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EXHIBIT 10.1
STOCK REPURCHASE AGREEMENT
BY AND BETWEEN
MOTIENT CORPORATION
AND
GEORGE W. HAYWOOD
DATED AS OF MAY 13, 2005
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TABLE OF CONTENTS
ARTICLE I Purchase and
Sale.......................................................................................1
Section 1.1. Sale of
Repurchase
Shares..............................................................1
Section 1.2. Purchase
Price.........................................................................1
Section 1.3.
Closing................................................................................2
Section 1.4.
Deliveries.............................................................................2
ARTICLE II Representations and Warranties
of
Seller...............................................................2
Section 2.1. Agreements
Affecting Repurchase
Shares.................................................2
Section 2.2. Title to
Repurchase
Shares.............................................................2
Section 2.3.
Authority..............................................................................2
Section 2.4.
Litigation.............................................................................3
Section 2.5. Receipt of
Information.................................................................3
Section 2.6.
Representation and
Investigation.......................................................3
Section 2.7. Brokers or
Finders.....................................................................3
Section 2.8.
Unsolicited
Purchase...................................................................4
Section 2.9.
Representations
Complete...............................................................4
ARTICLE III Representations and Warranties
of Motient and
Sub.....................................................4
Section 3.1.
Organization, Standing and
Power.......................................................4
Section 3.2.
Authority..............................................................................4
Section 3.3. SEC
Documents..........................................................................5
Section 3.4.
Litigation.............................................................................5
Section 3.5. Tax
Matters............................................................................5
Section 3.6. Broker's
and Finders'
Fees.............................................................5
Section 3.7.
Representation and
Investigation.......................................................5
Section 3.8.
Representations
Complete...............................................................6
ARTICLE IV Additional
Agreements..................................................................................6
Section 4.1. Filings;
Other
Action..................................................................6
Section 4.2. Public
Announcements...................................................................6
ARTICLE V
Indemnification.........................................................................................7
Section 5.1. Survival
of Representations and
Warranties.............................................7
Section 5.2. Obligation
to
Indemnify................................................................7
Section 5.3.
Indemnification
Procedures.............................................................7
Section 5.4. Notices
and
Payments...................................................................8
Section 5.5. Limited
Remedy.........................................................................9
ARTICLE VI
Miscellaneous..........................................................................................9
Section 6.1.
Expenses...............................................................................9
Section 6.2.
Counterparts;
Effectiveness............................................................9
Section 6.3. Governing
Law..........................................................................9
Section 6.4.
Notices................................................................................9
Section 6.5.
Assignment; Binding
Effect............................................................10
Section 6.6.
Severability..........................................................................10
Section 6.7. Entire
Agreement; Non-Assignability; Parties in
Interest..............................11
Section 6.8.
Headings..............................................................................11
Section 6.9. Certain
Definitions...................................................................11
Section 6.10. Amendments and
Waivers................................................................11
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STOCK REPURCHASE AGREEMENT
THIS STOCK REPURCHASE AGREEMENT (this "AGREEMENT") is made and
entered
into as of May 13, 2005 by and between
Motient Corporation, a Delaware
corporation ("MOTIENT"), and George W.
Haywood ("SELLER").
RECITALS:
WHEREAS, Seller purchased 1,785,000 shares (the "MOTIENT SHARES")
of
Motient's common stock, par value $0.01 per
share ("MOTIENT COMMON STOCK"), from
Motient pursuant to that certain Securities
Purchase Agreement (the "PURCHASE
AGREEMENT"), dated as of November 12, 2005,
by and among Motient and Seller,
among others; and
WHEREAS, in connection with the purchase of the Motient Shares
pursuant
to the Purchase Agreement, Motient and
Seller entered into that certain
Registration Rights Agreement (the
"REGISTRATION RIGHTS AGREEMENT"), dated as of
November 12, 2004, by and among Seller and
Motient (among others), pursuant to
which Motient agreed to file a registration
statement on Form S-1 with the
Securities and Exchange Commission (the
"SEC") to register the resale of the
Motient Shares and other securities (the
"REGISTRATION STATEMENT"); and
WHEREAS, Motient has filed the Registration Statement with the SEC,
but
the Registration Statement had not yet been
declared effective by the SEC; and
WHEREAS, in order to provide Seller with liquidity for a portion of
the
Motient Shares prior to the effectiveness
of the Registration Statement, Seller
has agreed to sell to Motient, and Motient
has agreed to purchase from Seller,
500,000 of the Motient Shares (the
"REPURCHASE SHARES"), on and subject to the
terms and conditions set forth in this
Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the covenants and
representations
set forth herein, and for other good and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE
Section 1.1. SALE OF REPURCHASE SHARES. Subject to the terms
and
conditions hereof and in reliance upon the
representations, warranties and
agreements contained herein, at the Closing
(defined below), Motient will
purchase from Seller, and Seller shall sell
to Motient, the Repurchase Shares
for the aggregate consideration set forth
in SECTION 1.2 below. The purchase of
the Repurchase Shares contemplated by this
SECTION 1.1 is sometimes referred to
herein as the "STOCK REPURCHASE."
Section 1.2. PURCHASE PRICE. In consideration for the
Repurchase
Shares, Motient shall pay to Seller $19.90
per share, for an aggregate cash
purchase price of $9,950,000 (the "PURCHASE
PRICE"). Motient shall pay the
Purchase Price at the Closing by wire
transfer of immediately available funds to
an account or accounts designated by Seller
prior to the execution and delivery
of this Agreement.
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Section 1.3. CLOSING. The closing (the "CLOSING") of the purchase
and
sale of the Repurchase Shares in exchange
for the Purchase Price is taking place
contemporaneously with the execution and
delivery of this Agreement on the date
hereof and is being held at the offices of
Andrews Kurth LLP, 111 Congress
Avenue, Suite 1700, Austin, Texas.
Section 1.4. DELIVERIES. At the Closing:
(a) Seller shall deliver to Motient the following:
(i) one or more certificates registered in Seller's name
representing the Repurchase Shares; and
(ii) a stock power with respect to the Repurchase Shares duly
endorsed in blank.
(b) Motient shall deliver to Seller the Purchase Price.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Motient, as follows:
Section 2.1. AGREEMENTS AFFECTING REPURCHASE SHARES. Seller is not
a
party to, nor is Seller aware of, any
voting agreement, voting trust or similar
agreement or arrangement relating to any of
the Repurchase Shares.
Section 2.2. TITLE TO REPURCHASE SHARES. Seller is the sole record
and
beneficial owner of the Repurchase Shares
being sold to Motient pursuant to this
Agreement and owns the Repurchase Shares
free and clear of any and all liens,
claims and encumbrances of any kind
whatsoever, other than pursuant to
applicable securities laws ("SECURITIES LAW
ENCUMBRANCES"), with full legal
right, power and authority to sell and
transfer the Repurchase Shares to Motient
as contemplated by this Agreement. Seller
has not sold, pledged, hypothecated or
otherwise transferred any of the Repurchase
Shares or any interest therein to
any other person, and there are no
outstanding options, rights, calls,
commitments of any kind relating to, or any
presently effective agreements or
understandings with respect to, any of the
Repurchase Shares that would affect
or prevent the sale of the Repurchase
Shares to Motient as contemplated by this
Agreement.
Section 2.3. AUTHORITY. This Agreement has been duly executed
and
delivered by Seller and constitutes the
valid and binding obligation of Seller
enforceable against Seller in accordance
with its terms. The execution and
delivery of this Agreement does not, and
the consummation of the transactions
contemplated hereby will not, conflict
with, or result in any violation of, or
default under (with or without notice or
lapse of time, or both), or give rise
to a right of termination, cancellation or
acceleration of any obligation or
loss of a benefit under any material
mortgage, indenture, lease, contract or
other agreement or instrument, permit,
concession, franchise, license, judgment,
order, decree, statute, law, ordinance,
rule or regulation applicable to Seller
or his properties or assets. No consent,
approval, order or authorization of, or
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registration, declaration or filing with,
any governmental entity, is required
by or with respect to Seller in connection
with the execution and delivery of
this Agreement by Seller or the
consummation by Seller of the transactions
contemplated hereby or thereby, except for
such consents, authorizations,
filings, approvals and registrations which,
if not obtained or made, would not
have a material adverse effect on Seller
and would not prevent, materially
alter, delay or otherwise invalidate any of
the transactions contemplated, by or
the due execution and delivery of, this
Agreement.
Section 2.4. LITIGATION. There is no private or government
proceeding
pending before any agency, court or
tribunal, foreign or otherwise, against
Seller or, to the knowledge of Seller,
threatened against Seller that would
prevent, enjoin, alter or materially delay
any of the transactions contemplated
by this Agreement, or that would have a
material adverse effect on the ability
of Seller to consummate the transactions
contemplated by this Agreement. There
is no judgment, decree or order against
Seller that would prevent, enjoin, alter
or materially delay any of the transactions
contemplated by this Agreement, or
that would have a material adverse effect
on the ability of Seller to consummate
the transactions contemplated by this
Agreement.
Section 2.5. RECEIPT OF INFORMATION. Seller believes he has
received
all the information it considers necessary
or appropriate for deciding whether
to enter into this Agreement and sell the
Repurchase Shares to Motient on and
subject to the terms and conditions of this
Agreement. Seller further represents
that he has had an opportunity to ask
questions and receive answers from Motient
regarding the terms and conditions of this
Agreement and the business and
financial condition of Motient and to
obtain additional information (to the
extent Motient possessed such information
or could acquire it without
unreasonable effort or expense) necessary
to verify the accuracy of any
information furnished to it or to which it
had access.
Section 2.6. REPRESENTATION AND INVESTIGATION. Seller is
sophisticated
in financial and business matters and has
sufficient knowledge and experience in
investing in companies similar to Motient
and in transactions of the sort
contemplated by this Agreement so as to be
able to evaluate the risks and merits
of entering into this Agreement and
consummating the transactions contemplated
hereby. Seller has been represented by
independent legal counsel in connection
with this Agreement and fully understands
all of the provisions of, facts and
circumstances and implications (financial
and otherwise) of this Agreement and
has made such investigations with respect
to all aspects of this Agreement and
the transactions contemplated hereby as
Seller considers necessary, desirable
and appropriate in connection therewith.
Seller acknowledges that this Agreement
and the terms and conditions hereof are the
result of arm's length negotiations
with Motient and understands that the
Purchase Price may be more, less or equal
to the prevailing market price of Motient
Common Stock at the time of the
Closing. Seller acknowledges that Motient
has made no representations or
warranties with respect to this Agreement
or the transactions contemplated
hereby except as expressly set forth in
ARTICLE III below.
Section 2.7. BROKERS OR FINDERS. Seller has not incurred, nor will
it
incur, directly or indirectly, any
liability for brokerage or finders' fees or
agents' commissions or investment bankers'
fees or any similar charges in
connection with this Agreement or any
transaction contemplated hereby.
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Section 2.8. UNSOLICITED PURCHASE. This Agreement is being
entered
into, and the Stock Repurchase contemplated
hereby is being effected, at
Seller's request, and neither Motient nor
any of Motient's affiliates solicited
Seller or any of Seller's affiliates in any
manner to enter into this Agreement
or to effect the Stock Repurchase
contemplated hereby. The Stock Repurchase
contemplated hereby is not being effected
from or through a broker or dealer, on
a securities exchange or through an
inter-dealer quotation system or electronic
communications network, but rather, in a
direct transaction between Seller and
Motient, negotiated directly by the parties
hereto at arm's length.
Section 2.9. REPRESENTATIONS COMPLETE. None of the representations
or
warranties made by Seller herein contains
any untrue statement of a material
fact, or omits to state any material fact
necessary in order to make the
statements contained herein or therein, in
the light of the circumstances under
which made, not misleading. The foregoing
does not, however, limit or modify the
representations and warranties of Motient
set forth in ARTICLE III of this
Agreement or the right of Seller to rely
thereon.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MOTIENT
Motient hereby represents and warrants to Seller as follows:
Section 3.1. ORGANIZATION, STANDING AND POWER. Motient is a
corporation
duly organized, validly existing and in
good standing under the laws of the
State of Dela
