SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
TO
Tender
Offer Statement under Section
14(d)(1)
or 13(e)(1) of the Securities Exchange Act of 1934
(
Amendment No. 9)
TerreStar
Corporation
TerreStar
Holdings Inc.
and
TerreStar
Networks Inc.
(Name of
Subject Company (Issuer))
Series
A Cumulative Convertible Preferred Stock of TerreStar Corporation, Par Value
$0.01 Per Share
Series
B Cumulative Convertible Preferred Stock of TerreStar Corporation, Par Value
$0.01 Per Share
Series
E Junior Participating Preferred Stock of TerreStar Corporation, Par Value $0.01
Per Share
6.5%
Senior Exchangeable PIK Notes due 2014 of TerreStar Networks
Inc.
(Title of
Class of Securities)
881451207
Series A Cumulative Convertible
Preferred Stock of TerreStar Corporation
881451306
Series B Cumulative Convertible Preferred Stock of TerreStar
Corporation
(CUSIP
Number of Class of Securities)
Douglas
Brandon
General
Counsel and Secretary
12010
Sunset Hills Road
6th
Floor
Reston,
Virginia 20190
(703)
483- 7800
(Name,
Address and Telephone Number of Person Authorized
to
Receive Notices and Communications on Behalf of Filing Persons)
COPIES
TO:
Bruce
Mendelsohn, Esq.
Akin
Gump Strauss Hauer & Feld LLP
One
Bryant Park
New
York, New York 10036
CALCULATION
OF FILING FEE
Transaction
Valuation*
|
Amount
of Filing Fee**
|
$586,375,681
|
$32,719.76
|
* Calculated
solely for purposes of determining the amount of the filing fee. Pursuant to
Rule 0-11(b)(1) of the Securities Exchange Act of 1934, as amended, the
Transaction Valuation was calculated assuming that all outstanding shares of the
Series A Cumulative Convertible Preferred Stock of TerreStar Corporation, Series
B Cumulative Convertible Preferred Stock of TerreStar Corporation, Series E
Junior Participating Preferred Stock of TerreStar Corporation, each with par
value $0.01 per share, are being exchanged per the exchange offer for the Series
F Preferred Stock of TerreStar Holdings Inc. and the Series G Junior Preferred
Stock of TerreStar Holdings Inc. and that the 6.5% Senior Exchangeable PIK Notes
due 2014 are being amended.
** The
amount of the filing fee, calculated in accordance with Rule 0-11(b)(1) of the
Securities Exchange Act of 1934, as amended, and Fee Advisory #5 for Fiscal Year
2009 issued by the Securities and Exchange Commission, equals $55.80 per million
of the value of the transaction.
|
T
|
Check
box if any part of the fee is offset as provided by Rule 0-11(a)(2) and
identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its
filing.
|
Amount
Previously Paid: $32,719.76
|
Filing
Party: TerreStar Corporation
|
Form
or Registration No.: Schedule TO
|
Date
Filed: November 16, 2009
|
o
Check the box if the
filing relates solely to preliminary communications made before the commencement
of a tender offer.
Check the
appropriate boxes below to designate any transactions to which the statement
relates:
£
third-party
tender offer subject to Rule 14d-1.
T
issuer tender
offer subject to Rule 13e-4.
£
going-private
transaction subject to Rule 13e-3.
£
amendment to
Schedule 13D under Rule 13d-2.
Check the
following box if the filing is a final amendment reporting the results of the
tender offer:
T
This Amendment No. 9
(“Amendment No. 9”) is the final amendment to the Tender Offer Statement on
Schedule TO filed on November 16, 2009, as amended by Amendment No. 1 to the
Tender Offer Statement on Schedule TO filed on December 9, 2009, by Amendment
No. 2 to the Tender Offer Statement on Schedule TO filed on December 22, 2009,
by Amendment No. 3 to the Tender Offer Statement on Schedule TO filed on January
5, 2010, by Amendment No. 4 to the Tender Offer Statement on Schedule TO filed
on January 27, 2010, by Amendment No. 5 to the Tender Offer Statement on
Schedule TO filed on February 5, 2010, by Amendment No. 6 to the Tender Offer
Statement on Schedule TO filed on February 17, 2010, by Amendment No. 7 to the
Tender Offer Statement on Schedule TO filed on March 8, 2010 and by Amendment
No. 8 to the Tender Offer Statement on Schedule TO filed on March 17, 2010 (as
so amended, the “Schedule TO”), which relates to the offer by TerreStar
Corporation, a Delaware corporation (“TSC”) and TerreStar Holdings Inc., a
Delaware corporation and a direct wholly-owned subsidiary of TSC (“Holdings” and
together with TSC and TSN (as defined below) the “Companies”) to exchange (each,
an “Exchange Offer” and collectively, the “Exchange Offers”) (i) all outstanding
shares of Series A Cumulative Convertible Preferred Stock of TSC (“Series A
Preferred”) for up to 90,000 shares of Series F Preferred Stock of Holdings
(“Sub Series F Preferred”), (ii) all outstanding shares of Series B Cumulative
Convertible Preferred Stock of TSC (“Series B Preferred,” and together with the
Series A Preferred, the “Series A&B Preferred”) for 318,500 shares of Sub
Series F Preferred and (iii) all outstanding shares of Series E Junior
Participating Preferred Stock of TSC (“Series E Preferred,” and together with
the Series A&B Preferred, the “Original Securities”) for up to 300,000
shares of Series G Preferred Stock of Holdings (“Sub Series G
Preferred”). Additionally, this Amendment No. 9 relates to the
proposal by TerreStar Networks Inc., a Delaware corporation and an
indirect majority-owned subsidiary of TSC (“TSN”), and TSC to amend all
outstanding $167.0 million (as of September 30, 2009) aggregate principal amount
of 6.5% Senior Exchangeable PIK Notes due 2014 (“6.5% Notes”) in the form of a
supplemental indenture (the “6.5% Notes Amendments”) to the indenture governing
the 6.5% Notes (the “6.5% Notes Indenture”) upon the receipt of certain
requisite consents. In connection with the Exchange Offers, Holdings
was to issue 150,000 shares of Sub Series G Preferred to each of EchoStar
Corporation and Harbinger Capital Management, 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 TSC’s Series C Preferred Stock and TSC’s Series D Preferred
Stock and holders of TSN’s Series A Preferred Stock and TSN’s Series B
Preferred Stock and their rights under their respective Right of First
Offer Agreement, as discussed in the Offering Memorandum (as defined
below).
In
connection with the Exchange Offers, TSC was also soliciting consents for
certain proposed amendments to the certificate of designations of the Series B
Preferred, which certificate governs the terms of the Series B Preferred,
additionally, in connection with the 6.5% Notes Amendments, TSC and TSN were
soliciting consents for the approval of certain amendments to the 6.5% Notes
Indenture from the holders of the 6.5% Notes and TSC, TSN and Holdings was
soliciting consents for the approval of the Exchange Offers and Solicitation
from certain holders of the 6.5% Notes (the “Solicitation,” and, together with
the Exchange Offers and 6.5% Notes Amendments, the “Exchange Offers and
Solicitation”).
The
Exchange Offers and Solicitation were made on the terms and subject to the
conditions contained in the Offering Memorandum, dated November 16, 2009, as
amended on December 8, 2009, December 22, 2009, January 5, 2010, January 27,
2010, February 5, 2010, March 8, 2010 and March 17, 2010 (the “Offering
Memorandum”), the Letter of Consent, as amended (the “Letter of Consent”) and in
the Letter of Transmittal, as amended (the “Letter of
Transmittal”).
Items
1 through 11.
Items 1
through 11 of Schedule TO and the sections of the Offering Memorandum are hereby
amended and supplemented as follows:
As set
forth in the Offering Memorandum, Letter of Consent and Letter of Transmittal,
the Exchange Offers and Solicitations expired at 5:00 p.m., New York City time,
on April 2, 2010 (the “Expiration Time”). Prior to the Expiration
Time, the Companies terminated the Exchange Offers and Solicitations upon the
terms and conditions set forth in the Offering Memorandum, Letter of Consent and
the Letter of Transmittal because a number of conditions precedent to the
Exchange Offers and Solicitation had not been satisfied. Under the
terms of the Exchange Offers and Solicitation, the Companies were entitled to
terminate the Exchange Offers and Solicitation at “any time” if any of the
conditions had not been satisfied. Prior to the Expiration Time, at
the time of termination, the following conditions were not satisfied: the
condition requiring the receipt of all required approvals and consents or
waivers thereof, from certain TSC equity holders and TSN debt holders, the
minimum tender condition, and the minimum common stock price
condition. As a result of the termination of the Exchange Offers and
Solicitation, the Companies have not exchanged any securities in the Exchange
Offers and Solicitation and have instructed the Exchange Agent to return
promptly any tendered securities and delivered consents.
Each of the Series A Preferred and the Series B Preferred will
become mandatorily redeemable on April 15, 2010 (the “Redemption Date”) at a
price per share equal to $1,000, plus all accrued but unpaid dividends.
Currently, the Company does not anticipate having on April 15, 2010, the funds
legally available for the redemption of the Series A Preferred and Series B
Preferred. The shares of Series A Preferred and Series B Preferred not redeemed
on the Redemption Date will remain outstanding and will be entitled to all the
rights and preferences provided under the certificates of designations for the
Series A Preferred and the Series B Preferred, respectively. Following
termination of the Exchange Offers and Solicitation, the Companies will continue
to consider their options in connection with amending the Redemption Date of or
refinancing the Series A Preferred and the Series B Preferred, or otherwise
fulfilling the requirements under the terms of such securities, including
without limitation the acquisition of all or a portion of the Series A Preferred
and Series B Preferred through privately negotiated transactions or otherwise,
upon such terms and consideration as the Companies may determine, which
acquisitions may differ from the Exchange Offers and Solicitation in price
and/or consideration.
If all of the shares of Series A
Preferred are not redeemed on the Redemption Date, the holders of the Series A
Preferred will have the right, subject to proper notice as set forth below,
voting as a single class with all other parity securities upon which like voting
rights have been conferred and are exercisable, to elect two members to the
Company’s board of directors until all outstanding shares of the Series A
Preferred have been redeemed. Similarly, if all of the shares of
Series B Preferred are not redeemed on the Redemption Date, the holders of the
Series B Preferred will have the right, subject to proper notice as set forth
below, 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
members to the Company’s board of directors until all outstanding shares of the
Series B Preferred have been redeemed. Such board election rights of
the Series A Preferred and Series B Preferred holders will become effective only
if the Company’s failure to redeem continues for 30 consecutive days following
the notice to the Company of the failure to redeem is given by the holders of at
least 25 percent of the Series A Preferred or the Series B Preferred, as the
case may be, then outstanding.
Item 12.
Exhibits.
See
Exhibit Index immediately following the signature page.
Item 13. Information Required by
Schedule 13E-3.
Not
Applicable.
SIGNATURE
After due
inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and
correct.
TERRESTAR
CORPORATION
TERRESTAR
HOLDINGS INC.
TERRESTAR
NETWORKS INC.
By:
/s/ Douglas
Brandon
Name:
Douglas Brandon
Title:
General Counsel and
Secretary
Dated:
April 5, 2010
EXHIBIT
INDEX
(a)(1)
|
Offering
Memorandum, as amended, dated March 17, 2010*
|
|
|
(a)(2)
|
Letter
of Consent, as amended*
|
|
|
(a)(3)
|
Letter
of Transmittal, as amended*
|
|
|
(a)(4)
|
Notice
of Guaranteed Delivery, as amended*
|
|
|
(a)(5)
|
Notice
to Preferred Stockholders, as amended*
|
|
|
(a)(6)
|
Notice
to Broker-Dealers, as amended*
|
|
|
(b)
|
Not
Applicable
|
|
|
(c)
|
Not
Applicable
|
|
|
(d)(1)
|
Certificate
of Designations of the Series A Cumulative Convertible Preferred Stock of
TerreStar Corporation (incorporated herein by reference from Exhibit 3.2
to Form 8-K filed August 3, 2005)
|
|
|
(d)(2)
|
Certificate
of Designations of the Series B Cumulative Convertible Preferred Stock of
TerreStar Corporation (incorporated herein by reference from Exhibit 3.1
to Form 8-K filed October 31, 2005)
|
|
|
(d)(3)
|
Certificate
of Designations of the Series E Junior Participating Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock of TerreStar
Corporation (incorporated herein by reference from Exhibit 3.8 to Form 8-K
filed August 11, 2008)
|
|
|
(d)(4)
|
Certificate
of Designations of the Series A Preferred Stock and Series B Preferred
Stock of TerreStar Networks Inc. (incorporated herein by reference
from Exhibit (d)(4) to Schedule TO of TerreStar Corporation, filed October
9, 2009)
|
|
|
(d)(5)
|
Form
of the Certificate of Designations of the Series F Preferred Stock of
TerreStar Holdings Inc. (included as Exhibit A to Exhibit (a)(1) filed
herewith)
|
|
|
(d)(6)
|
Form
of the Certificate of Designations of the Series G Junior Preferred Stock
of TerreStar Holdings Inc. (included as Exhibit B to Exhibit (a)(1) filed
herewith)
|
|
|
(d)(7)
|
Form
of the Amended and Restated Certificate of Designations of the Series B
Cumulative Convertible Preferred Stock of TerreStar Corporation (included
as Exhibit C to Exhibit (a)(1) filed herewith)
|
|
|
(d)(8)
|
Form
of the Amended and Restated Certificate of Designations of the Series E
Junior Participating Preferred Stock of TerreStar Corporation (included as
Exhibit D to Exhibit (a)(1) filed herewith)
|
|
|
(d)(9)
|
Form
of the Supplemental Indenture to the 6.5% Senior Exchangeable PIK Notes
due 2014 (included as Exhibit E to Exhibit (a)(1) filed
herewith)
|
|
|
(d)(10)
|
Purchase
Money Credit Agreement, dated February 5, 2008, among TerreStar Networks
Inc. as the borrower, the guarantors party thereto from time to time and
U.S. Bank National Association, as collateral agent, Harbinger Capital
Partners Master Fund I, Ltd., Harbinger Capital Partners Special Situation
Fund, L.P. and EchoStar Corporation, as lenders (incorporated herein by
reference from Exhibit 4.1 to Form 8-K filed by TerreStar Corporation on
February 8, 2008)
|
(d)(11)
|
Registration
Rights Agreement, dated February 5, 2008, among TerreStar Corporation,
TerreStar Networks Inc., EchoStar Corporation, Harbinger Capital Partners
Master Fund I, Ltd., Harbinger Capital Partners Special Situations Fund,
L.P. and other institutional investors party thereto (incorporated herein
by reference from Exhibit 4.5 to Form 8-K filed by TerreStar Corporation
on February 8, 2008)
|
|
|
(d)(12)
|
Master
Investment Agreement, dated February 5, 2008, among TerreStar Corporation,
TerreStar Network Inc. and EchoStar Corporation (incorporated herein by
reference from Exhibit 10.1 to Form 8-K filed by TerreStar Corporation on
February 8, 2008)
|
|
|
(d)(13)
|
Master
Investment Agreement, dated February 5, 2008, among TerreStar Corporation,
TerreStar Network Inc. and Harbinger Capital Partners Master Fund I, Ltd.
and Harbinger Capital Partners Special Situations Fund, L.P. (incorporated
herein by reference from Exhibit 10.2 to the Form 8-K filed by TerreStar
Corporation on February 8, 2008)
|
|
|
(d)(14)
|
Right
of First Offer Agreement, dated February 5, 2008, by and between TerreStar
Corporation, TerreStar Networks Inc., Harbinger Capital Partners Master
Fund I, Ltd. and Harbinger Capital Partners Special Situations Fund, L.P.
(incorporated herein by reference from Exhibit (d)(14) to Amendment No.1
to Schedule TO of TerreStar Corporation, filed December 9,
2009)
|
|
|
(d)(15)
|
Right
of First Offer Agreement, dated February 5, 2008, by and between TerreStar
Corporation, TerreStar Networks Inc. and EchoStar Corporation
(incorporated herein by reference from Exhibit (d)(15) to Amendment No.1
to Schedule TO of TerreStar Corporation, filed December 9,
2009)
|
|
|
(d)(16)
|
Form
of Agreement for Transfer and Exchange dated September 12, 2008
between TerreStar Corporation and SkyTerra Communications,
Inc. (incorporated by reference from Exhibit 10.2 to the Form 10-Q
filed by TerreStar Corporation on November 10, 2008)
|
|
|
(g)(h)
|
Not
Applicable.
|
|
*
Previously filed
|
|
|
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