Exhibit 10.1
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SEPARATION AGREEMENT
between
SKYTERRA COMMUNICATIONS, INC.
and
▇▇▇▇▇▇ COMMUNICATIONS, INC.
Dated as of December 30, 2005
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TABLE OF CONTENTS
Page
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ARTICLE I
DOCUMENTS AND ITEMS TO BE
DELIVERED ON THE EFFECTIVE DATE
Section 1.1 Documents to be Delivered by SkyTerra........................1
Section 1.2 Documents to be Delivered by Divco...........................2
ARTICLE II
ASSIGNMENT AND ASSUMPTION
Section 2.1 Assignment of SkyTerra Assets................................2
Section 2.2 Assumption of SkyTerra Liabilities...........................2
ARTICLE III
EXCLUDED CASH
Section 3.1 Permitted Uses of Excluded Cash..............................3
ARTICLE IV
FACILITIES
Section 4.1 Facilities Occupancy and Services............................3
Section 4.2 Compensation.................................................4
Section 4.3 Billing and Payment Terms....................................4
Section 4.4 Interruption of Services.....................................4
Section 4.5 Means of Providing the Other Office Services.................4
ARTICLE V
COSTS AND EXPENSES RELATED TO THE DISTRIBUTION
Section 5.1 Allocation of Costs and Expenses.............................5
ARTICLE VI
MUTUAL OBLIGATIONS; COVENANTS
Section 6.1 Further Assurances...........................................5
Section 6.2 Legal Actions................................................6
Section 6.3 Public Announcements.........................................6
Section 6.4 Amounts Received.............................................6
ARTICLE VII
TAX MATTERS
Section 7.1 Tax Sharing Agreement........................................6
ARTICLE VIII
ACCESS TO INFORMATION, PERSONNEL AND HISTORICAL RECORDS
Section 8.1 Information and Personnel Shared Historical Records..........6
Section 8.2 Access to Information........................................7
Section 8.3 Litigation Cooperation.......................................7
Section 8.4 Attorney Client Privilege....................................7
ARTICLE IX
CONFIDENTIALITY
Section 9.1 Confidential Information.....................................7
Section 9.2 Exceptions...................................................8
Section 9.3 Additional Responsibilities..................................8
ARTICLE X
DISCLAIMER AND LIMITATION OF LIABILITY
Section 10.1 No Representation or Warranty................................8
Section 10.2 Limitation of Liability......................................9
ARTICLE XI
BUSINESS AND REGISTRATION STATEMENT INDEMNIFICATION
Section 11.1 General Cross Indemnification................................9
Section 11.2 Registration Statement Indemnification......................10
Section 11.3 Contribution................................................10
Section 11.4 Procedure...................................................11
Section 11.5 Other Matters...............................................11
Section 11.6 Treatment of Indemnity Payments.............................12
ARTICLE XII
TERMINATION
Section 12.1 Termination.................................................12
Section 12.2 Survival....................................................13
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Force Majeure...............................................13
Section 13.2 Assignment..................................................13
Section 13.3 Relationship of the Parties.................................13
Section 13.4 Governing Law and Submission to Exclusive Jurisdiction......13
Section 13.5 Entire Agreement............................................14
Section 13.6 Notices.....................................................14
Section 13.7 Negotiation and Mediation...................................15
Section 13.8 Conflicting Provisions......................................16
Section 13.9 Severability................................................16
Section 13.10 Interpretation..............................................16
Section 13.11 Counterparts................................................16
Section 13.12 Further Cooperation.........................................16
Section 13.13 Amendment and Waiver........................................17
Section 13.14 Duly Authorized Signatories.................................17
Section 13.15 Waiver of Trial By Jury.....................................17
Section 13.16 Specific Performance........................................17
Section 13.17 Descriptive Headings........................................17
Section 13.18 No Third Party Beneficiaries................................17
Section 13.19 Binding Nature of Agreement.................................17
Section 13.20 Certain Definitions.........................................17
Schedule I - Assets
Schedule II - Excluded Assets
Schedule III - Excluded Cash
Schedule IV - Schedule IV Assets
Schedule V - Excluded Liabilities
Exhibit A - Tax Sharing Agreement
Exhibit B - Form of Assignment and Assumption Agreement
Exhibit C - Form of Contribution Agreement
Exhibit D - Form of Certificate of Secretary of SkyTerra
Exhibit E - Form of Certificate of Secretary of Divco
SEPARATION AGREEMENT (this "Agreement"), dated as of December 30, 2005,
by and between SkyTerra Communications, Inc., a Delaware corporation
("SkyTerra"), and ▇▇▇▇▇▇ Communications, Inc., a Delaware corporation ("Divco").
Each of SkyTerra and Divco is sometimes referred to herein as a "Party" and
collectively, as the "Parties."
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, SkyTerra is the owner of all of the issued and outstanding
capital stock, consisting of one (1) share of common stock, par value $0.001 per
share (the "Common Stock"), of Divco immediately prior to the date hereof.
NOW, THEREFORE, in contemplation of Divco ceasing to be owned by
SkyTerra and the covenants and agreements set forth herein, the Parties,
intending to be legally bound hereby, agree as follows:
ARTICLE I
DOCUMENTS AND ITEMS TO BE
DELIVERED ON THE EFFECTIVE DATE
Section 1.1 Documents to be Delivered by SkyTerra. On the Effective
Date, SkyTerra will deliver to Divco each of the following items and agreements:
(a) A duly executed Tax Sharing Agreement substantially in the
form attached hereto as Exhibit A (the "Tax Sharing Agreement");
(b) A duly executed Assignment and Assumption Agreement,
substantially in the form attached hereto as Exhibit B (the "Assignment and
Assumption Agreement");
(c) A duly executed Contribution Agreement substantially in
the form attached hereto as Exhibit C (the "Contribution Agreement");
(d) Such deeds, bills of sale, contribution agreements,
endorsements, consents, assignments (including, without limitation, trademark,
trade name, patent and domain name assignments), stock certificates executed in
blank and such other instruments of transfer, conveyance, assignment,
substitution and confirmation (the "Conveyance Documents") as either Party shall
deem reasonably necessary or appropriate (i) to vest in Divco good and valid
title in and to the Assets (other than the Schedule IV Assets, to the extent
described herein), free and clear of all liens and (ii) to have Divco fully and
unconditionally assume and discharge the Assumed Liabilities and to relieve
SkyTerra of any liability or obligation with respect thereto; and
(e) A certificate of the Secretary of SkyTerra, substantially
in the form attached to this Agreement as Exhibit D.
Section 1.2 Documents to be Delivered by Divco. On the Effective Date,
Divco will deliver to SkyTerra each of the following items and agreements:
(a) In each case where Divco is a party to any agreement or
instrument referred to in Section 1.1, a duly executed counterpart of such
agreement or instrument; and
(b) A certificate of the Secretary of Divco, substantially in
the form attached to this Agreement as Exhibit E.
ARTICLE II
ASSIGNMENT AND ASSUMPTION
Section 2.1 Assignment of SkyTerra Assets.
(a) On the Effective Date, SkyTerra shall assign, transfer,
convey and deliver to Divco, and Divco shall accept and take from SkyTerra, all
of SkyTerra's right, title and interest in and to the Assets.
(b) Anything in this Agreement to the contrary
notwithstanding, this Agreement shall not constitute an assignment, or an
agreement to assign, any Assets described on Schedule IV hereto (the "Schedule
IV Assets") or any claim or right or any benefit arising thereunder or resulting
therefrom if an attempted assignment thereof, without consent of a third party
having rights in respect thereof, would constitute a breach or other
contravention of any agreement in favor of such third party or in any way
adversely affect the rights of SkyTerra or Divco. SkyTerra will use its
reasonable efforts (but without any requirement to commence any legal
proceeding), which efforts shall be at the sole cost and expense of Divco, and
Divco will actively assist SkyTerra, to obtain the consent of any such third
parties to the assignment of any such Asset (including any Schedule IV Asset,
except those Schedule IV Assets listed in Part B of Schedule IV, with regard to
which the Parties agree no such consent shall be sought) or claim or right or
any benefit arising thereunder for the assignment thereof to Divco. If consent
is not obtained with respect to any Schedule IV Asset, or if an attempted
assignment thereof would be ineffective or would adversely affect the rights of
SkyTerra thereunder so that Divco would not in fact receive all such rights,
SkyTerra and Divco will cooperate in a mutually agreeable arrangement under
which Divco would, as between SkyTerra and Divco, obtain the benefits and assume
the obligations thereunder in accordance with this Agreement, including, without
limitation, subcontracting, sub-licensing, or subleasing to Divco, or under
which SkyTerra would enforce for the benefit of Divco, with Divco assuming
SkyTerra's obligations, any and all rights of SkyTerra against a third party
thereto, and any amount received by SkyTerra in respect thereof shall be held
for and promptly paid over to Divco; provided, that Divco shall reimburse
SkyTerra for all reasonable and documented costs and expenses borne by SkyTerra
under any such arrangement.
Section 2.2 Assumption of SkyTerra Liabilities.
(a) (x) On the Effective Date, Divco shall assume any and all
liabilities (fixed or contingent) of SkyTerra, other than Excluded Liabilities,
that encumber or are otherwise attributable to the Assets, including those
related to the Schedule IV Assets, and (y) upon a Change of Control, Divco shall
assume any and all other liabilities of SkyTerra (fixed or contingent) that
arose following the Effective Date, other than the Excluded Liabilities (the
liabilities described in clauses (i) and (ii) are referred to herein as the
"Assumed Liabilities"), provided, that:
(i) SkyTerra shall use its commercially reasonable
efforts, at Divco's sole cost and expense, to make insurance,
indemnification or reimbursement claims relating to any applicable
Assumed Liability. SkyTerra shall remit to Divco any insurance
proceeds, indemnification payments or similar reimbursement payments
received by SkyTerra in respect of any Assumed Liability; provided,
that Divco shall reimburse SkyTerra for all reasonable and documented
costs and expenses borne by SkyTerra in obtaining and remitting such
insurance proceeds, indemnification payments or similar reimbursement
payments; and
(ii) SkyTerra shall not, and shall not permit any
other member of the SkyTerra Group to, enter into any contract,
agreement, commitment or arrangement, or take any action, with respect
to any Asset or Assumed Liability that is intended or would reasonably
be expected to be adverse to Divco or otherwise result in any
obligation of Divco pursuant to the terms set forth in ARTICLE XI.
ARTICLE III
EXCLUDED CASH
Section 3.1 Uses of Cash. Upon a Change of Control, SkyTerra shall
remit to Divco all Excluded Cash, net of any amounts that have been dispensed by
SkyTerra; provided that SkyTerra and Divco shall treat any payments of Excluded
Cash by SkyTerra to Divco made pursuant to this Section 3.1 as occurring
immediately prior to the Distribution.
ARTICLE IV
FACILITIES
Section 4.1 Facilities Occupancy and Services.
(a) SkyTerra hereby grants to Divco a license to use the
Shared Facilities (the "Facilities License"), commencing on January 1, 2006 and
continuing until a Change of Control (the "License Term"), provided, that the
use of the Shared Facilities by Divco pursuant to the Facilities License shall
be limited in all material respects to the operation of Divco substantially in
the manner the businesses of SkyTerra and Divco were conducted by SkyTerra
during the three-month period prior to the Effective Date.
(b) For the duration of the License Term, Divco shall be
entitled to utilize and operate the Furniture and Equipment substantially as
such Furniture and Equipment was used in the operation of the Divco and SkyTerra
as conducted during the three-month period prior to the Effective Date. Without
the consent of SkyTerra, Divco shall not remove any item of Furniture or
Equipment from the Shared Facilities. Divco and SkyTerra shall each use its
commercially reasonable efforts to keep the Shared Facilities and the Furniture
and Equipment in substantially the same condition as the Shared Facilities and
the Furniture and Equipment were in prior to the Effective Date, ordinary wear
and tear excepted.
(c) For the duration of the License Term, SkyTerra shall
provide Divco such general office and building support services ("Other Office
Services") substantially as were used to support the operation of SkyTerra and
Divco during the three-month period prior to Effective Date.
Section 4.2 Compensation. As consideration for the Facility License,
Divco shall pay SkyTerra, in accordance with Section 4.3, an amount equal to
$7,500 per month in connection with the Facilities License and Other Office
Services (the "Facilities Payables") during the License Term.
Section 4.3 Billing and Payment Terms. On the first of each month
during the License Term Divco shall pay SkyTerra, on a monthly basis, the
Facilities Payables relating to the License Term. Amounts not paid within 15
days of such date in accordance with this Section 4.3(a) shall accumulate
interest at the rate of 6 percent per annum or the maximum lawful rate,
whichever is less (such rate being referred to herein as the "Interest Rate").
Upon the termination of Facilities License, SkyTerra will invoice Divco for
Facilities Payables incurred or other applicable charges since the last invoice
in accordance with the terms and conditions set forth herein.
Section 4.4 Interruption of Services.
(a) Except as otherwise provided herein, SkyTerra will use its
commercially reasonable efforts to provide uninterrupted access to and usage of
the Shared Facilities and deliver the Other Office Services through the License
Term. In the event, however, that Divco is wholly or partially prevented from
using the Shared Facilities or if access to or use of the Shared Facilities is
interrupted or suspended, in either case by reason of any force majeure event
set forth in Section 13.1, or SkyTerra shall deem it reasonably necessary to
suspend access to or usage of the Shared Facilities or delivery of any of the
Other Office Services hereunder for purposes of maintenance, repair or
replacement of equipment parts or structures, SkyTerra shall not be obligated to
deliver such access, usage or services during such periods, provided, that
SkyTerra: (i) has given, whenever possible, written notice of the interruption
in accordance with Section 13.6 within a reasonable period of time, explaining
the reason, purpose and likely duration thereof; and (ii) uses commercially
reasonable efforts to minimize the duration and impact of the interruption.
Section 4.5 Means of Providing the Other Office Services. With respect
to the Other Office Services to be provided hereunder, SkyTerra shall determine
the means and resources used to provide such Other Office Services in accordance
with its prudent business judgment.
ARTICLE V
COSTS AND EXPENSES RELATED TO THE DISTRIBUTION
Section 5.1 Allocation of Costs and Expenses. Divco shall pay for all
fees, costs and expenses directly related to (i) the Distribution, including,
but not limited to, any and all fees, costs and expenses related to (a) the
preparation and negotiation of this Agreement and of all of the documentation
related to the Distribution, (b) the preparation and execution or filing of any
and all further documents, agreements, forms, applications, contracts or
consents associated with the Distribution, (c) Divco's organizational documents,
(d) the preparation, printing and filing of any Registration Statement,
including all fees and expenses of complying with applicable federal, state or
foreign securities laws and domestic or foreign securities exchange rules and
regulations, together with fees and expenses of counsel retained to effect such
compliance, (e) the preparation, printing and distribution of each of the
prospectuses for the Distribution and (f) the preparation, prior to the Closing
Date, of the documentation related to implementing Divco's employee benefit
plans, retirement plans and equity-based plans as a result of the Distribution.
In the event that SkyTerra voluntarily pays any of the above fees prior to a
Change in Control, SkyTerra shall not be entitled to reimbursement from Divco.
ARTICLE VI
MUTUAL OBLIGATIONS; COVENANTS
Section 6.1 Further Assurances. (a) Subject to the terms and conditions
of this Agreement, each Party will use its commercially reasonable efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary or desirable under applicable law to consummate the
transactions contemplated by this Agreement. At the request of Divco, and
without further consideration, SkyTerra will execute and deliver to Divco such
other instruments of transfer, conveyance, assignment, substitution and
confirmation and take such action as Divco may reasonably deem necessary or
desirable in order to more effectively transfer, convey and assign to Divco and
confirm Divco's title to all of the Assets, to put the Divco Group in actual
possession and operating control thereof and to permit the Divco Group to
exercise all rights with respect thereto (including, without limitation, rights
under contracts and other arrangements as to which the consent of any third
party to the transfer thereof shall not have previously been obtained). At the
request of SkyTerra and without further consideration, Divco will execute and
deliver to SkyTerra all instruments, assumptions, novations, undertakings,
substitutions or other documents and take such other action as SkyTerra may
reasonably deem necessary or desirable in order to have Divco fully and
unconditionally assume and discharge the Assumed Liabilities and to relieve the
SkyTerra Group of any liability or obligation with respect thereto and evidence
the same to third parties. Furthermore, each Party, at the request of the other
Party hereto, shall execute and deliver such other instruments and do and
perform such other acts and things as may be necessary or desirable for
effecting completely the consummation of the Distribution and transactions
contemplated hereby.
(b) The Parties shall cooperate with one another in
determining whether any action by, or in respect of, or filing with, and
governmental agency is required in connection with the Distribution and this
Agreement, and in taking such action or making any such filings and furnishing
information required in connection therewith.
Section 6.2 Legal Actions. (a) Within five Business Days of either
Party becoming a party to, or threatened with, or otherwise receives notice of,
any legal or regulatory proceeding or investigation (including inquiries or
complaints from any federal agency, state attorney general's office, from a
legislator on behalf of a constituent or from any Better Business Bureau or
similar organization) (in each case, a "Proceeding") arising out of or in
connection with this Agreement or the Distribution, it is agreed that such Party
will promptly provide written notification of such event to the other Party and,
to the extent reasonably requested or appropriate, the other Party will
cooperate with such Party to defend, settle, compromise or otherwise resolve
such Proceeding.
(b) No Party shall have the authority to institute, prosecute
or maintain any Proceeding on behalf of the other Party without the prior
written consent of the other Party.
(c) This Section 6.2 shall not apply to the extent provided
otherwise by the provisions of Article XI.
Section 6.3 Public Announcements. Neither SkyTerra nor Divco shall
issue a press release or other public announcement making reference to the other
Party, the other Party's products or the Services provided hereunder, other than
in the Registration Statement or Prospectus or otherwise required by law, unless
such Party has received the written approval of the other Party with respect to
the proposed text of such press release or announcement, which approval shall
not be unreasonably withheld or delayed, and neither Party shall make or publish
any statement that is, or may be reasonably considered to be, disparaging of the
other Party or its affiliates, directors, employees, products or services.
Section 6.4 Amounts Received. Within five Business Days of either Party
receiving payments from third parties due to the other Party, such party shall
remit such amounts to the Party entitled such payment, provided, that SkyTerra
shall remit to Divco all amounts due to SkyTerra or Divco prior to the
Distribution Date that are received by SkyTerra on or after the Distribution
Date.
ARTICLE VII
TAX MATTERS
Section 7.1 Tax Sharing Agreement. Notwithstanding anything to the
contrary in this Agreement, all matters relating to taxes shall be governed
exclusively by the Tax Sharing Agreement.
ARTICLE VIII
ACCESS TO INFORMATION, PERSONNEL AND HISTORICAL RECORDS
Section 8.1 Information and Personnel Shared Historical Records. Within
30 days of the Distribution Date, SkyTerra shall deliver to Divco, at Divco's
sole cost and expense, copies of all historical records, including but not
limited to, the books, records, and such other records, files, information
and/or data, or portions thereof (the "Records"), related primarily to the
business of the Divco Group; provided, however, that the Parties shall have no
obligation to provide such records in the event that the provision of such
records is prohibited by applicable law. The provision of any Records shall not
be deemed a waiver of any Privilege and the parties shall use reasonable efforts
to maintain and protect such Privileges with reasonable prior notice and in
consultation with the other parties.
Section 8.2 Access to Information. Subject to the confidentiality
provisions set forth in Article IX below and any other restrictions contained in
this Agreement:
(a) SkyTerra and Divco shall provide, upon written request,
any information within such Party's possession that the requesting Party
reasonably needs (i) to comply with requirements imposed on the requesting Party
by a governmental authority; (ii) for use by such requesting Party in any
proceeding or to satisfy audit, accounting or similar requirements; or (iii) to
comply with such requesting Party's obligations under this Agreement or any
other agreement executed by SkyTerra and Divco in connection with this Agreement
or the Distribution.
(b) SkyTerra and Divco shall provide, upon written request,
all financial and other data and information that the requesting Party
determines is necessary and advisable in the preparation of its financial
statements and any reports or filings with any governmental agency.
Section 8.3 Litigation Cooperation. The Parties agree to the extent
reasonably necessary to cooperate and consult in the defense and settlement of
any threatened or filed third-party action, claim or dispute which jointly
involves the SkyTerra Group or the Divco Group ("Third Party Action") which
primarily relates to matters, actions, events or occurrences taking place prior
to any Change of Control. In addition, both SkyTerra and Divco will use their
reasonable best efforts to provide assistance to the other Party with respect to
any Third Party Action, and to make available to the other Party directors,
officers, other employees and agents of such assisting Party as witnesses in
legal, administrative or other proceedings. The Party providing information,
consulting or witness services under this Section 8.3 shall be entitled to
reimbursement from the other Party for reasonable and documented expenses. This
Section 8.3 shall not apply to the extent provided otherwise by the provisions
of Article XI.
Section 8.4 Attorney Client Privilege. Neither SkyTerra nor Divco will
be required to provide any information pursuant to this Agreement if the
provision of such information would serve as a waiver of any Privilege afforded
such information.
ARTICLE IX
CONFIDENTIALITY
Section 9.1 Confidential Information. For purposes of this Agreement,
"Confidential Information" means any information disclosed by a Party (the
"Providing Party") to the other Party (the "Receiving Party") pursuant to this
Agreement relating to the business, finances, technology or operations of the
Providing Party. The Receiving Party will (a) treat as confidential all
Confidential Information of the Providing Party, (b) not use such Confidential
Information except to exercise its rights and perform its obligations under this
Agreement, and (c) not disclose such Confidential Information to any third
party. Each Party will use at least the same degree of care (and not less than a
reasonable degree of care) it uses to prevent the disclosure of its own
confidential information of like importance, to prevent the disclosure of the
Providing Party's Confidential Information including the execution of
confidentiality agreements with its employees and consultants having access to
such Confidential Information. Each Receiving Party will promptly notify the
Providing Party of any actual or suspected misuse or unauthorized disclosure of
the Providing Party's Confidential Information.
Section 9.2 Exceptions. Confidential Information excludes information
that: (a) was in the public domain at the time it was disclosed or has become in
the public domain through no fault of the Receiving Party; (b) becomes known to
the Receiving Party through lawful means, at the time of disclosure, and was
acquired by such Receiving Party after the Effective Date as demonstrated by the
Receiving Party; (c) was independently developed by the Receiving Party without
any use of the Confidential Information; or (d) becomes known to the Receiving
Party, without restriction, from a source other than the Providing Party;
provided that such information was provided (i) under the circumstances of
disclosure that the Receiving Party does not have a duty of non-disclosure owed
to such third party, (ii) to the Receiving Party's knowledge, the disclosing
party's disclosure is not violative of a duty of non-disclosure owed to another,
including the Receiving Party, and (iii) the disclosure by the third party is
not otherwise unlawful. In the event that the Receiving Party, or any of its
representatives, becomes legally compelled by deposition, interrogatory, request
for documents, subpoena, civil investigative demand or similar judicial or
administrative process to disclose any Providing Party's Confidential
Information, the Receiving Party shall provide prompt prior written notice of
such requirement and cooperate with the Providing Party to obtain a protective
order or similar remedy to cause the Providing Party's Confidential Information
not to be disclosed, including interposing all available objections thereto. In
the event that such protective order or other similar remedy is not obtained,
the Receiving Party shall furnish only that portion of the Providing Party's
Confidential Information that has been legally compelled and shall exercise
reasonable best efforts to obtain assurance that "highly confidential" treatment
will be accorded such Confidential Information.
Section 9.3 Additional Responsibilities. Each Party will inform its
employees, agents and consultants having access to Confidential Information of
the other Party of the confidentiality provisions hereof, and will diligently
enforce such provisions, and will be responsible for actions of such employees,
agents and consultants in this respect.
ARTICLE X
DISCLAIMER AND LIMITATION OF LIABILITY
Section 10.1 No Representation or Warranty. SkyTerra does not, in this
Agreement or any other agreement, instrument or document contemplated by this
Agreement, make any representation as to, warranty of or covenant with respect
to:
(a) its title or rights in and to, or the value of, any asset
or thing of value transferred, or to be transferred, to Divco or the amount or
potential liability with respect to any Assumed Liability; provided, that after
the Effective Date, SkyTerra shall not challenge Divco's title or right in and
to or the value of any asset or thing of value transferred to Divco pursuant to
this Agreement; or
(b) the absence of defenses or freedom from counterclaims with
respect to any Assumed Liability.
Section 10.2 Limitation of Liability. IN NO EVENT SHALL ANY OFFICER,
DIRECTOR OR STOCKHOLDER OF EITHER PARTY, OR A PARTY ITSELF, BE LIABLE TO ANY
OTHER OFFICER, DIRECTOR OR STOCKHOLDER OF EITHER PARTY, OR THE OTHER PARTY
ITSELF, FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES
OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING
NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, THAT THE
FOREGOING LIMITATIONS SHALL NOT APPLY TO ANY ASSUMED LIABILITIES TO THE EXTENT
SUCH ASSUMED LIABILITIES INCLUDE ANY SPECIAL, CONSEQUENTIAL, INDIRECT,
INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS.
ARTICLE XI
BUSINESS AND REGISTRATION STATEMENT INDEMNIFICATION
Section 11.1 General Cross Indemnification. (a) SkyTerra shall
indemnify and hold harmless each member of the Divco Group and each of the
officers, directors, employees and agents of each member of the Divco Group
against any and all costs and expenses arising out of claims (including, without
limitation, reasonable attorneys' fees, interest, penalties and costs of
investigation or preparation for defense), judgments, fines, losses, claims,
damages, liabilities, demands, assessments and amounts paid in settlement
(collectively, "Losses"), in each case, based on, arising out of, resulting from
or in connection with any claim, action, cause of action, suit, proceeding or
investigation, whether civil, criminal, administrative, investigative or other
(collectively, "Actions"), based on, arising out of, pertaining to or in
connection with (i) any breach by SkyTerra of this Agreement or any other
agreement between any member of the Divco Group on the one hand and any member
of the SkyTerra Group on the other hand, (ii) the failure to honor any of the
Excluded Liabilities, or (iii) the ownership or the operation of the assets or
properties of MSV or TerreStar, or the operation or conduct of the business of,
including contracts entered into by, MSV or TerreStar, whether before, on or
after the date hereof.
(b) Divco shall indemnify and hold harmless each member of the
SkyTerra Group and each of the officers, directors, employees and agents of each
member of the SkyTerra Group against any and all Losses, in each case, based on,
arising out of, resulting from or in connection with any Actions, based on,
arising out of, pertaining to or in connection with (i) any activities, action
or inaction on the part of any member of the Divco Group or any of their
officers, directors, employees, affiliates acting as such (other than a member
of the SkyTerra Group acting as such), fiduciaries or agents, (ii) any breach by
Divco of this Agreement or by any member of the Divco Group of any other
agreement between any member of the Divco Group on the one hand and any member
of the SkyTerra Group on the other hand, (iii) the failure to honor any Assumed
Liabilities, (iv) the ownership or the operation of the Assets, and the
operation or conduct of the business of, including contracts entered into by,
the Divco Group, whether before, on or after the Distribution Date, (v) any
guaranty, keepwell or financial condition maintenance agreement of or by
SkyTerra provided to any person with respect to any actual or contingent
obligation of any member of the Divco Group or (vi) any violations under the
Securities Act or Exchange Act that arise out of or relate to the business of
SkyTerra, provided, that any claim pursuant to this clause (vi) is initiated
prior to a Change of Control, or within such reasonable and finite period
following a Change of Control as Divco and SkyTerra shall mutually agree in
writing, and provided, further, that in no case shall indemnification under this
clause (vi) include claims, (A) arising out of information furnished to SkyTerra
by MSV or TerreStar or on behalf of MSV or TerreStar and (B) for which SkyTerra
has expressly agreed to indemnify Divco.
(c) The indemnities contained in Sections 11.1(a) and (b)
shall be applicable whether or not any Action or the facts or transactions
giving rise to such Action arose prior to, on or subsequent to the date of this
Agreement.
Section 11.2 Registration Statement Indemnification. (a) Divco shall
indemnify and hold harmless each member of the SkyTerra Group and each of the
officers, directors, employees and agents of each member of the SkyTerra Group
(collectively, the "Registration Indemnitees") from and against any and all
Losses arising out of or based upon any Offering Document, including any untrue
statement or alleged untrue statement of a material fact contained in any
Offering Document, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; except insofar as such
Losses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with (i) information relating to
MSV or TerreStar furnished in writing to Divco by or on behalf of such MSV or
TerreStar or (ii) financial information, if any, provided by or on behalf of MSV
or TerreStar in writing to Divco.
(b) SkyTerra shall indemnify and hold harmless each member of
the Divco Group and each of the officers, directors, employees and agents of
each member of the Divco Group, to the same extent as the foregoing indemnity
from Divco to each Registration Indemnitee, but only with respect to (i)
information relating to MSV or TerreStar furnished in writing to Divco by or on
behalf of MSV or TerreStar and (ii) financial information, if any, provided by
MSV or TerreStar in writing to Divco. If any Action shall be brought against
Divco, any of its directors, officers, employees or agents based on any Offering
Document and in respect of which indemnity may be sought against SkyTerra
pursuant to this paragraph (b), SkyTerra shall have the rights and duties given
to Divco by Section 11.4 hereof (except that if Divco shall have assumed the
defense thereof SkyTerra shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at SkyTerra's expense), and Divco, its
directors, officers, employees and agents shall have the rights and duties given
to such Registration Indemnitee by Section 11.4 hereof.
Section 11.3 Contribution. (a) If the indemnification provided for in
this Article XI is unavailable to an indemnified party under Section 11.2 hereof
in respect of any Losses referred to therein, then an indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such Losses in such
proportion as is appropriate to reflect the relative fault of Divco on the one
hand and the applicable Registration Indemnitee on the other in connection with
the statements or omissions that resulted in such Losses. The relative fault of
Divco on the one hand and the applicable Registration Indemnitee on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by Divco on
the one hand or by such Registration Indemnitee on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(b) 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.
Section 11.4 Procedure. If any Action shall be brought against a
Registration Indemnitee or any other person entitled to indemnification pursuant
to this Article XI (collectively with the Registration Indemnitees, the
"Indemnitees") in respect of which indemnity may be sought against Divco or
SkyTerra, as applicable (the applicable party referred to herein as the
"Indemnifying Party"), such Indemnitee shall promptly notify the Indemnifying
Party, and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel and payment of all fees and expenses. Such Indemnitee
shall have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such person unless (i) the
Indemnifying Party has agreed in writing to pay such fees and expenses, (ii) the
Indemnifying Party has failed to assume the defense and employ counsel, or (iii)
the named parties to an Action (including any impleaded parties) include both an
Indemnitee and the Indemnifying Party and such Indemnitee shall have been
advised by its counsel that representation of such indemnified party and the
Indemnifying Party by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by the
same counsel has been proposed) due to actual or potential differing interests
between them (in which case the Indemnifying Party shall not have the right to
assume the defense of such Action on behalf of such Indemnitee). It is
understood, however, that the Indemnifying Party shall, in connection with any
one such Action or separate but substantially similar or related Actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such
indemnified persons not having actual or potential differing interests among
themselves, and that all such fees and expenses shall be reimbursed as they are
incurred. the Indemnifying Party shall not be liable for any settlement of any
such Action effected without its written consent, but if settled with such
written consent, or if there be a final judgment for the plaintiff in any such
Action, the Indemnifying Party shall indemnify and hold harmless each
Indemnitee, to the extent provided in the preceding paragraph, from and against
any Losses by reason of such settlement or judgment.
Section 11.5 Other Matters. (a) No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened Action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Action.
(b) Any Losses for which an indemnified party is entitled to
indemnification or contribution under this Article XI shall be paid by the
indemnifying party to the indemnified party as such Losses are incurred. The
indemnity and contribution agreements contained in this Article XI shall remain
operative and in full force and effect, regardless of (i) any investigation made
by or on behalf of any Indemnitee, Divco, its directors, officers, employees or
agents and (ii) any termination of this Agreement.
(c) The Parties shall, and shall cause their respective
subsidiaries to, cooperate with each other in a reasonable manner with respect
to access to unprivileged information and similar matters in connection with any
Action. The provisions of this Article XI are for the benefit of, and are
intended to create third party beneficiary rights in favor of, each of the
indemnified parties referred to herein.
(d) Divco shall reimburse SkyTerra and its subsidiaries for
all costs associated with subpoenas for discovery, including e-discovery, in
connection with any suit, proceeding or investigation against Divco and any of
its subsidiaries.
Section 11.6 Treatment of Indemnity Payments. SkyTerra and Divco shall
treat any payments made by an Indemnifying Party pursuant to this Article XI as
occurring immediately prior to the Distribution.
ARTICLE XII
TERMINATION
Section 12.1 Termination. (a) Each Facility License and any Other
Office Service or Services provided hereunder may be terminated (x) by mutual
written agreement of the Parties, (y) by the Party providing such License or
Other Office Service or Services upon written notice to the other Party if
performance has been rendered impossible or impracticable by reason of the
occurrence of any of the events described in Section 13.1 or (z) by either Party
upon written notice to the other Party if:
(i) the other Party fails to adequately perform in
any material respect any of its obligations under this Agreement or
otherwise breaches a material obligation under this Agreement (the
"Defaulting Party") and such failure to perform or breach of an
obligation is not cured within 30 days of the date on which written
notice is received by the Defaulting Party setting forth in reasonable
detail the manner in which the Defaulting Party failed to perform its
obligations hereunder; or
(ii) the other Party makes a general assignment for
the benefit of creditors, becomes insolvent, a receiver is appointed,
or a court approves reorganization or arrangement proceedings.
Any termination notice delivered by either Party shall specify the effective
date of termination and, where applicable, in detail the Other Office Service or
Services to be terminated.
Section 12.2 Survival. Expiration or termination of this Agreement or
any part hereof for any reason shall not terminate the other obligations of the
Parties hereunder, which shall survive any such termination. Subject to the
foregoing, expiration or termination of this Agreement or any part hereof for
any reason shall not terminate either Party's obligations and rights arising out
of any willful misconduct or gross negligence of the other Party occurring prior
to such termination or expiration, including the obligation to pay any money
owed hereunder up to or as a result of the termination of this Agreement or any
part hereof.
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Force Majeure. Neither Party shall be responsible for the
delay in the performance of any obligation hereunder due to labor disturbances,
accidents, fires, storms, floods, earthquake, explosion, wars, acts of
terrorism, riots, rebellions, insurrections, blockages, strike or labor
disruption, acts of governments, governmental requirements and regulations,
restrictions imposed by law or any other similar conditions, beyond the
reasonable control and without the fault or negligence of such Party, and the
time for performance by such Party shall be extended by the period of such
delay. Notwithstanding the foregoing, in no event shall Divco be relieved of its
payment obligations to SkyTerra with regard to the Assumed Liabilities or for
prior access or use of the Shared Facilities or Other Office Services delivered.
Section 13.2 Assignment. Except as otherwise provided in this
Agreement, including but not limited to a Change of Control, neither this
Agreement nor any of the rights, interests or obligations of any Party hereto
under this Agreement shall be assigned, in whole or in part, by operation of law
or otherwise by either of the Parties without the prior written consent of the
other Party. Any assignment in violation of the preceding sentence shall be
void. Subject to the preceding two sentences, this Agreement will be binding
upon, inure to the benefit of, and be enforceable by, the Parties and their
respective successors and assigns. Other than the indemnities under Articles XI,
nothing in this Agreement shall be construed to grant any person or entity not a
Party any rights or powers whatsoever, and except as provided in Section 13.18,
no person or entity shall be a third party beneficiary of this Agreement.
Nothing in this Section 13.2 affects the ability of either Party to terminate
the Agreement or any part hereof in accordance with the provisions of herein.
Section 13.3 Relationship of the Parties. Neither Party is an agent of
the other Party and neither Party has any authority to bind the other Party,
transact any business in the other Party's name or on its behalf, or make any
promises or representations on behalf of the other Party unless agreed to in
writing. Each Party will perform all of its respective obligations under this
Agreement as an independent contractor, and no joint venture, partnership or
other relationship shall be created or implied by this Agreement.
Section 13.4 Governing Law and Submission to Exclusive Jurisdiction.
This Agreement shall be governed by, enforced under and construed in accordance
with the laws of the State of New York, without giving effect (to the fullest
extent provided by law) to any choice or conflict of law provision or rule
thereof which might result in the application of the laws of any other
jurisdiction. Subject to Section 13.7, each of the Parties hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
courts of the State of New York and of the United States of America in each case
located in the County of New York for any litigation arising out of or relating
to this Agreement (and agrees not to commence any litigation relating thereto
except in such courts) and further agrees that service of any process, summons,
notice or document by U.S. certified or registered mail to its respective
address set forth in Section 13.6 (or to such other address for notice that such
Party has given the other Party written notice of in accordance with Section
13.6) shall be effective service of process for any litigation brought against
it in any such court. Each Party hereby irrevocably and unconditionally waives
any objection to the laying of exclusive venue of any litigation arising out of
this Agreement in the courts of the State of New York or of the United States of
America in each case located in the County of New York and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such litigation brought in any such court has been brought
in an inconvenient forum.
Section 13.5 Entire Agreement. This Agreement and the Schedules and
Exhibits referred to in this Agreement, which Schedules and Exhibits as such
Schedules and Exhibits, may be amended from time to time, are incorporated and
made a part of this Agreement by reference, constitute the entire agreement
between SkyTerra and Divco relating to the Distribution and obligations to be
provided by the parties, and there are no further agreements or understandings,
written or oral, between the Parties with respect thereto.
Section 13.6 Notices. All notices, requests, claims, consents, demands
and other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, by facsimile (that is confirmed) or sent
by overnight courier (providing proof of delivery) to the Parties at the
following addresses:
if to SkyTerra:
SkyTerra Communications, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Senior Vice President, Secretary and
General Counsel
if to Divco:
SkyTerra Holdings, Inc.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Senior Vice President, Secretary and
General Counsel
copies of all notices (which shall not constitute notice)
hereunder shall be delivered to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
or at such other address as the parties may specify by written notice to the
others, and each such notice, request, consent and other communication shall for
all purposes of this Agreement be treated as being effective or having been
given when delivered if delivered personally, upon receipt of facsimile
confirmation if transmitted by facsimile or on the next Business Day if
dispatched by overnight courier or. Section 13.7 Negotiation and Mediation. (a)
Negotiation. In the event of any dispute, controversy or claim arising out of or
relating to this Agreement or the breach, termination or validity thereof, or
the transactions contemplated hereby (a "Dispute"), upon the written notice of
either Party hereto, the Parties shall attempt in good faith to negotiate a
resolution of the Dispute. If the Parties are unable for any reason to resolve a
Dispute within 30 days after the receipt of such notice, the Dispute shall be
submitted to mediation in accordance with Section 13.7(b) hereof.
(b) Mediation. Any Dispute not resolved pursuant to Section
13.7(a) hereof shall, at the request (the "Mediation Request") of either Party
(the "Disputing Party"), be submitted to mediation in accordance with the
then-prevailing Commercial Mediation Rules of the American Arbitration
Association, as modified herein (the "Rules"). The mediation shall be held in
New York, New York. The Parties shall have twenty (20) days from receipt by a
party of a Mediation Request to agree on a mediator. If no mediator has been
agreed upon by the Parties within twenty (20) days of receipt by a Disputing
Party (or Parties) of a Mediation Request, then any Party may request (on
written notice to the other Party), that the American Arbitration Association
appoint a mediator in accordance with the Rules. All mediation pursuant to this
Section 13.7(b) shall be confidential and shall be treated as compromise and
settlement negotiations, and no oral or documentary representations made by the
Parties during such mediation shall be admissible for any purpose in any
subsequent proceedings. Neither Party shall disclose or permit the disclosure of
any information about the evidence adduced or the documents produced by the
other Party in the mediation proceedings or about the existence, contents or
results of the mediation award without the prior written consent of such other
Party except in the course of a judicial or regulatory proceeding or as may be
required by law, rule or regulation or requested by a governmental authority or
securities exchange. Before making any disclosure permitted by the preceding
sentence, the Party intending to make such disclosure shall give the other Party
a reasonable opportunity to protect its interests. If the Dispute has not been
resolved within sixty (60) days of the appointment of a Mediator, or within
ninety (90) days of receipt by a Disputing Party of notice in accordance with
Section 13.6 (whichever occurs sooner) or within such longer period as the
Parties may agree to in writing, then any Party may file an action on the
Dispute in any court having jurisdiction in accordance with Section 13.4 herein.
Section 13.8 Conflicting Provisions. In the event any provision of any
exhibit hereto conflicts with the provisions of this Agreement, the provisions
of this Agreement shall be controlling; provided that the provisions of the Tax
Sharing Agreement shall be controlling with respect to all matters relating to
taxes.
Section 13.9 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to a Party. Upon such determination that any term or other
provisions are invalid, illegal or incapable of being enforced, the Parties
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the Parties as closely as possible in a mutually acceptable
manner in order that the transactions be consummated as originally contemplated
to the fullest extent possible.
Section 13.10 Interpretation. (a) When a reference is made in this
Agreement to an Article, Section or Exhibit, such reference shall be to an
Article or Section of, or an Exhibit to, this Agreement unless otherwise
indicated. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Any agreement, instrument or statute
defined or referred to herein or in any agreement or instrument that is referred
to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession of
comparable successor statutes and references to all attachments thereto and
instruments incorporated therein.
(b) The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any provisions
of this Agreement.
Section 13.11 Counterparts. This Agreement may be executed in any
number of counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by all Parties and delivered to the other Party.
Section 13.12 Further Cooperation. Each Party shall cooperate with the
other, at any other Party's request, to execute any and all documents or
instruments, or to obtain any consent, in order to assign, transfer, perfect,
record, maintain, enforce or otherwise carry out the intent of the terms of this
Agreement.
Section 13.13 Amendment and Waiver. This Agreement may not be amended
or modified except by a writing signed by an authorized signatory of each Party.
No waiver by any Party or any breach or default hereunder shall be deemed to be
a waiver of any preceding or subsequent breach or default.
Section 13.14 Duly Authorized Signatories. Each Party represents and
warrants that its signatory whose signature appears below has been and is on the
date of this Agreement duly authorized by all necessary corporate or other
appropriate action to execute this Agreement.
Section 13.15 Waiver of Trial By Jury. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH PARTY HERETO IRREVOCABLE WAIVES ALL RIGHT OF TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR ANY MATTER ARISING HEREUNDER.
Section 13.16 Specific Performance. In addition to any other remedies
that any Party hereto may have at law or in equity, the Parties hereby
acknowledge that the transactions contemplated by this Agreement are unique, and
that the harm to a Party resulting from any breach by the other Party of its
obligations under this Agreement cannot be adequately compensated by damages.
Accordingly, the non-breaching Party shall have the right to have all
obligations, undertakings, agreements, covenants and other provisions of this
Agreement specifically performed by the breaching Party, and the non-breaching
Party shall have the right to obtain an order or decree of such specific
performance in any of the courts set forth in Section 13.4.
Section 13.17 Descriptive Headings. The descriptive headings of the
several articles and sections of this Agreement are inserted for reference only
and shall not limit or otherwise affect the meaning hereof.
Section 13.18 No Third Party Beneficiaries. Other than (i) the
indemnities under Article XI and (ii) with respect to a successor of SkyTerra in
the event of a Change of Control, nothing in this Agreement shall convey any
rights upon any person or entity, which is not a party or a permitted assignee
of a party to this Agreement.
Section 13.19 Binding Nature of Agreement. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto or their successors in interest, except as expressly otherwise provided
herein.
Section 13.20 Certain Definitions. For purposes of this Agreement:
(a) "Actions" has the meaning set forth in Section 11.1(a).
(b) "Affiliate" or "affiliate" of any person means another
person that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such first person,
where "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management policies of a person, whether
through the ownership of voting securities, by contract, as trustee or executor,
or otherwise.
(c) "Agreement" has the meaning set forth in the preamble to
this Agreement.
(d) "Assets" means those items described on Schedule I hereto.
(e) "Assignment and Assumption Agreement" has the meaning set forth in Section
1.1(b).
(f) "Assumed Liabilities" has the meaning set forth in Section
2.2.
(g) "Business Day" or "business day" means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York City are authorized or obligated by law or executive
order to close.
(h) "Change of Control" means any combination of shares, sale
of assets, merger or consolidation with or into any non-affiliate of SkyTerra or
any other transaction involving SkyTerra and the consolidation of a majority of
the direct or indirect equity interests of MSV.
(i) "Change of Control Payables" shall mean any amount payable
to any employee, agent, financial advisor, law firm, independent accounting
firm, vendor or consultant by SkyTerra or any other member of the SkyTerra Group
(i) pursuant to a contractual obligation arising upon a Change of Control,
pursuant to the terms of a written agreement between SkyTerra or any other
member of the SkyTerra Group and one or more third parties, or (ii) for services
rendered in connection with a contemplated or realized Change in Control.
(j) "Code" means the Internal Revenue Code of 1986 (or any
successor statute), as amended from time to time, and the regulations
promulgated thereunder.
(k) "Common Stock" has the meaning set forth in the preamble.
(l) "Confidential Information" has the meaning set forth in
Section 9.1.
(m) Contribution Agreement" has the meaning set forth in
Section 1.1(b).
(n) "Conveyance Documents" has the meaning set forth in
Section 1.1(d).
(o) "Defaulting Party" has the meaning set forth in Section
12.1(b).
(p) "Dispute" has the meaning set forth in Section 13.7(a).
(q) "Disputing Party" has the meaning set forth in Section
13.7(b).
(r) "Distribution" means the separation of Divco and SkyTerra
by means of a dividend distribution by SkyTerra of all of the shares of Common
Stock to the holders of capital stock, certain warrants and certain options to
purchase common stock of SkyTerra.
(s) "Distribution Date" means the date the Distribution is
consummated.
(t) "Divco" has the meaning set forth in the preamble.
(u) "Divco Group" means Divco, together with the group of
entities that will be subsidiaries of Divco immediately after the Effective
Date, and any corporation or other entity which may become a member of such
group from time to time.
(v) "Effective Date" means December 31, 2005.
(w) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(x) "Excluded Assets" means those items described on Schedule
II hereto.
(y) "Excluded Cash" means $12,500,000, held in the account set
forth on Schedule III hereto.
(z) "Excluded Liabilities" means those liabilities described
on Schedule V hereto.
(aa) "Facilities Payables" has the meaning set forth in
Section 4.2.
(bb) "Facilities License" has the meaning set forth in Section
4.3(a).
(cc) "Furniture and Equipment" means the furniture, fixtures
and other tangible personal property (including computers and software installed
thereon, computer peripherals, network equipment, telephone equipment, facsimile
machines and photocopy machines) that are located in the Shared Facilities on
the Effective Date.
(dd) "Indemnitees" has the meaning set forth in Section 11.4.
(ee) "Indemnifying Party" has the meaning set forth in Section
11.4.
(ff) "Interest Rate" has the meaning set forth in Section
4.3(a).
(gg) "License Term" has the meaning set forth in Section
4.1(a).
(hh) "Losses" has the meaning set forth in Section 11.1(a).
(ii) "Mediation Request" has the meaning set forth in Section
13.7(b).
(jj) "MSV" means Mobile Satellite Ventures LP, a Delaware
limited partnership.
(kk) "Non-Paying Party" has the meaning set forth in Section
4.3(c).
(ll) "Offering Document" means any Registration Statement and
the Prospectus relating thereto, as applicable, as well as any other disclosure
document or other information provided to prospective investors used in
connection with the Distribution.
(mm) "Other Office Services" has the meaning set forth in
Section 4.1(c).
(nn) "Party" or "Parties" has the meaning set forth in the
preamble.
(oo) "Privilege" means any privilege, including privileges
arising under or related to the attorney-client or attorney work product
privileges.
(pp) "Proceeding" has the meaning set forth in Section 6.3(a).
(qq) "Prospectus" means the prospectus or prospectuses,
including any free writing prospectus, included in any Registration Statement,
as amended or supplemented by any prospectus supplement and by all other
amendments and supplements to such prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus or
prospectuses.
(rr) "Providing Party" has the meaning set forth in Section
9.1.
(ss) "Receiving Party" has the meaning set forth in Section
9.1.
(tt) "Records" has the meaning set forth in Section 7.1.
(uu) "Registration Indemnitee" has the meaning set forth in
Section 11.2(a).
(vv) "Registration Statement" means any registration statement
filed by Divco or any other member of the Divco Group under the Securities Act
or the Exchange Act including, in each such case, the Prospectus relating
thereto, and amendments and supplements to such Registration Statement,
including post-effective amendments, all exhibits and all materials incorporated
by reference in such Registration Statement and Prospectus.
(ww) "Rules" has the meaning set forth in Section 13.7(b).
(xx) "Schedule IV Assets" has the meaning set forth in Section
2.1(b).
(yy) "Securities Act" means the Securities Act of 1933, as
amended.
(zz) "Shared Facilities" shall mean the current offices of
SkyTerra Communications, Inc., located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
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▇▇▇▇▇.
(aaa) "SkyTerra" has the meaning set forth in the preamble.
(bbb) "SkyTerra Group" means SkyTerra, together with the
subsidiaries of SkyTerra and any corporation or other entity which may be, may
have been or may become a member of such group from time to time, but excluding
any member of the Divco Group.
(ccc) "Subsidiary" or "subsidiary" of shall include all
corporations, partnerships, joint ventures, limited liability companies,
associations and other entities (a) in which SkyTerra or Divco, as applicable,
owns (directly or indirectly) 50% or more of the outstanding voting stock,
voting power, partnership interests or similar ownership interests, (b) of which
SkyTerra or Divco, as applicable, otherwise directly or indirectly controls or
directs the policies or operations and (c) which would be considered
subsidiaries of SkyTerra or Divco, as applicable, within the meaning of
Regulation S-K or Regulation S-X of the General Rules and Regulations under the
Securities Act.
(ddd) "Tax Sharing Agreement" has the meaning set forth in
Section 1.1(a).
(eee) "Terrestar" means TerreStar Networks, Inc., a Delaware
corporation.
(fff) "Third Party Action" has the meaning set forth in
Section 7.3.
[Execution Page Follows]
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed on its behalf on the day and year first above written.
▇▇▇▇▇▇ COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
SKYTERRA COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary