Exhibit 4.2
Amendment No. 1 to Stock Purchase Agreement
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THIS AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (this "Amendment") is
dated as of March 31, 1998, by and among Motorola, Inc., a Delaware corporation
("Seller"), Motorola Xxxxx Acquisition, Inc., a Delaware corporation ("MAA"),
Motorola Xxxxx, Inc., a Delaware corporation ("MAI"), AMSC Acquisition Company,
Inc., a Delaware corporation ("Purchaser") and American Mobile Satellite
Corporation, a Delaware corporation ("AMSC").
WHEREAS, Seller, MAA, MAI Purchaser and AMSC entered into that certain
Stock Purchase Agreement, dated as of December 31, 1997 (the "Purchase
Agreement"). Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by all of the parties hereto, the
parties hereto agree as follows:
1. Amendment.
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(a) No Escrow Agreement. On the Closing Date, payment by AMSC and
Purchaser for the MAI Shares shall be made in cash by wire transfer to an
account designated by Seller. None of the purchase price for the Shares will be
held in escrow. All provisions relating to the "Escrow Agreement," the "Escrow
Agent", the "Escrowed Funds," the "Seller Escrowed Funds" and the "Purchaser
Escrowed Funds" shall be disregarded.
(b) Delivery of Shares; AMSC Shareholder Approval.
(i) Delivery of Shares. Pursuant to the Purchase Agreement, in
consideration for the MAA Shares, AMSC agreed to deliver, at Closing, 6,549,217
shares of AMSC Common Stock, subject to adjustment pursuant to Sections 2.3 and
2.4 of the Purchase Agreement. The parties hereto agree and acknowledge that
AMSC will deliver to Seller, in consideration for AMSC's purchase of MMA Shares:
(A) at Closing, 5,025,000 shares of AMSC Common Stock, and (B) within 5 Business
Days of the Stockholders Meeting (as defined below), 1,524,217 shares of AMSC
Common Stock (or, at the option of Seller, AMSC Common Stock and/or AMSC
Warrants), and in the case of this clause (B), subject to adjustment pursuant to
Sections 2.3 and 2.4 of the Purchase Agreement. AMSC's obligation to issue any
shares of AMSC Common Stock and/or AMSC Warrants under clause (B) of the
immediately preceding sentence shall be contingent upon receipt by AMSC of the
approval of such issuance by the requisite vote of its stockholders under Nasdaq
NMS rule 4460(i) (excluding the vote of any shares issued under clause (A) of
the immediately preceding sentence) and if such approval is not obtained, AMSC
shall have no obligation to issue any shares of AMSC Common Stock or any AMSC
Warrants pursuant to clause (B) of the immediately preceding sentence; provided,
however that the foregoing shall not limit in any manner, AMSC's
representations, warranties and covenants under Section 1(b)(ii)(B) below.
(ii) AMSC Shareholder Approval.
(A) AMSC acknowledges that as of the Closing Date, a resolution
of stockholders of AMSC approving the transactions contemplated by the Purchase
Agreement and this Amendment (including the issuance of AMSC Common Stock
pursuant to clause (A) of Section 1(b)(i) above) will not be required under the
Rules of the NASD or otherwise. Therefore, the parties hereto agree that the
closing condition set forth in Section 6.1(i) of the Purchase Agreement shall be
waived and the delivery at the Closing of the AMSC Shareholder Approval shall
not be required. AMSC further agrees that it shall use its best efforts to
obtain, at its next annual stockholders' meeting (which AMSC shall use its best
efforts to hold no later than May 31, 1998) (the "Stockholders Meeting"), the
requisite stockholder vote to authorize the issuance of shares of AMSC Common
Stock (in the form of AMSC Common Stock and/or AMSC Warrants) to Seller as
contemplated by the Purchase Agreement and this Amendment.
(B) AMSC acknowledges that, pursuant to that Participation
Rights Agreement, dated as of December 31, 1997 (the "Participation Rights
Agreement"), by and among Seller, AMSC, and the Stockholders listed on Schedule
A thereto (the "Stockholders"), the Stockholders agreed to vote all of their
respective Stockholder Shares (as defined in the Participation Rights Agreement)
in favor of and to take such other necessary actions to approve all of the
transactions contemplated by the Purchase Agreement, including the issuance of
AMSC Common Stock to Seller. AMSC represents and warrants that (1) the
Participation Rights Agreement is a valid, binding and enforceable agreement
against AMSC and to the best of its knowledge, is a valid, binding and
enforceable agreement against each of the Stockholders, and (2) Section 3 of the
Participation Rights Agreement will be applicable to the vote of the
Stockholders at the Stockholders Meeting. AMSC covenants that (1) it will use
its best efforts to cause the Stockholders to comply with their obligations
under Section 3 of the Participation Rights Agreement to vote in favor of the
issuance of shares of AMSC Common Stock (in the form of AMSC Common Stock and/or
AMSC Warrants) to Seller as contemplated by the Purchase Agreement and this
Amendment, and (2) it will use its best efforts in cooperating with Seller in
any action by Seller to enforce the covenants of the Stockholders under the
Participation Rights Agreement.
(c) Accounting Treatment of Leases. For purposes of Section 2.3 and 2.4 of
the Purchase Agreement, the parties hereto acknowledge that the Closing Working
Capital shall not take into account the reclassification by KPMG Peat Marwick in
the consolidated balance sheet of XXXXX Holding of operating leases to capital
leases.
2. Miscellaneous.
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(a) Entire Agreement. This Amendment and the Purchase Agreement (including
all exhibits and schedules thereto), and the other documents delivered pursuant
thereto, referred to therein or executed and delivered in connection with the
transactions contemplated thereby, contain the entire agreement among Purchaser,
Seller, MAA, MAI and AMSC with respect to the transactions contemplated therein.
(b) Amendments and Waivers. The provisions of this Amendment may be
amended or waived only upon the prior written consent of Seller and AMSC.
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(c) Counterparts. This Amendment may be executed simultaneously in two or
more counterparts (including by means of telecopied signature pages), any one of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same agreement.
(d) Descriptive Headings. The descriptive headings of this Amendment
are inserted for convenience only and do not constitute a part of this
Amendment.
(e) Governing Law. THIS AMENDMENT AND THE LEGAL RELATIONS BETWEEN THE
PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO THE CONFLICTS OF LAWS PROVISIONS
THEREOF.
(f) Incorporation Herein of Provisions of the Purchase Agreement. Sections
10.5 [Notices], 10.6 [Assignment and Binding Effect], 10.8 [Severability], 10.10
[No Third Party Beneficiaries], 10.11 [Delays or Omissions], and 10.12
[Construction] of the Purchase Agreement shall be incorporated herein and shall
constitute a part of this Amendment.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment
No. 1 to Stock Purchase Agreement as of the date first written above.
MOTOROLA, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Its: Group Controller
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MOTOROLA XXXXX ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Its: Group Controller
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MOTOROLA XXXXX, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Its: Group Controller
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AMERICAN MOBILE SATELLITE
CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Its: Vice President & Secretary
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AMSC ACQUISITION COMPANY, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Its: Vice President & Secretary
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