- Additional Proxy Soliciting Materials (definitive) (DEFA14A)
22 Diciembre 2009 - 4:11PM
Edgar (US Regulatory)
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
x
|
Filed
by a Party other than the Registrant
o
|
Check
the appropriate box:
|
o
|
Preliminary
Proxy Statement
|
o
|
Confidential,
For Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
|
o
|
Definitive
Consent Solicitation Statement
|
x
|
Definitive
Additional Materials
|
o
|
Soliciting
Material Pursuant to Rule 14a-11(c) or Rule
14a-12
|
TERRESTAR
CORPORATION
|
(Name
of Registrant as Specified In Its
Charter)
|
|
(Name
of Person(s) Filing Proxy Statement if other than the
Registrant)
|
Payment
of Filing Fee (Check the appropriate box):
|
x
|
No
fee required.
|
o
|
Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
|
|
(1)
|
Title
of each class of securities to which transaction
applies:
|
|
|
|
|
|
(2)
|
Aggregate
number of securities to which transaction applies:
|
|
|
|
|
|
(3)
|
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):
|
|
|
|
|
|
(4)
|
Proposed
maximum aggregate value of transaction:
|
|
|
|
|
|
(5)
|
Total
fee paid:
|
|
|
|
|
|
|
|
o
|
Fee
paid previously with preliminary proxy materials.
|
o
|
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.
|
|
(1)
|
Amount
previously paid:
|
|
|
|
|
|
(2)
|
Form,
Schedule or Registration Statement no.:
|
|
|
|
|
|
(3)
|
Filing
Party:
|
|
|
|
|
|
(4)
|
Date
Filed:
|
|
|
|
|
SUPPLEMENTAL
INFORMATION
This
consent solicitation statement supplement (the “Supplement”) includes certain
revised information which should be considered with the information set forth in
TerreStar Corporation’s (the “Company”) definitive consent solicitation
statement previously filed with the Securities and Exchange Commission on
December 7, 2009, which was delivered to the stockholders of the Company on or
about December 7, 2009 (the “Consent Solicitation Statement”). The
Company filed the Consent Solicitation Statement to solicit 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”):
|
1.
|
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.
|
|
2.
|
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.
|
|
3.
|
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.
|
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).
This
Supplement is being filed to include a revised Form of Amended and Restated
Certificate of Designations of the Series B Cumulative Convertible Preferred
Stock (the “Series B Certificate of Designations”) to reflect a change to
Section 3 of the Series B Certificate of Designations regarding the board
member voting rights available to Series B Cumulative Convertible Preferred
Stock holders upon a Voting Rights Triggering Event (as defined in the Series B
Certificate of Designations) under certain circumstances. The Series
B Certificate of Designations is being revised in accordance with the
requirements of The NASDAQ Stock Market LLC. The revised Series B
Certificate of Designations, including the revisions to Section 3 discussed
above, is provided in
Appendix A
below. This Supplement does not contain or address any other changes
to the Consent Solicitation Statement.
This
Supplement is intended to supplement the information contained in the Consent
Solicitation Statement and should be read in conjunction with the Consent
Solicitation Statement, which we urge you to read in its
entirety. The information contained in this Supplement updates and
supersedes, as applicable, any previously disclosed information contained in the
Consent Solicitation Statement. The Board of Directors of the Company
unanimously recommends that you vote “
FOR”
the proposals set forth
above.
APPENDIX
A
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
.
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
; provided, that
such ability
to elect a majority of the members of the Corporation’s Board of Directors shall
not be triggered by a Voting Rights Triggering Event if, at such time, the
holders of the then-outstanding shares of Series B Preferred Stock do not also
own in the aggregate at least a majority of the then-issued and outstanding
shares of Common Stock on a fully-diluted basis (including such Common Stock
shares as are issuable upon the conversion or exchange of any equity or debt
securities, but excluding any Common Stock shares issuable upon the exercise of
any warrants, options or similar instruments). In the event that the
holders of the Series B Preferred Stock do not own such number of shares of
Common Stock required to elect a majority of members of the Board of Directors,
then the percentage of the total number of members of the Board of Directors
that such holders shall have the ability to elect shall be reduced from a
majority of the total number of directors to a number of directors that
corresponds with the percentage of the then-issued and outstanding shares of
Common Stock on a fully-diluted basis that are then owned by the holders of the
Series B Preferred Stock in the aggregate.
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.
Terrestar (MM) (NASDAQ:TSTR)
Gráfica de Acción Histórica
De Jun 2024 a Jul 2024
Terrestar (MM) (NASDAQ:TSTR)
Gráfica de Acción Histórica
De Jul 2023 a Jul 2024