CONVERSION AND EXCHANGE AGREEMENT
This Conversion and Exchange Agreement (the "Agreement"), dated as of February
13, 1998, has been executed by each of the undersigned investors whose name and
signature appear on the signature page hereof (each individually, an "Investor"
and collectively, the "Investors").
BACKGROUND
A. As of the date hereof, each of the Investors owns the number of
shares of Series O Convertible Preferred Stock, $.01 par value per share (the
"Series O Stock") of Geotek Communications, Inc., a Delaware corporation (the
"Company") and Series Q Convertible Preferred Stock, $.01 par value per share
(the "Series Q Stock") as is set forth opposite such Investor's name on Exhibit
A hereto.
B. The Company has agreed and each of the Investors, severally and not
jointly, has agreed that each Investor will (i) convert shares of Series O Stock
and/or Series Q Stock which they own into shares of Common Stock, $.01 par value
per share, of the Company ("Common Stock"), (ii) exchange shares of Series O
Stock and/or Series Q Stock for shares of a newly created series of preferred
stock of the Company designated "Series R Preferred Stock" (the "Series R
Stock"), (iii) exchange shares of Series O Stock and/or Series Q Stock for
shares of a newly created series of preferred stock of the Company designated
"Series S Preferred Stock" (the "Series S Stock" and collectively with the
Series R Stock, the "Preferred Stock") and/or (iv) retain shares of Series O
Stock and Series Q Stock; all in the amounts set forth in Exhibit A hereto and
on the terms and conditions set forth herein. The rights and preferences of the
Series R Stock and the Series S Stock, including the terms on which the Series R
Stock and Series S Stock may be converted into Common Stock, are set forth in
the Certificates of Designation attached hereto as Exhibit B (the "Series R
Certificate of Designation") and Exhibit C (the "Series S Certificate of
Designation"), respectively, each of which shall have been executed,
acknowledged, filed, recorded and become effective in accordance with the
General Corporation Law of the State of Delaware prior to the Closing (as
defined below).
C. The solicitation of this Agreement and, if accepted by the Company,
the issuance of Preferred Stock is being made in reliance upon the provisions of
Regulation D ("Regulation D") promulgated by the Securities and Exchange
Commission ("SEC") under the United States Securities Act of 1933, as amended
(the "Securities Act"), or under the provisions of Section 4(2) of the
Securities Act. The Preferred Stock and the Common Stock issuable upon
conversion or exercise thereof are sometimes collectively referred to
in this Agreement as the "Securities." The Common Stock issuable upon conversion
of the Preferred Stock is sometimes referred to as the "Underlying Stock."
In consideration of the mutual promises, representations, warranties
and conditions set forth herein, and intending to be legally bound hereby, the
Company and the Investors agree as follows:
1. Agreement; the Investors
1.1 Agreement. Each Investor, severally and not jointly, hereby agrees
that at the Closing (as defined below) it will (i) convert shares of
Series O Stock and/or Series Q Stock which they own into shares of
Common Stock, (ii) exchange shares of Series O Stock and/or Series Q
Stock for shares of Series R Stock, at a rate of 1.1111 shares of
Series R Stock for each one share of Series O Stock or Series Q Stock,
(iii) exchange shares of Series O Stock and/or Series Q Stock for
shares of Series S Stock, at a rate of one share of Series S Stock for
each share of Series O Stock or Series Q Stock and/or (iv) retain
shares of Series O Stock and Series Q Stock; all in the amounts set
forth in Exhibit A hereto and on the terms and conditions set forth
herein. The closing of the transactions contemplated hereby (the
"Closing") shall occur on February __, 1998 or such other date as the
Company and the Investors shall agree (the "Closing Date") and shall
occur when all of the conditions to the Company's and the Investors'
obligations under Sections 1.3 and 1.4, respectively, have been
satisfied or waived by the appropriate party.
1.2 Nature of the Investor. Each Investor is obtaining the Preferred
Stock for its own account and each Investor severally represents and
warrants that it is an "Accredited Investor" as that term is defined in
Rule 501 of Regulation D.
1.3 Conditions Precedent to the Obligation of the Company to Issue the
Preferred Stock. The obligation hereunder of the Company to issue the
Preferred Stock to each Investor and otherwise to consummate the
transactions contemplated hereby is subject to the satisfaction, at or
before the Closing, of each of the conditions set forth below. These
conditions are for the Company's sole benefit and may be waived by the
Company at any time in its sole discretion by delivering prior written
notice of any such waiver to each Investor.
(a) Accuracy of the Investor's Representations and Warranties. The
representations and warranties of such Investor shall be true
and correct as of the date when made and as of the Closing
Date as though made at each such time.
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(b) Performance by the Investor. Such Investor shall have
performed, satisfied and complied in all respects with all
covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by such
Investor at or prior to the Closing.
(c) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority
of competent jurisdiction or any stock exchange, interdealer
quotation system or other self-regulatory organization with
jurisdiction over the Company or its securities which
prohibits or adversely affects any of the transactions
contemplated by this Agreement, nor shall any proceeding have
been commenced which may have the effect of prohibiting or
adversely affecting any of the transactions contemplated by
this Agreement.
(d) Side Letter Agreement. The Company and each such Investor
which is receiving shares of Series S Stock shall have entered
into a letter agreement in substantially the form attached
hereto as Exhibit D concerning block trade sales, short sale
transactions and certain other matters (the "Side Letter
Agreement").
(e) Release. Each Investor shall have executed and delivered to
the Company a Release in the form attached hereto as
Exhibit E.
(f) Delivery of Securities. Each Investor shall have delivered to
the Company certificates representing the shares of Series O
Stock and/or Series Q Stock which are being exchanged for
shares of Series R Stock and/or Series S Stock.
1.4 Conditions Precedent to the Obligation of the Investor. The
obligation of each Investor to consummate the transactions contemplated
hereby is subject to the satisfaction, at or before the Closing, of
each of the conditions set forth below. These conditions are for each
Investor's sole benefit and may be waived by such Investor at any time
in its sole discretion by delivering prior written notice to the
Company and each other Investor.
(a) Accuracy of the Company's Representations and Warranties. The
representations and warranties of the Company shall be true
and correct as of the date when made and as of the Closing
Date as though made at each such time.
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(b) Performance by the Company. The Company shall have performed,
satisfied and complied in all respects with all covenants,
agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or
prior to the Closing.
(c) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority
of competent jurisdiction which prohibits or adversely affects
any of the transactions contemplated by this Agreement, nor
shall any proceeding have been commenced which may have the
effect of prohibiting or adversely affecting any of the
transactions contemplated by this Agreement.
(d) Adverse Changes. Since September 30, 1997, no event which had
or is likely to have a Material Adverse Effect (as defined in
Section 3.5 below) on the Company has occurred.
(e) No Suspension of Trading in or Delisting of Common Stock.
Trading in the Common Stock shall not have been suspended by
the SEC or the Nasdaq National Market ("Nasdaq" or the
"Exchange") and the Common Stock shall not have been delisted
from the Exchange.
(f) Legal Opinion. The Company shall have delivered to such
Investor the opinion of Klehr, Harrison, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, independent counsel to the Company, in
substantially the form attached hereto as Exhibit F.
(g) Officer's Certificate. The Company shall have delivered to
such Investor a certificate in form and substance reasonably
satisfactory to such Investor, executed by an executive
officer of the Company, to the effect that all the conditions
to the Closing shall have been satisfied as of the Closing
Date.
(h) Filing of the Certificate of Designation. Each of the Series R
Certificate of Designation and the Series S Certificate of
Designation, conforming to the terms of this Agreement, shall
have been duly filed with the Secretary of State of the State
of Delaware and certified copies thereof shall have been
delivered to such Investor.
(i) Release. The Company shall have executed and delivered to such
Investor a Release in the form attached hereto as Exhibit E.
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(j) Delivery of Securities. The Company shall have delivered to
such Investor duly executed stock certificates representing
the Preferred Stock issuable to such Investor.
(k) Registration Rights Agreement. The Company and each of the
Investor s shall have executed and delivered the Registration
Rights Agreement (the "Registration Rights Agreement") in the
form attached hereto as Exhibit G.
1.5 Conversion of Series O Stock and Series Q Stock into Common Stock. All
shares of Series O Stock and Series Q Stock which Investors have agreed
to convert into shares of Common Stock at the Closing (the "Closing
Conversion Shares") shall be converted in accordance with the terms of
the Certificate of Designation creating the Series O Stock (the "Series
O Certificate") or Certificate of Designation creating the Series Q
Stock (the "Series Q Certificate"), as the case may be, except that for
purposes of such conversion the "Conversion Date Market Price" (as
defined in each of the Series O Certificate and the Series Q
Certificate) shall be $1.00. Each of the Investors converting shares of
Series O Stock and/or Series Q Stock into shares of Common Stock at the
Closing shall execute and deliver at the Closing a conversion notice
evidencing such a transaction. The Investors acknowledge and agree
that, notwithstanding any rights which they may have to the contrary,
no Investor may sell or transfer in excess of one-third of the number
of Closing Conversion Shares which they receive at the Closing in each
of the first three consecutive 30-day periods following the Closing
Date.
1.6 Remaining Shares of Series O Stock and Series Q Stock. Except as
specifically provided to the contrary in this Section 1.6, shares of
Series O Stock and Series Q Stock which any Investor owns following the
Closing shall be governed by the existing terms thereof. Each of Themis
Partners, L.P., Samyang Merchant Bank, Heracles Fund, Leonardo, L.P.,
AG Super Fund, L.P., Michaelangelo, L.P., ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P.,
Raphael L.P., Ramius Fund LTD, AG Super Fund International Partners,
L.P. and GAM Arbitrage Investments, Inc. agree that, notwithstanding
any rights such party may have to the contrary, no shares of Series O
Stock or Series Q Stock which such party owns following the Closing may
be converted into shares of Common Stock until on or after June 25,
1998. Each of the Company and Halifax Fund L.P., Palladin Partners I,
L.P., Gleneagles Fund, LTD, Colonial Penn Insurance Company, Colonial
Penn Life Insurance Company and CIBC Wood Gundy Securities Corp. agree
that all shares of Series O Stock and Series Q Stock which such parties
own as of the Closing Date shall be exercisable as of such date into
shares of Common Stock, notwithstanding any restrictions on the
convertibility of such shares which would otherwise be applicable as of
such date.
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2. Representations and Warranties of Investor
Each Investor severally represents and warrants to the Company as to
the matters set forth below. The representations of each Investor under this
Section 2 are made exclusively by and only with respect to such Investor and no
Investor shall be liable or responsible for the breach of any representation or
warranty made by any other Investor.
2.1 No Government Recommendation or Approval. The Investor understands that
no United States federal or state agency or similar agency of any other
country, has passed upon or made any recommendation or endorsement of
the Company or the issuance of the Securities.
2.2 Intent. The Investor is obtaining the Securities for its own account
and not with a view towards distribution in violation of securities
laws, and the Investor has no present arrangement (whether or not
legally binding) at any time to sell the Securities to or through any
person or entity; provided, however, that by making the representations
herein, the Investor does not agree to hold the Securities for any
minimum or other specific term and reserves the right to dispose of the
Securities at any time in accordance with federal and state securities
laws applicable to such disposition. The Investor has been advised of
or is aware of the provisions of Rule 144 promulgated under the
Securities Act.
2.3 Sophisticated Investor. The Investor is a sophisticated investor (as
described in Rule 506(b)(2)(ii) of Regulation D) and an accredited
investor (as defined in Rule 501 of Regulation D), and has such
experience in business and financial matters that it is capable of
evaluating the merits and risks of an investment in the Securities. The
Investor acknowledges that the Securities are speculative and involve a
high degree of risk. The Investor understands that there is no
established market for the Preferred Stock and that no public market
therefor is foreseen.
2.4 Independent Investigation. The Investor, in making its decision to
obtain the Securities obtained hereunder, has relied upon an
independent investigation made by it and/or its representatives and has
not relied on any information or representations made by third parties
or on any oral or written representations or assurances from the
Company or any representative or agent of the Company, other than as
set forth in this Agreement, in the public filings of the Company and
in the documents described below. Prior to the date hereof, the
Investor has been furnished with and has reviewed the Company's Annual
Report on Form 10-K for the period ended December 31, 1996 (the "1996
Form 10-K") sent to the Company's shareholders and all documents filed
by the Company with the SEC since December 31, 1996, pursuant to
sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (excluding
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preliminary proxy statement filings) (such documents are collectively
referred to in this Agreement as the "Exchange Act Reports"),
including, without limitation, the Company's Quarterly Reports on Form
10-Q for the periods ended March 31, 1997, June 30, 1997 and September
30, 1997 as filed with the SEC on May 15, 1997, August 14, 1997 and
November 14, 1997, respectively, the Company's Current Reports on Form
8-K for events dated December 31, 1996, January 23, 1997, April 22,
1997, July 7, 1997, December 18, 1997, December 19, 1997 and January
26, 1997, as filed with the SEC on January 9, 1997, February 5, 1997,
April 30, 1997, July 8, 1997, December 23, 1997, December 24, 1997 (as
amended on Form 8-K/A filed on January 21, 1998) and January 30, 1998,
respectively, and the Company's Definitive Proxy Statement dated May
30, 1997 and Amendment to Proxy Statement dated July 7, 1997, as filed
with the SEC on May 29, 1997 and July 7, 1997, respectively, and a copy
of the Company's Registration Statement on Form S-3 declared effective
by the SEC on February 12, 1997. The Investor has had a reasonable
opportunity to ask questions of and receive answers from the Company
concerning the Company and the transactions contemplated hereby.
2.5 Authority. This Agreement has been duly authorized and validly executed
and delivered by the Investor and is a valid and binding agreement
enforceable against the Investor in accordance with its terms, subject
to general principles of equity and to bankruptcy or other laws
affecting the enforcement of creditors' rights generally.
2.6 Intentionally Omitted
2.7 No Broker. The Investor has taken no action which would give rise to
any claim by any person for brokerage commission, finder's fees or
similar payments by the Company relating to this Agreement or the
transactions contemplated hereby.
2.8 Not an Affiliate. The Investor is not an officer, director or
"affiliate" (as that term is defined in Rule 405 of the Securities Act)
of the Company.
2.9 Reliance on Representations and Warranties. The Investor understands
that the Securities are being issued to it in reliance on specific
provisions of United States federal and state securities laws and that
the Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and
understandings of the Investor set forth in this Agreement in order to
determine the applicability of such provisions.
2.10 Limitations on Investor's Right to Convert and Exercise.
Notwithstanding anything to the contrary contained herein, each notice
of conversion of Preferred Stock (a "Conversion Notice") shall contain
or be accompanied by a representation
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by the Investor that, after giving effect to the shares of the
Company's Common Stock to be issued pursuant to such Conversion Notice
or Exercise Notice, the total number of shares of the Company's Common
Stock deemed beneficially owned by the Investor, together with all
shares of the Company's Common Stock deemed beneficially owned by the
Investor's "affiliates" as defined in Rule 144 of the Securities Act
and excluding any shares of the Series Q Preferred Stock held by such
holder and its affiliates will not exceed 4.9% of the total issued and
outstanding shares of the Company's Common Stock and such other matters
as are set forth in Section 13(d) of the Certificate of Designation.
2.11 Transfer or Resale. The Investor understands that (i) except as
provided in the Registration Rights Agreement, the Securities have not
been and are not being registered under the Securities Act or any state
securities laws, and may not be transferred unless (a) subsequently
registered thereunder or (b) the Investor shall have delivered to the
Company an opinion of counsel (which opinion and counsel shall be
reasonably acceptable to the Company) to the effect that the Securities
to be sold or transferred may be sold or transferred pursuant to an
exemption from such registration; (ii) any sale of such Securities made
in reliance on Rule 144 promulgated under the Securities Act may be
made only in accordance with the terms of said Rule and further, if
said Rule is not applicable, any resale of such Securities under
circumstances in which the seller (or the person through whom the sale
is made) may be deemed to be an underwriter (as that term is defined in
the Securities Act) may require compliance with some other exemption
under the Securities Act or the rules and regulations of the SEC
thereunder; and (iii) neither the Company nor any other person is under
any obligation to register such Securities under the Securities Act or
any state securities laws or to comply with the terms and conditions of
any exemption thereunder (in each case, other than pursuant to the
Registration Rights Agreement).
2.12 Legends. The Investor understands that the Preferred Shares and, until
such time as the Underlying Stock has been registered under the
Securities Act (as contemplated by the Registration Rights Agreement)
or otherwise may be sold by the Investor pursuant to Rule 144 under the
Securities Act (or any successor rule thereto) without any restriction
as to the number of securities acquired hereunder that can then be
immediately sold, the certificates for the Underlying Stock, may bear a
restrictive legend in substantially the following form (and a
stop-transfer order may be placed against transfer of the certificates
for such Securities):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The
securities have been acquired for investment and may not be
sold, transferred or assigned in the absence of an effective
registration
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statement for the securities under said Act, or an opinion of
counsel, in form, substance and scope reasonably acceptable to
the Company, that registration is not required under said
Act."
The legend set forth above shall be removed and the Company shall issue
a certificate without such legend to the holder of any of the
Securities upon which it is stamped, if, unless otherwise required by
state securities laws, (a) such Security is registered for sale under
the Securities Act or (b) such holder provides the Company with an
opinion of counsel, in form, substance and scope reasonably acceptable
to the Company, to the effect that a public sale or transfer of such
Security may be made without registration under the Securities Act or
(c) such holder provides the Company with reasonable assurances that
such Security can be sold pursuant to Rule 144 under the Securities Act
(or a successor rule thereto) without any restriction as to the number
of Securities acquired as of a particular date that can then be
immediately sold. The Investor agrees to sell all Securities, including
those represented by a certificate(s) from which the legend has been
removed, in compliance with applicable securities law. In the event the
above legend is removed from any Security, the Company may, upon
reasonable advance notice to the Investor, require that the above
legend be placed on any Security that cannot then be sold pursuant to
an effective registration statement or Rule 144 under the Securities
Act (or any successor rule thereto) without any restriction as to the
number of securities acquired hereunder that can then be immediately
sold.
3. Representations and Warranties of the Company
The Company represents and warrants to the Investors that:
3.1 Company Status. The Company has registered its Common Stock pursuant to
Section 12(b) or 12(g) of the Exchange Act, is in full compliance with
all reporting requirements of the Exchange Act, and the Company has
maintained all requirements for the continued listing of its Common
Stock, and such Common Stock is currently listed on the Exchange, which
Exchange is the principal market for the Company's Common Stock.
3.2 Current Public Information. The Exchange Act Reports are the only
filings made by the Company since December 31, 1996 pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act.
3.3 No General Solicitation in Regard to this Transaction. Neither the
Company nor any of its affiliates nor any distributor or any person
acting on its or their behalf has conducted any general solicitation
(as that term is used in Regulation D) with respect to any of the
Securities, nor have they made any offers or sales of any
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security or solicited any offers to buy any security under
circumstances that would require the registration of the Securities
under the Securities Act.
3.4 Capitalization; Valid Issuance of Preferred Stock and Common Stock. The
Company has an authorized capitalization set forth on Schedule 3.4.
Except as set forth on Schedule 3.4, no shares of Preferred Stock or
options, warrants or other securities convertible or exercisable into
Common Stock have been issued or are outstanding. The Company has
issued and outstanding that number of shares of Common Stock and
preferred stock of various series, as set forth on Schedule 3.4, and
all such shares have been duly and validly authorized and issued, are
fully paid and non-assessable; prior to the Closing Date, the
authorized capitalization shall include the Securities; upon issuance
of the Securities, the Securities will be duly and validly issued,
fully paid and non-assessable; the Underlying Stock, when issued and
delivered in accordance with the terms of the Series R Certificate of
Designation or the Series S Certificate of Designation, as the case may
be, will be duly and validly issued, fully paid and non-assessable;
and, except as set forth on Schedule 3.4 hereto, the holders of
outstanding capital stock of the Company are not and shall not be
entitled to preemptive or other rights afforded by the Company to
subscribe for the Securities. As of the Closing Date, the Company shall
have duly filed the Series R Certificate of Designation and the Series
S Certificate of Designation, and all of the rights, preferences and
privileges of the Preferred Stock shall be as set forth in the Series R
Certificate of Designation or the Series S Certificate of Designation,
as the case may be, a copy of which, certified by the Secretary of
State of the State of Delaware, shall be delivered to the Investor on
or before the Closing Date. There are no owners of shares of Series O
Stock or Series Q Stock other than the Investors and Elliot Associates,
L.P.
3.5 Organization and Qualification. The Company is a corporation duly
incorporated and existing in good standing under the laws of the State
of Delaware and has the requisite corporate power to own its properties
and to carry on its business as now being conducted. The Company does
not have any subsidiaries, except as set forth on Schedule 3.5. The
Company is duly qualified to do business as a foreign corporation and
is in good standing in every jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification
necessary other than those in which the failure so to qualify would not
have a Material Adverse Effect. "Material Adverse Effect" means any
material adverse effect on the business, operations, properties,
prospects of the entity taken as a whole, or the consolidated financial
condition of the entity with respect to which such term is used, or
with respect to any other entity controlling or controlled by such
entity, and/or any condition or situation which would prohibit or
otherwise interfere with the ability of the entity with respect to
which said term is used to enter into or perform its obligations under
this Agreement, the Series R Certificate of
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Designation, the Series S Certificate of Designation or the
Registration Rights Agreement.
3.6 Authorization; Enforcement. (i) The Company has the requisite corporate
power and authority to enter into and perform this Agreement and to
issue the Securities subject to the limitations and conditions
contained in and otherwise in accordance with the terms hereof and of
the Series R Certificate of Designation, the Series S Certificate of
Designation and the Side Letter, (ii) the execution and delivery of
this Agreement by the Company and the consummation by it of the
transactions contemplated hereby including, without limitation, the
issuance of the Underlying Stock have been duly authorized by all
necessary corporate action, and no further consent or authorization of
the Company or its Board of Directors or stockholders is required
(except such stockholder approvals as may be required under Rule
4460(i) promulgated by the National Association of Securities Dealers,
Inc. if an Election with respect to the Series R Stock and/or the
Series S Stock has been made), (iii) this Agreement has been duly
executed and delivered by the Company, and (iv) this Agreement
constitutes the valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except
(x) as such enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable
principles of general application and (y) as rights to indemnity or
contribution may be limited by federal and state securities laws and
public policy considerations.
3.7. Corporate Documents. The Company has furnished or made available to the
Investor true and correct copies of the Company's Certificate of
Incorporation as in effect on the date hereof (the "Certificate"), and
the Company's By-Laws, as in effect on the date hereof (the "By-Laws").
3.8 No Conflicts. The execution, delivery and performance of this Agreement
and the consummation by the Company of the transactions contemplated
hereby including, without limitation, the issuance of any of the
Securities do not and will not (i) result in a violation of the
Certificate or By-Laws (except such stockholder approvals as may be
required under Rule 4460(i) promulgated by the National Association of
Securities Dealers, Inc. if an Election with respect to the Series R
Stock and/or the Series S Stock has been made) or (ii) conflict with,
or constitute a default (or an event which, with notice or lapse of
time or both, would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party, or result in a violation of any federal state,
local or foreign law, rule, regulation, order, judgment or decree
(including Federal and state securities laws and regulations)
applicable to the
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Company or any of its subsidiaries or by which any property or asset of
the Company or any of its subsidiaries is bound or affected (except for
such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect); provided that, for purposes
of such representation as to Federal, state, local or foreign law, rule
or regulation, no representation is made herein with respect to any of
the same applicable solely to the Investor and not to the Company. The
business of the Company is not being conducted in violation of any law,
ordinance or regulations of any governmental entity, except for
possible violations which either singly or in the aggregate do not and
will not have a Material Adverse Effect. The Company is not required
under Federal, state or local law, rule or regulation in the United
States to obtain any consent which has not been obtained, or
authorization or order of, or make any filing or registration with, any
court or governmental agency in order for it to execute, deliver or
perform any of its obligations under this Agreement or issue and sell
the Securities in accordance with the terms hereof and thereof (other
than any SEC, Nasdaq or state securities filings in connection herewith
which may be required to be made by the Company subsequent to the
Closing, and any registration statement which may be filed pursuant
hereto); provided that, for purposes of the representation made in this
sentence, the Company is assuming and relying upon the accuracy of the
relevant representations and agreements of the Investors and/or its
principals herein.
3.9 Exchange Act Reports. The Company has delivered or made available to
the Investors true and complete copies of the Exchange Act Reports
(including, without limitation, proxy information and solicitation
materials). The Company has not provided to the Investors any
information which, according to applicable law, rule or regulation,
should have been disclosed publicly prior to the date hereof by the
Company but which has not been so disclosed; nor has the Company
provided to the Investors, as an inducement to enter into this
Agreement or otherwise, any information which has not been publicly
announced or disclosed to the Company's stockholders generally. As of
their respective dates, the Exchange Act Reports complied in all
material respects with the requirements of the Exchange Act and rules
and regulations of the SEC promulgated thereunder and other federal,
state and local laws, rules and regulations applicable to such Exchange
Act Reports, and none of the Exchange Art Reports contained 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 therein, in light of the circumstances under which they were
made, not misleading. The financial statements of the Company included
in the Exchange Act Reports comply as to form in all material respects
with applicable accounting requirements and the published rules and
regulations of the SEC or other applicable rules and regulations with
respect thereto. Such financial statements have been prepared in
accordance
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with generally accepted accounting principles applied on a consistent
basis during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto or (ii) in
the case of unaudited interim statements, to the extent they may not
include footnotes or may be condensed or summary statements) and fairly
present in all material respects the financial position of the Company
as of the dates thereof and the results of operations and cash flows
for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments).
3.10 No Material Adverse Change. Since September 30, 1997, the end of the
period for which the most recent Quarterly Report of the Company on
Form 10-Q was filed with the SEC, a copy of which is included in the
Exchange Act Reports, no Material Adverse Effect has occurred or exists
with respect to the Company or its subsidiaries.
3.11 No Undisclosed Liabilities. Except as set forth on Schedule 3.11
hereto, the Company and its subsidiaries have no liabilities or
obligations not disclosed in the Exchange Act Reports, other than those
incurred in the ordinary course of the Company's or its subsidiaries'
respective businesses since September 30, 1997 and which, individually
or in the aggregate, do not or would not have a Material Adverse Effect
on the Company and its subsidiaries taken as a whole.
3.12 No Undisclosed Events or Circumstances. No event or circumstance has
occurred or exists with respect to the Company or its subsidiaries or
their respective businesses, properties, prospects, operations or
financial condition, which, under applicable law, rule or regulation,
requires public disclosure or announcement by the Company, but which
has not been so publicly announced or disclosed. The Company has not
provided the Investor any information which, according to applicable
law, rules or regulations should have been disclosed publicly by the
Company, but which has not been so disclosed, other than with respect
to the existence of this Agreement and the transactions contemplated by
this Agreement.
3.13 No Integrated Offering. Neither the Company, nor any of its affiliates,
nor any person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any
offers to buy any security, under circumstances that would require
registration of the Securities under the Securities Act.
3.14 Broker. The Company has taken no action which would give rise to any
claim by any person for brokerage commission, finder's fees or similar
payments by the Investors relating to this Agreement or the
transactions contemplated hereby.
-13-
3.15 Acknowledgment of Dilution. The number of shares of Underlying Stock
issuable upon conversion of the Series S Stock will increase in the
event the current trading price of the Common Stock fails to
significantly increase. The Company acknowledges that its obligation to
issue Underlying Stock upon conversion of the Preferred Stock in
accordance with the Series R Certificate of Designation and Series S
Certificate of Designation is absolute and unconditional, regardless of
the dilution that such issuance may have on the ownership interests of
other stockholders, but is nevertheless subject to the terms and
conditions of general application imposed upon the Company by
governmental decrees and by the Exchange.
4. Covenants of the Company
4.1 Intentionally Omitted
4.2 Reservation of Common Stock. At all times while any shares of Series R
Stock or Series S Stock are outstanding, the Company shall reserve and
keep available, free of preemptive rights and subject to such legal
limits and rules of exchanges on which the Common Stock may be traded,
no less than one hundred five percent (105%) and, after an Election is
made (as defined in the Series R Certificate of Designation and the
Series S Certificate of Designation, as the case may be), no less than
two hundred percent (200%) with respect to the shares of Preferred
Stock for which an Election has been made, of that number of shares of
the Company's Common Stock for which such outstanding shares of
Preferred Stock are then convertible, each amount as equitably adjusted
pursuant to any stock splits, split ups, recapitalization or
reorganization of shares of Common Stock. At all times while any shares
of Series O Stock or Series Q Stock are outstanding, the Company shall
reserve and keep available, free of preemptive rights and subject to
such legal limits and rules of exchanges on which the Common Stock may
be traded, no less than two hundred percent (200%) of that number of
shares of the Company's Common Stock for which such outstanding shares
of Preferred Stock are then convertible, each amount as equitably
adjusted pursuant to any stock splits, split ups, recapitalization or
reorganization of shares of Common Stock. The Company shall notify the
Investors as soon as practicable if there is a decrease in the number
of outstanding shares of Common Stock of the Company.
4.3 Listing of Underlying Stock. The Company hereby agrees, promptly
following the Closing of the transaction contemplated by this
Agreement, to take such action to cause the Underlying Stock to be
listed on the Exchange as promptly as possible but no later than ninety
(90) days following the Closing. The Company further agrees that, if
the Company applies to have the Common Stock traded on any
-14-
principal stock exchange, it will include in such application the
Underlying Stock and will take such other action as is necessary or
desirable to cause the Underlying Stock to be listed on such exchange
as promptly as possible.
4.4 Exchange Act. For so long as the Company is in existence and Preferred
Stock remains outstanding, the Company will cause its Common Stock to
continue to be registered under Section 12(g) or 12(b) of the Exchange
Act, will comply in all respects with its reporting and filing
obligations under said Act and will not take any action or file any
document (whether or not permitted by said Act or the rules thereunder)
to terminate or suspend such registration or to terminate or suspend
its reporting and filing obligations under said Act. The Company will
take all action necessary to continue the listing and trading of its
Common Stock on the Exchange and will comply in all respects with the
Company's reporting, filing and other obligations under the by-laws or
rules of the Exchange; provided, however, that the Company may
terminate such listing at any time so long as the Company's Common
Stock is then listed on either the American Stock Exchange or the New
York Stock Exchange. The Company shall file with the SEC a Form 8-K
disclosing this Agreement and the transactions contemplated hereby no
later than three business (3) days after the date of the Closing and
shall publicly announce, by way of press release, this Agreement and
the transactions contemplated hereby, no later than 24 hours after the
Closing.
4.5 Corporate Existence. The Company will take all steps necessary to
preserve and continue the corporate existence of the Company; provided,
however, that this sentence shall not limit the Company's ability to
engage in any bona fide corporate transaction or reorganization
otherwise consistent with this Agreement.
4.6 Warrants. The exercise price of the warrants issued to the Investors
(and their affiliates) in connection with the issuance of the Series O
Stock and the Series Q Stock shall be amended to be $4.00 per share of
Common Stock purchasable thereunder (subject to adjustment as provided
in such warrants); provided that such exercise price shall be $3.00 per
share of Common Stock purchasable thereunder (subject to adjustment as
provided in such warrants) if the average of the closing bid prices (as
reported by Bloomberg) for the Common Stock for the ten consecutive
trading days immediately preceding that date which is 180 days after
the date of the Closing is less than $4.00; and provided, further that
if such exercise price on that date which is one year from the date of
the Closing is greater than 110% of the closing bid price of the Common
Stock (as reported by Bloomberg) on such date, such exercise price
thereafter shall be 110% of the closing bid price of the Common Stock
on such date (subject to adjustment as provided in such warrants).
-15-
4.7 Option to Rescind Restructuring If the Company fails to (i) file the
Registration Statement with the SEC on or prior to the Registration
Date and/or the Registration Statement (each, as defined in the
Registration Rights Agreement) is not declared effective on or prior to
that date which is 120 days after the date of the Closing, (ii) receive
at least $30 million in net proceeds that can be applied in the first
half of 1998 for general working capital purposes from the sale of its
European networks prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) receive at least $25
million in proceeds from new financings prior to May 15, 1998 that can
immediately be applied for general working capital purposes or (iv)
receive at least $50 million (in the aggregate, including the proceeds
referred to in clause (iii) above) in proceeds from new financings
prior to September 15, 1998 that can immediately be applied for general
working capital purposes (each of the financings referred to in clauses
(iii) and (iv) shall be referred to as a "New Financing"), each holder
of Series R Stock and Series S Stock, as the case may be, shall have
the right, exercisable for thirty days after the happening of such
event, to make an election (an "Election") as provided in the Series R
Certificate of Designation and Series S Certificate of Designation.
4.8 New Financings. All equity New Financings shall be junior or pari passu
to the Series R Stock and Series S Stock. Any Investor who at such time
is a holder of Series R Stock or Series S Stock (or the holder of
securities received in a prior exchange pursuant to clause (i)
below)shall have the right, exercisable for ten days after consummation
of a New Financing, to (i) exchange shares of preferred stock of the
Company held by such party, other than shares of preferred stock for
which an Election has been made, for an equivalent amount of securities
issued in the New Financing and/or (ii) purchase securities on the same
terms and conditions as the New Financing in an amount equal to the
face amount of Series R Stock or Series S Stock (or other security
received in a prior exchange pursuant to clause (i) above), as the case
may be, then held by such holder, other than such shares for which an
Election has been made.
4.9 Series P Preferred Stock. The Company shall no later than thirty days
after the date of the Closing, enter into agreements with the holders
of the Series P Stock to (i) either restructure the Series P Stock on
substantially similar terms as the terms provided for herein or have
such holders agree that they shall not convert any additional shares of
Series P Stock into shares of Common Stock prior to September 30, 1998,
and (ii) have the holders of shares of Common Stock received upon the
recent conversion of $7.5 million in face amount of Series P Stock into
shares of Common Stock agree to waive their present registration and
resale rights and have the resale of such shares registered on the
Registration Statement.
-16-
4.10 Rule 144. The Company shall not, directly or indirectly, dispute or
otherwise interfere with any claim by a holder of Series R Stock or
Series S Stock that such holder's holding period of such security for
purposes of Rule 144 under the Securities Act ("Rule 144") relates back
(i.e. tacks) to the holding period for the Series O Stock and Series Q
Stock; provided, however, nothing contained herein shall obligate the
Company or its counsel to take a position that is inconsistent with the
state of the law at such time. The Company acknowledges and agrees that
as of the date hereof under Rule 144 and no-action letters issued by
the SEC, such talking is permitted.
5. [SECTION INTENTIONALLY LEFT BLANK]
6. Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of
conflicts of law or choice of law, except for matters arising under the
Securities Act or the Exchange Act, which matters shall be construed
and interpreted in accordance with such Acts. The Company hereby agrees
that all actions or proceedings arising directly or indirectly from or
in connection with this Agreement shall, at the Investor's sole option,
be litigated only in the Supreme Court of the State of New York or the
United States District Court for the Southern District of New York
located in New York County, New York. The Company consents to the
jurisdiction and venue of the foregoing courts and consents that any
process or notice of motion or other application to either of said
courts or a judge thereof may be served inside or outside the State of
New York or the Southern District of New York by registered mail,
return receipt requested, directed to the Company at its address set
forth in this Agreement (and service so made shall be deemed complete
five (5) days after the same has been posted as aforesaid) or by
personal service or in such other manner as may be permissible under
the rules of said court.
7. Assignment; Entire Agreement; Amendment; Consents; Expenses
(a) Neither this Agreement nor any obligations of the Company
hereunder may be assigned by the Company to any other person
or entity. The provisions of this Agreement shall inure to the
benefit of, and be enforceable by, any transferee of any of
the Securities with respect to the Securities held by such
person.
(b) This Agreement, the Series R Certificate of Designation, the
Series S Certificate of Designation, the Registration Rights
Agreement, the Side Letter Agreement and the other documents
delivered pursuant hereto
-17-
constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and
thereof and supersedes all prior agreements and no party shall
be liable or bound to any other party in any manner by any
warranties, representations or covenants except as
specifically set forth in this Agreement or therein. Except as
expressly provided in this Agreement, neither this Agreement
nor any term hereof may be waived, discharged or terminated
other than by a written instrument signed by the party against
whom enforcement of any such amendment, waiver, discharge or
termination is sought. This Agreement and any provision hereof
may only be amended by an instrument in writing signed by the
Company and the holders of two-thirds of the shares of
Preferred Stock outstanding at the time.
(c) By executing and delivering this Agreement, the parties hereto
consent and agree to all of the transactions contemplated
hereby. The Investors acknowledge and agree that except as
provided for specifically herein, the execution and delivery
of this Agreement and the consummation of the transactions
contemplated hereby shall not create or trigger any additional
rights which any Investor may have pursuant to any agreements
entered into with the Company or attendant to any securities
of the Company, including, without limitation, the right to
have the purchase price of any warrants held by such Investor
adjusted.
(d) The Company agrees to reimburse the Investors for all
reasonable legal expenses incurred by such Investors in
connection with the execution and delivery of this Agreement
and that certain letter agreement dated January 26, 1998 among
the Company and the Investors.
8. Publicity
The Company agrees that it will not disclose, and will not include in
any public announcement, the name of any Investor without such
Investor's consent, unless and until such disclosure is required by law
or applicable regulation, and then only to the extent of such
requirement.
9. Notices, Etc.; Expenses; Indemnity
(a) Any notice, demand or request required or permitted to be
given by either the Company or the Investors pursuant to the
terms of this Agreement shall be in writing and shall be
deemed given when delivered personally or by facsimile, with a
hard copy to follow by two day courier addressed to a Investor
at the addresses of such Investor set forth on the signature
page
-18-
hereof, to the Company at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President, or such other address
as a party may request by notifying the other applicable
party(s) in writing. Copies of all notices to a Investor shall
be sent to such Investor's designee or representative (if
any).
(b) The Company shall indemnify each Investor against any loss,
cost or damages (including reasonable attorney's fees)
incurred as a result of the Company's breach of any
representation, warranty, covenant or agreement in this
Agreement, the Registration Rights Agreement, the Side Letter
Agreement and/or the Preferred Stock. Each Investor shall
severally indemnify the Company against any loss, cost or
damages (including reasonable attorney's fees) incurred by the
Company as a result of such Investor's breach of any
representation, warrant, covenant or agreement in this
Agreement, the Registration Rights Agreement, the Side Letter
Agreement and/or the Preferred Stock.
10. Counterparts
This Agreement may be executed in any number of counterparts each of
which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one
instrument.
11. Survival; Severability; Specific Performance
The representations, warranties, covenants and agreements of the
parties hereto shall survive the Closing for a period of four (4)
years. In the event that any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and
effect without said provision. Notwithstanding anything in this
Agreement, the Registration Rights Agreement, the Series R Certificate
of Designation or the Series S Certificate of Designation to the
contrary, nothing shall limit a Investor's right to pursue any and all
available remedies, whether at law or at equity (including, without
limitation, specific performance), in connection therewith.
12. Title and Subtitles
The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or
interpreting this Agreement.
13. Like Treatment of Holders
-19-
Neither the Company nor any of its affiliates shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way
of interest, fee, payment for the redemption or the conversion of the
Preferred Stock, or otherwise, to any holder of shares of Preferred
Stock, for or as an inducement to, or in connection with the
solicitation of, any consent, waiver or amendment of any terms or
provisions of the Series R Certificate of Designation, the Series S
Certificate of Designation, this Agreement, the Registration Rights
Agreement or the Side Letter Agreements, unless such consideration is
offered to all holders of shares of Preferred Stock and such
consideration is required to be paid to all holders of shares of
Preferred Stock who agree to such consent, waiver or amendment or
tender their Preferred Stock for redemption or conversion.
-20-
GEOTEK COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Chairman and CEO
Investors:
Investor's Representative: Investor:
RGC International Investors, LDC
By: ▇▇▇▇ ▇▇▇▇ Capital Management,
L.P., as Investment Manager
By: RGC General Partner Corp.,
as general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Director
Address: ▇/▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇.
Three Bala Plaza (East) Place of Execution: Pennsylvania
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Cayman Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Residency and/or Principal
Place of Business:
Cayman Islands
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Registration Instructions:
RGC International
Investors, LDC
Investor's Representative: Investor:
Palladin Group, L.P. Halifax Fund, L.P.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: The Palladin Group, its Investment Manager
By: Palladin Capital Management LLC, its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Authorized Representative
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Cayman Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o Citco Fund Services, Ltd.
Corporate Center, ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
SMB
Registration Instructions: Halifax Fund, L.P.
Investor's Representative: Investor:
Palladin Group, L.P. Colonial Penn Insurance Company
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: The Palladin Group, its Investment Manager
By: Palladin Capital Management LLC, its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Authorized Representative
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship: New York
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Registration Instructions: Colonial Penn
Insurance Company
Investor's Representative: Investor:
Palladin Group, L.P. Gleneagles Fund, LTD
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: The Palladin Group, its Investment Manager
By: Palladin Capital Management LLC, its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Authorized Representative
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Cayman Islands
Place of Residency and/or Principal
Place of Business:
c/o Citco Fund Services, Ltd.
Corporate Center, ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
SMB
Registration Instructions: Gleneagles Fund, LTD
Investor's Representative: Investor:
Palladin Group, L.P. Colonial Penn Life Insurance Company
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: The Palladin Group, its Investment Manager
By: Palladin Capital Management LLC, its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Authorized Representative
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship: New York
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Registration Instructions: Colonial Penn Life
Insurance Company
Investor's Representative: Investor:
Citadel Investment Group, L.L.C. ▇▇▇▇▇▇ Partners
Attn: ▇▇▇▇▇▇▇ Simpler
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
9th Floor Place of Execution: Bermuda
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Bermuda
Place of Residency and/or Principal
Place of Business:
c/o Leeds Management Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Registration Instructions:
▇▇▇▇▇▇ Partners
Investor's Representative: Investor:
Citadel Investment Group, L.L.C. Olympus Securities, LTD.
Attn: ▇▇▇▇▇▇▇ Simpler
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
9th Floor Place of Execution: Bermuda
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship: Bermuda
Place of Residency and/or Principal
Place of Business:
c/o Leeds Management Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Registration Instructions:
Olympus Securities, LTD.
Investor:
CIBC, Wood Gundy Securities Corp.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Managing Director
Place of Execution: New York
Place of Organization or Citizenship: New York
Place of Residency and/or Principal Place of Business:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Registration Instructions: CIBC, Wood Gundy
Securities Corp.
Investor's Representative: Investor:
Promethean Investment Group, L.L.C. Themis Partners L.P.
Attn: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇.
By: Promethean Investment Group, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇, Managing Member
Address: ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ New York
Place of Residency and/or Principal
Place of Business:
c/o Promethean Investment Group, L.L.C.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Registration Instructions:
Themis Partners L.P.
Investor's Representative: Investor:
Promethean Investment Group, L.L.C. Samyang Merchant Bank
Attn: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇.
By: Promethean Investment Group, L.L.C.,
its Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇, Managing Member
Address: ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ South Korea
Place of Residency and/or Principal
Place of Business:
▇/▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇, ▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇-▇▇
Seoul, 110-110-Korea
Registration Instructions:
Samyang Merchant Bank
Investor's Representative: Investor:
Promethean Investment Group, L.L.C. Heracles Fund
Attn: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇.
By: Promethean Investment Group, L.L.C.,
its Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇, Managing Member
Address: ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Cayman Islands
Place of Residency and/or Principal
Place of Business:
c/o Bank of Bermuda (Cayman) Limited
P.O. Box 513
Third Floor, British American Tower
▇▇. ▇▇▇'▇ Drive
Georgetown, Grand Cayman
Cayman Islands, BWI
Registration Instructions: Heracles Fund
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. Leonardo, L.P.
Attn: ▇▇▇▇ ▇▇▇▇
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Cayman Islands
Place of Residency and/or Principal
Place of Business:
c/o Trident Trust Company Limited
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, B.W.I.
Registration Instructions: ▇▇▇▇▇▇▇▇, L.P.
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. GAM Arbitrage Investments, Inc.
Attn: ▇▇▇▇ ▇▇▇▇
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P., its Investment
Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
British Virgin Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal
Place of Business:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Douglas Isle of Man, British Isles
British Virgin Islands
Registration Instructions: GAM Arbitrage
Investments, Inc.
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. AG Super Fund International Partners, L.P.
Attn: ▇▇▇▇ ▇▇▇▇
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Cayman Islands
Place of Residency and/or Principal
Place of Business:
c/o Raphael Capital Management Partners, L.P.
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Grand Cayman, Cayman Islands, B.W.I.
Registration Instructions:
AG Super Fund
International Partners, L.P.
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. Ramius Fund, LTD.
Attn: ▇▇▇▇ ▇▇▇▇
By: AG Ramius Partners, L.L.C., its Investment
Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship: Bermuda
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal
Place of Business:
c/o Bank of Bermuda
Attn: Chandra Aramdjeroric
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▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Registration Instructions: Ramius Fund, LTD.
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., ▇.▇. ▇▇▇▇▇▇▇, L.P.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Cayman Islands
Place of Residency and/or Principal
Place of Business:
c/o Raphael Capital Management Partners, L.P.
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Grand Cayman, Cayman Islands, B.W.I.
Registration Instructions: Raphael, L.P.
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. AG SUPER FUND, L.P.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ United States
Place of Residency and/or Principal
Place of Business:
c/o ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Registration Instructions: AG SUPER FUND, L.P.
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. MICHAELANGELO, L.P.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ United States
Place of Residency and/or Principal
Place of Business:
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Registration Instructions: Michaelangelo, L.P.
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. ▇▇▇▇▇▇, ▇▇▇▇▇▇ & CO., L.P.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------- ----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ United States
Place of Residency and/or Principal
Place of Business:
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Registration Instructions: ▇▇▇▇▇▇, ▇▇▇▇▇▇
& Co., L.P.
Investor's Representative: Investor:
PALLADIN PARTNERS I, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Place of Execution: New York
Place of Organization or Citizenship:
Place of Residency and/or Principal
Place of Business:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Registration Instructions: Palladin Partners I, L.P.
