Investor Conditions. The obligation of the Investor to purchase the Shares at the Closing shall be subject to and conditioned upon the satisfaction, or waiver by the Investor, prior to or at the Closing, of each of the following conditions: (a) The representations and warranties of the Company contained in this Agreement and the other Closing Documents shall, if specifically qualified by materiality, be true and correct and, if not so qualified, be true and correct in all material respects, in each case as of the Closing Date, and all covenants and agreements of the Company contained in this Agreement and the other Closing Documents shall have been performed or complied with, as applicable, in all material respects on or prior to the Closing Date. (b) Since the Audited Statements Date (as hereinafter defined), there shall have been no Material Adverse Change and the Company shall not have suffered any material loss (whether or not insured) by reason of physical damage caused by fire, earthquake, accident or other calamity which substantially affects the value of its assets, properties or business, certified by the Company's Secretary. (c) The Company shall have delivered to the Investor: (i) resolutions of the Board of Directors authorizing the execution, delivery and performance of the Closing Documents and of all agreements and documents to which the Company is a party and the consummation of the transactions contemplated thereby; (ii) a certificate of incumbency of the Company's officers executing the Closing Documents, dated the Closing Date; (iii) a certificate of good standing of the Company from the office of the Secretary of State of Delaware, as of a date not more than 5 days prior to the Closing Date; (iv) an opinion of outside legal counsel to the Company, in substantially the form attached hereto as EXHIBIT E, dated the Closing Date and in form and substance reasonably acceptable to the Investor; (v) an opinion of outside legal counsel to the Company with respect to FCC matters, in substantially the form attached hereto as EXHIBIT F, dated the Closing Date and in form and substance reasonably acceptable to the Investor; and (vi) a certificate of compliance, dated the Closing Date, executed by an officer of the Company certifying that each of the conditions specified in this Section 3.1 have been satisfied or waived in writing by the Investor. (d) The Company and the Stockholders shall have performed all of their respective obligations required to be completed on or prior to the Closing pursuant to the Agreement of Stockholders. (e) The Company has received subscriptions for the Senior Preferred Stock, dated as of even date herewith, in the aggregate amount of at least $145 million, but not more than $205 million, from the Investor and other investors reasonably acceptable to the Investor (collectively, the "OTHER INVESTORS"), and the sales and issuances of Senior Preferred Stock and warrants provided for therein shall be consummated concurrently with the Closing hereunder. (f) The Company shall have obtained all consents, approvals, or waivers (and such shall be in effect as of the Closing) from Governmental Persons and third parties, including without limitation any of its stockholders and the FCC (in the case of the FCC, such consents, approvals and waivers shall include without limitation Final Order(s) approving the FCC Transfer of Control Applications) necessary (in the reasonable judgment of the Investor) for the execution, delivery and performance of this Agreement and the other Closing Documents. Upon issuance of Initial Order(s) approving the FCC Transfer of Control Applications, Investor shall consider in good faith the waiver of the requirement of Final Order(s) approving such FCC Transfer of Control Applications based on its evaluation, as informed by advice of FCC counsel, of the likelihood that such Initial Order(s) will be modified, amended, vacated or overturned. Investor shall not unreasonably withhold consent to such waiver and shall not withhold consent to such waiver for reasons unrelated to the status of such Initial Order(s). Investor shall notify the Company of its decision with respect to waiver no later than 10 days after the occurrence of each of (i) the issuance of the Initial Order(s), and (ii) the elapse of 30 days from the issuance of such Initial Order(s). (g) No action or proceeding before any court or Government Person will be pending wherein a judgment, decree or order would prevent any of the transactions contemplated by this Agreement and the other Closing Documents, cause any such transaction to be declared unlawful or rescinded, or could be reasonably likely to subject any party hereto or thereto to a material fine in connection with any such transaction. (h) All stock option plans and stock incentive plans of the Company shall have been terminated and all options (whether vested or unvested) and other rights to acquire capital stock or other equity interests of the Company, any Subsidiary or any other Person in which the Company has equity interests or rights to acquire equity interests, of any employee of the Company (including without limitation any such rights pursuant to employment agreements) as of the Closing Date shall have been terminated, except as set forth in SCHEDULE 3.1(h)(A), and the Company shall have reserved up to 7.5% of the outstanding shares of Series A Common Stock on a fully diluted and as-converted basis (including without limitation shares of Series A Common Stock issuable upon conversion of Series B Common Stock) immediately after the Closing (including all Series A Common Stock issuable as a result of conversion of all Old Preferred Stock and all Senior Preferred Stock outstanding, but excluding shares issuable upon exercise of the Warrants and all Equity Rights listed on SCHEDULE 3.1(m) hereto) pursuant to a new stock option plan satisfactory to the Investor and having the terms set forth on SCHEDULE 3.1(h)(B) (the "MANAGEMENT OPTION PLAN"), for the purpose of attracting and retaining senior management and such other personnel as will be required by the Company's business. (i) The Investor shall have received all such counterpart originals or certified or other copies of such documents as the Investor may have reasonably requested. (j) The FCC has granted by Initial Order, no later than December 15, 2002, and by Final Order, no later than the Closing Date, Telesat's request to use the Ka-band capacity on the Anik F2 satellite for the provision of two-way broadband communication services in the United States, pursuant to authorization reasonably acceptable to the Investor which can be relied upon by the Company to market its services to end users. (k) All applicable waiting periods pursuant to the HSR Act in connection with the transactions contemplated by this Agreement and the other Closing Documents shall have expired or terminated prior to the Closing. Subject to Section 7.4 hereof, the aggregate fees incurred pursuant to this Section 3.1(k) and pursuant to a corresponding provision in any other Subscription Agreement, shall be advanced only by the subscribers to the Senior Preferred Stock (including without limitation the Investor) which incur such fees, with each such subscriber bearing its PRO RATA amount based on the aggregate amount to be funded by such subscribers at the Closing, and the Company shall reimburse the Investor pursuant to Section 6.19 or Section 7.4 hereof. (l) Except as set forth on SCHEDULE 3.1(l) hereto, and subject to Section 6.6 hereof, each voting agreement, stockholders' agreement, investors' rights agreement, registration rights agreement and other similar agreement with respect to rights of any beneficial or record owner of securities of the Company, as in effect immediately prior to the Closing and to which the Company is a party, shall have been terminated, except that the Existing Investor Rights Agreement shall remain in effect as modified pursuant to Section 4.1 of the Investor Rights Agreement attached hereto as EXHIBIT D. (m) Except as listed on SCHEDULE 3.1(m) hereto, each warrant, option agreement, rights agreement or other agreement, rights or securities (each an "EQUITY RIGHT") representing the right to purchase or otherwise acquire equity securities of the Company or securities or other rights that are exercisable, exchangeable and/convertible for or into equity securities of the Company shall have been terminated, and SCHEDULE 3.1(m) sets forth the maximum number of shares of Common Stock of the Company that each respective Equity Right entitles its holder thereto. (n) Between the date hereof and the Closing, the Company has performed all such actions enumerated in the budget set forth in SCHEDULE 7.1(a)(ii) hereto, as such budget may be amended with the prior consent of the Required Investors. (o) [Intentionally Omitted.] (p) The amount of the liabilities and/or other financial commitments or obligations (including but not limited to outstanding termination fees) of the Company due under, and any other outstanding obligations or commitments (including but not limited to the "Right of First Refusal" under Section 3(c) of the Arianespace Multiparty Agreement) of the Company pursuant to, the Arianespace Agreements, shall be acceptable to the Investor in its reasonable judgment, and the Company shall have entered into a written agreement (or agreements) with the other parties to the Arianespace Agreements, in form and substance reasonably acceptable to the Investor. (q) The employees of the Company as of the Closing Date are sufficient to run the business as conducted on the date hereof. (r) Telesat shall have executed and delivered a written agreement in such form as is satisfactory to the Investor in its reasonable judgment, stating that the funding to the Company pursuant to the Subscription Agreements satisfies the Company's funding commitment obligations under the Second Amended and Restated Ka-Band Payload License Agreement, dated as of December 17, 2001, between Telesat and the Company. (s) The Company shall have obtained all assurances (as are satisfactory to the Investor in its reasonable judgment), whether in writing or otherwise, from Space Systems/Loral, Inc., a Delaware corporation, that its business relationship with the Company and construction of the Wildblue 1 satellite is as set forth in the Business Action Plan. (t) The Company and Credit Suisse First Boston Corporation ("CSFB") shall have executed and delivered a written agreement, on terms satisfactory to the Investor in its reasonable judgment, which provides for the termination of all rights of CSFB and obligations of the Company under, and the full satisfaction and release of all claims of CSFB against the Company in connection with, that certain Engagement Letter Agreement, dated as of April 5, 2001, between CSFB and the Company (including but not limited to the right of CSFB to a "Placement Fee" under Section 8 (and/or Section 2(a)) of the Engagement Letter in connection with this Agreement, any other Subscription Agreement or any other agreement or issuance of securities or other rights by the Company on or after the date hereof), without any payment or amount due from the Company other than (i) the reimbursement of expenses in an aggregate amount not to exceed $121,000 and (ii) such other amounts as shall be approved by the Investor in its reasonable judgment. (u) The Board of Directors of Intelsat and Intelsat, Ltd., a Bermuda corporation and parent of Intelsat, shall have approved this Agreement and the other Closing Documents to which Intelsat is a party, and shall have authorized the transactions contemplated hereby and thereby to which Intelsat is a party. (v) In connection with that certain agreement between the Company and TRW, Inc. ("TRW"), dated as of February 14, 2000, the Company and TRW shall have executed and delivered a written amendment or other agreement which confirms that TRW is entitled to acquire only either (i) 7,162.5 shares of Old Preferred Stock (prior to the Closing) or (ii) 7,162 shares of Series A Common Stock and cash payment for 0.5 of one share of Series A Common Stock (on and after the Closing), pursuant to Section 11 of such February 14, 2000 agreement, in each case on terms and conditions satisfactory to the Investor in its reasonable judgment.
Appears in 2 contracts
Samples: Subscription Agreement (Liberty Satellite & Technology Inc), Subscription Agreement (Liberty Satellite & Technology Inc)
Investor Conditions. The obligation of the Investor to consummate the transactions contemplated hereby, and in particular the purchase of the Shares at Offered Units from the Closing shall be Corporation, is subject to and conditioned upon the satisfaction, on or waiver by before the InvestorClosing Date or such other time specified, prior to or at the Closing, of each of the following conditions:
(a) The the representations and warranties of made by the Company contained Corporation in this Agreement and the other Closing Documents shall, if specifically qualified by materiality, shall be true and correct and, if not so qualified, be true as of the date hereof and correct in all material respects, in each case as of the Closing Date, Date as if made on and all covenants and agreements as of the Company contained in this Agreement and the other Closing Documents shall have been performed or complied with, as applicable, in all material respects on or prior such date (except to the Closing Date.
(b) Since the Audited Statements Date (extent such representations and warranties speak as hereinafter definedof an earlier date or except as affected by transactions contemplated or permitted by this Agreement), there shall have been no except where the failure of such representations and warranties to be true and complete, individually or in the aggregate, would not result or would not reasonably be expected to result in a Material Adverse Change in respect of the Corporation (and for this purpose, any reference to "material", "Material Adverse Effect" or other concepts of materiality in such representations and warranties shall be ignored) and would not, or would not reasonably be expected to, materially impede or delay completion of the Transaction, and the Company shall not have suffered any material loss (whether or not insured) by reason of physical damage caused by fire, earthquake, accident or other calamity which substantially affects the value of its assets, properties or business, certified by the Company's Secretary.
(c) The Company Corporation shall have delivered provided to the Investor:
(i) resolutions of the Board of Directors authorizing the execution, delivery and performance of the Closing Documents and of all agreements and documents to which the Company is a party and the consummation of the transactions contemplated thereby;
(ii) Investor a certificate of incumbency two senior officers of the CompanyCorporation (on the Corporation's officers executing behalf and without personal liability) certifying the Closing Documents, dated foregoing on the Closing Date;
(iiib) if the transactions contemplated hereby would result in an acceleration of the maturity of the indebtedness owing to any Person, such Person shall have provided any consent necessary so that such acceleration does not occur;
(c) on or before November 12, 2013, the Investor shall be satisfied in its sole discretion with the results of its due diligence investigations in relation to the Corporation’s Nicaraguan assets and senior management of the Corporation;
(d) the Investor shall not have become aware, through its due diligence investigations or otherwise, of any material information with respect to the Corporation or any of the Subsidiaries which had not been publicly disclosed or disclosed in writing to the Investor, in either case at or prior to the Closing Time, and which in the reasonable opinion of the Investor could be expected to have a Material Adverse Effect on the market price or value of the Unit Shares or the Unit Warrants;
(e) the Exchange Conditions are satisfactory to the Investor, acting reasonably;
(f) the Corporation has taken all steps necessary, including the filing if required of articles of amendment, to effect the Share Consolidation contemplated by the Share Consolidation Resolution and all Common Shares shall be consolidated pursuant to the Share Consolidation Resolution;
(g) the Corporation shall have complied in all material respects with its covenants herein, and the Corporation shall have provided to the Investor a certificate of good standing two senior officers of the Company from Corporation (on the office Corporation's behalf and without personal liability) certifying compliance with such covenants on the Closing Date;
(h) no Material Adverse Change in respect of the Secretary of State of Delaware, as of a Corporation shall have occurred after the date not more than 5 days hereof and prior to the Closing Date;
(ivi) an there shall not have developed, occurred or come into effect or existence any event, action, state, condition or major financial occurrence of national or international consequence, any acts of terrorism or hostilities or escalation thereof or other calamity or crises, or any law or regulation, or any other occurrence of any nature whatsoever, which in the opinion of outside legal counsel the Investor, acting reasonably, seriously adversely affects, or involves, or will seriously adversely affect, or involve, the financial markets in Canada or the U.S., or the business, operations or affairs of the Corporation and the Subsidiaries taken as a whole;
(j) a Flip-in Event for the purposes of the Shareholder Rights Plan shall not have occurred;
(k) the Corporation shall have furnished the Investor with: (i) certified copies of the resolutions duly passed by the Board of Directors approving this Agreement and the Transaction; and (ii) certified copies of the resolutions of the Shareholders duly passed at the Shareholders' Meeting approving the Transaction Resolutions;
(l) the Corporation shall have provided to the CompanyInvestor an executed waiver from each counterparty of the Corporation to a change of control provision, in substantially the form attached hereto as EXHIBIT E, dated the Closing Date and in form and substance content reasonably acceptable to the Investor, including from each officer having change of control provisions under his employment agreement with the Corporation;
(vm) an opinion of outside legal counsel to the Company with respect to FCC matters, in substantially the form attached hereto as EXHIBIT F, dated the Closing Date and in form and substance reasonably acceptable to the Investor; and
(vi) Investor shall have received a certificate from the Corporation's transfer agent certifying the number of compliance, dated the Closing Date, executed by an officer of the Company certifying that each of the conditions specified in this Section 3.1 have been satisfied or waived in writing by the Investor.
(d) The Company issued and the Stockholders shall have performed all of their respective obligations required to be completed on or outstanding Common Shares prior to the Closing pursuant to the Agreement completion of Stockholders.
(e) The Company has received subscriptions for the Senior Preferred Stock, dated as of even date herewith, in the aggregate amount of at least $145 million, but not more than $205 million, from the Investor and other investors reasonably acceptable to the Investor (collectively, the "OTHER INVESTORS"), and the sales and issuances of Senior Preferred Stock and warrants provided for therein shall be consummated concurrently with the Closing hereunder.
(f) The Company shall have obtained all consents, approvals, or waivers (and such shall be in effect as of the Closing) from Governmental Persons and third parties, including without limitation any of its stockholders and the FCC (in the case of the FCC, such consents, approvals and waivers shall include without limitation Final Order(s) approving the FCC Transfer of Control Applications) necessary (in the reasonable judgment of the Investor) for the execution, delivery and performance of this Agreement and the other Closing Documents. Upon issuance of Initial Order(s) approving the FCC Transfer of Control Applications, Investor shall consider in good faith the waiver of the requirement of Final Order(s) approving such FCC Transfer of Control Applications based on its evaluation, as informed by advice of FCC counsel, of the likelihood that such Initial Order(s) will be modified, amended, vacated or overturned. Investor shall not unreasonably withhold consent to such waiver and shall not withhold consent to such waiver for reasons unrelated to the status of such Initial Order(s). Investor shall notify the Company of its decision with respect to waiver no later than 10 days after the occurrence of each of (i) the issuance of the Initial Order(s), and (ii) the elapse of 30 days from the issuance of such Initial Order(s).
(g) No action or proceeding before any court or Government Person will be pending wherein a judgment, decree or order would prevent any of the transactions immediately contemplated by this Agreement and a certificate of either the other Closing Documents, cause any such transaction Corporation's transfer agent or an officer of the Corporation certifying the number of issued and outstanding Common Shares after giving effect to be declared unlawful or rescinded, or could be reasonably likely to subject any party hereto or thereto to a material fine in connection with any such transaction.the Transaction; and
(hn) All stock option plans the Investor will have received such other certificates and stock incentive plans of the Company shall have been terminated documents in form and all options (whether vested or unvested) and other rights to acquire capital stock or other equity interests of the Company, any Subsidiary or any other Person in which the Company has equity interests or rights to acquire equity interests, of any employee of the Company (including without limitation any such rights pursuant to employment agreements) as of the Closing Date shall have been terminated, except as set forth in SCHEDULE 3.1(h)(A), and the Company shall have reserved up to 7.5% of the outstanding shares of Series A Common Stock on a fully diluted and as-converted basis (including without limitation shares of Series A Common Stock issuable upon conversion of Series B Common Stock) immediately after the Closing (including all Series A Common Stock issuable as a result of conversion of all Old Preferred Stock and all Senior Preferred Stock outstanding, but excluding shares issuable upon exercise of the Warrants and all Equity Rights listed on SCHEDULE 3.1(m) hereto) pursuant to a new stock option plan substance satisfactory to the Investor and having as it may reasonably request from the terms Corporation. The conditions set forth on SCHEDULE 3.1(h)(B) (the "MANAGEMENT OPTION PLAN"), in this Section 6.3 are for the purpose of attracting and retaining senior management and such other personnel as will be required by the Company's business.
(i) The Investor shall have received all such counterpart originals or certified or other copies of such documents as the Investor may have reasonably requested.
(j) The FCC has granted by Initial Order, no later than December 15, 2002, and by Final Order, no later than the Closing Date, Telesat's request to use the Ka-band capacity on the Anik F2 satellite for the provision of two-way broadband communication services in the United States, pursuant to authorization reasonably acceptable to the Investor which can be relied upon by the Company to market its services to end users.
(k) All applicable waiting periods pursuant to the HSR Act in connection with the transactions contemplated by this Agreement and the other Closing Documents shall have expired or terminated prior to the Closing. Subject to Section 7.4 hereof, the aggregate fees incurred pursuant to this Section 3.1(k) and pursuant to a corresponding provision in any other Subscription Agreement, shall be advanced only by the subscribers to the Senior Preferred Stock (including without limitation the Investor) which incur such fees, with each such subscriber bearing its PRO RATA amount based on the aggregate amount to be funded by such subscribers at the Closing, and the Company shall reimburse the Investor pursuant to Section 6.19 or Section 7.4 hereof.
(l) Except as set forth on SCHEDULE 3.1(l) hereto, and subject to Section 6.6 hereof, each voting agreement, stockholders' agreement, investors' rights agreement, registration rights agreement and other similar agreement with respect to rights of any beneficial or record owner of securities of the Company, as in effect immediately prior to the Closing and to which the Company is a party, shall have been terminated, except that the Existing Investor Rights Agreement shall remain in effect as modified pursuant to Section 4.1 exclusive benefit of the Investor Rights Agreement attached hereto as EXHIBIT D.
(m) Except as listed on SCHEDULE 3.1(m) hereto, each warrant, option agreement, rights agreement or other agreement, rights or securities (each an "EQUITY RIGHT") representing and may be asserted by the right to purchase or otherwise acquire equity securities Investor regardless of the Company circumstances or securities or other rights that are exercisable, exchangeable and/convertible for or into equity securities of the Company shall have been terminated, and SCHEDULE 3.1(m) sets forth the maximum number of shares of Common Stock of the Company that each respective Equity Right entitles its holder thereto.
(n) Between the date hereof and the Closing, the Company has performed all such actions enumerated in the budget set forth in SCHEDULE 7.1(a)(ii) hereto, as such budget may be amended with the prior consent of the Required Investors.
(o) [Intentionally Omitted.]
(p) The amount of the liabilities and/or other financial commitments or obligations (including but not limited to outstanding termination fees) of the Company due under, and any other outstanding obligations or commitments (including but not limited to the "Right of First Refusal" under Section 3(c) of the Arianespace Multiparty Agreement) of the Company pursuant to, the Arianespace Agreements, shall be acceptable to the Investor in its reasonable judgment, and the Company shall have entered into a written agreement (or agreements) with the other parties to the Arianespace Agreements, in form and substance reasonably acceptable to the Investor.
(q) The employees of the Company as of the Closing Date are sufficient to run the business as conducted on the date hereof.
(r) Telesat shall have executed and delivered a written agreement in such form as is satisfactory to the Investor in its reasonable judgment, stating that the funding to the Company pursuant to the Subscription Agreements satisfies the Company's funding commitment obligations under the Second Amended and Restated Ka-Band Payload License Agreement, dated as of December 17, 2001, between Telesat and the Company.
(s) The Company shall have obtained all assurances (as are satisfactory to the Investor in its reasonable judgment), whether in writing or otherwise, from Space Systems/Loral, Inc., a Delaware corporation, that its business relationship with the Company and construction of the Wildblue 1 satellite is as set forth in the Business Action Plan.
(t) The Company and Credit Suisse First Boston Corporation ("CSFB") shall have executed and delivered a written agreement, on terms satisfactory to the Investor in its reasonable judgment, which provides for the termination of all rights of CSFB and obligations of the Company under, and the full satisfaction and release of all claims of CSFB against the Company in connection with, that certain Engagement Letter Agreement, dated as of April 5, 2001, between CSFB and the Company (including but not limited to the right of CSFB to a "Placement Fee" under Section 8 (and/or Section 2(a)) of the Engagement Letter in connection with this Agreement, any other Subscription Agreement or any other agreement or issuance of securities or other rights by the Company on or after the date hereof), without any payment or amount due from the Company other than (i) the reimbursement of expenses in an aggregate amount not to exceed $121,000 and (ii) such other amounts as shall be approved waived by the Investor in its reasonable judgment.
(u) The Board of Directors of Intelsat and Intelsat, Ltd., a Bermuda corporation and parent of Intelsat, shall have approved this Agreement and the other Closing Documents to which Intelsat is a party, and shall have authorized the transactions contemplated hereby and thereby to which Intelsat is a party.
(v) In connection with that certain agreement between the Company and TRW, Inc. ("TRW"), dated as of February 14, 2000, the Company and TRW shall have executed and delivered a written amendment or other agreement which confirms that TRW is entitled to acquire only either (i) 7,162.5 shares of Old Preferred Stock (prior to the Closing) or (ii) 7,162 shares of Series A Common Stock and cash payment for 0.5 of one share of Series A Common Stock (on and after the Closing), pursuant to Section 11 of such February 14, 2000 agreementsole discretion, in each case on terms whole or in part, at any time and conditions satisfactory from time to time without prejudice to any other rights which the Investor in its reasonable judgmentmay have.
Appears in 2 contracts
Samples: Investment Agreement, Investment Agreement
Investor Conditions. The obligation of the Investor to consummate the transactions contemplated hereby, and in particular the purchase of the Shares at Offered Units from the Corporation, is subject to the satisfaction (as determined in the sole and absolute discretion of the Investor), on or before the Closing shall be subject to and conditioned upon the satisfactionDate or such other time specified, or waiver by the Investor, prior to or at the Closing, of each of the following conditions:
(a) The the representations and warranties of made by the Company contained Corporation in this Agreement and the other Closing Documents shall, if specifically qualified by materiality, shall be true and correct and, if not so qualified, be true as of the date hereof and correct in all material respects, in each case as of the Closing Date, Date as if made on and all covenants and agreements as of the Company contained in this Agreement and the other Closing Documents shall have been performed or complied with, as applicable, in all material respects on or prior such date (except to the Closing Date.
(b) Since the Audited Statements Date (extent such representations and warranties speak as hereinafter definedof an earlier date or except as affected by transactions contemplated or permitted by this Agreement), there shall have been no except where the failure of such representations and warranties to be true and complete, individually or in the aggregate, would not result or would not reasonably be expected to result in a Material Adverse Change in respect of the Corporation (and for this purpose, any reference to “material”, “Material Adverse Effect” or other concepts of materiality in such representations and warranties shall be ignored) and would not, or would not reasonably be expected to, materially impede or delay completion of the Private Placement , and the Company shall not have suffered any material loss (whether or not insured) by reason of physical damage caused by fire, earthquake, accident or other calamity which substantially affects the value of its assets, properties or business, certified by the Company's Secretary.
(c) The Company Corporation shall have delivered provided to the Investor:
(i) resolutions of the Board of Directors authorizing the execution, delivery and performance of the Closing Documents and of all agreements and documents to which the Company is a party and the consummation of the transactions contemplated thereby;
(ii) Investor a certificate of incumbency two senior officers of the Company's officers executing Corporation (on the Closing Documents, dated Corporation’s behalf and without personal liability) certifying the foregoing on the Closing Date;
(iiib) if the transactions contemplated hereby would result in an acceleration of the maturity of the indebtedness owing to any Person, such Person shall have provided any consent necessary so that such acceleration does not occur;
(c) the Investor shall not have become aware, through its due diligence investigations or otherwise, of any material information with respect to the Corporation or any of the Subsidiaries which had not been publicly disclosed or disclosed in writing to the Investor, in either case at or prior to the Closing Time, and which in the reasonable opinion of the Investor could be expected to have a Material Adverse Effect on the market price or value of the Unit Shares or the Unit Warrants;
(d) the Exchange Conditions are satisfactory to the Investor, acting reasonably;
(e) the Corporation shall have complied in all material respects with its covenants herein, and the Corporation shall have provided to the Investor a certificate of good standing two senior officers of the Company from Corporation (on the office Corporation’s behalf and without personal liability) certifying compliance with such covenants on the Closing Date;
(f) no Material Adverse Change in respect of the Secretary of State of Delaware, as of a Corporation shall have occurred after the date not more than 5 days hereof and prior to the Closing Date;
(ivg) an there shall not have developed, occurred or come into effect or existence any event, action, state, condition or major financial occurrence of national or international consequence, any acts of terrorism or hostilities or escalation thereof or other calamity or crises, or any law or regulation, or any other occurrence of any nature whatsoever, which in the opinion of outside legal counsel the Investor, acting reasonably, seriously adversely affects, or involves, or will seriously adversely affect, or involve, the financial markets in Canada or the U.S., or the business, operations or affairs of the Corporation and the Subsidiaries taken as a whole;
(h) the Investor is satisfied that the Rights issued under the Shareholder Rights Plan have been redeemed and/or that the Plan has been terminated or abandoned;
(i) the Option Agreement shall have been replaced by a purchase agreement (the “Purchase Agreement”) on terms satisfactory to the Company, in substantially Investor and a fully executed copy of the form attached hereto as EXHIBIT E, dated the Closing Date and in form and substance reasonably acceptable Purchase Agreement shall have been furnished to the Investor;
(vj) an opinion the Corporation shall have furnished the Investor with a certified copy of outside legal counsel to the Company with respect to FCC matters, in substantially the form attached hereto as EXHIBIT F, dated the Closing Date and in form and substance reasonably acceptable to the Investor; andPrivate Placement Resolution;
(vik) the Investor shall have received a certificate from the Corporation’s transfer agent certifying the number of compliance, dated the Closing Date, executed by an officer of the Company certifying that each of the conditions specified in this Section 3.1 have been satisfied or waived in writing by the Investor.
(d) The Company issued and the Stockholders shall have performed all of their respective obligations required to be completed on or outstanding Common Shares prior to the Closing pursuant to the Agreement completion of Stockholders.
(e) The Company has received subscriptions for the Senior Preferred Stock, dated as of even date herewith, in the aggregate amount of at least $145 million, but not more than $205 million, from the Investor and other investors reasonably acceptable to the Investor (collectively, the "OTHER INVESTORS"), and the sales and issuances of Senior Preferred Stock and warrants provided for therein shall be consummated concurrently with the Closing hereunder.
(f) The Company shall have obtained all consents, approvals, or waivers (and such shall be in effect as of the Closing) from Governmental Persons and third parties, including without limitation any of its stockholders and the FCC (in the case of the FCC, such consents, approvals and waivers shall include without limitation Final Order(s) approving the FCC Transfer of Control Applications) necessary (in the reasonable judgment of the Investor) for the execution, delivery and performance of this Agreement and the other Closing Documents. Upon issuance of Initial Order(s) approving the FCC Transfer of Control Applications, Investor shall consider in good faith the waiver of the requirement of Final Order(s) approving such FCC Transfer of Control Applications based on its evaluation, as informed by advice of FCC counsel, of the likelihood that such Initial Order(s) will be modified, amended, vacated or overturned. Investor shall not unreasonably withhold consent to such waiver and shall not withhold consent to such waiver for reasons unrelated to the status of such Initial Order(s). Investor shall notify the Company of its decision with respect to waiver no later than 10 days after the occurrence of each of (i) the issuance of the Initial Order(s), and (ii) the elapse of 30 days from the issuance of such Initial Order(s).
(g) No action or proceeding before any court or Government Person will be pending wherein a judgment, decree or order would prevent any of the transactions immediately contemplated by this Agreement and a certificate of either the other Closing Documents, cause any such transaction Corporation’s transfer agent or an officer of the Corporation certifying the number of issued and outstanding Common Shares after giving effect to be declared unlawful or rescinded, or could be reasonably likely to subject any party hereto or thereto to a material fine in connection with any such transaction.the Private Placement ; and
(hl) All stock option plans the Investor will have received such other certificates and stock incentive plans of the Company shall have been terminated documents in form and all options (whether vested or unvested) and other rights to acquire capital stock or other equity interests of the Company, any Subsidiary or any other Person in which the Company has equity interests or rights to acquire equity interests, of any employee of the Company (including without limitation any such rights pursuant to employment agreements) as of the Closing Date shall have been terminated, except as set forth in SCHEDULE 3.1(h)(A), and the Company shall have reserved up to 7.5% of the outstanding shares of Series A Common Stock on a fully diluted and as-converted basis (including without limitation shares of Series A Common Stock issuable upon conversion of Series B Common Stock) immediately after the Closing (including all Series A Common Stock issuable as a result of conversion of all Old Preferred Stock and all Senior Preferred Stock outstanding, but excluding shares issuable upon exercise of the Warrants and all Equity Rights listed on SCHEDULE 3.1(m) hereto) pursuant to a new stock option plan substance satisfactory to the Investor and having as it may reasonably request from the terms Corporation. The conditions set forth on SCHEDULE 3.1(h)(B) (the "MANAGEMENT OPTION PLAN"), in this Section 6.3 are for the purpose of attracting and retaining senior management and such other personnel as will be required by the Company's business.
(i) The Investor shall have received all such counterpart originals or certified or other copies of such documents as the Investor may have reasonably requested.
(j) The FCC has granted by Initial Order, no later than December 15, 2002, and by Final Order, no later than the Closing Date, Telesat's request to use the Ka-band capacity on the Anik F2 satellite for the provision of two-way broadband communication services in the United States, pursuant to authorization reasonably acceptable to the Investor which can be relied upon by the Company to market its services to end users.
(k) All applicable waiting periods pursuant to the HSR Act in connection with the transactions contemplated by this Agreement and the other Closing Documents shall have expired or terminated prior to the Closing. Subject to Section 7.4 hereof, the aggregate fees incurred pursuant to this Section 3.1(k) and pursuant to a corresponding provision in any other Subscription Agreement, shall be advanced only by the subscribers to the Senior Preferred Stock (including without limitation the Investor) which incur such fees, with each such subscriber bearing its PRO RATA amount based on the aggregate amount to be funded by such subscribers at the Closing, and the Company shall reimburse the Investor pursuant to Section 6.19 or Section 7.4 hereof.
(l) Except as set forth on SCHEDULE 3.1(l) hereto, and subject to Section 6.6 hereof, each voting agreement, stockholders' agreement, investors' rights agreement, registration rights agreement and other similar agreement with respect to rights of any beneficial or record owner of securities of the Company, as in effect immediately prior to the Closing and to which the Company is a party, shall have been terminated, except that the Existing Investor Rights Agreement shall remain in effect as modified pursuant to Section 4.1 exclusive benefit of the Investor Rights Agreement attached hereto as EXHIBIT D.
(m) Except as listed on SCHEDULE 3.1(m) hereto, each warrant, option agreement, rights agreement or other agreement, rights or securities (each an "EQUITY RIGHT") representing and may be asserted by the right to purchase or otherwise acquire equity securities Investor regardless of the Company circumstances or securities or other rights that are exercisable, exchangeable and/convertible for or into equity securities of the Company shall have been terminated, and SCHEDULE 3.1(m) sets forth the maximum number of shares of Common Stock of the Company that each respective Equity Right entitles its holder thereto.
(n) Between the date hereof and the Closing, the Company has performed all such actions enumerated in the budget set forth in SCHEDULE 7.1(a)(ii) hereto, as such budget may be amended with the prior consent of the Required Investors.
(o) [Intentionally Omitted.]
(p) The amount of the liabilities and/or other financial commitments or obligations (including but not limited to outstanding termination fees) of the Company due under, and any other outstanding obligations or commitments (including but not limited to the "Right of First Refusal" under Section 3(c) of the Arianespace Multiparty Agreement) of the Company pursuant to, the Arianespace Agreements, shall be acceptable to the Investor in its reasonable judgment, and the Company shall have entered into a written agreement (or agreements) with the other parties to the Arianespace Agreements, in form and substance reasonably acceptable to the Investor.
(q) The employees of the Company as of the Closing Date are sufficient to run the business as conducted on the date hereof.
(r) Telesat shall have executed and delivered a written agreement in such form as is satisfactory to the Investor in its reasonable judgment, stating that the funding to the Company pursuant to the Subscription Agreements satisfies the Company's funding commitment obligations under the Second Amended and Restated Ka-Band Payload License Agreement, dated as of December 17, 2001, between Telesat and the Company.
(s) The Company shall have obtained all assurances (as are satisfactory to the Investor in its reasonable judgment), whether in writing or otherwise, from Space Systems/Loral, Inc., a Delaware corporation, that its business relationship with the Company and construction of the Wildblue 1 satellite is as set forth in the Business Action Plan.
(t) The Company and Credit Suisse First Boston Corporation ("CSFB") shall have executed and delivered a written agreement, on terms satisfactory to the Investor in its reasonable judgment, which provides for the termination of all rights of CSFB and obligations of the Company under, and the full satisfaction and release of all claims of CSFB against the Company in connection with, that certain Engagement Letter Agreement, dated as of April 5, 2001, between CSFB and the Company (including but not limited to the right of CSFB to a "Placement Fee" under Section 8 (and/or Section 2(a)) of the Engagement Letter in connection with this Agreement, any other Subscription Agreement or any other agreement or issuance of securities or other rights by the Company on or after the date hereof), without any payment or amount due from the Company other than (i) the reimbursement of expenses in an aggregate amount not to exceed $121,000 and (ii) such other amounts as shall be approved waived by the Investor in its reasonable judgment.
(u) The Board of Directors of Intelsat and Intelsat, Ltd., a Bermuda corporation and parent of Intelsat, shall have approved this Agreement and the other Closing Documents to which Intelsat is a party, and shall have authorized the transactions contemplated hereby and thereby to which Intelsat is a party.
(v) In connection with that certain agreement between the Company and TRW, Inc. ("TRW"), dated as of February 14, 2000, the Company and TRW shall have executed and delivered a written amendment or other agreement which confirms that TRW is entitled to acquire only either (i) 7,162.5 shares of Old Preferred Stock (prior to the Closing) or (ii) 7,162 shares of Series A Common Stock and cash payment for 0.5 of one share of Series A Common Stock (on and after the Closing), pursuant to Section 11 of such February 14, 2000 agreementsole discretion, in each case on terms whole or in part, at any time and conditions satisfactory from time to time without prejudice to any other rights which the Investor in its reasonable judgmentmay have.
Appears in 1 contract
Samples: Investment Agreement
Investor Conditions. The Investor's obligation to accept delivery of the Investor such stock certificate(s) and to purchase pay for the Shares evidenced thereby at the Closing shall be subject to and conditioned upon the satisfaction, or waiver by the Investor, prior to or at the Closing, of each of the following conditions:
(a) The the accuracy on and as of the Closing of the representations and warranties made by the Company herein and the fulfillment of those undertakings of the Company to be fulfilled prior to the Closing;
(b) execution and delivery of an amendment to the Amended and Restated Registration Rights Agreement dated as of December 30, 1998 (the “Registration Rights Agreement”), to include the Shares as “Registrable Shares”, in addition to the shares of Common Stock already included in such definition in the Registration Rights Agreement;
(c) evidence reasonably satisfactory to the Investor of receipt by the Company of written confirmation by representatives of the Nasdaq National Market that the transactions contemplated by this Agreement do not require the Company to obtain shareholder approval or of receipt by the Company of any requisite approval by its shareholders;
(d) receipt by the Investor of a legal opinion of Coolex Xxxxard, LLP, counsel to the Company, reasonably satisfactory to the Investor and counsel to the Investor, relating to the due organization and good standing of the Company, the due authorization, execution and delivery of the Agreements, and the status of the Shares to be delivered at such Closing as duly authorized, validly issued, fully paid and non-assessable shares of Common Stock of the Company, free (to such counsel’s knowledge) of any pre-emptive rights; and
(e) receipt by the Investor from the Company of a certificate executed by the Chairman of the Board or President and the chief financial or accounting officer of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Investor, to the effect that the representations and warranties of the Company contained set forth in Section 4 of this Agreement are true and correct as of the date of this Agreement and the other Closing Documents shall, if specifically qualified by materiality, be true and correct and, if not so qualified, be true and correct in all material respects, in each case as of the Closing Date, and all covenants and agreements of the Company contained in this Agreement has complied with all the agreements and satisfied all the other Closing Documents shall have been conditions herein on its part to be performed or complied with, as applicable, in all material respects satisfied on or prior to the Closing Date.
(b) Since the Audited Statements Date (as hereinafter defined), there shall have been no Material Adverse Change and the Company shall not have suffered any material loss (whether or not insured) by reason of physical damage caused by fire, earthquake, accident or other calamity which substantially affects the value of its assets, properties or business, certified by the Company's Secretary.
(c) The Company shall have delivered to the Investor:
(i) resolutions of the Board of Directors authorizing the execution, delivery and performance of the Closing Documents and of all agreements and documents to which the Company is a party and the consummation of the transactions contemplated thereby;
(ii) a certificate of incumbency of the Company's officers executing the Closing Documents, dated the Closing Date;
(iii) a certificate of good standing of the Company from the office of the Secretary of State of Delaware, as of a date not more than 5 days prior to the Closing Date;
(iv) an opinion of outside legal counsel to the Company, in substantially the form attached hereto as EXHIBIT E, dated the Closing Date and in form and substance reasonably acceptable to the Investor;
(v) an opinion of outside legal counsel to the Company with respect to FCC matters, in substantially the form attached hereto as EXHIBIT F, dated the Closing Date and in form and substance reasonably acceptable to the Investor; and
(vi) a certificate of compliance, dated the Closing Date, executed by an officer of the Company certifying that each of the conditions specified in this Section 3.1 have been satisfied or waived in writing by the Investor.
(d) The Company and the Stockholders shall have performed all of their respective obligations required to be completed on or prior to the Closing pursuant to the Agreement of Stockholders.
(e) The Company has received subscriptions for the Senior Preferred Stock, dated as of even date herewith, in the aggregate amount of at least $145 million, but not more than $205 million, from the Investor and other investors reasonably acceptable to the Investor (collectively, the "OTHER INVESTORS"), and the sales and issuances of Senior Preferred Stock and warrants provided for therein shall be consummated concurrently with the Closing hereunder.
(f) The Company shall have obtained all consents, approvals, or waivers (and such shall be in effect as of the Closing) from Governmental Persons and third parties, including without limitation any of its stockholders and the FCC (in the case of the FCC, such consents, approvals and waivers shall include without limitation Final Order(s) approving the FCC Transfer of Control Applications) necessary (in the reasonable judgment of the Investor) for the execution, delivery and performance of this Agreement and the other Closing Documents. Upon issuance of Initial Order(s) approving the FCC Transfer of Control Applications, Investor shall consider in good faith the waiver of the requirement of Final Order(s) approving such FCC Transfer of Control Applications based on its evaluation, as informed by advice of FCC counsel, of the likelihood that such Initial Order(s) will be modified, amended, vacated or overturned. Investor shall not unreasonably withhold consent to such waiver and shall not withhold consent to such waiver for reasons unrelated to the status of such Initial Order(s). Investor shall notify the Company of its decision with respect to waiver no later than 10 days after the occurrence of each of (i) the issuance of the Initial Order(s), and (ii) the elapse of 30 days from the issuance of such Initial Order(s).
(g) No action or proceeding before any court or Government Person will be pending wherein a judgment, decree or order would prevent any of the transactions contemplated by this Agreement and the other Closing Documents, cause any such transaction to be declared unlawful or rescinded, or could be reasonably likely to subject any party hereto or thereto to a material fine in connection with any such transaction.
(h) All stock option plans and stock incentive plans of the Company shall have been terminated and all options (whether vested or unvested) and other rights to acquire capital stock or other equity interests of the Company, any Subsidiary or any other Person in which the Company has equity interests or rights to acquire equity interests, of any employee of the Company (including without limitation any such rights pursuant to employment agreements) as of the Closing Date shall have been terminated, except as set forth in SCHEDULE 3.1(h)(A), and the Company shall have reserved up to 7.5% of the outstanding shares of Series A Common Stock on a fully diluted and as-converted basis (including without limitation shares of Series A Common Stock issuable upon conversion of Series B Common Stock) immediately after the Closing (including all Series A Common Stock issuable as a result of conversion of all Old Preferred Stock and all Senior Preferred Stock outstanding, but excluding shares issuable upon exercise of the Warrants and all Equity Rights listed on SCHEDULE 3.1(m) hereto) pursuant to a new stock option plan satisfactory to the Investor and having the terms set forth on SCHEDULE 3.1(h)(B) (the "MANAGEMENT OPTION PLAN"), for the purpose of attracting and retaining senior management and such other personnel as will be required by the Company's business.
(i) The Investor shall have received all such counterpart originals or certified or other copies of such documents as the Investor may have reasonably requested.
(j) The FCC has granted by Initial Order, no later than December 15, 2002, and by Final Order, no later than the Closing Date, Telesat's request to use the Ka-band capacity on the Anik F2 satellite for the provision of two-way broadband communication services in the United States, pursuant to authorization reasonably acceptable to the Investor which can be relied upon by the Company to market its services to end users.
(k) All applicable waiting periods pursuant to the HSR Act in connection with the transactions contemplated by this Agreement and the other Closing Documents shall have expired or terminated prior to the Closing. Subject to Section 7.4 hereof, the aggregate fees incurred pursuant to this Section 3.1(k) and pursuant to a corresponding provision in any other Subscription Agreement, shall be advanced only by the subscribers to the Senior Preferred Stock (including without limitation the Investor) which incur such fees, with each such subscriber bearing its PRO RATA amount based on the aggregate amount to be funded by such subscribers at the Closing, and the Company shall reimburse the Investor pursuant to Section 6.19 or Section 7.4 hereof.
(l) Except as set forth on SCHEDULE 3.1(l) hereto, and subject to Section 6.6 hereof, each voting agreement, stockholders' agreement, investors' rights agreement, registration rights agreement and other similar agreement with respect to rights of any beneficial or record owner of securities of the Company, as in effect immediately prior to the Closing and to which the Company is a party, shall have been terminated, except that the Existing Investor Rights Agreement shall remain in effect as modified pursuant to Section 4.1 of the Investor Rights Agreement attached hereto as EXHIBIT D.
(m) Except as listed on SCHEDULE 3.1(m) hereto, each warrant, option agreement, rights agreement or other agreement, rights or securities (each an "EQUITY RIGHT") representing the right to purchase or otherwise acquire equity securities of the Company or securities or other rights that are exercisable, exchangeable and/convertible for or into equity securities of the Company shall have been terminated, and SCHEDULE 3.1(m) sets forth the maximum number of shares of Common Stock of the Company that each respective Equity Right entitles its holder thereto.
(n) Between the date hereof and the Closing, the Company has performed all such actions enumerated in the budget set forth in SCHEDULE 7.1(a)(ii) hereto, as such budget may be amended with the prior consent of the Required Investors.
(o) [Intentionally Omitted.]
(p) The amount of the liabilities and/or other financial commitments or obligations (including but not limited to outstanding termination fees) of the Company due under, and any other outstanding obligations or commitments (including but not limited to the "Right of First Refusal" under Section 3(c) of the Arianespace Multiparty Agreement) of the Company pursuant to, the Arianespace Agreements, shall be acceptable to the Investor in its reasonable judgment, and the Company shall have entered into a written agreement (or agreements) with the other parties to the Arianespace Agreements, in form and substance reasonably acceptable to the Investor.
(q) The employees of the Company as of the Closing Date are sufficient to run the business as conducted on the date hereof.
(r) Telesat shall have executed and delivered a written agreement in such form as is satisfactory to the Investor in its reasonable judgment, stating that the funding to the Company pursuant to the Subscription Agreements satisfies the Company's funding commitment obligations under the Second Amended and Restated Ka-Band Payload License Agreement, dated as of December 17, 2001, between Telesat and the Company.
(s) The Company shall have obtained all assurances (as are satisfactory to the Investor in its reasonable judgment), whether in writing or otherwise, from Space Systems/Loral, Inc., a Delaware corporation, that its business relationship with the Company and construction of the Wildblue 1 satellite is as set forth in the Business Action Plan.
(t) The Company and Credit Suisse First Boston Corporation ("CSFB") shall have executed and delivered a written agreement, on terms satisfactory to the Investor in its reasonable judgment, which provides for the termination of all rights of CSFB and obligations of the Company under, and the full satisfaction and release of all claims of CSFB against the Company in connection with, that certain Engagement Letter Agreement, dated as of April 5, 2001, between CSFB and the Company (including but not limited to the right of CSFB to a "Placement Fee" under Section 8 (and/or Section 2(a)) of the Engagement Letter in connection with this Agreement, any other Subscription Agreement or any other agreement or issuance of securities or other rights by the Company on or after the date hereof), without any payment or amount due from the Company other than (i) the reimbursement of expenses in an aggregate amount not to exceed $121,000 and (ii) such other amounts as shall be approved by the Investor in its reasonable judgment.
(u) The Board of Directors of Intelsat and Intelsat, Ltd., a Bermuda corporation and parent of Intelsat, shall have approved this Agreement and the other Closing Documents to which Intelsat is a party, and shall have authorized the transactions contemplated hereby and thereby to which Intelsat is a party.
(v) In connection with that certain agreement between the Company and TRW, Inc. ("TRW"), dated as of February 14, 2000, the Company and TRW shall have executed and delivered a written amendment or other agreement which confirms that TRW is entitled to acquire only either (i) 7,162.5 shares of Old Preferred Stock (prior to the Closing) or (ii) 7,162 shares of Series A Common Stock and cash payment for 0.5 of one share of Series A Common Stock (on and after the Closing), pursuant to Section 11 of such February 14, 2000 agreement, in each case on terms and conditions satisfactory to the Investor in its reasonable judgment.
Appears in 1 contract
Samples: Stock Purchase Agreement (Scientific Learning Corp)
