EXHIBIT 10.43
MOTIENT CORPORATION
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "AGREEMENT") is dated as of
November 12, 2004 and is by and among MOTIENT CORPORATION, a Delaware
corporation, with its principal office at 300 Knightsbridge Pkwy., Lincolnshire,
IL 60069 (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 common stock, $0.01 par value per share, of the Company (including any
securities into which or for which such shares may be exchanged for, or
converted into, pursuant to any stock dividend, stock split, stock combination,
recapitalization, reclassification, reorganization or other similar event the
"COMMON STOCK"), at an aggregate purchase price of up to $131,580,429.13 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"), pursuant to
which the Company shall register for resale the Shares and the Warrant Shares
(as 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:
(a) "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 with respect to Tudor, in addition to the foregoing,
the term "Affiliate" shall also include the Related Entities, 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 a Person.
(b) "BOARD" means the board of directors of the Company.
(c) "CLOSING DATE" means the date hereof.
(d) "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.
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(e) "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, and all of the rules and regulations promulgated thereunder.
(f) "FULLY DILUTED COMMON STOCK" means the outstanding Common
Stock and the shares of Common Stock issued or issuable upon exercise of
Warrants (assuming full exercise).
(g) "MAJORITY PURCHASERS" has the meaning set forth in Section
8.8.
(h) "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.
(i) "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.
(j) "RELATED ENTITIES" includes, with respect to Tudor, any
entities for which any of the Tudor Entities or its affiliates serve as a
general partner and/or investment advisor or in a similar capacity, and all
mutual funds or other pooled investment vehicles or entities under the control
or management of the Tudor Entities or the general partner or investment advisor
thereof, or any affiliate of any of them. For purposes of this Agreement, (a)
"TUDOR ENTITIES" means each of the following: any entity for which Tudor
Investment Corporation or an Affiliate thereof acts as general partner or
investment adviser, Tudor Investment Corporation, Tudor Group Holdings LLC,
their respective Affiliates, or any Affiliate or Affiliated Group of Tudor
Investment Corporation and/pr Tudor Group Holdings LLC, and (b) with respect to
the Tudor Entities, "Affiliated Group" has the meaning given to it in Section
1504 of the Internal Revenue Code of 1986, as amended, and in addition includes
any analogous combined, consolidated, or unitary group, as defined under any
applicable state, local or foreign income tax law.
(k) "RULE 144" means Rule 144 promulgated under the Securities
Act and any successor or substitute rule, law or provision.
(l) "SEC" means the Securities and Exchange Commission.
(m) "SECURITIES ACT" means the Securities Act of 1933, as
amended, and all of the rules and regulations promulgated thereunder.
(n) "SHARES" means the shares of Common Stock issued and sold
by the Company to the Purchasers hereunder.
(o) "SHARE PRICE" means $8.57 per Share.
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(p) "TRANSACTION DOCUMENTS" means, collectively, the
Registration Rights Agreement and the Warrants.
(q) "TRANSFER AGENT INSTRUCTIONS" means the Irrevocable
Transfer Agent Instructions, in substantially the form of EXHIBIT B, executed by
the Company and delivered to and acknowledged in writing by the Company's
transfer agent.
(r) "TUDOR" means, collectively, The Raptor Global Portfolio,
Ltd., The Tudor BVI Global Portfolio, Ltd., The Altar Rock Fund L.P. and Tudor
Proprietary Trading, L.L.C.
(s) "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 C.
(t) "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 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. The
aggregate purchase price payable by all Purchasers, severally and not jointly,
to the Company for all of the Shares shall be $131,580,429.13.
2.2 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 twenty-five percent (25%) of the number of Shares purchased by such
Purchaser at Closing at an exercise price equal to the Share Price, which shall
be appropriately adjusted for any recapitalizations, stock combinations, stock
dividends, stock splits and the like which occur after the Closing Date.
2.3 CLOSING. The closing of the transactions contemplated
under this Agreement (the "CLOSING") shall take place at 10:00 am (Eastern Time)
at the offices of Covington & Burling, 1201 Pennsylvania Avenue, NW, Washington,
D.C. 20004, 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 2.2
hereof, against payment of the purchase price by wire transfer of immediately
available funds to such account as the Company shall designate in writing.
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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
(as defined in Section 3.18 below) 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 (i) 100,000,000 shares of Common Stock, of which 34,562,901
shares were outstanding as of the date hereof, and (ii) 5,000,000 shares of
preferred stock, of which no shares are outstanding as of the date hereof. 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. Except 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
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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 Common Stock issuable upon execution of this Agreement and upon exercise in
full of the Warrants (assuming the Warrants vest in full).
3.6 FINANCIAL STATEMENTS. The Company has furnished to the
Purchasers, and attached as Schedule 3.6 to the Disclosure Schedule, true and
complete copies of the unaudited consolidated balance sheet of the Company and
the Subsidiaries as of June 30, 2004 (the "BALANCE SHEET") and the related
consolidated income statement, consolidated statement of cash flows and
consolidated statement of stockholders' equity of the Company for the six (6)
months then ended. All of the financial statements described above are
hereinafter referred to, collectively, as the "FINANCIAL STATEMENTS". 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, subject, to normal year-end adjustments (which
individually and in the aggregate are not material) and to the absence of
footnotes thereto, 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 periods indicated therein.
3.7 SEC DOCUMENTS. The Company has furnished to the Purchasers
true and complete copies of the following reports of the Company (collectively,
the "SEC DOCUMENTS"): (i) the annual report on Form 10-K for the year ended
December 31, 2003 and (ii) quarterly reports on Form 10-Q for the periods ended
March 31, 2004 and June 30, 2004. As of their respective filing dates, the SEC
Documents complied in all material respects with the requirements of the
Exchange Act, and the rules and regulations promulgated thereunder, and none of
the SEC Documents contain any untrue statement of a material fact or omitted 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 SEC Documents 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 SEC Documents 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. When filed with the SEC, the
Company covenants that its quarterly report on Form 10-Q for the period ended
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September 30, 2004 (a) will comply in all material respects with the
requirements of the Exchange Act, and the rules and regulations promulgated
thereunder, and will 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, (b) will include financial statements of the Company
that will 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, and (c) will include, to the extent required by
the rules and regulations of the SEC as 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.
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 and
(b) any required state "blue sky" law filings in connection with the
transactions contemplated hereunder or under the Transaction Documents, 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 and the Warrant 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 and the Warrant Shares, do not and will not (i) conflict
with or violate any provision of the 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
each case 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
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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 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 the broker fee (the
"BROKER FEE") the Company will pay to Tejas Securities Group, Inc. ("TEJAS")
upon the Closing in an amount not to exceed $5,182,620, 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. Except as set forth on Schedule
3.12 to the Disclosure Schedule, 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 SEC Documents.
3.13 NO UNDISCLOSED LIABILITIES; INDEBTEDNESS. Since the date
of the Balance Sheet, 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 Balance Sheet, 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,
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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.
3.18 SUBSIDIARIES; JOINT VENTURES. Except for the subsidiaries
listed on Schedule 3.18 to the Disclosure Schedule (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 SEC
Documents, 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,
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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, 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 SEC
Documents 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.
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(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, the Warrants or the
Warrant 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, the
Warrants or the Warrant Shares as contemplated hereby or (ii) cause the offering
or issuance of the Shares, the Warrants or the Warrant 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. None of the Company or any of the Subsidiaries
is, or is an Affiliate of, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. 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, the Warrants or the Warrant 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.
3.22 MATERIAL CHANGES. Except as set forth on Schedule 3.22 to
the Disclosure Schedule, since the date of the Balance Sheet, 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 SEC Documents; (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
10
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.
3.23 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 SEC Documents, 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
SEC Documents.
3.24 TRANSACTIONS WITH AFFILIATES AND EMPLOYEES. Except as set
forth in the SEC Documents, 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.
11
3.25 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.
3.26 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).
3.27 INTERNAL ACCOUNTING CONTROLS. Except as disclosed in the
SEC Documents, 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 Sarbanes-Oxley Act of 2002, as amended.
3.28 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
12
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.
3.29 DEBT OBLIGATIONS. No amounts are due and owing under that
certain Amended and Restated Credit Term Facility dated as of January 27, 2003,
by and among Motient Communications Inc. and the lenders thereto.
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.
4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. Such Purchaser is
acquiring the Shares, the Warrants and the Warrant 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 an "accredited investor" as 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, the Warrants or the Warrant
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, the Warrant and the Warrant 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, the Warrants and the Warrant 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
13
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.
4.8 DISCLOSURE OF INFORMATION. Such Purchaser believes it has
received all the information it considers necessary or appropriate for deciding
whether to purchase the Shares, the Warrants and the Warrant 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, the Warrants and the Warrant Shares and the business,
properties, prospects and financial condition of the Company.
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.
14
(c) The sale of the Shares and the issuance of the
Warrants (and the Warrant 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 Hart-Scott-Rodino 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.
(e) Such Purchaser shall have received from Andrews
Kurth LLP, outside counsel to the Company, an opinion addressed to such
Purchaser, dated the Closing Date and substantially in the form of EXHIBIT A
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 Common Stock and
the number of Warrant Shares, respectively, set forth opposite such Purchaser's
name on Schedule 1 hereto.
(h) The Company, through its wholly-owned subsidiary
Motient Ventures Holding Inc. ("INVESTMENT SUB"), shall have entered into a
binding agreement with Mobile Satellite Ventures, L.P. ("MSV") pursuant to which
the Company, through Investment Sub, shall increase its equity ownership
interest in MSV at a pre-money valuation of MSV not to exceed $1.0 billion on a
fully-diluted basis (including the conversion of all outstanding convertible
indebtedness of MSV)(the "MSV TRANSACTION"), and the agreements relating to the
MSV Transaction shall contain standard representations, warranties and covenants
acceptable to the Board, and the closing of the MSV Transaction shall occur
contemporaneously with the Closing.
(i) 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 By-Laws and resolutions of the Board approving this
Agreement, the Transaction Documents and the agreements for the MSV Transaction
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.
15
(j) 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.
(k) Such Purchaser shall have received duly executed
Transfer Agent Instructions acknowledged by the Company's transfer agent.
(l) 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 of EXHIBIT D hereto.
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 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 and the issuance of the
Warrants (and the Warrant 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.
16
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 or
the Warrant 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 (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 and the Warrant 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 REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR
SOLD IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, REGISTRATION UNDER SAID ACT."
(b) The legend set forth in Section 6.2(a) shall be
removed from the certificates evidencing the Shares and the Warrant Shares, (i)
following any sale of such Shares or Warrant Shares pursuant to Rule 144 or any
effective registration statement, or (ii) if such Shares or Warrant Shares are
eligible for sale under Rule 144(k) (and the holder of such Shares or Warrant
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
17
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 Commission) (and
the holder of such Shares or Warrant 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 or the Warrant
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 or any Warrant 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
or Warrant Shares issued with a restrictive legend, deliver or cause to be
delivered to such Purchaser a certificate representing such Shares or Warrant
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 or Warrant 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. Except to the extent required by applicable
laws, rules, regulations or stock exchange requirements, neither (i) 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,
18
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 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 and the Warrant Shares under Rule 144. The Company further
covenants that it will take such further action as any holder of Shares or
Warrant 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 ADDITIONAL ISSUANCE. In addition to the sale of the Shares
and the issuance of the Warrants contemplated herein, the Company may issue up
to $50,000,000 of shares of Common Stock at a purchase price per Share not less
than the Share Price to its existing stockholders (other than the Purchasers,
who waive their rights to participate in such rights offering as set forth in
Section 6.11 hereof) pursuant to a follow-on rights offering (the "RIGHTS
OFFERING"). Other than the Rights Offering, the Company shall not issue any
capital stock or other securities in connection with the raising of additional
financing or capital until all of the Shares have been registered for resale
pursuant to an effective registration statement and otherwise in accordance with
the terms set forth in the Registration Rights Agreement; provided; however,
that the foregoing shall not prohibit the Company from issuing shares of Common
Stock or securities convertible into or exercisable for Common Stock: (i) upon
conversion of the Warrants or other securities issuable upon conversion of
securities outstanding on the date hereof, (ii) to employees, consultants,
officers or directors of the Company pursuant to stock option, stock purchase or
stock bonus plans or agreements or other stock incentive plans or arrangements
approved by the Board, which are in existence as of the date hereof, (iii)
pursuant to the acquisition of another business entity or business segment of
any such entity by the Company by merger, purchase of substantially all the
assets or other reorganization or corporate partnering agreement if such
issuance is approved by the Board, (iv) in connection with any stock split,
stock dividend or recapitalization of the Company, and (v) in connection with
lease lines, bank loans, corporate partnering or other similar transactions,
provided such issuances described in this clause (v) are not primarily for the
purpose of equity financing and are approved by the Board.
6.7 USE OF PROCEEDS. The Company covenants and agrees that all
of the proceeds from the sale of the Shares shall be used by the Company to
effect the MSV Transaction, pay the Company's fees and expenses incurred in
connection with this offering, pay the Company's fees and expenses incurred by
the Company in connection with the MSV Transaction and pay the Broker Fee to
Tejas.
19
6.8 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 or the Warrant Shares to the Purchasers.
6.9 PRE-EMPTIVE RIGHT. Each Purchaser shall have the right to
purchase a pro rata share of New Securities (as defined in this Section 6.9)
that the Company may, from time to time, propose to sell and issue. Each
Purchaser's pro rata share, for purposes of this right, is the ratio of the
number of shares of Fully Diluted Common Stock owned by such holder immediately
prior to the issuance of New Securities to the total number of shares of Fully
Diluted Common Stock outstanding immediately prior to the issuance of New
Securities. Each Purchaser shall also have the right of over-allotment to
purchase additional New Securities set forth in paragraph (b) of this Section
6.9. This pre-emptive right shall be subject to the following provisions:
(a) "NEW SECURITIES" shall mean any capital stock
(including Common Stock) of the Company whether now authorized or not, and any
rights, options or warrants to purchase such capital stock, and securities of
any type whatsoever that are, or may become, convertible into or exchangeable
for capital stock; provided that the term "New Securities" does not include
securities issued: (i) upon conversion of the Warrants or other securities
issuable upon conversion of securities outstanding on the date hereof, (ii) to
employees, consultants, officers or directors of the Company pursuant to stock
option, stock purchase or stock bonus plans or agreements or other stock
incentive plans or arrangements approved by the Board, which are in existence as
of the date hereof, (iii) pursuant to the acquisition of another business entity
or business segment of any such entity by the Company by merger, purchase of
substantially all the assets or other reorganization or corporate partnering
agreement if such issuance is approved by the Board, (iv) in connection with any
stock split, stock dividend or recapitalization of the Company, (v) in
connection with lease lines, bank loans, corporate partnering or other similar
transactions, provided such issuances described in this clause (v) are not
primarily for the purpose of equity financing and are approved by the Board,
(vi) to directors of the Company as compensation for their service as directors
pursuant to a restricted stock plan to be implemented and approved by the
stockholders of the Company; provided that such issuance of restricted stock
shall not exceed 100,000 shares per year; and (vii) pursuant to the Rights
Offering.
(b) In the event the Company proposes to undertake an
issuance of New Securities, it shall give each Purchaser certified written
notice of its intention, describing the type of New Securities, their price and
the general terms upon which the Company proposes to issue the same. Each
Purchaser shall have thirty (30) days after any such notice is mailed or
delivered to agree to purchase all or any portion of such Purchaser's pro rata
share of such New Securities for the price and upon the terms specified in the
notice by giving written notice to the Company and stating therein the quantity
of New Securities to be purchased. Each Purchaser shall have the right of
over-allotment such that if any Purchaser fails to exercise its right under this
Section 6.9 to purchase its full pro rata share of New Securities, the other
Purchasers may purchase the portion of such Purchaser's remaining portion on a
pro rata share within ten (10) days from the date such non-purchasing Purchaser
fails to exercise its right hereunder to purchase its full pro rata share of New
Securities.
20
(c) In the event the Purchasers fail to exercise the
pre-emptive right within such thirty (30) day period and after the expiration of
the ten (10) day period for the exercise of the over-allotment provisions of
this Section 6.9, the Company shall have ninety (90) days thereafter to sell the
New Securities respecting which the Purchasers' pre-emptive right set forth in
this Section 6.9 was not exercised, at a price and upon terms no more favorable
to the purchasers thereof or to the Company than specified in the Company's
notice to the Purchasers pursuant to Section 6.9(b) above. In the event the
Company has not sold the New Securities respecting which the Purchasers'
preemptive right set forth in the Section 6.9 was not exercised within such
ninety (90) day period, the Company shall not thereafter issue or sell any New
Securities, without first again offering such securities to the Purchasers in
the manner provided in Section 6.9(b) above.
6.10 WAIVER OF PRE-EMPTIVE RIGHTS IN PRIOR AGREEMENTS. To the
extent any Purchaser has a pre-emptive right pursuant to Section 6.9 of the
Common Stock Purchase Agreement dated April 7, 2004 by and among the Company and
the Purchasers listed on Schedule 1 thereto and/or Section 6.9 of the Securities
Purchase Agreement dated July 1, 2004 by and among the Company and the
Purchasers listed on Schedule 1 thereto to purchase the Company's securities on
the terms set forth in such agreements, each such Purchaser hereby waives such
right with respect to the issuance of (a) the Shares, (b) the Warrants, (c) the
Warrant Shares or (d) Common Stock in the Rights Offering.
6.11 WAIVER OF PARTICIPATION IN RIGHTS OFFERING. Each
Purchaser hereby waives as to itself and its Affiliates the right to participate
in the Rights Offering.
6.12 RESERVATION OF COMMON STOCK FOR ISSUANCE; LISTING OF
SHARES. The Company agrees to reserve from its duly authorized capital stock the
total number of shares of Common Stock issuable upon execution of this Agreement
and upon the exercise in full of the Warrants. 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 Shares and the Warrant
Shares for trading on NASDAQ.
6.13 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.
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,
21
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 8. 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 8. 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.
(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.
22
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 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 8,
all parties shall always retain the right to pursue and obtain injunctive relief
in addition to any other rights or remedies hereunder.
8. MISCELLANEOUS PROVISIONS.
8.1 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.
8.2 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.
8.3 NOTICES.
23
(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 8.3 if sent with return receipt
requested to the electronic mail address specified by the receiving party either
in this Section 8.3 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.
(b) All correspondence to the Company shall be
addressed as follows:
Motient Corporation 3
00 Knightsbridge Parkway
Lincolnshire, IL 60069
Attention: Christopher Downie,
Executive Vice President and Chief Operating Officer,
Telecopier: (847) 478-4810,
Chris.Downie@Motient.com,
with copies to:
Motient Corporation
300 Knightsbridge Parkway
Lincolnshire, IL 60069
Attention: General Counsel
Telecopier: (847) 478-4810
Robert.Macklin@Motient.com
-and-
Andrews Kurth LLP
450 Lexington Avenue
New York, New York 10017
Attention: Paul Silverstein, Esq.
Telecopier: (212) 850-2929
psilverstein@andrewskurth.com
(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.
8.4 CAPTIONS. The captions and paragraph headings of this
Agreement are solely for the convenience of reference and shall not affect its
interpretation.
8.5 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.
24
8.6 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.
8.7 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.
8.8 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
and Warrant 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.
8.9 SURVIVAL. The respective representations and warranties
given by the parties hereto 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 hereunder, without regard to any
investigation made by any party. The respective covenants and agreements agreed
to by a party hereto shall survive the Closing Date and the consummation of the
transactions contemplated herein in accordance with their respective terms and
conditions.
8.10 ENTIRE AGREEMENT. This Agreement constitutes 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.
8.11 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.
8.12 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 Article 7 of this Agreement.
25
8.13 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.
[Signature Pages Follow]
26
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
/S/ CHRISTOPHER DOWNIE
----------------------
Christopher Downie,
Executive Vice President and Chief
Operating Officer
PURCHASERS:
/S/ JOHN C. WATERFALL
-------------------------------------------
Name: John C. Waterfall
/S/ EDWIN H. MARGENS
-------------------------------------------
Name: Edwin H. Margens
/S/ KURT J. RECHNER
-------------------------------------------
Name: Kurt J. Rechner Rollover IRA
/S/ KURT J. RECHNER /S/ MELANI RECHNER
-------------------------------------------
Name: Kurt Rechner and Melani Rechner
/S/ KURT J. RECHNER
-------------------------------------------
Name: Kurt J. Rechner 401K Plan and Trust
/S/ EDWARD W. ROSE, III
-------------------------------------------
Name: Edward W. Rose, III
/S/ MORRIS D. WEISS
-------------------------------------------
Name: Morris D. Weiss IRA Rollover
/S/ MORRIS D. WEISS /S/ LAUREN C. RAVKIND
-------------------------------------------
Name: Morris D. Weiss and Lauren C. Ravkind
/S/ GEORGE W. HAYWOOD
-------------------------------------------
Name: George W. Haywood
27
Entity Name: AHAB PARTNERS, L.P.
By:
-----------------------------------------
By: /S/ JONATHAN GALLEN
----------------------------------------
Name: Jonathan Gallen
Title: General Partner
Entity Name: AHAB INTERNATIONAL, LTD.
By:
-----------------------------------------
By: /S/ JONATHAN GALLEN
----------------------------------------
Name: Jonathan Gallen
Title: Director
Entity Name: TRACER CAPITAL PARTNERS L.P.
By:
----------------------------------------
By: /S/ RILEY MCCORMACK
----------------------------------------
Name: Riley McCormack
Title: Managing Member of the Investment
Manager
Entity Name: TRACER CAPITAL PARTNERS QP
L.P.
By:
----------------------------------------
By: /S/ RILEY MCCORMACK
----------------------------------------
Name: Riley McCormack
Title: Managing Member of the Investment
Manager
Entity Name: TRACER CAPITAL OFFSHORE
FUND LTD.
By:
----------------------------------------
By: /S/ RILEY MCCORMACK
----------------------------------------
Name: Riley McCormack
Title: Managing Member of the Investment
Manager
28
Entity Name: GEORGE KAISER FAMILY
FOUNDATION
By:
----------------------------------------
By: /S/ FREDERIC DORWART
----------------------------------------
Name: Frederic Dorwart
Title: President and Trustee
Entity Name: CARDINAL PARTNERS 2000, L.P.
By:
----------------------------------------
By: /S/ DEBBIE CRADY
----------------------------------------
Name: Debbie Crady
Title: Vice President of G.P., Cardinal
Investment Company, Inc.
Entity Name: CARDINAL PARTNERS, L.P.
By:
----------------------------------------
By: /S/ DEBBIE CRADY
----------------------------------------
Name: Debbie Crady
Title: Vice President of G.P., Cardinal
Investment Company, Inc.
Entity Name: CLEARVIEW CAPITAL PARTNERS,
L.P.
By: CLEARVIEW CAPITAL MANAGEMENT, LLC
AS INVESTMENT ADVISOR
By: /S/ RICHARD BARRARA
----------------------------------------
Name: Richard Barrara
Title: Managing Director
29
Entity Name: CLEARVIEW INSTITUTIONAL
PARTNERS, L.P.
By: CLEARVIEW CAPITAL MANAGEMENT, LLC
AS INVESTMENT ADVISOR
By: /S/ RICHARD BARRARA
----------------------------------------
Name: Richard Barrara
Title: Managing Director
Entity Name: CLEARVIEW CAPITAL MASTER
FUND, LTD.
By: CLEARVIEW CAPITAL MANAGEMENT, LLC
AS INVESTMENT ADVISOR
By: /S/ RICHARD BARRARA
----------------------------------------
Name: Richard Barrara
Title: Managing Director
Entity Name: GCM LITTLE ARBOR MASTER
FUND, LTD.
By: CLEARVIEW CAPITAL MANAGEMENT, LLC
AS INVESTMENT ADVISOR
By: /S/ RICHARD BARRARA
----------------------------------------
Name: Richard Barrara
Title: Managing Director
Entity Name: MWV EMPLOYEE RETIREMENT
PLAN GROUP TRUST
By:
----------------------------------------
By: /S/ JOHN RAPHAEL
----------------------------------------
Name: John Raphael
Title: Trustee
30
Entity Name: XERION PARTNERS II MASTER
FUND LIMITED
By:
----------------------------------------
By: /S/ DANIEL J. ARBESS
----------------------------------------
Name: Daniel J. Arbess
Title:
----------------------------------------
Entity Name: OZ MASTER FUND, LTD.
By: OZ MANAGEMENT, L.L.C.
AS INVESTMENT ADVISOR
By: /S/ DAN S. OCH
----------------------------------------
Name: Dan S. Och
Title: Senior Managing Member
Entity Name: OZ MAC 13 LTD.
By: OZ MANAGEMENT, L.L.C.
AS INVESTMENT ADVISOR
By: /S/ DAN S. OCH
----------------------------------------
Name: Dan S. Och
Title: Senior Managing Member
Entity Name: FLEET MARITIME, INC.
By: OZ MANAGEMENT, L.L.C.
AS INVESTMENT ADVISOR
By: /S/ DAN S. OCH
----------------------------------------
Name: Dan S. Och
Title: Senior Managing Member
Entity Name: ORE HILL HUB FUND LTD.
By:
----------------------------------------
By: /S/ FREDERICK WAHL
----------------------------------------
Name: Frederick Wahl
Title: Managing Partner
31
Entity Name: HIGHLAND EQUITY FOCUS FUND,
L.P.
By: HIGHLAND CAPITAL MANAGEMENT, L.P.
ITS GENERAL PARTNER
By: /S/ JAMES DONDERO
----------------------------------------
Name: James Dondero
Title: President
Entity Name: HIGHLAND CRUSADER OFFSHORE
PARTNERS, L.P.
By: HIGHLAND CAPITAL MANAGEMENT, L.P.
ITS GENERAL PARTNER
By: /S/ JAMES DONDERO
Name: James Dondero
----------------------------------------
Title: President
Entity Name: HIGHLAND EQUITY FUND, L.P.
By: HIGHLAND CAPITAL MANAGEMENT, L.P.
ITS GENERAL PARTNER
By: /S/ JAMES DONDERO
----------------------------------------
Name: James Dondero
Title: President
Entity Name: GREYWOLF CAPITAL PARTNERS
II L.P.
By:
----------------------------------------
By: /S/ WILLIAM TROY
----------------------------------------
Name: William Troy
Title: COO
Entity Name: GREYWOLF CAPITAL OVERSEAS
FUND
By:
----------------------------------------
By: /S/ WILLIAM TROY
----------------------------------------
Name: William Troy
Title: COO
32
Entity Name: YORK CAPITAL MANAGEMENT,
L.P.
By:
----------------------------------------
By: /S/ ADAM J. SEMLER
----------------------------------------
Name: Adam J. Semler
Title: CFO of its General Partner
Entity Name: YORK SELECT, L.P.
By:
----------------------------------------
By: /S/ ADAM J. SEMLER
----------------------------------------
Name: Adam J. Semler
Title: CFO of its General Partner
Entity Name: YORK INVESTMENT LIMITED
By:
----------------------------------------
By: /S/ ADAM J. SEMLER
----------------------------------------
Name: Adam J. Semler
Title: CFO of its Investment Manager
Entity Name: YORK SELECT UNIT TRUST
By:
----------------------------------------
By: /S/ ADAM J. SEMLER
----------------------------------------
Name: Adam J. Semler
Title: CFO of its Investment Manager
33
Entity Name: YORK CREDIT OPPORTUNITIES
FUND, L.P.
By:
----------------------------------------
By: /S/ ADAM J. SEMLER
----------------------------------------
Name: Adam J. Semler
Title: CFO of its General Partner
Entity Name: YORK GLOBAL VALUE PARTNERS,
L.P.
By:
----------------------------------------
By: /S/ ADAM J. SEMLER
----------------------------------------
Name: Adam J. Semler
Title: CFO of its General Partner
Entity Name: YORK/GREEN CAPITAL
PARTNERS, L.P.
By:
----------------------------------------
By: /S/ ADAM J. SEMLER
----------------------------------------
Name: Adam J. Semler
Title: CFO of its General Partner
Entity Name: ROCKBAY CAPITAL
INSTITUTIONAL FUND, LLC
By:
----------------------------------------
By: /S/ ATUL KHANNA
----------------------------------------
Name: Atul Khanna
Title: Investment Manager
Entity Name: ROCKBAY CAPITAL
OFFSHORE FUND, LTD.
By:
----------------------------------------
By: /S/ ATUL KHANNA
----------------------------------------
Name: Atul Khanna
Title: Investment Manager
34
Entity Name: ROCKBAY CAPITAL FUND, LLC
By:
----------------------------------------
By: /S/ ATUL KHANNA
----------------------------------------
Name: Atul Khanna
Title: Investment Manager
Entity Name: THE RAPTOR GLOBAL
PORTFOLIO LTD.
By: TUDOR INVESTMENT CORPORATION
AS INVESTMENT ADVISOR
By: /S/ WILLIAM T. FLAHERTY
----------------------------------------
Name: William T. Flaherty
Title: Managing Director
Entity Name: TUDOR PROPRIETARY TRADING,
L.L.C
By:
----------------------------------------
By: /S/ WILLIAM T. FLAHERTY
----------------------------------------
Name: William T. Flaherty
Title: Managing Director
Entity Name: THE ALTAR ROCK FUND, L.P.
By: TUDOR INVESTMENT CORPORATION
ITS GENERAL PARTNER
By: /S/ WILLIAM T. FLAHERTY
----------------------------------------
Name: William T. Flaherty
Title: Managing Director
Entity Name: THE TUDOR BVI GLOBAL
PORTFOLIO LTD.
By: TUDOR INVESTMENT CORPORATION
AS TRADING ADVISOR
By: /S/ WILLIAM T. FLAHERTY
----------------------------------------
Name: William T. Flaherty
Title: Managing Director
35
Entity Name: THE CATALYST CREDIT
OPPORTUNITY FUND OFFSHORE,
LTD.
By: CATALYST INVESTMENT MANAGEMENT, LLC
ITS MANAGING MEMBER
By: /S/ PETER DRIPPE
----------------------------------------
Name: Peter Drippe
Title: Principal
Entity Name: THE CATALYST CREDIT
OPPORTUNITY FUND, L.P.
By: CATALYST INVESTMENT MANAGEMENT, LLC
ITS MANAGING MEMBER
By: /S/ PETER DRIPPE
----------------------------------------
Name: Peter Drippe
Title: Principal
Entity Name: DCM LIMITED
By: CATALYST INVESTMENT MANAGEMENT, LLC
ITS MANAGING MEMBER
By: /S/ PETER DRIPPE
----------------------------------------
Name: Peter Drippe
Title: Principal
Entity Name: LC CAPITAL MASTER FUND, LTD.
By:
By: /S/ RICHARD F. CONWAY
----------------------------------------
Name: Richard F. Conway
Title: Director
Entity Name: MILLENNIUM PARTNERS, L.P.
By: MILLENNIUM MANAGEMENT, L.L.C.
By: /S/ TERRY FEENEY
Name: Terry Feeney
----------------------------------------
Title: Chief Operating Officer
36
Entity Name: LEHMAN BROTHERS FOR THE
BENEFIT OF GEORGE W.
HAYWOOD IRA
By: 831-38337-14
By: /S/ MARJORIE HURD
----------------------------------------
Name: Marjorie Hurd
Title: Retirement Planning Specialist
Entity Name:GEORGE HAYWOOD IRA
ROLLOVER
By:
----------------------------------------
By: /S/ GEORGE W. HAYWOOD
----------------------------------------
Name: George W. Haywood
Title:
Entity Name: CY OFFSHORE FUND, LTD.
By:
----------------------------------------
By: /S/ JAMES W. TRAWEEK, JR.
----------------------------------------
Name: James W. Traweek, Jr.
Title: Director
Entity Name: CS OFFSHORE FUND, LTD.
By:
----------------------------------------
By: /S/ JAMES W. TRAWEEK, JR.
-------------------------
Name: James W. Traweek, Jr.
Title: Director
Entity Name: SINGER CHILDREN'S
MANAGEMENT TRUST
By:
----------------------------------------
By: /S/ KAREN SINGER
----------------------------------------
Name: Karen Singer
Title: Trustee
37
Entity Name: LOEB PARTNERS CORP.
By:
----------------------------------------
By: /S/ ROBERT GRUBIN
----------------------------------------
Name: Robert Grubin
Title: Vice President
Entity Name: RNR II, LP
By:
----------------------------------------
By: /S/ RICHARD M. ENG
----------------------------------------
Name: Richrd M. Eng
Title: CFO
Entity Name: TEJAS SECURITIES GROUP, INC.
401K PLAN AND TRUST
By: FBO JOHN J. GORMAN, JOHN GORMAN TTEE
By: /S/ JOHN J. GORMAN
----------------------------------------
Name: John J. Gorman
Title: Trustee
Entity Name: STROME HEDGECAP LIMITED
By: JEFFREY S. LAMBERT
By: /S/ JEFFREY S. LAMBERT
----------------------------------------
Name: Jeffrey S. Lambert
Title: Director
38