Exhibit 10.1
MOTIENT CORPORATION
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement") is dated as of April
15, 2005 and is by and among MOTIENT CORPORATION, a Delaware corporation, with
its principal office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Company"), and each investor listed on Schedule 1 hereto (each such investor
individually, a "Purchaser" and, collectively, the "Purchasers").
WHEREAS, the Company desires to issue and sell to the Purchasers, and the
Purchasers desire to purchase from the Company, authorized but unissued shares
of the Company's Series A Preferred Stock, $0.01 par value per share (the
"Series A Preferred Stock"), at an aggregate purchase price of up to
$408,500,000 all upon the terms and subject to the conditions set forth in this
Agreement;
WHEREAS, simultaneously with entering into this Agreement, the Company and
the Purchasers are entering into that certain Registration Rights Agreement,
dated as of the date hereof (the "Registration Rights Agreement") in
substantially the form attached hereto as Exhibit C, pursuant to which the
Company shall register for resale the Conversion Shares (as defined below), the
Warrant Shares (defined below) and the Dividend Shares (defined below) on the
terms set forth therein;
NOW THEREFORE, in consideration of the mutual agreements, representations,
warranties and covenants herein contained, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
"Affiliate" means any Person that, directly or indirectly, through one
or more intermediaries, controls, is controlled by, or is under common control
with, a Person, as such terms are used and construed under Rule 144 (as defined
below), and in all cases including, without limitation, any Person that serves
as a general partner and/or investment adviser or in a similar capacity of such
a Person.
"Board" means the Board of Directors of the Company.
"Certificate of Designations" means the Certificate of Designations of
the Series A Preferred Stock in substantially the form attached hereto as
Exhibit A and filed on or before the Closing by the Company with the Secretary
of State of the State of Delaware establishing the rights, preferences and
privileges of the Series A Preferred Stock.
"Closing Date" means the date hereof.
"Common Stock" means the common stock, par value $0.01 per share, of
1
the Company. "Conversion Shares" means the Common Stock issuable upon conversion
of the Shares pursuant to the terms of the Certificate of Designations.
"Dividend Shares" means the shares of Common Stock issuable as
dividends on the Shares.
"Effective Date" means the earlier of (i) the date that is one hundred
twenty (120) days after the Closing Date or (ii) the date that the registration
statement required to be filed by the Company under the Securities Act pursuant
to the terms of the Registration Rights Agreement becomes effective.
"Escrow Agreement" means the Escrow Agreement date as of the date
hereof by and between the Corporation and Equiserve Trust Company N.A., as
escrow agent, in substantially the form attached hereto as Exhibit G.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and all of the rules and regulations promulgated thereunder.
"Majority Purchasers" has the meaning set forth in Section 9.8.
"Material Adverse Effect" means any event, occurrence or development
that has had, or that could reasonably be expected to have, individually or in
the aggregate with other events, occurrences or developments, a material adverse
effect on the assets, liabilities (contingent or otherwise), business, affairs,
operations, prospects or condition (financial or otherwise) of the Company.
"NASDAQ" means the NASDAQ National Market or the NASDAQ SmallCap
Market.
"Person" (whether or not capitalized) means an individual, entity,
partnership, limited liability company, corporation, association, trust, joint
venture, unincorporated organization, and any government, governmental
department or agency or political subdivision thereof.
"Rule 144" means Rule 144 promulgated under the Securities Act and any
successor or substitute rule, law or provision.
"Rule 144A" means Rule 144A promulgated under the Securities Act and
any successor or substitute rule, law or provision.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and all
of the rules and regulations promulgated thereunder.
2
"Shares" means the shares of Series A Preferred Stock issued and sold
by the Company to the Purchasers hereunder.
"Share Price" means $1,000.00 per Share.
"Subsidiaries" means the subsidiaries of the Company listed on Schedule
3.18 to the Disclosure Schedule.
"TerreStar Transaction" means the proposed transaction pursuant to
which the Company intends to invest up to $350 million of the proceeds of this
offering to increase its equity ownership interest in TerreStar Networks Inc.
("TerreStar") at a pre-money valuation of TerreStar not to exceed $800 million
on a fully-diluted basis. For purposes of clarity, the TerreStar Transaction is
not intended to be a "transaction contemplated" by the terms of this Agreement
or the Transaction Documents.
"Transaction Documents" means, collectively, the Registration Rights
Agreement, the Warrants and the Escrow Agreement.
"Transfer Agent Instructions" means the Irrevocable Transfer Agent
Instructions, in substantially the form attached hereto as Exhibit B, executed
by the Company and delivered to and acknowledged in writing by the Company's
transfer agent.
"Warrants" means the warrants to purchase Common Stock, dated as of the
date hereof, issued by the Company to the Purchasers, in substantially the form
attached hereto as Exhibit D.
"Warrant Shares" means the shares of Common Stock issued or issuable
upon the exercise of the Warrants.
2. Purchase and Sale of Shares and Warrants.
2.1 Filing of Certificate of Designations. The Company shall adopt and
file with the Secretary of State of the State of Delaware on or before the
Closing the Certificate of Designations.
2.2 Purchase and Sale of Shares. Subject to and upon the terms and
conditions set forth in this Agreement, the Company agrees to issue and sell to
each Purchaser, and each Purchaser hereby agrees, severally and not jointly, to
purchase from the Company, at the Closing, the number of Shares set forth
opposite such Purchaser's name on Schedule 1 hereto, at the Share Price.
2.3 Issuance of Warrants. Subject to and upon the terms and conditions
set forth in this Agreement, the Company agrees to issue to each Purchaser at
the Closing a Warrant to purchase the number of Warrant Shares equal to one
percent (1%) of the aggregate purchase price of the Shares purchased by such
Purchaser at Closing divided by the average closing price of Common Stock on the
5 trading days prior to the Closing Date at an exercise price equal to $26.51,
which shall be appropriately adjusted for any recapitalizations, stock
combinations, stock dividends, stock splits and the like which occur after the
Closing Date.
3
2.4 Closing. The closing of the purchase and sale of the Shares and
Warrants (the "Closing") shall take place at 10:00 am (Eastern Time) at the
offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. ▇▇▇▇▇,
on the Closing Date, or on such other date and at such time as may be agreed
upon between the Purchasers, on the one hand, and the Company, on the other
hand. At the Closing, the Company shall deliver to each Purchaser (i) a single
stock certificate (or more, if reasonably requested by the Purchaser),
registered in the name of such Purchaser, representing the number of Shares
purchased by such Purchaser and (ii) a Warrant as provided in Section 2.3
hereof, against payment of the purchase price by wire transfer of immediately
available funds to such account as the Company shall designate in writing.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to each Purchaser, as of the date hereof and except as
set forth on the disclosure schedule furnished by the Company to each Purchaser
(the "Disclosure Schedule") attached hereto as Schedule 2, as follows:
3.1 Incorporation. Each of the Company and the Subsidiaries is a
corporation or other entity duly organized, validly existing and in good
standing under the laws of the State of Delaware (or such other applicable
jurisdiction of incorporation or formation as is indicated on Schedule 3.18),
and is in good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or the character of
the property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, would not
result in a Material Adverse Effect. Each of the Company and the Subsidiaries
has all requisite corporate power and authority to carry on its business as now
conducted and to carry out the transactions contemplated hereby. Neither the
Company nor any of the Subsidiaries is in violation of any of the provisions of
its Certificate of Incorporation (or other charter document) or By-laws.
3.2 Capitalization. The authorized capital stock of the Company
consists of:
(a) Common Stock. 100,000,000 shares of Common Stock, of which
65,206,435 shares were outstanding as of April 13, 2005.
(b) Preferred Stock. 5,000,000 shares of preferred stock, par
value $0.01 per share (the "Preferred Stock"), none of which are outstanding.
450,000 shares have been designated as Series A Preferred Stock, up to 408,500
of which may be sold pursuant to this Agreement. The rights, preferences and
privileges of the Series A Preferred Stock are as stated in the Certificate of
Designations. The remaining authorized shares of Preferred Stock are
undesignated.
(c) All shares of the Company's issued and outstanding capital
stock have been duly authorized, are validly issued and outstanding, and are
fully paid and nonassessable.
4
(d) Except for (i) the conversion privileges of the Series A
Preferred Stock to be issued under this Agreement, (ii) the Warrants and (iii)
as set forth in Schedule 3.2 to the Disclosure Schedule, there are no existing
options, warrants, calls, preemptive (or similar) rights, subscriptions or other
rights, agreements, arrangements or commitments of any character obligating the
Company to issue, transfer or sell, or cause to be issued, transferred or sold,
any shares of the capital stock of the Company or other equity interests in the
Company or any securities convertible into or exchangeable for such shares of
capital stock or other equity interests, including the Shares, the Warrants and
the Warrant Shares, and there are no outstanding contractual obligations of the
Company to repurchase, redeem or otherwise acquire any shares of its capital
stock or other equity interests. The issue and sale of the Shares, the Warrants
and the Warrant Shares will not obligate the Company to issue or sell, pursuant
to any pre-emptive right or otherwise, shares of Common Stock or other
securities to any Person (other than the Purchasers) and will not result in a
right of any holder of Company securities to adjust the exercise, conversion,
exchange or reset price under such securities.
3.3 Registration Rights. Except as set forth on Schedule 3.3 to the
Disclosure Schedule, the Company has not granted or agreed to grant to any
Person any right (including "piggy-back" and demand registration rights) to have
any capital stock or other securities of the Company registered with the SEC or
any other government authority.
3.4 Authorization. All corporate action on the part of the Company, its
officers and directors necessary for the authorization, execution, delivery and
performance of this Agreement and the Transaction Documents and the consummation
of the transactions contemplated herein and therein has been taken. When
executed and delivered by the Company, each of this Agreement and the
Transaction Documents shall constitute a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as such may be limited by bankruptcy, insolvency, reorganization or other
laws affecting creditors' rights generally and by general equitable principles.
The Company has all requisite corporate power and authority to enter into this
Agreement and the Transaction Documents and to carry out and perform its
obligations under their respective terms.
3.5 Valid Issuance of the Shares. The Shares, the Warrants and the
Warrant Shares have been duly authorized, and the Shares and the Warrant Shares,
upon issuance pursuant to the terms hereof and the terms of the Warrants,
respectively, will be validly issued, fully paid and nonassessable and not
subject to any encumbrances, preemptive rights or any other similar contractual
rights of the stockholders of the Company or any other Person. The Company has
reserved from its duly authorized capital stock the number of shares of Series A
Preferred Stock issuable upon execution of this Agreement and the number of
shares of Common Stock issuable upon the exercise in full of the Warrants
(assuming the Warrants vest in full). The Conversion Shares have been duly and
validly authorized and reserved for issuance and, upon issuance in accordance
with the terms of the Certificate of Designations, will be validly issued, fully
paid and nonassessable and will not be subject to any encumbrances, preemptive
rights or any other similar contractual rights of the stockholders of the
Company or any other Person.
5
3.6 SEC Documents. The Company has furnished to the Purchasers true and
complete copies of the Company Annual Report on Form 10-K for the year ended
December 31, 2004 (the "2004 10-K"). As of its filing date, the 2004 10-K
complied in all material respects with the requirements of the Exchange Act, and
the rules and regulations promulgated thereunder, and the 2004 10-K did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the 2004 10-K
comply in all material respects with applicable accounting requirements and the
rules and regulations of the SEC with respect thereto in effect at the time of
filing. All material agreements to which the Company is a party or to which the
property or assets of the Company are subject are included as part of or
specifically identified in the 2004 10-K to the extent required by the rules and
regulations of the SEC as in effect at the time of filing. The Company has
prepared and filed with the SEC all filings and reports required by the
Securities Act and the Exchange Act to make the Company's filings and reports
current in all respects.
3.7 Financial Statements. The consolidated balance sheets of the
Company and the Subsidiaries as of December 31, 2004 and the related
consolidated statements of operations, changes in stockholders' equity (deficit)
and cash flows for the year ended December 31, 2004 (collectively, the
"Financial Statements") are included in the 2004 10-K. The Financial Statements
have been prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis during the periods covered
thereby and present fairly, in all material respects, the financial position of
the Company and the Subsidiaries and the results of operations and cash flows as
of the date and for the period indicated therein.
3.8 Consents. Except for (a) the filing and effectiveness of any
registration statement required to be filed by the Company under the Securities
Act pursuant to the terms of the Registration Rights Agreement, (b) any required
state "blue sky" law filings in connection with the transactions contemplated
hereunder or under the Transaction Documents and (c) the Federal Communications
Commission approvals that would be required to be obtained prior to the
consummation of the TerreStar Transaction, all consents, approvals, orders and
authorizations required on the part of the Company in connection with the
execution or delivery of, or the performance of the obligations under, this
Agreement and the Transaction Documents, and the consummation of the
transactions contemplated herein and therein, have been obtained and will be
effective as of the date hereof. The execution and delivery by the Company of
this Agreement and the Transaction Documents, the consummation of the
transactions contemplated herein and therein, and the issuance of the Shares,
the Warrants, the Warrant Shares, the Dividend Shares and the Conversion Shares,
do not require the consent or approval of the stockholders of, or any lender to,
the Company.
3.9 No Conflict; Compliance With Laws.
(a) The execution, delivery and performance by the Company of
this Agreement and the Transaction Documents, and the consummation of the
transactions contemplated hereby and thereby, including the issuance of the
Shares, the Warrants, the Warrant Shares, the Dividend Shares and the Conversion
Shares, do not and will not (i) conflict with or violate any provision of the
6
Certificate of Incorporation (or other charter documents) or By-laws of the
Company or any of the Subsidiaries, (ii) breach, conflict with or result in any
violation of or default (or an event that with notice or lapse of time or both
would become a default) under, or give rise to a right of termination,
amendment, acceleration or cancellation (with or without notice or lapse of
time, or both) of any obligation, contract, commitment, lease, agreement,
mortgage, note, bond, indenture or other instrument or obligation to which the
Company or any of the Subsidiaries is a party or by which they or any of their
properties or assets are bound, except in the case of this clause (ii) to the
extent such breach, conflict, violation, default, termination, amendment,
acceleration or cancellation does not, and could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, or (iii)
result in a violation of any statute, law, rule, regulation, order, ordinance or
restriction applicable to the Company, the Subsidiaries or any of their
properties or assets, or any judgment, writ, injunction or decree of any court,
judicial or quasi-judicial tribunal applicable to the Company, the Subsidiaries
or any of their properties or assets.
(b) Neither the Company nor any of the Subsidiaries (i) is in
default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default by
the Company or any of the Subsidiaries), nor has the Company or any of the
Subsidiaries received written notice of a claim that it is in default under or
that it is in violation of, any indenture, loan or credit agreement or any other
agreement or instrument to which it is a party or by which it or any of its
properties or assets is bound (whether or not such default or violation has been
waived), (ii) is in violation of any statute, rule or regulation of any
governmental authority, including without limitation all foreign, federal, state
and local laws relating to taxes, environmental protection, occupational health
and safety, product quality and safety, communications and employment and labor
matters, except in each case as does not, and could not, reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
3.10 Brokers or Finders. Other than (i) the broker fee the Company will
pay to Tejas Securities Group, Inc. ("Tejas") upon the Closing in an amount not
to exceed $11,355,000 and (ii) the broker fee the Company will pay to Deutsche
Bank Securities Inc. ("Deutsche Bank") upon the Closing in an amount not to
exceed $5,862,500 (together, the "Broker Fees"), neither the Company nor any of
the Subsidiaries has dealt with any broker or finder in connection with the
transactions contemplated by this Agreement or the Transaction Documents, and
neither the Company nor any of the Subsidiaries has incurred, or shall incur,
directly or indirectly, any liability for any brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement or
the Transaction Documents, or any transaction contemplated hereby or thereby.
3.11 Pink Sheets. The Company's Common Stock is currently actively
traded, and thus quoted, on the pink sheets.
3.12 Absence of Litigation. There are no pending or, to the Company's
knowledge, threatened actions, suits, claims, proceedings or investigations
against or involving the Company or any of the Subsidiaries except to the extent
described in the 2004 10-K.
7
3.13 No Undisclosed Liabilities; Indebtedness. Since December 31, 2004,
the Company and the Subsidiaries have incurred no liabilities or obligations,
whether known or unknown, asserted or unasserted, fixed or contingent, accrued
or unaccrued, matured or unmatured, liquidated or unliquidated, or otherwise,
except for liabilities or obligations that, individually or in the aggregate, do
not or would not have a Material Adverse Effect and other than liabilities and
obligations arising in the ordinary course of business. Except for indebtedness
reflected in the Company's balance sheet and the notes thereto contained in the
2004 10-K, the Company has no indebtedness outstanding as of the date hereof.
The Company is not in default with respect to any outstanding indebtedness or
any instrument relating thereto.
3.14 Contracts. All contracts, agreements, instruments and other
documents required to be filed as exhibits to any of the periodic reports
required to be filed by the Exchange Act are legal, valid, binding and in full
force and effect and are enforceable by the Company in accordance with their
respective terms, except as such may be limited by bankruptcy, insolvency,
reorganization or other laws affecting creditors' rights generally and by
general equitable principles.
3.15 Title to Assets. Each of the Company and the Subsidiaries has good
and marketable title to all real and personal property owned by it that is
material to the business of the Company or such Subsidiaries, in each case free
and clear of all liens and encumbrances, except those, if any, reflected in the
Financial Statements or incurred in the ordinary course of business consistent
with past practice. Any real property and facilities held under lease by the
Company or the Subsidiaries are held by it or them under valid, subsisting and
enforceable leases (subject to laws of general application relating to
bankruptcy, insolvency, reorganization, or other similar laws affecting
creditors' rights generally and other equitable remedies) with which the Company
and the Subsidiaries are in compliance in all material respects.
3.16 Labor Relations. No labor or employment dispute exists or, to the
knowledge of the Company, is imminent or threatened, with respect to any of the
employees or consultants of the Company that has, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
3.17 Intellectual Property. The Company is the sole and exclusive owner
of, or has the exclusive right to use, all right, title and interest in and to
all material foreign and domestic patents, patent rights, trademarks, service
marks, trade names, brands, copyrights (whether or not registered and, if
applicable, including pending applications for registration) and other
proprietary rights or information, owned or used by the Company (collectively,
the "Rights"), and in and to each material invention, software, trade secret,
and technology used by the Company or any of the Subsidiaries (the Rights and
such other items, the "Intellectual Property"), and, to the Company's knowledge,
the Company owns and has the right to use the same, free and clear of any claim
or conflict with the rights of others (subject to the provisions of any
applicable license agreement). Except as set forth on Schedule 3.17 to the
Disclosure Schedule, there have been no written claims made against the Company
or any of the Subsidiaries asserting the invalidity, abuse, misuse, or
unenforceability of any of the Intellectual Property, and, to the Company's
knowledge, there are no reasonable grounds for any such claims.
8
3.18 Subsidiaries; Joint Ventures. Except for the Subsidiaries, the
Company has no subsidiaries and (i) does not otherwise own or control, directly
or indirectly, any other Person and (ii) does not hold equity interests,
directly or indirectly, in any other Person. Except as described in the 2004
10-K, the Company is not a participant in any joint venture, partnership, or
similar arrangement material to its business.
3.19 Taxes. The Company and each of the Subsidiaries has filed (or has
had filed on its behalf), will timely file or will cause to be timely filed, or
has timely filed for an extension of the time to file, all material Tax Returns
(as defined below) required by applicable law to be filed by it or them prior to
or as of the date hereof, and such Tax Returns are, or will be at the time of
filing, true, correct and complete in all material respects. Each of the Company
and the Subsidiaries has paid (or has had paid on its behalf) or, where payment
is not yet due, has established (or has had established on its behalf and for
its sole benefit and recourse) or will establish or cause to be established in
accordance with United States generally accepted accounting principles on or
before the date hereof an adequate accrual for the payment of, all material
Taxes (as defined below) due with respect to any period ending prior to or as of
the date hereof. "Taxes" shall mean any and all taxes, charges, fees, levies or
other assessments, including income, gross receipts, excise, real or personal
property, sales, withholding, social security, retirement, unemployment,
occupation, use, goods and services, license, value added, capital, net worth,
payroll, profits, franchise, transfer and recording taxes, fees and charges, and
any other taxes, assessment or similar charges imposed by the Internal Revenue
Service or any taxing authority (whether state, county, local or foreign) (each,
a "Taxing Authority"), including any interest, fines, penalties or additional
amounts attributable to or imposed upon any such taxes or other assessments.
"Tax Return" shall mean any report, return, document, declaration or other
information or filing required to be supplied to any Taxing Authority, including
information returns, any documents with respect to accompanying payments of
estimated Taxes, or with respect to or accompanying requests for extensions of
time in which to file any such return, report, document, declaration or other
information. There are no claims or assessments pending against the Company or
any of the Subsidiaries for any material alleged deficiency in any Tax, and
neither the Company nor any of the Subsidiaries has been notified in writing of
any material proposed Tax claims or assessments against the Company or any of
the Subsidiaries. No Tax Return of the Company or any of the Subsidiaries is or
has been the subject of an examination by a Taxing Authority. Each of the
Company and the Subsidiaries has withheld from each payment made to any of its
past or present employees, officers and directors, and any other person, the
amount of all material Taxes and other deductions required to be withheld
therefrom and paid the same to the proper Taxing Authority within the time
required by law.
3.20 Pensions and Benefits.
(a) Schedule 3.20(a) to the Disclosure Schedule contains a true
and complete list of each "employee benefit plan" within the meaning of Section
3(3) of the United States Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), including, without limitation, multiemployer plans within the
meaning of Section 3(37) of ERISA, and all retirement, profit sharing, stock
option, stock bonus, stock purchase, severance, fringe benefit, deferred
compensation, and other employee benefit programs, plans, or arrangements,
9
whether or not subject to ERISA, under which (i) any current or former
directors, officers, employees or consultants of the Company has any present or
future right to benefits and which are contributed to, sponsored by or
maintained by the Company or any of the Subsidiaries, or (ii) the Company or any
of the Subsidiaries has any present or future liability. All such programs,
plans, or arrangements shall be collectively referred to as the "Company Plans."
Each Company Plan is included as part of or specifically identified in the 2004
10-K to the extent required by the rules and regulations of the SEC as in effect
at the time of filing.
(b) (i) Each Company Plan has been established and administered
in all material respects in accordance with its terms and in compliance with the
applicable provisions of ERISA, the Internal Revenue Code of 1986, as amended
(the "Code"), and other applicable laws, rules and regulations; (ii) each
Company Plan which is intended to be qualified within the meaning of Section
401(a) of the Code is so qualified and has received a favorable determination
letter as to its qualification (or if maintained pursuant to a prototype form of
instrument the sponsor thereof has received a favorable opinion letter as to its
qualification), and to the Company's knowledge nothing has occurred, whether by
action or failure to act, that could reasonably be expected to cause the loss of
such qualification; and (iii) no Company Plan provides retiree health or life
insurance benefits (whether or not insured), and neither the Company nor the
Subsidiaries have any obligations to provide any such retiree benefits other
than as required pursuant to Section 4980B of the Code or other applicable law.
(c) No Company Plan is a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA) or a plan subject to the minimum funding
requirements of Section 302 or ERISA or Section 412 of the Code or Title IV of
ERISA, and neither the Company, the Subsidiaries, nor any member of their
Controlled Group has any liability or obligation in respect of, any such
multiemployer plan or plan. With respect to any Company Plan and to the
Company's knowledge, (i) no actions, suits or claims (other than routine claims
for benefits in the ordinary course) are pending or threatened, and (ii) no
administrative investigation, audit or other administrative proceeding by the
Department of Labor, the Pension Benefit Guaranty Corporation, the Internal
Revenue Service or other governmental agencies are pending, threatened or in
progress.
3.21 Private Placement; Communications with Purchasers. Neither the
Company nor any person acting on the Company's behalf has sold or offered to
sell or solicited any offer to buy the Shares, Warrants, Warrant Shares,
Conversion Shares or Dividend Shares by means of any form of general
solicitation or advertising. Neither the Company nor any of its Affiliates nor
any person acting on the Company's behalf has, directly or indirectly, at any
time within the past six (6) months, made any offer or sale of any security or
solicitation of any offer to buy any security under circumstances that would (i)
eliminate the availability of the exemption from registration under Regulation D
under the Securities Act in connection with the sale or issuance of the Shares,
Warrants, Warrant Shares, Conversion Shares or Dividend Shares as contemplated
hereby or (ii) cause the offering or issuance of the Shares, Warrants, Warrant
Shares, Conversion Shares or Dividend Shares pursuant to this Agreement or any
of the Transaction Documents to be integrated with prior offerings by the
Company for purposes of any applicable law, regulation or stockholder approval
provisions.
10
3.22 Regulatory Matters. None of the Company or any of the Subsidiaries
is, or is an Affiliate of, or following the receipt of the proceeds of this
offering shall be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and the rules thereunder. None of the Company
or any of the Subsidiaries is a United States real property holding corporation
within the meaning of the Foreign Investment in Real Property Tax Act of 1980.
No consent, license, permit, waiver, approval or authorization of, or
designation, declaration, registration or filing with, the SEC or any state
securities regulatory authority is required in connection with the offer, sale,
issuance or delivery of the Shares, Warrants, Warrant Shares, Conversion Shares
or Dividend Shares other than the possible filing of Form D with the SEC. The
Company does not have any agreement or understanding with any Purchaser with
respect to the transactions contemplated by this Agreement or the Registration
Rights Agreement, other than as specified in this Agreement or the Registration
Rights Agreement.
3.23 Material Changes. Except as set forth on Schedule 3.23 to the
Disclosure Schedule, since December 31, 2004, the Company has conducted its
business only in the ordinary course, consistent with past practice, and since
such date there has not occurred: (i) a Material Adverse Effect; (ii) any
amendments or changes in the charter documents or by-laws of the Company or the
Subsidiaries; (iii) any: (A) incurrence, assumption or guarantee by the Company
or the Subsidiaries of any debt for borrowed money other than (1) equipment
leases made in the ordinary course of business, consistent with past practice
and (2) any such incurrence, assumption or guarantee with respect to an amount
of $25,000 or less that has been disclosed in the 2004 10-K; (B) issuance or
sale of any securities convertible into or exchangeable for securities of the
Company other than to directors, employees and consultants pursuant to existing
equity compensation or stock purchase plans of the Company; (C) issuance or sale
of options or other rights to acquire from the Company or the Subsidiaries,
directly or indirectly, securities of the Company or any securities convertible
into or exchangeable for any such securities, other than options issued to
directors, employees and consultants in the ordinary course of business,
consistent with past practice; (D) issuance or sale of any stock, bond or other
corporate security other than to directors, employees and consultants pursuant
to existing equity compensation or stock purchase plans of the Company; (E)
declaration or making of any payment or distribution to stockholders or purchase
or redemption of any share of its capital stock or other security other than to
or from directors, officers and employees of the Company or the Subsidiaries as
compensation for or in connection with services rendered to the Company or the
Subsidiaries (as applicable) or for reimbursement of expenses incurred on behalf
of the Company or the Subsidiaries (as applicable); (F) sale, assignment or
transfer of any of its intangible assets except in the ordinary course of
business, consistent with past practice, or cancellation of any debt or claim
except in the ordinary course of business, consistent with past practice; (G)
waiver of any right of substantial value whether or not in the ordinary course
of business; (H) material change in officer compensation, except in the ordinary
course of business and consistent with past practice; or (I) other commitment
(contingent or otherwise) to do any of the foregoing; (iv) any creation,
sufferance or assumption by the Company or any of the Subsidiaries of any lien
on any asset or any making of any loan, advance or capital contribution to or
investment in any Person, in an aggregate amount which exceeds $25,000
outstanding at any time; (v) any entry into, amendment of, relinquishment,
termination or non-renewal by the Company or the Subsidiaries of any material
contract, license, lease, transaction, commitment or other right or obligation,
other than in the ordinary course of business, consistent with past practice; or
(vi) any transfer or grant of a right with respect to the Intellectual Property
Rights owned or licensed by the Company or the Subsidiaries, except as among the
Company and the Subsidiaries.
11
3.24 Regulatory Permits. The Company and the Subsidiaries possess all
certificates, approvals, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct
their businesses as described in the 2004 10-K, except where the failure to
possess such permits does not, and could not have, individually or in the
aggregate, a Material Adverse Effect (the "Material Permits"), and the Company
has not received any written notice of proceedings relating to the revocation or
modification of any Material Permits except as described in the 2004 10-K.
3.25 Transactions with Affiliates and Employees. Except as set forth in
the 2004 10-K, none of the officers or directors of the Company and, to the
knowledge of the Company, none of the employees of the Company, is presently a
party to any transaction or agreement with the Company (other than for services
as employees, officers and directors) exceeding $60,000, including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the
knowledge of the Company, any entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
3.26 Insurance. The Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary for the business in which the
Company and the Subsidiaries are engaged. The Company has no reason to believe
that it will not be able to renew existing insurance coverage for itself and the
Subsidiaries as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary or appropriate to continue business.
3.27 Solvency. Based on the consolidated financial condition of the
Company and the Subsidiaries as of the date hereof, (i) the fair saleable value
of the Company's assets exceeds the amount that will be required to be paid on
or in respect of the Company's existing debts and other liabilities (including
known and contingent liabilities) as they mature; (ii) the Company's assets do
not constitute unreasonably small capital to carry on its business for the
current fiscal year as now conducted and as proposed to be conducted, including
its capital needs taking into account the particular capital requirements of the
business conducted by the Company, projected capital requirements and capital
availability thereof; and (iii) the current cash flow of the Company, together
with the proceeds the Company would receive were it to liquidate all of its
assets, after taking into account all anticipated uses of the cash, would be
sufficient to pay all amounts on or in respect of its debts when such amounts
are required to be paid. The Company has no present intention to incur debts
beyond its ability to pay such debts as they mature (taking into account the
timing and amounts of cash to be payable on or in respect of its debt).
3.28 Internal Accounting Controls. Except as disclosed in the 2004
12
10-K, the Company maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with United States generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorizations, (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences, and (v) the Company is otherwise in compliance with the Securities
Act, the Exchange Act and all other rules and regulations promulgated by the SEC
and applicable to the Company, including such rules and regulations to implement
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended.
3.29 Disclosure. Neither the Company nor, to the Company's knowledge,
any other Person acting on its behalf and at the direction of the Company, has
provided to any Purchaser or its agents or counsel any information that in the
Company's reasonable judgment, at the time such information was furnished,
constitutes material, non-public information, except such information as may
have been disclosed to certain Board members, who are affiliated with certain
Purchasers, in their capacity as directors of the Company. The Company
understands and confirms that each Purchaser will rely on the representations
and covenants contained herein in effecting the transactions contemplated by
this Agreement and the Transaction Documents, and in the securities of the
Company after the Closing. All disclosure provided to the Purchasers regarding
the Company, its business and the transactions contemplated hereby, including
the Schedules to this Agreement furnished by or on behalf of the Company, taken
as a whole is true and correct and does not contain any untrue statement of
material fact or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading. No event or circumstance has occurred or information
exists with respect to the Company or the Subsidiaries or its or their business,
properties, prospects, operations or financial conditions, which, under
applicable law, rule or regulation, requires public disclosure or announcement
by the Company but which has not been so publicly announced or disclosed. The
Company acknowledges and agrees that no Purchaser makes or has made any
representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 4.
4. Representations and Warranties of the Purchasers. Each Purchaser
represents and warrants, severally (as to itself) and not jointly, to the
Company as follows:
4.1 Authorization. All action on the part of such Purchaser and, if
applicable, its officers, directors, managers, members, shareholders and/or
partners necessary for the authorization, execution, delivery and performance of
this Agreement and the Registration Rights Agreement, and the consummation of
the transactions contemplated herein and therein, has been taken. When executed
and delivered, each of this Agreement and the Registration Rights Agreement will
constitute the legal, valid and binding obligation of such Purchaser,
enforceable against such Purchaser in accordance with its terms, except as such
may be limited by bankruptcy, insolvency, reorganization or other laws affecting
creditors' rights generally and by general equitable principles. Such Purchaser
has all requisite corporate power and authority to enter into each of this
Agreement and the Registration Rights Agreement, and to carry out and perform
its obligations under the terms of hereof and thereof.
13
4.2 Purchase Entirely for Own Account. Such Purchaser is acquiring the
Shares, Conversion Shares, Warrants, Warrant Shares and Dividend Shares for its
own account for investment and not for resale or with a view to distribution
thereof in violation of the Securities Act.
4.3 Investor Status; Etc. Such Purchaser certifies and represents to
the Company that it is a "Qualified Institutional Buyer" as defined in Rule 144A
promulgated under the Securities Act; provided, however, that GCM Little Arbor
Institutional Partners, L.P., Portfolio Logic LLC and Long Meadow Holdings, LP
do not represent that they are Qualified Institutional Buyers but instead each
represents that they are an institutional "Accredited Investor" as such term is
defined in Rule 501 of Regulation D promulgated under the Securities Act and was
not organized for the purpose of acquiring any of the Shares, Warrants, Warrant
Shares, Conversion Shares or Dividend Shares. Such Purchaser's financial
condition is such that it is able to bear the risk of holding the Shares for an
indefinite period of time and the risk of loss of its entire investment. Such
Purchaser has sufficient knowledge and experience in investing in companies
similar to the Company so as to be able to evaluate the risks and merits of its
investment in the Company.
4.4 Securities Not Registered. Such Purchaser understands that the
Shares, Warrants, Warrant Shares, Conversion Shares and Dividend Shares have not
been registered under the Securities Act, by reason of their issuance by the
Company in a transaction exempt from the registration requirements of the
Securities Act, and that the Shares, Warrants, Warrant Shares, Conversion Shares
and Dividend Shares must continue to be held by such Purchaser unless a
subsequent disposition thereof is registered under the Securities Act or is
exempt from such registration. Such Purchaser understands that the exemptions
from registration afforded by Rule 144 (the provisions of which are known to it)
promulgated under the Securities Act depend on the satisfaction of various
conditions, and that, if applicable, Rule 144 may afford the basis for sales
only in limited amounts.
4.5 No Conflict. The execution and delivery of this Agreement and the
Registration Rights Agreement by such Purchaser, and the consummation of the
transactions contemplated hereby and thereby, will not conflict with or result
in any violation of or default by such Purchaser (with or without notice or
lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material
benefit under (i) any provision of the organizational documents of such
Purchaser or (ii) any agreement or instrument, permit, franchise, license,
judgment, order, statute, law, ordinance, rule or regulations, applicable to
such Purchaser.
4.6 Brokers. Such Purchaser has not retained, utilized or been
represented by any broker or finder in connection with the transactions
contemplated by this Agreement.
4.7 Consents. All consents, approvals, orders and authorizations
required on the part of such Purchaser in connection with the execution,
delivery or performance of this Agreement and the consummation of the
transactions contemplated herein have been obtained and are effective as of the
date hereof.
14
4.8 Regulatory Permits. Purchaser possess all certificates, approvals,
authorizations and permits issued by the appropriate federal, state, local or
foreign regulatory authorities necessary for Purchaser to enter into this
Agreement and the consummate the transactions contemplated herein.
4.9 Disclosure of Information. Such Purchaser believes it has received
all the information it considers necessary or appropriate for deciding whether
to purchase the Shares, Warrants, Warrant Shares, Conversion Shares and Dividend
Shares. Such Purchaser further represents that it has had an opportunity to ask
questions and receive answers from the Company regarding the terms and
conditions of the offering of the Shares, Warrants, Warrant Shares, Conversion
Shares and Dividend Shares and the business, properties, prospects and financial
condition of the Company. The foregoing, however, does not limit or modify the
representations and warranties of the Company in Section 3 of this Agreement or
the rights of the Purchasers to rely thereon.
5. Conditions Precedent.
5.1. Conditions to the Obligation of the Purchasers to Consummate the
Closing. The obligation of each Purchaser to consummate the Closing and to
purchase and pay for the Shares to be purchased by it is subject to the
satisfaction (or waiver by such Purchaser) of the following conditions
precedent:
(a) The representations and warranties of the Company contained
herein shall be true and correct on and as of the date hereof. The Company shall
have performed or complied with all obligations and conditions herein required
to be performed or complied with by the Company on or prior to the date hereof.
(b) No proceeding challenging this Agreement or the Transaction
Documents, or the transactions contemplated hereby or thereby, or seeking to
prohibit, alter, prevent or materially delay the Closing, shall have been
instituted before any court, arbitrator or governmental body, agency or official
or shall be pending against or involving the Company.
(c) The sale of the Shares and the issuance of the Warrants, the
Warrant Shares and the Conversion Shares to the Purchasers shall not be
prohibited by any law, rule, governmental order or regulation. All necessary
consents, approvals, licenses, permits, orders and authorizations of, or
registrations, declarations and filings with, any governmental or administrative
agency or of or with any other Person with respect to any of the transactions
contemplated hereby (including, without limitation, all filings and approvals,
if any, required by the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended) shall have been duly obtained or made and shall be in full force and
effect.
(d) All instruments and corporate proceedings of the Company in
connection with the transactions contemplated by this Agreement and the
Transaction Documents shall be satisfactory in form and substance to such
Purchaser, and such Purchaser shall have received copies (executed or certified,
as may be appropriate) of all documents which any Purchaser may have reasonably
requested in connection with such transactions.
15
(e) Such Purchaser shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP,
outside counsel to the Company, an opinion addressed to such Purchaser, dated
the Closing Date and substantially in the form of Exhibit E hereto.
(f) The Registration Rights Agreement shall have been executed
and delivered to such Purchaser by the Company.
(g) Such Purchaser shall have received from the Company an
original stock certificate evidencing the purchase of the Shares and an original
Warrant, in each case for the number of Shares of Series A Preferred Stock and
the number of Warrant Shares, respectively, set forth opposite such Purchaser's
name on Schedule 1 hereto.
(h) The Company shall have delivered, in form and substance
satisfactory to such Purchaser, a certificate dated the Closing Date and signed
by the secretary or another appropriate executive officer of the Company,
certifying (i) that attached copies of the Certificate of Incorporation, the
Certificate of Designations and the By-Laws and resolutions of the Board
approving this Agreement, the Transaction Documents and the transactions
contemplated hereby and thereby, are all true, complete and correct and remain
in full force and effect as of the date hereof, and (ii) as to the incumbency
and specimen signature of each officer of the Company executing this Agreement,
the Transaction Documents and any other document delivered in connection
herewith on behalf of the Company.
(i) The Company shall deliver to such Purchaser, a certificate in
form and substance satisfactory to such Purchaser, dated the Closing Date and
signed by the Company's chief operating officer, certifying that (i) the
representations and warranties of the Company contained in Section 3 hereof are
true and correct in all respects on the Closing Date and (ii) the Company has
performed and complied with all of the agreements and conditions set forth or
contemplated herein that are required to be performed or complied with by the
Company on or before the Closing Date.
(j) Such Purchaser shall have received duly executed Transfer
Agent Instructions acknowledged by the Company's transfer agent.
(k) Such Purchaser shall have received from the General Counsel
of the Company an opinion addressed to such Purchaser, dated the Closing Date
and substantially in the form attached hereto as Exhibit F.
(l) The Escrow Agreement shall have been executed by the
Corporation and Equiserve Trust Company N.A., as escrow agent, and substantially
in the form attached hereto as Exhibit G.
5.2. Conditions to the Obligation of the Company to Consummate the
Closing. The obligation of the Company to consummate the Closing and to issue
16
and sell the Shares to each Purchaser at the Closing is subject to the
satisfaction of the following conditions precedent:
(a) The representations and warranties of the Purchasers
contained herein shall be true and correct in all respects on and as of the
Closing Date.
(b) The Registration Rights Agreement shall have been executed
and delivered by the Purchasers.
(c) The Purchasers shall have performed all obligations and
conditions herein required to be performed or complied with by the Purchasers on
or prior to the Closing Date.
(d) No proceeding challenging this Agreement or the Transaction
Documents, or the transactions contemplated hereby or thereby, or seeking to
prohibit, alter, prevent or materially delay the Closing, shall have been
instituted before any court, arbitrator or governmental body, agency or official
or shall be pending against or involving such Purchaser.
(e) The sale of the Shares, the issuance of the Warrants (and the
Warrant Shares) and the issuance of the Conversion Shares by the Company shall
not be prohibited by any law, rule, governmental order or regulation. All
necessary consents, approvals, licenses, permits, orders and authorizations of,
or registrations, declarations and filings with, any governmental or
administrative agency or of any other Person with respect to any of the
transactions contemplated hereby shall have been duly obtained or made and shall
be in full force and effect.
(f) All instruments and corporate proceedings in connection with
the transactions contemplated by this Agreement to be consummated at the Closing
shall be satisfactory in form and substance to the Company, and the Company
shall have received counterpart originals, or certified or other copies of all
documents, including without limitation records of corporate or other
proceedings, which it may have reasonably requested in connection therewith.
(g) All necessary consents, approvals, licenses, permits, orders
and authorizations of, or registrations, declarations and filings with, any
governmental or administrative agency or of or with any other Person with
respect to any of the transactions contemplated hereby (including, without
limitation, all filings and approvals, if any, required by the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended) shall have been duly obtained or
made and shall be in full force and effect.
6. Certain Covenants and Agreements.
6.1. Transfer of Securities. Each Purchaser agrees severally (as to
itself only) and not jointly that it shall not sell, assign, pledge, transfer or
otherwise dispose of or encumber any of the Shares, the Warrants, the Warrant
Shares or the Conversion Shares, except (i) pursuant to an effective
registration statement under the Securities Act, (ii) to an Affiliate (so long
as such Affiliate agrees to be bound by the terms and provisions of this
Agreement as if, and to the fullest extent as, such Purchaser), or (iii)
pursuant to an available exemption from registration under the Securities Act
17
(including sales permitted pursuant to Rule 144) and applicable state securities
laws and, if requested by the Company, upon delivery by such Purchaser of either
an opinion of counsel of such Purchaser reasonably satisfactory to the Company
to the effect that the proposed transfer is exempt from or does not require
registration under the Securities Act and applicable state securities laws or a
representation letter of such Purchaser reasonably satisfactory to the Company
setting forth a factual basis for concluding that such proposed transfer is
exempt from or does not require registration under the Securities Act and
applicable state securities laws. Any transfer or purported transfer of the
Shares in violation of this Section 6.1 shall be void. The Company shall not
register any transfer of the Shares in violation of this Section 6.1. The
Company may, and may instruct any transfer agent for the Company, to place such
stop transfer orders as may be required on the transfer books of the Company in
order to ensure compliance with the provisions of this Section 6.1.
6.2. Legends.
(a) To the extent applicable, each certificate or other document
evidencing the Shares, the Warrant Shares, the Conversion Shares and the
Dividend Shares shall be endorsed with the legend set forth below, and each
Purchaser covenants that, except to the extent such restrictions are waived by
the Company, it shall not transfer the shares represented by any such
certificate without complying with the restrictions on transfer described in
this Agreement and the legends endorsed on such certificate:
"THE SHARES EVIDENCED HEREBY WERE ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
THE SHARES EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE SHARES EVIDENCED
HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT.
THE HOLDER OF THE SHARES EVIDENCED HEREBY AGREES FOR THE BENEFIT
OF THE ISSUER THAT (A) SUCH SHARES MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (1) (a) IN THE UNITED STATES TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (c) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF MOTIENT CORPORATION SO REQUESTS),
(2) TO MOTIENT CORPORATION OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH OF (1), (2) OR (3) ABOVE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO NOTIFY
ANY PURCHASER FROM IT OF THE SHARES EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
18
(b) The legend set forth in Section 6.2(a) shall be removed from
the certificates evidencing the Shares, the Warrant Shares, the Conversion
Shares and the Dividend Shares, (i) following any sale of such Shares, Warrant
Shares, Conversion Shares or Dividend Shares pursuant to Rule 144 or any
effective registration statement, or (ii) if such Shares, Warrant Shares,
Conversion Shares or Dividend Shares are eligible for sale under Rule 144(k)
(and the holder of such Shares, Warrant Shares, Conversion Shares or Dividend
Shares has submitted a written request for removal of the legend indicating that
the holder has complied with the applicable provisions of Rule 144 or such
judicial interpretation or pronouncement), or (iii) if such legend is not
required under applicable requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the Staff of the SEC) (and the
holder of such Shares, Warrant Shares, Conversion Shares or Dividend Shares has
submitted a written request for removal of the legend indicating that such
legend is not required under applicable requirements of the Securities Act
(including such judicial interpretations and pronouncements). The Company shall
cause its counsel to issue a legal opinion to the Company's transfer agent
promptly upon the occurrence of any of the events in clauses (i), (ii) or (iii)
above to effect the removal of the legend on certificates evidencing the Shares,
Warrant Shares, Conversion Shares or Dividend Shares and shall also cause its
counsel to issue a "blanket" legal opinion to the Company's transfer agent
promptly after the effective date of any registration statement covering the
resale of the Shares, Warrant Shares, Conversion Shares or Dividend Shares, if
required by the Company's transfer agent, to allow sales without restriction
pursuant to an effective registration statement. The Company agrees that at such
time as such legend is no longer required under this Section 6.2(b), it will, no
later than three (3) business days following the delivery by a Purchaser to the
Company or the Company's transfer agent of a certificate representing the
Shares, Warrant Shares, Conversion Shares or Dividend Shares issued with a
restrictive legend, deliver or cause to be delivered to such Purchaser a
certificate representing such Shares, Warrant Shares, Conversion Shares or
Dividend Shares that is free from all restrictive and other legends; provided
that in the case of removal of the legend for reasons set forth in clause (ii)
above, the holder of such Shares, Warrant Shares, Conversion Shares or Dividend
Shares has submitted a written request for removal of the legend indicating that
the holder has complied with the applicable provisions of Rule 144. The Company
may not make any notation on its records or give instructions to any transfer
agent of the Company that enlarge the restrictions on transfer set forth in this
Section.
6.3 Publicity. The Company shall, by 8:30 a.m. Eastern time on the
first trading day following the date hereof, issue a press release, and on the
second trading day following the date hereof, file a Current Report on Form 8-K
disclosing the material terms of the transactions contemplated hereby, and with
respect to such Current Report on Form 8-K, shall file this Agreement and the
Transaction Documents as exhibits thereto. Except to the extent required by
applicable laws, rules, regulations or stock exchange requirements, neither (i)
19
the Company, the Subsidiaries or any of their Affiliates nor (ii) any Purchaser
or any of its Affiliates shall, without the written consent of the other, make
any public announcement or issue any press release with respect to the
transactions contemplated by this Agreement. In no event will either (i) the
Company, the Subsidiaries or any of their Affiliates or (ii) any Purchaser or
any of its Affiliates make any public announcement or issue any press release
with respect to the transactions contemplated by this Agreement without
consulting with the other party, to the extent feasible, as to the content of
such public announcement or press release.
6.4 Material, Nonpublic Information. Except as required by law, the
Company and its directors, officers, employees and agents shall not provide any
Purchaser with any material non-public information regarding the Company or any
of the Subsidiaries at any time after the Closing, except such information as
may be required to be disclosed to certain Board members, who are affiliated
with certain Purchasers, in their capacity as directors of the Company. In the
event of a breach of the foregoing covenant following the Effective Date or in
the event that Company is legally required to make certain disclosures to any
Purchaser (and does so) following the Effective Date, then in addition to any
other remedy provided for herein, in the Transaction Documents or in equity or
at law, each Purchaser to whom information has been disclosed (whether as a
result of breach or as required by law) may request, in writing, that the
Company promptly (but in no event more than five (5) business days after the
date of such writing) publicly disclose, by press release, SEC filing, or
otherwise, an appropriate summary of the information that, in such Purchaser's
reasonable judgment, constitutes the then material non-public information. After
such five (5) business-day period, the Purchaser(s) who was or were in receipt
of such material non-public information shall be automatically authorized to
make all of the information, or any portion thereof, available to the public
generally, without incurring any liability to the Company for such disclosure.
6.5 Filing of Information. The Company covenants to timely file (or
obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company pursuant to all
applicable securities laws, including the Exchange Act. At any time if the
Company is not required to file reports pursuant to such laws, it will (i)
prepare and furnish to the Purchasers and make publicly available in accordance
with paragraph (c) of Rule 144 such information as is required for the
Purchasers to sell the Shares, Warrant Shares or Conversion Shares under Rule
144 and (ii) furnish to the Purchasers and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4). The Company further covenants that it
will take such further action as any holder of Shares, Warrant Shares,
Conversion Shares and Dividend Shares may reasonably request to satisfy the
provisions of Rule 144 applicable to the issuer of securities relating to
transactions for the sale of securities pursuant to Rule 144.
6.6 Rule 144A. The Shares are eligible for resale pursuant to Rule 144A
and will not be, at the Closing Date, of the same class as securities listed on
a national securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated interdealer quotation system.
6.7 Depository Trust Company Eligible. The Company will use its best
efforts to permit the Shares to be eligible for clearance and settlement through
20
the facilities of the Depository Trust Company, and will cooperate with the
requests of the Purchasers relating thereto.
6.8 PORTAL Market. The Company will use its best efforts to permit the
Shares to be designated PORTAL securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
relating to trading in the PORTAL Market
6.9 Use of Proceeds. The Company intends that the proceeds from the
sale of the Shares shall be used by the Company to (i) effect the TerreStar
Transaction, (ii) pay the Company's fees and expenses incurred in connection
with this offering, (iii) pay the Company's fees and expenses incurred by the
Company in connection with the TerreStar Transaction, (iv) pay the Broker Fees
to Tejas and Deutsche Bank, (v) repurchase shares of Common Stock from certain
of the Company's stockholders and (vi) for other general corporate and working
capital purposes. For purposes of clarity, the Company has entered into a
non-binding term sheet relating to the TerreStar Transaction. The consummation
of the TerreStar Transaction is subject to the negotiation of definitive
transaction documents, the completion of closing conditions, and numerous other
contingencies, and requires the Company and other parties to the transaction to
obtain certain governmental and regulatory approvals. The TerreStar Transaction
may never occur. In the event the TerreStar Transaction is not consummated, the
Company will use the proceeds from the sale of the Shares for the other purposes
set forth in this Section 6.9.
6.10 Integration. The Company shall not sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale
of the Shares in a manner that would require the registration under the
Securities Act of the sale of the Shares or the issuance of the Warrants, the
Warrant Shares, the Dividend Shares or the Conversion Shares to the Purchasers.
6.11 Reservation of Common Stock for Issuance; Listing of Shares. The
Company agrees to reserve from its duly authorized capital stock (i) the total
number of shares of Series A Preferred Stock issuable upon execution of this
Agreement and (ii) the total number of shares of Common Stock issuable upon
conversion of the Series A Preferred Stock and upon the exercise in full of the
Warrants. From time to time and prior to any declaration by the Board of a
dividend on the shares of Series A Preferred payable in Common Stock, the
Corporation will reserve a sufficient number of shares of Common Stock necessary
to pay such dividend. The Company agrees that at any time, if and when its
shares of Common Stock are listed on NASDAQ, that it will use reasonable efforts
to promptly list and qualify the Warrant Shares and Conversion Shares and, prior
to the declaration of dividends on the shares of Series A Preferred payable in
shares of Common Stock, shares of Common Stock issuable as such dividend for
trading on NASDAQ.
6.12 Required Approvals. As promptly as practicable after the date of
this Agreement, the Company shall make, or cause to be made, all filings with
any governmental or administrative agency or any other Person necessary to
consummate the transactions contemplated hereby.
7. Indemnification.
21
7.1 By the Company. The Company agrees to indemnify, defend and hold
harmless each Purchaser and its Affiliates and their respective officers,
directors, agents, employees, subsidiaries, partners, members and controlling
persons (collectively, the "Purchaser Indemnitees") to the fullest extent
permitted by law from and against any and all claims, losses, liabilities,
damages, deficiencies, judgments, assessments, fines, settlements, costs or
expenses (including interest, penalties and reasonable fees, disbursements and
other charges of counsel) (collectively, "Losses") based upon, arising out of or
otherwise in respect of any breach by the Company of any representation,
warranty, covenant or agreement of the Company contained in this Agreement or in
the Transaction Documents, or for any Losses claimed by Tejas or any other
broker or placement agent.
7.2 Claims. All claims for indemnification by a Purchaser Indemnitee
pursuant to this Section 7 shall be made as follows:
(a) If a Purchaser Indemnitee has incurred or suffered Losses for
which it is entitled to indemnification under this Section 7, then such
Purchaser Indemnitee shall give prompt written notice of such claim (a "Claim
Notice") to the Company. Each Claim Notice shall state the amount of claimed
Losses (the "Claimed Amount"), if known, and the basis for such claim.
(b) Within 30 days after delivery of a Claim Notice, the Company
(the "Indemnifying Party") shall provide to each Purchaser Indemnitee (the
"Indemnified Party"), a written response (the "Response Notice") in which the
Indemnifying Party shall: (i) agree that all of the Claimed Amount is owed to
the Indemnified Party, (ii) agree that part, but not all, of the Claimed Amount
(the "Agreed Amount") is owed to the Indemnified Party, or (iii) contest that
any of the Claimed Amount is owed to the Indemnified Party. The Indemnifying
Party may contest the payment of all or a portion of the Claimed Amount only
based upon a good faith belief that all or such portion of the Claimed Amount
does not constitute Losses for which the Indemnified Party is entitled to
indemnification under this Section 7. If no Response Notice is delivered by the
Indemnifying Party within such 30-day period, then the Indemnifying Party shall
be deemed to have agreed that all of the Claimed Amount is owed to the
Indemnified Party.
(c) If the Indemnifying Party in the Response Notice agrees (or
is deemed to have agreed) that all of the Claimed Amount is owed to the
Indemnified Party, then the Indemnifying Party shall owe to the Indemnified
Party an amount equal to the Claimed Amount to be paid in the manner set forth
in this Section 7. If the Indemnifying Party in the Response Notice agrees that
part, but not all, of the Claimed Amount is owed to the Indemnified Party, then
the Indemnifying Party shall owe to the Indemnified Party an amount equal to the
agreed amount set forth in such Response Notice to be paid in the manner set
forth in this Section 7. The parties agree that the foregoing shall not be
deemed to provide that the Indemnifying Party is entitled to make a binding
determination regarding any disputed amounts owed to an Indemnified Party,
unless such Indemnified Party accepts and agrees to such determination, and both
the Indemnified Party and Indemnifying Party shall retain all rights and
remedies available to such party hereunder.
22
(d) No delay on the part of the Indemnified Party in notifying
the Indemnifying Party shall relieve the Indemnifying Party of any liability or
obligation hereunder except to the extent of any actual prejudice caused by or
arising out of such delay.
7.3. Payment of Claims. An Indemnifying Party shall make payment of any
portion of any Claimed Amount that such Indemnifying Party has agreed in a
Response Notice that it owes to an Indemnified Party, or that such Indemnifying
Party is deemed to have agreed it owes to such Indemnifying Party, said payment
to be made within thirty (30) days after such Response Notice is delivered by
such Indemnifying Party or should have been delivered by such Indemnifying
Party, as the case may be.
7.4. Limitations.
(a) Time for Claims. No Indemnifying Party will be liable for any
Losses hereunder arising out of a breach of representation or warranty unless a
written claim for indemnification is given by the Indemnified Party to the
Indemnifying Party on or prior to the third anniversary of the date on which the
registration statement covering the resale of the Shares, Conversion Shares and
Warrant Shares initially became effective.
(b) Maximum Amount. Notwithstanding anything contained herein to
the contrary, no Indemnifying Party will be liable for any Losses to any
Purchaser Indemnitee hereunder in excess of the portion of the aggregate
purchase price hereunder actually paid by the related Purchaser.
7.5 Applicability; Exclusivity. Notwithstanding any term to the
contrary in this Section 7, the indemnification and contribution provisions of
the Registration Rights Agreement shall govern any claim made with respect to
registration statements filed pursuant thereto or sales made thereunder. The
parties hereby acknowledge and agree that in addition to remedies of the parties
hereto in respect of any and all claims relating to any breach or purported
breach of any representation, warranty, covenant or agreement that is contained
in this Agreement pursuant to the indemnification provisions of this Section 7,
all parties shall always retain the right to pursue and obtain injunctive relief
in addition to any other rights or remedies hereunder.
8. Amendments to Prior Purchase Agreements. To the extent a Purchaser is a
"Purchaser" pursuant to the Common Stock Purchase Agreement dated April 7, 2004
by and among the Company and the Purchasers listed on Schedule 1 thereto (the
"First PIPE Purchase Agreement"), a "Purchaser" pursuant to the Securities
Purchase Agreement dated July 1, 2004 by and among the Company and the
Purchasers listed on Schedule 1 thereto (the "Second PIPE Purchase Agreement")
and/or a "Purchaser" pursuant to the Securities Purchase Agreement dated
November 12, 2004 by and among the Company and the Purchasers listed on Schedule
1 thereto (the "Third PIPE Purchase Agreement" and, together with the First PIPE
Purchase Agreement and the Second PIPE Purchase Agreement, the "Prior Purchase
Agreements"), such Purchaser hereby agrees to amend each of the Prior Purchase
Agreements as follows:
8.1 First PIPE Purchase Agreement. The First PIPE Purchase Agreement is
23
amended by adding the following clause (d) at the end of Section 6.9: "(d)
Notwithstanding the foregoing provisions of this Section 6.9, the rights
provided by this Section 6.9 shall not apply to a Purchaser with respect to (i)
the Company's proposed offering of its Series A Cumulative Convertible Preferred
Stock in April 2005 or (ii) any offering of New Securities made by the Company
at such time as all Shares then held by such Purchaser may be sold by the
Purchaser pursuant to an effective registration statement under the Securities
Act or through any available exemption from such registration requirements."
8.2 Second PIPE Purchase Agreement. The Second PIPE Purchase Agreement
is amended by adding the following clause (d) at the end of Section 6.9: "(d)
Notwithstanding the foregoing provisions of this Section 6.9, the rights
provided by this Section 6.9 shall not apply to a Purchaser with respect to (i)
the Company's proposed offering of its Series A Cumulative Convertible Preferred
Stock in April 2005 or (ii) any offering of New Securities made by the Company
at such time as all Shares then held by such Purchaser may be sold by the
Purchaser pursuant to an effective registration statement under the Securities
Act or through any available exemption from such registration requirements."
8.3 Third PIPE Purchase Agreement. The Third PIPE Purchase Agreement is
amended by deleting Sections 6.6 and 6.9 in their entirety.
9. Miscellaneous Provisions.
9.1 Rights Cumulative. Each and all of the various rights, powers and
remedies of the parties shall be considered to be cumulative with and in
addition to any other rights, powers and remedies which such parties may have at
law or in equity in the event of the breach of any of the terms of this
Agreement. The exercise or partial exercise of any right, power or remedy shall
neither constitute the exclusive election thereof nor the waiver of any other
right, power or remedy available to such party.
9.2 Pronouns. All pronouns or any variation thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person, persons, entity or entities may require.
9.3 Notices.
(a) Any notices, reports or other correspondence (hereinafter
collectively referred to as "correspondence") required or permitted to be given
hereunder shall be given in writing and shall be deemed given if sent by
certified or registered mail (return receipt requested), overnight courier or
telecopy (with confirmation of receipt), or delivered by hand to the party to
whom such correspondence is required or permitted to be given hereunder. An
electronic communication ("Electronic Notice") shall be deemed written notice
for purposes of this Section 9.3 if sent with return receipt requested to the
electronic mail address specified by the receiving party either in this Section
9.3 or on Schedule 1 hereto. Electronic Notice shall be deemed received at the
time the party sending Electronic Notice receives verification of receipt by the
receiving party. Any party who does not wish to receive correspondence as
Electronic Notice shall include such request on Schedule 1 hereto and shall be
entitled to receive all correspondence in non-electronic form.
24
(b) All correspondence to the Company shall be addressed as
follows:
Motient Corporation ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Executive Vice President and Chief Operating Officer,
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇, with copies to:
Motient Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
-and-
▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(c) All correspondence to the Purchasers shall be addressed
pursuant to the contact information set forth on Schedule 1 attached hereto.
(d) Any entity may change the address to which correspondence to
it is to be addressed by notification as provided for herein.
9.4 Captions. The captions and paragraph headings of this Agreement
are solely for the convenience of reference and shall not affect its
interpretation.
9.5 Severability. Should any part or provision of this Agreement be
held unenforceable or in conflict with the applicable laws or regulations of any
jurisdiction, the invalid or unenforceable part or provisions shall be replaced
with a provision which accomplishes, to the extent possible, the original
business purpose of such part or provision in a valid and enforceable manner,
and the remainder of this Agreement shall remain binding upon the parties
hereto.
9.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal and substantive laws of the State of New York and
without regard to any conflicts of laws concepts which would apply the
substantive law of some other jurisdiction.
9.7 Waiver. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or be construed as, a further or continuing waiver of any such
term, provision or condition or as a waiver of any other term, provision or
condition of this Agreement.
25
9.8 Assignment. The rights and obligations of any party hereto shall
inure to the benefit of and shall be binding upon the authorized successors and
permitted assigns of such party. The Company may not assign this Agreement or
any rights or obligations hereunder without the prior written consent of
Purchasers who hold a majority of the outstanding Shares (the "Majority
Purchasers"). Each Purchaser may assign or transfer any or all of its rights
under this Agreement to any Person provided that such assignee or transferee
agrees in writing to be bound, with respect to the transferred Shares, Warrant
Shares, Dividend Shares and Conversion Shares, by the provisions hereof that
apply to such assigning or transferring Purchaser; whereupon such assignee or
transferee shall be deemed to be a "Purchaser" for all purposes of this
Agreement.
9.9 Survival. The respective representations and warranties given by
the Company and the Purchasers herein shall survive the Closing Date and the
consummation of the transactions contemplated herein for a period of time equal
to the time for which indemnification may be sought by the Purchasers pursuant
to Section 7 hereof, without regard to any investigation made by any party. The
respective covenants and agreements agreed to by the Company and the Purchasers
hereto shall survive the Closing Date and the consummation of the transactions
contemplated herein in accordance with their respective terms and conditions.
9.10 Entire Agreement. This Agreement, the Registration Rights
Agreement and the Warrants constitute the entire agreement between the parties
hereto respecting the subject matter hereof and supersedes all prior agreements,
negotiations, understandings, representations and statements respecting the
subject matter hereof, whether written or oral.
9.11 Amendments. Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provisions of this Agreement
shall be effective only if made or given in writing and signed by the Company
and the Majority Purchasers; provided that any amendment, supplement,
modification or waiver that is materially and disproportionately adverse to any
particular Purchaser (as compared to all Purchasers as a group) shall require
the consent of such Purchaser.
9.12 No Third Party Rights. This Agreement is intended solely for the
benefit of the parties hereto and is not intended to confer any benefits upon,
or create any rights in favor of, any Person (including, without limitation, any
stockholder or debt holder of the Company) other than the parties hereto;
provided, that each of the Purchaser Indemnitees that are not Purchasers are
entitled to all rights and benefits as third party beneficiaries of Section 7 of
this Agreement.
9.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document. The parties hereto confirm
that any facsimile copy of another party's executed counterpart of this
Agreement (or its signature page thereof) will be deemed to be an executed
original thereof.
26
9.14 Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser under this Agreement and any Transaction Document
are several and not joint with the obligations of any other Purchaser, and no
Purchaser shall be responsible in any way for the performance of the obligations
of any other Purchaser under this Agreement or any Transaction Document. Nothing
contained herein or in any Transaction Document, and no action taken by any
Purchaser pursuant hereto or thereto, shall be deemed to constitute the
Purchasers as a partnership, an association, a joint venture or any other kind
of entity, or create a presumption that the Purchasers are in any way acting in
concert or as a group with respect to such obligations or the transactions
contemplated hereby or by the Transaction Documents and the Company acknowledges
that the Purchasers are not acting in concert or as a group with respect to such
obligations or the transactions contemplated hereby or by the Transaction
Documents. Each Purchaser confirms that it has independently participated in the
negotiation of the transaction contemplated hereby with the advice of its own
counsel and advisors. Each Purchaser shall be entitled to independently protect
and enforce its rights, including, without limitation, the rights arising out of
this Agreement or out of any other Transaction Documents, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose.
[Signature Pages Follow]
27
IN WITNESS WHEREOF, the parties hereto have executed this Securities Purchase
Agreement under seal as of the day and year first above written.
MOTIENT CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Executive Vice President and Chief
Operating Officer
Glenview Capital Partners, L.P.
By: /s/ ▇▇▇▇▇▇▇ Battera
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ Battera
Title: Managing Member of Glenview Capital Management
Glenview Institutional Partners, L.P.
By: /s/ ▇▇▇▇▇▇▇ Battera
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ Battera
Title: Managing Member of Glenview Capital Management
Glenview Capital Master Fund, Ltd.
By: /s/ ▇▇▇▇▇▇▇ Battera
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ Battera
Title: Managing Member of Glenview Capital Management
GCM Little Arbor Institutional Partners, L.P.
By: /s/ ▇▇▇▇▇▇▇ Battera
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ Battera
Title: Managing Member of Glenview Capital Management
GCM Little Arbor Master Fund, Ltd.
By: /s/ ▇▇▇▇▇▇▇ Battera
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ Battera
Title: Managing Member of Glenview Capital Management
OZ Master Fund, Ltd.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Member and CFO
Fleet Maritime, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Member and CFO
Highland Equity Focus Fund, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President Highland Capital Management, L.P.
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
Highland Crusader Offshore Partners, L.P.
By: Highland Capital Management, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President Highland Capital Management, L.P.
Highland Capital Management Services, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President Highland Capital Management, L.P.
Highland Capital Management L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President Highland Capital Management, L.P.
Greywolf Capital Partners II LP
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Partner
Greywolf Capital Overseas Fund
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Partner
York Capital Management, L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CFO
York Select, L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CFO
York Investment Limited
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CFO of its Investment Manager
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
York Select Unit Trust
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CFO of its Investment Manager
York Credit Opportunities Fund, L.P.
By: /s/ Name
-----------------------------------------------
Name: Name
Title: Senior Managing Director
York Global Value Partners, L.P.
By: /s/ Name
-----------------------------------------------
Name: Name
Title: Senior Managing Director
York/Green Capital Partners, L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CFO
Rockbay Capital Institutional Fund, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: CEO of Rockbay Capital Advisors, Inc.
Rockbay Capital Offshore Fund, Ltd.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: CEO of Rockbay Capital Advisors, Inc.
LC Capital Master Fund, Ltd.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
▇▇▇▇▇▇ Offshore Ltd.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
▇▇▇▇▇▇ Alpha Fund, L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
Millennium Partners, L.P.
By: Millenium Management, L.L.C.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Operating Officer
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇ Master Fund, Ltd.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Partner
Lyxor/▇▇▇▇ Partners
By: Lyxor/▇▇▇▇ Partners
-----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: CFO
Ore Hill Hub Fund, Ltd.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Member
Portfolio Logic LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
Eton Park Fund, L.P.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: COO
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
Eton Park Master Fund, Ltd.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: COO
Loeb Partners Corp.
By: /s/ Name
-----------------------------------------------
Name: Name
Title: Vice President
Long Meadow Holdings, LP
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. Old
-----------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. Old
Title: Managing Member of Meadow Investment LLC
▇▇▇▇▇▇▇▇▇ Offshore Leveraged Assets, Ltd.
By: ▇▇▇▇▇▇▇▇▇ Capital Partners, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Portfolio Manager and Partner
▇▇▇▇▇▇▇ Distressed Investment Master Fund, Ltd.
By: HMC Distressed Investment Offshore Manager, LLC
By: /s/ Name
-----------------------------------------------
Name: Name
Title: Vice President
Alpha US Sub Fund VI, LLC
By: ▇▇▇▇▇▇▇ Fund Advisors, Inc.
By: /s/ Name
-----------------------------------------------
Name: Name
Title: Vice President
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]