Exhibit 10.58
STOCK PURCHASE AGREEMENT
BY AND AMONG
MOTIENT CORPORATION,
MVH HOLDINGS INC.
AND
[PURCHASER]
Dated as of February 9, 2005
TABLE OF CONTENTS
ARTICLE I Purchase and Sale.......................................................................................1
Section 1.1. Sale of Blocker Corp Common Stock......................................................1
Section 1.2. Closing................................................................................1
Section 1.3. Deliveries.............................................................................1
ARTICLE II Representations and Warranties of Columbia.............................................................3
Section 2.1. Organization, Qualification, Etc.......................................................3
Section 2.2. Capitalization.........................................................................3
Section 2.3. Title to Blocker Corp Shares...........................................................4
Section 2.4. Authority..............................................................................4
Section 2.5. No Liabilities; No Operations..........................................................4
Section 2.6. Litigation.............................................................................5
Section 2.7. Blocker Corp Assets....................................................................5
Section 2.8. Blocker Corp Agreements................................................................5
Section 2.9. No Violation of Law....................................................................5
Section 2.10. Tax Matters............................................................................5
Section 2.11. Representations Complete...............................................................5
Section 2.12. Purchase Entirely for Own Account......................................................6
Section 2.13. Reliance Upon the Columbia's Representations...........................................6
Section 2.14. Receipt of Information.................................................................6
Section 2.15. Investor Status; Etc...................................................................6
Section 2.16. Brokers or Finders.....................................................................6
Section 2.17. Restricted Securities..................................................................6
Section 2.18. Legends................................................................................7
ARTICLE III Representations and Warranties of Motient and Sub.....................................................7
Section 3.1. Organization, Standing and Power.......................................................7
Section 3.2. Capitalization.........................................................................7
Section 3.3. Authorization of Motient Common Stock..................................................7
Section 3.4. Issuance of Motient Shares and Motient Warrants........................................7
Section 3.5. Title to Motient Shares and Warrants...................................................8
Section 3.6. Authority..............................................................................8
Section 3.7. SEC Documents..........................................................................8
Section 3.8. Litigation.............................................................................9
Section 3.9. Tax Matters............................................................................9
Section 3.10. Broker's and Finders' Fees.............................................................9
Section 3.11. Representations Complete...............................................................9
Section 3.12. Investment Company Act.................................................................9
Section 3.13. Independent Investigation..............................................................9
ARTICLE IV Additional Agreements.................................................................................10
Section 4.1. Filings; Other Action.................................................................10
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Section 4.2. Public Announcements..................................................................10
Section 4.3. Blue Sky Laws.........................................................................10
Section 4.4. Additional Consideration..............................................................10
Section 4.5. Motient Rights Offering...............................................................11
Section 4.6. Designation of Director...............................................................11
Section 4.7. Right to Transfer.....................................................................11
Section 4.8. Independent Evaluation of Investment..................................................12
ARTICLE V Indemnification........................................................................................12
Section 5.1. Survival of Representations and Warranties............................................12
Section 5.2. Obligation to Indemnify...............................................................12
Section 5.3. Indemnification Procedures............................................................13
Section 5.4. Notices and Payments..................................................................14
Section 5.5. Limited Remedy........................................................................15
ARTICLE VI Miscellaneous.........................................................................................15
Section 6.1. Expenses..............................................................................15
Section 6.2. Counterparts: Effectiveness...........................................................15
Section 6.3. Governing Law.........................................................................15
Section 6.4. Notices...............................................................................15
Section 6.5. Assignment; Binding Effect............................................................16
Section 6.6. Severability..........................................................................16
Section 6.7. Entire Agreement; Non-Assignability; Parties in Interest..............................17
Section 6.8. Headings..............................................................................17
Section 6.9. Certain Definitions...................................................................17
Section 6.10. Amendments and Waivers................................................................17
Schedule A Columbia Disclosure Schedule
Exhibit A Form of Motient Warrant
Exhibit B Form of Registration Rights Agreement
Exhibit C Stockholders Agreement
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of February 9, 2005 by and among Motient Corporation, a Delaware
corporation ("Motient"), MVH Holdings Inc., a Delaware corporation and direct
wholly-owned subsidiary of Motient ("Sub") and [Purchaser] ("Columbia"), a
Delaware limited partnership.
RECITAL:
WHEREAS, subject to the terms and conditions set forth in this
Agreement, Sub desires to purchase __________ shares (the "Blocker Corp Shares")
of common stock, par value $0.01 per share (the "Blocker Corp Common Stock") of
_________________ ("Blocker Corp") in exchange for (i) an aggregate of
____________________ shares (the "Motient Shares") of Motient's common stock,
par value $0.01 per share ("Motient Common Stock") and (ii) a warrant (the
"Motient Warrant") to purchase _____________ shares of Motient Common Stock (the
"Warrant Shares"), a form of which is attached as Exhibit A hereto, which shall
only become exercisable in the event that Motient is unable to file a
Registration Statement on Form S-1 to register the resale of the Motient Shares
and the Warrant Shares and/or such registration statement is not declared
effective by the Securities and Exchange Commission (the "SEC") prior to the
dates set forth in the Motient Warrant.
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 Blocker Corp Common Stock. Subject to the terms
and conditions hereof and in reliance upon the representations, warranties and
agreements contained herein, at the Closing (defined below), Sub will purchase
from Columbia, and Columbia shall issue and sell to Sub, the Blocker Corp Shares
from Columbia in exchange for the Motient Shares and the Motient Warrant.
Section 1.2. Closing. The closing (the "Closing") of the purchase and
sale of shares of Blocker Corp Common Stock in exchange for the Motient Shares
and the Motient Warrant 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 1.3. Deliveries. At the Closing:
(a) Columbia shall deliver to Sub the following:
(i) a certificate registered in Sub's name representing the
Blocker Corp Shares;
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(ii) the Rights Agreement duly executed by Columbia;
(iii) the Stockholders Agreement in the form attached as Exhibit C
hereto (the "Blocker Corp Stockholders' Agreement") duly executed by Columbia;
and
(iv) the Amended and Restated Consent Agreement in the form
attached as Exhibit D hereto, duly executed by Spectrum Space Equity Investors
IV, Inc., Spectrum Space IV Parallel, Inc., Spectrum Space IV Managers, Inc.,
Columbia Space (QP), Inc., Columbia Space (AI), Inc., Columbia Space Partners,
Inc., Telcom Satellite Ventures Inc. and Telcom Satellite Ventures II Inc. (the
"Consent Agreement").
(b) Sub shall deliver to Columbia the following:
(i) a certificate registered in Columbia's name representing the
Motient Shares which was contributed by Motient to Sub immediately prior to the
Closing;
(ii) the Motient Warrant, which was contributed by Motient to Sub
immediately prior to the Closing;
(iii) the Rights Agreement duly executed by Motient;
(iv) the Blocker Corp Stockholders' Agreement duly executed by
Sub;
(v) a draft copy of Motient's Registration Statement on Form S-1
(the "Mandatory S-1") registering the resale by Columbia of the Motient Shares
and Warrant Shares in form and substance substantially as required by the rules
and regulations of the SEC, together with such information and assurances as
Columbia shall require in its reasonable discretion with respect to Motient's
ability to meet its registration obligations as described in the Rights
Agreement;
(vi) an acknowledgement duly executed by Sub agreeing to be bound
by the terms of the Second Amended and Restated Parent Transfer/Drag Along
Agreement dated November 12, 2004 (the "MSV Parent Transfer/Drag Along
Agreement") with respect to the Blocker Corp Shares Sub is purchasing hereunder;
(vii) an acknowledgement duly executed by Sub agreeing to be bound
by the terms of the Parent Transfer/Drag Along Agreement dated December 20, 2004
(the "TerreStar Parent Transfer/Drag Along Agreement") with respect to the
Blocker Corp Shares Sub is purchasing hereunder;
(viii) certified resolutions of Motient's and Sub's Boards of
Directors approving this Agreement and the transactions contemplated hereby;
(ix) a certificate of good standing for Motient and Sub from the
Secretary of State of the State of Delaware; and
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(x) the Consent Agreement executed by (i) Sub whereby Sub has
agreed to be bound by the terms, conditions and provisions of the Consent
Agreement with respect to the limited partnership units (the "MSV LP Units") of
Mobile Satellite Ventures, L.P. ("MSV") and the shares of common stock (the "MSV
GP Common Stock") of Mobile Satellite Ventures GP Inc. ("MSV GP") indirectly
acquired by it pursuant to this Agreement and (ii) Motient Ventures Holding,
Inc., a Delaware corporation and wholly-owned subsidiary of Sub ("Motient
Ventures Holding") whereby Motient Ventures Holding has agreed to be bound by
the terms, conditions and provisions of the Consent Agreement with respect to
MSV LP Units and the MSV GP Common Stock indirectly acquired by it in connection
with the transactions contemplated by the Agreement and Plan of Merger by and
among Motient, Sub, Telcom Satellite Ventures Inc. and Telcom Satellite Ventures
II Inc. (the "Merger Agreement").
ARTICLE II
Representations and Warranties of Columbia
------------------------------------------
Except as otherwise specifically provided in the Disclosure Schedule of
Columbia attached hereto and incorporated herein by reference (the "Columbia
Disclosure Schedule"), Columbia represents and warrants to Motient and Sub, as
follows:
Section 2.1. Organization, Qualification, Etc. Blocker Corp 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 Blocker Corp Certificate
of Incorporation and Bylaws which have been delivered to Motient and Sub are
complete and correct and in full force and effect on the date hereof.
Section 2.2. Capitalization.
(a) The authorized stock of Blocker Corp consists of 3,000 shares of
Blocker Corp Common Stock, 200 of which are issued and outstanding. All the
issued and outstanding shares of Blocker Corp Common Stock have been validly
issued and are fully paid and non-assessable.
(b) Neither Columbia nor Blocker Corp is a party to, nor is Columbia
aware of, any voting agreement, voting trust or similar agreement or arrangement
relating to any shares of Blocker Corp Common Stock, except for the Blocker Corp
Stockholders' Agreement, the Consent Agreement, the Voting Agreement dated
November 12, 2004 by and among Columbia and the other parties thereto (the "MSV
Voting Agreement"), the Voting Agreement dated December 20, 2004 by and among
Blocker Corp and the other parties thereto (the "TerreStar Voting Agreement"),
the MSV Parent Transfer/Drag Along Agreement, the TerreStar Parent Transfer/Drag
Along Agreement, the Amended and Restated Limited Partnership Agreement of MSV,
dated November 12, 2004, as amended (the "Partnership Agreement"), the Amended
and Restated Stockholders' Agreement dated November 12, 2004 by and among MSV GP
and the stockholders of MSV GP (the "MSV Stockholders' Agreement"), the Rights
Certificates (as defined below), the Securityholders Agreement by and among MSV
and other securityholders of TerreStar (including the Irrevocable Proxies
executed in connection therewith)(the "TerreStar Securityholders Agreement")
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dated December 20, 2004 (collectively, all of the foregoing are the "Other
Documents"), or any agreement or arrangement providing for registration rights
with respect to any capital stock or other securities of Blocker Corp.
(c) Other than (i) the MSV LP Units, (ii) the MSV GP Common Stock, and
(iii) the rights of Blocker Corp to receive shares of common stock of TerreStar
Networks Inc. ("TerreStar") pursuant to Right to Receive Shares of Common Stock
(the "Rights Certificates"), Blocker Corp does not, directly or indirectly, own
of record or beneficially, or have the right or obligation to acquire, any
outstanding securities or other interest in any corporation, partnership, joint
venture or other entity, except as otherwise may be set forth in the Other
Documents.
Section 2.3. Title to Blocker Corp Shares. Columbia owns the Blocker
Corp Shares being sold to Sub pursuant to this Agreement free and clear of any
and all liens, claims and encumbrances of any kind, other than pursuant to (i)
applicable securities laws ("Securities Law Encumbrances") and (ii) the Other
Documents. Upon consummation of the transactions hereunder assuming compliance
with the Other Documents, Sub shall be vested with valid title to the Blocker
Corp Shares, free and clear of any liens, claims and encumbrances of any kind
(other than Securities Law Encumbrances and those pursuant to the Other
Documents).
Section 2.4. Authority. Columbia 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 partnership action on the part of
Columbia. This Agreement has been duly executed and delivered by Columbia and
constitutes the valid and binding obligation of Columbia enforceable against
Columbia 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 (i) any provision of the organizational documents of Columbia or Blocker
Corp, or (ii) other than the Other Documents, 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 Columbia 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 Columbia in connection
with the execution and delivery of this Agreement by Columbia or the
consummation by Columbia 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
Columbia or Blocker Corp 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 2.5. No Liabilities; No Operations. Except in connection with
its ownership and participation in the management of (i) MSV through the
ownership of MSV LP Units and MSV GP Common Stock (including, but not limited
to, the exercise of those rights pursuant to the Other Documents), (ii)
TerreStar, and the exercise of its rights as such owner (including, but not
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limited to, the exercise of those rights pursuant to the Other Documents), and
(iii) as otherwise disclosed herein, Blocker Corp has no debt, liabilities or
obligations of any nature, whether or not accrued, contingent or otherwise, and
is not currently conducting nor has it ever conducted any operations.
Section 2.6. Litigation. There is no private or government proceeding
pending before any agency, court or tribunal, foreign or otherwise, against
Columbia or Blocker Corp or any of Columbia's subsidiaries or, to the knowledge
of Columbia, threatened against Columbia or Blocker Corp or any of Columbia's
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 Columbia to consummate the transactions
contemplated by this Agreement. There is no judgment, decree or order against
Columbia or Blocker Corp or any of Columbia's subsidiaries, or, to the knowledge
of Columbia, 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 Columbia to consummate the transactions
contemplated by this Agreement.
Section 2.7. Blocker Corp Assets. All assets of Blocker Corp are set
forth on Schedule 2.7 hereto (collectively, the "Blocker Corp Assets"). Blocker
Corp has good and marketable title to the Blocker Corp Assets, including the MSV
LP Units and MSV GP Common Stock listed on Schedule 2.7, free and clear of all
liens, security interests, encumbrances or adverse claims (other than Securities
Law Encumbrances and those pursuant to the Other Documents).
Section 2.8. Blocker Corp Agreements. Columbia has delivered to Motient
(i) a correct and complete copy of each written contract, agreement, plan,
understanding, commitment or other arrangement that is binding on Blocker Corp
and except, in each case, for those to which Motient or a subsidiary thereof is
a party (collectively, the "Blocker Corp Agreements") to which it is a party and
(ii) a written summary setting forth the terms and conditions of each oral
contract, agreement, plan, understanding, commitment or other arrangement that
is binding on Blocker Corp and except, in each case, for those to which Motient
or a subsidiary thereof is a party (collectively, the "Blocker Corp Oral
Agreements") to which it is a party. A list of each Blocker Corp Agreement and
Blocker Corp Oral Agreement is set forth on Schedule 2.8 hereto.
Section 2.9. No Violation of Law. The business of Blocker Corp is not
being conducted in violation of any law, ordinance or regulation of any
governmental entity.
Section 2.10. Tax Matters. Blocker Corp has timely filed all tax
returns and reports required by law to be filed by it, these returns and reports
are true, correct and complete in all material respects and Blocker Corp has
paid all taxes owed for the period up to and including the date hereof which are
required to have been paid prior to the date hereof.
Section 2.11. Representations Complete. None of the representations or
warranties made by Columbia herein or in any Schedule hereto, including the
Columbia Disclosure Schedule, when all such documents are read together in their
entirety, 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
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foregoing does not, however, limit or modify the representations and warranties
of Motient or Sub set forth in Article III of this Agreement or the right of
Columbia to rely thereon.
Section 2.12. Purchase Entirely for Own Account. The Motient Shares,
Motient Warrants and the Warrant Shares to be issued to Columbia will be
acquired for investment for Columbia's own account, not as a nominee or agent,
and not with a view to the resale or distribution of any part thereof, in each
case, in violation of applicable securities laws, and Columbia has no present
intention of selling, granting any participation in, or otherwise distributing
the same except in compliance with applicable securities laws.
Section 2.13. Reliance Upon the Columbia's Representations. Columbia
understands that the Motient Shares, Motient Warrants and Warrant Shares are not
registered under the Securities Act and the sale provided for in this Agreement
and Motient's issuance of securities hereunder will be made in reliance upon an
exemption from registration under the Securities Act pursuant to Section 4(2)
thereof, and that, in such case, Motient's reliance on such exemption will be
based on Columbia's representations set forth herein.
Section 2.14. Receipt of Information. Columbia believes it has received
all the information it considers necessary or appropriate for deciding whether
to acquire the Motient Shares and Motient Warrants. Columbia further represents
that it has had an opportunity to ask questions and receive answers from Motient
regarding the terms and conditions of the offering of the Motient Shares and
Motient Warrants 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 which it had access.
Section 2.15. Investor Status; Etc. Columbia certifies and represents
to Motient that it is an "accredited investor" as defined in Rule 501 of
Regulation D promulgated under the Securities Act and was not organized for the
purpose of acquiring any of the Motient Shares, the Motient Warrants or the
Warrant Shares. Columbia's financial condition is such that it is able to bear
the risk of holding the Motient Shares for an indefinite period of time and the
risk of loss of its entire investment. Columbia has sufficient knowledge and
experience in investing in companies similar to Motient so as to be able to
evaluate the risks and merits of its investment in Motient.
Section 2.16. Brokers or Finders. Columbia 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 2.17. Restricted Securities. Columbia understands that the
Motient Shares, Motient Warrants and the Warrant Shares may not be sold,
transferred or otherwise disposed of without registration under the Securities
Act or an exemption therefrom, and that in the absence of an effective
registration statement covering same or an available exemption from registration
under the Securities Act, such Motient Shares, Motient Warrants and Warrant
Shares must be held indefinitely. In particular, Columbia is aware that such
Motient Shares, Motient Warrants and Warrant Shares may not be sold pursuant to
Rule 144 or Rule 145 promulgated under the Securities Act unless all of the
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conditions of the applicable rule are met. Among the conditions for use of Rules
144 and 145 is the availability of current information to the public about
Motient.
Section 2.18. Legends. It is understood that the certificates
evidencing the Motient Shares, Motient Warrants and Warrant Shares will bear one
or all of the following legends:
(a) "These securities have not been registered under the Securities Act
of 1933, as amended. They may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with respect
to the securities under such Act or an opinion of counsel satisfactory to
Motient Corporation that such registration is not required or unless sold
pursuant to Rule 144 or Rule 145 of such Act or another applicable exemption."
(b) Any legend required by the laws of the State of Delaware or other
jurisdiction.
ARTICLE III
Representations and Warranties of Motient and Sub
-------------------------------------------------
Motient and Sub, jointly and severally, represent and warrant to
Columbia as follows:
Section 3.1. Organization, Standing and Power. Motient and Sub are
corporations duly organized, validly existing and in good standing under the
laws of the State of Delaware and each 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 Certificates of
Incorporation and Bylaws of Motient and Sub which have been made available to
Columbia are complete and correct and in full force and effect on the date
hereof.
Section 3.2. Capitalization. The authorized stock of Motient consists
of 100,000,000 shares of Motient Common Stock, of which 52,063,054 shares were
issued and outstanding as of February 5, 2005, and 5,000,000 shares of preferred
stock, par value $0.01 per share, of which no shares are issued and outstanding
as of the date hereof. All the outstanding shares of Motient Common Stock have
been validly issued and are fully paid and non-assessable. Sub is a wholly-owned
subsidiary of Motient.
Section 3.3. Authorization of Motient Common Stock. Immediately prior
to the Closing, Motient contributed the Motient Shares and the Motient Warrant
to Sub and Sub has authorized the sale and issuance of the Motient Shares and
the Motient Warrant to Columbia hereunder.
Section 3.4. Issuance of Motient Shares and Motient Warrants. The
issuance, sale and delivery of the Motient Shares and the Warrant Shares in
accordance with this Agreement and the Motient Warrant have been duly authorized
by all necessary corporate action and stockholder action on the part of Motient
and Sub and their respective officers, directors and stockholders. The Motient
Shares, when so issued, sold and delivered against payment therefor in
accordance with the provisions of this Agreement, will be duly authorized,
validly issued, fully paid and non-assessable. The Warrant Shares, when issued
upon exercise in accordance with the provisions of the Motient Warrant, will be
duly authorized, validly issued, fully paid and non-assessable.
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Section 3.5. Title to Motient Shares and Warrants. Upon consummation of
the transactions hereunder, Columbia shall be vested with valid title to the
Motient Shares and the Motient Warrants, free and clear of any liens, claims and
encumbrances of any kind.
Section 3.6. Authority. Motient and Sub have all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions and carry out its respective 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 and Sub. This Agreement
has been duly executed and delivered by Motient and Sub and constitutes the
valid and binding obligations of Motient and Sub enforceable against Motient and
Sub 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 (i)
any provision of the Certificate of Incorporation or Bylaws of Motient or Sub or
any of their subsidiaries, as amended, or (ii) other than the Other Documents,
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 Sub or
their 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 or Sub in connection with the execution and
delivery of this Agreement by Motient or Sub or the consummation by Motient or
Sub of the transactions contemplated hereby or thereby, except for: (i) the
filing of a Form 8-K with the SEC within 4 business days after the Closing; (ii)
such filings under applicable state securities laws and the securities laws of
any foreign country as may be required in connection with the transactions
contemplated by this Agreement which are permitted by such laws to be filed
after the Closing; and (iii) such other consents, authorizations, filings,
approvals and registrations which, if not obtained or made, would not have a
material adverse effect on Motient or Sub 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 3.7. SEC Documents. The Company has made available to Columbia
true and complete copies of the following reports of Motient (collectively, the
"SEC Documents"): (i) the annual report on Form 10-K for the year ended December
31, 2003, (ii) quarterly reports on Form 10-Q for the periods ended March 31,
2004, June 30, 2004 and September 30, 2004 and (iii) each current report on Form
8-K filed with the SEC since December 31, 2003. 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
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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
Securities Act of 1933, as amended (the "Securities Act") and the Exchange Act
to make Motient's filings and reports current in all respects.
Section 3.8. 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 or Sub 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 or Sub to consummate the
transactions contemplated by this Agreement.
Section 3.9. Tax Matters. Each of Motient and Sub have 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 and
Sub have paid all taxes owed for period up to and including the date hereof
which are required to have been paid prior to the date hereof.
Section 3.10. Broker's and Finders' Fees. Neither Motient nor Sub has
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 3.11. Representations Complete. None of the representations or
warranties made by Motient or Sub herein or in any Schedule hereto, or
certificate furnished by Motient or Sub pursuant to this Agreement, when all
such documents are read together in their entirety, 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 Columbia set forth in
Article II of this Agreement or the rights of Motient or Sub to rely thereon.
Section 3.12. Investment Company Act. Neither Motient nor Sub is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, and Sub is not subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act.
Section 3.13. Independent Investigation. Motient and Sub are acting for
their own account and each have made their own independent decision to enter
into this Agreement and to directly acquire the Blocker Corp Shares and to
indirectly acquire equity interests in MSV and MSV GP and TerreStar through the
purchase of the Blocker Corp Shares pursuant to the transactions contemplated by
this Agreement, based solely on their own judgment and investigation and upon
advice from such legal, financial, tax and other advisors as it has deemed
appropriate. Neither Motient nor Sub is relying on any investment advice,
assurance or recommendations by any other party to this Agreement with respect
to its investment in Blocker Corp, MSV, MSV GP and TerreStar.
9
ARTICLE IV
Additional Agreements
---------------------
Section 4.1. Filings; Other Action. Subject to the terms and conditions
herein provided, following the Closing, both Columbia and Motient shall (i) use
reasonable efforts to cooperate with one another in (A) 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 (B) timely making all such filings and timely seeking all such
consents, permits, authorizations or approvals and (iii) 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, no party hereto shall make any public announcements or otherwise
communicate with any news media or any other party, with respect to this
Agreement or any of the transactions contemplated hereby, without prior
consultation with the other parties as to the timing and contents of any such
announcement or communications; provided, however, that nothing contained herein
shall prevent any party from (i) 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 (ii) 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.
Section 4.3. Blue Sky Laws. Motient shall take such steps as may be
necessary to comply with the securities and blue sky laws of all jurisdictions
which are applicable to the issuance of the Motient Shares, the Motient Warrants
and the Warrant Shares in connection with this Agreement. Columbia shall use its
best efforts to assist Motient as may be necessary to comply with the securities
and blue sky laws of all jurisdictions in which such compliance is necessary or
desirable in connection therewith.
Section 4.4. Additional Consideration. If at any time after the date
hereof and prior to the one year anniversary of the date hereof Motient directly
or indirectly acquires additional interests in MSV (or its successors) from a
party who is a limited partner of MSV on the date hereof (a "Subsequent MSV
Purchase"), Motient will make a capital contribution to Sub which will issue to
Columbia as additional consideration hereunder (the "Additional Consideration")
for the purchase of the Blocker Corp Shares, a number of shares of Motient
Common Stock equal to the product of (i) the number of MSV limited partnership
units held by Blocker Corp immediately prior to the Closing, multiplied by (ii)
a fraction, the numerator of which is the number of Blocker Corp Shares acquired
by Sub hereunder and the denominator of which is the number of issued and
outstanding shares of Blocker Corp Common Stock as of the Closing, multiplied by
(iii) the difference between (x) the number of shares of Motient Common Stock
issued in the Subsequent MSV Purchase in exchange for each MSV limited
partnership unit directly or indirectly acquired in such Subsequent MSV Purchase
10
and (y) the product of (A) the number of Motient Shares, multiplied by (B) a
fraction, the numerator of which is the number of shares of Blocker Corp Common
Stock issued and outstanding as of the Closing and the denominator of which is
the product of the number of Blocker Corp Shares purchased by Sub at Closing and
the number of MSV limited partnership units owned by Blocker Corp as of the
Closing; provided, that if the number in clause (y) above shall be equal to or
greater than the number in clause (x), no additional shares of Motient Common
Stock shall be issuable to Columbia pursuant to this Section 4.4. Any shares of
Motient Common Stock issuable pursuant to this Section 4.4 shall be entitled to
piggyback registration rights granted pursuant to the Registration Rights
Agreement by and among Motient, Sub, Columbia and the other parties thereto
dated as of the date hereof (the "Rights Agreement"), a form of which is
attached as Exhibit B hereto. Notwithstanding the foregoing, if the issuance of
shares of Motient Common Stock pursuant to this Section 4.4 would require
Columbia or any affiliate of Columbia to obtain regulatory approval prior to
receiving such shares, such issuance will not occur if and until such time as
such regulatory approval has been obtained. Columbia hereby agrees and
acknowledges that no Additional Consideration is owed to it pursuant to this
Section 4.4 due to the transactions contemplated by the Merger Agreement or the
other Stock Purchase Agreements (defined below).
Section 4.5. Motient Rights Offering. After the Closing, Motient may
issue up to 2,500,000 shares of Motient Common Stock at a purchase price per
share of $8.57 to its stockholders of record on December 17, 2004 pursuant to a
rights offering (the "Rights Offering"). The Motient Shares to be issued to
Columbia at Closing, will be issued to Columbia after the record date for such
Rights Offering and Columbia hereby acknowledges that it has no right to
participate in the Rights Offering.
Section 4.6. Designation of Director. Pursuant to the Merger Agreement
and this and the other Stock Purchase Agreements dated as of the date hereof by
and among Motient, Sub and each of Columbia Capital Equity Partners III (QP),
L.P., Columbia Capital Equity Partners III (AI), L.P., Columbia Capital Equity
Partners III (CAYMAN), L.P., Columbia Capital Investors III, LLC, Columbia
Capital Employee Investors III, L.L.C., Spectrum Space Equity Investors IV,
L.P., Spectrum IV Investment Managers' Fund, L.P. and Spectrum Equity Investors
Parallel IV, L.P. (collectively, the "Stock Purchase Agreements"), the members
of the Telcom Investor Group, the Columbia Investor Group and the Spectrum
Investor Group (as such terms are defined in the MSV Stockholders' Agreement)
are transferring to Motient or affiliates of Motient more than five percent (5%)
Percentage Interests (as such term is defined in the MSV Stockholders'
Agreement), and in connection herewith and therewith, hereby expressly transfer
to Motient such Investor Group's right to designate one director of MSV GP
pursuant to Section 2(b)(i) of the MSV Stockholders' Agreement, which director
shall be designated by Motient as transferee of such Investor Groups.
Section 4.7. Right to Transfer.. Subject to compliance with applicable
securities laws, nothing contained in this Agreement, the Rights Agreement or
any other agreement to which Motient and Columbia are parties shall be deemed to
prevent or restrict Columbia or its transferees from selling or transferring the
Motient Shares, the Motient Warrants or the Warrant Shares in a transaction
exempt from the registration requirements of the Securities Act at any time when
a registration statement covering the resale of the Motient Shares and/or
Motient Warrants is not effective or the use thereof has been suspended by
Motient.
11
Section 4.8. Independent Evaluation of Investment..
(a) The parties intend that this Agreement and the transactions
contemplated thereby be consistent with the conditions and restrictions
applicable to the parties and/or their affiliates either pursuant to MSV GP's,
MSV's and/or TerreStar's organizational documents and/or pursuant to the
agreements between or among MSV GP's, MSV's and/or TerreStar's stockholders
and/or partners, as applicable, including without limitation the Other Documents
(collectively, the "Investor Agreements").
(b) Each of the parties hereto has made an independent evaluation of
each of the Investor Agreements' conditions and restrictions that are or may be
applicable or relevant to the transactions contemplated by this Agreement and
each acknowledges and agrees (i) that it is not relying on any representation,
warranty or evaluation by any other party to this Agreement with respect thereto
and (ii) that it believes in good faith that the Investor Agreements' conditions
and restrictions have been satisfied and/or are consistent with the transactions
contemplated by this Agreement. Notwithstanding any other provision of this
Agreement, it is the intention and agreement of the parties hereto that each
will bear its own risk and responsibility with respect to any such conditions
and restrictions applicable to it, without recourse to any other party pursuant
to the terms of this Agreement, including, without limitation, pursuant to
Article V hereof, provided that nothing herein shall limit in any way the
ability of a party hereto to seek equitable remedies in the event the transfers
hereunder (including but not limited to the indirect transfers of interests in
MSV, MSV GP or TerreStar) are held not to be valid, binding and enforceable.
ARTICLE V
Indemnification
---------------
Section 5.1. Survival of Representations and Warranties. The
warranties, representations, covenants and agreements of Motient, Sub and
Columbia 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) Columbia Obligation to Indemnify. From and after the Closing,
Columbia shall indemnify, defend and hold harmless Motient, Sub and their
respective officers, directors, stockholders, partners, 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 Columbia contained in the Agreement for which a claim is initiated
prior to the expiration of the Survival Period; (ii) non-fulfillment or breach
of any covenant or agreement of Columbia contained in this Agreement, (iii)
except as contemplated by Section 4.8 hereof, any action or inaction, or the
operation or conduct of business of Columbia or Blocker Corp prior to the
Closing; (iv) for any interest and penalties (but not taxes or any other Losses)
12
("Deficiency Interest and Penalties"), attributable to any underpayment of tax
by Blocker Corp, as such interest and penalties are finally determined as a
result of any taxing authority's challenge to the valuation of the Rights
Certificates distributed by Blocker Corp to Columbia on December 20, 2004; or
(v) any Deficiency Interest and Penalties (but not taxes or any other Losses),
incurred in connection with Blocker Corp distributing such Rights Certificates,
or any common stock, or other equity securities in TerreStar received upon
conversion of such Rights Certificates, as applicable, to the stockholders of
Blocker Corp after the date hereof pro rata based upon the respective ownership
of each of the stockholders in the Blocker Corp; provided with respect to this
Section 5.2(a)(v) only, that Columbia initiated such request for distribution of
the Rights Certificates, or any common stock, or other equity securities in
TerreStar to the stockholders of the Blocker Corp and each Motient Indemnitee
reasonably cooperates to effectuate such distribution promptly upon request by
Columbia. Any indemnification by Columbia pursuant this Section 5.2(a)(iv) or
5.2(a)(v) shall be satisfied in full by Columbia making, at its sole discretion,
either a (A) payment to Motient in the amount of any such Tax Interests and
Penalties for which Motient Indemnitees are entitled to indemnification
hereunder or (B) capital contribution to the Blocker Corp in the amount of all
such Tax Interests and Penalties incurred by the Blocker Corp.
(b) Motient's Obligation to Indemnify. From and after the Effective
Time, Motient and Sub, jointly and severally, shall indemnify, defend and hold
harmless Columbia and its officers, directors, managers, partners, members,
employees, agents and affiliates (each, a "Columbia 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 or Sub
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 or Sub 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 $_________ 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); provided,
however that the limitation set forth in this Section 5.2(c) shall not apply to
any Losses resulting from a breach of the representations and warranties set
forth in Sections 2.2, 2.3, 2.7, 2.10, 2.11, 3.2, 3.3, 3.4, 3.5, 3.9 and 3.11 or
Deficiency Interest and Penalties pursuant to Section 5.2(a)(iv) or 5.2(a)(v).
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 they have received written notification. 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 ten
13
business days from the 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, 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 (as 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 ten 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 Section 5 (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.
14
(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 days
after such determination) pay to the Indemnified Party all amounts owing by the
Indemnifying Party under this Section 5 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 pursuant to the indemnity set forth in Section
5.2(a) hereof shall be limited to the value of the Motient Shares based on the
closing sales price of Motient Common Stock on the pink sheets on the date
hereof, plus the value of any shares of Motient Common Stock issued as
Additional Consideration as determined using the closing sales price of Motient
Common Stock on the pink sheets on the date such Additional Consideration is
issued to Columbia.
(b) Columbia Indemnitee Indemnification Limit. The maximum amount all
Columbia Indemnitees may recover in the aggregate pursuant to the indemnity set
forth in Section 5.2(b) shall be limited to the value of the Motient Shares
based on the closing sales price of Motient Common Stock on the pink sheets on
the date hereof, plus the value of any shares of Motient Common Stock issued as
Additional Consideration as determined using the closing sales price of Motient
Common Stock on the pink sheets on the date such Additional Consideration is
issued to Columbia.
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
business days after the date sent by certified or registered mail (return
receipt requested), one 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.
15
To Motient or Sub:
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 Columbia:
[Fund]
[address]
with a copy (which shall not constitute notice) to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 XXX
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Section 6.5. Assignment; Binding Effect. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. 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.
16
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, including the
Exhibits, the Schedules and the Columbia Disclosure Schedule: (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 Columbia, Motient or Sub 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 a Columbia, Motient or
Sub, as the case may be. 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 of 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 Pages Follow]
17
IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
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
MVH HOLDINGS INC.
By:/s/ Xxxxxxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Executive Vice President and Chief
Operating Officer
PURCHASER
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
Schedule A
----------
Columbia Disclosure Schedule
Exhibit A
---------
Form of Motient Warrant
Exhibit B
---------
Registration Rights Agreement
Exhibit C
---------
Blocker Corp Stockholders Agreement
Exhibit D
---------
Amended and Restated Consent Agreement
