Exhibit F
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of July 24,
2008, by and among Skyterra Communications, Inc., a Delaware corporation (the
"Company"), and Harbinger Co-Investment Fund, L.P., a Delaware limited
partnership (the "Investor"). Defined terms used herein and not otherwise
defined shall have the meanings accorded them in the MCSA (as defined below).
RECITALS
The Company and the Investor have entered into that certain Master
Contribution and Support Agreement, dated as of July 24, 2008, among the
Company, the Investor, Harbinger Capital Partners Master Fund I, Ltd., Harbinger
Capital Partners Special Situations Fund, LP and Mobile Satellite Ventures
Subsidiary LLC (the "MCSA");
The MCSA provides that that the parties hereto shall enter into this
Agreement pursuant to which the Company shall sell to the Investor, and the
Investor shall purchase from the Company, shares of the Company's voting common
stock, par value $0.01 per share (the "Voting Common Stock") on the terms and
subject to the conditions as set forth herein;
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
ISSUANCE OF SHARES
1.1 Purchase and Sale of Shares. Subject to the terms and conditions of
this Agreement, the Investor agrees to purchase at the Closing, and the Company
agrees to sell and issue to the Investor at the Closing, free and clear of any
and all Encumbrances, that number of shares of Voting Common Stock (the
"Purchased Shares") equal to (x) the Cash Purchase Price (as hereinafter
defined) divided by (y) the Agreed Issue Price. On the Closing Date, the
Investor shall pay to the Company an amount in cash equal to the Cash Purchase
Price, which shall be paid by wire transfer of immediately available funds into
an account designated in writing by the Company not less than three Business
Days prior to the Closing Date and concurrently therewith, the Company shall
issue and deliver to the Investor the Purchased Shares.
For purposes of this Agreement, (a) except as otherwise provided in Section
1.2, the "Cash Purchase Price" shall equal up to the greater of (i)
USD$2,400,000,000 or (ii) such other amount as the Investor may determine, in
either case minus the aggregate gross proceeds of the Financing Rights Offering
to the extent such amount is received prior to Closing, and (b) subject to
adjustment as provided in Section 1.3, the price per share of Voting Common
Stock (the "Agreed Issue Price") shall equal the product of (i) USD$10.00,
multiplied by (ii) a fraction, (A) the numerator of which shall be the Target
Offer Price and (B) the denominator of which shall be 535.3p.
1.2 Notification of Cash Purchase Price. The Investor shall notify the
Company of the Cash Purchase Price pursuant to a Notification and, if
applicable, an Amendment Notification, delivered in accordance with the terms of
the MCSA. In the event that the Investor determines (having taken into account
the amount of available Debt Financing, as defined in and pursuant to the MCSA),
that less cash is required to pay the Firm Offer Costs, the Investor shall have
the right to reduce the Cash Purchase Price and shall notify the Company of such
reduction by Notification or Amendment Notification, as applicable.
1.3 Adjustment of Agreed Issue Price. The Agreed Issue Price shall be
equitably adjusted to reflect any changes to the Company's capital structure
that may occur between the date hereof and the Closing, provided, however, that
no such adjustment shall be made for any shares of Common Stock issued by the
Company to Harbinger in exchange for the Contribution Assets, the Sponsor Fee
Shares and any warrants granted to Harbinger pursuant to the Securities Purchase
Agreement. Such changes to the Company's capital structure may include, but are
not limited to, stock consolidations, stock splits, interim rights offerings,
non-cash distributions, spin-offs, reclassifications, schemes of arrangements,
payments of cash dividends or other similar transactions.
1.4 Use of Proceeds. The Company agrees that the net proceeds from the
purchase and sale of the Purchased Shares shall be used solely to pay the Firm
Offer Costs.
ARTICLE II
CLOSING
2.1 Closing. The closing of the transactions described in Section 1.1 (the
"Closing") will take place at the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ on the date (the "Closing Date") that is three
(3) Business Days after Completion or at such other time and place as the
Company and the Investor mutually agree in writing.
2.2 Certificates. At the Closing, the Company shall deliver to the Investor
certificates representing the Purchased Shares, issued in the name of the
Investor or its nominee and otherwise sufficient to transfer the Purchased
Shares to the Investor free and clear of all Encumbrances arising out of any act
of the Company.
ARTICLE III
CLOSING CONDITION
3.1 Condition Precedent to the Obligations of the Investor and the Company.
The obligations of each of the Investor and the Company to consummate the
transactions contemplated by this Agreement are subject to the occurrence of the
Completion.
ARTICLE IV
INVESTOR REPRESENTATIONS AND WARRANTIES
The Investor hereby makes the following representations and warranties
as of the date hereof:
4.1 Purchase Entirely for Own Account. Except insofar as rights are
conferred on any other participants of the Investor under the rules of that
fund, (i) the Investor is acquiring the Purchased Shares for its own account for
investment and not for the account of any other Person or with a view to any
resale, fractionalization, division, or distribution thereof in a manner that
would require registration thereof under the Securities Act of 1933, as amended
(the "Securities Act"), and the Investor presently has no reason to anticipate
any change in its circumstances or other particular occasion or event which
would cause it to sell the Purchased Shares other than in compliance with the
requirements of the Securities Act; and (ii) the Investor has no contract,
undertaking, agreement, understanding or arrangement with any Person to sell,
transfer, or pledge to any Person any part or all of the Purchased Shares which
the Investor is acquiring, or any interest therein, and has no present plans to
enter into the same. The Purchased Shares were not offered or sold to the
Investor by means of any general solicitation or general advertisement.
4.2 Investor Status; Etc. The Investor certifies and represents to the
Company that it is an "accredited investor" as defined in Rule 501(a) of
Regulation D promulgated under the Securities Act. The Investor has adequate
means of providing for its current needs and personal contingencies, has no need
now, and anticipates no need in the foreseeable future, to sell the Purchased
Shares, and currently has sufficient net worth and financial liquidity to afford
a complete loss of its investment in the Company. The Investor has such
knowledge and experience in financial and business matters so that it is capable
of evaluating the merits and risks of an investment in the Company and has made
such evaluation. The Investor fully understands that the Purchased Shares are
speculative investments which involve a high degree of risk of loss of the
Investor's entire investment. No Person or entity, other than the Company or its
authorized representatives, has offered the Purchased Shares to the Investor.
The Investor is able to bear the economic risk of an investment in the Purchased
Shares.
4.3 Securities Not Registered. The Investor understands that Purchased
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 Purchased Shares must continue
to be held by the Investor unless a subsequent disposition thereof is registered
under the Securities Act or is exempt from such registration. The Investor
understands that the exemptions from registration afforded by Rule 144
promulgated under the Securities Act (the provisions of which are known to it)
depend on the satisfaction of various conditions, and that, if applicable, Rule
144 may afford the basis for sales only in limited amounts. The Investor has had
an opportunity to ask questions of and receive answers from the management and
authorized representatives of the Company, and to review any other relevant
documents and records concerning the business of the Company and the terms and
conditions of this investment, and that any such questions have been answered to
the Investor's satisfaction. The Investor understands that no federal or state
agency has passed upon or made any recommendation or endorsement of an
investment in the Purchased Shares.
ARTICLE V
TRANSFER RESTRICTIONS
5.1 Restrictions on Transfers. Purchased Shares shall not be transferred,
sold, assigned, exchanged, mortgaged, pledged, hypothecated, or otherwise
disposed of or encumbered without compliance with, and they are otherwise
restricted by, the provisions of the Securities Act, the rules and regulations
thereunder and this Agreement. Each certificate, if any, evidencing such
Purchased Shares issued upon any such Transfer, other than in a public offering
pursuant to an effective registration statement, shall bear the restrictive
legend set forth in Section 5.2(a), unless the Holder thereof delivers to the
Company an Opinion of Counsel to the effect that such legend is not required for
the purposes of compliance with the Securities Act. Holders of Purchased Shares
shall not be entitled to Transfer such Purchased Shares except in accordance
with this Article V.
5.2 Restrictive Legends.
(a) Each certificate for the Purchased Shares shall be stamped or
otherwise imprinted with two legends in substantially the following forms:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON TRANSFER UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS (I) REGISTERED UNDER
THE APPLICABLE SECURITIES LAWS OR (II) SUCH TRANSACTION IS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND AN OPINION
OF COUNSEL, WHICH OPINION IS REASONABLY SATISFACTORY TO THE COMPANY, HAS
BEEN DELIVERED TO THE COMPANY AND SUCH OPINION STATES THAT THE SECURITIES
MAY BE TRANSFERRED WITHOUT SUCH REGISTRATION."
(b) The legend requirements of Section 5.2(a) shall terminate as to
any certificate for Purchased Shares when the Company shall have received
from the holder thereof an opinion of counsel to the effect that such
legend is not required in order to ensure compliance with the Securities
Act, and the holder of such certificate for the Purchased Shares shall be
entitled to receive from the Company, at the expense of the Company, a new
certificate for the Purchased Shares without the legend provided for in
Section 5.2(a).
(c) All certificates for Purchased Shares issued upon registration of
transfer, division or combination of, or in substitution for, any other
certificates for Purchased Shares entitled to bear the legend provided for
in Section 5.2(a) shall have a similar legend endorsed thereon.
ARTICLE VI
MISCELLANEOUS
6.1 Entire Agreement. This Agreement and the MCSA contain the entire
understanding and agreement between the Investor and the Company concerning the
subject matter hereof.
6.2 Waiver. Compliance with the provisions of this Agreement may be waived
only by a written instrument specifically referring to this Agreement and signed
by the party waiving compliance. No course of dealing, nor any failure or delay
in exercising any right, shall be construed as a waiver, and no single or
partial exercise of a right shall preclude any other or further exercise of that
or any other right.
6.3 Notices. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
as of the date delivered, mailed or transmitted, and shall be effective upon
receipt, if delivered personally or via Federal Express (or other reputable
overnight courier), mailed by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the addresses as set forth in
Section 21.3 of the MCSA.
6.4 Successors and Assigns. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Neither party shall assign any
rights or delegate any obligations hereunder without the consent of the other
party, except that the Investor may assign any or all of its rights and/or
delegate its obligations to any fund affiliated with Harbinger Master, Harbinger
Special or the Investor, provided that Investor shall remain liable for the
performance of any party to whom it delegates any of its obligations.
6.5 Severability. In the event that any provision of this Agreement or the
application of any provision hereof is declared to be illegal, invalid or
otherwise unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall not be affected.
6.6 Further Assurances. Each party shall cooperate and take such action as
may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
6.7 Governing Law. The Agreement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of New York
without giving effect to principles of conflict of laws thereof (other than
Sections 5-1401 and 5-1402 of the New York General Obligations Law).
6.8 Consent to Jurisdiction; Waiver of Jury Trial. Each of the parties to
this Agreement consents to submit to the non-exclusive personal jurisdiction of
any court located in the Borough of Manhattan, New York, NY in any action or
proceeding arising out of or relating to this Agreement. EACH PARTY HEREBY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL OR EQUITABLE ACTION (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) AND ANY OBJECTION THAT SUCH PARTY MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE AFOREMENTIONED COURTS.
6.9 Headings and Counterparts. The headings in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement,
nor shall they affect its meaning, construction or effect. This Agreement may be
executed in counterparts, each of which when so executed shall be deemed to be
an original, and all of which when taken together shall constitute one and the
same instrument.
6.10 Certain Interpretive Matters.
(a) Unless the context otherwise requires: (i) all references to
Articles and Sections, are to Articles and Sections of this Agreement; (ii)
words in the singular include the plural and vice-versa; and (iii) the term
"including" means "including without limitation". All references to laws in
this Agreement will include any applicable amendments thereunder. All
references to $ or dollar amounts will be to lawful currency of the United
States. To the extent the term "day" or "days" is used, it will mean
calendar days (unless referred to as a "business day").
(b) No provision of this Agreement shall be interpreted in favor of,
or against, any of the parties hereto by reason of the extent to which any
such party or its counsel participated in the drafting thereof or by reason
of the extent to which any such provision is inconsistent with any prior
draft hereof or thereof.
[Signatures on the Following Page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SKYTERRA COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. Good
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Name: ▇▇▇▇▇▇▇▇▇ ▇. Good
Title: Chairman, Chief Executive Officer and President
HARBINGER CO-INVESTMENT FUND, L.P.
By: Harbinger Co-Investment GP, LLC, as general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Executive Vice President