement under which such Registrable Securities were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, or any amendment or supplement to such
Registration Statement, or arise out of or are based upon the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or any violation or
alleged violation by the Company of the Securities Act, the Exchange Act, any
state securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state securities laws in connection
with the offering covered by such registration statement; and the Company will
reimburse such seller (including any member, partner, officer or director of
such seller), underwriter and each such controlling Person of the seller or
underwriter for any legal or any other expenses reasonably incurred by such
seller (including any member, partner, officer or director of such seller),
underwriter or controlling Person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any untrue statement or omission made in such Registration Statement,
preliminary prospectus or prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in
writing, by or on behalf of such seller, underwriter or controlling Person
specifically for use in the preparation thereof.
In the event of any registration of any of the Registrable
Securities under the Securities Act pursuant to this Agreement, each seller of
Registrable Securities, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors and officers and each underwriter
(if any) and each Person, if any, who controls the Company or any such
underwriter within the meaning of the Securities Act or the Exchange Act, and
any other seller of Registrable Securities or any such seller's partners,
directors or officers and each Person, if any, who controls such seller within
the meaning of the Securities Act and the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which the Company, such
directors and officers, underwriter, other selling Investor or controlling
Person may become subject under the Securities Act, Exchange Act, state
securities or Blue Sky laws or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement under which such Registrable
Securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and each such Seller of Registrable Securities will reimburse the
Company for any legal or any other expenses reasonably incurred by the Company
in connection with investigating or defending any such loss, claim, damage,
liability or action, if the statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company by or
on behalf of such seller, specifically for use in connection with the
preparation of such Registration Statement, prospectus, amendment or
supplement; provided, however, that the obligations of such Investors
hereunder shall be limited to an amount equal to the net proceeds received by
each selling Investor of Registrable Securities sold as contemplated herein.
Each party entitled to indemnification under this Section
6.5 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom; provided, that counsel
for the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall
not be unreasonably withheld); and, provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement, except to the
extent that the Indemnifying Party's ability to defend against such claim or
litigation is impaired as a result of such failure to give notice. The
Indemnified Party may participate in such defense at such party's expense;
provided, however, that the Indemnifying Party shall pay such expense if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between the Indemnified Party and any other party represented by
such counsel in such proceeding. No Indemnifying Party in the defense of any
such claim or litigation shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation, and no Indemnified Party shall consent to entry
of any judgment or settle such claim or litigation without the prior written
consent of the Indemnifying Party. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 6.5 is
due in accordance with its terms but for any reason is held to be unavailable
to an Indemnified Party in respect to any losses, claims, damages and
liabilities referred to herein, then the Indemnifying Party shall, in lieu of
indemnifying such Indemnified Party, contribute to the amount paid or payable
by such Indemnified Party as a result of such losses, claims, damages or
liabilities to which such party may be subject in proportion as is appropriate
to reflect the relative fault of the Indemnifying Party on the one hand and
the Indemnified Party on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
Indemnifying Party and the Indemnified Party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
material fact related to information supplied by the Indemnifying Party or the
Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Investors agree that it would not be just and equitable if
contribution pursuant to this Section 6.5 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph of Section 6.5, (a) in no case shall any one Investor be
liable or responsible for any amount in excess of the net proceeds received by
such Investor from the offering of Registrable Securities and (b) the Company
shall be liable and responsible for any amount in excess of such proceeds;
provided, however, that no Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any Person who was not guilty of such fraudulent
misrepresentation. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against
such party or parties under this Section 6.5, notify such party or parties
from whom such contribution may be sought, but the omission so to notify such
party or parties from contribution may be sought shall not relieve such party
from any other obligation it or they may have thereunder or otherwise under
this Section 6.5. No party shall be liable for contribution with respect to
any action, suit, proceeding or claim settled without its prior written
consent, which consent shall not be unreasonably withheld.
6.6. Indemnification with Respect to Underwritten Offering.
In the event that Registrable Securities are sold pursuant to a Registration
Statement in an underwritten offering pursuant to Section 6.1, the Company
agrees to enter into an underwriting agreement containing customary
representations and warranties with respect to the business and operations of
an issuer of the securities being registered and customary covenants and
agreements to be performed by such issuer, including without limitation
customary provisions with respect to indemnification by the Company of the
underwriters of such offering.
6.7. Information by Holder. Each holder of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such holder and the distribution proposed by such holder
as the Company may reasonably request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
6.8. "Market Stand-Off" Agreement. Each Investor, if
requested by the Company and an underwriter of LLC Interests or other
securities of the Company, shall agree not to sell or otherwise transfer or
dispose of any Registrable Securities or other securities of the Company held
by such Investor for a specified period of time determined by the Company and
the underwriters (not to exceed 90 days (or 180 days in connection with the
initial public offering of equity securities of the Company)) following the
effective date of a Registration Statement; provided, that:
(a) such agreement shall only apply to the first
Registration Statement covering LLC Interests or other securities of the
Company to be sold on the Company's behalf to the public in an underwritten
offering; and
(b) all Investors holding more than 1% of the LLC
Interests or other equity of the Company (including convertible securities, or
upon the exercise of options, warrants or rights) and all executive officers
and directors of the Company enter into similar agreements.
Such agreement shall be in writing in a form reasonably
satisfactory to the Company and such underwriter. The Company may impose
stop-transfer instructions with respect to the Registrable Securities or other
securities subject to the foregoing restriction until the end of the stand-off
period.
The Company agrees, on behalf of itself and its Affiliates,
(i) not to effect any public sale or distribution of any securities similar to
those being registered in accordance with Section 6.1 hereof, or any
securities convertible into or exchangeable or exercisable for such securities
(in each case other than in connection with the Company's employee stock
option or incentive plan) during the 30 days prior to, and during the 120-day
period beginning on, the commencement of a public distribution of Registrable
Securities (or such shorter period of time as may be required by the
underwriter effecting such public distribution); and (ii) that any agreement
pursuant to which the Company issues or agrees to issue, or has issued or
agreed to issue, any privately placed equity securities shall contain, or
contains, a provision under which holders of such securities agree not to
effect any public sale or distribution of any such securities during the
periods described in (i) above, in each case including a sale pursuant to Rule
144 under the Securities Act; provided, however, that the provisions of this
paragraph (b) shall not prevent the conversion or exchange of any securities
pursuant to their terms into or for other securities.
6.9. Limitations on Subsequent Registration Rights. The
Company shall not, without the prior written consent of all of the Investors,
be party to any agreement (other than this Agreement) with any holder or
prospective holder of any securities of the Company that would allow such
holder or prospective holder either (a) to include securities of the Company
in any registration filed under Sections 6.1 or 6.2, or (b) to make a demand
registration that could result in such registration statement being declared
effective prior to an initial public offering, or (c) to have registration
rights equal to or senior to those granted to the holders of Registrable
Securities under this Agreement.
6.10. Rule 144 Requirements. After the earliest of (i) the
closing of the sale of securities of the Company pursuant to a Registration
Statement, (ii) the registration by the Company of a class of securities under
Section 12 of the Exchange Act, or (iii) the provision by the Company of an
offering circular pursuant to Regulation A under the Securities Act, the
Company agrees to:
(a) comply with the requirements of Rule 144(c) under the
Securities Act with respect to current public information about the Company;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements); and
(c) furnish to any holder of Registrable Securities upon
written request (i) a written statement by the Company as to its compliance
with the requirements of said Rule 144(c), and the reporting requirements of
the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), (ii) a copy of the most recent annual
or quarterly report of the Company, and (iii) such other reports and documents
of the Company as such holder may reasonably request to avail itself of any
similar rule or regulation of the Commission allowing it to sell any such
securities without registration.
6.11. Selection of Underwriter. Except for any registration
effected pursuant to Section 6.1, the Company shall have the right to
designate the managing underwriter in any underwritten offering, subject to
the approval of the Board of Managers of the Company and the holders of a
majority of the Registrable Securities requested to be included in such
offering, which approval shall not be unreasonably withheld provided that the
managing underwriter shall be a leading national investment banking firm.
7. Termination of Certain Rights. (a) The registration rights
provided pursuant to Section 6 will terminate five (5) years after the
consummation of the Company's Qualified Initial Public Offering and (b) the
rights and obligations provided pursuant to Section 2, Section 3 and Section 4
will terminate upon the consummation of a Qualified Initial Public Offering.
8. General.
8.1 Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
8.2 Specific Performance. In addition to any and all other
remedies that may be available at law, in the event of any breach of this
Agreement, the Investors shall be entitled to specific performance of the
agreements and obligations of the Company hereunder and to such other
injunctive or other equitable relief as may be granted by a court of competent
jurisdiction
8.3 Jurisdiction. This Agreement and the duties and
obligations of the parties hereto shall be enforceable against the parties
hereto in the courts of the United States of America, and of the State of New
York in each case, located in the County of New York in the State of New York.
For such purpose, the parties hereto hereby irrevocably submit to the
non-exclusive jurisdiction of such courts, and agree that all claims in
respect of this Agreement any of the other documents referred to herein or
therein may be heard and determined in any of such courts. The parties hereto
hereby irrevocably agree that a final judgment of any of the courts specified
above in any action or proceeding relating to this Agreement or to any of the
other documents referred to herein or therein shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
8.4 Governing Law. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating
thereto, shall be governed by and construed in accordance with the laws of the
State of New York (excluding the choice of law rules thereof, other than
Section 5-1401 of the New York General Obligations Law).
8.5 Notices. All notices required or permitted by this
Agreement shall be in writing and shall be deemed given upon delivery, when
delivered personally or by overnight courier or sent by telegram or fax, or
three (3) business days after being deposited in the U.S. mail, as certified
or registered mail, with postage prepaid, addressed to the party to be
notified at such party's address as set forth below, or as subsequently
modified by written notice to the other parties:
If to the Company:
Xxxxxx Network Systems, LLC
c/o SkyTerra Communications, Inc.
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy No.: 000-000-0000
With copies to:
Apollo Management, L.P.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopy No.: 000-000-0000
and
O'Melveny & Xxxxx LLP
Times Square Tower
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telecopy No.: 000-000-0000
If to the DTVG Investor(s):
Xxxxxx Network Systems, Inc.
c/o The DIRECTV Group, Inc.
0000 Xxxx Xxxxxxxx Xxxxxxx
Xx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy No.: 000-000-0000
With a copy to:
Xxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxx
Xxxxx 0000
XxXxxx, XX 00000
Attention: Xxxxxxx X.X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to the SkyTerra Investor(s):
SkyTerra Communications, Inc.
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy No.: 000-000-0000
With copies to:
Apollo Management, L.P.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopy No.: 000-000-0000
and
O'Melveny & Xxxxx LLP
Times Square Tower
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telecopy No.: 000-000-0000
8.5 Complete Agreement. This Agreement constitutes the
entire agreement and understanding of the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
8.6 Amendments and Waivers. Any term of this Agreement may
be amended or terminated and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either
retroactively or prospectively), with the written consent of the Company and
all of the Investors. Any such amendment, termination or waiver effected in
accordance with this Section 8.6 shall be binding on all parties hereto, even
if they do not execute such consent. No waivers of or exceptions to any term,
condition or provision of this Agreement, in any one or more instances, shall
be deemed to be, or construed as, a further or continuing waiver of any such
term, condition or provision.
8.7 Pronouns. Whenever the context may require, any pronouns
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.
8.8 Counterparts; Facsimile Signatures. This Agreement may
be executed in any number of counterparts, each of which shall be deemed to be
an original, and all of which together shall constitute one and the same
document. This Agreement may be executed by facsimile signatures.
8.9 Section Headings. The section headings are for the
convenience of the parties and in no way alter, modify, amend, limit or
restrict the contractual obligations of the parties.
8.10 Required FCC Consents. In the event that any transfer
of all or any portion of an Investor's LLC Interest made in accordance with
the LLC Agreement would (i) result in a voluntary or involuntary assignment or
transfer of control, within the meaning of the applicable Communications Laws,
of any telecommunications license, authorization, certificate, approval, or
permit, and (ii) such voluntary or involuntary assignment or transfer of
control requires consent of the Federal Communications Commission (the "FCC")
or another governmental authority under the Communications Laws, then each of
the Investors and the Company shall cooperate and use commercially reasonable
efforts to make any required filings and to obtain the consent of appropriate
governmental authorities, and the Investors and the Company shall obtain the
consent of the FCC.
[Signatures on following page]
IN WITNESS WHEREOF, the parties have executed this Investor Rights
Agreement as of the date first written above.
COMPANY:
XXXXXX NETWORK SYSTEMS, LLC
By: /s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Vice President and General
Counsel
DTVG INVESTOR:
XXXXXX NETWORK SYSTEMS, INC.
By: /s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Vice President and General
Counsel
SKYTERRA INVESTOR:
SKYTERRA COMMUNICATIONS, INC.
By: /s/ XXXXXXX XXXXX
-----------------------------
Name: Xxxxxxx Xxxxx
Title: CEO
