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EXHIBIT 10.2
STOCK REPURCHASE AGREEMENT
BY AND BETWEEN
MOTIENT CORPORATION
AND
[------------------]
DATED AS OF MAY 17, 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.........................................................................2
Section 1.3.
Closing................................................................................2
Section 1.4.
Deliveries.............................................................................2
ARTICLE II Representations and Warranties
of
Seller...............................................................2
Section 2.1.
Organization, Qualification,
Etc.......................................................2
Section 2.2. Agreements
Affecting Repurchase
Shares.................................................2
Section 2.3. Title to
Repurchase
Shares.............................................................3
Section 2.4.
Authority..............................................................................3
Section 2.5.
Litigation.............................................................................3
Section 2.6.
[Intentionally
Omitted]................................................................4
Section 2.7.
Unsolicited
Purchase...................................................................4
Section 2.8.
[Intentionally
Omitted]................................................................4
Section 2.9.
Representation and
Investigation.......................................................4
Section 2.10. Brokers or
Finders.....................................................................4
Section 2.11. Representations
Complete...............................................................4
ARTICLE III Representations and Warranties
of Motient and
Sub.....................................................4
Section 3.1.
Organization, Standing and
Power.......................................................5
Section 3.2.
Authority..............................................................................5
Section 3.3. SEC
Documents..........................................................................5
Section 3.4.
Litigation.............................................................................6
Section 3.5.
[Intentionally
Omitted]................................................................6
Section 3.6. Broker's
and Finders'
Fees.............................................................6
Section 3.7.
Representation and
Investigation.......................................................6
Section 3.8.
Representations
Complete...............................................................6
ARTICLE IV Additional
Agreements..................................................................................6
Section 4.1. Filings; Other
Action..................................................................6
Section 4.2. Public
Announcements...................................................................7
Section 4.3.
Lock-Up................................................................................7
Section 4.4. Delay Not
Unreasonable.................................................................8
ARTICLE V
Indemnification.........................................................................................8
Section 5.1. Survival
of Representations and
Warranties.............................................8
Section 5.2. Obligation
to
Indemnify................................................................8
Section 5.3.
Indemnification
Procedures.............................................................9
Section 5.4. Notices
and
Payments..................................................................10
Section
5.5. Limited
and Exclusive
Remedy..........................................................11
ARTICLE VI
Miscellaneous.........................................................................................11
Section 6.1.
Expenses..............................................................................11
Section 6.2.
Counterparts;
Effectiveness...........................................................11
Section 6.3. Governing
Law.........................................................................11
Section 6.4.
Notices...............................................................................11
Section 6.5.
Assignment; Binding
Effect............................................................12
Section 6.6.
Severability..........................................................................12
Section 6.7. Entire
Agreement; Non-Assignability; Parties in
Interest..............................13
Section 6.8.
Headings..............................................................................13
Section 6.9. Certain
Definitions...................................................................13
Section 6.10.
Amendments and
Waivers................................................................13
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STOCK REPURCHASE AGREEMENT
THIS STOCK REPURCHASE AGREEMENT (this "AGREEMENT") is made and
entered
into as of May 17, 2005 by and between
Motient Corporation, a Delaware
corporation ("MOTIENT") and
[------------------] (the "SELLER"), a Delaware
limited partnership.
RECITALS:
WHEREAS, Seller owns [------------------]shares (the "MOTIENT
SHARES")
of Motient's common stock, par value $0.01
per share ("MOTIENT COMMON STOCK"),
which Seller acquired from Motient pursuant
to that certain Stock Purchase
Agreement (the "PURCHASE AGREEMENT"), dated
as of February 9, 2005, by and among
Motient, MVH Holdings Inc. and Seller;
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
February 9, 2005, 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, prior to the effectiveness of the Registration
Statement,
Motient acquired a controlling equity
interest in TerreStar Networks Inc. (the
"TERRESTAR TRANSACTION"); and
WHEREAS, the consummation of the TerreStar Transaction may delay
the
effectiveness of the Registration Statement
until such time as Motient can file
audited financial statements for TerreStar
Networks Inc. ("TerreStar") as part
of the Registration Statement; 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 requested that Motient purchase from
Seller, and Motient has agreed to
purchase from Seller [------------------]
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."
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Section 1.2. PURCHASE PRICE. In consideration for the
Repurchase
Shares, Motient shall pay to Seller $19.50
per share, for an aggregate cash
purchase price of $[------------------]
(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.
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 certificate registered in Seller's name representing
the
Repurchase Shares (the "Certificate");
and
(ii)
stock powers with respect to the Repurchase Shares duly
endorsed in blank.
(b) Motient shall deliver to Seller the following:
(i) the Purchase Price; and
(ii) a new stock certificate registered in Seller's name
representing the [------------------]
shares under the Certificate not sold to
Motient pursuant to this Agreement, within
seven (7) business days after the
Closing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Motient as follows:
Section 2.1. ORGANIZATION, QUALIFICATION, ETC. Seller is a
limited
partnership duly formed, validly existing
and in good standing under the laws of
the State of Delaware and has the power and
authority to own its properties and
assets and to carry on its business as it
is now being conducted and is duly
qualified to do business and is in good
standing in each jurisdiction in which
the ownership of its properties or the
conduct of its business requires such
qualification.
Section 2.2. 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.
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Section 2.3. 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. Upon consummation of the
transactions hereunder, Motient will acquire
and be vested with valid title to the
Repurchase Shares, free and clear of any
liens, claims or encumbrances of any kind
whatsoever, other than those pursuant
to Securities Law Encumbrances.
Section 2.4. AUTHORITY. Seller has all requisite partnership power
and
authority to enter into this Agreement and
to consummate the transactions and
carry out its obligations contemplated
hereby. The execution and delivery of
this Agreement and the consummation of the
transactions contemplated hereby have
been duly authorized by all necessary
partnership action on the part of Seller.
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 (a)
any provision of the organizational
documents of Seller, or (b) 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 its properties or assets.
No consent, approval, order or
authorization of, or 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 2.5. LITIGATION. There is no private or government
proceeding
pending before any agency, court or
tribunal, foreign or otherwise, against
Seller or any of Seller's subsidiaries or,
to the knowledge of Seller,
threatened against Seller or any of
Seller's subsidiaries 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 or
any of Seller's subsidiaries, or, to
the knowledge of Seller, any of their
respective directors or officers (in their
capacities as such), 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.
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Section 2.6. [INTENTIONALLY OMITTED]
Section 2.7. 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 2.8. [INTENTIONALLY OMITTED]
Section 2.9. 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 2.10. 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.
Section 2.11. 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 AND SUB
Motient hereby represents and warrants to Seller as follows:
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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 Delaware and has the corporate
power and authority to own its
properties and assets and to carry on its
business as it is now being conducted
and is duly qualified to do business and is
in good standing in each
jurisdiction in which the ownership of its
properties or the conduct of its
business requires such qualification. The
copies of the Certificate of
Incorporation and Bylaws of Motient that
have been made available to Seller are
complete and correct and in full force and
effect on the date hereof.
Section 3.2. AUTHORITY. Motient has all requisite corporate power
and
authority to enter into this Agreement and
to consummate the transactions and
carry out its obligations contemplated
hereby. The execution and delivery of
this Agreement and the consummation of the
transactions contemplated hereby have
been duly authorized by all necessary
corporate and stockholder action on the
part of Motient. This Agreement has been
duly executed and delivered by Motient
and constitutes the valid and binding
obligations of Motient enforceable against
Motient in accordance with its terms. The
execution and delivery of this
Agreement does not, and the consummation of
the transactions contemplate
