CONVERSION AND EXCHANGE AGREEMENT
This Conversion and Exchange Agreement (the "Agreement"), dated as of May 15,
1998, has been executed by each of the undersigned investors whose name and
signature appear on the signature page hereof (each individually, an "Investor"
and collectively, the "Investors").
BACKGROUND
A. As of the date hereof, each of the Investors owns the number of shares
of Series Q Convertible Preferred Stock, $.01 par value per share (the "Series Q
Stock") of Geotek Communications, Inc., a Delaware corporation (the "Company"),
Series R Convertible Preferred Stock, $.01 par value per share (the "Series R
Stock") of the Company and Series S Convertible Preferred Stock, $.01 par value
per share (the "Series S Stock") of the Company as is set forth opposite such
Investor's name on Exhibit A hereto.
B. The Company has agreed and each of the Investors, severally and not
jointly, has agreed that each Investor will (i) convert shares of Series Q
Stock, Series R Stock and/or Series S Stock which they own into shares of Common
Stock, $.01 par value per share, of the Company ("Common Stock") and/or (ii)
exchange shares of Series Q Stock, Series R Stock and/or Series S Stock for
shares of a newly created series of preferred stock of the Company designated
"Series T Preferred Stock" (the "Series T Stock" or the "Preferred Stock") all
in the amounts set forth in Exhibit A hereto and on the terms and conditions set
forth herein. The rights and preferences of the Series T Stock, including the
terms on which the Series T Stock may be converted into Common Stock, are set
forth in the Certificate of Designation attached hereto as Exhibit B (the
"Series T Certificate of Designation"), which shall have been executed,
acknowledged, filed, recorded and become effective in accordance with the
General Corporation Law of the State of Delaware prior to the Closing (as
defined below).
C. The solicitation of this Agreement and, if accepted by the Company, the
issuance of Preferred Stock is being made in reliance upon the provisions of
Regulation D ("Regulation D") promulgated by the Securities and Exchange
Commission ("SEC") under the United States Securities Act of 1933, as amended
(the "Securities Act"), or under the provisions of Section 4(2) of the
Securities Act. The Preferred Stock and the Common Stock issuable upon
conversion or exercise thereof are sometimes collectively referred to in this
Agreement as the "Securities." The Common Stock issuable upon conversion of the
Preferred Stock is sometimes referred to as the "Underlying Stock."
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In consideration of the mutual promises, representations, warranties and
conditions set forth herein, and intending to be legally bound hereby, the
Company and the Investors agree as follows:
1. Agreement; the Investors
1.1 Agreement. Each Investor, severally and not jointly, hereby agrees that at
the Closing (as defined below) it will (i) convert shares of Series Q
Stock, Series R Stock and/or Series S Stock which they own into shares of
Common Stock and (ii) exchange shares of Series Q Stock, Series R Stock
and/or Series S Stock for shares of Series T Stock, at a rate of one share
of Series T Stock for each one share of Series Q Stock, Series R Stock or
Series S Stock; all in the amounts set forth in Exhibit A hereto and on
the terms and conditions set forth herein. The closing of the transactions
contemplated hereby (the "Closing") shall occur on May 15, 1998 or such
other date as the Company and the Investors shall agree (the "Closing
Date") and shall occur when all of the conditions to the Company's and the
Investors' obligations under Sections 1.3 and 1.4, respectively, have been
satisfied or waived by the appropriate party.
1.2 Nature of the Investor. Each Investor is obtaining the Preferred Stock for
its own account and each Investor severally represents and warrants that
it is an "Accredited Investor" as that term is defined in Rule 501 of
Regulation D.
1.3 Conditions Precedent to the Obligation of the Company to Issue the
Preferred Stock. The obligation hereunder of the Company to issue the
Preferred Stock to each Investor and otherwise to consummate the
transactions contemplated hereby is subject to the satisfaction, at or
before the Closing, of each of the conditions set forth below. These
conditions are for the Company's sole benefit and may be waived by the
Company at any time in its sole discretion by delivering prior written
notice of any such waiver to each Investor.
(a) Accuracy of the Investor's Representations and Warranties. The
representations and warranties of such Investor shall be true and
correct as of the date when made and as of the Closing Date as
though made at each such time.
(b) Performance by the Investor. Such Investor shall have performed,
satisfied and complied in all respects with all covenants,
agreements and conditions required by this Agreement to be
performed, satisfied or complied with by such Investor at or prior
to the Closing.
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(c) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of
competent jurisdiction or any stock exchange, interdealer quotation
system or other self-regulatory organization with jurisdiction over
the Company or its securities which prohibits or adversely affects
any of the transactions contemplated by this Agreement, nor shall
any proceeding have been commenced which may have the effect of
prohibiting or adversely affecting any of the transactions
contemplated by this Agreement.
(d) Release. Each Investor shall have executed and delivered to the
Company a Release in the form attached hereto as Exhibit C.
(e) Delivery of Securities. Each Investor shall have delivered to the
Company certificates representing the shares of Series Q Stock,
Series R Stock and/or Series S Stock which are being exchanged for
shares of Series T Stock.
1.4 Conditions Precedent to the Obligation of the Investor. The obligation of
each Investor to consummate the transactions contemplated hereby is
subject to the satisfaction, at or before the Closing, of each of the
conditions set forth below. These conditions are for each Investor's sole
benefit and may be waived by such Investor at any time in its sole
discretion by delivering prior written notice to the Company and each
other Investor.
(a) Accuracy of the Company's Representations and Warranties. The
representations and warranties of the Company shall be true and
correct as of the date when made and as of the Closing Date as
though made at each such time.
(b) Performance by the Company. The Company shall have performed,
satisfied and complied in all respects with all covenants,
agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to
the Closing.
(c) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of
competent jurisdiction which prohibits or adversely affects any of
the transactions contemplated by this Agreement, nor shall any
proceeding have been commenced which may
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have the effect of prohibiting or adversely affecting any of the
transactions contemplated by this Agreement.
(d) Registration Statement. That certain Registration Statement on Form
S-3 (Registration No. 48131) shall have been declared effective and
no order suspending the effectiveness of such registration statement
shall be in effect and no proceedings for such purpose shall be
pending or threatened by the SEC.
(e) No Suspension of Trading in or Delisting of Common Stock. Trading in
the Common Stock shall not have been suspended by the SEC or the
Nasdaq National Market ("Nasdaq" or the "Exchange") and the Common
Stock shall not have been delisted from the Exchange unless it shall
have been approved for trading on The Nasdaq SmallCap Market.
(f) Officer's Certificate. The Company shall have delivered to such
Investor a certificate in form and substance reasonably satisfactory
to such Investor, executed by an executive officer of the Company,
to the effect that all the conditions to the Closing shall have been
satisfied as of the Closing Date.
(g) Filing of the Certificate of Designation. The Series T Certificate
of Designation, conforming to the terms of this Agreement, shall
have been duly filed with the Secretary of State of the State of
Delaware and certified copies thereof shall have been delivered to
such Investor.
(h) Release. The Company shall have executed and delivered to such
Investor a Release in the form attached hereto as Exhibit E.
(i) Delivery of Securities. The Company shall have delivered to such
Investor duly executed stock certificates representing the Preferred
Stock issuable to such Investor.
(j) Registration Rights Agreement. The Company and each of the Investors
shall have executed and delivered the Registration Rights Agreement
(the "Registration Rights Agreement") in the form attached hereto as
Exhibit G.
1.5 Conversion into Common Stock. All shares of Series Q Stock, Series R Stock
and/or Series S Stock which Investors have agreed to convert into shares
of Common Stock at the Closing (the "Closing Conversion Shares") shall be
converted in accordance with the terms of the Certificate of Designation
creating the Series Q Stock (the "Series Q Certificate"), the Certificate
of Designation creating the Series R Stock (the "Series R Certificate") or
the Certificate of
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Designation creating the Series S Stock (the "Series S Certificate") as
the case may be, except that for purposes of such conversion the
"Conversion Date Market Price" (as defined in each of the Series Q
Certificate, the Series R Certificate and the Series S Certificate) shall
be $0.80. Each of the Investors converting shares of Series Q Stock,
Series R Stock and/or Series S Stock into shares of Common Stock at the
Closing shall execute and deliver at the Closing a conversion notice
evidencing such a transaction.
2. Representations and Warranties of Investor
Each Investor severally represents and warrants to the Company as to the
matters set forth below. The representations of each Investor under this Section
2 are made exclusively by and only with respect to such Investor and no Investor
shall be liable or responsible for the breach of any representation or warranty
made by any other Investor.
2.1 No Government Recommendation or Approval. The Investor understands that no
United States federal or state agency or similar agency of any other
country, has passed upon or made any recommendation or endorsement of the
Company or the issuance of the Securities.
2.2 Intent. The Investor is obtaining the Securities for its own account and
not with a view towards distribution in violation of securities laws, and
the Investor has no present arrangement (whether or not legally binding)
at any time to sell the Securities to or through any person or entity;
provided, however, that by making the representations herein, the Investor
does not agree to hold the Securities for any minimum or other specific
term and reserves the right to dispose of the Securities at any time in
accordance with federal and state securities laws applicable to such
disposition. The Investor has been advised of or is aware of the
provisions of Rule 144 promulgated under the Securities Act.
2.3 Sophisticated Investor. The Investor is a sophisticated investor (as
described in Rule 506(b)(2)(ii) of Regulation D) and an accredited
investor (as defined in Rule 501 of Regulation D), and has such experience
in business and financial matters that it is capable of evaluating the
merits and risks of an investment in the Securities. The Investor
acknowledges that the Securities are speculative and involve a high degree
of risk. The Investor understands that there is no established market for
the Preferred Stock and that no public market therefor is foreseen.
2.4 Independent Investigation. The Investor, in making its decision to obtain
the Securities obtained hereunder, has relied upon an independent
investigation made by it and/or its representatives and has not relied on
any information or
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representations made by third parties or on any oral or written
representations or assurances from the Company or any representative or
agent of the Company, other than as set forth in this Agreement, in the
public filings of the Company and in the documents described below. Prior
to the date hereof, the Investor has been furnished with and has reviewed
the Company's Annual Report on Form 10-K including, Form 10-KA for the
period ended December 31, 1997 (the "1997 Form 10-K") sent to the
Company's shareholders and all documents filed by the Company with the SEC
since December 31, 1997, pursuant to sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")
(excluding preliminary proxy statement filings) (such documents are
collectively referred to in this Agreement as the "Exchange Act Reports"),
including, without limitation, the Company's Current Reports on Form 8-K
for events dated April 9, 1998, March 18, 1998, February 26, 1998,
February 19, 1998, February 17, 1998, January 30, 1998 and January 21,
1998, and a copy of the Company's Registration Statement on Form S-3
declared effective by the SEC on April 21, 1998. The Investor has had a
reasonable opportunity to ask questions of and receive answers from the
Company concerning the Company and the transactions contemplated hereby.
2.5 Authority. This Agreement has been duly authorized and validly executed
and delivered by the Investor and is a valid and binding agreement
enforceable against the Investor in accordance with its terms, subject to
general principles of equity and to bankruptcy or other laws affecting the
enforcement of creditors' rights generally.
2.6 Nasdaq Delisting. The Investors acknowledge that the Company has received
a letter from the Nasdaq Stock Market informing the Company that it
intends to delist the Company's securities from trading on The Nasdaq
National Market and the Company shall have no liability to the Investors
under this Agreement or the Certificate of Designation (other than under
Section 12 thereof) if the Company's securities are delisted from The
Nasdaq National Market.
2.7 No Broker. The Investor has taken no action which would give rise to any
claim by any person for brokerage commission, finder's fees or similar
payments by the Company relating to this Agreement or the transactions
contemplated hereby.
2.8 Not an Affiliate. The Investor is not an officer, director or "affiliate"
(as that term is defined in Rule 405 of the Securities Act) of the
Company.
2.9 Reliance on Representations and Warranties. The Investor understands that
the Securities are being issued to it in reliance on specific provisions
of United States federal and state securities laws and that the Company is
relying upon the truth and
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accuracy of the representations, warranties, agreements, acknowledgments
and understandings of the Investor set forth in this Agreement in order to
determine the applicability of such provisions.
2.10 Limitations on Investor's Right to Convert and Exercise. Notwithstanding
anything to the contrary contained herein, each notice of conversion of
Preferred Stock (a "Conversion Notice") shall contain or be accompanied by
a representation by the Investor that, after giving effect to the shares
of the Company's Common Stock to be issued pursuant to such Conversion
Notice or Exercise Notice, the total number of shares of the Company's
Common Stock deemed beneficially owned by the Investor, together with all
shares of the Company's Common Stock deemed beneficially owned by the
Investor's "affiliates" as defined in Rule 144 of the Securities Act and
excluding any shares of the Series Q Preferred Stock held by such holder
and its affiliates will not exceed 4.9% of the total issued and
outstanding shares of the Company's Common Stock and such other matters as
are set forth in Section 13(d) of the Certificate of Designation.
2.11 Transfer or Resale. The Investor understands that (i) except as provided
in the Registration Rights Agreement, the Securities have not been and are
not being registered under the Securities Act or any state securities
laws, and may not be transferred unless (a) subsequently registered
thereunder or (b) the Investor shall have delivered to the Company an
opinion of counsel (which opinion and counsel shall be reasonably
acceptable to the Company) to the effect that the Securities to be sold or
transferred may be sold or transferred pursuant to an exemption from such
registration; (ii) any sale of such Securities made in reliance on Rule
144 promulgated under the Securities Act may be made only in accordance
with the terms of said Rule and further, if said Rule is not applicable,
any resale of such Securities under circumstances in which the seller (or
the person through whom the sale is made) may be deemed to be an
underwriter (as that term is defined in the Securities Act) may require
compliance with some other exemption under the Securities Act or the rules
and regulations of the SEC thereunder; and (iii) neither the Company nor
any other person is under any obligation to register such Securities under
the Securities Act or any state securities laws or to comply with the
terms and conditions of any exemption thereunder (in each case, other than
pursuant to the Registration Rights Agreement).
2.12 Legends. The Investor understands that the Preferred Shares and, until
such time as the Underlying Stock has been registered under the Securities
Act (as contemplated by the Registration Rights Agreement) or otherwise
may be sold by the Investor pursuant to Rule 144 under the Securities Act
(or any successor rule thereto) without any restriction as to the number
of securities acquired hereunder that can then be immediately sold, the
certificates for the Underlying Stock, may
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bear a restrictive legend in substantially the following form (and a
stop-transfer order may be placed against transfer of the certificates for
such Securities):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The
securities have been acquired for investment and may not be sold,
transferred or assigned in the absence of an effective registration
statement for the securities under said Act, or an opinion of
counsel, in form, substance and scope reasonably acceptable to the
Company, that registration is not required under said Act."
The legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any of the Securities
upon which it is stamped, if, unless otherwise required by state
securities laws, (a) such Security is registered for sale under the
Securities Act or (b) such holder provides the Company with an opinion of
counsel, in form, substance and scope reasonably acceptable to the
Company, to the effect that a public sale or transfer of such Security may
be made without registration under the Securities Act or (c) such holder
provides the Company with reasonable assurances that such Security can be
sold pursuant to Rule 144 under the Securities Act (or a successor rule
thereto) without any restriction as to the number of Securities acquired
as of a particular date that can then be immediately sold. The Investor
agrees to sell all Securities, including those represented by a
certificate(s) from which the legend has been removed, in compliance with
applicable securities law. In the event the above legend is removed from
any Security, the Company may, upon reasonable advance notice to the
Investor, require that the above legend be placed on any Security that
cannot then be sold pursuant to an effective registration statement or
Rule 144 under the Securities Act (or any successor rule thereto) without
any restriction as to the number of securities acquired hereunder that can
then be immediately sold.
2.13 Schedule A. To the best knowledge of each Investor, the information set
forth on Schedule A with respect to such Investor is true and accurate in
all material respects as of the date hereof.
3. Representations and Warranties of the Company
The Company represents and warrants to the Investors that:
3.1 Company Status. The Company has registered its Common Stock pursuant to
Section 12(b) or 12(g) of the Exchange Act, is in full compliance with all
reporting requirements of the Exchange Act.
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3.2 Current Public Information. The Exchange Act Reports are the only filings
made by the Company since December 31, 1997 pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act.
3.3 No General Solicitation in Regard to this Transaction. Neither the Company
nor any of its affiliates nor any distributor or any person acting on its
or their behalf has conducted any general solicitation (as that term is
used in Regulation D) with respect to any of the Securities, nor have they
made any offers or sales of any security or solicited any offers to buy
any security under circumstances that would require the registration of
the Securities under the Securities Act.
3.4 Capitalization; Valid Issuance of Preferred Stock and Common Stock. The
Company has an authorized capitalization set forth on Schedule 3.4. Except
as set forth on Schedule 3.4, no shares of Preferred Stock or options,
warrants or other securities convertible or exercisable into Common Stock
have been issued or are outstanding. The Company has issued and
outstanding that number of shares of Common Stock and preferred stock of
various series, as set forth on Schedule 3.4, and all such shares have
been duly and validly authorized and issued, are fully paid and
non-assessable; prior to the Closing, the authorized capitalization shall
include the Preferred Shares; upon issuance of the Preferred Shares, the
Preferred Shares will be duly and validly issued, fully paid and
non-assesable; the Underlying Stock, when issued and delivered in
accordance with the terms of the Series T Certificate of Designation, will
be duly and validly issued, fully paid and non-assessable; and, except as
set forth on Schedule 3.4 hereto, the holders of outstanding capital stock
of the Company are not and shall not be entitled to preemptive or other
rights afforded by the Company to subscribe for the Securities. As of the
Closing Date, the Company shall have duly filed the Series T Certificate
of Designation, and all of the rights, preferences and privileges of the
Preferred Stock shall be as set forth in the Series T Certificate of
Designation, a copy of which, certified by the Secretary of State of the
State of Delaware, shall be delivered to the Investor on or before the
Closing Date. There are no owners of shares of Series O Stock, Series Q
Stock, Series R Stock and Series S Stock other than the Investors and
Elliot Associates, L.P.
3.5 Organization and Qualification. The Company is a corporation duly
incorporated and existing in good standing under the laws of the State of
Delaware and has the requisite corporate power to own its properties and
to carry on its business as now being conducted. The Company does not have
any subsidiaries, except as set forth on Schedule 3.5. The Company is duly
qualified to do business as a foreign corporation and is in good standing
in every jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary other than those
in which the failure so to qualify would not have a Material
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Adverse Effect. "Material Adverse Effect" means any material adverse
effect on the business, operations, properties, prospects of the entity
taken as a whole, or the consolidated financial condition of the entity
with respect to which such term is used, or with respect to any other
entity controlling or controlled by such entity, and/or any condition or
situation which would prohibit or otherwise interfere with the ability of
the entity with respect to which said term is used to enter into or
perform its obligations under this Agreement, the Series T Certificate of
Designation or the Registration Rights Agreement.
3.6 Authorization; Enforcement. (i) The Company has the requisite corporate
power and authority to enter into and perform this Agreement and to issue
the Securities subject to the limitations and conditions contained in and
otherwise in accordance with the terms hereof and of the Series T
Certificate of Designation, (ii) the execution and delivery of this
Agreement by the Company and the consummation by it of the transactions
contemplated hereby including, without limitation, the issuance of the
Underlying Stock (subject to the limitations contained in the Series T
Certificate of Designation) have been duly authorized by all necessary
corporate action, and no further consent or authorization of the Company
or its Board of Directors or stockholders is required (except such
stockholder approvals as may be required under Rule 4460(i) promulgated by
the National Association of Securities Dealers, Inc. and to increase the
authorized but unissued shares of Common Stock of the Company), (iii) this
Agreement has been duly executed and delivered by the Company, and (iv)
this Agreement constitutes the valid and binding obligations of the
Company enforceable against the Company in accordance with their terms,
except (x) as such enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable
principles of general application and (y) as rights to indemnity or
contribution may be limited by federal and state securities laws and
public policy considerations.
3.7. Corporate Documents. The Company has furnished or made available to the
Investor true and correct copies of the Company's Certificate of
Incorporation as in effect on the date hereof (the "Certificate"), and the
Company's By-Laws, as in effect on the date hereof (the "By-Laws").
3.8 No Conflicts Under Law. The business of the Company is not being conducted
in violation of any law, ordinance or regulations of any governmental
entity, except for possible violations which either singly or in the
aggregate do not and will not have a Material Adverse Effect. The Company
is not required under Federal, state or local law, rule or regulation in
the United States to obtain any consent which has not been obtained, or
authorization or order of, or make any filing or registration with, any
court or governmental agency in order for it to execute, deliver or
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perform any of its obligations under this Agreement or issue and sell the
Securities in accordance with the terms hereof and thereof (other than any
SEC, Nasdaq or state securities filings in connection herewith which may
be required to be made by the Company subsequent to the Closing, and any
registration statement which may be filed pursuant hereto); provided that,
for purposes of the representation made in this sentence, the Company is
assuming and relying upon the accuracy of the relevant representations and
agreements of the Investors and/or its principals herein.
3.9 Exchange Act Reports. The Company has delivered or made available to the
Investors true and complete copies of the Exchange Act Reports (including,
without limitation, proxy information and solicitation materials). The
Company has not provided to the Investors any information which, according
to applicable law, rule or regulation, should have been disclosed publicly
prior to the date hereof by the Company but which has not been so
disclosed; nor has the Company provided to the Investors, as an inducement
to enter into this Agreement or otherwise, any information which has not
been publicly announced or disclosed to the Company's stockholders
generally. As of their respective dates, the Exchange Act Reports complied
in all material respects with the requirements of the Exchange Act and
rules and regulations of the SEC promulgated thereunder and other federal,
state and local laws, rules and regulations applicable to such Exchange
Act Reports, and none of the Exchange Art Reports contained any untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
The financial statements of the Company included in the Exchange Act
Reports comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
or other applicable rules and regulations with respect thereto. Such
financial statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis during the
periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto or (ii) in the case of unaudited
interim statements, to the extent they may not include footnotes or may be
condensed or summary statements) and fairly present in all material
respects the financial position of the Company as of the dates thereof and
the results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments).
3.10 Intentionally Omitted
3.11 Intentionally Omitted
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3.12 No Undisclosed Events or Circumstances. No event or circumstance has
occurred or exists with respect to the Company or its subsidiaries or
their respective businesses, properties, prospects, operations or
financial condition, which, under applicable law, rule or regulation,
requires public disclosure or announcement by the Company, but which has
not been so publicly announced or disclosed. The Company has not provided
the Investor any information which, according to applicable law, rules or
regulations should have been disclosed publicly by the Company, but which
has not been so disclosed, other than with respect to the existence of
this Agreement and the transactions contemplated by this Agreement.
3.13 No Integrated Offering. Neither the Company, nor any of its affiliates,
nor any person acting on its or their behalf has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy
any security, under circumstances that would require registration of the
Securities under the Securities Act.
3.14 Broker. The Company has taken no action which would give rise to any claim
by any person for brokerage commission, finder's fees or similar payments
by the Investors relating to this Agreement or the transactions
contemplated hereby.
3.15 Acknowledgment of Dilution. The number of shares of Underlying Stock
issuable upon conversion of the Series T Stock may increase in the event
the current trading price of the Common Stock fails to significantly
increase. The Company acknowledges that its obligation to issue Underlying
Stock upon conversion of the Preferred Stock in accordance with the Series
T Certificate of Designation is absolute and unconditional, regardless of
the dilution that such issuance may have on the ownership interests of
other stockholders, but is nevertheless subject to the terms and
conditions of general application imposed upon the Company by governmental
decrees and by the Exchange.
4. Covenants of the Company
4.1 Intentionally Omitted
4.2 Reservation of Common Stock. Notwithstanding any representation, warranty,
covenant or agreement to the contrary contained herein, the parties
acknowledge and agree that the Company does not currently have any
authorized but unissued shares of Common Stock available to effect the
conversion of the Series T Stock. After the Closing, the Company shall use
commercially reasonable efforts to as promptly as practicable convene a
meeting of its shareholders to increase its
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authorized but unissued shares of capital stock or take such other action
as is appropriate in order that the Company have available a sufficient
number of shares to effect the conversion of the Series T Stock (the
"Stockholder Approval"). Thereafter, at all times while any shares of
Series T Stock are outstanding, the Company shall reserve and keep
available, free of preemptive rights and subject to such legal limits and
rules of exchanges on which the Common Stock may be traded, no less than
one hundred five percent (105%) and, after an Election is made (as defined
in the Series T Certificate of Designation), no less than two hundred
percent (200%) with respect to the shares of Preferred Stock for which an
Election has been made, of that number of shares of the Company's Common
Stock for which such outstanding shares of Preferred Stock are then
convertible, each amount as equitably adjusted pursuant to any stock
splits, split ups, recapitalization or reorganization of shares of Common
Stock. The Company shall notify the Investors as soon as practicable if
there is a decrease in the number of outstanding shares of Common Stock of
the Company.
4.3 Listing of Underlying Stock. The Company hereby agrees, promptly following
the Closing of the transaction contemplated by this Agreement and receipt
of the Stockholder Approval, if any, to take such action to cause the
Underlying Stock to be listed on the Exchange as promptly as possible but
no later than ninety (90) days following the Closing; provided, however,
at such time the Company's securities are approved for listing on the
Exchange or The Nasdaq SmallCap Market. The Company further agrees that,
if the Company applies to have the Common Stock traded on any principal
stock exchange, it will include in such application the Underlying Stock
and will take such other action as is necessary or desirable to cause the
Underlying Stock to be listed on such exchange as promptly as possible.
4.4 Exchange Act. For so long as the Company is in existence and Preferred
Stock remains outstanding, the Company will cause its Common Stock to
continue to be registered under Section 12(g) or 12(b) of the Exchange
Act, will comply in all respects with its reporting and filing obligations
under said Act and will not take any action or file any document (whether
or not permitted by said Act or the rules thereunder) to terminate or
suspend such registration or to terminate or suspend its reporting and
filing obligations under said Act. The Company will take all commercially
reasonable action necessary to continue the listing and trading of its
Common Stock on the Exchange and will comply in all respects with the
Company's reporting, filing and other obligations under the by-laws or
rules of the Exchange; provided, however, that the Company may terminate
such listing at any time so long as the Company's Common Stock is then
listed on either the Nasdaq SmallCap Market, the American Stock Exchange
or the New York Stock Exchange. The Company shall file with the SEC a Form
8-K (the "Form 8-K") or Form 10-Q (the "10-Q") disclosing this Agreement
and the transactions
-13-
contemplated at the earliest practicable date, but no later than the first
business day after the date of the Closing and shall publicly announce, by
way of press release, this Agreement and the transactions contemplated
hereby, no later than 24 hours after the Closing.
4.5 Corporate Existence. The Company will take all steps necessary to preserve
and continue the corporate existence of the Company; provided, however,
that this sentence shall not limit the Company's ability to engage in any
bona fide corporate transaction or reorganization otherwise consistent
with this Agreement.
4.6 Rule 144. The Company shall not, directly or indirectly, dispute or
otherwise interfere with any claim by a holder of Series T Stock that such
holder's holding period of such security for purposes of Rule 144 under
the Securities Act ("Rule 144") relates back (i.e. tacks) to the holding
period for the Series Q Stock; provided, however, nothing contained herein
shall obligate the Company or its counsel to take a position that is
inconsistent with the state of the law at such time. The Company
acknowledges and agrees that as of the date hereof under Rule 144 and
no-action letters issued by the SEC, such talking is permitted.
5. [SECTION INTENTIONALLY LEFT BLANK]
6. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflicts of
law or choice of law, except for matters arising under the Securities Act
or the Exchange Act, which matters shall be construed and interpreted in
accordance with such Acts. The Company hereby agrees that all actions or
proceedings arising directly or indirectly from or in connection with this
Agreement shall, at the Investor's sole option, be litigated only in the
Supreme Court of the State of New York or the United States District Court
for the Southern District of New York located in New York County, New
York. The Company consents to the jurisdiction and venue of the foregoing
courts and consents that any process or notice of motion or other
application to either of said courts or a judge thereof may be served
inside or outside the State of New York or the Southern District of New
York by registered mail, return receipt requested, directed to the Company
at its address set forth in this Agreement (and service so made shall be
deemed complete five (5) days after the same has been posted as aforesaid)
or by personal service or in such other manner as may be permissible under
the rules of said court.
7. Assignment; Entire Agreement; Amendment; Consents; Expenses
-14-
(a) Neither this Agreement nor any obligations of the Company hereunder
may be assigned by the Company to any other person or entity. The
provisions of this Agreement shall inure to the benefit of, and be
enforceable by, any transferee of any of the Securities with respect
to the Securities held by such person.
(b) This Agreement, the Series T Certificate of Designation, the
Registration Rights Agreement, and the other documents delivered
pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and
thereof and supersedes all prior agreements and no party shall be
liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth in
this Agreement or therein. Except as expressly provided in this
Agreement, neither this Agreement nor any term hereof may be waived,
discharged or terminated other than by a written instrument signed
by the party against whom enforcement of any such amendment, waiver,
discharge or termination is sought. This Agreement and any provision
hereof may only be amended by an instrument in writing signed by the
Company and the holders of two-thirds of the shares of Preferred
Stock outstanding at the time.
(c) By executing and delivering this Agreement, the parties hereto
consent and agree to all of the transactions contemplated hereby.
The Investors acknowledge and agree that except as provided for
specifically herein, the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby shall
not create or trigger any additional rights which any Investor may
have pursuant to any agreements entered into with the Company or
attendant to any securities of the Company, including, without
limitation, the right to have the purchase price of any warrants
held by such Investor adjusted.
(d) The Company agrees to reimburse the Investors for all reasonable
legal expenses incurred by such Investors in connection with the
execution and delivery of this Agreement.
8. Publicity
The Company agrees that it will not disclose, and will not include in any
public announcement, the name of any Investor without such Investor's
consent, unless
-15-
and until such disclosure is required by law or applicable regulation, and
then only to the extent of such requirement.
9. Notices, Etc.; Expenses; Indemnity
(a) Any notice, demand or request required or permitted to be given by
either the Company or the Investors pursuant to the terms of this
Agreement shall be in writing and shall be deemed given when
delivered personally or by facsimile, with a hard copy to follow by
two day courier addressed to a Investor at the addresses of such
Investor set forth on the signature page hereof, to the Company at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
President, or such other address as a party may request by notifying
the other applicable party(s) in writing. Copies of all notices to a
Investor shall be sent to such Investor's designee or representative
(if any).
(b) The Company shall indemnify each Investor against any loss, cost or
damages (including reasonable attorney's fees) incurred as a result
of the Company's breach of any representation, warranty, covenant or
agreement in this Agreement, the Registration Rights Agreement
and/or the Preferred Stock. Each Investor shall severally indemnify
the Company against any loss, cost or damages (including reasonable
attorney's fees) incurred by the Company as a result of such
Investor's breach of any representation, warrant, covenant or
agreement in this Agreement, the Registration Rights Agreement
and/or the Preferred Stock.
10. Counterparts
This Agreement may be executed in any number of counterparts each of which
shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
11. Survival; Severability; Specific Performance
The representations, warranties, covenants and agreements of the parties
hereto shall survive the Closing for a period of four (4) years. In the
event that any provision of this Agreement becomes or is declared by a
court of competent jurisdiction to be illegal, unenforceable or void, this
Agreement shall continue in full force and effect without said provision.
Notwithstanding anything in this Agreement, the Registration Rights
Agreement or the Series T Certificate of Designation to the contrary,
nothing shall limit a Investor's right to pursue any and
-16-
all available remedies, whether at law or at equity (including, without
limitation, specific performance), in connection therewith.
12. Title and Subtitles
The titles and subtitles used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this
Agreement.
13. Like Treatment of Holders
Neither the Company nor any of its affiliates shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee, payment for the redemption or the conversion of the
Preferred Stock, or otherwise, to any holder of shares of Preferred Stock,
for or as an inducement to, or in connection with the solicitation of, any
consent, waiver or amendment of any terms or provisions of the Series T
Certificate of Designation, this Agreement or the Registration Rights
Agreement, unless such consideration is offered to all holders of shares
of Preferred Stock and such consideration is required to be paid to all
holders of shares of Preferred Stock who agree to such consent, waiver or
amendment or tender their Preferred Stock for redemption or conversion.
-17-
GEOTEK COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Investors:
Investor's Representative: Investor:
RGC International Investors, LDC
By: ▇▇▇▇ ▇▇▇▇ Capital Management, L.P., as
Investment Manager
By: RGC General Partner Corp., as general
partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Director
Address: ▇/▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇.
Three Bala Plaza (East) Place of Execution: Pennsylvania
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Cayman Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Residency and/or Principal Place of
Business: Cayman Islands
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Registration Instructions: RGC International
Investors, LDC
Investor's Representative: Investor:
Palladin Group, L.P. Halifax Fund, L.P.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: The Palladin Group, its Investment
Manager
By: Palladin Capital Management LLC, its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Authorized
Representative
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Cayman Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o Citco Fund Services, Ltd.
Corporate Center, ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
SMB
Registration Instructions: Halifax Fund, L.P.
Investor's Representative: Investor:
Palladin Group, L.P. AGR Halifax Fund, Ltd.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ F/b/o Ramius Halifax Partners, LP
By: AG Ramius Partners, LLC
Its: Investment Advisor
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Officer
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Cayman Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o Citco Fund Services, Ltd.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
SMB
Registration Instructions: AGR Halifax
Fund, Ltd.
Investor's Representative: Investor:
Palladin Group, L.P. AGR Halifax Fund, Ltd.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ F/b/o Ramius Halifax Overseas Fund, Ltd.
By: AG Ramius Partners, LLC
Its: Investment Advisor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Officer
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Cayman Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o Citco Fund Services, Ltd.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
SMB
Registration Instructions: AGR Halifax
Fund, Ltd.
Investor's Representative: Investor:
Palladin Group, L.P. AGR Halifax Fund, Ltd.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ F/b/o Hick Investments, Ltd.
By: AG Ramius Partners, LLC
Its: Investment Advisor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Officer
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Cayman Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o Citco Fund Services, Ltd.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
SMB
Registration Instructions: AGR Halifax
Fund, Ltd.
Investor's Representative: Investor:
Palladin Group, L.P. Colonial Penn Insurance Company
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: The Palladin Group, its Investment
Manager
By: Palladin Capital Management LLC, its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Authorized Representative
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
New York
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Registration Instructions: Colonial Penn
Insurance
Investor's Representative: Investor:
Palladin Group, L.P. Gleneagles Fund, LTD
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: The Palladin Group, its Investment
Manager
By: Palladin Capital Management LLC, its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Authorized Representative
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Cayman Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o Citco Fund Services, Ltd.
Corporate Center, ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
SMB
Registration Instructions: Gleneagles
Fund, LTD
Investor's Representative: Investor:
Palladin Group, L.P. Colonial Penn Life Insurance Company
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: The Palladin Group, its Investment
Manager
By: Palladin Capital Management LLC, its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Authorized Representative
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
New York
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Registration Instructions: Colonial Penn Life
Insurance Company
Investor's Representative: Investor:
Citadel Investment Group, L.L.C. ▇▇▇▇▇▇ Partners
Attn: ▇▇▇▇▇▇▇ Simpler
By: /s/
-----------------------------------------
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
9th Floor Place of Execution: Bermuda
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship: Bermuda
Place of Residency and/or Principal Place of
Business:
c/o Leeds Management Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Registration Instructions: ▇▇▇▇▇▇ Partners
Investor's Representative: Investor:
Citadel Investment Group, L.L.C. Olympus Securities, LTD.
Attn: ▇▇▇▇▇▇▇ Simpler
By: /s/
-----------------------------------------
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
9th Floor Place of Execution: Bermuda
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship: Bermuda
Place of Residency and/or Principal Place of
Business:
c/o Leeds Management Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Registration Instructions: Olympus
Securities, LTD.
Investor:
CIBC, Wood Gundy Securities Corp.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Managing Director
Place of Execution: New York
Place of Organization or Citizenship:
New York
Place of Residency and/or Principal Place of
Business:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Registration Instructions: CIBC, Wood Gundy
Investor's Representative: Investor:
Promethean Investment Group, L.L.C. Themis Partners L.P.
Attn: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇.
By: Promethean Investment Group, L.L.C., its
General Partner
By: /s/
-----------------------------------------
Address: ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
New York
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o Promethean Investment Group, L.L.C.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Registration Instructions: Themis
Partners L.P.
Investor's Representative: Investor:
Promethean Investment Group, L.L.C. Samyang Merchant Bank
Attn: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇.
By: Promethean Investment Group, L.L.C., its
Investment Advisor
By: /s/
-----------------------------------------
Address: ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
South Korea
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
▇/▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇, ▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇-▇▇
Seoul, 110-110-Korea
Registration Instructions: Samyang Merchant
Bank
Investor's Representative: Investor:
Promethean Investment Group, L.L.C. Heracles Fund
Attn: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇.
By: Promethean Investment Group, L.L.C., its
Investment Advisor
By: /s/
-----------------------------------------
Address: ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Cayman Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o Bank of Bermuda (Cayman) Limited
P.O. Box 513
Third Floor, British American Tower
▇▇. ▇▇▇'▇ Drive
Georgetown, Grand Cayman
Cayman Islands, BWI
Registration Instructions: Heracles Fund
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. Leonardo, L.P.
Attn: ▇▇▇▇ ▇▇▇▇
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P., its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Cayman Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o Trident Trust Company Limited
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, B.W.I.
Registration Instructions: ▇▇▇▇▇▇▇▇, L.P.
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. GAM Arbitrage Investments, Inc.
Attn: ▇▇▇▇ ▇▇▇▇
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P., its
Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
British Virgin Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Douglas Isle of Man, British Isles
British Virgin Islands
Registration Instructions: GAM Arbitrage
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. AG Super Fund International Partners, L.P.
Attn: ▇▇▇▇ ▇▇▇▇
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P., its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship: Cayman
Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o Raphael Capital Management Partners,
L.P.
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▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Grand Cayman, Cayman Islands, B.W.I.
Registration Instructions: AG Super Fund
International
Partners, L.P.
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. Ramius Fund, LTD.
Attn: ▇▇▇▇ ▇▇▇▇
By: AG Ramius Partners, L.L.C., its
Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Bermuda
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o Bank of Bermuda
Attn: Chandra Aramdjeroric
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▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Registration Instructions: Ramius Fund, LTD.
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., ▇.▇. ▇▇▇▇▇▇▇, L.P.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
Cayman Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o Raphael Capital Management Partners,
L.P.
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▇.▇. ▇▇▇ ▇▇▇▇▇
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Grand Cayman, Cayman Islands, B.W.I.
Registration Instructions: Raphael, L.P.
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. AG SUPER FUND, L.P.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
United States
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Registration Instructions: AG SUPER FUND,
L.P.
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. MICHAELANGELO, L.P.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
United States
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Registration Instructions: Michaelangelo,
L.P.
Investor's Representative: Investor:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. ▇▇▇▇▇▇, ▇▇▇▇▇▇ & CO., L.P.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
26th Floor Place of Execution: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Place of Organization or Citizenship:
United States
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Place of Residency and/or Principal Place of
Business:
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Registration Instructions: ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
Co., L.P.
Investor's Representative: Investor:
PALLADIN PARTNERS I, L.P.
By: /s/
-----------------------------------------
Place of Execution: New York
Place of Organization or Citizenship:
Place of Residency and/or Principal Place of
Business:
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Registration Instructions: Palladin Partners
I, L.P.
SCHEDULE A
Total
Q shares R shares S shares Shares O Warrants
-------- -------- -------- ------ ----------
▇▇▇▇▇▇ Partners 0 1,289,993 0 1,289,993 0
Olympus 0 1,289,993 0 1,289,993 0
Ramius Halifax Partners 0 351,443 161,341 512,784 0
Ramius Halifax Overseas 0 331,573 152,158 483,731 0
Hick Investments 0 56,814 26,125 82,939 0
Halifax Fund (includes Colonial Penn Ins.) 0 1,042,356 483,981 1,526,337 0
Pallidin Fund 0 251,363 131,882 383,245 0
Gleneagles 0 627,030 323,710 950,740 0
Colonial Penn Ins. (included in Halifax) 0 0 0 0 0
Colonial Penn Life Insurance 0 313,515 161,855 475,370 0
Ramius Fund 173,333 276,621 126,983 576,937 0
Raphael 66,667 104,443 0 171,110 0
▇▇▇▇▇▇▇▇ 33,333 522,212 0 555,545 0
AG Super Fund Int'l 40,000 61,436 0 101,436 0
GAM Arbitrage 53,333 86,011 0 139,344 0
Hercales Fund (includes Samyang) 213,333 491,493 0 704,826 0
Themis 53,333 122,873 0 176,206 0
RGC Int'l 0 1,530,139 0 1,530,139 0
CIBC Wood Gundy 0 938,065 471,191 1,409,256 340,000
Samyang (included in Heracles) 0 0 0 0 0
-------- ---------- ---------- ----------- --------
633,332 9,687,373 2,039,226 12,359,931 340,000
======== ========== ========== =========== ========
(A)
Total
Total Warrants Convert
Q Warrants Warrants & Shares $0.80/share Q Dollars
---------- -------- -------- ----------- ---------
▇▇▇▇▇▇ Partners 90,000 90,000 1,379,993 $1,103,994 $0
Olympus 90,000 90,000 1,379,993 1,103,994 0
Ramius Halifax Partners 0 0 512,784 410,227 0
Ramius Halifax Overseas 0 0 483,731 386,985 0
Hick Investments 18,000 18,000 100,939 80,751 0
Halifax Fund (includes Colonial Penn Ins.) 300,000 300,000 1,826,337 1,461,070 0
Pallidin Fund 0 0 383,245 306,596 0
Gleneagles 120,000 120,000 1,070,740 856,592 0
Colonial Penn Ins. (included in Halifax) 0 0 0 0 0
Colonial Penn Life Insurance 60,000 60,000 535,370 428,296 0
Ramius Fund 269,863 269,863 846,800 677,440 173,333
Raphael 30,000 30,000 201,110 160,888 66,667
▇▇▇▇▇▇▇▇ 438,185 438,185 993,730 794,984 33,333
AG Super Fund Int'l 18,000 18,000 119,436 95,549 40,000
GAM Arbitrage 102,322 102,322 241,666 193,333 53,333
Hercales Fund (includes Samyang) 824,904 824,904 1,529,730 1,223,784 323,945
Themis 206,226 206,226 382,432 305,946 80,986
RGC Int'l 150,000 150,000 1,680,139 1,344,111 0
CIBC Wood Gundy 150,000 490,000 1,899,258 1,519,405 88
Samyang (included in Heracles) 0 0 0 0 0
---------- ---------- ----------- ------------ --------
2,867,500 3,207,500 15,567,431 $12,453,945 $771,685
========== ========== =========== ============ ========
(B) (B) - (A)
Total --------
Q s R Dollars S Dollars Dollars Series T
--- --------- --------- ------- --------
▇▇▇▇▇▇ Partners $2,099,710 $0 $2,099,710 995,716
Olympus 2,099,710 0 2,099,710 995,716
Ramius Halifax Partners 566,000 509,500 1,075,500 665,273
Ramius Halifax Overseas 534,000 480,500 1,014,500 627,515
Hick Investments 91,500 82,500 174,000 93,249
Halifax Fund (includes Colonial Penn Ins.) 1,705,500 1,534,000 3,239,500 1,778,430
Pallidin Fund 411,278 418,006 829,284 522,688
Gleneagles 1,025,946 1,026,014 2,051,960 1,195,368
Colonial Penn Ins. (included in Halifax) 0 0 0 0
Colonial Penn Life Insurance 512,973 513,007 1,025,980 597,684
Ramius Fund 445,500 401,000 1,019,833 342,393
Raphael 170,000 0 236,667 75,779
▇▇▇▇▇▇▇▇ 850,000 0 883,333 88,349
AG Super Fund Int'l 100,000 0 140,000 44,451
GAM Arbitrage 140,000 0 193,333 0
Hercales Fund (includes Samyang) 899,839 0 1,223,784 0
Themis 224,960 0 305,946 0
RGC Int'l 2,490,000 0 2,490,000 1,145,889
CIBC Wood Gundy 1,526,879 1,526,879 3,053,846 1,534,441
Samyang (included in Heracles) 0 0 0 0
----------- ---------- ----------- -----------
$15,893,795 $6,491,406 $23,156,886 $10,702,941
=========== ========== =========== ===========
Schedule 1
Schedule of Exceptions
In connection with the Conversion and Exchange Agreement ("the
"Agreement"), of which this Schedule of Exceptions is a part, the Company hereby
sets forth the following exceptions to the representations and warranties of the
Company set forth in Article 3 of the Agreement:
3.1 [None].
3.2 [None].
3.3 See Schedule 3.4 for a description of the Company's Capitalization.
o Vanguard Cellular Systems, Inc. ("Vanguard") has certain rights to
acquire additional securities of the Company, on the same terms as
offered to the Subscriber, pursuant to that certain Stock Purchase
Agreement dated December 29, 1993 by and between Vanguard and the
Company.
o S-C Rig Investments - III, L.P. ("S-C Rig") has certain rights to
acquire additional securities of the Company, on the same terms as
offered to the Subscriber, pursuant to that certain Stock Purchase
Agreement dated September 28, 1994 by and between S-C Rig and the
Company.
3.4 [None].
See schedule 3.5 for a list of the Company's Subsidiaries.
3.5 [None].
3.6 [None].
3.7 [None].
3.8 [None].
3.9 [None].
3.10 [None].
3.11 [None].
3.12 [None].
3.13 [None].
