Exhibit 10.2
MOTIENT CORPORATION
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of April
15, 2005 by and among MOTIENT CORPORATION, a Delaware corporation, (the
"Company"), and each investor listed on Schedule 1 hereto (each such investor,
individually, an "Investor" and, collectively, the "Investors").
WHEREAS, the Company has agreed to issue and sell to the Investors, and the
Investors have agreed to purchase from the Company, an aggregate of 408,500
shares (the "Shares") of the Company's Series A Preferred Stock, $0.01 par value
per share (the "Series A Preferred Stock");
WHEREAS, the Shares are being issued to the Investors at a per share price
and upon the terms and conditions set forth in the Securities Purchase
Agreement, dated as of the date hereof, between the Company and the Investors
(the "Securities Purchase Agreement"); and
WHEREAS, the terms of the Securities Purchase Agreement provide that it
shall be a condition precedent to the closing of the transactions thereunder,
for the Company and the Investors to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings provided
therefor below or elsewhere in this Agreement as described below:
"Affiliates" 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 in all
cases including, without limitation, any Person that serves as a general partner
and/or investment adviser or in a similar capacity of such a Person.
"Board" means the Board of Directors of the Company.
"Business Day" means any day except Saturday, Sunday and any day which
shall be a federal legal holiday or a day on which banking institutions in the
State of New York are authorized or required by law or other governmental action
to close.
"Certificate of Designations" means the Certificate of Designations of
Series A Preferred Stock filed by the Company on or before the Closing Date with
the Secretary of State of the State of Delaware.
"Closing Date" has the meaning set forth in the Securities Purchase
Agreement.
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"Common Stock" means the Company's common stock, par value $0.01 per share
(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).
"Conversion Shares" means the shares of Common Stock issuable upon
conversion of the Series A Preferred Stock as set forth in the Certificate of
Designations.
"Dividend Shares" means 2,000,000 shares of Common Stock issuable as a
dividend on the Shares.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
all of the rules and regulations promulgated thereunder.
"Person" (whether or not capitalized) means an individual, partnership,
limited liability company, corporation, association, trust, joint venture,
unincorporated organization, and any government, governmental department or
agency or political subdivision thereof.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Shares covered by such
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference in such Prospectus.
"Registrable Shares" means, at the relevant time of reference thereto, the
Conversion Shares, the Warrant Shares, the Dividend Shares (including any shares
of capital stock that may be issued in respect thereof pursuant to a stock
split, stock dividend, recombination, reclassification or the like) and any
shares of Common Stock issued as a dividend on the Shares in excess of the
Dividend Shares, provided, however, that the term "Registrable Shares" shall not
include any of the Conversion Shares, Dividend Shares or Warrant Shares that are
actually sold pursuant to a registration statement that has been declared
effective under the Securities Act by the SEC.
"Registration Statement" means the Mandatory S-1 Registration Statement,
any Demand Registration on Form S-3, and any additional registration statements
contemplated by this Agreement, including (in each case) the Prospectus,
amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and all
material incorporated by reference in such registration statement or Prospectus.
"Rule 144" means Rule 144 promulgated under the Securities Act and any
successor or substitute rule, law or provision.
"SEC" means the Securities and Exchange Commission.
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"Securities Act" means the Securities Act of 1933, as amended, and all of
the rules and regulations promulgated thereunder.
"Warrants" means the warrants to purchase Common Stock, dated as of the
date hereof, issued by the Company to the Investors pursuant to the Securities
Purchase Agreement.
"Warrant Shares" means the shares of Common Stock issued or issuable upon
the exercise of the Warrants.
2. MANDATORY FORM S-1 REGISTRATION.
(a) As promptly as possible after the date hereof, and in any event
prior to the date that is seventy (70) days following the Closing Date (the
"Mandatory Filing Date"), the Company shall prepare and file with the SEC a
Registration Statement on Form S-1 for the purpose of registering under the
Securities Act all of the Registrable Shares for resale by, and for the account
of, each Investor as an initial selling stockholder thereunder (the "Mandatory
S-1 Registration Statement"). The Mandatory S-1 Registration Statement shall
permit the Investors to offer and sell, on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act, any or all of the Registrable
Shares. The Company agrees to use its best efforts to cause the Mandatory S-1
Registration Statement to be declared effective as soon as possible but in no
event later than the date that is (i) one hundred fifteen (115) days following
the Closing Date in the event the Mandatory S-1 Registration Statement is not
reviewed by the SEC or (ii) one hundred forty-five (145) days following the
Closing Date in the event the Mandatory S-1 Registration Statement is reviewed
by the SEC (the "Mandatory Effective Date") (including filing with the SEC,
within three (3) Business Days of the date that the Company is notified (orally
or in writing, whichever is earlier) by the SEC that the Mandatory S-1
Registration Statement will not be "reviewed" or will not be subject to further
review, a request for acceleration of effectiveness in accordance with Rule 461
promulgated under the Securities Act (an "Acceleration Request"), which request
shall request an effective date that is within three (3) Business Days of the
date of such request). The Company shall notify each Investor in writing
promptly (and in any event within one (1) Business Day) after the Company's
submission of an Acceleration Request to the SEC. The Company shall be required
to keep the Mandatory S-1 Registration Statement continuously effective
(including through the filing of any required post-effective amendments) until
the earlier to occur of (i) the date after which all of the Registrable Shares
registered thereunder shall have been sold and (ii) the second (2nd) anniversary
of the later to occur of (a) the Closing Date and (b) the date on which each
Warrant has been exercised in full and after which by the terms of such Warrant
there are no additional Warrant Shares as to which the Warrant may become
exercisable; provided, that in either case such date shall be extended by the
amount of time of any Suspension Period (as defined below). Thereafter, the
Company shall be entitled to withdraw the Mandatory S-1 Registration Statement
and, upon such withdrawal, the Investors shall have no further right to offer or
sell any of the Registrable Shares pursuant to the Mandatory S-1 Registration
Statement (or any prospectus relating thereto).
(b) Notwithstanding anything in this Section 2 to the contrary, if the
Company shall furnish to the Investors a certificate signed by the President,
Chief Executive Officer or Chief Operating Officer of the Company stating that
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the Board has made the good faith determination (i) that the continued use by
the Investors of the Mandatory S-1 Registration Statement for purposes of
effecting offers or sales of Registrable Shares pursuant hereto would require,
under the Securities Act and the rules and regulations promulgated thereunder,
premature disclosure in the Mandatory S-1 Registration Statement (or the
Prospectus relating thereto) of material, nonpublic information concerning the
Company, its business or prospects or any proposed material transaction
involving the Company, (ii) that such premature disclosure would be materially
adverse to the Company, its business or prospects or any such proposed material
transaction or would not be in the best interests of the Company and (iii) that
it is therefore essential to suspend the use by the Investors, of the Mandatory
S-1 Registration Statement (and the Prospectus relating thereto), then the right
of the Investors to use the Mandatory S-1 Registration Statement (and the
Prospectus relating thereto) for purposes of effecting offers or sales of
Registrable Shares pursuant thereto shall be suspended for a period (the
"Suspension Period") not greater than fifteen (15) consecutive Business Days
during any consecutive twelve (12) month period. During the Suspension Period,
the Investors shall not offer or sell any Registrable Shares pursuant to or in
reliance upon the Mandatory S-1 Registration Statement (or the Prospectus
relating thereto). The Company agrees that, as promptly as possible, but in no
event later than one (1) Business Day, after the consummation, abandonment or
public disclosure of the event or transaction that caused the Company to suspend
the use of the Mandatory S-1 Registration Statement (and the Prospectus relating
thereto) pursuant to this Section 2(b), the Company will as promptly as possible
lift any suspension, provide the Investors with revised Prospectuses, if
required, and will notify the Investors of their ability to effect offers or
sales of Registrable Shares pursuant to or in reliance upon the Mandatory S-1
Registration Statement.
(c) It shall be a condition precedent to the obligations of the Company
to register Registrable Shares for the account of an Investor pursuant to this
Section 2 that such Investor furnish to the Company such information regarding
itself, the Registrable Shares held by it, and the method of disposition of such
Registrable Shares as shall be required by the Securities Act to effect the
registration of such Investor's Registrable Shares.
(d) Notwithstanding anything in this Agreement to the contrary, the
Investors' sole remedy for the failure of the Company to file the Mandatory S-1
Registration Statement as promptly as possible after the date hereof, and in any
event on or prior to the Mandatory Filing Date, or for the failure of the
Company to make effective the Mandatory S-1 Registration Statement on or prior
to the Mandatory Effective Date, shall be the vesting of the Warrants as
provided for therein.
2A. MANDATORY S-3 REGISTRATION RIGHTS.
(a) If, at any time any Registrable Shares are not able to be resold
pursuant to an effective Registration Statement, (i) Form S-3 (or other
equivalent form) is then available for the registration of such Registrable
Shares and (ii) the Company shall receive from any Investor (including for this
purpose its Affiliates) who holds (or who together hold) at least twenty-five
percent (25%) of the then outstanding Registrable Shares a written request or
requests (a "Demand Notice") that the Company effect a registration on Form S-3
(a "Demand Registration"), or any successor or substitute form, with respect to
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all or a part of the Registrable Shares owned by such Investor(s), then the
Company will promptly give written notice of the proposed registration and the
Investor's or Investors' request therefor to all other Investors, and use best
efforts to effect such registration, as soon as practicable and in any event
within thirty (30) days, of all or such portion of such Investors' Registrable
Shares as are specified in such request, together with all or such portion of
the Registrable Shares of any other Investor or Investors joining in such
request as are specified in a written request given by such other Investor or
Investors within ten (10) Business Days after receipt of such written notice
from the Company; provided, however, that the Company may temporarily suspended
the use of such registration statement for the same reasons and on the same
terms as described in Section 2(b) above. The Company shall not be required to
effect more than three (3) registrations pursuant to this Section 2A(a) during
any consecutive twelve (12) month period.
(b) It shall be a condition precedent to the obligations of the Company
to register Registrable Shares for the account of an Investor pursuant to this
Section 2A that such Investor furnish to the Company such information regarding
itself, the Registrable Shares held by it, and the method of disposition of such
Registrable Shares as shall be required by the Securities Act to effect the
registration of such Investor's Registrable Shares.
3. "PIGGYBACK" REGISTRATION.
(a) If at any time any Registrable Shares are not able to be resold
pursuant to an effective Registration Statement, and the Company proposes to
register any of its Common Stock under the Securities Act, whether as a result
of an offering for its own account or the account of others (but excluding any
registrations to be effected on Forms S-4 or S-8 or other applicable successor
Forms), the Company shall, each such time, give to the Investors twenty (20)
days' prior written notice of its intent to do so, and such notice shall
describe the proposed registration and shall offer such Investors the
opportunity to register such number of Registrable Shares as each such Investor
may request. Upon the written request of any Investor given to the Company
within fifteen (15) days after the receipt of any such notice by the Company,
the Company shall include in such Registration Statement all or part of the
Registrable Shares of such Investor, to the extent requested to be registered.
(b) If a registration pursuant to Section 3 hereof involves an
underwritten offering and the managing underwriter shall advise the Company in
writing that, in its opinion, the number of shares of Common Stock requested by
the Investors to be included in such registration is likely to affect materially
and adversely the success of the offering or the price that would be received
for any shares of Common Stock offered in such offering, then, notwithstanding
anything in this Section 3 to the contrary, the Company shall only be required
to include in such registration, to the extent of the number of shares of Common
Stock which the Company is so advised can be sold in such offering, (i) first,
the number of shares of Common Stock requested to be included in such
registration for the account of any stockholders of the Company (including the
Investors), pro rata among such stockholders on the basis of the number of
shares of Common Stock that each of them has requested to be included in such
registration, and (ii) second, any shares of Common Stock proposed to be
included in such registration for the account of the Company.
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(c) In connection with any offering involving an underwriting of
shares, the Company shall not be required under this Section 3 or otherwise to
include the Registrable Shares of any Investor therein unless such Investor
accepts and agrees to the terms of the underwriting, which shall be reasonable
and customary, as agreed upon between the Company and the underwriters selected
by the Company.
(d) It shall be a condition precedent to the obligations of the Company
to register Registrable Shares for the account of an Investor pursuant to this
Section 3 that such Investor furnish to the Company such information regarding
itself, the Registrable Shares held by it, and the method of disposition of such
Registrable Shares as shall be required by the Securities Act to effect the
registration of such Investor's Registrable Shares.
4. OBLIGATIONS OF THE COMPANY. In connection with the Company's
registration obligations hereunder, the Company shall, as expeditiously as
practicable:
(a) furnish to each Investor copies of all documents filed with the SEC
prior to their being filed with the SEC, (ii) use commercially reasonable
efforts to cause its officers and directors, counsel and certified public
accountants to respond to such inquiries as shall be necessary, in the
reasonable opinion of such Investor, to conduct a reasonable investigation
within the meaning of the Securities Act, and (iii) notify the Investors of any
stop order issued or threatened by the SEC and use best efforts to prevent the
entry of such stop order or to remove it if entered.
(b) prepare and file with the SEC such amendments and supplements,
including post-effective amendments, to each Registration Statement and the
Prospectus used in connection therewith as may be necessary to comply with the
Securities Act and to keep the Registration Statement continuously effective as
required herein, and prepare and file with the SEC such additional Registration
Statements as necessary to register for resale under the Securities Act all of
the Registrable Shares (including naming any permitted transferees of
Registrable Shares as selling stockholders in such Registration Statement); (ii)
cause any related Prospectus to be amended or supplemented by any required
Prospectus supplement, and as so supplemented or amended to be filed pursuant to
Rule 424; (iii) respond as promptly as possible to any comments received from
the SEC with respect to each Registration Statement or any amendment thereto and
as promptly as possible provide the Investors true and complete copies of all
correspondence from and to the SEC relating to the Registration Statement (other
than correspondence containing material nonpublic information); and (iv) comply
with the provisions of the Securities Act and the Exchange Act with respect to
the disposition of all Registrable Shares covered by such Registration Statement
as so amended or in such Prospectus as so supplemented.
(c) Notify the Investors and Investors' counsel as promptly as
possible: (i) when the SEC notifies the Company whether there will be a "review"
of a Registration Statement and whenever the SEC comments in writing on such
Registration Statement and (ii) when a Registration Statement, or any
post-effective amendment or supplement thereto, has become effective, and after
the effectiveness thereof: (A) of any request by the SEC or any other federal or
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state governmental authority for amendments or supplements to the Registration
Statement or Prospectus or for additional information; (B) of the issuance by
the SEC or any state securities commission of any stop order suspending the
effectiveness of the Registration Statement covering any or all of the
Registrable Shares or the initiation of any proceedings for that purpose; and
(C) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Shares for sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose. Without limitation of any
remedies to which the Investors may be entitled under this Agreement, if any of
the events described in Section 4(c)(ii)(A), 4(c)(ii)(B), and 4(c)(ii)(C) occur,
the Company shall use best efforts to respond to and correct the event.
(d) Notify the Investors and their counsel as promptly as possible of
the happening of any event as a result of which the Prospectus included in or
relating to a Registration Statement contains an untrue statement of a material
fact or omits any fact necessary to make the statements therein not misleading;
and, thereafter, the Company will as promptly as possible prepare (and, when
completed, give notice to each Investor) a supplement or amendment to such
Prospectus so that, as thereafter delivered to the purchasers of such
Registrable Shares, such Prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements therein
not misleading; provided that upon such notification by the Company, the
Investors will not offer or sell Registrable Shares pursuant to such Prospectus
until the Company has notified the Investors that it has prepared a supplement
or amendment to such Prospectus and delivered copies of such supplement or
amendment to the Investors (it being understood and agreed by the Company that
the foregoing proviso shall in no way diminish or otherwise impair the Company's
obligation to as promptly as possible prepare a Prospectus amendment or
supplement as above provided in this Section 4(d) and deliver copies of same as
above provided in Section 4(h) hereof), and it being further understood that, in
the case of the Mandatory S-1 Registration Statement, any such period during
which the Investors are restricted from offering or selling Registrable Shares
shall constitute a Suspension Period.
(e) Upon the occurrence of any event described in Section 4(d) hereof,
as promptly as possible, prepare a supplement or amendment, including a
post-effective amendment, to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as
thereafter delivered, neither the Registration Statement nor such Prospectus
will contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they are made, not misleading.
(f) Use best efforts to avoid the issuance of or, if issued, obtain the
withdrawal of, (i) any order suspending the effectiveness of any Registration
Statement or (ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Shares for sale in any jurisdiction, as
promptly as possible (it being understood that, in the case of the Mandatory S-1
Registration Statement, any period during which the effectiveness of the
Mandatory S-1 Registration Statement or the qualification of any Registrable
Shares is suspended shall constitute a Suspension Period).
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(g) Furnish to the Investors and their counsel, without charge, at
least one conformed copy of each Registration Statement and each amendment
thereto, and all exhibits to the extent requested by such Investor or their
counsel (including those previously furnished or incorporated by reference) as
promptly as possible after the filing of such documents with the SEC.
(h) As promptly as possible furnish to each selling Investor, without
charge, such number of copies of a Prospectus, including a preliminary
Prospectus, in conformity with the requirements of the Securities Act, and such
other documents (including, without limitation, Prospectus amendments and
supplements) as each such selling Investor may reasonably request in order to
facilitate the disposition of the Registrable Shares covered by such Prospectus
and any amendment or supplement thereto. The Company hereby consents to the use
of such Prospectus and each amendment or supplement thereto by each of the
selling Investors in connection with the offering and sale of the Registrable
Shares covered by such Prospectus and any amendment or supplement thereto to the
extent permitted by federal and state securities laws and regulations.
(i) Use best efforts to register and qualify (or obtain an exemption
from such registration and qualification) the Registrable Shares under such
other securities or blue sky laws of the states of residence of each Investor
and such other jurisdictions as each Investor shall reasonably request, to keep
such registration or qualification (or exemption therefrom) effective during the
periods each Registration Statement is effective, and do any and all other acts
or things which may be reasonably necessary or advisable to enable each Investor
to consummate the public sale or other disposition of Registrable Shares in such
jurisdiction, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions where
it is not then qualified or subject to process.
(j) Cooperate with the Investors to facilitate the timely preparation
and delivery of certificates representing the Registrable Shares to be delivered
to a transferee pursuant to a Registration Statement, which certificates shall
be free, to the extent permitted by the Securities Purchase Agreement and
applicable law, of all restrictive legends, and to enable such Registrable
Shares to be in such denominations and registered in such names as such
Investors may request.
(k) Cooperate with any reasonable due diligence investigation
undertaken by the Investors, any managing underwriter participating in any
disposition pursuant to a Registration Statement, Investors' Counsel and any
attorney, accountant or other agent retained by Investors or any managing
underwriter, in connection with the sale of the Registrable Shares, including,
without limitation, making available any documents and information; provided,
however, that the Company will not deliver or make available to any Investor
material, nonpublic information unless such Investor specifically requests and
consents in advance in writing to receive such material, nonpublic information
and, if requested by the Company, such Investor agrees in writing to treat such
information as confidential.
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(l) At the request of an Affiliate, the Company shall amend any
Registration Statement to include such Affiliate as a selling stockholder in
such Registration Statement.
(m) Comply with all applicable rules and regulations of the SEC in all
material respects.
(n) Prior to issuing any dividends on the shares of Series A Preferred
Stock payable in shares of Common Stock in an amount in excess of the Dividend
Shares, the Company will file a registration statement registering the resale of
such additional shares of Common Stock and such registration statement shall be
effective on the date such dividend is declared by the Board.
5. EXPENSES OF REGISTRATION. The Company shall pay for all expenses
incurred in connection with a registration pursuant to this Agreement and
compliance with Section 4 of this Agreement, including without limitation (i)
all registration, filing and qualification fees and expenses (including without
limitation those related to filings with the SEC, The NASDAQ Stock Market, or
any national securities exchange upon which the Company's securities are listed
and in connection with applicable state securities or blue sky laws), (ii) all
printing expenses, (iii) all messenger, telephone and delivery expenses incurred
by the Company, (iv) all fees and disbursements of counsel for the Company and
Investors' counsel, and (v) all fees and expenses of all other Persons retained
by the Company in connection with the consummation of the transactions
contemplated by this Agreement.
6. DELAY OF REGISTRATION. Subject to Section 11(d) hereof, the Investors
and the Company (other than with respect to Section 4(d) hereof) shall not take
any action to restrain, enjoin or otherwise delay any registration as the result
of any controversy which might arise with respect to the interpretation or
implementation of this Agreement.
7. INDEMNIFICATION. In the event that any Registrable Shares of the
Investors are included in a Registration Statement pursuant to this Agreement:
(a) To the fullest extent permitted by law, the Company will indemnify
and hold harmless each Investor and each officer, director, fiduciary, agent,
investment advisor, employee, member (or other equity holder), general partner
and limited partner (and affiliates thereof) of such Investor, each broker,
underwriter or other person acting on behalf of such Investor and each person,
if any, who controls such Investor within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, (the
"Losses") to which they may become subject under the Securities Act or
otherwise, insofar as such Losses (or actions in respect thereof) arise out of
or relate to any untrue or alleged untrue statement of any material fact
contained in the Registration Statement, or arise out of or relate to the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
any violation by the Company of the Securities Act or state securities or blue
sky laws applicable to the Company and leading to action or inaction required of
the Company in connection with such registration or qualification under such
Securities Act or state securities or blue sky laws; and, subject to the
provisions of Section 7(c) hereof, the Company will reimburse on demand such
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Investor, such broker or other person acting on behalf of such Investor or such
officer, director, fiduciary, employee, member (or other equity holder), general
partner, limited partner, affiliate or controlling person for any legal or other
expenses reasonably incurred by any of them in connection with investigating or
defending any such Losses; provided, however, that the indemnity agreement
contained in this Section 7(a) shall not apply to amounts paid in settlement of
any such Losses if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such Losses to the extent that it
solely arises out of or is based upon an untrue statement of any material fact
contained in the Registration Statement or omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, in reliance upon and in conformity with written information furnished
by such Investor expressly for use in connection with such Registration
Statement.
(b) To the fullest extent permitted by law, each Investor, severally
(as to itself) and not jointly, will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the Registration
Statement, each person, if any, who controls the Company within the meaning of
the Securities Act, and all other Investors against any Losses to which the
Company or any such director, officer or controlling person or other Investor
may become subject to, under the Securities Act or otherwise, insofar as such
Losses (or actions in respect thereto) solely arise out of or are based upon any
untrue statement of any material fact contained in the Registration Statement,
or solely arise out of or relate to the omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement in reliance upon and in conformity with written information furnished
by such Investor expressly for use in connection with such Registration
Statement; and, subject to the provisions of Section 7(d) hereof, such Investor
will reimburse on demand any legal or other expenses reasonably incurred by the
Company or any such director, officer, controlling person, or other Investor in
connection with investigating or defending any such Losses, provided, however,
that the maximum aggregate amount of liability of such Investor under this
Section 7 shall be limited to the proceeds (net of underwriting discounts and
commissions, if any) actually received by such Investor from the sale of
Registrable Shares covered by such Registration Statement; and provided,
further, however, that the indemnity agreement contained in this Section 7(b) or
Section 7(e) shall not apply to amounts paid in settlement of any such Losses if
such settlement is effected without the consent of such Investor against which
the request for indemnity is being made (which consent shall not be unreasonably
withheld).
(c) As promptly as possible after receipt by an indemnified party under
this Section 7 of notice of the threat, assertion or commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof and the indemnifying party shall have the
right to participate in and, to the extent the indemnifying party desires,
jointly with any other indemnifying party similarly noticed, to assume at its
expense the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that, the failure to notify an indemnifying party promptly of
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the threat, assertion or commencement of any such action shall not relieve such
indemnifying party of any liability to the indemnified party under this Section
7 except (and only) to the extent that it shall be finally determined by a court
of competent jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have proximately and materially
adversely prejudiced the indemnifying party.
(d) If any indemnified party shall have reasonably concluded that there
may be one or more legal defenses available to such indemnified party which are
different from or additional to those available to the indemnifying party, or
that such claim or litigation involves or could have an effect upon matters
beyond the scope of the indemnity agreement provided in this Section 7, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, and such indemnifying party shall reimburse
such indemnified party and any person controlling such indemnified party for the
fees and expenses of counsel retained by the indemnified party which are
reasonably related to the matters covered by the indemnity agreement provided in
this Section 7. Subject to the foregoing, an indemnified party shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof but the fees and expenses of such counsel shall not be at the
expense of the Company.
(e) If the indemnification provided for in this Section 7 from the
indemnifying party is applicable by its terms but unavailable to an indemnified
party hereunder in respect of any Losses, then the indemnifying party, in lieu
of indemnifying such indemnified party, shall, subject to the maximum aggregate
liability of any Investor as set forth in Section 7(b), contribute to the amount
paid or payable by such indemnified party as a result of such Losses or expenses
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified party in connection with the actions which
resulted in such Losses or expenses, as well as any other relevant equitable
considerations. The relative faults of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the Losses and expenses referred to above
shall be deemed to include, subject to the limitations set forth in Sections
7(a), 7(b), 7(c) and 7(d), any legal or other fees, charges or expenses
reasonably incurred by such party in connection with any investigation or
proceeding. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the this paragraph.
(f) The indemnity and contribution agreements contained in this Section
are in addition to any liability that any indemnifying party may have to any
indemnified party.
8. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to the
Investors the benefits of Rule 144 and any other rule or regulation of the SEC
that may at any time permit the Investors to sell the Registrable Shares to the
public without registration, the Company agrees to use best efforts to: (i) make
11
and keep public information available, as those terms are understood and defined
in Rule 144, (ii) file with the SEC in a timely manner all reports and other
documents required to be filed by an issuer of securities registered under the
Securities Act or the Exchange Act; (iii) as long as any Investor owns any
Conversion Shares, Warrant Shares or Dividend Shares, to furnish in writing upon
such Investor's request a written statement by the Company that it has complied
with the reporting requirements of Rule 144 and of the Securities Act and the
Exchange Act, and to furnish to such Investor a copy of the most recent annual
and quarterly reports of the Company, and such other reports and documents so
filed by the Company as may be reasonably requested in availing such Investor of
any rule or regulation of the SEC permitting the selling of any such Conversion
Shares, Warrant Shares or Dividend Shares without registration, and (iv)
undertake any additional actions reasonably necessary to maintain the
availability of a Registration Statement, including any successor or substitute
forms, or the use of Rule 144.
9. TRANSFER OF REGISTRATION RIGHTS. Each Investor may assign or transfer
any or all of its rights under this Agreement to any Person, provided such
assignee or transferee agrees in writing to be bound by the provisions hereof
that apply to such assigning or transferring Investor. Upon any such, and each
successive, assignment or transfer to any permitted assignee or transferee in
accordance with the terms of this Section 9, such permitted assignee or
transferee shall be deemed to be an "Investor" for all purposes of this
Agreement.
10. ENTIRE AGREEMENT. This Agreement constitutes and contains the entire
agreement and understanding of the parties with respect to the subject matter
hereof, and it also supersedes any and all prior negotiations, correspondence,
agreements or understandings with respect to the subject matter hereof.
11. MISCELLANEOUS.
(a) This Agreement, and any right, term or provision contained herein,
may not be amended, modified or terminated, and no right, term or provision may
be waived, except with the written consent of (i) the holders of a majority of
the then outstanding Registrable Shares and (ii) the Company; provided that any
amendment or modification that is materially and disproportionately adverse to
any particular Investor (as compared to all Investors as a group) shall require
the consent of such Investor.
(b) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York. This Agreement shall be
binding upon the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns and transferees, provided that
the terms and conditions of Section 9 hereof are satisfied. Notwithstanding
anything in this Agreement to the contrary, if at any time any Investor
(including any successors or assigned) shall cease to own any Registrable
Shares, all of such Investor's rights under this Agreement shall immediately
terminate.
(c) Any notices to be given pursuant to this Agreement shall be in
writing and shall be given by certified or registered mail, return receipt
request. Notices shall be deemed given when personally delivered or when mailed
to the addresses of the respective parties as set forth on Exhibit A or Schedule
12
1 hereto, as applicable, or to such changed address of which any party may
notify the others pursuant hereto, except that a notice of change of address
shall be deemed given when received. An electronic communication ("Electronic
Notice") shall be deemed written notice for purposes of this Section 11(c) if
sent with return receipt requested to the electronic mail address specified by
the receiving party on Exhibit A or Schedule 1 hereto, as applicable. Electronic
Notice shall be deemed received at the time the party sending Electronic Notice
receives verification of receipt by the receiving party. Any party who does not
wish to receive notices as Electronic Notice shall include such request on
Schedule 1 hereto and shall be entitled to receive all notices in non-electronic
form.
(d) The parties acknowledge and agree that in the event of any breach
of this Agreement, remedies at law will be inadequate, and each of the parties
hereto shall be entitled to specific performance of the obligations of the other
parties hereto and to such appropriate injunctive relief as may be granted by a
court of competent jurisdiction. All remedies, either under this Agreement or by
law or otherwise afforded to any of the parties, shall be cumulative and not
alternative.
(e) This Agreement may be executed in a number of counterparts. All
such counterparts together shall constitute one Agreement, and shall be binding
on all the parties hereto notwithstanding that all such parties have not signed
the same counterpart. The parties hereto confirm that any facsimile copy of
another party's executed counterpart of this Agreement (or its signature page
thereof) will be deemed to be an executed original thereof.
(f) Except as contemplated in Section 9 hereof, this Agreement is
intended solely for the benefit of the parties hereto and is not intended to
confer any benefits upon, or create any rights in favor of, any Person
(including, without limitation, any stockholder or debt holder of the Company)
other than the parties hereto.
(g) If any provision of this Agreement is invalid, illegal or
unenforceable, such provision shall be ineffective to the extent, but only to
the extent of, such invalidity, illegality or unenforceability, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement, unless such a construction would be unreasonable.
[Signature Pages Follow]
13
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date and year first above written.
MOTIENT CORPORATION
By: /s/ Xxxxxxxxxxx Xxxxxx
-------------------------------------
Xxxxxxxxxxx Xxxxxx,
Executive Vice President and Chief
Operating Officer
Glenview Capital Partners, L.P.
By: /s/ Xxxxxxx Battera
--------------------------------------------------
Name: Xxxxxxx Battera
Title: Managing Member of Glenview Capital Management
Glenview Institutional Partners, L.P.
By: /s/ Xxxxxxx Battera
--------------------------------------------------
Name: Xxxxxxx Battera
Title: Managing Member of Glenview Capital Management
Glenview Capital Master Fund, Ltd.
By: /s/ Xxxxxxx Battera
--------------------------------------------------
Name: Xxxxxxx Battera
Title: Managing Member of Glenview Capital Management
GCM Little Arbor Institutional Partners, L.P.
By: /s/ Xxxxxxx Battera
--------------------------------------------------
Name: Xxxxxxx Battera
Title: Managing Member of Glenview Capital Management
GCM Little Arbor Master Fund, Ltd.
By: /s/ Xxxxxxx Battera
--------------------------------------------------
Name: Xxxxxxx Battera
Title: Managing Member of Glenview Capital Management
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
OZ Master Fund, Ltd.
By: /s/ Xxxx Xxxxx
--------------------------------------------------
Name: Xxxx Xxxxx
Title: Member and CFO
Fleet Maritime, Inc.
By: /s/ Xxxx Xxxxx
--------------------------------------------------
Name: Xxxx Xxxxx
Title: Member and CFO
Highland Equity Focus Fund, L.P.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: President Highland Capital Management, L.P.
Highland Crusader Offshore Partners, L.P.
By: Highland Capital Management, L.P.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: President Highland Capital Management, L.P.
Highland Capital Management Services, Inc.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: President Highland Capital Management, L.P.
Highland Capital Management L.P.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: President Highland Capital Management, L.P.
Greywolf Capital Partners II LP
By: /s/ Xxxx Xxxxx
--------------------------------------------------
Name: Xxxx Xxxxx
Title: Partner
Greywolf Capital Overseas Fund
By: /s/ Xxxx Xxxxx
--------------------------------------------------
Name: Xxxx Xxxxx
Title: Partner
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
York Capital Management, L.P.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: CFO
York Select, L.P.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: CFO
York Investment Limited
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: CFO of its Investment Manager
York Select Unit Trust
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: CFO of its Investment Manager
York Credit Opportunities Fund, L.P.
By: /s/ Name
--------------------------------------------------
Name: Name
Title: Senior Managing Director
York Global Value Partners, L.P.
By: /s/ Name
--------------------------------------------------
Name: Name
Title: Senior Managing Director
York/Green Capital Partners, L.P.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: CFO
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Rockbay Capital Institutional Fund, LLC
By: /s/ Xxxx Xxxxxx
--------------------------------------------------
Name: Xxxx Xxxxxx
Title: CEO of Rockbay Capital Advisors, Inc.
Rockbay Capital Offshore Fund, Ltd.
By: /s/ Xxxx Xxxxxx
--------------------------------------------------
Name: Xxxx Xxxxxx
Title: CEO of Rockbay Capital Advisors, Inc.
LC Capital Master Fund, Ltd.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
Xxxxxx Offshore Ltd.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
Xxxxxx Alpha Fund, L.P.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: General Partner
Millennium Partners, L.P.
By: Millenium Management, L.L.C.
By: /s/ Xxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Operating Officer
Xxxxxxx Xxxxx & Co.
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Authorized Signatory
Xxxx Master Fund, Ltd.
By: /s/ Xxxx Xxxxxxx
--------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Partner
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Lyxor/Xxxx Partners
By: Lyxor/Xxxx Partners
--------------------------------------------------
Name: Xxxx Xxxxxxx
Title: CFO
Ore Hill Hub Fund, Ltd.
By: /s/ Xxxxxxxxx X. Xxxx
--------------------------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Managing Member
Portfolio Logic LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Member
Eton Park Fund, L.P.
By: /s/ Xxx Xxxxxx
--------------------------------------------------
Name: Xxx Xxxxxx
Title: COO
Eton Park Master Fund, Ltd.
By: /s/ Xxx Xxxxxx
--------------------------------------------------
Name: Xxx Xxxxxx
Title: COO
Loeb Partners Corp.
By: /s/ Name
--------------------------------------------------
Name: Name
Title: Vice President
Long Meadow Holdings, LP
By: /s/ Xxxxxxxxx X. Old
--------------------------------------------------
Name: Xxxxxxxxx X. Old
Title: Managing Member of Meadow Investment LLC
Xxxxxxxxx Offshore Leveraged Assets, Ltd.
By: Xxxxxxxxx Capital Partners, LLC
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Portfolio Manager and Partner
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Xxxxxxx Distressed Investment Master Fund, Ltd.
By: HMC Distressed Investment Offshore Manager, LLC
By: /s/ Name
--------------------------------------------------
Name: Name
Title: Vice President
Alpha US Sub Fund VI, LLC
By: Xxxxxxx Fund Advisors, Inc.
By: /s/ Name
--------------------------------------------------
Name: Name
Title: Vice President
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
