EXHIBIT 10.45
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR THE SECURITIES LAWS OF ANY STATE. NEITHER THIS WARRANT, SUCH
SECURITIES NOR ANY INTEREST THEREIN MAY BE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND SUCH STATE SECURITIES LAWS.
MOTIENT CORPORATION
FORM OF WARRANT TO PURCHASE SHARES OF COMMON STOCK
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June 30, 2004
This Warrant (this "Warrant") is the warrant referred to in
and issued pursuant to that certain Master Private Placement Engagement Letter
(the "Letter Agreement"), dated June 25, 2004, between Motient Corporation, a
Delaware corporation (the "Company") and Tejas Securities Group, Inc. .
This Warrant certifies that, for good and valuable
consideration, the Company grants to [ ] ("Holder") or its permitted assigns
(the "Warrantholder"), the right to subscribe for and purchase from the Company,
at any time during the Exercise Period (as defined herein), [ ] shares of Common
Stock (the "Warrant Shares"), at the exercise price per share of Five Dollars
and Fifty Cents ($8.57) (the "Exercise Price"), all subject to the terms,
conditions and adjustments herein set forth. The number of Warrant Shares is
subject to adjustment as provided in Article III.
I. DEFINITIONS
1.1 Definitions. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
"Affiliate" with respect to any Person, shall mean any other
Person that directly or indirectly, controls, is controlled by, or is under
common control with, such Person.
"Business Day" means any day other than a Saturday, Sunday or
a day on which national banks are authorized by law to close in the State of New
York.
"Closing Price" of a share of Common Stock for any day shall
mean the last reported sales price, regular way, or, in the event that no sale
takes place on such day, the average of the reported closing bid and asked
prices, regular way, in either case as reported on the principal national
securities exchange on which such Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on any national securities exchange, on
the Nasdaq National Market System or the Nasdaq SmallCap Market or, if such
security is not quoted on the Nasdaq National Market System or the Nasdaq
SmallCap Market, the average of the closing bid and asked prices on each such
day in the over-the-counter market as reported by Nasdaq or, if bid and asked
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prices for such security on each such day shall not have been reported by
Nasdaq, the average of the bid and asked prices for such day as furnished by any
reputable investment banking firm regularly making a market in such security
selected for such purpose by the Board of Directors of the Company or a
committee thereof. If the Closing Price cannot be calculated on such date on any
of the foregoing bases, the Closing Price of such security on such date shall be
the fair market value as reasonably determined by an Independent Financial
Expert selected for such purpose by the Board of Directors of the Company or a
committee thereof.
"Common Stock" means the common stock, par value $0.01 per
share, of the Company.
"Governmental Authority" means any foreign, federal, state,
local or other governmental authority or regulatory body having jurisdiction
over the Company, its Affiliates or the Warrantholder.
"Independent Financial Expert" means a nationally recognized
investment banking firm that does not (and whose directors, officers, employees
and Affiliates do not) have a direct or indirect financial interest in the
Company or any of its Affiliates, that has not been and at the time it is called
upon to give independent financial advice to the Company is not (and none of
whose directors, officers, employees or Affiliates is) a promoter, director or
officer of the Company or any of its Affiliates, and that does not provide any
advice or opinions to the Company or any of its Affiliates.
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, Governmental Authority or other entity of
any kind, and shall include any successor (by merger or otherwise) of such
entity.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
II. EXERCISE OF WARRANT
2.1 Exercise Period. On the terms and subject to the conditions
contained herein, the Warrantholder may exercise this Warrant on any Business
Day starting on the date hereof and ending at 5:00 p.m., Eastern Standard Time,
on April 6, 2014 (the "Exercise Period"), for all or any part of the Warrant
Shares; provided that such Exercise Period shall be extended by a length of time
equal to the time period for which any registration statement intended to
register the Warrant Shares under the Securities Act may have lapsed after
effectiveness.
2.2 Exercise Procedure. To exercise this Warrant, the Warrantholder
shall deliver to the Company at its principal executive offices: (a) payment of
the aggregate Exercise Price in the manner provided in Section 2.3 (as computed
by multiplying (A) the Exercise Price by (B) the number of shares of Common
Stock for which the Warrantholder is exercising this Warrant at such time); (b)
a completed and properly executed Notice of Exercise in substantially the form
attached hereto as Annex I; and (c) this Warrant. Upon receipt of the aggregate
Exercise Price and the required deliverables pursuant to the preceding sentence,
the Company shall, within three (3) Business Days thereafter, subject to receipt
of any required regulatory approvals (including expiration of any required
waiting period), deliver to the Warrantholder duly executed certificate(s)
representing the aggregate number of shares of Common Stock issuable upon such
exercise, together with cash in lieu of any fraction of a Warrant Share as
provided in Section 2.6. Such stock certificate(s) shall be in such
denominations and registered in the name(s) as the Warrantholder shall request
in the Notice of Exercise. If this Warrant shall have been exercised in part,
the Company shall deliver to the Warrantholder a new warrant evidencing the
rights of the Warrantholder to purchase the remaining Warrant Shares issuable
(which shall in all other respects be identical to this Warrant). All shares of
Common Stock issuable upon the exercise of this Warrant pursuant to the terms
hereof shall be validly issued, fully paid and nonassessable and without any
preemptive rights.
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2.3 Payment of Exercise Price. The Exercise Price for the Warrant
Shares being purchased may be paid (i) in cash, by certified check or by wire
transfer to an account designated in writing by the Company, (ii) by the
Warrantholder surrendering a number of Warrant Shares having a Fair Market Value
on the date of exercise equal to, greater than (but only if by a fractional
share) or less than the required aggregate Exercise Price, in which case the
Holder shall receive the number of Warrant Shares to which it would otherwise be
entitled upon such exercise, less the surrendered shares, or (iii) any
combination of the methods described in the foregoing clauses (i) and (ii).
2.4 Restrictions. The Company shall not be required to issue any shares
of Common Stock under this Warrant if the issuance of such shares would
constitute a violation by the Company of any provision of any law, rule or
regulation of (i) any Governmental Authority, including without limitation,
compliance with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), and compliance with registration or qualification
requirements of applicable federal and state securities laws or (ii) any
applicable self governing organization or stock exchange, including without
limitation, the rules, regulations or listing requirements of any such
organization or stock exchange. If at any time the Company shall determine,
based upon the advice of counsel, that the registration, qualification or
listing of any shares subject to this Warrant under any applicable state or
federal law or other applicable rules or regulations (including those of any
applicable stock exchange), or any filing or expiration of any waiting period
under the HSR Act, is necessary as a condition of, or in connection with, the
issuance of shares, the Company shall not be required to issue any shares of
Common Stock under this Warrant unless and until the Company has received
evidence reasonably satisfactory to it that such laws, rules or regulations have
been complied with and/or such filing has been made and the applicable waiting
period has expired under the HSR Act.
2.5 Payment of Taxes. The Company shall pay all stamp taxes and other
similar charges with respect to the issue or delivery of Common Stock hereunder.
The Company shall not be required to pay any transfer tax or other similar
charge imposed in connection with the issue of any stock certificate in any name
other than that of the Warrantholder, and in such case the Company shall not be
required to issue or deliver any stock certificate until such tax or other
charge has been paid or it has been established to the reasonable satisfaction
of the Company that no such tax or other charge is due.
2.6 Fractional Shares. The Company shall not be required to issue any
fractional shares of Common Stock upon exercise of this Warrant. In lieu of any
fractional share to which the Warrantholder would otherwise be entitled upon
exercise of this Warrant, the Company shall make a cash payment in an amount
equal to the product of (a) the Closing Price per share of Common Stock on the
date of exercise multiplied by (b) the fraction of a share.
III. ADJUSTMENTS
3.1 Subdivision or Combination of Common Stock. If the Company at any
time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) its outstanding shares of Common Stock into a greater number of
shares, then as of the record date for effecting such subdivision the number of
shares issuable upon exercise of this Warrant will be proportionately increased
and the Exercise Price in effect immediately prior to such subdivision shall be
proportionately decreased. If the Company at any time combines (by reverse stock
split, recapitalization or otherwise) its outstanding shares of Common Stock
into a smaller number of shares, then as of the record date for effecting such
combination the number of shares issuable upon exercise of this Warrant will be
proportionately decreased and the Exercise Price in effect immediately prior to
such combination shall be proportionately increased.
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3.2 Consolidation, Merger, etc. In case of any consolidation or merger
of the Company with or into any other Person, or (a) any other corporate
reorganization, in which the Company shall not be the continuing or surviving
entity of such consolidation, merger or reorganization or in connection with
which the Common Stock (or other securities issuable upon exercise of this
Warrant) shall be changed into or exchanged for stock of any other entity or
cash or other property, (b) any transaction in which in excess of 50% of the
Company's voting power is transferred to a Person not a stockholder immediately
prior to the consummation of such transaction, (c) any sale of all or
substantially all of the assets of the Company or (d) a capital reorganization
or reclassification of the Common Stock (or other securities issuable upon
exercise of this Warrant) that does not result in an adjustment pursuant to
Section 3.1 (any such transaction being hereinafter referred to as a
"Reorganization"), then, in each case, the Warrantholder, on exercise hereof at
any time after the consummation or effective date of such Reorganization, shall
receive, in lieu of the Warrant Shares issuable on such exercise prior to the
date of such Reorganization, the stock, other securities, cash or other property
to which such holder would have been entitled upon the date of such
Reorganization if such holder had exercised this Warrant immediately prior
thereto.
3.3 Notice of Adjustment. Whenever an event necessitating an adjustment
to this Warrant pursuant to this Article III occurs, the Company shall promptly
deliver written notice thereof, by first class mail, postage prepaid, addressed
to the Warrantholder in accordance with Section 8.5, which notice shall state
the increase or decrease in the number or other denominations of securities
purchasable and exercise price payable upon the exercise of this Warrant setting
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based.
IV. RESTRICTIONS ON TRANSFER OF WARRANT and WARRANT SHARES
4.1 Restrictions on Transfer. The Warrantholder, by its acceptance of
this Warrant, agrees to be bound by the provisions of this Article IV and
acknowledges and confirms that this Warrant and any Warrant Shares issued upon
exercise of this Warrant have not been registered under the Securities Act or
any applicable state securities laws, and may not be sold or transferred except
in compliance with and subject to the Securities Act and such state securities
laws. Unless and until this Warrant and such Warrant Shares have been registered
under the Securities Act and such state securities laws, the Company may
require, as a condition to effecting any sale or transfer of this Warrant or
such Warrant Shares on the books of the Company, an opinion of counsel
reasonably satisfactory to the Company to the effect that an exemption from
registration under the Securities Act and such state securities laws is
available for the proposed transfer or assignment or a certification reasonably
satisfactory to the counsel of the Company in its professional determination
from the transferee that it is an "accredited investor" as defined under the
Securities Act and regulations promulgated thereunder. Any purported sale or
transfer of this Warrant and/or such Warrant Shares shall be null and void
unless made in compliance with the conditions set forth in this Article IV.
Except as provided in Section 4.2, (a) this Warrant and any warrant of the
Company issued in exchange or replacement for this Warrant shall be stamped or
otherwise imprinted with a legend in substantially the form set forth on the
cover of this Warrant, (b) each stock certificate for Warrant Shares issued upon
the exercise of this Warrant and each stock certificate issued upon the transfer
of any such Warrant Shares shall be stamped or otherwise imprinted with a legend
substantially to the same effect.
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4.2 Termination of Restrictions. The restrictions imposed by Section
4.1 upon the transferability of this Warrant and the Warrant Shares shall
terminate: (a) when and so long as this Warrant or any such Warrant Shares shall
have been effectively registered under the Securities Act and transferred in
compliance therewith; or (b) when the Company shall have received an opinion of
counsel reasonably satisfactory to it that this Warrant or such Warrant Shares
may be transferred without registration thereof under the Securities Act;
provided, however, that if the Warrant or the Warrant Shares have been held
(both legally and beneficially) by the Warrantholder for at least one (1) year
and is proposed to be sold in compliance with Rule 144 under the Securities Act,
no such opinion of counsel shall be required. Whenever the legend requirements
imposed by Section 4.1 shall terminate as to this Warrant or the Warrant Shares,
the holder of this Warrant or any Warrant Shares shall be entitled to receive
from the Company, at the Company's expense, a new warrant or a new stock
certificate representing the Warrant Shares, as the case may be, not bearing the
restrictive legend described in Section 4.1.
4.3 Compliance with Securities Laws. The Warrantholder, by acceptance
hereof, represents to the Company that this Warrant and any Warrant Shares
purchased upon exercise of this Warrant are being acquired solely for the
Warrantholder's own account and not as a nominee for any other party, and for
investment, and that the Warrantholder will not offer, sell or otherwise dispose
of this Warrant or any such Warrant Shares except under circumstances that will
not result in a violation of the Securities Act or any applicable state
securities laws.
4.4 Transfer Procedure. Subject to compliance with the other provisions
of this Article IV, transfer of this Warrant, in whole or in part, shall occur
upon surrender of this Warrant at the principal executive offices of the
Company, together with a duly executed written assignment of this Warrant in
substantially the form attached hereto as Annex II and funds sufficient to pay
any transfer taxes payable upon the making of such transfer and, if required, an
opinion of counsel reasonably acceptable to counsel of the Company in its
professional determination concerning the compliance of such transfer with the
Securities Act and applicable state securities laws. Upon receipt of such items,
the Company shall execute and deliver a new warrant or warrants in the name of
the assignee or assignees and in the denomination(s) specified in such
instrument of assignment, and shall issue to the assignor a new warrant
evidencing the portion of this Warrant not so assigned, and this Warrant shall
promptly be cancelled.
4.5 Maintenance of Transfer Books. The Company agrees to maintain, at
the principal executive office of the Company, books or records for the
registration and the registration of transfer of this Warrant or any warrant of
the Company issued in exchange for this Warrant.
4.6 Registration Rights. Any registration statement under the
Securities Act intended to register the Warrant Shares remain effective until
such time as all Warrant Shares can be freely sold without volume limitations
pursuant to Rule 144K of the Securities Act.
V. RESTRICTIONS ON TRANSFER OF WARRANTS
The Warrantholder, by its acceptance of this Warrant, agrees that it
will not directly, or indirectly, offer to sell, sell, contract to sell, grant
or sell to any other person any option, right or warrant to purchase, lend,
assign, pledge, transfer, hypothecate or otherwise dispose of or encumber any of
the Warrants, or dispose of any beneficial interest therein, except to (i)
successors to Warrantholder in a merger or consolidation, (ii) officers,
directors, employees or agents of Warrantholder, (iii) purchasers of all or
substantially all of the assets of Warrantholder or (iv) shareholders of
Warrantholder or shareholders or partners of its transferees in the event of
liquidation or dissolution.
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VI. NECESSARY ACTIONS
The Company will: (a) use its commercially reasonable efforts to obtain
all such authorizations, approvals, exemptions or consents from any Governmental
Authority having jurisdiction thereof as may be necessary to enable the Company
to perform its obligations under this Warrant (including, without limitation,
making all necessary filings with such Governmental Authorities); (b) take all
necessary steps (including, without limitation, making appropriate amendments to
its certificate of incorporation) to ensure that the Company has authorized a
sufficient number of authorized but unissued shares of its Common Stock to
provide for the issuance of the Warrant Shares; (c) reserve from such authorized
but unissued shares of Common Stock a sufficient number of shares to provide for
the issuance of the Warrant Shares upon the exercise of this Warrant; and (d)
take all actions as may be necessary or appropriate to ensure that the Company
may validly and legally issue fully paid and non-assessable shares of Common
Stock upon the exercise of this Warrant that are not subject to any preemptive
rights and are free from all taxes, liens, security interests, charges, and
other encumbrances with respect to the issuance thereof, other than taxes in
respect of any transfer occurring contemporaneously with such issuance.
VII. LOSS OR MUTILATION
On receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant and (a) in the case of
loss, theft or destruction, on delivery of an indemnity agreement reasonably
satisfactory in form and substance to the Company; or (b) in the case of
mutilation, on surrender and cancellation of this Warrant, the Company shall
execute and deliver, in lieu of this Warrant, a new warrant of like tenor and
amount.
VIII. MISCELLANEOUS
8.1 Entire Agreement. This Warrant constitutes the entire agreement
between the Company and the
Warrantholder with respect to the Warrant.
8.2 Nonwaiver. No course of dealing or any delay or failure to exercise
any right hereunder on the part of the Warrantholder shall operate as a waiver
of such right or otherwise prejudice the Warrantholder's rights, powers or
remedies.
8.3 Binding Effect; No Third-Party Beneficiaries. This Warrant shall
inure to the benefit of and shall be binding upon the Company and the
Warrantholder and their respective successors and permitted assigns. Nothing in
this Warrant, expressed or implied, is intended to or shall confer on any Person
other than the Company and the Warrantholder, or their respective successors or
permitted assigns, any rights, remedies, obligations or liabilities under or by
reason of this Warrant.
8.4 Section and Other Headings. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
8.5 Notices. Except as otherwise expressly provided herein, all notices
and deliveries referred to in this Warrant shall be in writing (including
facsimile transmission or similar writing) and shall be given to such party at
its address or facsimile number set forth on the signature pages hereof. Each
such notice, request or other communication shall be deemed received by the
other party (i) if given by facsimile transmission, when transmitted to the
facsimile number specified in this Section and confirmation of receipt is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (iii)
if given by any other means, when delivered at the address specified in this
Section.
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8.6 Severability. Whenever possible, each provision of this Warrant
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Warrant is held by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision of this Warrant or the
validity, legality or enforceability of this Warrant in any other jurisdiction.
In such event, this Warrant will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision had never
been contained herein.
8.7 Governing Law. All questions concerning the construction, validity
and interpretation of this warrant and the issuance of securities hereunder will
be governed by and construed in accordance with the internal laws of the State
of delaware, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of delaware.
8.8 Rights or Liabilities as Stockholder. The Warrantholder shall be
deemed to have become a holder of record of the shares of Common Stock issuable
under Section 2.2 as of the date on which all required deliverables pursuant to
Section 2.2 have been received by the Company. Until such time the Warrantholder
shall not have any voting rights or other rights or liabilities of a stockholder
of the Company with respect to the Common Stock issuable hereunder.
8.9 Amendment. No amendment or waiver of any provision of this Warrant
shall be effective without the prior written consent of the Company and the
Warrantholder.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer as of the date first written above.
MOTIENT CORPORATION
By: /s/ Xxxxx Xxxxxx
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Xxxxxxxxxxx Xxxxxx
Executive Vice President
Chief Operating Officer
Warrantholder Information:
[ ]
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Annex I
NOTICE OF EXERCISE
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(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the
right represented by this Warrant to purchase _________ shares of Common Stock,
and herewith tenders to the Company as payment for such shares the amount of
$__________ in accordance with the terms of this Warrant. The undersigned
requests that a certificate for such shares be registered in the name of each of
the following:
Name:
---------------------
Address:
---------------------
---------------------
---------------------
and that each certificate be delivered to the above at the address indicated.
The undersigned represents that it is an accredited investor
(as defined in applicable rules and regulations under the Securities Act of
1933, as amended), and that it is acquiring such shares of Common Stock for its
own account for investment and not with a view to or for sale in connection with
any distribution thereof.
Dated:
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Signature
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---------------------------
(Print Name)
---------------------------
(Street Address)
---------------------------
(City) (State) (Zip Code)
Annex II
WRITTEN ASSIGNMENT
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FOR VALUE RECEIVED, __________________ hereby sells, assigns,
and transfers unto__________________________________________ (please print name
and address) this Warrant, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _____________________
Attorney, to transfer the Warrant on the books of Motient Corporation with full
power of substitution.
Dated:
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Signature
Signature Guaranteed:
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The signature to the assignment must correspond to
the name of the registered holder of this Warrant on
the books and records of the Company in every
particular, without alteration or any change
whatsoever, and must be guaranteed by a participant
in the Security Transfer Agents Medallion Program or
an institution receiving prior approval of the
Company. If the assignment is signed pursuant to a
power of attorney, such power of attorney must be
attached hereto.
