UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
14A
Consent
Solicitation Statement Pursuant to Section 14(a) of the
Securities
Exchange Act of 1934
Filed
by the Registrant
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Filed
by a Party other than the Registrant
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Check
the appropriate box:
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Preliminary
Proxy Statement
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Confidential,
For Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
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Definitive
Consent Solicitation Statement
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Definitive
Additional Materials
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Soliciting
Material Pursuant to Rule 14a-11(c) or Rule
14a-12
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TERRESTAR
CORPORATION
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(Name
of Registrant as Specified In Its
Charter)
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(Name
of Person(s) Filing Proxy Statement if other than the
Registrant)
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Payment
of Filing Fee (Check the appropriate box):
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No
fee required.
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Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
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(1)
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Title
of each class of securities to which transaction
applies:
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(2)
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Aggregate
number of securities to which transaction applies:
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(3)
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Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it is determined):
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(4)
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Proposed
maximum aggregate value of transaction:
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(5)
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Total
fee paid:
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Fee
paid previously with preliminary proxy materials.
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Check
box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the form or schedule and the date of its
filing.
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Amount
previously paid:
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(2)
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Form,
Schedule or Registration Statement no.:
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(3)
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Filing
Party:
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(4)
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Date
Filed:
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TerreStar
Corporation
12010
Sunset Hills Road, 9th Floor
Reston,
VA 20190
December 7,
2009
SOLICITATION
OF WRITTEN CONSENT
To Our
Stockholders:
The Board
of Directors (the “Board”) of TerreStar Corporation (the “Company”) is
soliciting the written consent and approval from the holders of the
Company’s outstanding shares of common stock, $0.01 par value per share
(the
“Common Stock”)
, to take an Action by Written Consent of Stockholders in
Lieu of a Special Meeting authorizing the following actions (the
“Proposals”):
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1.
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An
amendment to the Company’s Restated Certificate of Incorporation
to increase our previously authorized 240,000,000 shares of common
stock to 800,000,000.
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2.
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An
amendment to the Company’s Restated Certificate of Incorporation by an
amendment to the Certificate of Designations of the Company’s Series
B Cumulative Convertible Preferred Stock (the “Series B Preferred”),
including without limitation the amendment of the conversion price in
respect of the securities issuable upon conversion of the Series B
Preferred and the maturity date.
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3.
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An
amendment to the Company’s Restated Certificate of Incorporation by an
amendment to the Certificate of Designations of the Company’s Series E
Junior Participating Preferred Stock (the “Series E Preferred”), including
without limitation the amendment of the exchange ratio and anti-dilution
protections in respect of the securities issuable upon conversion of the
Series E Preferred.
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This
solicitation is being conducted in connection with an exchange offer and consent
solicitation that the Company and certain of its subsidiaries commenced on
November 16, 2009. See “Background Regarding the Consent
Solicitation” beginning on Page 4.
The
Company intends to distribute this consent solicitation statement and the
accompanying consent card commencing on or about December 7, 2009 to the holders
of the Common Stock as of the close of business on December 3, 2009
(“Record Stockholders”). This date is referred to as the “Record
Date.”
Consents
that are dated, signed and delivered to the Company will remain effective unless
and until revoked by written notice of revocation dated, signed and delivered to
the Company at the address set forth above before
the date
and time consents sufficient to authorize the actions taken are delivered to the
Company in accordance with the General Corporation Law of the State of Delaware
(the “DGCL”).
Although
you can deliver your consent at any time after the date hereof, this consent
solicitation is required to remain open until at least the close of business on
January 6, 2010.
The Proposals will be deemed approved by the holders
of the Common Stock, if Record Stockholders representing at least a majority of
the outstanding shares of Common Stock deliver to the Company unrevoked
written consents approving the Proposals within 60 days of the date the first
dated consent is delivered to the Company.
This
solicitation is required to remain open until at least the close of business on
January 6, 2010. Record Stockholders are requested to indicate
their consent to the approval of the Proposals by signing and dating the consent
card, checking each box on the consent card for the approval of the Proposals
and delivering the consent card in the pre-paid envelope provided (or otherwise
submitting the consent card by telephone or internet, as
applicable).
IMPORTANT
NOTICE REGARDING THE AVAILABILITY OF CONSENT SOLICITATION MATERIALS: Copies of
the Company’s Consent Solicitation Statement, Annual Report on Form 10-K for the
year ended December 31, 2008, Amendment No. 1 to Annual Report on Form 10-K for
the year ended December 31, 2008 and Quarterly Report for the period ended
September 30, 2009 are available at www.edocumentview.com/tstr.
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By
order of the Board of Directors,
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Douglas
Brandon
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General
Counsel & Secretary
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Reston,
VA
December 7,
2009
Table
of
Con
tents
FORWARD-LO
OKI
NG STATEMENTS
This
Consent Solicitation Statement, including the documents incorporated by
reference herein, contain forward-looking statements
within
the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as
amended.
All statements regarding our expected financial
position and operating results, our business strategy, and our financing plans
are forward-looking statements. These statements can sometimes be
identified by our use of forward-looking words such as “may,” “will,”
“anticipate,” “estimate,” “expect,” “project,” or “intend.” These
forward-looking statements reflect our plans, expectations and beliefs and,
accordingly, are subject to certain risks and uncertainties. We
cannot guarantee that any of such forward-looking statements will be
realized.
You
should carefully read this Consent Solicitation Statement, the documents
incorporated by reference herein and our other filings with the Securities and
Exchange Commission (the “SEC”) from time to time, including our reports on
Forms 10-Q and 10-K which will be filed in the future, as well as our other
reports and filings with the SEC.
Our
forward-looking statements are based on information available to us today, and
we will not update these statements unless required by law. Our
actual results may differ significantly from the results discussed.
CONSENT
S
OLI
CITATION STATEMENT
The Board
of Directors of TerreStar Corporation (the “Board”), a Delaware corporation
(“TerreStar” or the “Company”), is sending this Consent Solicitation Statement
(“Consent Statement”) and the accompanying Consent Card (the “Consent Card”) to
the holders of the outstanding shares of the Company’s Common Stock, $0.01 par
value per share (the “Common Stock”), to take an Action by Written Consent of
Stockholders in Lieu of a Special Meeting (the “Written Consent”) authorizing
the following actions (the “Proposals”):
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1.
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An
amendment to the Company’s Restated Certificate of Incorporation to
increase our previously authorized 240,000,000 shares of Common Stock to
800,000,000.
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2.
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An
amendment to the Company’s Restated Certificate of Incorporation by an
amendment to the Certificate of Designations of the Company’s Series
B Cumulative Convertible Preferred Stock (the “Series B Preferred”),
including without limitation the amendment of the conversion price in
respect of the securities issuable upon conversion of the Series B
Preferred and the maturity date.
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3.
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An
amendment to the Company’s Restated Certificate of Incorporation by an
amendment to the Certificate of Designations of the Company’s Series E
Junior Participating Preferred Stock (the “Series E Preferred”), including
without limitation the amendment of the exchange ratio and anti-dilution
protections in respect of the securities issuable upon conversion of the
Series E Preferred.
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This solicitation is being conducted in connection with an
exchange offer and consent solicitation that the Company and certain of its
subsidiaries commenced on November 16, 2009. See “Background
Regarding the Consent Solicitation” beginning on Page 4.
The
Company intends to distribute this Consent Statement and the accompanying
Consent Card commencing on or about December 7, 2009 to the holders of the
Company’s Common Stock as of the close of business on the December 3, 2009
(“Record Stockholders”). This date is referred to as the “Record
Date.”
Only the
Record Stockholders are entitled to consent, to withhold their consent, or to
revoke their consent to the Proposals set forth in the Written
Consent. Record Stockholders are entitled to one vote for each
outstanding share of Common Stock held on the Record Date. As of the
Record Date, there were 139,727,035 issued and outstanding shares of Common
Stock.
Consents
that are dated, signed and delivered to the Company will remain effective unless
and until revoked by written notice of revocation dated, signed and delivered to
the Company at the address set forth above before
the date
and time consents sufficient to authorize the actions taken are delivered to the
Company in accordance with the General Corporation Law of the State of Delaware
(the “DGCL”).
Although
you can deliver your consent at any time after the date hereof, this consent
solicitation is required to remain open until at least the close of business
on
January 6, 2010.
The
Proposals will be deemed approved by the Company’s common stockholders, if
Record Stockholders representing at least a majority of the outstanding shares
of Common Stock deliver to the Company unrevoked written consents approving the
Proposals within 60 days of the date the first dated consent is delivered to the
Company.
This
solicitation is required to remain open until at least the close of business on
January 6, 2010.
Record Stockholders are requested to
indicate their consent to the approval of the Proposals by signing and dating
the Consent Card, checking each box on the Consent Card for the approval of the
Proposals and delivering the Consent Card in the pre-paid envelope provided (or
otherwise submitting the Consent Card by telephone or internet, as
applicable).
Notice
will be given to all nonconsenting stockholders if the Proposals are
approved.
QUESTIONS
AND
ANSWERS ABOUT THE CONSENT SOLICITATION
1.
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Why
did I receive this Consent
Statement?
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This
Consent Statement and the enclosed Consent Card have been sent to the Record
Stockholders because the Board is soliciting their vote on the following
Proposals:
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1.
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An
amendment to the Company’s Restated Certificate of Incorporation to
increase our previously authorized 240,000,000 shares of Common Stock to
800,000,000.
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2.
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An
amendment to the Company’s Restated Certificate of Incorporation by an
amendment to the Certificate of Designations of the Series B
Preferred, including without limitation the amendment of the conversion
price in respect of the securities issuable upon conversion of the Series
B Preferred and the maturity date.
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3.
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An
amendment to the Company’s Restated Certificate of Incorporation by an
amendment to the Certificate of Designations of the Series E Preferred,
including without limitation the amendment of the exchange ratio and
anti-dilution provisions in respect of the securities issuable upon
conversion of the Series E
Preferred.
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This
solicitation is being conducted in connection with an exchange offer and consent
solicitation that the Company and certain of its subsidiaries commenced on
November 16, 2009. See “Background Regarding the Consent
Solicitation” beginning on Page 4.
Additional
information regarding the Proposals is set forth below in this Consent
Statement.
2.
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What
is the Record Date and what does it
mean?
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The
Record Date for purposes of the Written Consent is December 3,
2009. The Record Date was established by the Board as required by the
DGCL and the Company’s By-Laws. Owners of record at the close of
business on the Record Date are entitled to:
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receive
the solicitation of the Written Consent;
and
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vote
on the Proposals set forth in the Consent
Statement.
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3.
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Why
is the Company seeking to approve the Proposals through the Written
Consent in lieu of holding a special
meeting?
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Pursuant
to Section 228 of the DGCL and the Company’s Restated Certificate of
Incorporation, any action which may be taken at any annual or special meeting of
stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted, and delivered to the Company.
In order
to eliminate the costs involved in holding a special meeting, and in order to
effect the approval of the Proposals as early as possible, the Company’s Board
resolved to proceed with the approval of the Proposals by written consent of the
Company’s stockholders.
4.
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Has
the Board approved the Proposals?
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Yes. On
November 12, 2009, the Board unanimously approved, declared advisable and
recommended that the requisite stockholders of the Company approve the
Proposals.
5.
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What
is the difference between holding shares as a stockholder of record and as
a beneficial owner?
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Some of
our stockholders hold their shares through a broker, bank or other nominee
rather than directly in their own name. As summarized below, there
are some distinctions between shares held of record and those owned
beneficially.
Common
Stockholder of Record
If your
shares are registered directly in your name with our transfer agent
Computershare, you are considered with respect to those shares to be the common
stockholder of record and the Consent Statement is being sent directly to you by
TerreStar. As the stockholder of record, you have the right to grant
your consent directly to us. We have enclosed a Consent Card for you
to use.
Beneficial
Owner
If your
shares are held in a brokerage account or by a bank or other nominee, you are
considered to be the beneficial owner of shares of Common Stock held in street
name, and the Consent Statement is being forwarded to you by your broker, bank
or nominee who is considered with respect to those shares the common stockholder
of record. As the beneficial owner, you have the right to direct your
broker, bank or other nominee on whether to consent to the
Proposals. Your broker, bank or nominee has enclosed a consent
instruction card for you to use in directing the broker or nominee regarding
whether to consent to the Proposals.
6.
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How
can I consent to the Proposals?
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Whether
you hold your shares directly as the Record Stockholder or beneficially in
street name, you may direct whether you consent to the Proposals. If
you are a Record Stockholder, you may consent by submitting a Consent Card
(whether submitted by mail, telephone or internet, as applicable), which is
accompanying this Consent Statement. If you hold shares beneficially
in street name, you may consent by submitting instructions to your broker, bank
or nominee. For directions on how to vote, please refer to the
instructions below and those included on your Consent Card, or for shares held
beneficially in street name, the Company refers you to the consent instructions
provided by your broker, dealer or nominee.
7.
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What
securities will be voted in connection with the Written
Consent?
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The
securities to be voted in connection with this Consent Statement consist of
shares of Common Stock outstanding as of the Record Date, with each share
entitling its record owner to one vote for each of the Proposals.
8.
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Can
I change or revoke my consent after I return my Consent
Card?
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Yes. Even
after you have submitted your Consent Card
or have
voted in accordance with your broker, dealer or nominee
(whether
submitted by mail, telephone, or Internet, as applicable), you may change or
revoke your consent at any time before
the date
and time consents sufficient to authorize the actions taken are delivered to the
Company in accordance with the DGCL.
Although
you can deliver your consent at any time after the date hereof, this consent
solicitation is required to remain open until at least the close of business on
January 6, 2010.
If your
shares are registered directly in your name,
regardless of the way in
which you submitted your Consent Card, you may change or revoke it, as
applicable, by:
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●
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Returning
a later-dated, signed Consent Card (whether submitted by mail, telephone
or internet, as applicable) that is received by the Company or its agent
before
the
date and time consents sufficient to authorize the actions taken are
delivered to the Company in accordance with the DGCL.
Although
you can deliver your consent at any time after the date hereof,
this consent
solicitation
is
required to remain open until at least the close of business on
January 6, 2010; or
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●
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Delivering
a written notice of revocation to Computershare, 250 Royall Street,
Canton, Massachusetts 02021 before
the
date and time consents sufficient to authorize the actions taken are
delivered to the Company in accordance with the DGCL.
Although
you can deliver your consent at any time after the date hereof, this
consent
solicitation
is
required to remain open until at least the close of business on
January 6, 2010.
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If your
shares are held through a broker or other nominee, you will need to contact that
institution if you wish to change your consent instructions or revoke your
consent.
9.
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Why
is my approval being asked to amend the Restated Certificate Incorporation
of the Company?
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Under the
DGCL
and our
certificate of incorporation
, an amendment to the certificate of
incorporation of a company requires approval by both the board of directors and
a majority of the voting power of the outstanding shares entitled to
vote. Any proposed amendment to the certificate of incorporation that
would increase or decrease the authorized shares of a class of stock, increase
or decrease the par value of the shares of a class of stock, or alter or change
the powers, preferences or special rights of the shares of a class of stock so
as to affect them adversely requires approval of the holders of a majority of
the outstanding shares of the affected class, voting as a separate class, in
addition to the approval of a majority of the voting power of the outstanding
shares entitled to vote on that proposed amendment.
Furthermore,
NASDAQ Rule 5635 limits the number of shares of Common Stock that we can issue
pursuant to certain transactions without the prior approval of our
stockholders. Generally, Rule 5635 requires the Company to obtain
stockholder approval prior to issuing or agreeing to issue shares of Common
Stock in an amount equaling or exceeding 20% of the number of shares of Common
Stock outstanding immediately prior to issuance, under certain
circumstances. So as to ensure compliance with all NASDAQ corporate
governance requirements, including Rule 5635, we are soliciting consents from
our stockholders for the approval of Proposal 1 to increase our previously
authorized shares of Common Stock to 800,000,000.
10.
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How
many shares of Voting Securities are required to approve the
Proposals?
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Pursuant
to TerreStar’s Restated Certificate of Incorporation, Proposals 1,
2 and 3 require for approval the affirmative written consent
of holders of at least a majority of the outstanding shares of Common
Stock as of the close of business on the Record Date. As of the
Record Date, there were 139,727,035 shares of the Common Stock
outstanding. Each share of the Common Stock is entitled to one
vote. Thus, the affirmative written consent of holders of at
least 70,003,245 (50.1%) shares of Common Stock held is required
to approve Proposals 1, 2 and 3, respectively.
In
addition, the affirmative written consent of the holders of at least a majority
of the outstanding shares of the Series B Preferred and the Series E Preferred,
respectively, voting in each case as a separate class, is required to approve
the amendments to the certificate of designations of the Series B Preferred as
set forth in Proposal 2 and the certificate of designations of the Series E
Preferred as set forth in Proposal 3, respectively. The Company is
seeking the necessary consents from the holders of the Series B Preferred and
the Series E Preferred separately from the solicitation of consents pursuant to
this Consent Statement.
11.
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Will
I be able to ask questions of the Company’s public
accountants?
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No. Ernst
& Young, which is serving as the Company’s public accounting firm for the
year ended December 31, 2009, will not be available to answer questions in
connection with the Written Consent. However, the Company will invite
representatives of Ernst & Young to participate in the annual meeting of
stockholders. If representatives of Ernst & Young attend the
annual meeting of the stockholders, they will have the opportunity to make a
statement if they desire to do so, and they will be available to respond to
appropriate questions.
12.
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If
I vote against the proposals, will I have appraisal
rights?
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Under the
DGCL and our Restated Certificate of Incorporation, common stockholders will not
be entitled to dissenter’s rights or appraisal rights with respect to the
Proposals.
13.
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How
can I submit a stockholder proposal for the 2010 annual meeting of
stockholders?
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To be
considered for inclusion in our proxy statement and form of proxy for the 2010
annual meeting stockholder proposals must be received at our offices by
February 19, 2010 (the date that is 120 days prior to the one year
anniversary of the mailing of our 2009 annual meeting proxy statement).
Proposals must meet all of the requirements of the SEC and our Amended and
Restated Bylaws to be eligible for inclusion in our 2010 proxy materials, and
must be submitted in writing delivered or mailed to the Secretary, TerreStar
Corporation, 12010 Sunset Hills Road, Reston, Virginia 20190. Nothing in this
paragraph shall be deemed to require the Company to include in its proxy
statement and proxy relating to the 2010 annual meeting of stockholders any
stockholder proposal which may be omitted from the Company’s proxy materials
pursuant to applicable regulations of the SEC in effect at the time such
proposal is received.
BACKGROUND
REGAR
DING THE CONSENT SOLICITATION
This
Consent Statement is distributed in connection with the exchange offers, which
were commenced on November 16, 2009 and are scheduled to expire on December 15,
2009, unless extended, by TerreStar and TerreStar Holdings Inc., a Delaware
corporation and a direct wholly-owned subsidiary of TerreStar (“Holdings” and,
together with TerreStar and TSN (as defined below), the “Companies”), whereby
TerreStar and Holdings are offering to exchange (each, an “Exchange Offer” and
collectively, the “Exchange Offers”) (i) all 90,000 outstanding shares of Series
A Cumulative Convertible Preferred Stock of TerreStar (“Series A Preferred”) for
up to 90,000 shares of Series F Preferred Stock of Holdings (“Sub Series F
Preferred”), (ii) all 318,500 outstanding shares of Series B Preferred for up to
318,500 shares of Sub Series F Preferred and (iii) all 1,200,000 outstanding
shares of Series E Preferred for up to 300,000 shares of Series G Junior
Preferred Stock of Holdings (“Sub Series G Preferred”). Additionally,
TerreStar Networks Inc., a Delaware corporation and an indirect majority-owned
subsidiary of TerreStar (“TSN”) and the Company are proposing to amend all
outstanding $167.0 million (as of September 30, 2009) aggregate principal amount
of 6.5% Senior Exchangeable PIK Notes due 2014 (the “6.5% Notes”) in the form of
a supplemental indenture (the “6.5% Notes Supplement”) to the indenture
governing the 6.5% Notes (the “6.5% Notes Indenture”) upon the receipt of
certain consents.
Upon
consummation of the Exchange Offers, as described in the offering documents,
Holdings will also issue 150,000 shares of the Sub Series G Preferred to each of
(i) EchoStar Corporation or its affiliates (“EchoStar”), and (ii) Harbinger
Capital Partners or its affiliates (“Harbinger”), for a total
additional issuance of 300,000 shares of Sub Series G Preferred, in exchange for
their waiver of certain Fundamental Corporate Transaction Approval Rights, as
set forth in the applicable certificates of designations, in respect of the
Exchange Offers, as holders of TerreStar’s Series C Preferred Stock (“Series C
Preferred”) and TerreStar’s Series D Preferred Stock (“Series D Preferred”) and
as holders of TSN’s Series A Preferred Stock (“TSN Series A Preferred”) and
TSN’s Series B Preferred Stock (“TSN Series B Preferred,” and together with the
TSN Series A Preferred, the “TSN Series A&B Preferred”) and their consents
under certain other agreements and arrangements (the “Consent
Payment”). Harbinger, as the holder of the Series D Preferred and the
TSN Series B Preferred, has the right, for so long as Harbinger beneficially
owns at least 10% of the Common Stock (as defined below) on a fully-diluted
basis, to nominate two directors to the board of directors of each of TerreStar
and TSN, and to approve certain fundamental corporate actions of TerreStar and
TSN, and, for so long as Harbinger beneficially owns at least 5% of the Common
Stock on a fully-diluted basis, Harbinger has the right to nominate one director
to the board of directors of each of TerreStar and TSN. EchoStar, as
the holder of the Series C Preferred and the TSN Series A Preferred, has the
same rights under the same circumstances.
As part
of the Exchange Offers, TerreStar is soliciting consents from holders of the
Series B Preferred regarding the proposed amendments to the Certificate of
Designations of the Series B Preferred (the “Series B Preferred Amendments”)
discussed in Proposal 2. Additionally, in connection with the 6.5%
Notes Supplement, TerreStar and TSN are also soliciting consents to certain
amendments to the 6.5% Notes Indenture (the “6.5% Notes Amendments,” and,
together with the Series B Preferred Amendments, the “Proposed
Amendments”). Also, TerreStar, TSN and Holdings are soliciting
consents for the approval by holders of the 6.5% Notes of the Exchange Offers
and Solicitation and all of the transactions contemplated thereby (the “6.5%
Noteholders’ Approval”). For the purposes of this Consent Statement,
we refer to the solicitations for the 6.5% Noteholders’ Approval and Proposed
Amendments as the “Solicitation,” and, together with the Exchange Offers, the
“Exchange Offers and Solicitation.”
In
addition to the consents being sought pursuant to the Solicitation, the Company
is also separately seeking to obtain the consent of Harbinger as the owner of
all of the issued and outstanding shares of the Series E Preferred in connection
with Proposal 3 (the “Series E Consent”) and will be obtaining the consents of
EchoStar and Harbinger (the “Additional Consents”) to the consummation of the
Exchange Offers and Solicitation and all transactions contemplated thereby,
including without limitation Proposals 1, 2 and 3, as necessary, in exchange for
the Consent Payments, as set forth above.
The Exchange Offers and
Solicitation are being made to all holders of the applicable securities,
including EchoStar and Harbinger, who may be deemed affiliates of the
Company.
Upon consummation
of the Exchange Offers and Solicitation, Holdings will own of record and hold as
fiduciary, for the benefit of the holders of the Sub Series F Preferred and Sub
Series G Preferred, respectively, the Series B Preferred, as amended (the
“Parent Amended Series B Preferred”), and the Series E Preferred, as amended
(the “Parent Amended Series E Preferred”)
tendered
in the Exchange Offer
. Therefore, even after the consummation
of the Exchange Offers, holders of Sub Series F Preferred will continue to be
entitled to all of the rights of a holder of Parent Amended Series B Preferred
as though the Sub Series F Preferred holder was both the beneficial and record
owner of an equal number of shares of the Parent Amended Series B Preferred as
such holder owns of the Sub Series F Preferred. Similarly, holders of
Sub Series G Preferred will continue to be entitled to all of the rights of a
holder of Parent Amended Series E Preferred as though the Sub Series G Preferred
holder was both the beneficial and record owner of an equal number of shares of
the Parent Amended Series E Preferred as such holder owns of the Sub Series G
Preferred. Accordingly, holders of Sub Series F Preferred and Sub
Series G Preferred, as beneficial owners of Parent Amended Series B Preferred
and Parent Amended Series E Preferred, respectively, may cause the conversion of
their respective securities into shares of Common Stock.
Further,
upon consummation of the Exchange Offers, as described in the offering
documents, the 6.5% Notes will be amended per the terms set forth in the 6.5%
Notes Supplement.
Currently,
for each $1,000 of principal amount thereof, the 6.5% Notes are exchangeable for
179.400 shares of Common Stock, however, each $1,000 of the 6.5% Notes held by
Harbinger is exchangeable for 7.176 shares of Series E Preferred,
each of
which is currently convertible into 25 shares of Common Stock or 179.400 shares
of Common Stock in the aggregate. After giving effect to the 6.5% Notes
Amendments, each $1,000 of principal amount of amended 6.5% Notes shall be
exchangeable for a number of shares of Sub Series G Preferred equal to (i)
1,000, divided by (ii) the product of (a) 100 and (b) the product of (x) the
average of the closing price of a share of Common Stock over the 10 trading day
period ending three days immediately prior to the close of the proposed Exchange
Offers and (y) 125%. Such change will result in a conversion ratio in
respect of the 6.5% Notes into Common Stock, after giving effect to the exchange
rights of the Sub Series G Preferred Stock, equivalent to the conversion
ratio in respect of the Parent Amended Series B Preferred into Common
Stock.
The
holders of the Sub Series G Preferred will beneficially own the Parent Amended
Series E Preferred, which in turn, shall be convertible into shares of Common
Stock based upon the conversion rate set forth in the Certificate of
Designations for the Parent Amended Series E Preferred.
Based on
the average of the closing price of a share of our Common Stock over the 10
trading day period ending December 3, 2009, which is equal to $1.15, each
$1,000, principal amount of amended 6.5% Notes would be exchangeable for 695
shares of Common Stock.
The 6.5% Notes Supplement will also
effect, among other things, an amendment to the anti-dilution provisions of the
6.5% Note to reflect the new securities underlying the exchange of the 6.5%
Notes.
The
Exchange Offers and Solicitation are subject to certain waiveable
conditions. Among these conditions, is a minimum participation
condition, which requires the affirmative participation in the Exchange Offers
and Solicitation of at least 90% of each of the Series A and Series B Preferred
and the Series E Preferred. However, it is likely that TerreStar and
Holdings will waive the minimum participation condition if the 90%
participation level is not reached because the holder of the Series A Preferred
does not tender its shares in the Exchange Offer. In the event
TerreStar and Holdings determine to waive such condition of minimum
participation and proceed with the Exchange Offers, it is possible that the
non-participating holders could commence litigation against the Companies
seeking to enjoin the Exchange Offers or other equitable
remedies. The Companies can offer you no assurances that they would
prevail in any such litigation. TerreStar and Holdings do not believe
that the consummation of the Exchange Offers will trigger any rights of any
non-participating holder to require TerreStar to redeem such holder’s shares of
Preferred Stock, pursuant to the terms of the applicable certificate of
designations. However, if a holder asserted such right and prevailed,
the redemption price per share in such event would be 108% of the liquidation
amount of the applicable Preferred Stock, which liquidation amount is equal to
$1,000 per share plus all accrued and unpaid dividends
thereon.
Further,
if the holder of the Series A Preferred does not affirmatively tender in the
Exchange Offer, all outstanding shares of the Series A Preferred will become
mandatorily redeemable on April 15, 2010 at the applicable liquidation
amount. Failure by TerreStar to redeem the Series A Preferred when
required to do so, including at the April 15, 2010 maturity date of the Series A
Preferred, would result in the ability of the Series A Preferred, voting as a
single class with all other parity securities upon which like voting rights have
been conferred and are exercisable, to elect two (2) members to TerreStar’s
board of directors until such failure is cured.
Similarly,
in the event that the Exchange Offers are not consummated, both the Series A
Preferred and the Series B Preferred will become mandatorily redeemable on April
15, 2010 at the applicable liquidation amount. A failure by TerreStar to
redeem the Series B Preferred shares when required to do so would result in the
ability of the Series B Preferred, voting as a single class with all other
parity securities upon which like voting rights have been conferred and are
exercisable, to elect a majority of the members to TerreStar’s board of
directors until such failure is cured. Holders of the Series A
Preferred and Series B Preferred might also, in such circumstances, seek
additional remedies against the Company for failure to so redeem as
required. If the holder of the Series A Preferred does
not affirmatively tender in the Exchange Offer or if the Exchange Offers are not
consummated, the Companies cannot provide assurances that they would be able to
redeem the Series A Preferred and Series B Preferred when they come due,
especially in light of the uncertainty in the credit and equity markets due to
the economic downturn.
AMENDMENT
TO THE COM
PAN
Y’S RESTATED CERTIFICATE OF INCORPORATION, THE
EFFECT
OF WHICH WILL INCREASE OUR PREVIOUSLY AUTHORIZED 240,000,000 SHARES OF
COMMON
STOCK TO 800,000,000
(Proposal
1)
The Board
has unanimously approved an amendment to the Company’s Restated Certificate of
Incorporation to increase the number of authorized shares of Common Stock from
240,000,000 to 800,000,000.
Holders
of Common Stock are entitled to one vote per share for each share held of record
on all matters submitted to a vote of stockholders and are entitled to receive
ratably such dividends as may be declared by the Board out of funds legally
available therefor. After satisfaction of the dividend rights of
holders of any outstanding preferred stock, holders of Common Stock will be
entitled to any dividend declared by the Board out of funds legally available
for this purpose. However, it is not anticipated that any cash
dividends will be paid on the Common Stock for the foreseeable
future. Upon a liquidation, dissolution or winding up of TerreStar,
holders of Common Stock will have the right to a ratable portion of assets
remaining after payment of liabilities and any payments due to holders of
outstanding preferred stock. The holders of Common Stock have no
preemptive rights and the rights, preferences and privileges of holders of
Common Stock may be adversely affected by the rights of the holders of shares of
any series of preferred stock that we may designate and issue in the
future.
Stockholders
are asked to consider and vote upon this amendment. The Board
recommends that stockholders vote FOR Proposal 1.
Reasons
for Proposal 1
Currently,
the Company is authorized to issue up to 240,000,000 shares of Common Stock. Of
the 240,000,000 shares authorized, as of the Record Date, there were
139,727,035
shares issued and outstanding. Upon the successful consummation of the Exchange
Offers, holders of the Sub Series F Preferred and Sub Series G Preferred
(including shares held as a result of the Consent Payment to EchoStar and
Harbinger, respectively) who beneficially own, respectively, the Parent Amended
Series B Preferred and the Parent Amended Series E Preferred, as discussed
above,
and the
holders of the amended 6.5% Notes
may convert their securities (or cause
the conversion of the Parent Amended Series B Preferred and Parent Amended
Series E Preferred) into Common Stock. If such conversion of shares were to
occur, the current number of shares of Common Stock authorized would be
insufficient. Therefore, the Board has proposed the increase in the number of
authorized shares of Common Stock in order to provide a sufficient number of
shares of Common Stock that would be necessary upon the conversion of all Parent
Amended Series B Preferred shares, all Parent Amended Series E Preferred shares
and amended 6.5% Notes and, in addition, to provide a sufficient number of
additional shares of Common Stock to be available for the future issuance of
Common Stock for securities exercisable for, or convertible into, shares of
Common Stock in circumstances which the Board believes will advance the
interests of the Company and its stockholders.
Ability
of the Board to Issue Shares; Effect of Proposal 1 on Stockholders
If
Proposal 1 is approved by the requisite stockholders (including pursuant to the
Additional Consents, as necessary), the additional shares of Common Stock
authorized by the amendment may be issued from time to time upon conversion of
shares of the Company’s other securities, as set forth above, without further
approval by the stockholders unless required by applicable law, rule or
regulation. Shares of Common Stock may be issued for such
consideration as the Board may determine and as may be permitted by applicable
law. If the stockholders approve Proposal 1 to amend the Restated
Certificate of Incorporation to increase the number of authorized shares of
Common Stock, you may be substantially diluted by
the
Exchange Offers and Solicitation and by
future
issuances. See “Proposal 2—Effect of Proposal 2 on Shareholders” and
“Proposal 3—Effect of Proposal 3 on Shareholders.”
In
addition, the availability of the additional shares resulting from the amendment
to the Company’s Restated Certificate of Incorporation could have an
anti-takeover effect by making it more difficult and less
desirable for a third party to seek or to gain control of the Company, although
this is not the intention of the Board.
For
example, in the event of a hostile attempt to take control of the company, it
may be possible for the Company to impede the attempt by issuing shares of
Common Stock, which would dilute the voting power of the other outstanding
shares and increase the potential cost to acquire control of the Company.
While it
is not the Board’s intent, t
he proposed amendment therefore may have the
effect of discouraging unsolicited takeover attempts, potentially limiting the
opportunity for the Company
’
s stockholders to
dispose of their shares at a premium, which is often offered in takeover
attempts, or that may be available under a merger
proposal.
Effective
Date of Amendment to Restated Certificate of Incorporation Pursuant to Proposal
1
If
approved by the requisite stockholders (including pursuant to the Additional
Consents, as necessary), it is anticipated that the amendment to the Restated
Certificate of Incorporation will become effective upon the filing of a
certificate of amendment with the Secretary of State of the State of Delaware,
which filing is expected to occur simultaneously with the consummation of the
Exchange Offers and Solicitation. However, even if the proposed
amendment is approved by the requisite stockholders, our Board may, in its
discretion, determine to abandon the proposed amendment after the stockholder
approval of Proposal 1
but prior
to the effectiveness of the filing of the amendment with the Secretary of State
of the State of Delaware
.
THE BOARD
UNANIMOUSLY RECOMMENDS THAT YOU VOTE
FOR
PROPOSAL 1 TO AMEND THE
RESTATED CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED
SHARES OF COMMON STOCK.
APPROVAL
OF AMENDMENT
TO THE RESTATED CERTIFICATE OF
INCORPORATION
OF TERRESTAR BY AN AMENDMENT TO THE CERTIFICATE OF DESIGNATIONS FOR THE SERIES B
PREFERRED,
INCLUDING, WITHOUT LIMITATION, T
HE AMENDMENT OF THE
CONVERSION
PRICE IN RESPECT OF THE
SECURITIES ISSUABLE UPON CONVERSION OF THE SERIES B
PREFERRED AND THE MATURITY
DATE
(Proposal
2)
The Board
has unanimously approved an amendment to the Company’s Restated Certificate of
Incorporation by an amendment to the Certificate of Designations for the Series
B Preferred, which will amend, among other things, the conversion price in the
current Certificate of Designations for the Series B Preferred and the maturity
date.
Summary
of Proposal 2
Certain
material terms of the Parent Amended Series B Preferred are different from and
may be considered less favorable to the holders thereof than those of the
original Series B Preferred. The following chart outlines certain
differences in such material terms, which is qualified in its entirety by
reference to the respective certificates of designations of the Series B
Preferred and the form of Parent Amended Series B Preferred.
The
certificate of designations
of the
Series B Preferred
was filed as Exhibit 3.1 to the Company’s Current
Report on Form 8-K filed on October 31, 2005 and the form of certificate of
designations
of the
Parent Amended Series B Preferred
is attached
to this
Consent Statement
as Appendix B.
Rights of Series B
Preferred
|
Rights of the Parent Amended Series B
Preferred
|
Maturity Date
—The
Series B Preferred matures and become mandatorily redeemable by TerreStar
on April 15, 2010.
|
Maturity Date
—Parent
Amended Series B Preferred matures and becomes mandatorily redeemable by
TerreStar on June 30, 2014.
|
Dividends
—Holders of
Series B Preferred are entitled to dividends payable in cash at a rate of
5.25% per annum or shares of Common Stock at a rate of 6.25% per
annum. Accumulation of dividends, instead of payment thereof,
for two (2) or more periods will trigger the Board election rights
described above.
|
Dividends
—Holders of
Parent Amended Series B Preferred, are entitled to dividends payable in
cash or shares of Common Stock at a rate of 7% per
annum. Accumulation of dividends, instead of payment thereof,
for two (2) or more periods will trigger the Board election rights
described above.
|
Board Rights
—Holders of
the Series B Preferred are entitled, together with the holders of any
parity securities, acting as a single class, to elect a majority of
directors to the Board upon the occurrence of certain triggering
events.
|
Board Rights
—The
holders of the Parent Amended Series B Preferred will have the right as a
class, to elect a majority of the Board upon the occurrence of certain
triggering events.
|
Conversion
—Holders of
the Series B Preferred are entitled to receive on conversion of the Series
B Preferred a number of shares of Common Stock equal to the Series B
Liquidation Amount divided by the market value per share of Common Stock
on the date the Series B Preferred was issued, plus a premium of 97.2%
(based on TerreStar’s Common Stock closing price of $16.90 on October 25,
2005, the date on which the Series B Preferred was originally
issued),
which
is equal to a conversion price of $33.33. As a result,
t
he
number of shares of Common Stock issuable upon conversion of a single
share of the original Series B Preferred is 30.
|
Conversion
—The holders
of the of the Parent Amended Series B Preferred, are entitled to receive
upon conversion of the Parent Amended Series B Preferred, a number of
shares of Common Stock equal to the Parent Amended Series B Liquidation
Amount divided by the product of (i) the average of the closing prices of
a share of Common Stock over the 10 trading day period ending
three days immediately prior to the close of the proposed Exchange
Offers and Solicitation and (ii) 125%, but in no event less than the
market value as of such date as calculated in accordance with the rules of
the Nasdaq National or Small Cap Market System.
Based
on the average of the closing price of a share of our Common Stock over
the 10 trading day period ending December 3, 2009, which is equal to
$1.15, the number of shares of Common Stock issuable upon conversion of a
single share of Parent Amended Series B Preferred would be
695.
|
Reasons
for Proposal 2
The
amendment to the Restated Certificate of Incorporation by amendment to the
Certificate of Designations for the Series B Preferred is being conducted in
connection with the Exchange Offers and Solicitation. The Exchange
Offers and Solicitation are being conducted in an effort to extend the maturity
of the Series A Preferred and Series B Preferred, among other
things. If the Exchange Offers and Solicitation are consummated,
as
described in the offering documents,
including without limitation the
Series B Preferred Amendments, the maturity date in respect of the Series B
Preferred and the Series A Preferred will be extended until June 30, 2014 (from
April 15, 2010), which will enable the Company to better fulfill its debt
obligations and more effectively raise additional capital. The Series
B Preferred Amendments will effect, among other things, a change in the maturity
date of the Series B Preferred, a change in the dividend rate of the Series B
Preferred and a change in the conversion price of the Series B Preferred to more
closely reflect the current market value of the Common Stock than does the
conversion price under the original Series B Preferred.
Effect
of Proposal 2 on Stockholders
If
Proposal 2 is approved by the requisite stockholders
(including
pursuant to the Additional Consents, as necessary, and by the holders of a
majority of the shares of the Series B Preferred outstanding, in each case
voting as a separate class)
, the maturity date in respect of the Series B
Preferred and the Series A Preferred (because the Series A Preferred, which will
be exchanged for shares of Sub Series F Preferred, which will beneficially own
the Parent Amended Series B Preferred) will be extended until June 30, 2014 from
April 15, 2010, which will enable the Company to better fulfill its debt
obligations and more effectively raise additional capital. However,
the Series B Preferred Amendments will also effect, among other things, an
increase in the dividend rate of the Series B Preferred and a change in the
conversion price of the Series B Preferred to more closely reflect the current
market value of the Common Stock than does the conversion price under the
original Series B Preferred. Because of the more favorable conversion
price of the Parent Amended Series B Preferred and the higher dividend payment
rate, more shares of Common Stock shall be issuable upon conversion of the
Parent Amended Series B Preferred than upon conversion of the original Series B
Preferred, which may substantially dilute the current holders of shares of
Common Stock.
The
following illustrates the potential dilution as a result of Proposal 2, assuming
that the Exchange Offers are fully subscribed and the approval of this Proposal
2:
The
number of shares of Common Stock currently issuable upon conversion of all
outstanding shares of the original Series B Preferred (including the October 15,
2009 dividend that was accrued at the 6.25% Common Stock rate and not paid),
based upon a conversion price of $33.33
, as
discussed above,
is 9,854,579. The number of shares of Common Stock
issuable upon conversion of all outstanding shares of the Parent Amended Series
B Preferred (including the October 15, 2009 dividend that was accrued at the
6.25% Common Stock rate and not paid), based upon a conversion price of
$1.15
, derived
from the average of the closing price of a share of our Common Stock over the 10
trading day period ending December 3, 2009, the number of shares of Common Stock
issuable upon conversion of all outstanding shares of the Parent Amended Series
B Preferred
would be 228,489,130.
Effective
Date of Amendment to Certificate of Incorporation Pursuant to Proposal
2
If
approved by the requisite stockholders
(including
pursuant to the Additional Consents, as necessary, and by a majority of the
outstanding shares of the Series B Preferred, in each case voting as a separate
class)
and approved by the holders of the Series B Preferred pursuant to
the Exchange Offers and Solicitation, it is anticipated that the amendment to
the Company’s Restated Certificate of Incorporation will become effective upon
the filing of an Amended and Restated Certificate of Designations for the Series
B Preferred with the Secretary of State of the State of Delaware, which filing
is expected to occur simultaneously with the consummation of the Exchange Offers
and Solicitation. However, even if the proposed amendment is approved
by the requisite stockholders, our Board may, in its discretion, determine to
abandon the
proposed
amendment after stockholder approval
of Proposal 2
but prior
to the effectiveness of the filing of the amendment with the Secretary of State
of the State of Delaware
.
THE BOARD
UNANIMOUSLY RECOMMENDS THAT YOU VOTE
FOR
PROPOSAL 2 TO AMEND THE
RESTATED CERTIFICATE OF INCORPORATION BY AN AMENDMENT TO THE CERTIFICATE OF
DESIGNATIONS FOR THE SERIES B PREFERRED.
APPROVAL
OF AMEN
DMEN
T TO THE RESTATED CERTIFICATE OF INCORPORATION OF
TERRESTAR
BY AN AMENDMENT TO THE CERTIFICATE OF DESIGNATIONS FOR THE SERIES E
PREFERRED,
INCLUDING, WITHOUT LIMITATION, T
HE AMENDMENT OF THE
EXCHANGE
RATIO AND ANTI-DILUTION
PROTECTIONS IN RESPECT OF THE SECURITIES ISSUABLE
UPON
CONVERSION OF THE SERIES E
PREFERRED
(Proposal
3)
The Board
has unanimously approved, an amendment to the Company’s Restated Certificate of
Incorporation by an amendment to the Company’s Certificate of Designations for
the Series E Preferred, which will amend, among other things, the exchange ratio
and anti-dilution protections in respect of the Series E Preferred.
Summary
of Proposal 3
Certain
material terms of the Parent Amended Series E Preferred are different from and
may be considered less favorable to the holders thereof than those of the
original Series E Preferred. The following chart outlines certain
differences in such material terms, which is qualified in its entirety by
reference to the respective certificates of designations of the Series E
Preferred and the form of Parent Amended Series E Preferred.
The
certificate of designations
of the
Series E Preferred
was filed as Exhibit 3.8 to the Company’s Quarterly
Report on Form 10-Q for the fiscal quarter ended June 30, 2008 and the form of
certificate of designations
of the
Parent Amended Series E Preferred
is attached
to this
Consent Statement
as Appendix C.
Rights of Series E
Preferred
|
Rights of the Parent Amended Series E
Preferred
|
Restrictions on
Transfer
—The Certificate of Designations for the Series E Preferred
contains no express prohibitions on transfer.
|
Restrictions on
Transfer
—The Certificate of Designations of the Parent Amended
Series E Preferred contains an express prohibition on transfer to any
entity other than a Related Party of the holders,
as
defined in the certificate of designations for the Parent Amended Series E
Preferred
.
|
Conversion
—Each share
of Series E Preferred is convertible into 25 shares of Common
Stock.
|
Conversion
—Each share
of the Parent Amended Series E Preferred, is convertible into 100 shares
of Common Stock.
|
Anti-Dilution
Provisions
—The anti-dilution protections provided in the Series E
Preferred Certificate of Designations provide for adjustment of the number
of shares of Common Stock into which the Series E Preferred is convertible
in the event that the Company declares or pays any dividend on the Common
Stock payable in shares of Common Stock or effects a subdivision or
combination or consolidation of the outstanding shares of Common
Stock.
|
Anti-Dilution
Provisions
—The anti-dilution protections in the Parent Amended
Series E Preferred will be amended so as to be generally comparable to the
anti-dilution provisions contained in the 6.5% Notes
Indenture. In particular, the Parent Amended Series E
Certificate of Designations provides for the adjustment of the number of
shares of Common Stock into which the Parent Amended Series E is
convertible upon dividends or other distributions to holders of Common
Stock payable in shares of Common Stock, or cash, subdivisions,
combinations or evidences of indebtedness or other assets to the holders
of Common Stock and upon certain tender offers or exchange offers of
the Common Stock.
|
Reasons
for Proposal 3
The
amendment to the Restated Certificate of Incorporation by amendment to the
Certificate of Designations for the Series E Preferred is being conducted in
connection with the Exchange Offers and Solicitation. The Exchange
Offers and Solicitation are being conducted in an effort to extend the
maturity of the Series A Preferred and Series B Preferred, among other
things. Pursuant to the 6.5% Notes Indenture, the 6.5% Noteholders’
Approval is required in order to consummate the Exchange Offers and
Solicitation. In order to obtain the 6.5% Noteholders’ Approval, the
Companies have agreed to amend the 6.5% Notes whereby, among other things, the
securities for which the 6.5% Notes are exchangeable are changed from Common
Stock or Series E Preferred, as applicable, to Sub Series G Preferred which, by
virtue of its beneficial ownership of the Parent Amended Series E Preferred,
will be convertible into Common Stock. In addition, the 6.5% Notes
Amendments change the exchange ratio in respect of the 6.5% Notes such that it
is more favorable to the 6.5% Notes holders. The amendments to the
Certificate of Designations for the Series E Preferred pursuant to Proposal 3
are to effect the changes to the exchange ratio of the 6.5% Notes as
contemplated by the 6.5% Notes Amendments and the changes to the anti-dilution
provisions in the Certificate of Designations of the Series E Preferred are
necessary to afford the 6.5% Notes holders the same protections against dilution
following the effectiveness of the 6.5% Notes Amendments to which they are
currently entitled under the 6.5% Notes Indenture.
Effect
of Proposal 3 on Stockholders
Currently,
for each $1,000 of principal amount thereof, the 6.5% Notes are exchangeable for
179.400 shares of Common Stock, however, each $1,000 of the 6.5% Notes held by
Harbinger is exchangeable for 7.176 shares of Series E Preferred,
each of
which is currently convertible into 25 shares of Common Stock or 179.400 shares
of Common Stock in the aggregate.
After giving effect to the
6.5% Notes Amendments, each $1,000 of principal amount of amended 6.5% Notes,
shall be exchangeable for a number of shares of Sub Series G Preferred equal to
(i) 1,000, divided by (ii) the product of (a) 100 and (b) the product of (x) the
average of the closing price of shares Common Stock over the ten trading day
period ending three days immediately prior to the close of the proposed Exchange
Offers and Solicitation and (y) 125%. The holders of the Sub Series G
Preferred will beneficially own the Parent Amended Series E Preferred, which in
turn, shall be convertible into 100 shares of Common Stock. Such change
will result in a conversion ratio in respect of the 6.5% Notes into Common
Stock, after giving effect to the exchange rights of the Sub Series G Preferred
Stock, equivalent to the conversion ratio in respect of the Parent Amended
Series B Preferred into Common Stock. Based on the average of the closing
price of a share of our Common Stock over the 10 trading day period ending
December 3, 2009,
which was
equal to $1.15,
each $1,000, principal amount of amended 6.5% Notes would
be exchangeable for 695 shares of Common Stock.
As
discussed above, the holders of the 6.5% Notes Amendments will also effect,
among other things, an amendment to the anti-dilution provisions of the 6.5%
Notes Indenture to reflect the new securities underlying the exchange of the
amended 6.5% Notes The amendments pursuant to Proposal 3 will amend,
among other things, the conversion ratio and anti-dilution provisions of the
Certificate of Designations of the Series E Preferred to be consistent with the
6.5% Notes Amendments.
Subject
to the consummation of the Exchange Offers and Solicitation,
as
described in the offering documents,
the 6.5% Notes will be made more
favorable to such 6.5% Notes holder, permitting such amended 6.5% Notes holder
to ultimately convert each $1,000 of principal amount of amended 6.5% Notes into
more shares of Common Stock than under the original 6.5%
Notes. Additionally, the anti-dilution protections in respect of the
Common Stock will provide for an adjustment of the number of shares of Common
Stock into which the Parent Amended Series E Preferred is convertible upon
dividends or other distributions to holders of Common Stock payable in shares of
Common Stock, subdivisions, combinations or distributions of warrants and
options, shares of TerreStar’s capital stock (other than shares of Common
Stock), cash, or evidences of indebtedness or other assets to the holders of
Common Stock and upon certain tender offers or exchange offers for the Common
Stock. While the conversion ratio will be made more favorable under
the Certificate of Designations for the Parent Amended Series E Preferred than
under the Certificate of Designations for the original Series E Preferred, due
to the exchange ratio of one share of Series E Preferred to 0.25 shares of Sub
Series G Preferred under the Exchange Offer, shares of Sub Series G Preferred
issued as part of the Exchange Offer for shares of Series E Preferred, which are
ultimately converted into shares of Common Stock, shall not result in more
shares of Common Stock being issued than under the original Series E
Preferred. However, because of the more favorable conversion ratio
that will result from the amendment to the Certificate of Designations of the
Series E Preferred and the 6.5% Notes Amendments, shares of the Parent Amended
Series E Preferred, which are issued in connection with the Consent Payment and
the exchange of the amended 6.5% Notes, beneficially owned by holders of the Sub
Series G Preferred, shall result in more shares of Common Stock being issuable
upon conversion, which may substantially dilute the current holders of shares of
Common Stock.
The
following illustrates the potential dilution you may face as a result of
Proposal 3, assuming that the Exchange Offers are fully subscribed and the
approval of this Proposal 3:
The
number of shares of Common Stock currently issuable upon conversion of the
$167.0 million (as of September 30, 2009) of the 6.5% Notes (assuming the
existing conversion rate of 179.400 shares of Common Stock for each $1,000 of
principal amount) and the 1,200,000 shares of the original Series E Preferred
(assuming the existing conversion rate of 25 shares of Common Stock for each
share of Series E Preferred) is approximately 60.0 million. The number of
shares of Common Stock issuable upon conversion of the $167.0 million (as of
September 30, 2009) of the amended 6.5% Notes (assuming an amended conversion
rate of 6.95 shares), of Sub Series G Preferred for each $1,000 of principal
amount of amended 6.5% Notes and the 600,000 shares of Sub Series G Preferred
(including shares issued in the exchange of the existing Series E Preferred and
for the Consent Payment) outstanding at the close of the Exchange Offers and
Solicitation (assuming the amended conversion rate of 100 shares of Common Stock
for each share of Parent Amended Series E Preferred) would be aproximately
176.2 million.
The
amended
conversion rate of 6.95 shares of Sub Series G Preferred for each $1,000 of
principal amount of amended 6.5% Notes assumes that, for purposes of this
illustration, the average closing price of shares of Common Stock over the
10 trading day period ending three days immediately prior to the close
of the proposed Exchange Offers and Solicitation is $1.15.
For
purposes of this illustration, the $1.15 average closing price of shares of
Common Stock has been calculated using the 10 trading day period ending on
December 3, 2009.
Effective
Date of Amendment to Certificate of Incorporation Pursuant to Proposal
3
If
approved by the requisite stockholders
(including
pursuant to the Additional Consents, as necessary, and by two-thirds vote of
the outstanding shares of the Series E Preferred, voting in each case as a
separate class)
and approved by the holders of the Series E Preferred, it
is anticipated that the amendment to the Company’s Restated Certificate of
Incorporation will become effective upon the filing of an Amended and Restated
Certificate of Designations for the Series E Preferred with the Secretary of
State of the State of Delaware, which filing is expected to occur simultaneously
with the consummation of the Exchange Offers and
Solicitation. However, even if the proposed amendment is approved by
the requisite stockholders, our Board may, in its discretion, abandon the p
roposed
amendment after the stockholder approval
of Proposal 3
but prior
to the effectiveness of the filing of the amendment with the Secretary of State
of the State of Delaware
.
THE BOARD
OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE
FOR
PROPOSAL 3 TO AMEND THE
RESTATED CERTIFICATE OF INCORPORATION BY AN AMENDMENT TO THE CERTIFICATE OF
DESIGNATIONS FOR THE SERIES E PREFERRED.
SECURITY
O
WNE
RSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
AND RELATED STOCKHOLDER MATTERS
The
following table sets forth certain information known to us with respect to the
beneficial ownership of our Common Stock as of November 23, 2009 (unless
otherwise indicated), by:
|
·
|
each
person known by us to be a beneficial owner of five percent (5%) or more
of our Common Stock;
|
|
·
|
each
executive officer named in the summary compensation table in Item 11 of
our Annual Report for the fiscal year ended December 31,
2008;
|
|
·
|
each
current executive officer; and
|
|
·
|
all
current directors and executive officers as a
group.
|
As used
in this table, “beneficial ownership” means the sole or shared power to vote, or
to direct the voting of, a security, or the sole or shared investment power with
respect to a security (that is, the power to dispose of, or to direct the
disposition of, a security). In addition, a person is deemed, as of
any date, to have “beneficial ownership” of any security that such person has
the right to acquire within 60 days after such date. The number of
shares beneficially owned by each stockholder is determined according to the
rules of the SEC, and the information is not necessarily indicative of
beneficial ownership for any other purpose. Under current rules,
“beneficial ownership” includes any shares as to which the individual or entity
has sole or shared voting power or investment power. As a
consequence, several persons may be deemed to be the “beneficial owners” of the
same securities.
Each of
the stockholders named in this table has sole voting and investment power with
respect to the common shares shown as “beneficially owned.” The
percentage ownership of each stockholder is calculated based on 139,594,035
shares of Common Stock outstanding as of November 20, 2009.
Name
and Address of Beneficial Owner
|
Number
of
Shares
Beneficially
Owned
|
|
Directors
and Executives Officers
|
|
|
Jeffrey
Epstein (1)
|
719,094
|
*
|
Vincent
Loiacono (2)
|
135,000
|
*
|
Dennis
Matheson (3)
|
600,183
|
*
|
Douglas
Brandon (4)
|
150,000
|
*
|
William
Freeman, Chairman of the Board (5)
|
75,600
|
*
|
David
Andonian, Director (6)
|
62,000
|
*
|
David
Rayner, Director (7)
|
25,000
|
*
|
Jacques
Leduc, Director (6)
|
62,000
|
*
|
Eugene
Davis, Director (8)
|
25,000
|
*
|
David
Meltzer, Director (9)
|
57,000
|
*
|
Dean
Olmstead, Director (7)
|
25,000
|
*
|
Current
Directors and Officers as a Group (10 persons)
|
1,935,877
|
*
|
|
|
|
Other
5% Stockholders
|
|
|
Harbinger
Capital Partners (10)
|
87,673,303
|
47.7%
|
EchoStar
Corporation (11)
|
39,180,172
|
26.3%
|
Solus
Alternative Asset Management (12)
|
12,190,414
|
8.4%
|
* Less
than 1%.
Share
ownership reflects options to purchase common shares exercisable within 60 days
of the date hereof.
(1)
|
Includes
47,222 shares of vested restricted common shares, 519,722 shares of
non-vested restricted common shares, 30,000 shares purchased on the open
market and 122,150 options to purchase common shares. The
non-vested common shares are subject to repurchase by the Company in the
event of termination of service.
|
(2)
|
Includes
non-vested restricted common shares. The non-vested restricted
common shares are subject to repurchase by the Company in the event of
termination of service.
|
(3)
|
Includes
12,133 shares of vested restricted common shares, 186,716 shares of
non-vested restricted common shares, 41,000 shares purchased on the open
market and 360,334 options to purchase common shares. The
non-vested restricted common shares are subject to repurchase by the
Company in the event of termination of service. Mr. Matheson is
an executive officer of our subsidiary TerreStar Networks
Inc.
|
(4)
|
Includes
10,000 shares of vested restricted common shares and 140,000 shares of
non-vested restricted common shares. The non-vested restricted
common shares are subject to repurchase by the Company in the event of
termination of service.
|
(5)
|
Includes
options to purchase common shares.
|
(6)
|
Includes
24,000 shares of vested restricted common shares, 6,000 shares of
non-vested restricted common shares and 32,000 options to purchase common
shares. The non-vested restricted common shares are subject to
repurchase by the Company in the event of termination of
service.
|
(7)
|
Includes
8,000 vested restricted common shares, 12,000 non-vested restricted common
shares and 5,000 options to purchase common shares. The
non-vested common shares are subject to repurchase by the Company in the
event of termination of service. Messrs. Olmstead and Rayner
expressly disclaimed beneficial ownership of any shares not directly owned
by them.
|
(8)
|
Includes
8,000 vested restricted common shares, 12,000 non-vested restricted common
shares and 5,000 options to purchase common shares. The
non-vested common shares are subject to repurchase by the Company in the
event of termination of service.
|
(9)
|
Includes
20,000 vested restricted common shares, 5,000 non-vested restricted common
shares and 32,000 options to purchase common shares. The
non-vested restricted common shares are subject to repurchase by the
Company in the event of termination of
service.
|
(10)
|
Funds
Affiliated with Harbinger Capital Partners Master Fund I,
Ltd. Pursuant to a Schedule 13D/A dated October 16, 2009, as
filed with the Commission, Harbinger Holdings LLC reported it had shared
voting and dispositive power over 77,673,303 common shares, including
1,886 shares issuable upon exercise of warrants, 4,894,143 shares issuable
upon conversion of shares of Series B Preferred Stock and approximately
30,000,000 shares issuable upon conversion of shares of Series E Preferred
Stock. Each of Harbinger Capital Partners Master Fund I, Ltd.
and Harbinger Capital Partners LLC reported shared voting and dispositive
power over 63,581,587 common shares. Each of Harbinger Capital
Partners Special Situations Fund, L.P. and Harbinger Capital Partners
Special Situations GP, LLC reported shared voting and dispositive power
over 24,091,716 common shares. Philip Falcone reported shared
voting and dispositive power over 87,673,303 common shares. The
mailing address of Philip Falcone is 450 Park Avenue, 30
th
Floor, New York, New York, 10022.
|
(11)
|
EchoStar
Corporation. Pursuant to a Schedule 13D dated June 19, 2008, as
filed with the Commission, EchoStar Corporation reported it had shared
voting and dispositive power over 39,180,172 shares, including 9,180,172
shares of common shares issuable upon the conversion of its Exchangeable
Notes.
|
(12)
|
Solus
Alternative Capital Asset Management LP. Pursuant to a Schedule
13G/A dated February 17, 2009, as filed with the Commission, Solus
Alternative Asset Management LP reported that as of December 31, 2008, it
had shared voting and dispositive power over 12,190,414 common shares, of
which 6,926,609 were held as common shares and the remainder were held as
notes and convertible preferred stock which are convertible into 5,263,805
common shares.
|
The
address for all officers and directors is c/o TerreStar Corporation, 12010
Sunset Hills Road, Reston, Virginia 20190.
UNAUDITED
PRO FORMA FINANCIAL INFORMATION
The following unaudited Pro Forma
Condensed Consolidated Balance Sheet of TerreStar Corporation as
of September 30, 2009 gives effect to the consummation of the Exchange
Offers and Solicitation and the approval of the Proposals contemplated by this
Consent Statement. The unaudited Pro Forma Condensed Consolidated Statements of
Operations of TerreStar Corporation for the twelve month and nine
month periods ended December 31, 2008 and September 30, 2009,
respectively, present the results of operations
of TerreStar Corporation as if the Exchange Offers and
Solicitation and the Proposals contemplated by this Consent Statement were
completed or approved, respectively, as of January 1, 2008, the beginning of our
2008 fiscal year. Pro forma adjustments related to the pro forma statements of
operations include adjustments which give effect to events that are directly
attributable to the Exchange Offers and Solicitation and the
Proposals and which are expected to have a continuing impact on
us.
The information below is not
necessarily indicative of what our results of operations or financial condition
would have been had the Exchange Offers and Solicitation and the
Proposals been completed as of January 1, 2008. In addition, the
information is not indicative of our future results of operations or financial
condition.
This
unaudited Pro Forma financial information
should be read in conjunction
with Management's Discussion and Analysis of Financial Condition and Results of
Operations and our audited financial statements for the fiscal year
ended December 31, 2008, as filed in our Annual Report on Form 10-K,
as amended, and our unaudited financial statements for the fiscal quarter
ended September 30, 2009, as filed in our Quarterly Report on
Form 10-Q, which are incorporated by reference herein and are being
delivered to you with this Consent Statement, respectively.
TERRES
TAR
CORPORATION
Pro
Forma Condensed Consolidated Balance Sheet
As
of September 30, 2009
(in
thousands)
Unaudited
|
|
|
Historical
September
30,
2009
|
|
|
Pro
Forma
Adjustment
|
|
|
|
|
|
Pro
Forma
September
30,
2009
|
|
ASSETS
|
CURRENT
ASSETS:
|
Cash
and cash equivalents
|
|
$
|
72,337
|
|
|
$
|
|
|
|
|
|
|
|
$
|
72,337
|
|
TERRESTAR
CORPORATION
Pro
Forma Condensed Consolidated Balance Sheet
As
of September 30, 2009
(in
thousands)
Unaudited
|
|
Historical
September
30,
2009
|
|
|
Pro
Forma
Adjustment
|
|
|
|
|
|
|
Pro
Forma
September
30,
2009
|
|
Deferred
issuance costs
|
|
|
4,485
|
|
|
|
(2,453
|
)
|
|
|
(2
|
)
|
|
|
2,032
|
|
Prepaid
and other current assets
|
|
|
4,148
|
|
|
|
|
|
|
|
|
|
|
|
4,148
|
|
Total
current assets
|
|
|
80,970
|
|
|
|
(2,453
|
)
|
|
|
|
|
|
|
78,517
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property
and equipment, net
|
|
|
900,645
|
|
|
|
|
|
|
|
|
|
|
|
900,645
|
|
Intangible
assets, net
|
|
|
345,809
|
|
|
|
|
|
|
|
|
|
|
|
345,809
|
|
Restricted
cash
|
|
|
470
|
|
|
|
|
|
|
|
|
|
|
|
470
|
|
Deferred
issuance costs
|
|
|
6,859
|
|
|
|
|
|
|
|
|
|
|
|
6,859
|
|
Other
assets
|
|
|
6,000
|
|
|
|
|
|
|
|
|
|
|
|
6,000
|
|
Total
assets
|
|
$
|
1,340,753
|
|
|
$
|
(2,453
|
)
|
|
|
|
|
|
$
|
1,338,300
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES
AND STOCKHOLDERS' EQUITY
|
CURRENT
LIABILITIES:
|
Accounts
payable and accrued
expenses
|
|
$
|
21,970
|
|
|
|
|
|
|
|
|
|
|
$
|
21,970
|
|
Deferred
rent and other current
liabilities
|
|
|
1,678
|
|
|
|
|
|
|
|
|
|
|
|
1,678
|
|
Deferred
satellite performance
incentives
|
|
|
18,628
|
|
|
|
|
|
|
|
|
|
|
|
18,628
|
|
Series
A and Series B convertible
preferred
stock
dividends payable
|
|
|
11,245
|
|
|
|
(11,245
|
)
|
|
|
(1
|
)
|
|
|
-
|
|
Series
F convertible preferred
stock
dividends payable
|
|
|
-
|
|
|
|
11,245
|
|
|
|
(1
|
)
|
|
|
11,245
|
|
Total
current liabilities
|
|
|
53,521
|
|
|
|
-
|
|
|
|
|
|
|
|
53,521
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred
rent and other long-term
liabilities
|
|
|
1,870
|
|
|
|
|
|
|
|
|
|
|
|
1,870
|
|
Deferred
satellite performance
incentives,
net of
current
portion
|
|
|
8,160
|
|
|
|
|
|
|
|
|
|
|
|
8,160
|
|
Deferred
tax liabilities
|
|
|
14,805
|
|
|
|
|
|
|
|
|
|
|
|
14,805
|
|
TerreStar
notes and accrued interest,
thereon
(net
of discount as of
September
30, 2009 of $45,333)
|
|
|
765,115
|
|
|
|
|
|
|
|
|
|
|
|
765,115
|
|
TerreStar
exchangeable notes and
accrued
interest,
thereon
(net of
discount
as of September 30, 2009
of
$92,820)
|
|
|
74,194
|
|
|
|
|
|
|
|
|
|
|
|
74,194
|
|
TerreStar-2
purchase money credit
agreement
and accrued interest,
thereon
|
|
|
65,283
|
|
|
|
|
|
|
|
|
|
|
|
65,283
|
|
Total
liabilities
|
|
|
982,948
|
|
|
|
-
|
|
|
|
|
|
|
|
982,948
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments
and Contingencies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TERRESTAR
CORPORATION
Pro
Forma Condensed Consolidated Balance Sheet
As
of September 30, 2009
(in
thousands)
Unaudited
|
|
Historical
September
30,
2009
|
|
|
Pro
Forma
Adjustment
|
|
|
|
|
|
Pro
Forma
September
30,
2009
|
|
Series
A convertible preferred stock
($0.01 par value, 450,000 shares
authorized and nil shares issued and
outstanding
at September 30, 2009)
|
|
|
90,000
|
|
|
|
(90,000
|
)
|
|
|
(3
|
)
|
|
|
-
|
|
Series
B convertible preferred stock
($0.01 par value, 500,000 shares
authorized and nil shares issued and
outstanding at September 30,
2009)
|
|
|
318,500
|
|
|
|
(318,500
|
)
|
|
|
(3
|
)
|
|
|
-
|
|
Series
F convertible preferred stock
($0.01 par value, 800,000 shares
authorized, 408,500 issued and
outstanding at September 30,
2009)
|
|
|
|
|
|
|
408,500
|
|
|
|
(3
|
)
|
|
|
408,500
|
|
|
|
STOCKHOLDERS'
EQUITY:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TerreStar
Corporation stockholders'
equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Series
C preferred stock ($0.01 par
value, 1 share authorized and 1
share
issued and outstanding at
September 30, 2009)
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
-
|
|
Series
D preferred stock ($0.01 par
value,
1 share authorized, 1 share
issued and outstanding at September
30, 2009)
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Series
E junior convertible preferred
stock ($0.01 par value, 1,900,000
shares authorized and nil
shares
issued and outstanding at
September 30, 2009)
|
|
|
12
|
|
|
|
(12
|
)
|
|
|
|
|
|
|
-
|
|
Series
G junior preferred stock ($0.01
par value, 2,500,000 shares
authorized, 600,000 shares issued
and outstanding at September 30,
2009)
|
|
|
|
|
|
|
1
|
|
|
|
(4
|
)
|
|
|
1
|
|
Common
stock; voting (par value
$0.01; 800,000,000 shares
authorized,
143,628,737 issued and
139,677,535 outstanding at
September 30,
2009)
|
|
|
1,436
|
|
|
|
|
|
|
|
|
|
|
|
1,436
|
|
Additional
paid-in capital
|
|
|
1,239,445
|
|
|
|
11
|
|
|
|
(4
|
)
|
|
|
1,239,456
|
|
Common
stock purchase warrants
|
|
|
51,149
|
|
|
|
|
|
|
|
|
|
|
|
51,149
|
|
Treasury
stock (3,951,202
common
shares
held in treasury stock at
September 30, 2009)
|
|
|
(73,877
|
)
|
|
|
|
|
|
|
|
|
|
|
(73,877
|
)
|
TERRESTAR
CORPORATION
Pro
Forma Condensed Consolidated Balance Sheet
As
of September 30, 2009
(in
thousands)
Unaudited
|
|
Historical
September
30,
2009
|
|
|
Pro
Forma
Adjustment
|
|
|
|
|
|
Pro
Forma
September
30,
2009
|
|
Accumulated
other comprehensive
income
|
|
|
479
|
|
|
|
|
|
|
|
|
|
479
|
|
Accumulated
deficit
|
|
|
(1,253,670
|
)
|
|
|
(2,453
|
)
|
|
|
(2
|
)
|
|
|
(1,256,123
|
)
|
Total
TerreStar Corporation
stockholders'
deficit
|
|
|
(35,026
|
)
|
|
|
(2,453
|
)
|
|
|
|
|
|
|
(37,479
|
)
|
Noncontrolling
interest in TerreStar
Networks
|
|
|
(15,436
|
)
|
|
|
|
|
|
|
|
|
|
|
(15,436
|
)
|
Noncontrolling
interest in TerreStar
Global
|
|
|
(233
|
)
|
|
|
|
|
|
|
|
|
|
|
(233
|
)
|
Total
stockholders' deficit
|
|
|
(50,695
|
)
|
|
|
(2,453
|
)
|
|
|
|
|
|
|
(53,148
|
)
|
Total
liabilities and stockholders'
deficit
|
|
$
|
1,340,753
|
|
|
|
(2,453
|
)
|
|
|
|
|
|
$
|
1,338,300
|
|
TERRESTAR
CORPORATION
Pro
Forma Consolidated Statement of Operations
For
the Year Ended December 31, 2008
(in
thousands, except per share amounts)
Unaudited
|
|
|
Historical
2008
|
|
|
Pro
Forma
Adjustment
|
|
|
|
|
|
|
Pro
Forma
2008
|
|
Operating
expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
General
and administrative
|
|
$
|
88,536
|
|
|
|
|
|
|
|
|
|
$
|
88,536
|
|
Research
and development
|
|
|
73,560
|
|
|
|
|
|
|
|
|
|
|
73,560
|
|
Depreciation
and amortization
|
|
|
22,479
|
|
|
|
|
|
|
|
|
|
|
22,479
|
|
Loss
on asset disposal
|
|
|
6,768
|
|
|
|
|
|
|
|
|
|
|
6,768
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
operating expenses
|
|
|
191,343
|
|
|
|
-
|
|
|
|
|
|
|
|
191,343
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
loss from continuing operations
|
|
|
(191,343
|
)
|
|
|
-
|
|
|
|
|
|
|
|
(191,343
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
expense
|
|
|
(54,764
|
)
|
|
|
|
|
|
|
|
|
|
|
(54,764
|
)
|
Interest
income
|
|
|
3,328
|
|
|
|
|
|
|
|
|
|
|
|
3,328
|
|
Other
income
|
|
|
827
|
|
|
|
|
|
|
|
|
|
|
|
827
|
|
Loss
on investment in SkyTerra
|
|
|
(126,224
|
)
|
|
|
|
|
|
|
|
|
|
|
(126,224
|
)
|
Minority
interests in losses of TerreStar
Networks
|
|
|
10,545
|
|
|
|
|
|
|
|
|
|
|
|
10,545
|
|
Decrease
in dividend liability
|
|
|
77,708
|
|
|
|
|
|
|
|
|
|
|
|
77,708
|
|
TERRESTAR
CORPORATION
Pro
Forma Condensed Consolidated Statement of Operations
For
the
Year
Ended December 31, 2008
(in
thousands, except per share amounts)
Unaudited
|
|
Historical
2008
|
|
|
Pro
Forma
Adjustment
|
|
|
|
|
|
Pro
Forma
2008
|
|
Loss
from continuing operations before
income
taxes
|
|
|
(279,923
|
)
|
|
|
-
|
|
|
|
|
|
|
(279,923
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
tax benefit
|
|
|
2,231
|
|
|
|
|
|
|
|
|
|
|
2,231
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss
|
|
|
(277,692
|
)
|
|
|
-
|
|
|
|
|
|
|
(277,692
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividends
on Series A and Series B
Cumulative
Convertible Preferred Stock
|
|
|
(19,139
|
)
|
|
|
19,139
|
|
|
|
(1
|
)
|
|
|
-
|
|
Dividends
on Series F
Convertible
Preferred Stock
|
|
|
-
|
|
|
|
(28,595
|
)
|
|
|
(1
|
)
|
|
|
(28,595
|
)
|
Accretion
of issuance costs associated
with
Series A and Series B
|
|
|
(4,553
|
)
|
|
|
4,553
|
|
|
|
(2
|
)
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss available to Common Stockholders
|
|
$
|
(301,384
|
)
|
|
$
|
(4,903
|
)
|
|
|
|
|
|
$
|
(306,287
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
& Diluted Loss Per Share
|
|
$
|
(2.81
|
)
|
|
$
|
(0.05
|
)
|
|
|
|
|
|
$
|
(2.86
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
and Diluted Weighted-Average
Common
Shares Outstanding
|
|
|
107,179
|
|
|
|
-
|
|
|
|
(5
|
)
|
|
|
107,179
|
|
TERRESTAR
CORPORATION
Pro
Forma Condensed Consolidated Statement of Operations
For
the Nine Months Ended September 30, 2009
(in
thousands, except per share amounts)
Unaudited
|
|
Historical
2009
|
|
|
Pro
Forma
Adjustment
|
|
|
|
|
|
|
Pro
Forma
2009
|
|
Operating
expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
General
and administrative
|
|
$
|
47,312
|
|
|
|
|
|
|
|
|
|
$
|
47,312
|
|
Research
and development
|
|
|
52,037
|
|
|
|
|
|
|
|
|
|
|
52,037
|
|
Depreciation
and amortization
|
|
|
17,861
|
|
|
|
|
|
|
|
|
|
|
17,861
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
operating expenses
|
|
|
117,210
|
|
|
|
-
|
|
|
|
|
|
|
|
117,210
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss
from operations
|
|
|
(117,210
|
)
|
|
|
-
|
|
|
|
|
|
|
|
(117,210
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
expense
|
|
|
(47,505
|
)
|
|
|
|
|
|
|
|
|
|
|
(47,505
|
)
|
Interest
income
|
|
|
211
|
|
|
|
|
|
|
|
|
|
|
|
211
|
|
Other
income
|
|
|
784
|
|
|
|
|
|
|
|
|
|
|
|
784
|
|
TERRESTAR
CORPORATION
Pro
Forma Condensed Consolidated Statement of Operations
For
the Nine Months Ended September 30, 2009
(in
thousands, except per share amounts)
Unaudited
|
|
Historical
2009
|
|
|
Pro
Forma
Adjustment
|
|
|
|
|
|
Pro
Forma
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss
before income taxes
|
|
|
(163,720
|
)
|
|
|
-
|
|
|
|
|
|
|
(163,720
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
tax provision
|
|
|
(1,766
|
)
|
|
|
|
|
|
|
|
|
|
(1,766
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss
|
|
|
(165,486
|
)
|
|
|
-
|
|
|
|
|
|
|
(165,486
|
)
|
Less:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss attributable to the noncontrolling
interest
in TerreStar Networks
|
|
|
16,058
|
|
|
|
|
|
|
|
|
|
|
16,058
|
|
Net
loss attributable to the noncontrolling
interest
in TerreStar Global
|
|
|
254
|
|
|
|
|
|
|
|
|
|
|
254
|
|
Net
loss attributable to TerreStar Corporation
|
|
|
(149,174
|
)
|
|
|
-
|
|
|
|
|
|
|
(149,174
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividends
on Series A and Series B
Convertible
Preferred Stock
|
|
|
(19,091
|
)
|
|
|
19,091
|
|
|
|
(1
|
)
|
|
|
-
|
|
Dividends
on Series F
Convertible
Preferred Stock
|
|
|
-
|
|
|
|
(21,446
|
)
|
|
|
(1
|
)
|
|
|
(21,446
|
)
|
Accretion
of issuance costs associated with
Series
A and Series B Convertible Preferred
Stock
|
|
|
(3,399
|
)
|
|
|
3,399
|
|
|
|
(2
|
)
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss available to Common Stockholders
|
|
$
|
(171,664
|
)
|
|
$
|
1,044
|
|
|
|
|
|
|
$
|
(170,620
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
& Diluted Loss Per Share
|
|
|
(1.30
|
)
|
|
|
-
|
|
|
|
|
|
|
|
(1.30
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
and Diluted Weighted-Average
Common
Shares Outstanding
|
|
|
131,024
|
|
|
|
-
|
|
|
|
(5
|
)
|
|
|
131,024
|
|
1.
|
The
adjustment reflects the additional dividends payable on our Sub
Series F Preferred at the rate of 7% per annum payable in cash
or common stock.
|
2.
|
The
adjustment reflects the effect of conversion described in Note 3 below on
deferred issuance cost related to our Series A Preferred and Series B
Preferred.
|
3.
|
The
adjustment reflects conversion of (i) 90,000 outstanding shares of Series
A Preferred for 90,000 shares of Sub Series F Preferred; and (ii)
318,500 outstanding shares of Series B Preferred for 318,500 shares of Sub
Series F Preferred.
|
4.
|
The
adjustment reflects conversion of 1,200,000 outstanding shares of Series E
Preferred for 300,000 shares of Sub Series G Preferred and the additional
issuance of 300,000 shares of Sub Series G Preferred. There is no net
effect on shareholder equity as on September 30, 2009 because of the
issuance of Sub Series G preferred.
|
5.
|
The
calculation of the basic and diluted loss per share for the twelve months
ending December 31, 2008 and nine months ending September 30, 2009,
respectively, excludes approximately 428.9 million dilutive shares
calculated on an “if-converted” basis, since their effect would be
anti-dilutive.
|
As
permitted by the Securities Exchange Act of 1934, as amended, only one copy of
this Consent Statement is being delivered to stockholders residing at the same
address, unless the stockholders have notified the Company of their desire to
receive multiple copies of the Consent Statement. This is known as householding.
The Company will promptly deliver, upon oral or written request, a separate copy
of this Consent Statement to any shareholder residing at an address to which
only one copy was mailed. Requests for additional copies of this Consent
Statement should be directed to
the Secretary, TerreStar Corporation,
12010 Sunset Hills Road, Reston, Virginia 20190
.
OTHER
MA
TTERS
We will
pay the cost of soliciting consents. In addition to soliciting
consents by mail, we may solicit consents by personal interview, telephone and
similar means. No director, officer or employee of us will be
specially compensated for these activities. We also intend to request
that brokers, banks, custodians, commercial banks, trust companies and other
nominees solicit consents from their principals and will pay the brokers, banks,
custodians, commercial banks, trust companies and other nominees certain
expenses they incur for such activities.
ADDITIONAL
IN
FORMATION
We file
annual, quarterly and current reports, proxy statements and other documents with
the Securities and Exchange Commission under the Securities Exchange Act of
1934. The public may read and copy any materials that we file with the SEC at
the SEC’s Public Reference Room at 100 F Street, N.E., Washington,
DC 20549. The public may obtain information on the operation of the Public
Reference Room by calling the SEC at 1-800-SEC-0330. Also, the SEC maintains an
Internet website that contains reports, proxy and information statements, and
other information regarding issuers, including us, that file electronically with
the SEC. The public can obtain any documents that we file with the SEC at
http://www.sec.gov.
In
addition, our company website can be found on the Internet at
www.terrestarcorp.com.
The website contains information about us and our operations. Copies of each of
our filings with the SEC on Form 10-K, Form 10-Q and Form 8-K, and all
amendments to those reports, can be viewed and downloaded free of charge as soon
as reasonably practicable after the reports and amendments are electronically
filed with or furnished to the SEC. TerreStar's website and the
information contained on its site are not included as a part of, or
incorporated by reference into this Consent Statement.
INCORP
ORA
TION BY REFERENCE
The SEC
allows the Company to “incorporate by reference” information into this Consent
Statement, which means that the Company can disclose important information to
you by referring you to other documents that we have filed separately with the
SEC and delivered to you with the copy of this Consent Statement. The
information incorporated by reference is deemed to be part of this Consent
Statement. This Consent Statement incorporates by reference the
financial statements of the Company as contained in the Company’s annual report
on Form 10-K for the fiscal year ended December 31, 2008 filed by the Company on
March 12, 2009, Amendment No. 1 to Annual Report on Form 10-K for the year
ended December 31, 2008, filed by the Company on March 27, 2009 and quarterly
report on Form 10-Q for the period ended September 30, 2009 filed by the Company
on November 9, 2009, which are being mailed to all stockholders with this
Consent Statement.
APPEN
DIX A
FORM OF
CERTIFICATE
OF AMENDMENT OF THE
RESTATED
CERTIFICATE OF INCORPORATION OF
TERRESTAR
CORPORATION
TERRESTAR CORPORATION
(the
“
Corporation
”),
a corporation organized and existing under and by virtue of the provisions of
the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST
: That the Corporation
was originally incorporated under the name “American Mobile Satellite
Consortium, Inc.” pursuant to the General Corporation Law of the State of
Delaware on May 3, 1988;
SECOND
: That the present name
of the Corporation is TerreStar Corporation;
THIRD
: That the Board of
Directors duly adopted resolutions proposing to amend the Restated Certificate
of Incorporation (the “
Certificate
”) of the
Corporation as set forth below, declaring said amendment to be advisable and in
the best interests of the Corporation and its stockholders, and authorizing the
appropriate officers of the Corporation to solicit the approval of the
stockholders therefor; and
FOURTH
: That the following
amendment to the Certificate was duly adopted and approved in accordance with
the provisions of Sections 228 and 242 of the General Corporation Law of the
State of Delaware by the required vote of the stockholders of the Corporation
pursuant to a written consent of the stockholders of the
Corporation:
Section
4.1 of Article 4 of the Certificate is hereby amended in its entirety to read as
follows:
4.1
Authorized Shares
The total
number of shares of all classes of stock that the Corporation shall have
authority to issue is Eight Hundred and Five Million (805,000,000), of which
Eight Hundred Million (800,000,000) of such shares shall be Common Stock having
a par value of $.01 per share (“
Common Stock
”), and
Five Million (5,000,000) of such shares shall be Preferred Stock having a par
value of $.01 per share (“
Preferred
Stock
”).
IN WITNESS WHEREOF
, the
undersigned officer of the Corporation has executed this Certificate of
Amendment of the Restated Certificate of Incorporation as of
[ ],
20__.
|
TERRESTAR
CORPORATION
|
|
|
|
By:
|
|
|
|
Name:
|
|
Title:
|
A
PPENDIX B
FORM OF
AMENDED
AND RESTATED
CERTIFICATE
OF DESIGNATIONS OF
THE
SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
(Par
Value $0.01 Per Share)
OF
TERRESTAR
CORPORATION
Pursuant
to Section 151(g) of the
General
Corporation Law of the
State of
Delaware
TerreStar
Corporation, a corporation organized and existing under the General Corporation
Law of the State of Delaware (hereinafter called the "Corporation"), hereby
certifies that the following resolution was adopted by the Board of Directors of
the Corporation as required by Section 151 of the General Corporation Law of the
State of Delaware at a meeting duly called and held on
November 12,
2009.
RESOLVED
that, pursuant to authority conferred on the Board of Directors by the
Certificate of Incorporation, and the approval of a majority of the stockholders
of the Corporation, the Board of Directors hereby authorizes that the
Certificate of Designations of the Series B Cumulative Convertible Preferred
Stock of the Corporation, filed with the Secretary of State of the State of
Delaware on October 26, 2005 is hereby amended and restated in its entirety,
thereby fixing the relative rights, powers and preferences, and qualifications,
limitations and restrictions thereof as follows:
Section
1.
Number of Shares and
Designations
.
1.
This
series of preferred stock shall be designated as “Series B Cumulative
Convertible Preferred Stock” and the number of shares which shall constitute
such series shall be 800,000, par value $0.01
per share. For the
purpose of this Amended and Restated Certificate of Designations, the Series B
Cumulative Convertible Preferred Stock shall be referred to as the “Series B
Preferred Stock.” Such number of shares may be increased or decreased
by resolution of the Board of Directors; provided that no decrease shall reduce
the number of shares of Series B Preferred Stock then outstanding, plus the
number of shares reserved for issuance upon the exercise of outstanding options,
rights or warrants or upon conversion of any outstanding securities issued by
the Corporation and convertible into Series B Preferred Stock.
Section
2.
Rank
.
Series
B Preferred Stock shall, with respect to payment of dividends, redemption
payments, rights upon liquidation, dissolution or winding up of the affairs of
the Corporation, or otherwise (i) rank senior and prior to the Series E Junior
Participating Preferred Stock of the Corporation (the “Series E Preferred
Stock”) and the common stock, par value $0.01 per share of the Corporation (the
“Common Stock”), and each other class or series of equity securities of the
Corporation, whether currently issued or issued in the future, that by its terms
ranks junior to the Series B Preferred Stock (whether with respect to payment of
dividends, redemption payments, rights upon liquidation, dissolution or winding
up of the affairs of the Corporation, or otherwise) (all of such equity
securities, including the Common Stock, are collectively referred to herein as
the “Junior Securities”), (ii) rank on a parity with each other
class or
series of equity securities of the Corporation, whether currently issued or
issued in the future, that does not by its terms expressly provide that it ranks
senior to or junior to the Series B Preferred Stock (whether with respect to
payment of dividends, redemption payments, rights upon liquidation, dissolution
or winding up of the affairs of the Corporation, or otherwise) (all of such
equity securities are collectively referred to herein as the “Parity
Securities”), and (iii) rank junior to each other class or series of equity
securities of the Corporation, whether currently issued or issued in the future,
that by its terms ranks senior to the Series B Preferred Stock (whether with
respect to payment of dividends, redemption payments, rights upon liquidation,
dissolution or winding up of the affairs of the Corporation, or otherwise) (all
of such equity securities are collectively referred to herein as the “Senior
Securities”). The respective definitions of Junior Securities, Parity Securities
and Senior Securities shall also include any rights or options exercisable or
exchangeable for or convertible into any of the Junior Securities, Parity
Securities or Senior Securities, as the case may be. At the date of the filing
of this Amended and Restated Certificate of Designations, (i) there will be no
Senior Securities or Parity Securities authorized or outstanding, and (ii) the
shares of Common Stock (including any rights or options exercisable or
exchangeable for or convertible into shares of Common Stock) and the shares of
Series E Preferred Stock of the Corporation are the only Junior Securities
issued and outstanding.
Section
3.
Voting
Rights
.
Except as
required by law and as provided herein, holders of Series B Preferred Stock
shall have no voting rights and their consent shall not be required for taking
any corporate actions. Upon (a) the accumulation of accrued and unpaid dividends
on the outstanding shares of Series B Preferred Stock for two (2) or more six
(6) month periods ending on a Dividend Reference Date (as defined below),
whether or not consecutive, (b) the failure of the Corporation to comply with
the provisions of Section 10(a) or Section 10(b) below or (c) the failure of the
Corporation to comply with any of the other covenants or agreements set forth in
this Amended and Restated Certificate of Designations and the continuance of
such failure for thirty (30) consecutive days or more after receipt of notice of
such failure from the holders of at least 25% of the Series B Preferred Stock
then outstanding (each of the events described in clauses (a), (b) and (c) being
referred to herein as a “Voting Rights Triggering Event”), then the sole remedy
of the holders of at least a majority of the then-outstanding shares of Series B
Preferred Stock shall be the ability to elect a majority of members of the
Corporation’s Board of Directors for successive one-year terms until the
Corporation has complied with the provisions of Section 10(a) or Section 10(b)
of this Amended and Restated Certificate of Designations, as applicable, or such
failure to comply with covenants or other agreements has been cured. Upon the
Corporation’s complying with the provisions of Section 10(a) or Section 10(b) of
this Amended and Restated Certificate of Designations, as applicable, or curing
such failure to comply with covenants or other agreements, the term of office of
each director elected will terminate immediately and the number of directors
constituting the entire Board of Directors will be reduced by the number of
directors elected by the holders of the Series B Preferred Stock.
Notwithstanding the foregoing, the Corporation shall not have the right, as long
as any shares of Series B Preferred Stock are outstanding, to modify the rights,
preferences or privileges of the Series B Preferred Stock in a manner adverse to
the holders of Series B Preferred Stock without first obtaining the approval (by
vote or written consent, as permitted by law) of the holders of at least a
majority of the then-outstanding shares of Series B Preferred Stock, voting or
acting, as the case may be, as a single class.
Section
4.
Dividends
.
(a) Each
share of Series B Preferred Stock outstanding, prior and in preference to any
shares of Junior Securities but subject to the rights of any Senior Securities,
shall be entitled to receive, when and as declared by the Board of Directors out
of funds legally available for the purpose, dividends payable in cash or, at the
election of the Corporation, in shares of Common Stock in the amount of 7% (the
“Dividend Rate”) of the Series B Liquidation Amount (as defined below) per share
per annum then in effect (as appropriately adjusted for any recapitalizations,
stock combinations, stock dividends, stock splits and the like with respect to
the shares of Series B Preferred Stock and the Common Stock) (the “Dividend
Amount”). Dividends on each share of Series B Preferred Stock shall accrue on a
daily basis at the Dividend Rate and shall be payable on each of April 15 and
October 15 (each, a “Dividend Reference Date”), beginning on April 15, 2010,
with the number of shares of Common Stock to be issued as such dividend (if so
elected by the Corporation) to be determined by dividing the Dividend Amount by
the Trading Price on the last Trading Day prior to the applicable Dividend
Notice Date (all as defined below). Dividends may be paid in shares
of Common Stock only if a registration statement registering the resale of the
shares of Common Stock issuable on such Dividend Reference Date (defined below)
has been filed with the Securities and Exchange Commission and such registration
statement is effective on the date the Board of Directors declares such
dividend. The Corporation covenants that all shares of Common Stock
that may be issued upon payment of a dividend on the Series B Preferred Stock
will, when issued, be fully paid and nonassessable and free of all taxes, liens
and charges for the issue thereof.
(b) The
dividends to be paid pursuant to Section 4(a) above on the shares of Series B
Preferred Stock shall accrue in each case from and including the applicable
issuance date of each such share to and including the date on which such
dividends are no longer owed pursuant to the terms hereof. Such dividends shall
accrue whether or not they have been declared by the Board of Directors and
whether or not there are profits, surplus or other funds of the Corporation
legally available for the payment of dividends.
(c) The
record date (the "Record Date") for the payment of dividends on the Series B
Preferred Stock shall be fixed by the Board of Directors and shall not be more
than sixty (60) days or less than ten (10) days preceding each Dividend
Reference Date. Dividends shall be payable to the holders of record as they
appear on the stock transfer books of the Corporation at the close of business
on the Record Date. Five (5) Trading Days prior to each Record Date (the
"Dividend Notice Date"), the Corporation will give notice (the "Dividend
Notice") to each holder of Series B Preferred Stock that shall set forth (i) the
Record Date and (ii) if the dividend as to which the Dividend Notice relates
shall be paid in cash or Common Stock and, if paid in Common Stock, the
applicable Trading Price for such dividend.
(d) Except
as otherwise provided herein, if at any time the Corporation pays less than the
total amount of dividends then accrued with respect to the Series B Preferred
Stock, such payment shall be distributed pro rata among the holders thereof
based upon the aggregate accrued but unpaid dividends on the shares of Series B
Preferred Stock held by each such holder as compared to all holders of Series B
Preferred Stock.
(e) No
dividends, including a dividend that constitutes a return of capital, shall be
declared or paid, and no funds shall be set apart for payment, on any Junior
Securities, unless (i) written notice of such dividend is given to each holder
of shares of Series B Preferred Stock not less than fifteen (15) days prior to
the record date for such dividend and (ii) a registration statement registering
the resale of the shares of Common Stock issuable upon conversion of the Series
B Preferred Stock pursuant to the Securities Act of 1933, as amended has been
filed with the Securities and Exchange Commission and is effective on the date
the Board of Directors declares such dividend or other
distribution.
(f) No
fractional shares of Common Stock shall be issued upon payment of a dividend in
shares of Common Stock, and in lieu of any fractional shares to which the holder
would otherwise be entitled, such amount shall be paid in cash equal to such
fraction multiplied by the Trading Price on the last Trading Day prior to the
applicable Dividend Notice Date for such dividend then in effect.
Section
5.
Liquidation
.
(a) In
the event of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary (a “Liquidation Event”), and subject to the
rights of any Senior Securities with respect to distributions upon a Liquidation
Event, distributions to the holders of the Series B Preferred Stock shall be
made in the manner set forth in this Section 5.
(b)
The
holders of the Series B Preferred Stock shall be entitled to receive, prior and
in preference to any distribution of any of the assets of the Corporation to the
holders of Junior Securities by reason of their ownership of such stock and pari
passu with any distribution of the assets of the Corporation to the holders of
any Parity Securities by reason of their ownership of such stock, an amount per
share of Series B Preferred Stock then held by them equal to (i) $1,000 (as
appropriately adjusted for any recapitalizations, stock combinations, stock
dividends, stock splits and the like with respect to such shares), plus (ii) all
accrued but unpaid dividends on such shares of Series B Preferred Stock that
shall have accumulated to the date of the applicable Liquidation
Event (or Conversion Date (as defined below) or Redemption Date (as
defined below), as may be applicable) in cash at the rate set forth in Section 4
above (the sum of clauses (i) and (ii) with respect to such shares of Series B
Preferred Stock, the “Series B Liquidation Amount”) and such holders will not be
entitled to any further payment with respect to such shares of Series B
Preferred Stock.
(c)
Notwithstanding
anything to the contrary contained herein, in the case of a Liquidation Event,
if the Series B Liquidation Amount is less than an amount equal to the value of
the Common Stock into which the Series B Preferred Stock could have been
converted immediately prior to such Liquidation Event, calculated as set forth
in Section 10(b) below (the “Conversion Value”), then the Series B Liquidation
Amount shall be equal to such Conversion Value. Any amounts that have
been paid to a holder of the Series F Preferred Stock of TerreStar Holdings Inc.
upon the occurrence of a Liquidation Event at TerreStar Holdings Inc. shall be
deducted from the Series B Liquidation Amount to which such holder of Series B
Preferred Stock is entitled upon the occurrence of a Liquidation Event at the
Corporation.
(d)
To the
extent a share of Series B Preferred Stock is converted pursuant to Section 6 or
redeemed pursuant to Section 10 or the Series B Liquidation Amount is payable to
the holder of record of such share upon the consummation of a Liquidation Event
pursuant to this Section 5, and the date of such Conversion, Redemption or
Liquidation Event is after any Record Date with respect to the payment of a
dividend but on or prior to the applicable Dividend Date, the dividend due on
such Dividend Date shall not be included in the Series B Liquidation Amount but
shall be payable to the holder of record as of such Record Date of such share of
Series B Preferred Stock notwithstanding such Conversion, Redemption or
occurrence of a Liquidation Event prior to such Dividend Date. If upon a
Liquidation Event the assets and funds legally available for distribution among
the holders of the Series B Preferred Stock and any Parity Securities shall be
insufficient to permit the payment to such holders of the full Series B
Liquidation Amount and pari passu amounts due with respect to such Parity
Securities, then the entire assets and funds of the Corporation legally
available for distribution shall be distributed ratably among the holders of the
Series B Preferred Stock and such Parity Securities in proportion to the Series
B Liquidation Amount and pari passu amounts due with respect to such Parity
Securities that each holder of Series B Preferred Stock and such Parity
Securities is otherwise entitled to receive.
(e)
After
payment in full has been made to the holders of the Series B Preferred Stock of
the full Series B Liquidation Amount (and with respect to Parity Securities,
such pari passu amounts) due pursuant to Section 5(b) or 5(c) above, the entire
remaining assets and funds of the Corporation legally available for distribution
to stockholders shall be distributed among the holders of Junior Securities in
proportion to their respective rights to such remaining assets and
funds.
(f)
If any of
the assets of the Corporation are to be distributed under this Section 5, or for
any purpose, in a form other than cash, the value of such assets will be its
fair market value, as determined in good faith by the Board of Directors. Any
securities to be delivered to the holders of Series B Preferred Stock, Parity
Securities or Junior Securities, as the case may be, shall be valued as
follows:
(i)
If traded
on a securities exchange or through the Nasdaq National or Small Cap Markets,
the value shall be deemed to be the average of the Closing Prices of the
securities on such exchange over the ten (10) Trading Day period ending three
(3) days prior to the closing;
(ii)
If
actively traded over-the-counter, the value shall be deemed to be the average of
the closing bid or sale prices (whichever is applicable) over the ten (10)
Trading Day period ending three (3) days prior to the closing; and
(iii)
If there
is no active public market, the value shall be the fair market value thereof, as
determined in good faith by the Board of Directors.
The
method of valuation of securities subject to investment letter or other
restrictions on free marketability (other than restrictions arising solely by
virtue of a stockholder’s status as an affiliate or former affiliate) shall be
valued at an appropriate discount from the value determined as provided in
Section 5(f)(i) or (ii) above to reflect the approximate fair market value
thereof, as reasonably determined in good faith by the Board of
Directors.
(g)
Prior to
the occurrence of a Liquidation Event, the Corporation shall give each holder of
record of Series B Preferred Stock written notice (the “Liquidation Event
Notice”) not later than fifteen (15) days prior to the stockholders’ meeting
called to approve such transaction or event, or fifteen (15) days prior to the
closing of such transaction or event, whichever is earlier, and shall also
notify such holders in writing of the final approval of such transaction or
event. The first of such notices shall describe the material terms and
conditions of the impending transaction or event and the provisions of this
Section 5. The transaction or event shall not occur sooner than fifteen (15)
days after the Corporation has given the first notice provided for
herein.
Section
6.
Conversion
.
The
holders of the Series B Preferred Stock have conversion rights as follows (the
“Conversion Rights”):
(a)
Right to
Convert. Each share of Series B Preferred Stock shall be convertible, at the
option of the holder thereof, at any time after such share is issued until the
date such share of Series B Preferred Stock shall have been redeemed by the
Corporation (the “Optional Conversion Date”) at the office of the Corporation or
any transfer agent for the Series B Preferred Stock, into such number of fully
paid and nonassessable shares of Common Stock as is determined by dividing the
Series B Liquidation Amount by the Series B Conversion Price. The
conversion price of the Series B Preferred Stock shall be $
[
______
]
1
(the “Series B
Conversion Price”).
(b)
Mandatory
Conversion. Each share of Series B Preferred Stock shall be converted
into shares of Common Stock at the Series B Conversion Price then in effect on
the date of such conversion (the “Mandatory Conversion Date” and, together with
the Optional Conversion Date, the “Conversion Date”), if the Corporation shall
so elect. Notice of such election by the Corporation shall be set forth in a
written notice that the Corporation shall give to each record holder of Series B
Preferred Stock regarding the conversion of all outstanding shares of Series B
Preferred Stock pursuant to this Section 6(b) (the “Mandatory Conversion
Notice”). Notwithstanding the foregoing, conversion of shares of
Series B Preferred Stock into shares of Common Stock pursuant to this Section
6(b) shall only occur if (i) during the ninety (90) calendar day period
immediately preceding the Mandatory Conversion Date, the Closing Sale Price of
the Common Stock has been greater than $
[
_______
]
2
(as appropriately
adjusted for any recapitalizations, stock combinations, stock dividends, stock
splits and the like with respect to the shares of Common Stock) for a total of
not less than fifteen (15) Trading Days within a period of twenty (20)
consecutive Trading Days during such ninety (90) calendar day period and (ii) a
registration statement registering the resale of the shares of Common Stock
issuable upon conversion of the Series B Preferred Stock pursuant to the
Securities Act of 1933, as amended, has been filed with the Securities and
Exchange Commission and such registration statement is effective on the date the
Corporation gives the Mandatory Conversion Notice.
__________________________
1
The
average of the Closing Prices of a share of Common Stock over the ten (10)
Trading Day period ending three (3) days immediately prior to the issuance date
of preferred plus 25%, but in no event less than the market value as of such
date as calculated in accordance with the rules of the Nasdaq National or Small
Cap Market System.
2
30%
premium to the Series B Conversion Price.
(c)
Mechanics
of Conversion.
(i)
No
fractional shares of Common Stock shall be issued upon conversion of the Series
B Preferred Stock. In lieu of any fractional shares to which the holder would
otherwise be entitled, the Corporation shall pay cash equal to such fraction
based on the Closing Sale Price of the Common Stock on the last Trading Day
prior to the Conversion Date.
(ii)
Before
any holder of Series B Preferred Stock shall be entitled to convert such
holder’s shares into shares of Common Stock pursuant to Section 6(a) above and
upon the occurrence of the event specified in Section 6(b) above, as the case
may be, and to receive certificates representing shares of Common Stock
therefor, such holder shall surrender the certificate or certificates therefor,
duly endorsed, at the office of the Corporation or of any transfer agent for the
Series B Preferred Stock and, if the conversion is effected pursuant to Section
6(a) above, shall give written notice to the Corporation at such office that
such holder elects to convert the same and shall state therein the name or names
in which the certificate or certificates for shares of common stock are to be
issued; provided, however, that any failure by a holder to comply with these
provisions shall not have any effect on the automatic conversion of such
holder’s shares, which shall in any event be deemed to have been converted,
automatically and without any further action on the part of the holder of the
Corporation, in accordance with Section 6(b) above. The Corporation shall, as
promptly as practicable thereafter, issue and deliver to such holder’s address
of record a certificate or certificates for the number of shares of Common Stock
to which such holder shall be entitled as aforesaid and a check payable to the
holder in the amount of any cash amounts payable as the result of a conversion
into fractional shares of Common Stock. Such conversion shall be deemed to have
been made immediately prior to the close of business on the date the
certificates representing shares of Series B Preferred Stock to be surrendered
are received by the Corporation or any transfer agent for the shares of Series B
Preferred Stock, and the person or persons entitled to receive the shares of
Common Stock issuable upon such conversion shall be treated for all purposes as
the record holder or holders of such shares of Common Stock on such date. The
Corporation covenants that all shares of Common Stock that may be issued upon
conversion of the Series B Preferred Stock will, when issued, be fully paid and
nonassessable and free of all taxes, liens and charges for the issue
thereof.
(d)
Reservation of Stock Issuable Upon Conversion. The Corporation shall at all
times reserve and keep available out of its authorized but unissued shares of
Common Stock solely for the purpose of effecting the conversion of the shares of
the Series B Preferred Stock such number of shares of Common Stock as shall from
time to time be sufficient to effect the conversion of all outstanding shares of
the Series B Preferred Stock, and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the conversion
of all the then outstanding shares of the Series B Preferred Stock, in addition
to such other remedies as shall be available to the holder of such Series B
Preferred Stock, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purposes.
Section
7.
Adjustment of Series B
Conversion Price
.
(a)
Adjustments
for Stock Dividends, Subdivisions, Combinations or Consolidations of Common
Stock. In the event the outstanding shares of Common Stock shall be subdivided
(by recapitalization, stock combination, stock dividend, stock split or
otherwise) into a greater number of shares of Common Stock, the Series B
Conversion Price shall, concurrently with the effectiveness of such subdivision,
be proportionately decreased. In the event the outstanding shares of Common
Stock shall be combined or consolidated, by reclassification or otherwise, into
a lesser number of shares of Common Stock, the Series B Conversion Price shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased. The Series B Conversion Price, as so adjusted, shall
be readjusted in the same manner upon the occurrence of any successive event or
events described in this Section 7(a).
(b)
Reorganization,
Reclassification, Exchange, Substitution, Consolidation, Merger or Sale. Any
recapitalization, reorganization, reclassification, exchange, substitution,
consolidation, merger, sale of all or substantially all of the Corporation’s
assets or other transaction, in each case which is effected in such a manner
that the holders of Common Stock are entitled to receive (either directly or
upon subsequent liquidation) stock, securities or assets with respect to or in
exchange for Common Stock, is referred to herein as an “Organic Change”. In any
Organic Change that is also a Change in Control, the holders of Series B
Preferred Stock shall also have the rights set forth in Section 10(a) below.
Prior to the consummation of any Organic Change, the Corporation shall make
appropriate provisions to insure that each of the holders of Series B Preferred
Stock shall thereafter have the right to acquire and receive, in lieu of the
shares of Common Stock immediately theretofore acquirable and receivable upon
the conversion of such holder’s Series B Preferred Stock, such shares of stock,
securities or assets as such holder would have received in connection with such
Organic Change if such holder had converted its Series B Preferred Stock
immediately prior to such Organic Change. The Corporation shall not effect any
such consolidation, merger or sale, unless prior to the consummation thereof,
the successor entity (if other than the Corporation) resulting from
consolidation or merger or the entity purchasing such assets assumes by written
instrument (in form and substance reasonably satisfactory to the holders of a
majority of the Series B Preferred Stock then outstanding), the obligation to
deliver to each such holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such holder may be entitled to
acquire. The provisions of this Section 7(b) shall apply similarly and equally
to successive Organic Changes.
(c)
No
Impairment. The Corporation will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Corporation but will at all times in good
faith assist in the carrying out of all the provisions of Section 6 hereof and
in the taking of all such action as may be necessary or appropriate in order to
protect the Conversion Rights of the holders of the Series B Preferred Stock
against impairment.
(d)
Certificate
as to Adjustments. Upon the occurrence of each adjustment or readjustment of the
Series B Conversion Price pursuant to Section 7 hereof, the Corporation at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each record holder of Series B Preferred
Stock a certificate setting forth such adjustment or readjustment and showing in
detail the facts upon which such adjustment or readjustment is based. The
Corporation shall, upon the written request at any time of any holder of Series
B Preferred Stock, furnish or cause to be furnished to such holder a like
certificate setting forth (i) such adjustments and readjustments, (ii) the
Series B Conversion Price at the time in effect, and (iii) the number of shares
of Common Stock and the amount, if any, of other securities and property which
at the time would be received upon the conversion of Series B Preferred
Stock.
Section
8.
Change in
Control
.
(a)
“Change
in Control” means the occurrence of one or more of the following
events:
(i)
any sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the Corporation’s assets to any
Person or group of related Persons (other than to any of the Corporation’s
majority owned subsidiaries) as defined in Section 13(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”);
(ii)
if any
Person or group shall become the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of shares representing more than 50% of the aggregate
ordinary voting power represented by issued and outstanding voting stock of the
Corporation; or
(iii)
any
consolidation or merger by the Corporation where Persons who were beneficial
owners (as defined in Rule 13d-3 under the Exchange Act) of the Corporation’s
shares of voting stock immediately prior to such transaction no longer own at
least a majority of the total voting power of the continuing or surviving
corporation or entity.
(b)
Prior to
the occurrence of a Change in Control, the Corporation shall give each holder of
record of Series B Preferred Stock written notice (the “Change in Control
Notice”) not later than five (5) business days
prior to the record date
for the stockholders’ meeting called to approve such transaction or event, or
fifteen (15) days prior to the closing of such transaction or event, whichever
is earlier, and shall also notify such holders in writing of the final approval
of such transaction or event. The first of such notices shall describe the
material terms and conditions of the Change in Control transaction or event and
the provisions of Section 10(a) below. The Change in Control transaction or
event shall not occur sooner than fifteen (15) days after the Corporation has
given the first notice provided for herein.
Section
9.
Senior Security
Cap
.
(a)
If
(i) any shares of Series B Preferred Stock are outstanding, (ii) (A) the
Corporation issues Senior Securities, Parity Securities or debt securities, (B)
TerreStar Holdings Inc. issues any securities that by their terms rank senior to
or on parity with the Series F Preferred Stock of TerreStar Holdings Inc. or
issues any debt securities, or (C) TerreStar 1.4 Holdings LLC issues any
preferred securities or any debt securities (the securities referred to in (A),
(B) and (C), collectively, the "Additional Securities”), and (iii) the aggregate
outstanding and unpaid
gross proceeds from (A)
the issuance of such Additional Securities, plus (B) the issuance of all other
Additional Securities issued after the date of the first issuance of shares of
Series B Preferred Stock under this Amended and Restated Certificate of
Designations, exceeds $250,000,000 (the date of which such events shall have
occurred shall be defined as the “Senior Security Trigger Date”), the holder of
each share of Series B Preferred Stock shall have the rights set forth in
Sections 10(b) and 11(a) below.
(b)
Within
five (5) days following the Senior Security Trigger Date, the Corporation shall
give each holder of record of Series B Preferred Stock written notice (the
“Senior Security Notice”) of the occurrence of the Senior Security Trigger Date.
The Senior Security Notice shall notify such holder of the occurrence of the
Senior Security Trigger and describe the provisions of Section 10(a)
below.
Section
10.
Redemption
.
(a)
Holder
Redemption. Upon the occurrence of either a Change in Control or the Senior
Security Trigger Date, each holder of Series B Preferred (each, a “Requesting
Holder” and collectively, the “Requesting Holders”) may, by giving written
notice to the Corporation, within ten (10) Trading Days following the date the
Corporation gives the Change in Control Notice (defined below) or the Senior
Security Notice, as applicable, require the Corporation to redeem all or a
portion of the shares of Series B Preferred Stock then held by such Requesting
Holder. In such redemption the Corporation shall redeem, out of lawfully
available funds, shares of Series B Preferred Stock, for an amount in cash for
each share of Series B Preferred Stock requested to be redeemed by a Requesting
Holder equal to (i) 108% of the Series B Liquidation Amount (as appropriately
adjusted for any recapitalizations, stock combinations, stock dividends, stock
splits and the like with respect to the shares of Series B Preferred Stock) (the
“Holder Redemption Price”) on the date of the redemption (the “Holder Redemption
Date”).
(b)
Mandatory
Redemption. The Corporation shall redeem all, and not less than all, then
outstanding shares of Series B Preferred Stock on June 30, 2014 (the “Mandatory
Redemption Date” and, together with the Holder Redemption Date, a “Redemption
Date”), for an amount in cash for each share of Series B Preferred Stock equal
to the greater of (i) 100% of the Series B Liquidation Amount then in effect,
and (ii) the Conversion Value immediately prior to the Redemption Date(the
“Mandatory Redemption Price” and, together with the Holder Redemption Price, the
“Redemption Price”). For purposes hereof the Conversion Value per
share of Common Stock shall be deemed to be the average of the Closing Prices of
the Common Stock over the ten (10) Trading Day period ending three (3) days
prior to the Redemption Date.
(c)
Redemption
Payments. The Redemption Price shall be paid in cash from any funds legally
available therefor. If the funds of the Corporation legally available for
redemption of shares of Series B Preferred Stock on the Redemption Date are
insufficient to redeem the total number of shares of Series B Preferred Stock to
be redeemed on such date, those funds which are legally available will be used
to redeem the maximum possible number of such shares ratably among the holders
of such shares to be redeemed based upon their holdings of Series B Preferred
Stock. The shares of Series B Preferred Stock not redeemed shall remain
outstanding and entitled to all the rights and preferences provided herein. At
any time thereafter when additional funds of the Corporation are legally
available for the redemption of shares of Series B Preferred Stock, such funds
will be used to redeem the balance of the shares of Series B Preferred Stock
that the Corporation has become obliged to redeem on the Redemption Date but
that it has not redeemed.
(d)
Redemption
Procedures. In the event the Corporation is required to redeem shares of Series
B Preferred Stock, the Corporation shall send a written notice (the “Redemption
Notice”) by first class mail to each holder of record of Series B Preferred
Stock at such Holder’s registered address, not more than sixty (60) days nor
less than ten (10) days prior to the Redemption Date stating:
(i)
the
Redemption Date;
(ii)
the
Redemption Price;
(iii)
that
holders of Series B Preferred Stock who want to convert shares of Series B
Preferred Stock must satisfy the requirements set forth in Section 6(c) hereof
and that the date on which the right to convert the shares of the Series B
Preferred Stock called for redemption will terminate shall be at the close of
business on the Trading Day immediately preceding the Redemption Date (unless
the Corporation shall default in making the payment of the Redemption Price then
due, in which case the right of the holder to convert such holder’s shares of
Series B Preferred Stock shall terminate on the date such default is cured and
such shares of Series B Preferred Stock are redeemed);
(iv)
the date
on which the right to convert the shares of Series B Preferred Stock called for
redemption will terminate and the place or places where and manner in which such
shares of Series B Preferred Stock may be surrendered for
conversion;
(v)
that
certificates representing shares of the Series B Preferred Stock called for
redemption must be surrendered to the Corporation to collect the Redemption
Price;
(vi)
if fewer
than all the outstanding shares of the Series B Preferred Stock are to be
redeemed by the Corporation, the number of shares to be redeemed;
and
(vii)
any other
information the Corporation wishes to include.
(e)
Payment
of Redemption Price.
(i)
If the
Corporation gives a Redemption Notice pursuant hereto, then, by 12:00 p.m., New
York City time, on the Redemption Date, to the extent sufficient funds are
legally available, the Corporation shall segregate or cause to be segregated
cash sufficient to pay the Redemption Price and shall pay the Redemption Price
to holders of such shares of the Series B Preferred Stock upon surrender of
their certificates evidencing their shares of Series B Preferred Stock at the
office of the Corporation or of any transfer agent for the Series B Preferred
Stock. On and after the Redemption Date, all rights of holders of such shares of
Series B Preferred Stock that have been redeemed shall terminate, other than the
right of such holders to receive the Redemption Price upon delivery of the
certificates formerly evidencing such redeemed shares of Series B Preferred
Stock, payable in accordance with the terms hereof, unless the Corporation
defaults in making payment of such Redemption Price.
(ii)
Payment
of the Redemption Price for shares of the Series B Preferred Stock is
conditioned upon transfer and delivery of certificates representing, immediately
prior to the Redemption Date, the shares of Series B Preferred Stock being
redeemed, together with necessary endorsements, to the Corporation at any time
after delivery of the Redemption Notice by the Corporation.
(iii)
If fewer
than all of the outstanding shares of Series B Preferred Stock are to be
redeemed, the number of shares to be redeemed shall be determined by the Board
of Directors and the Corporation shall redeem from each Holder such Holder’s pro
rata share of the number of shares of Series B Preferred Stock to be redeemed.
If any Holder of shares of Series B Preferred Stock selected for partial
redemption elects to convert any of such Holder’s shares of Series B Preferred
Stock after receipt of the Redemption Notice with respect to such partial
redemption and prior to the applicable Redemption Date, the number of shares of
Series B Preferred Stock of such Holder that would have been redeemed pursuant
to such partial redemption shall be reduced by the number of shares of Series B
Preferred Stock so converted.
(iv)
Upon
surrender of a certificate or certificates representing shares of Series B
Preferred Stock that is or are redeemed in part, the Corporation shall execute
and deliver to the holder of such shares a new certificate or certificates
representing shares of the Series B Preferred Stock in an amount equal to the
unredeemed portion of the whole shares of Series B Preferred Stock surrendered
for partial redemption.
(f)
General.
On and after any Redemption Date, provided that the Corporation has made
available at the office of the transfer agent for the Series B Preferred Stock a
sufficient amount of cash to effect the redemption, dividends will cease to
accrue on the Series B Preferred Stock called for redemption (except for the
Redemption Premium), such shares shall no longer be deemed to be outstanding and
all rights of the holders of such shares as holders of Convertible Series B
Preferred Stock shall cease except the right to receive the cash deliverable
upon such redemption, without interest from the Redemption Date.
Section
11.
Notice
.
Any
notice required by the provisions of this Amended and Restated Certificate of
Designations to be given to the holders of shares of Series B Preferred Stock
shall be deemed given three (3) calendar days after deposit in the United States
mail, postage prepaid, and addressed to each holder of record at such holder’s
address appearing on the books of the Corporation.
Section
12.
Definitions
.
The
following terms, as used herein, shall have the following meanings:
(a)
“Closing
Price” means, for any security as of any date, the last closing trade price for
such security on the principal United States securities market on which such
security is traded as reported by Bloomberg Financial Markets (or any successor
thereto, “Bloomberg”), or, if such exchange begins to operate on an extended
hours basis and does not designate the closing trade price, then the last trade
price of such security prior to 4:00:00 p.m. (New York City time) as
reported by Bloomberg, or, if such exchange is not the principal securities
exchange or trading market for such security, the last trade price of such
security on the principal securities exchange or trading market where such
security is listed or traded as reported by Bloomberg, or if the foregoing do
not apply, the last trade price of such security in the over-the-counter market
on the electronic bulletin board for such security as reported by Bloomberg, or,
if no last trade price is reported for such security by Bloomberg, the average
of the highest bid prices and the lowest ask prices of any market makers for
such security as reported in the “pink sheets” by Pink Sheets
LLC.
(b)
“Closing
Sale Price” means, with respect to the Common Stock, for any day, the Closing
Price per share of Common Stock.
(c)
“Trading
Day” means (x) if the applicable security is quoted on the Nasdaq National
Market System, a day on which trades may be made thereon or (y) if the
applicable security is listed or admitted for trading on the New York Stock
Exchange, Inc. (the “NYSE”), the American Stock Exchange LLC (“AMEX”) or another
national securities exchange, a day on which the NYSE, the AMEX or such other
national securities exchange is open for business or (z) if the applicable
security is not so listed, admitted for trading or quoted, any day other than a
Saturday or Sunday or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to
close.
(d)
“Trading
Price” means, with respect to the Common Stock, for any day, the average of the
Closing Sale Price of the Common Stock on the twenty (20) consecutive Trading
Days ending the last Trading Day before applicable date.
AMENDED
AND RESTATED
CERTIFICATE
OF DESIGNATIONS OF
THE
SERIES E JUNIOR PARTICIPATING PREFERRED STOCK
(Par
Value $0.01 Per Share)
OF
TERRESTAR
CORPORATION
Pursuant
to Section 151(g) of
the
General Corporation Law of the State of Delaware
TerreStar
Corporation, a corporation organized and existing under the General Corporation
Law of the State of Delaware (hereinafter called the "Corporation"), hereby
certifies that the following resolution was adopted by the Board of Directors of
the Corporation as required by Section 151 of the General Corporation Law of the
State of Delaware at a meeting duly called and held on November 12,
2009.
RESOLVED
that, pursuant to authority conferred on the Board of Directors by the
Certificate of Incorporation, the Board of Directors hereby authorizes that the
Certificate of Designations of the Series E Junior Participating Preferred Stock
of the Corporation, filed with the Secretary of State of the State of Delaware
on February 7, 2008 is hereby amended and restated in its entirety, thereby
fixing the relative rights, powers and preferences, and qualifications,
limitations and restrictions thereof as follows:
1.
Designations and
Amount
. This series of preferred stock of the Corporation
shall be designated as “Series E Junior Participating Preferred Stock”, par
value $0.01 per share (the “Series E Preferred Stock”), and the number of shares
constituting such series shall be 2,500,000. Such number of shares
may be increased or decreased by resolution of the Board of Directors of the
Corporation (the “Board of Directors”); provided that no decrease shall reduce
the number of shares of Series E Preferred Stock then outstanding, plus the
number of shares reserved for issuance upon the exercise of outstanding options,
rights or warrants or upon conversion of any outstanding securities issued by
the Corporation and convertible into Series E Preferred Stock.
2.
Defined
Terms
. For purposes of this Amended and Restated Certificate
of Designations:
(a)
“Affiliate”
shall have the meaning given such term as in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended, and “beneficial ownership” shall
have the meaning given such term as in Rule 13d-3 of the Securities Exchange Act
of 1934, as amended.
(b)
“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, governmental authority or other
entity.
(c)
“Transfer”
means any sale, transfer, gift, assignment, devise or other disposition, as well
as any other event that causes any Person to acquire beneficial ownership, or
any agreement to take any such actions or cause any such events, with respect to
the Series E Preferred Stock or Common Stock (following the exercise of any
conversion right in respect of the Series E Preferred Stock); in each case,
whether voluntary or involuntary, or whether by operation of law or
otherwise. The terms “Transferring” and “Transferred” shall have the
correlative meanings.
(d)
“Transferee”
means a person to whom a Transfer is made.
3.
Voting
Rights
. Except as required by law and as provided herein,
holders of Series E Preferred Stock shall have no voting rights and their
consent shall not be required for the taking of any corporate
actions. In addition to any vote required by law, as long as any
shares of Series E Preferred Stock are outstanding, the approval (by vote or
written consent, as permitted by law) of the holders of at least a majority of
the then-outstanding shares of Series E Preferred Stock, voting or acting, as
the case may be, as a single class, shall be required for the Corporation to
modify the rights, preferences or privileges of the Series E Preferred Stock in
a manner adverse to the holders of Series E Preferred Stock.
4.
Dividends
. Subject
to the rights of the holders of any shares of any series of Preferred Stock (or
any similar stock) ranking senior to the Series E Preferred Stock, with respect
to dividends, as and when dividends are declared or paid on the Common Stock,
the holders of Series E Preferred Stock shall be entitled to participate in such
dividends on an as-converted to Common Stock basis.
5.
Liquidation
Preference
.
(a)
In the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Corporation (a “Liquidation Event”), no distribution shall be
made (a) to the holders of any shares of capital stock of the Corporation
ranking junior (with respect to rights upon liquidation, dissolution or winding
up) to the Series E Preferred Stock, unless each holder of Series E Preferred
Stock shall have received $.0001 per share, plus any accrued but unpaid
dividends with respect thereto (the “Series E Liquidation Amount”), or (b) to
the holders of shares of capital stock of the Corporation ranking on a parity
(with respect to rights upon liquidation, dissolution or winding up) with the
Series E Preferred Stock, except for distributions made ratably on the Series E
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up.
(b)
Notwithstanding
anything to the contrary contained herein, in the case of a Liquidation Event,
if the Series E Liquidation Amount is less than an amount equal to the value of
the Common Stock into which the Series E Preferred Stock could have been
converted immediately prior to such Liquidation Event, calculated as set forth
below (the “Conversion Value”), then the Series E Liquidation Amount shall be
equal to such Conversion Value. Further, notwithstanding the
foregoing, any amounts that have been paid to a holder of Series G Preferred
Stock of TerreStar Holdings Inc. upon the occurrence of a Liquidation Event at
TerreStar Holdings Inc. shall be deducted from the Series E Liquidation Amount
to which such holder of Series E Preferred Stock is entitled upon the occurrence
of a Liquidation Event at the Corporation. For purposes hereof the
Conversion Value per share of Common Stock shall be deemed to be the average of
the Closing Prices of the Common Stock over the ten (10) Trading Day period
ending three (3) days prior to the Redemption Date.
6.
Conversion;
Restrictions
.
(a)
Optional Conversion
Rights
. Subject to the restrictions set forth in this Section
6, each share of Series E Preferred Stock may be converted, at any time and from
time to time, at the option of the holder, into one hundred (100) shares of
Common Stock (the “Conversion Ratio”), subject to adjustment as set forth
below.
(b)
Mechanics of
Conversion
. Each conversion of shares of Series E Preferred
Stock into shares of Common Stock pursuant to this Section 6 shall be
effected by the surrender of the certificate or certificates representing the
shares to be converted (the “Converting Shares”) at the principal office of the
Corporation or the transfer agent of the Series E Preferred Stock (if any) at
any time during normal business hours, together with written notice by the
holder of such Converting Shares, stating that such holder desires to convert
the Converting Shares, and the number of shares of Common Stock into which the
Converting Shares are to be converted (the “Converted Shares”). Such
notice shall also state the name or names (with addresses) and denominations in
which the certificate or certificates for Converted Shares are to be issued and
shall include instructions for the delivery thereof. If the issuance
of any Converted Shares or the acquisition thereof by the holder of Converting
Shares requires filing or registration with or approval of any governmental
authority before such shares may be issued upon conversion, the Corporation will
use its commercially reasonable efforts to cause such filing, registration or
approval or to cooperate with such holder to satisfy such requirements, as the
case may be. Promptly after such filing, registration or approval and
such surrender and the receipt of such by written notice, the Corporation will
issue and deliver in accordance with the surrendering holder’s instructions the
certificate or certificates evidencing the Converted Shares issuable upon such
conversion, and the Corporation will deliver to the converting holder a
certificate (which shall contain such legends as were set forth on the
surrendered certificate or certificates, if any) representing any shares which
were represented by the certificate or certificates that were delivered to the
Corporation in connection with such conversion, but which were not
converted. Such conversion, to the extent permitted by law, shall be
deemed to have been effected as of the close of business on the date on which
such certificate or certificates shall have been surrendered and such notice
shall have been received by the Corporation, and at such time the rights of the
holder of the Converting Shares as such holder shall cease and the person or
persons in whose name or names the certificate or certificates for the Converted
Shares are to be issued upon such conversion shall be deemed to have become the
holder or holders of record of the Converted Shares. Upon issuance of
the shares in accordance with this Section 6, such Converted Shares shall
be deemed to be fully authorized, validly issued, fully paid and
non-assessable. The Corporation shall take all such actions as may be
necessary to assure that all such shares of Common Stock may be so issued
without violation of any applicable law or governmental regulation or any
requirements of any domestic securities exchange upon which shares of Common
Stock may be listed (except for official notice of issuance which will be
immediately transmitted by the Corporation upon issuance). The
issuance of certificates for shares of any class of Common Stock upon the
conversion of Series E Preferred Stock as permitted by and pursuant to this
Section 6 shall be made without charge to the holders for any issuance tax
in respect thereof or other cost incurred by the Corporation in connection with
such conversion and the related issuance of shares of Common
Stock. The Corporation shall not close its books against the transfer
of shares of Series E Preferred Stock in any manner which would interfere with
the timely conversion of any shares of Series E Preferred Stock. In
the event of the conversion of less than all of the shares of Series E Preferred
Stock evidenced by a single certificate, the Corporation shall execute and
deliver to the holder thereof, without charge to such holder, a new certificate
or new certificates evidencing the shares of Series E Preferred Stock not so
converted.
(c)
Adjustment
. In
the event that of any of the following events, the Conversion Ratio shall be
adjusted as provided herein:
(i)
In
case the Corporation shall (1) pay a dividend
in shares of Common Stock to all holders of Common Stock, (2) make a
distribution in shares of Common Stock to all holders of Common Stock, (3)
subdivide the outstanding shares of Common Stock into a greater number of shares
of Common Stock or (4) combine the outstanding shares of Common Stock into a
smaller number of shares of Common Stock, the Conversion Ratio shall be adjusted
by multiplying the Conversion Ratio in effect immediately prior to the
Ex-Dividend Date (as defined below) of such dividend, distribution, subdivision
or combination by the number of shares of Common Stock which a person who owns
only one share of Common Stock immediately before such Ex-Dividend Date and who
is entitled to participate in such dividend, distribution, subdivision or
combination would own immediately after giving effect to such dividend,
distribution, subdivision or combination (without giving effect to any
arrangement pursuant to such dividend, distribution, subdivision or combination
not to issue fractional shares of Common Stock). Any adjustment made
pursuant to this Section 6(c)(i) shall become effective immediately after the
open of business on such Ex-Dividend Date.
(ii)
In case
the Corporation shall issue rights or warrants to all or substantially all
holders of Common Stock, entitling them, for a period expiring not more than
sixty (60) days immediately following the date of issuance of such rights or
warrants, to subscribe for or purchase shares of Common Stock (or securities
convertible into or exchangeable or exercisable for Common Stock), at a price
per share (or having a conversion, exchange or exercise price per share) that is
less than the current market price (as determined pursuant to Section 6(c)(vii))
per share of Common Stock on the Trading Day (as defined below) immediately
preceding the announcement of the issuance of such rights or warrants, the
Conversion Ratio shall be increased by multiplying the Conversion Ratio in
effect immediately prior to the Ex-Dividend Date corresponding to such record
date by a fraction of which (A) the numerator shall be the sum or (1) the number
of shares of Common Stock outstanding immediately prior to the open of business
on such Ex-Dividend Date and (2) the aggregate number of shares (the “Rights
Shares”) of Common Stock underlying all such issued rights or warrants (whether
by exercise, conversion, exchange or otherwise), and (B) the denominator shall
be the sum of (1) number of shares of Common Stock outstanding immediately prior
to the open of business on such Ex-Dividend Date and (2) the number of shares of
Common Stock which the aggregate exercise, conversion, exchange or other price
at which the Rights Shares may be subscribed for or purchased pursuant to such
rights or warrants would purchase at such current market price per share of
Common Stock. Such increase shall become effectively immediately
after the open of business on such Ex-Dividend Date. In no event
shall the Conversion Ratio be decreased pursuant to this Section
6(i)(ii).
(iii)
Except as
set forth in the immediately following paragraph, in case the Corporation shall
dividend or distribute to all or substantially all holders of Common Stock
shares of Capital Stock (as defined below) of the Corporation or any subsidiary
(other than Common Stock), evidence of Indebtedness (as defined below) or other
assets (other than dividends or distributions requiring an adjustment to the
Conversion Ratio in accordance with Sections 6(c)(iv) or 6(c)(v), or shall
dividend or distribute to all or substantially all holders of Common Stock
rights or warrants to subscribe for or purchase securities (other than dividends
or distributions of rights or warrants requiring an adjustment to the Conversion
Ratio in accordance with Section 6(c)(ii), then in each such case the Conversion
Ratio shall be increased by multiplying the Conversion Ratio in effect
immediately prior to the open of business on the Ex-Dividend Date corresponding
to the record date for the determination of stockholders entitled to such
dividend or distribution by a fraction of which (A) the numerator shall be the
current market price per share of Common Stock (as determined pursuant to
Section 6(c)(vii)) on the Trading Day immediately preceding the announcement of
such dividend or distribution and (B) the denominator shall be an amount equal
to (1) such current market price per share of Common Stock less (II) the fair
market value (as determined in good faith by the Board of Directors, whose
determination shall be conclusive), on such Ex-Dividend Date, of the portion of
the shares of Capital Stock, evidences of Indebtedness, assets, rights and
warrants to be dividended or distributed applicable to one share of Common
Stock, such increase to become effective immediately after the open of business
on such Ex-Dividend Date; provided, however, that it such denominator is equal
to or less than $1.00 or, then, in lieu of the foregoing adjustment to the
Conversion Ratio, adequate provision shall be made so that each holder shall
have the right to receive upon exchange of shares of its Series E Preferred
Stock, in addition to any consideration otherwise payable as herein provided
upon such exchange, an amount of shares of Capital Stock, evidences of
Indebtedness, assets, rights and/or warrants that such holder would have
received had such holder converted all of its shares of Series E Preferred Stock
of such Ex-Dividend Date.
Notwithstanding
anything to the contrary in this Section 6(c)(iii), if, in a distribution
requiring an adjustment to the Conversion Ratio pursuant to the immediately
preceding paragraph, the property distributed by the Corporation to all holders
of Common Stock consists solely of Capital Stock, or similar equity interests
in, a subsidiary or other business unit of the Corporation, which Capital Stock
or interests are, or will be upon completion of such distribution, listed on a
national or regional securities exchange or quoted on an automated quotation
system (a “Spin-Off”), then in lieu of adjusting the Conversion Ratio in
accordance with the immediately preceding paragraph, the Conversion Ratio shall
be increased (subject to the other terms of this Section ) by multiplying the
Conversion Ratio in effect immediately prior to the opening of business on the
thirteenth (13th) Trading Day following the Ex-Dividend Date for such
distribution by a fraction (1) whose numerator is the sum of (A) the average of
the Closing Prices per share of Common Stock for the ten (10) consecutive
Trading Days commencing on, and including, the third (3rd) Trading Day after the
Ex-Dividend Date for such distribution and (B) the product of (i) the average of
the Closing Prices per share or unit, as applicable, of such Capital Stock or
interests (determined as if such shares or units were shares of Common Stock for
purposes of the definition of “Closing Price”) for the ten (10) consecutive
Trading Days commencing on, and including, the third (3rd) Trading Day after the
Ex-Dividend Date for such distribution and (ii) the number of shares or units,
as applicable, of such Capital Stock or interests distributed per share of
Common Stock; and (2) whose denominator is the average of the Closing Prices per
share of Common Stock for the ten (10) consecutive Trading Days
commencing
on, and including, the third (3rd) Trading Day after the Ex-Dividend Date for
such distribution. The average Closing Prices referred to in the
immediately preceding sentence shall be subject to appropriate adjustments in
the good faith determination of the Board of Directors, to account for other
distributions, stock splits and combinations, stock dividends, reclassifications
and similar events. Each adjustment to the Conversion Ratio made
pursuant to this paragraph shall become effective immediately after the open of
business on the thirteenth (13th) Trading Day following the Ex-Dividend Date for
such distribution.
Rights or
warrants distributed by the Corporation to all holders of Common Stock entitling
the holders thereof to subscribe for or purchase shares of the Corporation’s
Capital Stock (either initially or under certain circumstances), which rights,
options or warrants, until the occurrence of a specified event or events
(“Trigger Event”): (i) are deemed to be transferred with such shares
of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect
of future issuances of Common Stock, shall be deemed not to have been
distributed for purposes of this Section 6(c) (and no adjustment to the
Conversion Ratio under this Section 6(c) will be required) until the occurrence
of the earliest Trigger Event, whereupon such rights, options and warrants shall
be deemed to have been distributed and an appropriate adjustment (if any is
required) to the Conversion Ratio shall be made under this Section
6(c)(iii). In no event shall the Conversion Ratio be decreased
pursuant to this Section 6(c)(iii).
(iv)
In case
the Corporation shall, by dividend or otherwise, at any time make a distribution
of cash (excluding any cash that is distributed as part of a distribution
requiring a Conversion Ratio adjustment pursuant to Section 6(c)(v) to all or
substantially all holders of Common Stock, the Conversion Ratio shall be
increased by multiplying the Conversion Ratio in effect immediately prior to the
open of business on the Ex-Dividend Date for such distribution by a fraction (A)
whose numerator shall be the current market price per share of Common Stock (as
determined pursuant to Section 6(c)(vii)), on the Trading Day immediately
preceding the Ex-Dividend Date and (B) whose denominator shall be an amount
equal to (1) such current market price per share of Common Stock less (2) the
amount of the distribution per share of Common Stock; provided, however, that
the Conversion Ratio shall not be adjusted pursuant to this Section 6(c)(iv) to
the extent, and only to the extent, such adjustment would cause the Conversion
Ratio to be less than one cent ($0.01) (which minimum amount shall be subject to
appropriate adjustments, in the good faith determination of the Board of
Directors, to account for stock splits and combinations, stock dividends,
reclassifications and similar events); provided further that, if the denominator
of such fraction shall be equal to or less than zero, the Conversion Ratio shall
be instead adjusted so that the Conversion Ratio is equal to one cent ($0.01)
(as adjusted in accordance with the immediately preceding
proviso). An adjustment to the Conversion Ratio pursuant to this
Section 6(c)(iv) shall become effective immediately after the open of business
on the Ex-Dividend Date. In no event shall the Conversion Ratio be
decreased pursuant to this Section 6(c)(iv).
(v)
In case
the Corporation or any subsidiary of the Corporation shall distribute cash or
other consideration in respect of a tender offer or exchange offer made by the
Corporation of any subsidiary of the Corporation for all or any portion of the
Common Stock where the sum of the aggregate amount of such cash distributed and
the aggregate fair market value (as determined in good faith by the Board of
Directors of the Corporation, whose determination shall be conclusive), as of
the Expiration Date (as defined below), of such other consideration distributed
(such sum, the “Aggregate Amount”) expressed as an amount per share of Common
Stock validly tendered or exchanged, and not withdrawn, pursuant to such tender
offer or exchange offer as of the Expiration Time (as defined below) (such
tendered or exchanged shares of Common Stock, the “Purchased Shares”) exceeds
the Closing Price per share of Common Stock on the first Trading Day after the
last date (such last date, the “Expiration Date”) on which tenders or exchanges
could have been made pursuant to such tender offer or exchange offer (as the
same may be amended through the Expiration Date), then the Conversion Ratio
shall be increased by multiplying the Conversion Ratio in effect immediately
prior to the close of business on the first Trading Day after the Expiration
Date by a fraction (A) whose numerator is equal to the sum of (I) the Aggregate
Amount and (II) the product of (a) the Closing Price per share of Common Stock
on the first Trading Day after the Expiration Date and (b) an amount equal to
(i) the number of shares of Common Stock outstanding as of the last time (the
“Expiration Time”) at which tenders or exchanges could have been made pursuant
to such tender offer or exchange offer (including all Purchased Shares) less
(ii) the Purchased Shares and (B) whose denominator is equal to the product of
(I) the number of shares of Common Stock outstanding as of the Expiration Time
(including all Purchased Shares) and (II) such Closing Price per share of Common
Stock.
An
increase, if any, to the Conversion Ratio pursuant to this Section 6(c)(v) shall
become effective immediately after the open of business on the Trading Day
following the first Trading Day after the Expiration Date. In the
event that the Corporation or a subsidiary of the Corporation is obligated to
purchase shares of Common Stock pursuant to any such tender offer or exchange
offer, but the Corporation or such subsidiary is permanently prevented by
applicable law from effecting any such purchases, or all such purchases are
rescinded, then the Conversion Ratio shall again be adjusted to be the
Conversion Ratio which would then be in effect if such tender offer or exchange
offer had not been made. If the application of this Section 6(c)(v)
to any tender offer or exchange offer would result in a decrease in the
Conversion Ratio, no adjustment shall be made for such tender offer or exchange
offer under this Section 6(c)(v).
(vi)
In
addition to the foregoing adjustments in subsections (i), (ii), (iii), (iv) and
(v) above, the Corporation, from time to time and to the extent permitted by
law, may increase the Conversion Ratio by any amount for a period of at least
twenty (20) days or such longer period as may be required by law, if the Board
of Directors of the Corporation has made a determination, which determination
shall be conclusive, that such increase would be in the best interests of the
Corporation. Such Conversion Ratio increase shall be irrevocable
during such period. The Corporation shall cause notice of such
increase to be mailed to each holder of Series G Junior Preferred Stock (the
“Series G Preferred Stock”) of TerreStar Holdings Inc. (“Holdings”) and each
holder of 6.5% of Senior Exchangeable PIK Notes due 2014 (the “6.5% Notes”) at
such holder’s address as the same appears on the stock transfer books of the
Holdings or on the books of the Registrar for the 65% Notes, as applicable, of
TerreStar Networks Inc., (“Networks”) at least fifteen (15) days prior to the
date on which such increase commences.
(vii)
For the
purpose of any computation under this Section 6(c): (i) the current market price
per share of Common Stock on any date shall be deemed to be the average of the
Closing Prices for the ten (10) consecutive Trading Days ending on, but
excluding, the earlier of such date and the close of business on the Trading Day
immediately preceding the Ex-Dividend Date with respect to the issuance or
distribution requiring such computation, provided, however, that such current
market price per share of Common Stock shall be appropriately adjusted by the
Board of Directors of the Corporation, in its good faith determination, to
account for any adjustment, pursuant hereto, to the Conversion Ratio that shall
become effective, or any event requiring, pursuant hereto, an adjustment to the
Conversion Ratio where the Ex-Dividend Date of such event occurs, at any time
during the period that begins on, and includes, the first day of such ten (10)
consecutive Trading Days and ends on, and includes, the date when the adjustment
to the Conversion Ratio on account of the event requiring the computation of
such current market price becomes effective, and (ii) the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Corporation.
(viii)
The
following definitions are applicable for this Section 6(c):
(A)
Unless
the context requires otherwise, the term “record date” means, with respect to
any dividend, distribution or other transaction or event in which the holders of
shares of Common Stock have the right to receive any cash, securities or other
property or in which the shares of Common Stock (or other applicable security)
are exchanged for or converted into any combination of cash, securities or other
property, the date fixed for determination of stockholders entitled to receive
such cash, securities or other property (whether such date is fixed by the Board
of Directors or by statute, contract or otherwise).
(B)
The term
“Ex-Dividend Date” means: (i) when used with respect to any issuance
or distribution, means the first date on which the Common Stock trades the
regular way on the relevant exchange or in the relevant market without the right
to receive such issuance or distribution, (ii) when used with respect to any
subdivision or combination of shares of Common Stock, means the first date on
which the Common Stock trades the regular way on such exchange or in such market
after the time at which such subdivision or combination becomes effective and
(iii) when used with respect to any tender offer exchange offer means the first
date on which the Common Stock trades the regular way on such exchange or in
such market after the expiration time of such tender offer or exchange offer (as
it may be amended or extended). For purposes of determining the
Ex-Dividend Date with respect to an issuance or distribution under Section 6,
the Board of Directors of the Corporation may conclusively assume (and such
assumption shall be binding upon the holders of the Series E Preferred Stock)
that purchases and sale of the relevant security with respect to which such
issuance or distribution is being made will settle based on the customary
settlement cycle for purchases or sales of such security.
(C)
The terms
“Trading Day” means: any days during which (i) trading in the Common
Stock generally occurs on the primary U.S. national or regional securities
exchange on which it is then listed or, if the Common Stock is not listed on a
U.S. national or regional securities exchange, on the principal other market on
which the Common Stock is then admitted for trading and (ii) there is no Market
Disruption Event (as defined below).
(D)
The term
“Board of Directors” means the Board of Directors of the Corporation or any
committee thereof duly authorized to act on its behalf.
(E)
The term
“Capital Stock” means:
i.
in the
case of a corporation, corporate stock;
ii.
in the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;
iii.
in the
case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and
iv.
any other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing Person,
but excluding from all of the foregoing any debt securities convertible into
Capital Stock, whether or not such debt securities include any right of
participation with Capital Stock.
(F)
The term
“Business Day” means each day that’s not a Saturday, Sunday or other day on
which banking institutions in New York, New York are authorized or required by
law to close.
(G)
The term
“Indebtedness” means, with respect to any specified Person, any indebtedness of
such person (excluding accrued expenses and trade payables), whether or not
contingent:
i.
in
respect of borrowed money;
ii.
evidenced
by bonds, notes, debentures or similar instruments; or
iii.
in
respect of letters of credit, banker’s acceptances or other similar
instruments.
(H)
A “Market
Disruption Event”, as determined by the Board of Directors, shall mean the
occurrence or existence of any of the follow events: (i) a
suspension, absence or material limitation of trading in the Common Stock on its
primary market for more than two hours trading or during the one-half hour
before the close of trading in that market; (ii) a suspension, absence or
material limitation of trading in option or futures contracts relating to the
Common Stock, if available, in the primary market for those contracts for more
than two hours of trading or during the one-half hour before the close of
trading in that market; or (iii) the Common Stock does not trade on the New York
Stock Exchange, the American Stock Exchange, the Nasdaq Global Market or what
was the primary market for the Common Stock;
The
following events shall not be Market Disruption Events: (i) a
limitation on the hours or number of days of trading in the Common Stock on its
primary market, but only if the limitation results from an announced change in
the regular business hours of the relevant market; and (ii) a decision to
permanently discontinue trading in the option or futures contacts relating to
the Common Stock.
An
“absence of trading” in the primary market on which option or futures contracts
relating to the Common Stock, if available, traded shall not include any time
when that market is itself closed for trading under ordinary
circumstances. However, a suspension or limitation of trading in
option or futures contracts relating to the Common Stock, if available, in the
primary market for such option or futures contracts, by reason of any
of: (i) a price change exceeding limits set by that market; (ii) an
imbalance of orders relating to such option or futures contracts; or (iii) a
disparity in bid and asked quotes relating to such option or futures contracts
shall constitute a suspension or material limitation of trading in option or
futures contracts as the case may be, relating to the Common Stock in the
primary market for those contracts.
(ix)
The
Closing Price for one share of the Common Stock (or one unit of any other
security for which a Closing Price must be determined) on any Business Day
means:
(A)
if the
Common Stock (or any such other security) is listed or admitted to trading on a
national securities exchange, the last reported sale price, regular way, of the
principal trading session on such day on the principal United States securities
exchange registered under the Securities Exchange Act of 1934, as amended, on
which the Common Stock (or any such other security) is listed or admitted to
trading, or
(B)
if the
Common Stock (or any such other security) is not listed or admitted to trading
on any national securities exchange but is included in the OTC Bulletin Board
Service operated by the National Association of Securities Dealers, Inc., the
last reported sale price of the principal trading session on the OTC Bulletin
Board Service on such day.
If the
Common Stock (or any such other security) is listed or admitted to trading on
any national securities exchange but the last reported sale price is not
available pursuant to the preceding sentence, then the Closing Price for one
share of the Common Stock (or one unit of any such other security) on any
Business Day shall mean the last reported sale price of the principal trading
session of the Common Stock on the over-the-counter market as reported on the
OTC Bulletin Board Service on such day.
If the
last reported sale price for the Common Stock (or any such other security) is
not available pursuant to either of the two preceding sentences, then the
Closing Price for one share of the Common Stock for any Business day will be the
mean, as determined by the Board of Directors of the Corporation, of the bid
prices for the Common Stock (or any such other security) obtained from as many
recognized dealers in such security, but not exceeding three, as will make such
bid prices available to the Board of Directors of the
Corporation. The term OTC Bulletin board Service shall include any
successor service thereto.
Except as
prohibited by law or by the continued listing requirements of the Nasdaq Global
Market or any other securities exchange on which the Common Stock may then be
listed, the Issuer may make such increases in the Conversion Ratio, in addition
to those required by this Section 6(c), as it determines to be advisable in
order that any stock dividend, subdivision of shares, distribution of rights to
purchase stock or securities or distribution of securities convertible into or
exchangeable for stock made by the Corporation or to its stockholders will not
be taxable to the recipients thereof or in order to diminish any such
taxation.
Whenever
the Conversion Ratio is adjusted, the Corporation shall promptly mail, or cause
to be mailed, to holders of the Series G Preferred Stock of Holdings and of the
6.5% Notes of Network at the addresses appearing on the stock register books
notice of the adjustment. The notice shall be conclusive evidence of
the correctness of such adjustment.
(x)
In the
event that (1) the Corporation takes any action, or becomes aware of any event,
which would require an adjustment in the Conversion Ratio, or (2) there is a
dissolution or liquidation of the Corporation or Holdings:
(A)
The
Corporation shall mail, or caused to be mailed, to holders of the Series G
Preferred Stock of Holdings and of the 6.5% Notes of Network at the addresses
appearing on the stock transfer books or on the books of the Registrar for the
6.5% Notes, as applicable, a written notice stating the proposed record,
effective or expiration date, as the case may be, of any transaction referred to
in Section 6(c).
(B)
The
Corporation shall mail, or cause to be mailed, such notices at least twenty (20)
days before such date; however, failure to mail such notices or any defect
therein shall not affect the validity of any transaction referred to in this
Section 6(c).
(d)
Reservation of
Shares
. The Corporation shall, at all times when the Series E
Preferred Stock shall be outstanding, reserve and keep available out of its
authorized but unissued shares of Common Stock, such number of its duly
authorized shares of Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding Series E Preferred Stock; and if at any
time the number of authorized but unissued shares of Common Stock shall not be
sufficient to effect the conversion of all then outstanding shares of the Series
E Preferred Stock, the Corporation shall take such corporate action as may be
necessary to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purposes, including, without
limitation, engaging in best efforts to obtain the requisite stockholder
approval of any necessary amendment to the Certificate of
Incorporation.
(e)
Limitations on
Conversion
. No holder of Series E Preferred Stock
and no Transferee thereof shall have the right to convert such shares of Series
E Preferred Stock into shares of Common Stock, if:
(i)
such
conversion would constitute a change of control of Networks or the Corporation
pursuant to (a) that certain Indenture, dated as of February 14, 2007 relating
to Networks’ 15% Senior Secured PIK Notes due 2014, as amended or supplemented
from time to time; (b) that certain Indenture, dated as of February 7, 2008,
relating to Network’s 6.5% Notes, as amended or supplemented from time to time;
(c) the Series B Preferred Stock of the Corporation; and (d) Section 382 of the
Internal Revenue Code, as amended from time to time;
(ii)
such
conversion would violate or conflict with the terms of, or result in the
acceleration of any indebtedness or obligation of the Corporation or any of its
Affiliates under, or violate or result in a breach of, constitute a default
under, or result in a change of control under any indenture, mortgage, deed of
trust or other debt instrument to which the Corporation or any of its Affiliates
is then a party.
7.
Rank
. Series
E Preferred Stock shall, with respect to payment of dividends, redemption
payments, rights upon liquidation, dissolution or winding up of the affairs of
the Corporation, or otherwise, rank (i) senior and prior (to the extent set
forth herein) to the Common Stock and each other class or series of equity
securities of the Corporation, whether currently issued or issued in the future,
that by its express terms ranks junior to the Series E Preferred Stock (whether
with respect to payment of dividends, redemption payments, rights upon
liquidation, dissolution or winding up of the affairs of the Corporation, or
otherwise) (all of such equity securities, including the Common Stock, are
collectively referred to herein as the “Junior Securities”), (ii) rank on a
parity with each other class or series of equity securities of the Corporation,
whether currently issued or issued in the future, that does not by its terms
expressly provide that it ranks senior to or junior to the Series E Preferred
Stock (whether with respect to payment of dividends, redemption payments, rights
upon liquidation, dissolution or winding up of the affairs of the Corporation,
or otherwise) (all of such equity securities are collectively referred to herein
as the “Parity Securities”), and (iii) rank junior to the Series B Cumulative
Convertible Preferred Stock of the Corporation (the “Series B Preferred Stock”)
and each other class or series of equity securities of the Corporation, whether
currently issued or issued in the future, that by its express terms ranks senior
to the Series E Preferred Stock (whether with respect to payment of dividends,
redemption payments, rights upon liquidation, dissolution or winding up of the
affairs of the Corporation, or otherwise) (all of such equity securities are
collectively referred to herein as the “Senior Securities”). The
respective definitions of Junior Securities, the Parity Securities and Senior
Securities shall also include any rights or options exercisable or exchangeable
for or convertible into any of the Junior Securities, the Parity Securities or
the Senior Securities, as the case may be. At the date of the initial
issuance of the Series E Preferred Stock (i) shares of the Series B Preferred
Stock shall be the only Senior Securities issued and outstanding, (ii) there
shall be no shares of Parity Securities issued and outstanding, and (iii) shares
of Common Stock shall be the only Junior Securities issued and
outstanding.
8.
Notices
. All
notices referred to herein shall be dated and in writing, to the Corporation at
its principal executive offices and to each holder of Series E Preferred Stock
at such holder’s address as it appears in the stock records of the Corporation
(unless otherwise specified in a written notice to the Corporation by such
holder), and shall be deemed to have been given (i) when delivered, if delivered
personally, sent by confirmed facsimile or certified mail, return receipt
requested, postage prepaid, (ii) on the next business day if sent by overnight
courier and (iii) when received if delivered otherwise.
9.
Transfers
. No
holder of Series E Preferred Stock may affect any Transfer, or enter into any
agreement with respect to any Transfer, or grant any proxy with respect to, the
Series E Preferred Stock, or any beneficial or other interest therein, to any
Person other than Related Parties of such a holder of Series E
Preferred Stock. Any purported Transfer to any Person other than a
Related Party of such transferring holder of such Series E Preferred Stock shall
be void ab initio. The certificate representing the shares of Series
E Preferred Stock shall bear the following legend:
THE
SHARES OF SERIES E PREFERRED STOCK OF TERRESTAR CORPORATION REPRESENTED BY THIS
CERTIFICATE ARE NOT TRANSFERRABLE TO ANY PERSON OR ENTITY OTHER THAN A RELATED
PARTY AND ANY PURPORTED TRANSFER SHALL BE NULL AND
VOID.
“Related
Party” means, with respect to a holder of Series E Preferred Stock,
(i) each Affiliate of such holder, (ii) each partner, member, director
or officer of such holder and the respective members of their immediate families
and (iii) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or persons beneficially holding a
majority or more controlling interest of which consist of any one or more of the
persons described in the preceding clauses (i) and (ii).
Notwithstanding
the foregoing, the initial record owner of Series E Preferred Stock, TerreStar
Holdings Inc., shall be entitled to hold such shares of Series E Preferred Stock
as fiduciary, for the benefit of the holders of the Series G Junior Preferred
Stock of Holdings, pursuant to the Certificate of Designations of the Series G
Preferred Stock of Holdings, and such holders of Series G Junior Preferred Stock
shall be deemed to be the beneficial owners of the Series E Preferred
Stock.
10.
Amendment and
Waiver
. No amendment or waiver of any provision of the
Certificate of Incorporation which would materially alter or change the powers,
preferences or special rights of the Series E Preferred Stock so as to affect
them adversely shall be effective without the prior consent or affirmative vote
of a majority in interest of the holders of Series E Preferred Stock, either in
writing or by resolution adopted at an annual or special meeting.
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Electronic
Consent Instructions
You
can consent by Internet or telephone!
Available
24 hours a day, 7 days a week!
Instead of
mailing your consent, you may choose one of the two
methods
outlined below to consent.
VALIDATION
DETAILS ARE LOCATED BELOW IN THE TITLE BAR.
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Consent
by Internet
•
Log on to the Internet and go
to
www.envisionreports.com/TSTR
•
Follow the steps outlined on
the secured website.
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Consent
by telephone
•
Call toll free 1-800-652-VOTE
(8683) within the USA,
US territories & Canada any time on a touch tone
telephone. There is
NO
CHARGE
to you for the call.
•
Follow the instructions
provided by the recorded
message.
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Using a
black ink
pen, mark your
consent with an
X
as shown in
this example.
Please do not write outside the designated areas.
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X
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WRITTEN
CONSENT
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q
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IF
YOU HAVE NOT CONSENTED VIA THE INTERNET OR TELEPHONE, FOLD ALONG THE
PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED
ENVELOPE.
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q
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WRITTEN CONSENT OF
STOCKHOLDERS OF TERRESTAR CORPORATION TO APPROVE THE AMENDMENTS
TO TERRESTAR
CORPORATION’S RESTATED CERTIFICATE OF INCORPORATION
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For
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Against
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Abstain
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1.
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An amendment
to TerreStar Corporation’s Restated Certificate of Incorporation to
increase our previously authorized 240,000,000 shares of
Common Stock
to 800,000,000.
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2.
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An amendment
to TerreStar Corporation’s Restated Certificate of Incorporation by an
amendment to the Certificate of Designations of the
Company’s
Series B Cumulative Convertible Preferred Stock (the “Series B
Preferred”), including without limitation the amendment of
the
conversion
price in respect of the securities issuable upon conversion of the Series
B Preferred and the maturity date.
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3.
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An amendment
to TerreStar Corporation’s Restated Certificate of Incorporation by an
amendment to the Certificate of Designations of the
Company’s
Series E Junior Participating Preferred Stock (the “Series E Preferred”),
including without limitation the amendment of the exchange
ratio and
anti-dilution protections in respect of the securities issuable upon
conversion of the Series E Preferred.
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By
signing this Written Consent, a stockholder of TerreStar Corporation shall be
deemed to have consented with regard to all shares of TerreStar Corporation’s
Common
Stock which he is entitled to provide a consent with respect to the proposals
described above.
IF
A STOCKHOLDER SIGNS AND RETURNS THIS
WRITTEN
CONSENT, BUT DOES NOT INDICATE THEREON WHETHER HE WISHES TO CONSENT TO THE
PROPOSALS DESCRIBED ABOVE, THEN
SUCH
STOCKHOLDER WILL BE DEEMED TO HAVE GIVEN HIS AFFIRMATIVE WRITTEN CONSENT TO THE
PROPOSALS.
THIS
WRITTEN CONSENT IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF TERRESTAR
CORPORATION.
THIS WRITTEN
CONSENT
MAY BE REVOKED AT
ANY TIME PRIOR TO THE RECEIPT BY TERRESTAR CORPORATION OF THE AFFIRMATIVE
WRITTEN CONSENTS
REPRESENTING A
MAJORITY OF TERRESTAR CORPORATION’S OUTSTANDING SHARES OF COMMON STOCK BY FILING
A WRITTEN
INSTRUMENT REVOKING
THE WRITTEN CONSENT WITH TERRESTAR CORPORATION’S SECRETARY.
(Please date this
Written Consent and sign your name as it appears on your stock certificates.
Executors, administrators, trustees, etc., should give their full titles. All
joint owners should sign.)
Date
(mm/dd/yyyy) — Please print date below.
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Signature 1 — Please keep
signature within the box.
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Signature
2 — Please keep signature within the box.
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