EXHIBIT 10.45
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of June 29,
2000, by and among MOTIENT CORPORATION, a Delaware corporation (the "Company"),
each stockholder signatory hereto (the "Investors") and each stockholder that
shall become a party hereto pursuant to Section 12(d) hereof after the date
hereof by executing and delivering a joinder agreement substantially in the form
of Exhibit A hereto (the "Joinder Agreement") (each, together with the
Investors, a "Stockholder" and, collectively, the "Stockholders").
Terms and Conditions
The Investors have agreed to invest in, and provide financing for
Motient Satellite Ventures LLC, a Delaware limited liability company ("Newco"),
and the Company and Newco have agreed to issue, sell and grant to the Investors,
certain securities and options pursuant to the Investment Agreement, dated as of
June 22, 2000, by and among the Company, Newco and the Investors (the
"Investment Agreement");
The Parties desire herein to provide certain registration rights to the
Stockholders with respect to the shares of Common Stock that may be acquired by
the Stockholders pursuant to the exercise of the Parent Common Stock Purchase
Option or the effectuation of the Parent Conversions (each as defined in the
Investment Agreement) pursuant to the Investment Agreement.
In consideration of the mutual covenants and agreements contained in
this Agreement and the Investment Agreement, and intending to be legally bound,
the parties hereto agree as follows:
Section 1 . Definitions. As used in this Agreement, the following terms have the
meanings indicated below or in the referenced sections of this Agreement:
"Common Stock." The Company's Common Stock, $.01 par value per share,
as the same may be constituted from time to time.
"Demand Registration." As defined in Section 4(a) hereof.
"Exchange Act." The Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
"Existing Registration Rights Agreements" shall mean (i) the
Registration Rights Agreement, as amended and restated on April 19, 1996, by and
among the Company, Toronto Dominion Investments, Inc. Morgan Guaranty Trust
Company of New York and Hughes Communications Satellite Services, Inc. (the
"Bridge Registration Rights Agreement"), (ii) the Amended and Restated
Registration Rights Agreement, dated as of March 31, 1998, as amended, by and
among the Company, Hughes Electronics Corporation, Singapore Telecommunications
Ltd., and Baron Capital Partners, L.P. (the "Amended and Restated Registration
Rights Agreement"), (iii) the Registration Rights Agreement, dated March 31,
1998, by and between the Company and Motorola, Inc. (the "Motorola Registration
Rights Agreement"), and (iv) the Exchange Agreement, dated June 7, 1999, by and
among the Company, WorldSpace, Inc. and XM Satellite Radio Holdings, Inc (the
"Exchange Agreement").
"NASD." The National Association of Securities Dealers, Inc.
"Person." An individual, a partnership, a corporation, a limited
liability company or partnership, an association, a joint stock company, a
trust, a business trust, a joint venture, an unincorporated organization or a
government entity or any department, agency, or political subdivision thereof.
"Piggyback Registration." As defined in Section 5(a) hereof.
"Registrable Securities." Any shares of Common Stock of the Company
held by the Stockholders, and any shares of Common Stock that such Stockholder
has the right to acquire, or does acquire, upon the conversion or exercise of
the Parent Common Stock Purchase Option or in connection with a Parent
Conversion (or, in either case, their transferees) in each case pursuant to the
Investment Agreement, including any shares of Common Stock issued or issuable
with respect to such shares by reason of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization; provided, that a Registrable Security ceases to be a
Registrable Security when (i) it has been registered and sold under the
Securities Act, (ii) it is sold or transferred in accordance with the
requirements of Rule 144 (or similar provisions then in effect) promulgated by
the SEC under the Securities Act ("Rule 144"), or (iii) it is eligible to be
sold or transferred under Rule 144 without holding period or volume limitations.
"Registration Expenses." As defined in Section 8(a) hereof.
------------
"SEC." The United States Securities and Exchange Commission.
"Securities Act." The Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Warrant Registration Rights Agreement." The Warrant Registration
Rights Agreement dated as of March 31, 1998 by and among the Company, Bear,
Stearns & Co., Inc., J.P. Morgan Securities Inc., T.D. Securities (USA) Inc. and
BancAmerica Robertson Stephens.
Capitalized terms used in this Agreement but not defined herein shall
have the meaning ascribed to them in the Investment Agreement.
Section 2 . Securities Subject to this Agreement.
(a) Holders of Registrable Securities. A Person is deemed to be a holder of
Registrable Securities whenever that Person owns, directly or beneficially, or
has the right to acquire Registrable Securities, disregarding any legal
restrictions upon the exercise of that right.
(b) Majority of Registrable Securities. As used in this Agreement, the term
"majority of the Registrable Securities" means 51% or more of the Registrable
Securities being registered unless the context indicates that it is 51% or more
of the Registrable Securities then issued and outstanding.
Section 3 . S-4 Registration.
- ------------------ ----------------
(a) Registration. At the request of the Investor Group Designee for an Investor
Group exercising its right to a Parent Conversion, the Company shall register on
Form S-4 (or a similar form then in effect) the Registrable Securities acquired
in such Parent Conversion in connection with such acquisition. In addition, such
registration statement shall also serve to cover public reofferings or resales
of such securities (an "S-4 Registration"). The Company shall not be obligated
to effect more than one (1) S-4 Registration per Investor Group.
(b) Effectiveness. The Company shall use its best efforts to keep an S-4
Registration continuously effective until the earlier of one (1) year from the
consummation of the Parent Conversion to which such S-4 Registration relates or
at such time when all of the Registrable Securities registered pursuant thereto
are no longer Registrable Securities.
(c) Suspension; Delay in Filing. Notwithstanding the foregoing, the Company may
delay in filing a registration statement in connection with an S-4 Registration,
may withhold efforts to cause the registration statement to become effective and
may suspend the effectiveness of the S-4 Registration, if the Company determines
in good faith that such registration might interfere with or affect the
negotiation or completion of any financing, acquisition, disposition or other
transaction or other material event that is being contemplated in good faith by
the Company (whether or not a final decision has been made to undertake such
transaction) at the time the right to delay or suspend is exercised (a "Blackout
Period"). The Company may exercise such right to delay, suspend or withhold
efforts not more than twice in any twelve (12) month period and for not more
than ninety (90) days at a time.
(d) Registration Expenses. The Company will pay for all Registration
Expenses for one (1) S-4 Registration.
(e) Withdrawal. To the extent the Company exercises its right to delay
filing of an S-4 Registration or withhold efforts to cause an S-4 Registration
to become effective, the Company shall promptly notify the Investor Group
Designee for the Investor Group requesting the S-4 Registration. At any time
following such notice, the Investor Group Designee may withdraw is request for
an S-4 Registration (whether or not in connection with a withdrawal of its
exercise of the Parent Conversion in accordance with the Investment Agreement),
in which case the S-4 Registration shall not be deemed to constitute an S-4
Registration and such Investor Group shall retain its right to an S-4
Registration under Section 3(a) hereof. In the event an Investor Group
consummates a Parent Conversion without the benefit of an S-4 Registration,
Parent hereby agrees, at the request of the Investor Group Designee relating to
such Investor Group, to register, as promptly as practicable following the
Blackout Period, on Form S-3 (or similar form then in effect) the Registrable
Securities held by such Investor Group covering reofferings or resales of such
securities. In such event, for such Investor Group, (i) the term "S-4
Registration" as used in this Agreement shall refer to such S-3 registration and
(ii) the Company shall not be permitted to exercise its right to effectuate a
Blackout Period during the 120 day period following the effectiveness of the
Form S-3 Registration Statement.
Section 4. Demand Registration.
(a) Request for Registration. Subject to the provisions of Section 4(b), at any
time any holders of a majority of the Registrable Securities may demand that the
Company register all or part of its Registrable Securities under the Securities
Act (a "Demand Registration"); provided, however, that the Demand Registration
may not be exercised until after the consummation of all 3 Parent Conversions or
the exercise or lapse of the Investor Option. Within ten (10) days after receipt
of a demand, the Company will notify in writing all Investor Group Designees of
the demand. Any Investor Group Designee who wants to include any of their
Registrable Securities of one or more of the Investors in its Investor Group in
the Demand Registration must notify the Company within ten (10) business days of
receiving the notice of the Demand Registration. Except as provided in this
Section 4, the Company will include in the Demand Registration all Registrable
Securities for which the Company receives the timely written demands for
inclusion. All demands for inclusion made pursuant to this Section 4(a) must
specify the name of the Investor wishing to be included in the Demand
Registration, the number of Registrable Securities to be registered and the
intended method of disposing of the Registrable Securities.
(b) Number and Form of Registration. The holders of the Registrable Securities
shall be limited to one (1) Demand Registration, which shall be on Form S-1 (or
a similar long-form registration then in effect), or, if available on Form S-3;
provided, however, that the Company include in the registration statement such
Company-related disclosure as is customarily included in underwritten offerings,
or as reasonably requested by the holders requesting the Demand Registration.
The Company will use commercially reasonable efforts to qualify for registration
on Form S-3. Only Common Stock may be included in a Demand Registration. The
Company shall not be obligated to effect more than one (1) underwritten offering
pursuant to the Demand Registration.
(c) Registration Expenses. The Company will pay all Registration Expenses for
the Demand Registration; provided, however, that notwithstanding Section 8(a)
hereto, the Company will not be responsible for any printing costs and expenses
as well as any registration filing fees in connection with the Demand
Registration; and provided, further, that the Company will not be responsible
for an amount of Registration Expenses in connection with the Demand
Registration equal to any Registration Expenses previously paid by the Company
in connection with the S-4 Registrations pursuant to Section 3(d) hereto.
(d) Selection of Underwriters. The holders requesting the Demand Registration
shall select the investment banker(s) and manager(s) that will administer the
offering; provided, that such investment banker(s) and manager(s) shall be of
recognized national standing and the Company shall have given its prior written
consent to such selection (which consent shall not be unreasonably delayed,
conditioned or withheld). The Company and the holders of Registrable Securities
whose shares are being registered shall enter into a customary underwriting
agreement with such investment banker(s) and manager(s).
(e) Priority on Demand Restrictions. If the managing underwriter gives the
Company and the holders of the Registrable Securities being registered a written
opinion that the number of Registrable Securities requested to be included in
the Demand Registration exceeds the number of securities that can be sold, the
registration will include only the number of Registrable Securities that the
underwriters believe can be sold. Subject to the priority rights of the holders
of securities requesting registration pursuant to the Existing Registration
Rights Agreements, the number of securities registered shall be allocated, first
to the holders requesting the Demand Registration, and then pro rata among the
other holders of Registrable Securities, on the basis of the total number of
Registrable Securities requested to be included in the registration. In
addition, if the managing underwriter shall advise the Company, in writing or
otherwise, that an underwriters' over-allotment option, not in excess of 15% of
the total offering to be so effected, is necessary or desirable for the
marketing of such offering, all Registrable Securities which are to be included
in such offering pursuant to this Section 4(e) shall be allocated on the basis
of the priority described in the preceding sentence.
(f) Delay in Filing. Notwithstanding the foregoing, the Company may delay in
filing a registration statement in connection with a Demand Registration and may
withhold efforts to cause the registration statement to become effective, if the
Company determines in good faith that such registration might interfere with or
affect the negotiation or completion of any financing, acquisition, disposition
or other transaction or other material event that is being contemplated in good
faith by the Company (whether or not a final decision has been made to undertake
such transaction) at the time the right to delay is exercised. The Company may
exercise such right to delay or withhold efforts not more than twice in any
twelve (12) month period and for not more than ninety (90) days at a time. If,
after a registration statement becomes effective, the Company advises the
holders of registered shares that the Company considers it appropriate for the
registration statement to be amended, the holders of such shares shall suspend
any further sales of their registered shares until the Company advises them that
the registration statement has been amended. The 180-day time period referred to
in Section 7(a)(3) during which the registration statement must be kept current
after its effective date shall be extended for an additional number of business
days equal to the number of business days during which the right to sell shares
was suspended pursuant to the preceding sentence.
(g) Effective Demand Registration. A registration shall not constitute a Demand
Registration until it has become effective and remains continuously effective
for the lesser of (i) the period during which all Registrable Securities
registered in the Demand Registration are sold and (ii) one hundred eighty (180)
days; provided, however, that a registration shall not constitute a Demand
Registration if (x) after such Demand Registration has become effective, such
registration or the related offer, sale or distribution of Registrable
Securities thereunder is interfered with by any stop order, injunction or other
order or requirement of the SEC or other governmental agency or court for any
reason not attributable to the holders requesting the Demand Registration or the
holders of Registrable Securities requesting to be included in such registration
and such interference is not thereafter eliminated within five (5) business
days, or (y) the conditions specified in the underwriting agreement, if any,
entered into in connection with such Demand Registration are not satisfied or
waived, other than by reason of a failure on the part of the holders requesting
the Demand Registration, or (z) the number of Registrable Securities sold by the
holders in such Demand Registration is less than fifty percent (50%) of the
number of Registrable Securities requested to be included in such Demand
Registration.
(h) Limitations on Demand Registrations. The Company shall not be obligated to
effect, or take any action to effect, a registration pursuant to Section 4(a)
hereof if, upon receipt of a registration request pursuant to Section 4(a)
hereof, the Company is advised in writing by an investment banking firm of
recognized national standing selected by the Company that, in such firm's
opinion, a registration at the time and on the terms requested would adversely
affect any public offering of securities of the Company by the Company (other
than in connection with benefit and similar plans) (a "Company Offering") with
respect to which the Company has commenced preparations for a registration and
filed or intends to imminently file a registration statement relating to such
registration prior to the receipt of a registration request pursuant to Section
4(a) hereof, until the earlier of (i) 90 days after the completion of such
Company Offering, or (ii) promptly after any abandonment of such Company
Offering.
Section 5. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register (including on
behalf of a selling stockholder) any of its securities under the Securities Act
(except for the registration of securities to be offered pursuant to an employee
benefit plan on Form S-8 or Form S-3, pursuant to a registration made on Form
S-4 or any successor forms then in effect) at any time other than pursuant to a
Demand Registration and the registration form to be used may be used for the
registration of the Registrable Securities (a "Piggyback Registration"), it will
so notify in writing all Investor Group Designees no later than the earlier to
occur of (i) the tenth (10th) day following the Company's receipt of notice of
exercise of other demand registration rights, or (ii) thirty (30) days prior to
the anticipated filing date. Subject to the provisions of Section 5(c), the
Company will use its commercially reasonable efforts to include in the Piggyback
Registration all Registrable Securities, on a pro rata basis based upon the
total number of Registrable Securities with respect to which the Company has
received written requests for inclusion within fifteen (15) days after the
Investor Group Designees' receipt of the Company's notice. A registration of
Registrable Securities pursuant to this Section 5 shall not be counted as a
Demand Registration under Section 4.
(b) Piggyback Expenses. The Company shall pay to the holders of the Registrable
Securities included in a Piggyback Registration all Registration Expenses of
those holders (except to the extent prohibited by applicable state securities
laws).
(c) Priority on Piggyback Registrations. If the managing underwriter advises the
Company in writing that the total number or dollar amount of securities
requested to be included in the registration exceeds the number or dollar amount
of securities that can be sold, the Company will include the securities in the
registration in the following order of priority, subject to the priority rights
of the holders of securities requesting registration pursuant to the Existing
Registration Rights Agreements: (i) first, all securities the Company or the
holder for whom the Company is effecting the registration, as the case may be,
proposes to sell; (ii) second, up to the full number or dollar amount of
Registrable Securities requested to be included in the registration (allocated
pro rata among the holders of Registrable Securities, on the basis of the number
of Registrable Securities requested to be included, as the case may be); and
(iii) third, any other securities (provided they are of the same class as the
securities sold by the Company) requested to be included, allocated among the
holders of such securities in such proportions as the Company and those holders
may agree. In the event that the managing underwriter advises the Company that
an underwriters' over-allotment option is necessary or advisable, the preceding
priority shall apply.
(d) Selection of Underwriters. If any Piggyback Registration is an underwritten
offering, the Company will select the investment banker(s) and manager(s) that
will administer the offering. The Company and the holders of Registrable
Securities whose shares are being registered shall enter into a customary
underwriting agreement with such investment banker(s) and manager(s).
Section 6. Holdback Agreements.
(a) Restrictions on Public Sale by Securities Holders. Each Stockholder (i)
agrees not to make any public sale or distribution of equity securities of the
Company (except as part of the underwritten registration effected pursuant to a
Demand Registration or a Piggyback Registration), including a sale pursuant to
Rule 144,during the period beginning seven (7) days prior to and ending on
ninety (90) days following the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration as any managing
underwriter(s) of such underwriting may reasonably request, and (ii) agrees not
to make any public sale or distribution of equity securities of the Company, in
each case including a sale pursuant to Rule 144, during (A) the periods
described in Section 5.3(b)(ii) of the Bridge Registration Rights Agreement, (B)
the periods described in Section 5.3(b)(ii) of the Amended and Restated
Registration Rights Agreement, and (C) the period described in Section 3(b)(ii)
of the Motorola Registration Rights Agreement, provided that such agreements are
in full force and effect.
(b) Restrictions on Public Sale by the Company and Others. The Company agrees
not to make any public sale or distribution of its equity securities, or any
securities convertible into or exchangeable or exercisable for its equity
securities (except as part of the underwritten registration effected pursuant to
a Demand Registration or a Piggyback Registration or pursuant to registrations
on Forms S-8 or S-4 or any successor form or on Form S-3 with respect to any
employee benefit plans of the Company), during such customary period prior to
and following the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration as any managing underwriter(s) of such
underwriting may reasonably request. The Company also agrees to use reasonable
efforts to cause each holder of at least 10% (on a fully-diluted basis) of its
equity securities (other than Registrable Securities) or any securities
convertible into or exchangeable or exercisable for its equity securities (other
than Registrable Securities), purchased from the Company at any time on or after
the date of this Agreement (other than in a registered public offering), to
agree not to make any public sale or distribution of those securities, including
a sale pursuant to Rule 144 (except as part of the underwritten registration, if
permitted), during the seven (7) days prior to and the ninety (90) days after
the effective date of the registration unless the managing underwriter(s) agrees
otherwise.
Section 7. Registration Procedures.
(a) Obligations of the Company. Whenever the holders of Registrable Securities
request or are entitled to the registration of any Registrable Securities
pursuant to this Agreement, the Company shall use its commercially reasonable
efforts to register and to permit the sale of the Registrable Securities in
accordance with the intended method of disposition. To carry out this
obligation, the Company shall as expeditiously as practicable:
(1) prepare and file with the SEC a registration statement or
post-effective amendment to a registration statement, as necessary, on
the appropriate form and use commercially reasonable efforts to cause
the registration statement to become effective. At least ten (10) days
before filing a registration statement or prospectus or at least three
(3) business days before filing any amendments or supplements thereto,
the Company will furnish to the counsel of the holders of a majority of
the Registrable Securities being registered copies of all documents
proposed to be filed for that counsel's review and approval, which
approval shall not be unreasonably withheld or delayed;
(2) immediately notify each Investor Group Designee of any stop order
threatened or issued by the SEC and take all actions reasonably
required to prevent the entry of a stop order or if entered to have it
rescinded or otherwise removed;
(3) prepare and file with the SEC such amendments and supplements to the
registration statement and the corresponding prospectus necessary to
keep the registration statement effective for such period required by
Section 3(b) or Section 4(g) or such shorter period as may be required
to sell all Registrable Securities covered by the registration
statement; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by the
registration statement during each period in accordance with the
sellers' intended methods of disposition as set forth in the
registration statement;
(4) furnish to each Investor Group Designee a sufficient number of copies
of the registration statement, each amendment and supplement thereto
(in each case including all exhibits), the corresponding prospectus
(including each preliminary prospectus), and such other documents as an
Investor Group Designee may reasonably request to facilitate the
disposition of the Registrable Securities held by the Investors in such
Investor Group;
(5) use its commercially reasonable efforts to register or qualify the
Registrable Securities under securities or blue sky laws of
jurisdictions in the United States of America as any Investor Group
Designee requests and do any and all other reasonable acts and things
that may be necessary or advisable to enable the Investors to
consummate the disposition of the Registrable Securities held by the
Investors in such Investor Group in such jurisdiction; provided,
however, that the Company shall not be obligated to qualify as a
foreign corporation to do business under the laws of any jurisdiction
in which it is not then qualified or to file any general consent to
service of process;
(6) notify each Investor Group Designee, at any time when a prospectus is
required to be delivered under the Securities Act, of any event as a
result of which the prospectus or any document incorporated therein by
reference contains an untrue statement of a material fact or omits to
state any material fact necessary to make the statements therein not
misleading in light of the circumstances under which such statements
were made, and promptly prepare a supplement or amendment to the
prospectus or any such document incorporated therein so that thereafter
the prospectus will not contain an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein not misleading in light of the circumstances under which such
statements were made;
(7) cause all registered Registrable Securities to be listed on each
securities exchange, if any, on which similar securities issued by the
Company are then listed;
(8) provide an institutional transfer agent and registrar and a CUSIP
number for all Registrable Securities on or before the effective date
of the registration statement;
(9) enter into such customary agreements (including an underwriting
agreement in customary form) and take all other actions in connection
with those agreements as the Investor Group Designee or the
underwriters, if any, reasonably request to expedite or facilitate the
disposition of the Registrable Securities including, without
limitation, the participation of senior management in "road shows" and
similar activities, provided that such activities do not interfere with
the duties of senior management in a manner that would likely be
detrimental to the best interests of the Company;
(10) make available for inspection by any Investor Group Designee, any
underwriter participating in any disposition pursuant to the
registration statement, and any attorney, accountant, or other agent of
any Investor Group Designee or underwriter, all reasonable financial
and other records, pertinent corporate documents, and properties of the
Company, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any Investor Group
Designee, underwriter, attorney, accountant, or other agent in
connection with the registration statement; provided, that an
appropriate and customary confidentiality agreement is executed by any
such Investor Group Designee, underwriter, attorney, accountant or
other agent;
(11) in connection with any underwritten offering, obtain a "comfort" letter
from the Company's independent public accountants in customary form and
covering those matters customarily covered by "comfort" letters as the
Investor Group Designee or the managing underwriter reasonably requests
(and, if the Company is able after using commercially reasonable
efforts, the letter shall be addressed to holders of the Registrable
Securities, the Company and the underwriters);
(12) in connection with any underwritten offering, furnish, at the request
of any Investor Group Designee or underwriter(s) of the offering, an
opinion of counsel representing the Company for the purposes of the
registration, in the form and substance customarily given to
underwriters in an underwritten public offering and reasonably
satisfactory to counsel representing the Investor Group Designee and
the underwriter(s) of the offering, addressed to the underwriters and
to the holders of the Registrable Securities being registered;
(13) use its best efforts to comply with all applicable rules and
regulations of the SEC;
(14) cooperate with each Investor Group Designee and each underwriter
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the NASD; and
(15) take all other steps reasonably necessary to effect the registration of
the Registrable Securities contemplated hereby.
(b) Seller Information. In the event of any registration by the Company, from
time to time, the Company may require each Investor Group Designee to furnish to
the Company information regarding each seller of Registrable Securities subject
to the registration and the distribution of the securities subject to the
registration, and such Investor Group Designee shall furnish all such
information requested by the Company.
(c) Notice to Discontinue. Each holder of Registrable Securities agrees by
acquisition of such securities that, upon receipt of any notice from the Company
to the Investor Group Designees of any event of the kind described in Section
7(a)(6), the holder will discontinue disposition of Registrable Securities until
the Investor Group Designee receives copies of the supplemented or amended
prospectus contemplated by Section 7(a)(6). In addition, if the Company
requests, each Investor Group Designee will cause each holder to deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in the holder's possession, of the prospectus covering the Registrable
Securities current at the time of receipt of the notice. If the Company gives
any such notice, the time period mentioned in Section 7(a)(3) shall be extended
by the number of days elapsing between the date of notice and the date that each
seller receives the copies of the supplemented or amended prospectus
contemplated in Section 7(a)(6).
(d) Notice by Holders. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this
Agreement, those holders shall notify the Company, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event, which as to any holder of Registrable Securities is (i)
to his or its respective knowledge, (ii) solely within his or its respective
knowledge and (iii) solely as to matters concerning that holder of the
Registrable Securities, as a result of which the prospectus included in the
registration statement contains an untrue statement of a material fact or omits
to state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
Section 8. Registration Expenses.
(a) Generally. All Registration Expenses incident to the Company's performance
of or compliance with this Agreement shall be paid as provided in this
Agreement. The term "Registration Expenses" includes, without limitation, all
registration filing fees, reasonable professional fees and other reasonable
expenses of the Company's compliance with federal, state and other securities
laws (including fees and disbursements of counsel for the underwriters in
connection with state or other securities law qualifications and registrations),
printing expenses, messenger, telephone and delivery expenses; reasonable fees
and disbursements of counsel for the Company; reasonable fees and disbursement
of all independent certified public accountants (including the expenses of any
audit or "comfort" letters required by or incident to performance of the
obligations contemplated by this Agreement); fees and expenses of the
underwriters (excluding discounts and commissions); fees and expenses of any
special experts retained by the Company at the request of the managing
underwriters in connection with the registration; and applicable stock exchange
and NASD registration and filing fees. The term "Registration Expenses" does not
include the Company's internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit and the fees and expenses
incurred in connection with the listing of the securities to be registered on
each securities exchange on which similar securities issued by the Company are
then listed, all of which shall be paid by the Company, nor does it include
underwriting fees, discounts or selling commissions, brokerage fees or transfer
taxes, or the fees and disbursements or counsel for the sellers, all of which
shall be paid by the sellers of Registrable Securities.
(b) Other Expenses. To the extent the Company is not required to pay
Registration Expenses, each holder of securities included in any registration
will pay those Registration Expenses allocable to the holder's securities so
included, and any Registration Expenses not allocable will be borne by all
sellers in proportion to the number of securities each registers. Furthermore,
the Stockholders hereby agree amongst themselves that any Registration Expenses
or other cost and expenses in connection with an S-4 Registration or the Demand
Registration not required to be paid by the Company that are borne by the
holders of the Registrable Securities in accordance with the previous sentence,
shall be shared pro rata among the Investor Groups that are exercising or have
previously exercised their right to a Parent Conversion, including, to the
extent necessary, subsequent reimbursement by Investors who have previously
exercised a Parent Conversion and requested an S-4 Registration to Investors
then exercising a Parent Conversion and requesting an S-4 Registration.
Section 9. Indemnification.
(a) Indemnification by Company. In the event of any registration of Registrable
Securities under the Securities Act pursuant to this Agreement, to the full
extent permitted by law, the Company agrees to indemnify each holder of
Registrable Securities, its officers, directors, trustees, partners, employees,
advisors and agents, and each Person who controls the holder (within the meaning
of the Securities Act and the Exchange Act) against all losses, claims, damages,
liabilities and expenses caused by any untrue or allegedly untrue statement of
material fact contained in any registration statement under which such
Registrable Securities were registered under the Securities Act, any prospectus
or preliminary prospectus contained therein or any omission or alleged omission
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which such
statements were made, except to the extent the untrue or allegedly untrue
statement or omission or alleged omission resulted from information that the
holder furnished in writing to the Company expressly for use therein. In
connection with a firm or best efforts underwritten offering, to the extent
customarily required by the managing underwriter, the Company will indemnify the
underwriters, their officers and directors and each Person who controls the
underwriters (within the meaning of the Securities Act and the Exchange Act), to
the extent customary in such agreements.
(b) Indemnification by Holders of Securities. In connection with any
registration statement, each participating holder of Registrable Securities will
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any registration statement or
prospectus and each holder agrees to indemnify, to the extent permitted by law,
the Company, its directors, officers, trustees, partners, employees, advisors
and agents, and each Person who controls the Company (within the meaning of the
Securities Act and the Exchange Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or allegedly untrue statement
of a material fact or any omission or alleged omission to state a material fact
required to be stated in the registration statement or prospectus or any
amendment thereof or supplement thereto necessary to make the statements therein
not misleading in light of the circumstances under which such statements were
made, but only to the extent that the untrue or allegedly untrue statement or
omission or alleged omission is contained in or omitted from any information or
affidavit the holder furnished in writing to the Company expressly for use
therein and only in an amount not exceeding the net proceeds received by the
holder with respect to securities sold pursuant to such registration statement.
In connection with a firm or best efforts underwritten offering, to the extent
customarily required by the managing underwriter, each participating holder of
Registrable Securities will indemnify the underwriters, their officers and
directors and each Person who controls the underwriters (within the meaning of
the Securities Act and the Exchange Act), to the extent customary in such
agreements.
(c) Indemnification Proceedings. Any Person entitled to indemnification under
this Agreement will (i) give prompt notice to the indemnifying party of any
claim with respect to which it seeks indemnification and (ii) unless in the
indemnified party's reasonable judgment a conflict of interest may exist between
the indemnified and indemnifying parties with respect to the claim, permit the
indemnifying party to assume the defense of the claim with counsel reasonably
satisfactory to the indemnified party. If the indemnifying party does not assume
the defense, the indemnifying party will not be liable for any settlement made
without its consent (but that consent may not be unreasonably withheld). No
indemnifying party will consent to entry of any judgment or will enter into any
settlement that does not include as an unconditional term thereof the claimant's
or plaintiff's release of the indemnified party from all liability concerning
the claim or litigation. An indemnifying party who is not entitled to or elects
not to assume the defense of a claim will not be under an obligation to pay the
fees and expenses of more than one counsel for all parties indemnified by the
indemnifying party with respect to the claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between the
indemnified party and any other indemnified party with respect to the claim, in
which event the indemnifying party shall be obligated to pay the fees and
expenses of no more than one additional counsel for the indemnified parties.
(d) Contribution. If the indemnification provided for in Section 9(a) or (b) is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party
thereunder shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or expenses in
such proportion as is appropriate to reflect the relative fault of the Company
and the participating holders of Registrable Securities in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the participating holders of Registrable
Securities shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the participating holders of Registrable Securities and the parties'
relative intent and knowledge.
The parties hereto agree that it would not be just and equitable if
contribution pursuant this Section 9(d) were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding anything herein to the contrary, no participating holder of
Registrable Securities shall be required to contribute any amount in excess of
the amount by which the net proceeds of the offering (before deducting expenses,
if any) received by such participating holder exceeds the amount of any damages
that such participating holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
Section 10 . Rule 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder, and it will take such
further action as any Investor Group Designee reasonably may request, all to the
extent required from time to time, to enable such holders of Registrable
Securities to sell such Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, or (ii) any similar rule or regulation hereafter
adopted by the SEC. Upon the request of any holder of Registrable Securities,
the Company will deliver to such holder a written statement as to whether it has
complied with Rule 144's or any successor rule's requirements. The Company also
covenants that in such event it will provide all such information and it will
take such further action as any holder of Registrable Securities reasonably may
request to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of Rule 144 under
the Securities Act or any successor rule requirements.
Section 11 . Participation in Underwritten Registration. No Person may
participate in any underwritten registration without (a) agreeing to sell
securities on the basis provided in underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements (the holders of the
Registrable Securities in a Demand Registration pursuant to Section 4(d) and the
Company in a Piggyback Registration pursuant to Section 5(d)), and (b)
completing and executing all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required by the underwriting
arrangements.
Section 12. Miscellaneous.
(a) Recapitalizations, Exchanges, etc. The provisions of this Agreement shall
apply to the full extent set forth herein with respect to (i) the shares of
Common Stock held by the Stockholders and acquired pursuant to the transactions
contemplated by the Investment Agreement (or their transferees), (ii) any and
all shares of voting common stock of the Company into which the shares of such
Common Stock are converted, exchanged or substituted in any recapitalization or
other capital reorganization by the Company and (iii) any and all equity
securities of the Company or any successor or assign of the Company (whether by
merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in conversion of, in exchange for or in substitution of, such shares
of Common Stock and shall be appropriately adjusted for any stock dividends,
splits, reverse splits, combinations, recapitalizations and the like occurring
after the date hereof. The Company shall use its commercially reasonable efforts
to cause any successor or assign (whether by sale, merger or otherwise) to enter
into a new registration rights agreement with the holders of Registrable
Securities on terms substantially the same as this Agreement as a condition of
any such transaction.
(b) Amendment. This Agreement may be amended or modified only by a written
agreement executed by the Company and the Stockholders.
(c) Attorneys' Fees. In any legal action or proceeding brought to enforce any
provision of this Agreement, the prevailing party shall be entitled to recover
all reasonable expenses, charges, court costs and attorneys' fees in addition to
any other available remedy at law or in equity.
(d) Benefit of Parties; Assignment. All of the terms and provisions of this
Agreement shall be binding on and inure to the benefit of the parties and their
respective successors and assigns, including, without limitation, any Person to
whom the Investors may transfer any of its Registrable Securities (or any rights
to acquire Registrable Securities); provided any such successor or assignee
shall agree in writing to become bound by the terms of this Agreement by
executing and delivering a Joinder Agreement.
(e) Captions. The captions of the sections and subsections of this Agreement are
solely for convenient reference and shall not be deemed to affect the meaning or
interpretation of any provision of this Agreement.
(f) Cooperation. The parties agree that after execution of this Agreement they
will from time to time, upon the request of any other party and without further
consideration, execute, acknowledge and deliver in proper form any further
instruments and take such other action as any other party may reasonably require
to carry out effectively the intent of this Agreement.
(g) Counterparts; Facsimile Execution. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same agreement.
Facsimile execution and delivery of this Agreement shall be legal, valid and
binding execution and delivery for all purposes.
(h) Entire Agreement. This Agreement contains the entire understanding of the
parties with respect to the subject matter of this Agreement and supersedes all
prior agreements and understandings between the parties with respect thereto.
There are no promises, covenants or undertakings other than those expressly set
forth or provided for in this Agreement.
(i) Governing Law. The internal law of the Commonwealth of Virginia will govern
the interpretation, construction, and enforcement of this Agreement and all
transactions and agreements contemplated hereby, notwithstanding any state's
choice of law rules to the contrary.
(j) No Inconsistent Agreements. Except with respect to the rights granted under
the Existing Registration Rights Agreements and the Warrant Registration Rights
Agreement, the Company represents and warrants that it has not granted to any
Person the right to request or require the Company to register any securities
issued by the Company other than the rights contained herein. Except with the
prior written consent of the holders of Registrable Securities, the Company will
not enter into any agreement with respect to its securities that shall grant to
any Person registration rights that in any way conflict with or are prior in
right to the rights provided under this Agreement. The parties to this Agreement
acknowledge and agree that it is their intent that this Agreement be consistent
with the terms of the Existing Registration Rights Agreements and that the
Company have no obligation under this Agreement which conflicts with its
obligations under the Existing Registration Rights Agreements. To that end,
notwithstanding anything to the contrary contained in this Agreement, to the
extent that any of the provisions of this Agreement conflict with any of the
provisions of the Existing Registration Rights Agreements, the Company shall not
be obligated to comply with its obligations under the conflicting provisions of
this Agreement until it can do so without violating the provisions of the
Existing Registration Rights Agreements.
(k) Notices. All notices, requests, demands, or other communications that are
required or may be given pursuant to the terms of this Agreement shall be in
writing and delivery shall be deemed sufficient in all respects and to have been
duly given on the date of service if delivered personally to the party to whom
notice is to be given, or upon receipt if mailed by first class mail, return
receipt requested, postage prepaid, and properly addressed to the addresses of
the parties set forth on the signature pages hereto or in the Joinder Agreement
or to such other address(es) as the respective parties hereto shall from time to
time designate to the other(s) in writing.
(l) Specific Performance. Each of the parties agrees that damages for a breach
of or default under this Agreement would be inadequate and that in addition to
all other remedies available at law or in equity that the parties and their
successors and assigns shall be entitled to specific performance or injunctive
relief, or both, in the event of a breach or a threatened breach of this
Agreement.
(m) Validity of Provisions. Should any part of this Agreement for any reason be
declared by any court of competent jurisdiction to be invalid, that decision
shall not affect the validity of the remaining portion, which shall continue in
full force and effect as if this Agreement had been executed with the invalid
portion eliminated, it being the intent of the parties that they would have
executed the remaining portion of the Agreement without including any part or
portion that may for any reason be declared invalid.
[remainder of page intentionally left blank]
SEPARATE SIGNATURE PAGE
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
MOTIENT CORPORATION
By: /s/Gary M. Parsons
Name: Gary M. Parsons
Title: Chairman
Address for Notices:
Motient Corporation
10802 Parkridge Boulevard
Reston, Virginia 20191-5416
Fax: (703) 758-6134
Attention: Randy S. Segal, Esq.
Senior Vice President and
General Counsel
SEPARATE SIGNATURE PAGE
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
INVESTOR GROUP 1:
TELCOM SATELLITE VENTURES INC.
By: /s/Rahul Prakash
Name: Rahul Prakash
Title: President
Address for Notices to the Investors in
Investor Group 1:
Telecom Satellite Ventures Inc.
c/o Telcom Ventures, L.L.C.
211 North Union Street
Suite 300
Alexandria, Virginia 22314
Fax: (703)706-3801
Attention: Hal Perkins, Esq.
General Counsel
SEPARATE SIGNATURE PAGE
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
INVESTOR GROUP 2:
COLUMBIA SPACE (QP), INC.
By: /s/James B. Fleming
Name: James B. Fleming
Title: President
COLUMBIA SPACE (A1), INC.
By: /s/James B. Fleming
Name: James B. Fleming
Title: President
COLUMBIA SPACE PARTNERS, INC.
By: /s/James B. Fleming
Name: James B. Fleming
Title: President
SEPARATE SIGNATURE PAGE
REGISTRATION RIGHTS AGREEMENT
Address for Notices to the
Investors in Investor Group 2:
Columbia Space (QP), Inc.
211 North Union Street
Suite 300
Alexandria, Virginia 22314
Attention: James Fleming
Tel: (703)519-3000
Fax: (703)519-3028
with a copy to:
Edwards & Angell, LLP
101 Federal Street
Boston, MA 02100
Attention: Stephen Meredith, Esq.
Tel. (617)951-2233
Fax: (888)325-9120
SEPARATE SIGNATURE PAGE
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
INVESTOR GROUP 3:
SPECTRUM SPACE EQUITY
INVESTORS IV, INC.
By: /s/Kevin J. Maroni
Name: Kevin J. Maroni
Title: Chairman and CEO
SPECTRUM SPACE IV PARALLELL, INC.
By: /s/Kevin J. Maroni
Name: Kevin J. Maroni
Title: Chairman and CEO
SPECTRUM SPACE IV MANAGERS', INC.
By: /s/Kevin J. Maroni
Name: Kevin J. Maroni
Title: Chairman and CEO
SEPARATE SIGNATURE PAGE
REGISTRATION RIGHTS AGREEMENT
Address for Notices to the Investors in
Investor Group 3:
Spectrum Space Equity Investors IV, Inc.
One International Place
29th Floor
Boston, MA 82110
Attention: Kevin Maroni
Tel: (617)464-4600
Fax: (617)464-4601
with a copy to:
Edwards & Angell, LLP
101 Federal Street
Boston, MA 02100
Attention: Stephen Meredith, Esq.
Tel: (617)951-2233
Fax: (888)325-9120
EXHIBIT A
FORM OF JOINDER AGREEMENT
JOINDER AGREEMENT
This Joinder Agreement dated as of ___________, 200_ is executed and
delivered pursuant to Section 11(d) of the Registration Rights Agreement dated
as of June ___, 2000 (the "Registration Rights Agreement") by and among Motient
Corporation (the "Company") and the stockholders party thereto (the
"Stockholders"). Capitalized terms used by not defined herein shall have the
respective meanings assigned to such terms in the Registration Rights Agreement.
The undersigned, _______________ (the "New Stockholder") has acquired
shares of Common Stock of the Company and therefore desires to become a party to
the Registration Rights Agreement on the terms set forth in the Registration
Rights Agreement. Accordingly, the New Stockholder hereby agrees as follows:
1. By its signature below, the New Stockholder shall be a party
to the Registration Rights Agreement fully and completely the same as if its
signature were affixed to the Registration Rights Agreement.
2. The New Stockholder is a Stockholder under the Registration
Rights Agreement with all the rights of obligations of a Stockholder thereunder.
3. This Joinder Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia.
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement
to be executed and delivered as of the date first above written.
[NEW STOCKHOLDER]
By:_______________________________
Name:
Title:
Address for Notices:
=================
Fax:
Attention:
ACCEPTED:
MOTIENT CORPORATION
By: _______________________________
Name:
Title: