EXHIBIT 99.5: INVESTOR RIGHTS AGREEMENT

 

 

 

                                                                  Exhibit 99.5

 

 

 

                           INVESTOR RIGHTS AGREEMENT

 

 

         This INVESTOR RIGHTS AGREEMENT (this "Agreement"), dated as of April

22, 2005, is entered into by and among HUGHES NETWORK SYSTEMS, LLC, a Delaware

limited liability company (the "Company"), the DTVG Investor (as defined

herein) and the SkyTerra Investor (as defined herein).

 

         WHEREAS, The DIRECTV Group, Inc. ("DTVG"), Hughes Network Systems,

Inc. ("HNS"), SkyTerra Communications, Inc. ("SkyTerra") and the Company have

entered into a Contribution and Membership Interest Purchase Agreement, dated

as of December 3, 2004 (as amended, the "Contribution Agreement"), pursuant to

which, among other things, (i) HNS, contributed to the Company, and the

Company acquired and accepted from HNS certain assets, and assumed certain

liabilities associated therewith, all on the terms and conditions set forth

therein and (ii) HNS sold to SkyTerra and SkyTerra purchased from HNS, 50% of

the membership interests in the Company;

 

         WHEREAS, HNS and SkyTerra have entered into an Amended and Restated

Limited Liability Company Agreement of the Company, of even date herewith (the

"LLC Agreement"), pursuant to which each Investor owns a 50% LLC Interest (as

defined below) in the Company;

 

         WHEREAS, the Company and the Investors desire to provide for certain

arrangements with respect to (i) tag along rights, (ii) drag-along rights,

(iii) registration rights and (iv) other related matters; and

 

         WHEREAS, following the closing of the transactions contemplated by

the Contribution Agreement, SkyTerra may create a wholly owned subsidiary and

assign its rights and obligations hereunder to such subsidiary (the "Drop

Down");

 

         NOW, THEREFORE, in consideration of the mutual promises and covenants

contained in this Agreement, the parties hereto agree as follows:

 

         1.        Definitions. As used in this Agreement, the following terms

shall have the following respective meanings:

 

                  1.1 "Commission" means the Securities and Exchange

Commission, or any other Federal agency at the time administering the

Securities Act.

 

                  1.2 "DTVG Investor(s)" means HNS, and any Persons to whom

the rights granted under this Agreement are transferred by HNS, its successors

or assigns pursuant to Section 5 hereof. If more than one DTVG Investor

exists, any action requiring the consent, approval or exercise of the DTVG

Investors shall be consented to or approved or exercised by the DTVG Investors

who own a majority of the Class A Units held by all DTVG Investors.

 

                  1.3 "Exchange Act" means the Securities Exchange Act of

1934, as amended, or any similar Federal statute, and the rules and

regulations of the Commission issued under such Act, as they each may, from

time to time, be in effect.

 

                  1.4 "Fairness Opinion" means a written opinion from a

nationally-recognized investment bank reasonably acceptable to the SkyTerra

Investors and the DTVG Investors opining that the Basic Sales Terms of the

Drag Along Transaction are fair to the Investors.

 

                  1.5 "Investors" means the SkyTerra Investor(s) and the DTVG

Investor(s).

 

                  1.6 "LLC Interest" means as to any Investor, all of the

interest of that Investor in the Company, including without limitation, such

Investor's (i) right to a distributive share of the income, gain, losses and

deductions of the Company in accordance with the LLC Agreement, and (ii) right

to a distributive share of LLC Assets. In the event that the Managing Member

effects the transactions contemplated by Section 9.5 of the LLC Agreement, the

equity interests issued in connection therewith shall be deemed to be an "LLC

Interest" hereunder.

 

                  1.7 "Qualified Initial Public Offering" means the first

underwritten public offering of the equity of the Company on a firm commitment

basis covering the offer and sale of equity of the Company for the account of

the Company in which the aggregate public offering price (before deduction of

underwriters' discounts and commissions) equals or exceeds $50 million

underwritten by a reputable nationally recognized underwriting firm pursuant

to which the equity interests will be quoted on the NASDAQ National Market or

listed or quoted on the New York Stock Exchange or another securities exchange

acceptable to the Investors.

 

                  1.8 "Registrable Securities" means (i) the LLC Interests and

(ii) any other equity securities of the Company issued in respect of the

interests described in clause (i), including without limitation because of a

conversion of the Company from a limited liability company to, or merger of

the Company with, a corporation in accordance with Section 9.5 of the LLC

Agreement or other reclassifications, recapitalizations or similar events;

provided, however, that such interests that are Registrable Securities shall

cease to be Registrable Securities (x) upon any sale pursuant to a

Registration Statement, or (y) with respect to an Investor, when such Investor

is eligible to sell, transfer or otherwise convey all of such Investor's

Registrable Securities pursuant to Rule 144 under the Securities Act without

regard to volume and holding period limitations.

 

                   1.9 "Registration Statement" means a registration statement

filed by the Company with the Commission for a public offering and sale of

equity securities of the Company (other than a registration statement on Form

S-8 or Form S-4, or their successors, any registration statement covering only

securities proposed to be issued in exchange for securities or assets of

another corporation or a registration statement on Form S-3 solely for the

purpose of registering shares issued in a non-underwritten offering in

connection with a merger, combination or acquisition).

 

                  1.10 "Securities Act" means the Securities Act of 1933, as

amended, or any similar Federal statute, and the rules and regulations of the

Commission issued under such Act, as they each may, from time to time, be in

effect.

 

                  1.11 "SkyTerra Investor(s)" means SkyTerra, and any Persons

to whom the rights granted under this Agreement are transferred by SkyTerra,

its successors or assigns pursuant to Section 5 hereof. If more than one

SkyTerra Investor exists, any action requiring the consent, approval or

exercise of the SkyTerra Investors shall be consented to or approved or

exercised by the SkyTerra Investors who own a majority of the Class A Units

held by all SkyTerra Investors. After delivery of notice to the DTVG

Investor(s) of the Drop Down, the SkyTerra Sub shall become the SkyTerra

Investor hereunder.

 

                  1.12 "SkyTerra Sub" - A wholly owned subsidiary of SkyTerra

formed for the purpose of effecting the Drop Down.

 

                  1.13 "Unaffiliated Buyer" means an unrelated and

unaffiliated third party in which the SkyTerra Investors, their respective

Affiliates, Apollo Management, L.P., any investment fund managed by Apollo

Management, L.P., and any direct or indirect portfolio company of any

investment fund managed by Apollo Management, L.P. do not own in the aggregate

(or will not own in the aggregate, following a Drag-Along Transaction, except

as a result of equity interests issued in consideration of, or retained in

connection with, a Drag-Along Transaction) a direct or indirect equity

interest of (i) greater than ten percent (10%) or (ii) if the Sky Terra

Investors deliver a Fairness Opinion to the DTVG Investors in connection with

the Drag-Along Transaction, greater than twenty-five percent (25%).

 

                  Capitalized terms used in this Agreement and not otherwise

defined herein shall have the meanings given them in the LLC Agreement.

 

         2.        Tag Along Rights.

 

                  2.1 General. An Investor desiring to transfer any LLC

Interest (a "Selling Investor") shall not be permitted to transfer (other than

to a Permitted Transferee) such LLC Interest to any Person, unless the terms

and conditions of such transfer shall include an offer by the third-party

transferee to the other Investors (each other Investor who wishes to sell LLC

Interests, a "Tag Along Participant"), at a price calculated using the same

methodology used to calculate the price of such Selling Investor's LLC

Interest proposed to be transferred (such price, a "Tag Along Price") and

otherwise on the same terms and conditions as such Selling Investor has agreed

to sell such LLC Interest, to include in the transfer to the third party

transferee a portion of LLC Interests held by each Tag Along Participant

determined in accordance with this Section 2.

 

                  2.2 Obligation of Transferee to Purchase. The third-party

transferee of the Selling Investor shall purchase from each Tag Along

Participant who accepts such offer the portion of such Tag Along Participant's

aggregate LLC Interest that such Tag Along Participant desires to sell,

provided that such portion does not exceed the Maximum Tag Along Portion (as

defined below) attributable to such Tag Along Participant and, if such portion

exceeds such Maximum Tag Along Portion, the third-party transferee shall

purchase from such Tag Along Participant only the Maximum Tag Along Portion.

For purposes hereof, the term "Maximum Tag Along Portion" attributable to a

Tag Along Participant means an amount equal to (a) the total number of Units

proposed to be transferred to the third-party transferee by the Selling

Investor and all Tag Along Participants multiplied by (b) a fraction, the

numerator of which is the number of Units held by such Tag Along Participant

and the denominator of which is the number of Units held by the Selling

Investor and all Tag Along Participants.

 

                  2.3 Notice. In the event the Selling Investor proposes to

transfer any LLC Interest in a transaction subject to this Section 2, it shall

notify, or cause to be notified, in writing, each Investor of each such

proposed transfer. Such notice (the "Transfer Notice") shall be given not more

than 60 nor less than 20 calendar days prior to the proposed sale date and set

forth: (i) the name of the transferee and the LLC Interest proposed to be

transferred, (ii) the proposed amount and form of consideration and terms and

conditions of payment offered by the transferee (the "Transferee Terms"),

(iii) that the transferee has been informed of the "tag along right" provided

for in this Section 2, and has agreed to purchase LLC Interests from each Tag

Along Participant in accordance with the terms hereof, and (iv) the proposed

sale date.

 

                  2.4 Exercise. The tag-along right may be exercised by each

Tag-Along Participant by delivery of a written notice to the Selling Investor

(the "Tag Along Notice") within 15 calendar days following receipt of the

Transfer Notice. The Tag Along Notice shall state the portion of its aggregate

LLC Interest that such Tag Along Participant wishes to include in such

transfer to the third-party transferee. Upon the giving of a Tag Along Notice,

such Tag Along Participant shall be entitled and obligated to sell the portion

of its LLC Interest set forth in the Tag Along Notice (but not in excess of

the Maximum Tag Along Portion), to the third-party transferee on the

Transferee Terms; provided, however, the Selling Investor shall not consummate

the sale of any LLC Interest offered by it if the third-party transferee does

not purchase all LLC Interests which each Tag Along Participant is entitled to

and desires to sell pursuant hereto. After expiration of the 15 calendar-day

period referred to above, if the provisions of this Section 2 have been

complied with in all material respects, the Selling Investor and each Tag

Along Participant that delivered a Tag Along Notice shall transfer the LLC

Interests to the transferee on the Transferee Terms on the sale date proposed

in the Transfer Notice (or such other date within thirty (30) days of such

proposed sale date as may be agreed among the participants in such transfer).

 

                  2.5 Several Liability. Anything to the contrary contained

herein notwithstanding, the Selling Investor agrees to use its reasonable good

faith efforts to seek to ensure that the applicable Transferee Terms provide

for several, and not joint, liability, with respect to the indemnification and

comparable obligations contained within such Transferee Terms.

 

         3.        Drag-Along Rights.

 

                  3.1 Drag-Along Transaction. At any time after the second

anniversary of the date of this Agreement, if the SkyTerra Investors determine

to (i) transfer or exchange (in a merger, business combination or otherwise)

in one or a series of related bona fide arm's-length transactions all or

substantially all of the Class A Units of the Company (including all or

substantially all of the LLC Interests held by the SkyTerra Investors) or (ii)

sell all or substantially all of the assets of the Company (collectively, the

"Drag-Along Transaction") to an Unaffiliated Buyer, and provided that (x)

prior to the proposed Drag-Along Transaction, all of the SkyTerra Investors

own at least twenty five (25%) of the aggregate Percentage Interests of the

Company, (y) the SkyTerra Investors are not then in default of any of their

obligations under this Agreement or the LLC Agreement in a manner that has had

a material adverse impact on the value of the Company, and (z) the transaction

will not result in any material default under any indebtedness of the Company

guaranteed by any DTVG Investor or the triggering of any obligation of any

DTVG Investor to make payments or incur any indebtedness or other significant

liability in connection with any Financial Support Arrangements (as defined in

the Contribution Agreement) retained for the benefit of the Company or other

guaranties or credit support maintained by such DTVG Investor on behalf of the

Company (other than arising out of reasonable and customary indemnification

provisions, typically found in transactions of similar type (a "Standard

Indemnity")), then the SkyTerra Investors shall have the right to implement

the drag along procedures set forth in this Section 3 by delivering a written

notice to all Investors (the "Drag-Along Notice"). Such Drag-Along Notice

shall include reasonable details of the proposed transaction with the

Unaffiliated Buyer, including a description of all consideration, payments,

commitments, compensation, rights or other property of any type to be received

and all material liabilities and obligations to be incurred (other than a

Standard Indemnity) by the Investors or their Affiliates in connection with

such transaction (including any issuance of notes or other securities,

assumption of material liabilities and any other commercial arrangements) and

any other material economic terms of the proposed sale (the "Basic Sale

Terms"). The Basic Sale Terms shall provide for distribution of the economic

benefits and detriments of the transactions among the Investors in accordance

with their respective Percentage Interests.

 

                  3.2 Participation in Drag-Along Transaction. In the event

that all of the DTVG Investors then own a Percentage Interest in the LLC at

least equal to the Percentage Interest then owned by all of the SkyTerra

Investors, a representative of the DTVG Investors shall be included in all

material negotiations regarding the proposed Drag-Along Transaction, and shall

be permitted to participate in all material facets of the transaction, but in

such negotiations the DTVG Investors shall cooperate with the SkyTerra

Investors in connection with the proposed Drag-Along Transaction. If the DTVG

Investors do not participate in the material negotiations or other material

facets of the transaction, the DTVG Investors shall be entitled to receive

copies of the proposed definitive transaction documents at least five (5)

business days prior to the proposed approval and execution of the Drag-Along

Transaction. After such five (5) business day period, all of the Investors

shall, (i) vote all of their equity interests of the Company represented by

the Investor's LLC Interest in favor of the Drag-Along Transaction, and (ii)

to the extent applicable, instruct the DTVG Board Members to vote in favor of

any reasonable action deemed necessary to consummate the Drag-Along

Transaction and enter into a definitive agreement to sell, transfer and

deliver, or cause to be sold transferred and delivered, to the Unaffiliated

Buyer, all of its LLC Interests in the Drag-Along Transaction.

 

                  3.3 Drag-Along Transaction Not Consummated. In the event

that a binding and definitive agreement for the sale or transfer in a

Drag-Along Transaction pursuant to this Section 3 is not entered into within

ninety (90) days after the Investors receive the Drag-Along Notice or the

Drag-Along Transaction is not consummated following satisfaction or waiver of

all applicable conditions precedent within eight (8) months thereafter, upon

expiration of any definitive agreement for the Drag-Along Transaction then in

effect the Investors shall cease to be bound by the obligations set forth in

Section 3.2 with regard to such transaction.

 

                   3.4 Third Party Matters. No DTVG Investor shall be required

to satisfy the obligations set forth in Section 3.2 unless the definitive

agreement to consummate the Drag-Along Transaction contains a provision

reasonably acceptable to the DTVG Investors which provides for the

Unaffiliated Buyer in the Drag-Along Transaction to assume and release the

DTVG Investors and their Affiliates from all indebtedness of the Company

guaranteed by the DTVG Investors or their Affiliates or any obligation of any

DTVG Investor or its respective Affiliates to make payments or incur any

indebtedness or other significant liability in connection with any Financial

Support Arrangements (as defined in the Contribution Agreement) retained for

the benefit of the Company or other guaranties or credit support maintained by

the DTVG Investors or their Affiliates on behalf of the Company (other than

arising out of a Standard Indemnity). The parties further agree that the

closing of the Drag-Along Transaction shall not be consummated unless the DTVG

Investors and their Affiliates are so released as provided for in the

agreement entered into in accordance with the foregoing sentence. Unless

otherwise agreed by the SkyTerra Investors, the DTVG Investors and the

Unaffiliated Buyer, if the Drag-Along Transaction pursuant to this Section 3

would violate any loan document or other material contract to which the

Company is a party, then the Company and the Unaffiliated Buyer shall obtain

the consent of the lender or other third party to such sale prior to closing.

The provisions of this Section 3.4 shall not apply to any Standard Indemnity

entered into in connection with the Drag-Along Transaction.

 

                  3.5 Default. In the event that a party fails to fulfill its

obligation to sell or purchase under this Section 3, then the other parties

shall be entitled to exercise all rights and remedies provided by law for such

a default, including specific performance and the right to sue for damages.

 

         4.        Notice of Sale; Auction Participation.

 

                  If at any time or from time to time following the date of

this Agreement, the SkyTerra Investors desire to (i) transfer or exchange (in

a merger, business combination or otherwise) in one or a series of related

bona fide arm's-length transactions all of the Class A Units of the Company

(including all of the LLC Interests held by the SkyTerra Investors) or (ii)

sell all or substantially all of the assets of the Company (collectively, a

"Sale Transaction"), in each case, to an Unaffiliated Buyer, prior to

initiating any material discussions regarding a Sale Transaction with any

Unaffiliated Buyer (excluding brokers and investment advisors), the SkyTerra

Investors shall provide a written notice to the DTVG Investors indicating the

intention of the SkyTerra Investors to pursue a Sale Transaction. If the

SkyTerra Investors pursue a Sale Transaction through an auction process, the

SkyTerra Investors shall provide the DTVG Investors an opportunity to

participate in such auction in a manner that is no less favorable than that

offered to other potential bidders or participants in such auction.

 

         5.        Transfers of Rights. This Agreement, and the rights and

obligations of any Investor hereunder, may be assigned by such Investor to any

transferee of such Investor's LLC Interests to the extent such Investor

transfers the LLC Interests in accordance with the LLC Agreement, and, subject

to the following sentence, such transferee shall be deemed a "SkyTerra

Investor" or "DTVG Investor", as the case may be, for purposes of this

Agreement; provided that the transferor shall give the Company prior written

notice of any transfer under this Section 5. Notwithstanding the foregoing,

the rights of the SkyTerra Investors under Section 3 may only be assigned to

(i) a Person who will, following such transfer, own at least fifty percent

(50%) of the aggregate Percentage Interests owned by the SkyTerra Investors as

of the date of this Agreement or (ii) any Person, if SkyTerra and its

Affiliates or Persons to whom these rights have been assigned pursuant to this

Section 5 own Percentage Interests greater than the Percentage Interests owned

by DTVG and its Affiliates, and for purposes of Section 3, only SkyTerra and

such Persons described in clause (i) and (ii) will be considered "SkyTerra

Investors".

 

         6.        Registration Rights.

 

                  6.1       Required Registrations.

 

                           6.1.1 At any time following the fifth anniversary

of the date of this Agreement, the SkyTerra Investors, on the one hand, or the

DTVG Investors, on the other, may request, in writing, that the Company effect

a registration on Form S-1 (or any successor form) of Registrable Securities

owned by such Investor or Investors provided that the aggregate public

offering price (before deduction of underwriters' discounts and commissions)

of the LLC Interests or other equity of the Company offered in such

registration equals or exceeds $50 million. In addition, at any time following

the date that the Company has consummated a public offering of its equity

securities pursuant to a Registration Statement, the SkyTerra Investors, on

the one hand, or the DTVG Investors, on the other, may request, in writing,

that the Company effect a registration on Form S-1 (or any successor form) of

Registrable Securities owned by such Investor. If the Investors initiating the

registration intend to distribute the Registrable Securities by means of an

underwriting, they shall so advise the Company in their request. In the event

such registration is underwritten, the right of other Investors to participate

in such registration shall be conditioned on such Investors' participation in

such underwriting. Upon receipt of any such request, the Company shall

promptly give written notice of such proposed registration to all Investors.

Such other Investors shall have the right, by giving written notice to the

Company within 30 days after the Company provides its notice, to elect to have

included in such registration all or a part of their Registrable Securities as

such Investors may request in such notice of election. All Investors proposing

to distribute their securities through such underwriting shall enter into an

underwriting agreement in customary form with an underwriter or underwriters

that are mutually agreeable to the Company and the Investors including

Registrable Securities in such offering. Thereupon, the Company shall, at its

own expense and as expeditiously as possible, use its best efforts to effect

the registration, on Form S-1 (or any successor form), of all Registrable

Securities that the Company has been requested so to register.

 

                           6.1.2 At any time after the Company becomes

eligible to file a Registration Statement on Form S-3 (or any successor form

relating to secondary offerings, hereinafter, "Form S-3"), each of (i) the

SkyTerra Investors and (ii) the DTVG Investors holding Registrable Securities

will have the right to require the Company to effect a registration on Form

S-3 of Registrable Securities provided that the aggregate public offering

price (before deduction of underwriters' discounts and commissions) of the LLC

Interests or other equity of the Company offered in such registration equals

or exceeds $10 million (or such lesser amount to the extent that such

Investor(s) do not own LLC Interests or other equity securities that equal or

exceed $10 million). Upon receipt of any such request, the Company shall

promptly give written notice of such proposed registration to all Investors.

Such other Investors shall have the right, by giving written notice to the

Company within 30 days after the Company provides its notice, to elect to have

included in such registration such of their Registrable Securities as such

Investors may request in such notice of election. Thereupon, the Company

shall, as expeditiously as possible, use its best efforts to effect the

registration on Form S-3 of all Registrable Securities that the Company has

been requested to register.

 

                           6.1.3 The Company shall be required to effect not

more than (a) five (5) registrations initiated by the SkyTerra Investors

pursuant to Section 6.1.1 above, or (b) five (5) registrations initiated by

the DTVG Investors pursuant to Section 6.1.1 above. The Company shall not be

required to effect more than one (1) registration under this Section 6.1 in

any six (6) month period. Each request for registration pursuant to Section

6.1.1 shall be deemed satisfied only when a registration statement covering

all Registrable Securities specified in notices received as aforesaid, for

sale in accordance with the method of disposition specified in such notices,

has become effective and, if the method of disposition is a firm commitment

underwritten public offering all of the Registrable Securities