EXHIBIT 10.1
STOCK REPURCHASE AGREEMENT
BY AND BETWEEN
MOTIENT CORPORATION
AND
XXXXXX X. XXXXXXX
DATED AS OF MAY 13, 2005
TABLE OF CONTENTS
ARTICLE I Purchase and Sale.......................................................................................1
Section 1.1. Sale of Repurchase Shares..............................................................1
Section 1.2. Purchase Price.........................................................................1
Section 1.3. Closing................................................................................2
Section 1.4. Deliveries.............................................................................2
ARTICLE II Representations and Warranties of Seller...............................................................2
Section 2.1. Agreements Affecting Repurchase Shares.................................................2
Section 2.2. Title to Repurchase Shares.............................................................2
Section 2.3. Authority..............................................................................2
Section 2.4. Litigation.............................................................................3
Section 2.5. Receipt of Information.................................................................3
Section 2.6. Representation and Investigation.......................................................3
Section 2.7. Brokers or Finders.....................................................................3
Section 2.8. Unsolicited Purchase...................................................................4
Section 2.9. Representations Complete...............................................................4
ARTICLE III Representations and Warranties of Motient and Sub.....................................................4
Section 3.1. Organization, Standing and Power.......................................................4
Section 3.2. Authority..............................................................................4
Section 3.3. SEC Documents..........................................................................5
Section 3.4. Litigation.............................................................................5
Section 3.5. Tax Matters............................................................................5
Section 3.6. Broker's and Finders' Fees.............................................................5
Section 3.7. Representation and Investigation.......................................................5
Section 3.8. Representations Complete...............................................................6
ARTICLE IV Additional Agreements..................................................................................6
Section 4.1. Filings; Other Action..................................................................6
Section 4.2. Public Announcements...................................................................6
ARTICLE V Indemnification.........................................................................................7
Section 5.1. Survival of Representations and Warranties.............................................7
Section 5.2. Obligation to Indemnify................................................................7
Section 5.3. Indemnification Procedures.............................................................7
Section 5.4. Notices and Payments...................................................................8
Section 5.5. Limited Remedy.........................................................................9
ARTICLE VI Miscellaneous..........................................................................................9
Section 6.1. Expenses...............................................................................9
Section 6.2. Counterparts; Effectiveness............................................................9
Section 6.3. Governing Law..........................................................................9
Section 6.4. Notices................................................................................9
Section 6.5. Assignment; Binding Effect............................................................10
Section 6.6. Severability..........................................................................10
Section 6.7. Entire Agreement; Non-Assignability; Parties in Interest..............................11
Section 6.8. Headings..............................................................................11
Section 6.9. Certain Definitions...................................................................11
Section 6.10. Amendments and Waivers................................................................11
i
STOCK REPURCHASE AGREEMENT
THIS STOCK REPURCHASE AGREEMENT (this "AGREEMENT") is made and entered
into as of May 13, 2005 by and between Motient Corporation, a Delaware
corporation ("MOTIENT"), and Xxxxxx X. Xxxxxxx ("SELLER").
RECITALS:
WHEREAS, Seller purchased 1,785,000 shares (the "MOTIENT SHARES") of
Motient's common stock, par value $0.01 per share ("MOTIENT COMMON STOCK"), from
Motient pursuant to that certain Securities Purchase Agreement (the "PURCHASE
AGREEMENT"), dated as of November 12, 2005, by and among Motient and Seller,
among others; and
WHEREAS, in connection with the purchase of the Motient Shares pursuant
to the Purchase Agreement, Motient and Seller entered into that certain
Registration Rights Agreement (the "REGISTRATION RIGHTS AGREEMENT"), dated as of
November 12, 2004, by and among Seller and Motient (among others), pursuant to
which Motient agreed to file a registration statement on Form S-1 with the
Securities and Exchange Commission (the "SEC") to register the resale of the
Motient Shares and other securities (the "REGISTRATION STATEMENT"); and
WHEREAS, Motient has filed the Registration Statement with the SEC, but
the Registration Statement had not yet been declared effective by the SEC; and
WHEREAS, in order to provide Seller with liquidity for a portion of the
Motient Shares prior to the effectiveness of the Registration Statement, Seller
has agreed to sell to Motient, and Motient has agreed to purchase from Seller,
500,000 of the Motient Shares (the "REPURCHASE SHARES"), on and subject to the
terms and conditions set forth in this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the covenants and representations
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE
Section 1.1. SALE OF REPURCHASE SHARES. Subject to the terms and
conditions hereof and in reliance upon the representations, warranties and
agreements contained herein, at the Closing (defined below), Motient will
purchase from Seller, and Seller shall sell to Motient, the Repurchase Shares
for the aggregate consideration set forth in SECTION 1.2 below. The purchase of
the Repurchase Shares contemplated by this SECTION 1.1 is sometimes referred to
herein as the "STOCK REPURCHASE."
Section 1.2. PURCHASE PRICE. In consideration for the Repurchase
Shares, Motient shall pay to Seller $19.90 per share, for an aggregate cash
purchase price of $9,950,000 (the "PURCHASE PRICE"). Motient shall pay the
Purchase Price at the Closing by wire transfer of immediately available funds to
an account or accounts designated by Seller prior to the execution and delivery
of this Agreement.
Section 1.3. CLOSING. The closing (the "CLOSING") of the purchase and
sale of the Repurchase Shares in exchange for the Purchase Price is taking place
contemporaneously with the execution and delivery of this Agreement on the date
hereof and is being held at the offices of Xxxxxxx Xxxxx LLP, 000 Xxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx.
Section 1.4. DELIVERIES. At the Closing:
(a) Seller shall deliver to Motient the following:
(i) one or more certificates registered in Seller's name
representing the Repurchase Shares; and
(ii) a stock power with respect to the Repurchase Shares duly
endorsed in blank.
(b) Motient shall deliver to Seller the Purchase Price.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Motient, as follows:
Section 2.1. AGREEMENTS AFFECTING REPURCHASE SHARES. Seller is not a
party to, nor is Seller aware of, any voting agreement, voting trust or similar
agreement or arrangement relating to any of the Repurchase Shares.
Section 2.2. TITLE TO REPURCHASE SHARES. Seller is the sole record and
beneficial owner of the Repurchase Shares being sold to Motient pursuant to this
Agreement and owns the Repurchase Shares free and clear of any and all liens,
claims and encumbrances of any kind whatsoever, other than pursuant to
applicable securities laws ("SECURITIES LAW ENCUMBRANCES"), with full legal
right, power and authority to sell and transfer the Repurchase Shares to Motient
as contemplated by this Agreement. Seller has not sold, pledged, hypothecated or
otherwise transferred any of the Repurchase Shares or any interest therein to
any other person, and there are no outstanding options, rights, calls,
commitments of any kind relating to, or any presently effective agreements or
understandings with respect to, any of the Repurchase Shares that would affect
or prevent the sale of the Repurchase Shares to Motient as contemplated by this
Agreement.
Section 2.3. AUTHORITY. This Agreement has been duly executed and
delivered by Seller and constitutes the valid and binding obligation of Seller
enforceable against Seller in accordance with its terms. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby will not, conflict with, or result in any violation of, or
default under (with or without notice or lapse of time, or both), or give rise
to a right of termination, cancellation or acceleration of any obligation or
loss of a benefit under any material mortgage, indenture, lease, contract or
other agreement or instrument, permit, concession, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to Seller
or his properties or assets. No consent, approval, order or authorization of, or
2
registration, declaration or filing with, any governmental entity, is required
by or with respect to Seller in connection with the execution and delivery of
this Agreement by Seller or the consummation by Seller of the transactions
contemplated hereby or thereby, except for such consents, authorizations,
filings, approvals and registrations which, if not obtained or made, would not
have a material adverse effect on Seller and would not prevent, materially
alter, delay or otherwise invalidate any of the transactions contemplated, by or
the due execution and delivery of, this Agreement.
Section 2.4. LITIGATION. There is no private or government proceeding
pending before any agency, court or tribunal, foreign or otherwise, against
Seller or, to the knowledge of Seller, threatened against Seller that would
prevent, enjoin, alter or materially delay any of the transactions contemplated
by this Agreement, or that would have a material adverse effect on the ability
of Seller to consummate the transactions contemplated by this Agreement. There
is no judgment, decree or order against Seller that would prevent, enjoin, alter
or materially delay any of the transactions contemplated by this Agreement, or
that would have a material adverse effect on the ability of Seller to consummate
the transactions contemplated by this Agreement.
Section 2.5. RECEIPT OF INFORMATION. Seller believes he has received
all the information it considers necessary or appropriate for deciding whether
to enter into this Agreement and sell the Repurchase Shares to Motient on and
subject to the terms and conditions of this Agreement. Seller further represents
that he has had an opportunity to ask questions and receive answers from Motient
regarding the terms and conditions of this Agreement and the business and
financial condition of Motient and to obtain additional information (to the
extent Motient possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify the accuracy of any
information furnished to it or to which it had access.
Section 2.6. REPRESENTATION AND INVESTIGATION. Seller is sophisticated
in financial and business matters and has sufficient knowledge and experience in
investing in companies similar to Motient and in transactions of the sort
contemplated by this Agreement so as to be able to evaluate the risks and merits
of entering into this Agreement and consummating the transactions contemplated
hereby. Seller has been represented by independent legal counsel in connection
with this Agreement and fully understands all of the provisions of, facts and
circumstances and implications (financial and otherwise) of this Agreement and
has made such investigations with respect to all aspects of this Agreement and
the transactions contemplated hereby as Seller considers necessary, desirable
and appropriate in connection therewith. Seller acknowledges that this Agreement
and the terms and conditions hereof are the result of arm's length negotiations
with Motient and understands that the Purchase Price may be more, less or equal
to the prevailing market price of Motient Common Stock at the time of the
Closing. Seller acknowledges that Motient has made no representations or
warranties with respect to this Agreement or the transactions contemplated
hereby except as expressly set forth in ARTICLE III below.
Section 2.7. BROKERS OR FINDERS. Seller has not incurred, nor will it
incur, directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or investment bankers' fees or any similar charges in
connection with this Agreement or any transaction contemplated hereby.
3
Section 2.8. UNSOLICITED PURCHASE. This Agreement is being entered
into, and the Stock Repurchase contemplated hereby is being effected, at
Seller's request, and neither Motient nor any of Motient's affiliates solicited
Seller or any of Seller's affiliates in any manner to enter into this Agreement
or to effect the Stock Repurchase contemplated hereby. The Stock Repurchase
contemplated hereby is not being effected from or through a broker or dealer, on
a securities exchange or through an inter-dealer quotation system or electronic
communications network, but rather, in a direct transaction between Seller and
Motient, negotiated directly by the parties hereto at arm's length.
Section 2.9. REPRESENTATIONS COMPLETE. None of the representations or
warranties made by Seller herein contains any untrue statement of a material
fact, or omits to state any material fact necessary in order to make the
statements contained herein or therein, in the light of the circumstances under
which made, not misleading. The foregoing does not, however, limit or modify the
representations and warranties of Motient set forth in ARTICLE III of this
Agreement or the right of Seller to rely thereon.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MOTIENT
Motient hereby represents and warrants to Seller as follows:
Section 3.1. ORGANIZATION, STANDING AND POWER. Motient is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has the corporate power and authority to own its
properties and assets and to carry on its business as it is now being conducted
and is duly qualified to do business and is in good standing in each
jurisdiction in which the ownership of its properties or the conduct of its
business requires such qualification. The copies of the Certificate of
Incorporation and Bylaws of Motient that have been made available to Seller are
complete and correct and in full force and effect on the date hereof.
Section 3.2. AUTHORITY. Motient has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions and
carry out its obligations contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate and stockholder action on the
part of Motient. This Agreement has been duly executed and delivered by Motient
and constitutes the valid and binding obligations of Motient enforceable against
Motient in accordance with its terms. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated hereby
will not, conflict with, or result in any violation of, or default under (with
or without notice or lapse of time, or both), or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of a benefit
under (a) any provision of the Certificate of Incorporation or Bylaws of Motient
or any of its subsidiaries, as amended, or (b) any material mortgage, indenture,
lease, contract or other agreement or instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Motient or its properties or assets. No consent, approval, order
or authorization of, or registration, declaration or filing with, any
governmental entity, is required by or with respect to Motient in connection
with the execution and delivery of this Agreement by Motient or the consummation
by Motient of the transactions contemplated hereby or thereby, except for: (i)
the filing of a Form 8-K with the SEC within four (4) business days after the
4
Closing; and (ii) such other consents, authorizations, filings, approvals and
registrations which, if not obtained or made, would not have a material adverse
effect on Motient and would not prevent, materially alter, delay or otherwise
invalidate any of the transactions contemplated, by or the due execution and
delivery of, this Agreement.
Section 3.3. SEC DOCUMENTS. Motient has made available to Seller true
and complete copies of the following reports of Motient (collectively, the "SEC
DOCUMENTS"): (a) the annual report on Form 10-K for the year ended December 31,
2004 and (b) each other report filed with the SEC since December 31, 2004. As of
their respective filing dates, the SEC Documents complied in all material
respects with the requirements of the Securities Exchange Act of 1934, as
amended (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 Motient 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 Motient is a party or to which the property or assets of
Motient 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. Motient has prepared and filed with the SEC all
filings and reports required by the Exchange Act to make the Company's filings
and reports current in all respects.
Section 3.4. LITIGATION. There is no private or government proceeding
pending before any agency, court or tribunal, foreign or otherwise, against
Motient or any of its subsidiaries or, to the knowledge of Motient, threatened
against Motient or any of its subsidiaries that would prevent, enjoin, alter or
materially delay any of the transactions contemplated by this Agreement, or that
would have a material adverse effect on the ability of Motient to consummate the
transactions contemplated by this Agreement. There is no judgment, decree or
order against Motient or any of its subsidiaries, or, to the knowledge of
Motient, any of their respective directors or officers (in their capacities as
such), that would prevent, enjoin, alter or materially delay any of the
transactions contemplated by this Agreement, or that would have a material
adverse effect on the ability of Motient to consummate the transactions
contemplated by this Agreement.
Section 3.5. TAX MATTERS. Motient has timely filed all tax returns and
reports required by law to be filed by it, such returns and reports are true,
correct and complete in all material respects, and Motient has paid all taxes
owed for periods up to and including the date hereof that are required to have
been paid prior to the date hereof.
Section 3.6. BROKER'S AND FINDERS' FEES. Motient has not incurred, nor
will it incur, directly or indirectly, any liability for brokerage or finders'
fees or agents' commissions or investment bankers' fees or any similar charges
in connection with this Agreement or any transaction contemplated hereby.
Section 3.7. REPRESENTATION AND INVESTIGATION. Motient has been
represented by independent legal counsel in connection with this Agreement and
fully understands all of the provisions of, facts and circumstances and
implications (financial and otherwise) of this Agreement and has made such
5
investigations with respect to all aspects of this Agreement and the
transactions contemplated hereby as Motient considers necessary, desirable and
appropriate in connection therewith. Motient acknowledges that this Agreement
and the terms and conditions hereof are the result of arm's length negotiations
with Seller and understands that the Purchase Price may be more, less or equal
to the prevailing market price of Motient Common Stock at the time of the
Closing. Motient acknowledges that Seller has made no representations or
warranties with respect to this Agreement or the transactions contemplated
hereby except as expressly set forth in ARTICLE II above.
Section 3.8. REPRESENTATIONS COMPLETE. None of the representations or
warranties made by Motient herein contains any untrue statement of a material
fact, or omits to state any material fact necessary in order to make the
statements contained herein or therein, in the light of the circumstances under
which made, not misleading. The foregoing does not, however, limit or modify the
representations and warranties of Seller set forth in ARTICLE II of this
Agreement or the right of Motient to rely thereon.
ARTICLE IV
ADDITIONAL AGREEMENTS
Section 4.1. FILINGS; OTHER ACTION. Subject to the terms and conditions
herein provided, following the Closing, both Seller and Motient shall (a) use
reasonable efforts to cooperate with one another in (i) determining whether any
filings are required to be made with, or consents, permits, authorizations or
approvals are required to be obtained from, any third party, the United States
government or any agencies, departments or instrumentalities thereof or other
governmental or regulatory bodies or authorities of federal, state, local and
foreign jurisdictions in connection with the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and
thereby and (ii) timely making all such filings and timely seeking all such
consents, permits, authorizations or approvals and (b) use reasonable efforts to
take, or cause to be taken, all other actions and do, or cause to be done, all
other things necessary, proper or advisable to consummate and make effective the
transactions contemplated hereby.
Section 4.2. PUBLIC ANNOUNCEMENTS. Except as may be required by
applicable law, neither party hereto shall make any public announcements or
otherwise communicate with any news media or any other person (other than the
other party), with respect to this Agreement or any of the transactions
contemplated hereby, without prior consultation with the other party as to the
timing and content of any such announcement or communications; PROVIDED,
HOWEVER, that nothing contained herein shall prevent either party from (a)
promptly making all filings with governmental authorities or disclosures with
the stock exchange, if any, on which such party's capital stock is listed, as
may, in its judgment, be required in connection with the execution and delivery
of this Agreement or the consummation of the transactions contemplated hereby or
(b) disclosing the terms of this Agreement to such party's legal counsel,
financial advisors or accountants in furtherance of the transactions
contemplated by this Agreement.
6
ARTICLE V
INDEMNIFICATION
Section 5.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
warranties, representations, covenants and agreements of Motient and Seller
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing, for a period of twelve (12) months
(the "SURVIVAL PERIOD"), and shall in no way be affected by any investigation of
the subject matter thereof made by any party hereto.
Section 5.2. OBLIGATION TO INDEMNIFY.
(a) SELLER OBLIGATION TO INDEMNIFY. From and after the Closing, Seller
shall indemnify, defend and hold harmless Motient and Motient's officers,
directors, stockholders, employees, subsidiaries, agents and affiliates (each, a
"MOTIENT INDEMNITEE"), from and against all losses, claims, damages,
liabilities, obligations, fines, penalties, judgments, settlements, costs,
expenses and disbursements (including attorneys', accountants' and investigatory
fees and expenses) (collectively, "LOSSES") to the extent resulting from any (i)
breach or inaccuracy of any representation or warranty of Seller contained in
this Agreement for which a claim is initiated prior to the expiration of the
Survival Period or (ii) non-fulfillment or breach of any covenant or agreement
of Seller contained in this Agreement.
(b) MOTIENT'S OBLIGATION TO INDEMNIFY. From and after the Closing,
Motient shall indemnify, defend and hold harmless Seller and Seller's employees,
agents and affiliates (each, a "SELLER INDEMNITEE") from and against any and all
Losses to the extent resulting from or relating to any (i) breach or inaccuracy
of any representation or warranty of Motient contained in this Agreement for
which a claim is initiated prior to the expiration of the Survival Period or
(ii) non-fulfillment or breach of any covenant or agreement of Motient contained
in this Agreement.
(c) INDEMNIFICATION BASKET AMOUNT. Notwithstanding the foregoing, an
Indemnifying Party (defined below) shall not be required to indemnify an
Indemnified Party (defined below) pursuant to SECTION 5.2(A) or SECTION 5.2(B),
as applicable, unless and until the amount of all Losses incurred by such
Indemnified Party exceeds $0.5% of Purchase Price in the aggregate (the "BASKET
AMOUNT"), in which case the Indemnifying Party shall be required to indemnify
the Indemnified Party for any and all such Losses (including the Basket Amount).
Section 5.3. INDEMNIFICATION PROCEDURES.
(a) The person seeking indemnification hereunder (each, an "INDEMNIFIED
PARTY") shall give the party or parties from whom indemnification is sought or
to be sought (each, an "INDEMNIFYING PARTY") prompt written notice of any Loss
as to which, in the case of a Third Party Claim (defined below), they have
received written notification, or in the case of all other claims, they have
actual knowledge. If an indemnification claim involves a claim by a third party
(a "THIRD PARTY CLAIM"), the Indemnified Party shall promptly notify the
Indemnifying Party thereof in writing; PROVIDED, HOWEVER, that no delay on the
part of the Indemnified Party in notifying the Indemnifying Party shall relieve
the Indemnifying Party from any obligation hereunder unless (and then solely to
the extent) the Indemnifying Party is actually and materially prejudiced
thereby. An Indemnifying Party shall have thirty (30) business days from the
7
delivery of such notice (the "NOTICE RESPONSE PERIOD") to notify the Indemnified
Party whether or not it disputes its liability to the Indemnified Party
hereunder with respect to such claim or demand. If an Indemnifying Party
disputes its liability to an Indemnified Party hereunder with respect to such
claim or demand or the amount thereof prior to the expiration of the Notice
Response Period, such dispute shall be resolved by a civil action in a court of
appropriate jurisdiction (including as part of any proceeding with respect to
the claim that gave rise to the indemnification claim to which such dispute
relates) which may be commenced by either party. During the Notice Response
Period, no such claim or demand may be settled by the Indemnified Party.
(b) With respect to each Indemnification Matter (defined below), the
Indemnified Parties will have the sole right and authority to control the
defense against any Third Party Claim with one counsel of their collective
choice. This right shall include the right to settle or resolve the Third Party
Claim by entering into an agreement memorializing the terms of settlement or
resolution (a "SETTLEMENT AGREEMENT"); PROVIDED, HOWEVER, that the Indemnified
Party provides the Indemnifying Party with notice (in accordance with SECTION
5.4 hereof) of its intent to enter into a Settlement Agreement, which notice
shall include the proposed terms of the Settlement Agreement. The Indemnifying
Party shall, within thirty (30) business days of receipt of such notice, have
the right to reject the proposed Settlement Agreement, but shall do so only if
it reasonably determines that the Settlement Agreement does not represent a bona
fide and reasonable resolution of the underlying Third Party Claim. The
Indemnifying Party (and any Indemnified Party who is not otherwise satisfied
with the one counsel chosen by the Indemnified Parties collectively) may retain
separate co-counsel at their sole cost and expense and participate in the
defense of the Third Party Claim; PROVIDED, HOWEVER, that in no event may any
Indemnifying Party consent to the entry of any judgment, enter into any
settlement with respect to the Third Party Claim or agree with any Person other
than the Indemnified Party, to take any other action with respect to the Third
Party Claim without the prior written consent of the Indemnified Party . If it
is determined pursuant to an order or settlement agreement that an Indemnifying
Party is responsible for all or a portion of any amounts for which the
Indemnified Party is liable as a result of such Third Party Claim hereunder, the
Indemnifying Party shall, pursuant to SECTION 5.4(B), render payment to the
Indemnified Party for all Losses resulting from such claim, subject to the
provisions of SECTION 5.5.
Section 5.4. NOTICES AND PAYMENTS.
With respect to each separate matter which is subject to
indemnification under this ARTICLE V (each, an "INDEMNIFICATION MATTER"):
(a) NOTICE. Upon the Indemnified Party's receipt of written documents
pertaining to an Indemnification Matter, or, if the Indemnification Matter does
not involve a third party demand or claim, within a reasonable time after the
Indemnified Party first has actual knowledge of such Indemnification Matter, the
Indemnified Party shall give written notice to the Indemnifying Party of the
nature of such Indemnification Matter, and, if susceptible to estimation at such
time, the Indemnified Party's best estimate of the amount demanded or claimed in
connection therewith as provided in SECTION 5.3; PROVIDED, HOWEVER, that no
delay on the part of the Indemnified Party in notifying the Indemnifying Party
shall relieve the Indemnifying Party from any obligation hereunder unless (and
then solely to the extent) the Indemnifying Party is actually and materially
prejudiced thereby.
8
(b) PAYMENT. Upon determination of the amount of the Loss (whether due
to the Indemnifying Party's failure to dispute the indemnification matter, by
agreement among the parties, or after a Settlement Agreement is executed or a
final order is rendered with respect to the Indemnification Matter), the
Indemnifying Party shall promptly (and in any event, not later than ten (10)
days after such determination) pay to the Indemnified Party all amounts owing by
the Indemnifying Party under this ARTICLE V with respect to such Indemnification
Matter, subject to the limitations set forth in SECTION 5.5.
Section 5.5. LIMITED REMEDY.
(a) MOTIENT INDEMNITEE INDEMNIFICATION LIMIT. The maximum amount all
Motient Indemnitees may recover in the aggregate pursuant to the indemnity set
forth in SECTION 5.2(A) hereof shall be limited to the Purchase Price.
(b) SELLER INDEMNITEE INDEMNIFICATION LIMIT. The maximum amount all
Seller Indemnitees may recover in the aggregate pursuant to the indemnity set
forth in SECTION 5.2(B) shall be limited to the Purchase Price.
ARTICLE VI
MISCELLANEOUS
Section 6.1. EXPENSES. Whether or not the transactions contemplated
hereby are consummated, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby and thereby shall be paid by
the party incurring such expenses.
Section 6.2. COUNTERPARTS; EFFECTIVENESS. This Agreement may be
executed in two or more consecutive counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument, and shall become effective when one or more counterparts
have been signed by each of the parties and delivered (by telecopy or otherwise)
to the other parties.
Section 6.3. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the principles of conflicts of laws thereof.
Section 6.4. NOTICES. 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 three
(3) business days after the date sent by certified or registered mail (return
receipt requested), one (1) business day after the date sent by overnight
courier or on the date given by telecopy (with confirmation of receipt) or
delivered by hand, to the party to whom such correspondence is required or
permitted to be given hereunder.
9
To Motient:
Motient Corporation
000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxx LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxx
To Seller:
Xxxxxx X. Xxxxxxx
00 Xxxxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx, LLP
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Section 6.5. ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by either of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other party. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
Section 6.6. SEVERABILITY. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
10
Section 6.7. ENTIRE AGREEMENT; NON-ASSIGNABILITY; PARTIES IN INTEREST.
This Agreement and the documents and instruments and other agreements
specifically referred to herein or delivered pursuant hereto: (a) constitute the
entire agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof; (b) are not intended to
confer upon any other person any rights or remedies hereunder; and (c) shall not
be assigned by operation of law or otherwise, except as otherwise specifically
provided.
Section 6.8. HEADINGS. Headings of the Articles and Sections of this
Agreement are for convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
Section 6.9. CERTAIN DEFINITIONS. References in this Agreement to
"SUBSIDIARIES" of Motient shall mean any corporation or other form of legal
entity of which more than 50% of the outstanding voting securities are on the
date hereof directly or indirectly owned by Motient. References in this
Agreement (except as specifically otherwise defined) to "AFFILIATES" shall mean,
as to any person, any other person which, directly or indirectly, controls, or
is controlled by, or is under common control with, such person. As used in this
definition, "control" (including, with its correlative meanings, "controlled by"
and "under common control with") shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of management or
policies of a person, whether through the ownership of securities or partnership
or other ownership interests, by contract or otherwise. References in the
Agreement to "PERSON" shall mean an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including, without
limitation, a governmental body or authority.
Section 6.10. AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of each of the parties hereto.
[SIGNATURE PAGE FOLLOWS]
11
IN WITNESS WHEREOF, the parties hereto have caused this Stock
Repurchase Agreement to be duly executed and delivered as of the date first
above written.
MOTIENT CORPORATION
By: /s/ Xxxxxxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Executive Vice President and Chief
Operating Officer
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
