EXHIBIT S
Execution Copy
Harbinger Capital Partners Master Fund I, Ltd.
Harbinger Capital Partners Special Situations Fund, L.P.
Harbinger Capital Partners Fund I, L.P.
Harbinger Co-Investment Fund, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
September 16, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Gentlemen:
Reference is made to that certain Stock Purchase Agreement (the "Harbinger
Purchase Agreement"), dated as of September 12, 2008, by and among Harbinger
Capital Partners Master Fund I, Ltd. ("Harbinger Master"), Harbinger Capital
Partners Special Situations Fund, L.P. ("Harbinger Special" and, together with
Harbinger Master, "Harbinger") and Motient Ventures Holding Inc. ("Motient"),
pursuant to which Harbinger purchased from Motient 23,376,074 shares (the
"Purchased Shares") of the non-voting common stock, par value $0.01 per share
(the "Non-Voting Common Stock") of SkyTerra Communications, Inc. (the
"Company").
Reference is also made to that certain Letter Agreement (the "Initial
Letter Agreement"), dated as of September 12, 2008, by and among Harbinger and
the Company, pursuant to which the Company (i) agreed to exchange the Purchased
Shares for shares of Voting Common Stock (as hereinafter defined), (ii) agreed
to amend the Registration Rights Agreement (as hereinafter defined) to include
the Purchased Shares in the definition of `Registrable Shares', and (iii)
consented to the purchase of the Purchased Shares by Harbinger pursuant to the
Harbinger Purchase Agreement.
Reference is also made to that certain Registration Rights Agreement (the
"Registration Rights Agreement"), dated as of July 24, 2008 and as may be
amended from time to time, by and among Harbinger Master, Harbinger Special,
Harbinger Co-Investment Fund, L.P. ("Satellite Fund"), Harbinger Capital
Partners Fund I, L.P. ("Capital Fund" and, collectively with Harbinger and
Satellite Fund, the "Securityholders") and the Company, pursuant to which the
Company has granted the Securityholders certain registration rights with respect
to certain securities issued or to be issued by the Company.
Further reference is made to that certain Exchange Agreement (the
"Exchange Agreement"), dated as of May 6, 2006, by and among TerreStar
Corporation (f/k/a Motient Corporation) ("TerreStar"), Motient and the Company
pursuant to which the Company purchased from Motient 9,034,848.51 limited
partnership units of Mobile Satellite Ventures, LP ("MSV") and 1,572.11 shares
of common stock of Mobile Satellite Ventures GP, Inc. in exchange for 25,478,273
shares of the Company's Non-Voting Common Stock exchangeable in certain
circumstances for an equal number of shares of the Company's Voting Common Stock
(as defined below).
In consideration of the mutual covenants and agreements contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Letter Agreement hereby
agrees as follows:
1. Other Shares. Pursuant to Section 2.6 of the Harbinger Purchase
Agreement, Harbinger has agreed to purchase from Motient an additional 250,000
shares (the "Additional Shares") of Non-Voting Common Stock. Such Additional
Shares shall be held in escrow by the Collateral Agent (as hereinafter defined)
for the benefit of Harbinger, pending receipt of the FCC Consent (as hereinafter
defined). None of the Additional Shares are being exchanged for shares of Voting
Common Stock on the date hereof.
2. Exchange of Shares.
(a) At any time and from time to time after the date of this Letter
Agreement, at the request of Harbinger or any Affiliate of Harbinger (each a
"Harbinger Affiliate" and, collectively with Harbinger, each a "Stockholder"),
upon the certification of Harbinger or such Harbinger Affiliate to SkyTerra of
the representation and warranty contained in Section 4(c) with respect to such
entity as of such date, the Company will exchange all or part of the Additional
Shares for shares of the Company's voting common stock, par value $0.01 per
share (the "Voting Common Stock", and together with the Non-Voting Common Stock,
the "Common Stock") on a one-for-one basis (in each case as appropriately
adjusted for any stock split, combination, capital reorganization,
reclassification, stock dividend, stock distribution or similar event declared
or effected after the date hereof) (the "Exchanged Shares").
In the event that Harbinger is unable to obtain the consent of the Federal
Communications Commission ("FCC") authorizing Harbinger to own up to 100% of the
Common Stock of the Company (the "FCC Consent"), which is required in order for
Harbinger to take title to the Additional Shares, and the Collateral Agent (as
hereinafter defined) in possession of such Additional Shares sells some or all
of the Additional Shares to a third party (such third party, also a
"Stockholder"), then the Company agrees that at any time and from time to time,
at the request of such third party, the Company will exchange all or a part of
such Additional Shares for shares of Voting Common Stock on a one-for-one basis
(in each case as appropriately adjusted for any stock split, combination,
capital reorganization, reclassification, stock dividend, stock distribution or
similar event declared or effected after the date hereof) provided that such
third party provides to SkyTerra a certification of the representations and
warranties contained in Section 4 with respect to such third party as of such
date. Upon surrender of certificates representing the shares of Non-Voting
Common Stock that are being exchanged, the Company will issue to such
Stockholder certificates representing the appropriate number of shares of Voting
Common Stock registered in the name of such Stockholder or such other Person as
the Stockholder may designate. The shares of Voting Common Stock issuable upon
exchange for the shares of Non-Voting Common Stock will have been duly
authorized by the Company and, when delivered in accordance with the terms of
this Letter Agreement and upon surrender of the Additional Shares to the
Company, will be validly issued, fully paid and nonassessable.
For purposes of this Letter Agreement, "Collateral Agent" shall mean
Goldberg, Godles, Wiener & ▇▇▇▇▇▇.
(b) The certificates representing the Voting Common Stock issued pursuant
to Section 1(a) will bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND STATE SECURITIES LAWS, AND MAY NOT BE OFFERED FOR SALE, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS (I)
REGISTERED UNDER THE APPLICABLE SECURITIES LAWS, (II) SUCH TRANSACTION
IS PURSUANT TO RULE 144, RULE 144A OR REGULATION S UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (III) AN OPINION OF COUNSEL,
WHICH OPINION IS REASONABLY SATISFACTORY TO THE ISSUER, HAS BEEN
DELIVERED TO THE ISSUER AND SUCH OPINION STATES THAT THE SECURITIES
MAY BE TRANSFERRED WITHOUT SUCH REGISTRATION."
(c) If the issuance of shares of Voting Common Stock to any Stockholder
pursuant to Section 1(a) would conflict with, violate or constitute a breach or
default under FCC rules or regulations to which the Company or any of its
subsidiaries is subject; violate any judgment, order, decree or law applicable
to the Company or any of its subsidiaries; or delay or otherwise adversely
impact any consent, approval, or filing of the Company or its subsidiaries with
the FCC, then the Company shall issue the maximum number of shares of Voting
Common Stock pursuant to Section 1(a) that can be issued without causing such
conflict, violation, breach, delay or adverse impact, or without receipt of such
consent or approval, or pursuant to such consent or approval.
3. Registration Rights Agreement. As promptly as reasonably practicable,
the Company and Harbinger shall take all actions necessary to amend the
definition of "Registrable Shares" in the Registration Rights Agreement to
include the Additional Shares to be purchased by Harbinger pursuant to the
Harbinger Purchase Agreement. In the event that Harbinger is unable to obtain
the FCC Consent, and the Collateral Agent sells some or all of the Additional
Shares to a third party, the Company agrees, as promptly as reasonably
practicable following such sale, to take all actions necessary to enter into a
customary registration rights agreement with such third party, providing for a
shelf resale registration statement with respect to such Additional Shares. Such
agreement shall be in substantially the form of the registration rights
agreement being entered into by the Company with investors purchasing an
aggregate of 6,300,000 shares of the Company's common stock from Motient
pursuant to the Letter Agreements dated the date hereof (the "Other Investors
Letter Agreements"), and such registration rights shall not obligate the Company
to consummate or assist in any underwritten offering.
4. Company Consent. The Company hereby agrees and consents in all respects
to the sale of the Additional Shares to Harbinger pursuant to the terms and
conditions of the Harbinger Purchase Agreement as such agreement is in effect on
the date hereof.
5. Harbinger Representations and Warranties. Harbinger hereby represents
and warrants to the Company as follows:
(a) Authority. Harbinger has all requisite power, authority and legal
capacity to enter into this Letter Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Letter Agreement by
Harbinger, the performance of Harbinger's obligations hereunder and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action of Harbinger. This Letter Agreement has been duly
executed and delivered by Harbinger and, assuming the due authorization,
execution and delivery of this Letter Agreement by the Company, constitutes a
valid and binding obligation of Harbinger, enforceable against Harbinger in
accordance with its terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to enforcement of creditors' rights generally and by general principles
of equity.
(b) Investment Intent. Harbinger agrees that the Additional Shares and the
Exchanged Shares may not be sold, transferred, offered for sale, pledged,
hypothecated or otherwise disposed of without registration under the Securities
Act of 1933 (the "Securities Act") and any applicable state securities laws,
except pursuant to an exemption from such registration under the Securities Act
and such laws. Harbinger is able to bear the economic risk of holding the
Exchanged Shares for an indefinite period (including total loss of its
investment), and (either alone or together with its representatives) has
sufficient knowledge and experience in financial and business matters so as to
be capable of evaluating the merits and risk of its investment. Harbinger's
acquisition of the Additional Shares and the Exchanged Shares will not require
any registration under the Securities Act.
(c) Government Approvals. Harbinger's acquisition of the Additional Shares
and the Exchanged Shares does not require the consent, approval, authorization
or order of, or the filing, registration or qualification of Harbinger with, any
governmental authority, except for those which have already been received or
made. Harbinger's acquisition of the Additional Shares and the Exchanged Shares
does not require a filing under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, as amended from time to time, and does not violate any rule or
regulation of the FCC.
6. Harbinger Acknowledgement. Harbinger hereby acknowledges that it has no
rights under the Exchange Agreement (except to the extent it has any rights in
its role as a stockholder of TerreStar), and that it shall not be entitled to
any representation on the board of directors of the Company or any of its
subsidiaries, including MSV, or to any information rights with respect to the
Company any of its subsidiaries, including MSV, to which TerreStar or its
subsidiaries would otherwise be entitled pursuant to the Exchange Agreement.
7. No Material Adverse Effect. No suit, action, investigation or other
proceeding or event arising out of, related to or in connection with any
transactions contemplated by this Letter Agreement, the Exchange Agreement, the
Initial Letter Agreement or the Other Investors Letter Agreements, including any
claims or consequences relating to or resulting from such transactions, and no
breach or violation of this Letter Agreement, the Exchange Agreement, the
Initial Letter Agreement or the Other Investors Letter Agreements, shall be
deemed to constitute a breach of, or form the basis for the termination of, or
constitute or otherwise form the basis of a "Material Adverse Effect" under,
either the Master Contribution and Support Agreement, dated July 24, 2008, among
the Company, MSV, Mobile Satellite Ventures Subsidiary LLC, Harbinger, Harbinger
Capital Partners Fund I, L.P. and Harbinger Co-Investment Fund, L.P., or the
Securities Purchase Agreement, dated as of July 24, 2008, among MSV, Mobile
Satellite Ventures Finance Co., a Delaware corporation, and Harbinger.
This Letter Agreement, together with the Initial Letter Agreement,
constitutes the entire agreement among the parties hereto, and supersedes all
prior agreements and contemporaneous, arrangements, covenants, promises,
conditions, undertakings, inducements, representations, warranties and
negotiations, expressed or implied, oral or written, between the parties to this
Letter Agreement and the Initial Letter Agreement, with respect to the subject
matter hereof.
Each of Harbinger and its affiliates, on the one hand, and the Company, on
the other hand, shall, upon request of the other party, execute and deliver to
the requesting party any additional documents and take such further actions
(including delivering instructions to any depositary or securities intermediary)
as the requesting party may deem to be necessary or desirable to effect the
transactions contemplated hereunder or to ensure compliance with the terms
hereof.
This Letter Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and performed in
such state and without regard to the conflicts or choice of law provisions
thereof that would give rise to the application of the domestic substantive law
of any other jurisdiction.
This Letter Agreement may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same Letter Agreement. Facsimile and electronic signatures on this
Letter Agreement shall be deemed original signatures.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have duly executed this Letter
Agreement as of the date and year first above written.
HARBINGER CAPITAL PARTNERS
MASTER FUND I, LTD.
By: Harbinger Capital Partners
Offshore Manager, L.L.C., as
investment Manager
By:
-------------------------------
Name:
Title:
HARBINGER CAPITAL PARTNERS SPECIAL
SITUATIONS FUND, L.P.
By: Harbinger Capital Partners
Special Situations GP, LLC,
as general partner
By:
-------------------------------
Name:
Title:
HARBINGER CAPITAL PARTNERS FUND I,
L.P.
By: Harbinger Capital Partners GP,
LLC, as general partner
By:
-------------------------------
Name:
Title:
HARBINGER CO-INVESTMENT FUND, L.P.
By: Harbinger Co-Investment LP, LLC,
as general partner
By: HMC - New York, Inc., as
managing member
By:
-------------------------------
Name:
Title:
Acknowledged by:
SKYTERRA COMMUNICATIONS, INC.
By:
----------------------------------
Name:
Title:
SK 03773 0003 919363