This Amendment No. 4 (“Amendment No. 4”) amends the Tender Offer Statement on Schedule TO filed on November 16, 2009, as amended on December 9, 2009, December 22, 2009 and January 5, 2010, 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”) for up to 300,000 shares of Series G Preferred Stock of Holdings (“Sub Series G Preferred”). Additionally, TerreStar Networks Inc., a Delaware corporation and an indirect majority-owned subsidiary of TSC (“TSN”), and TSC are proposing to amend all outstanding $167.0 million (as of September 30, 2009) aggregate principal amount of 6.5% Senior Exchangeable PIK Notes due 2014 (“6.5% Notes”) in the form of a supplemental indenture (the “6.5% Notes Supplement”) to the indenture governing the 6.5% Notes (the “6.5% Notes Indenture”) upon the receipt of certain requisite consents. In connection with the Exchange Offers, Holdings will 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 (“Series C Preferred”) and TSC’s Series D Preferred Stock (“Series D Preferred,” and, together with the Series C Preferred, the “Series C & D Preferred”) and holders of TSN’s Series A Preferred Stock (“TSN Series A Preferred”) and TSN’s Series B Preferred Stock (“TSN Series B Preferred,” and together with the TSN Series A Preferred, the “TSN Series A&B Preferred”), and their rights under their respective Right of First Offer Agreement, as discussed in the OM.
In connection with the Exchange Offers, TSC is 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 Supplement, TSC and TSN are 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 are 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, the “Exchange Offers and Solicitation”).
The Exchange Offers and Solicitation are 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 and January 27, 2010 (the “Offering Memorandum”), the Letter of Consent, as amended (“Letter of Consent”) and the Letter of Transmittal, as amended (“Letter of Transmittal”). Copies of the Offering Memorandum, the Letter of Consent and the Letter of Transmittal are filed as Exhibits (a)(1), (a)(2) and (a)(3), respectively, to this Amendment No. 4.
All information contained in the Offering Memorandum, the Letter of Consent and the Letter of Transmittal and any amendments or any other supplements thereto relating to the Exchange Offers and Solicitation, are hereby expressly incorporated herein by reference in response to all items in this Amendment No. 4, and as more precisely set forth below. Except as specifically provided herein, this Amendment No. 4 does not modify any of the information previously reported on the Schedule TO.
The information set forth under the headings “Summary” and “Questions and Answers About the Exchange Offers and Solicitation” of the Offering Memorandum is incorporated herein by reference.
(a) Material Terms. The following sections of the Offering Memorandum contain information regarding the material terms of the transaction and are incorporated herein by reference.
Pages i-iii; “Important Information;” “Summary;” “Questions and Answers About The Exchange Offers and Solicitation;” “Capitalization;” “Risk Factors;” “The Exchange Offers and Solicitation;” “Description of Exchange Securities, 6.5% Notes and Amendments to 6.5% Notes;” “Notice to Investors; Transfer Restrictions;” “Certain United States Federal Income Tax Consequences;” “Exhibit A;” “Exhibit B;” “Exhibit C;” “Exhibit D;” and “Exhibit E.”
(b) Purchases. The information set forth on pages i, ii and iii and in the sections entitled “Summary” and “The Exchange Offers and Solicitation” of the Offering Memorandum is incorporated herein by reference.
(e) Agreements involving the subject company's securities. The information set forth in the Offering Memorandum on page iii and in the sections entitled “Summary,” “Where You Can Find More Information,” “Incorporation of Documents by Reference” and in (d)(1)-(d)(14) of the Exhibit Index herein are incorporated herein by reference.
(a) Purposes; (b) Use of Securities Acquired; (c) and Plans. The information contained in the following sections of the Offering Memorandum regarding (i) the purposes of the transaction; (ii) the use of securities acquired in the transaction; and (iii) plans, is incorporated herein by reference:
Pages i-iii; “Summary;” “Questions and Answers About the Exchange Offers and Solicitation;” “The Exchange Offers and Solicitation;” and “Description of Exchange Securities, 6.5% Notes and Amendments to 6.5% Notes.”
(a) “Source of Funds” and (b) “Conditions” The information set forth in the Offering Memorandum in the sections entitled “Summary;” “Questions and Answers About the Exchange Offers and Solicitation;” and “Description of Exchange Securities, 6.5% Notes and Amendments to 6.5% Notes” are incorporated herein by reference.
(d) Borrowed Funds. Not Applicable.
| (a) | Agreements, Regulatory Requirements and Legal Proceedings. |
| | (1) | The information set forth under the heading “Summary —Recent Developments” of the Offering Memorandum is incorporated herein by reference. |
| | (b) | Other Material Information. Not applicable. |
The Exhibit Index attached hereto is incorporated by reference.
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: January 27, 2010
| (a)(1) | Offering Memorandum, as amended, dated January 27, 2010* |
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| (a)(2) | Letter of Consent, as amended** |
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| (a)(3) | Letter of Transmittal, as amended** |
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| (a)(4) | Notice of Guaranteed Delivery, as amended** |
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| (a)(5) | Notice to Preferred Stockholders, as amended** |
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| (a)(6) | Notice to Broker-Dealers, as amended** |
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| (b) | Not Applicable |
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| (c) | Not Applicable |
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| (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) |
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| (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) |
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| (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) |
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| (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) |
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| (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) |
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| (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) |
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| (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) |
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| (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) |
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| (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) |
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| (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) |
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| (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) |
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| (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.** |
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| (d)(15) | Right of First Offer Agreement, dated February 5, 2008, by and between TerreStar Corporation, TerreStar Networks Inc. and EchoStar Corporation** |
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| (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) |
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| (g)(h) | Not Applicable. |
| | *Filed herewith ** Previously filed |
