EXHIBIT 10.45
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS AND NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON
EXERCISE OF THIS WARRANT MAY BE SOLD OR TRANSFERRED UNLESS THE REGISTRATION
PROVISIONS OF THE SAID ACT AND APPLICABLE STATE SECURITIES LAWS HAVE BEEN
COMPLIED WITH OR UNLESS COMPLIANCE WITH SUCH PROVISIONS IS NOT REQUIRED.
November 12, 2004
MOTIENT CORPORATION
FORM OF COMMON STOCK PURCHASE WARRANT
Void after November 12, 2009
This Warrant (the "WARRANT") entitles [ ] (including any successors or
assigns, the "HOLDER"), for value received, to purchase from MOTIENT
CORPORATION, a Delaware corporation, at any time and from time to time, subject
to the terms and conditions set forth herein, during the period starting from
5:00 a.m. on the Initial Exercise Date (as defined in Section 1 below) to 5:00
p.m., Eastern time, on the Expiration Date (as defined in Section 1 below), at
which time this Warrant shall expire and become void, all or any portion of the
vested Warrant Shares at the Exercise Price (as defined in Section 1 below).
This Warrant also is subject to the following terms and conditions:
1. DEFINITIONS. As used in this Warrant, the following terms shall have
the respective meanings set forth below or elsewhere in this Warrant as referred
to below:
"AFFILIATE" means any Person that, directly or indirectly, through one
or more intermediaries, controls, is controlled by, or is under common control
with, a Person, as such terms are used and construed under Rule 144, and any
Person (or group of Persons) who share(s) voting or investment power or is (are)
deemed a beneficial owner(s), as such terms are used and construed under Rule
13d-3 of the rules and regulations promulgated under the Securities Exchange Act
of 1934, as amended, including, without limitation, any Person that serves as a
general partner and/or investment adviser or in a similar capacity of a Person.
"COMMON STOCK" means the common stock, $0.01 par value per share, of
the Company (including any securities into which or for which such shares may be
exchanged for, or converted into, pursuant to any stock dividend, stock split,
stock combination, recapitalization, reclassification, reorganization or other
similar event).
"COMPANY" means Motient Corporation, a Delaware corporation.
"EXERCISE PRICE" means, $8.57 per share of Common Stock, as applicable
and as adjusted from time to time pursuant to the terms of this Warrant.
"EXPIRATION DATE" means November 12, 2009.
"FAIR MARKET VALUE" shall mean (i) if the Common Stock is traded on
Nasdaq, then the last reported sale price per share of Common Stock on The
NASDAQ Stock Market or any national securities exchange in which such Common
Stock is quoted or listed, as the case may be, on the date immediately preceding
each date the Warrant is exercised or, if no such sale price is reported on such
date, such price on the next preceding business day in which such price was
reported, (ii) if the Common Stock is actively traded over-the-counter, then the
average of the closing bid and asked prices over the five (5) trading days ended
on the trading day immediately preceding each date the Warrant is exercised or
(iii) if such Common Stock is not traded, quoted or listed on The NASDAQ Stock
Market or any national securities exchange or the over-the-counter market, then
the fair market value of a share of Common Stock, as determined in good faith by
the Board of Directors of the Company.
"HOLDER" has the meaning set forth in the preamble of this Warrant.
"INITIAL EXERCISE DATE" means the date on which this Warrant first
vests in accordance with Section 2.1 hereof.
"PERSON" (whether or not capitalized) means an individual, entity,
partnership, limited liability company, corporation, association, trust, joint
venture, unincorporated organization, and any government, governmental
department or agency or political subdivision thereof.
"SEC" means the Securities and Exchange Commission
---
"SHARES" means the shares of Common Stock issued pursuant to the
Securities Purchase Agreement.
"SECURITIES PURCHASE AGREEMENT" means that certain Securities Purchase
Agreement dated November 12, 2004, by and between the Company and the other
parties thereto.
"VESTING DATE" has the meaning set forth in Section 2.1 hereof.
"WARRANT SHARES" means an aggregate of [ ] shares of Common Stock,
after giving effect to all adjustments thereto provided for herein, including,
without limitation, those set forth in Section 4 hereof.
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2. EXERCISE OF WARRANT.
2.1 METHOD OF EXERCISE; VESTING. Subject to all of the terms
and conditions hereof (including the vesting provisions set forth below), this
Warrant may be exercised in whole or in part, with respect to then vested
Warrant Shares, at any time and from time to time during the period commencing
on the Initial Exercise Date and ending on the Expiration Date. Exercise shall
be by presentation and surrender to the Company at its principal office, or to
the transfer agent of the Company, of this Warrant and the notice and
subscription form annexed hereto, executed by the Holder, which shall indicate
the number of shares for which the Holder intends to exercise this Warrant,
together with payment to the Company in accordance with Section 3 hereof in an
amount equal to the product of the Exercise Price multiplied by the number of
Warrant Shares being purchased upon such exercise. Upon and as of receipt by the
Company (or the transfer agent) of such properly completed and duly executed
purchase form accompanied by payment as herein provided, the Holder shall be
deemed to be the Holder of record of the Warrant Shares issuable upon such
exercise, notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such Warrant Shares shall not
then actually be, or have been, delivered to the Holder.
This Warrant shall become exercisable with respect to Warrant Shares
("vest") as follows: (i) with respect to 25% of the Warrant Shares, on January
11, 2005 (the "VESTING DATE"), if a registration statement covering the resale
of the Shares shall not have been filed with the SEC by such date, (ii) with
respect to an additional 25% of the Warrant Shares, on the date that is sixty
(60) days after the Vesting Date, if a registration statement covering the
resale of the Shares shall not have been declared effective by the SEC by such
date, (iii) with respect to an additional 25% of the Warrant Shares, on the date
that is ninety (90) days after the Vesting Date, if a registration statement
covering the resale of the Shares shall not have been declared effective by the
SEC by such date and (iv) with respect to the remaining 25% of the Warrant
Shares, on the date that is one hundred twenty (120) days after the Vesting
Date, if a registration statement covering the resale of the Shares shall not
have been declared effective by the SEC by such date; PROVIDED, HOWEVER, that
notwithstanding the foregoing, the Warrant Shares shall vest in accordance with
clauses (i)-(iv) above only to the extent that, after giving effect to such
vesting, such vesting will not result in the Holder (together with its
Affiliates) owning, holding or beneficially owning more than 9.99% of the Common
Stock (the "OWNERSHIP LIMIT"), and at any time, and from time to time, if the
Holder (together with its Affiliates) owns, holds or beneficially owns a
percentage less than the Ownership Limit, then this Warrant shall thereafter
vest or continue to vest, first with respect to any Warrant Shares that would
have vested in accordance with clauses (i)-(iv) above but for the Ownership
Limit and second, otherwise in accordance with clauses (i)-(iv) above, but in
each case, again, only to the extent that, after giving effect to such vesting,
such vesting will not result in the Holder (together with its Affiliates)
owning, holding or beneficially owning more than the Ownership Limit; PROVIDED
FURTHER that if this Warrant does not vest and become exercisable for any
Warrant Shares in accordance with this paragraph, then this Warrant shall become
null and void.
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2.2 DELIVERY OF STOCK CERTIFICATES ON EXERCISE. As soon as
practicable after the exercise of this Warrant, and in any event within three
(3) business days thereafter, the Company, at its expense, and in accordance
with applicable securities laws, will cause to be issued in the name of and
delivered to the Holder, or as the Holder may direct (subject in all cases, to
the provisions of Section 9 hereof), a certificate or certificates for the
number of Warrant Shares purchased by the Holder on such exercise, PLUS, in lieu
of any fractional share to which the Holder would otherwise be entitled, cash
equal to such fraction multiplied by the Fair Market Value.
2.3 SHARES TO BE FULLY PAID AND NONASSESSABLE. All Warrant
Shares issued upon the exercise of this Warrant shall be validly issued, fully
paid and nonassessable, free of all liens, taxes, charges and other encumbrances
or restrictions on sale (other than those set forth herein).
2.4 FRACTIONAL SHARES. No fractional shares of Common Stock or
scrip representing fractional shares of Common Stock shall be issued upon the
exercise of this Warrant. With respect to any fraction of a share of Common
Stock called for upon any exercise hereof, the Company shall make a cash payment
to the Holder as set forth in Section 2.2 hereof.
2.5 ISSUANCE OF NEW WARRANTS; COMPANY ACKNOWLEDGMENT. Upon any
partial exercise of this Warrant, the Company, at its expense, will forthwith
and, in any event within three (3) business days, issue and deliver to the
Holder a new warrant or warrants of like tenor, registered in the name of the
Holder, exercisable, in the aggregate, for the balance of the Warrant Shares.
Moreover, the Company shall, at the time of any exercise of this Warrant, upon
the request of the Holder, acknowledge in writing its continuing obligation to
afford to the Holder any rights to which the Holder shall continue to be
entitled after such exercise in accordance with the provisions of this Warrant;
PROVIDED, HOWEVER, that if the Holder shall fail to make any such request, such
failure shall not affect the continuing obligation of the Company to afford to
the Holder any such rights.
2.6 PAYMENT OF TAXES AND EXPENSES. The Company shall pay any
recording, filing, stamp or similar tax which may be payable in respect of any
transfer involved in the issuance of, and the preparation and delivery of
certificates (if applicable) representing, (i) any Warrant Shares purchased upon
exercise of this Warrant and/or (ii) new or replacement warrants in the Holder's
name or the name of any transferee of all or any portion of this Warrant.
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 cancellation of
indebtedness owing from the Company to the Holder, (iii) by the Holder
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 (iv) any combination of the
methods described in the foregoing clauses (i), (ii) and (iii).
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4. ADJUSTMENT OF EXERCISE PRICE. The Exercise Price shall be subject to
adjustment from time to time upon the happening of certain events as follows:
4.1. SUBDIVISION OR COMBINATION OF STOCK. If at any time or
from time to time after the date hereof, the Company shall subdivide (by way of
stock dividend, stock split or otherwise) its outstanding shares of Common
Stock, the Exercise Price in effect immediately prior to such subdivision shall
be reduced proportionately and the number of Warrant Shares (calculated to the
nearest whole share) shall be increased proportionately, and conversely, in the
event the outstanding shares of Common Stock shall be combined (whether by stock
combination, reverse stock split or otherwise) into a smaller number of shares,
the Exercise Price in effect immediately prior to such combination shall be
increased proportionately and the number of Warrant Shares (calculated to the
nearest whole share) shall be decreased proportionately. The Exercise Price and
the number of Warrant Shares, as so adjusted, shall be readjusted in the same
manner upon the happening of any successive event or events described in this
Section 4.1.
4.2 ADJUSTMENT FOR STOCK DIVIDENDS. If at any time after the
date hereof, the Company shall declare a dividend or make any other distribution
upon any class or series of stock of the Company payable in shares of Common
Stock or securities convertible into shares of Common Stock, the Exercise Price
and the number of Warrant Shares to be obtained upon exercise of this Warrant
shall be adjusted proportionately to reflect the issuance of any shares of
Common Stock or convertible securities, as the case may be, issuable in payment
of such dividend or distribution. The Exercise Price and the number of Warrant
Shares, as so adjusted, shall be readjusted in the same manner upon the
happening of any successive event or events described in this Section 4.2.
Notwithstanding the foregoing, no adjustment shall be made with respect to any
dividend of stock purchase rights declared in connection with the issuance of up
to $50,000,000 of shares of Common Stock at a per share price not less than the
Exercise Price pursuant to a follow on rights offering to the Company's existing
stockholders, as contemplated by the Securities Purchase Agreement.
4.3 ADJUSTMENTS FOR RECLASSIFICATIONS. If the Common Stock
issuable upon the conversion of this Warrant shall be changed into the same or a
different number of shares of any class(es) or series of stock, whether by
reclassification or otherwise (other than an adjustment under Sections 4.1 and
4.2 or a merger, consolidation, or sale of assets provided for under Section
4.4), then and in each such event, the Holder hereof shall have the right
thereafter to convert each Warrant Share into the kind and amount of shares of
stock and other securities and property receivable upon such reclassification,
or other change by holders of the number of shares of Common Stock into which
such Warrant Shares would have been convertible immediately prior to such
reclassification or change, all subject to successive adjustments thereafter
from time to time pursuant to and in accordance with, the provisions of this
Section 4.
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4.4 ADJUSTMENTS FOR MERGER OR CONSOLIDATION. In the event
that, at any time or from time to time after the date hereof, the Company shall
(a) effect a reorganization, (b) consolidate with or merge into any other
Person, or (c) sell or transfer all or substantially all of its properties or
assets or more than 50% of the voting capital stock of the Company (whether
issued and outstanding, newly issued, from treasury, or any combination thereof)
to any other person under any plan or arrangement contemplating the
consolidation or merger, sale or transfer, or dissolution of the Company, then,
in each such case, the Holder, upon the exercise of this Warrant as provided in
Section 2.1 hereof at any time or from time to time after the consummation of
such reorganization, consolidation, merger or sale or the effective date of such
dissolution, as the case may be, shall receive, in lieu of the Warrant Shares
issuable on such exercise immediately prior to such consummation or such
effective date, as the case may be, the stock and property (including cash) to
which the Holder would have been entitled upon the consummation of such
consolidation or merger, or sale or transfer, or in connection with such
dissolution, as the case may be, if the Holder had so exercised this Warrant
immediately prior thereto (assuming the payment by the Holder of the Exercise
Price therefor as required hereby in a form permitted hereby, which payment
shall be included in the assets of the Company for the purposes of determining
the amount available for distribution), all subject to successive adjustments
thereafter from time to time pursuant to, and in accordance with, the provisions
of this Section 4.
4.5 CONTINUATION OF TERMS. Upon any reorganization,
consolidation, merger or transfer (and any dissolution following any such
transfer) referred to in this Section 4, this Warrant shall continue in full
force and effect and the terms hereof shall be applicable to the shares of
Common Stock and other securities and property receivable upon the exercise of
this Warrant after the consummation of such reorganization, consolidation or
merger or the effective date of dissolution following any such transfer, as the
case may be, and shall be binding upon the issuer of any such Common Stock or
other securities, including, in the case of any such transfer, the Person
acquiring all or substantially all of the properties or assets or more than 50%
of the voting capital stock of the Company (whether issued and outstanding,
newly issued or from treasury or any combination thereof), whether or not such
Person shall have expressly assumed the terms of this Warrant.
4.6 CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment of the Exercise Price and number of Warrant Shares
pursuant to this Section 4, this Warrant shall, without any action on the part
of the Holder, be adjusted in accordance with this Section 4, and the Company,
at its expense, promptly shall compute such adjustment or readjustment in
accordance with the terms hereof and prepare and furnish to the Holder a
certificate setting forth such adjustment or readjustment, showing in detail the
facts upon which such adjustment or readjustment is based. The Company will
forthwith send a copy of each such certificate to the Holder in accordance with
Section 11.4 below.
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5. REGISTRATION RIGHTS. The Warrant Shares shall be entitled to
registration rights and all other rights as applicable to such shares in
accordance with that certain Registration Rights Agreement, dated as of the date
hereof, as amended, by and among the Company and the Investors named therein.
6. NOTICES OF RECORD DATE. Upon (a) any establishment by the Company of
a record date of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or
other distribution, or right or option to acquire securities of the Company, or
any other right, or (b) any capital reorganization, reclassification,
recapitalization, merger or consolidation of the Company with or into any other
corporation, any transfer of all or substantially all the assets of the Company,
or any voluntary or involuntary dissolution, liquidation or winding up of the
Company, or the sale, in a single transaction, of a majority of the Company's
voting stock (whether newly issued, or from treasury, or previously issued and
then outstanding, or any combination thereof), the Company shall mail to the
Holder at least ten (10) business days, or such longer period as may be required
by law, prior to the record date specified therein, a notice specifying (i) the
date established as the record date for the purpose of such dividend,
distribution, option or right and a description of such dividend, distribution,
option or right, (ii) the date on which any such reorganization,
reclassification, transfer, consolidation, merger, dissolution, liquidation or
winding up, or sale is expected to become effective and (iii) the date, if any,
fixed as to when the holders of record of Common Stock shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reorganization, reclassification, transfer, consolidation,
merger, dissolution, liquidation or winding up.
7. EXCHANGE OF WARRANT. Subject to the provisions of Section 9 hereof
(if and to the extent applicable), this Warrant shall be exchangeable, upon the
surrender hereof by the Holder at the principal office of the Company, for new
warrants of like tenor, each registered in the name of the Holder or in the name
of such other persons as the Holder may direct (upon payment by the Holder of
any applicable transfer taxes). Each of such new warrants shall be exercisable
for such number of Warrant Shares as the Holder shall direct, PROVIDED that all
of such new warrants shall represent, in the aggregate, the right to purchase
the same number of Warrant Shares and cash, securities or other property, if
any, which may be purchased by the Holder upon exercise of this Warrant at the
time of its surrender.
8. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
Certificate of Incorporation or By-Laws or through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist
in the carrying out of all such terms and in the taking of all action as may be
necessary or appropriate in order to protect the rights of the Holder against
dilution, or other impairment.
9. TRANSFER PROVISIONS, ETC.
9.1 LEGENDS. Subject to Section 6.2 of the Securities Purchase
Agreement, each certificate representing any Warrant Shares issued upon exercise
of this Warrant, and of any shares of Common Stock into which such Warrant
Shares may be converted, shall bear the following legend:
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"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR
SOLD IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, or in a transaction not
subject to, REGISTRATION UNDER SAID ACT."
9.2 MECHANICS OF TRANSFER.
(a) Any transfer of all or any portion of this
Warrant (and the Warrant Shares), or of any interest herein or therein, that
is otherwise in compliance with applicable law shall be effected by surrendering
this Warrant to the Company at its principal office, together with a duly
executed form of assignment, in the form attached hereto. In the event of any
such transfer of this Warrant, the Company shall issue a new warrant or warrants
of like tenor to the transferee(s), representing, in the aggregate, the right to
purchase the same number of Warrant Shares and cash, securities or other
property, if any, which may be purchased by the Holder upon exercise of this
Warrant at the time of its surrender.
(b) In the event of any transfer of all or any
portion of this Warrant in accordance with Section 9.2(a) above, the Company
shall issue (i) a new warrant of like tenor to the transferee, representing the
right to purchase the number of Warrant Shares, and cash, securities or other
property, if any, which were purchasable by the Holder of the transferred
portion of this Warrant, and (ii) a new warrant of like tenor to the Holder,
representing the right to purchase the number of Warrant Shares, and cash,
securities or other property, if any, purchasable by the Holder of the
un-transferred portion of this Warrant. Until this Warrant or any portion
thereof is transferred on the books of the Company, the Company may treat the
Holder as the absolute holder of this Warrant and all right, title and interest
therein for all purposes, notwithstanding any notice to the contrary.
9.3 NO RESTRICTIONS ON TRANSFER. Subject to compliance with
applicable securities laws, this Warrant and any portion hereof, the Warrant
Shares and the rights hereunder may be transferred by the Holder in its sole
discretion at any time and to any Person or Persons, including without
limitation Affiliates and affiliated groups of such Holder, without the consent
of the Company.
9.4 WARRANT REGISTER. The Company shall keep at its principal
office a register for the registration, and registration of transfers, of the
Warrants. The name and address of each Holder of one or more of the Warrants,
each transfer thereof and the name and address of each transferee of one or more
of the Warrants shall be registered in such register. The Company shall give to
any Holder of a Warrant promptly upon request therefor, a complete and correct
copy of the names and addresses of all registered Holders of the Warrants.
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10. LOST, STOLEN OR DESTROYED WARRANT. Upon receipt by the Company of
evidence satisfactory to it of loss, theft, destruction or mutilation of this
Warrant and, in the case of loss, theft or destruction, on delivery of a
customary affidavit of the Holder and indemnity agreement, or, in the case of
mutilation, upon surrender of this Warrant, the Company at its expense will
execute and deliver, or will instruct its transfer agent to execute and deliver,
a new Warrant of like tenor and date, and any such lost, stolen or destroyed
Warrant thereupon shall become void.
11. GENERAL.
11.1 AUTHORIZED SHARES, RESERVATION OF SHARES FOR ISSUANCE. At
all times while this Warrant is outstanding, the Company shall maintain its
corporate authority to issue, and shall have authorized and reserved for
issuance upon exercise of this Warrant, such number of shares of Common Stock,
any other capital stock or other securities as shall be sufficient to perform
its obligations under this Warrant (after giving effect to any and all
adjustments to the number and kind of Warrant Shares purchasable upon exercise
of this Warrant).
11.2 NO IMPAIRMENT. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issuance or sale of securities, sale or
other transfer of any of its assets or properties, or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder hereunder against
impairment. Without limiting the generality of the foregoing, the Company (a)
will not increase the par value of any shares of Common Stock receivable upon
the exercise of this Warrant above the amount payable therefor on such exercise,
and (b) will take all action that may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable shares of
Common Stock upon the exercise of this Warrant.
11.3 NO RIGHTS AS STOCKHOLDER. The Holder shall not be
entitled to vote or to receive dividends or to be deemed the holder of Common
Stock that may at any time be issuable upon exercise of this Warrant for any
purpose whatsoever, nor shall anything contained herein be construed to confer
upon the Holder any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance or
reclassification of stock, change of par value or change of stock to no par
value, consolidation, merger or conveyance or otherwise), or to receive notice
of meetings (except to the extent otherwise provided in this Warrant), or to
receive dividends or subscription rights, until the Holder shall have exercised
this Warrant and been issued Warrant Shares in accordance with the provisions
hereof.
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11.4 NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
given if personally delivered or delivered by overnight courier or mailed by
first-class registered or certified mail, postage prepaid, return receipt
requested, or sent by fax machine, addressed as follows:
(a) if to the Company at:
Motient Corporation
000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopier: 000-000-0000
with copies to:
Motient Corporation
000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: General Counsel
Telecopier: 000-000-0000
Xxxxxxx Xxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx, Esq.
Telecopier: (000) 000-0000
(b) if to the Holder, at the Holder's address
appearing in the books maintained by the Company.
12. AMENDMENT AND WAIVER. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The terms of
this Warrant may be amended, modified or waived only with the written consent of
the Company and the Holder.
13. GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of Delaware, as such laws are applied to
contracts entered into and wholly to be performed within the State of Delaware
and without giving effect to any principles of conflicts or choice of law that
would result in the application of the laws of any other jurisdiction.
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14. COVENANTS TO BIND SUCCESSOR AND ASSIGNS. All covenants,
stipulations, promises and agreements in this Warrant contained by or on behalf
of the Company shall bind its successors and assigns, whether so expressed or
not.
15. SEVERABILITY. In case any one or more of the provisions contained
in this Warrant shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
16. CONSTRUCTION. The definitions of this Warrant shall apply equally
to both the singular and the plural forms of the terms defined. Wherever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The section and paragraph headings used herein are
for convenience of reference only, are not part of this Warrant and are not to
affect the construction of or be taken into consideration in interpreting this
Warrant.
17. REMEDIES. The Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Warrant. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Warrant and hereby agrees to
waive the defense in any action for specific performance that a remedy at law
would be adequate. In any action or proceeding brought to enforce any provision
of this Warrant or where any provision hereof is validly asserted as a defense,
the successful party to such action or proceeding shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Company has executed this Common Stock Purchase
Warrant as of November 12, 2004.
COMPANY:
MOTIENT CORPORATION
By:
-----------------------------------
Xxxxxxxxxxx Xxxxxx,
Executive Vice President and Chief
Operating Officer
[SIGNATURE PAGE TO COMMON STOCK PURCHASE WARRANT]
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NOTICE AND
SUBSCRIPTION
To: MOTIENT CORPORATION Date:_____________
000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the attached Warrant for, and to exercise thereunder,
__________ shares of Common Stock, of MOTIENT CORPORATION a Delaware
corporation, and tenders herewith payment of $__________, representing the
aggregate purchase price for such shares based on the price per share provided
for in such Warrant. Such payment is being made in accordance with [Section
3(i)] [Section 3(ii)] [Section 3(iii)] [Section 3(iv)] of the attached Warrant.
Please issue a certificate or certificates for such shares of Common Stock in
the following name or names and denominations and deliver such certificate or
certificates to the person or persons listed below at their respective addresses
set forth below:
If said number of shares of Common Stock shall not be all the shares of Common
Stock issuable upon exercise of the attached Warrant, a new Warrant is to be
issued in the name of the undersigned for the balance remaining of such shares
of Common Stock less any fraction of a share of Common Stock paid in cash.
Dated: ___________, ____ ___________________________
Signature
FORM OF ASSIGNMENT
(To be executed upon assignment of Warrant)
For value received, __________________________________ hereby sells,
assigns and transfers unto __________________ the attached Warrant [__% of the
attached Warrant], together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint ____________________ attorney to
transfer said Warrant [said percentage of said Warrant] on the books of MOTIENT
CORPORATION, a Delaware corporation, with full power of substitution in the
premises.
If not all of the attached Warrant is to be so transferred, a new
Warrant is to be issued in the name of the undersigned for the balance of said
Warrant.
The undersigned hereby agrees that it will not sell, assign, or
transfer the right, title and interest in and to the Warrant unless applicable
federal and state securities laws have been complied with.
Dated: _____________, ____ ___________________________
Signature
