Exhibit AA
Execution Version
AMENDMENT NO. 1 TO ESCROW AGREEMENT
This Amendment No. 1, dated January 27, 2009 (the "Amendment No. 1"), is
entered into by and among Harbinger Capital Partners Master Fund, Ltd., an
exempted company organized under the laws of the Cayman Islands ("Harbinger
Master"), Harbinger Capital Partners Special Situations Fund, L.P., a Delaware
limited partnership ("Harbinger Special" and, together with Harbinger Master,
"Harbinger"), and Xxxxx Fargo Bank, National Association, as escrow agent
("Escrow Agent"). Harbinger and the Escrow Agent are referred to herein as the
"Parties" and individually as a "Party." Capitalized terms not otherwise defined
herein shall have the same meaning given to them in the Escrow Agreement (as
defined below).
RECITALS
Harbinger and the Escrow Agent are parties to that certain Escrow
Agreement, dated as of November 7, 2008 (the "Agreement"); and
Section 4.7 of the Agreement provides that Harbinger and the Escrow Agent
may amend in writing the Escrow Agreement; and
Harbinger and the Escrow Agent desire to amend the Agreement.
Therefore, in consideration of the promises and agreements of the Parties
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1. Amendment to Section 1.1. Section 1.1. is hereby amended and restated in
its entirety to read as follows:
Section 1.1. Escrow Property.
(a) Receipt of Remaining Shares. The Escrow Agent acknowledges receipt
of the Remaining Shares from the Stockholder pursuant to the terms of the
Transfer and Termination Agreement.
(b) Potential Privately Purchased Shares. At any time and from time to
time after the date of this Agreement, Harbinger may, but is under no
obligation to, arrange for the purchase of shares of common stock, par
value $0.01 per share ("Voting Common Stock") of the Company or non-voting
common stock, par value $0.01 per share ("Non-Voting Common Stock") of the
Company in one or more privately negotiated transactions from the Company
or a third-party (any such shares of Voting Common Stock and/or Non-Voting
Common Stock are hereinafter referred to as "Private Purchase Shares"). In
the event Harbinger arranges for the purchase of Private Purchase Shares,
(i) Harbinger shall provide the Escrow Agent with the funds necessary to
consummate such purchase, and (ii) upon receipt of such funds from
Harbinger, and the direction of any authorized person as identified in
writing by Harbinger, who shall initially include Xxxxxx Xxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx Xxxxxxx and Xxxxx Xxxxxx (any such person, an "Authorized
Person"), the Escrow Agent shall acquire and accept from any such seller,
all of such seller's right, title and interest in and to such Private
Purchase Shares, and shall hold such Private Purchase Shares in accordance
with the terms of this Agreement.
(c) Potential Open Market Purchased Shares. At any time and from time
to time after the date of this Agreement, Harbinger may, but is under no
obligation to, arrange for the purchase of shares of Voting Common Stock of
the Company in one or more open-market transactions from the Company or a
third-party (any such shares of Voting Common Stock are hereinafter
referred to as "Open Market Shares"). In the event Harbinger arranges for
the purchase of Open Market Shares, (i) Harbinger shall provide the Escrow
Agent with the funds necessary to consummate such purchase, and (ii) upon
receipt of such funds from Harbinger and the direction of an Authorized
Person, the Escrow Agent shall acquire and accept from any such seller, all
of such seller's right, title and interest in and to such Open Market
Shares, and shall hold such Open Market Shares in accordance with the terms
of this Agreement. The acquisition of Open Market Shares by the Escrow
Agent shall be executed by the Escrow Agent's Depository Trust Corporation
("DTC") participant (the "Participant") via DTC's Direct Registration
System ("DRS"). The commission for any purchases or sales of Open Market
Shares shall be $0.02 per share. An Authorized Person may direct the
purchase of Open Market Shares in any manner generally accepted by the
Participant for executing DRS transactions on behalf of customers. The
Escrow Agent shall not be liable for the purchase price of the Open Market
Shares which upon instruction will be purchased on a best effort basis.
(d) Potential Tendered Shares. At any time and from time to time after
the date of this Agreement, Harbinger may, but is under no obligation to,
arrange for the purchase of shares of Voting Common Stock of the Company
pursuant to one or more tender offers made to the holders of Voting Common
Stock (any such shares of Voting Common Stock are hereinafter referred to
as "Tendered Shares"). In the event Harbinger arranges for the purchase of
Tendered Shares, (i) Harbinger shall engage a depositary to receive tenders
of Tendered Shares, and deposit with such depositary the funds necessary to
pay the purchase price for those Tendered Shares accepted for payment, and
(ii) the Escrow Agent shall acquire and accept via free delivery from such
depositary all such Tendered Shares, including all of the seller's of such
Tendered Shares right, title and interest in and to such Tendered Shares,
and shall hold such Tendered Shares in accordance with the terms of this
Agreement.
(e) Company Distributions. If prior to the final distribution of the
Escrow Property (as defined below) pursuant to Section 1.3 of this
Agreement the Company effects any split, combination or reclassification of
its Voting Common Stock or Non-Voting Common Stock, or declares or pays any
dividend or other distribution payable to the holders of its Voting Common
Stock or Non-Voting Common Stock in additional shares of Voting Common
Stock, Non-Voting Common Stock, other securities or other property other
than cash dividends ("Non-Cash Distributions"), or any cash dividends
("Cash Distributions" and, together with Non-Cash Distributions,
"Distributions"), then the Escrow Agent shall hold, deliver and transfer
any such Distributions in accordance with the terms of this Agreement. The
Remaining Shares, the Private Purchase Shares (if any), the Open Market
Shares (if any), the Tendered Shares (if any) and any such Distributions
are hereinafter referred to as the "Escrow Property."
2. Amendment to Section 1.2. Section 1.2. is hereby amended and restated in
its entirety to read as follows:
Section 1.2. Title, Voting Rights; Distributions and Investments. Until
such time as the Escrow Agent transfers and delivers the Escrow Property in
accordance with Section 1.3 of this Agreement, (a) title to the Escrow
Property shall remain in the Escrow Agent and the Remaining Shares, the
Private Purchase Shares (if any), the Open Market Shares (if any), the
Tendered Shares (if any), and any other portion of the Escrow Property
consisting of securities issued by the Company shall remain registered on
the books of the Company in the name of the Escrow Agent or its nominees;
and (b) the Escrow Agent shall have the right, but not the obligation, to
exercise all voting rights associated with the Remaining Shares, the
Private Purchase Shares (if any), the Open Market Shares (if any), the
Tendered Shares (if any), and any other portion of the Escrow Property
consisting of securities issued by the Company. The Escrow Agent is
authorized and directed to deposit, transfer, hold and invest the Cash
Distributions and any investment income thereon as set forth in Exhibit A
hereto, or as set forth in any subsequent written instruction signed by
Harbinger. Any investment earnings and income on the Cash Distributions
shall become part of the Escrow Property, and shall be disbursed in
accordance with Section 1.3 of this Agreement.
3. Full Force and Effect. Except as expressly amended and restated pursuant
to this Amendment No. 1, the Agreement shall remain unchanged and in full force
and effect, and is hereby ratified and confirmed in all respects.
4. Governing Law. This Amendment No. 1 shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and performed in such state without regard to the conflicts or choice of
law provisions thereof that would give rise to the application of the domestic
substantive law of any other jurisdiction.
5. Entire Agreement. This Amendment No. 1, together with the Agreement and
the Transfer and Termination Agreement set forth the entire agreement and
understanding of the Parties related to the Escrow Property.
6. Counterparts. This Amendment No. 1 may be executed in one or more
counterparts, each of which when executed shall be deemed to be an original, and
such counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, this Amendment No. 1 has been duly executed as of the
date first written above.
HARBINGER CAPITAL PARTNERS MASTER
FUND I, LTD.
By: Harbinger Capital Partners Offshore
Manager, L.L.C., as investment manager
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President and Senior Managing
Director
HARBINGER CAPITAL PARTNERS SPECIAL
SITUATIONS FUND, L.P.
By: Harbinger Capital Partners Special
Situations GP, LLC, as general partner
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President and Senior Managing
Director
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Escrow Agent
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
