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. 8 )
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:
£
This
Amendment No. 8 (“Amendment No. 8”) amends 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 and by Amendment No. 7 to the Tender
Offer Statement on Schedule TO filed on March 8, 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”) 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 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 OM.
Concurrently
with the Exchange Offers, TSC is soliciting consents for certain proposed
amendments to the certificate of designations of the Series B Preferred (the
“Series B Preferred Amendments”), 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, January 27,
2010, February 5, 2010, March 8, 2010 and March 17, 2010 (“Offering
Memorandum”), the Letter of Consent, as amended (“Letter of Consent”) and in the
Letter of Transmittal, as amended (“Letter of Transmittal”). A
copy of the Offering Memorandum is filed as Exhibit (a)(1), to this Amendment
No. 8.
This
Amendment No. 8 is being filed to, among other things, amend the previously
filed Offering Memorandum by updating the “Recent Developments” contained
therein.
All
information contained in the Offering Memorandum, Letter of Consent and 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. 8, and as more
precisely set forth below. Except as specifically provided herein, this
Amendment No. 8 does not materially modify any of the information previously
reported on the Schedule TO.
Item 1.
Summary Term
Sheet.
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.
Item 4.
Terms of the
Transaction.
(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.
Item 12
.
Exhibits.
The
Exhibit Index attached hereto is incorporated by reference.
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:
March 17, 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.
|
|
|
*Filed
herewith
|
|
|
**Previously
filed
|
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