STOCK
PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this “Agreement”)
is made as of July 24, 2008, by and among Skyterra Communications, Inc., a
Delaware corporation (the “Company”),
and Harbinger Co-Investment Fund, L.P., a Delaware limited partnership (the
“Investor”). Defined
terms used herein and not otherwise defined shall have the meanings accorded
them in the MCSA (as defined below).
RECITALS
The
Company and the Investor have entered into that certain Master Contribution and
Support Agreement, dated as of July 24, 2008, among the Company, the Investor,
Harbinger Capital Partners Master Fund I, Ltd., Harbinger Capital Partners
Special Situations Fund, LP and Mobile Satellite Ventures Subsidiary LLC (the
“MCSA”);
The
MCSA provides that that the parties hereto shall enter into this Agreement
pursuant to which the Company shall sell to the Investor, and the Investor shall
purchase from the Company, shares of the Company’s voting common stock, par
value $0.01 per share (the “Voting
Common Stock”) on the terms and subject to the conditions as set forth
herein;
NOW, THEREFORE, in consideration of
the premises, mutual covenants and agreements hereinafter contained and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE
I
ISSUANCE
OF SHARES
1.1 Purchase and Sale of
Shares. Subject to the terms and conditions of this Agreement,
the Investor agrees to purchase at the Closing, and the Company agrees to sell
and issue to the Investor at the Closing, free and clear of any and all
Encumbrances, that number of shares of Voting Common Stock (the “Purchased
Shares”) equal to (x) the Cash Purchase Price (as hereinafter defined)
divided by (y) the Agreed Issue Price. On the Closing Date, the
Investor shall pay to the Company an amount in cash equal to the Cash Purchase
Price, which shall be paid by wire transfer of immediately available funds into
an account designated in writing by the Company not less than three Business
Days prior to the Closing Date and concurrently therewith, the Company shall
issue and deliver to the Investor the Purchased Shares.
For purposes of this Agreement, (a)
except as otherwise provided in Section 1.2, the “Cash
Purchase Price” shall equal up to the greater of (i) USD$2,400,000,000 or
(ii) such other amount as the Investor may determine, in either case minus the aggregate
gross proceeds of the Financing Rights Offering to the extent such amount is
received prior to Closing, and (b) subject to adjustment as provided in Section
1.3, the price per share of Voting Common Stock (the “Agreed
Issue Price”) shall equal the product of (i) USD$10.00, multiplied by (ii) a
fraction, (A) the numerator of which shall be the Target Offer Price and (B) the
denominator of which shall be 535.3p.
1.2 Notification of Cash
Purchase Price. The Investor shall notify the Company of the
Cash Purchase Price pursuant to a Notification and, if applicable, an Amendment
Notification, delivered in accordance with the terms of the MCSA. In
the event that the Investor determines (having taken into account the amount of
available Debt Financing, as defined in and pursuant to the MCSA), that less
cash is required to pay the Firm Offer Costs, the Investor shall have the right
to reduce the Cash Purchase Price and shall notify the Company of such reduction
by Notification or Amendment Notification, as applicable.
1.3 Adjustment of Agreed Issue
Price. The Agreed
Issue Price shall be equitably adjusted to reflect any changes to the
Company's capital structure that may occur between the date hereof and the
Closing, provided, however, that no such adjustment shall be made for any shares
of Common Stock issued by the Company to Harbinger in exchange for the
Contribution Assets, the Sponsor Fee Shares and any warrants granted to
Harbinger pursuant to the Securities Purchase Agreement. Such changes to the
Company's capital structure may include, but are not limited to, stock
consolidations, stock splits, interim rights offerings, non-cash distributions,
spin-offs, reclassifications, schemes of arrangements, payments of cash
dividends or other similar transactions.
1.4 Use of
Proceeds. The Company agrees that the net proceeds from the
purchase and sale of the Purchased Shares shall be used solely to pay the Firm
Offer Costs.
ARTICLE
II
CLOSING
2.1 Closing. The
closing of the transactions described in Section 1.1 (the “Closing”)
will take place at the offices of Weil, Gotshal & Manges LLP, 767 Fifth
Avenue, New York, NY 10153 on the date (the “Closing
Date”) that is three (3) Business Days after Completion or at such other
time and place as the Company and the Investor mutually agree in
writing.
2.2 Certificates. At
the Closing, the Company shall deliver to the Investor certificates representing
the Purchased Shares, issued in the name of the Investor or its nominee and
otherwise sufficient to transfer the Purchased Shares to the Investor free and
clear of all Encumbrances arising out of any act of the
Company.
ARTICLE
III
CLOSING
CONDITION
3.1 Condition Precedent to the
Obligations of the Investor and the Company. The obligations
of each of the Investor and the Company to consummate the transactions
contemplated by this Agreement are subject to the occurrence of the
Completion.
ARTICLE
IV
INVESTOR
REPRESENTATIONS AND WARRANTIES
The
Investor hereby makes the following representations and warranties as of the
date hereof:
4.1 Purchase Entirely for Own
Account. Except insofar as rights are conferred on any other
participants of the Investor under the rules of that fund, (i) the Investor is
acquiring the Purchased Shares for its own account for investment and not for
the account of any other Person or with a view to any resale, fractionalization,
division, or distribution thereof in a manner that would require registration
thereof under the Securities Act of 1933, as amended (the “Securities
Act”), and the Investor presently has no reason to anticipate any change
in its circumstances or other particular occasion or event which would cause it
to sell the Purchased Shares other than in compliance with the requirements of
the Securities Act; and (ii) the Investor has no contract, undertaking,
agreement, understanding or arrangement with any Person to sell, transfer, or
pledge to any Person any part or all of the Purchased Shares which the Investor
is acquiring, or any interest therein, and has no present plans to enter into
the same. The Purchased Shares were not offered or sold to the
Investor by means of any general solicitation or general
advertisement.
4.2 Investor Status;
Etc. The Investor certifies and represents to the Company that
it is an “accredited investor” as defined in Rule 501(a) of Regulation D
promulgated under the Securities Act. The Investor has adequate means
of providing for its current needs and personal contingencies, has no need now,
and anticipates no need in the foreseeable future, to sell the Purchased Shares,
and currently has sufficient net worth and financial liquidity to afford a
complete loss of its investment in the Company. The Investor has such
knowledge and experience in financial and business matters so that it is capable
of evaluating the merits and risks of an investment in the Company and has made
such evaluation. The Investor fully understands that the Purchased
Shares are speculative investments which involve a high degree of risk of loss
of the Investor’s entire investment. No Person or entity, other than
the Company or its authorized representatives, has offered the Purchased Shares
to the Investor. The Investor is able to bear the economic risk of an
investment in the Purchased Shares.
4.3 Securities Not
Registered. The Investor understands that Purchased Shares have not been
registered under the Securities Act by reason of their issuance by the Company
in a transaction exempt from the registration requirements of the Securities
Act, and that the Purchased Shares must continue to be held by the Investor
unless a subsequent disposition thereof is registered under the Securities Act
or is exempt from such registration. The Investor understands that the
exemptions from registration afforded by Rule 144 promulgated under the
Securities Act (the provisions of which are known to it) depend on the
satisfaction of various conditions, and that, if applicable, Rule 144 may afford
the basis for sales only in limited amounts. The Investor has had an
opportunity to ask questions of and receive answers from the management and
authorized representatives of the Company, and to review any other relevant
documents and records concerning the business of the Company and the terms and
conditions of this investment, and that any such questions have been answered to
the Investor’s satisfaction. The Investor understands that no federal
or state agency has passed upon or made any recommendation or endorsement of an
investment in the Purchased Shares.
ARTICLE
V
TRANSFER
RESTRICTIONS
5.1 Restrictions on
Transfers. Purchased Shares shall not be transferred, sold,
assigned, exchanged, mortgaged, pledged, hypothecated, or otherwise disposed of
or encumbered without compliance with, and they are otherwise restricted by, the
provisions of the
Securities
Act, the rules and regulations thereunder and this Agreement. Each
certificate, if any, evidencing such Purchased Shares issued upon any such
Transfer, other than in a public offering pursuant to an effective registration
statement, shall bear the restrictive legend set forth in Section 5.2(a), unless
the Holder thereof delivers to the Company an Opinion of Counsel to the effect
that such legend is not required for the purposes of compliance with the
Securities Act. Holders of Purchased Shares shall not be entitled to
Transfer such Purchased Shares except in accordance with this Article
V.
5.2 Restrictive
Legends.
(a) Each
certificate for the Purchased Shares shall be stamped or otherwise imprinted
with two legends in substantially the following forms: "THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND STATE SECURITIES LAWS, AND MAY NOT BE OFFERED FOR SALE,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS (I)
REGISTERED UNDER THE APPLICABLE SECURITIES LAWS OR (II) SUCH TRANSACTION IS
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND AN
OPINION OF COUNSEL, WHICH OPINION IS REASONABLY SATISFACTORY TO THE COMPANY, HAS
BEEN DELIVERED TO THE COMPANY AND SUCH OPINION STATES THAT THE SECURITIES MAY BE
TRANSFERRED WITHOUT SUCH REGISTRATION."
(b) The
legend requirements of Section 5.2(a) shall terminate as to any certificate for
Purchased Shares when the Company shall have received from the holder thereof an
opinion of counsel to the effect that such legend is not required in order to
ensure compliance with the Securities Act, and the holder of such certificate
for the Purchased Shares shall be entitled to receive from the Company, at the
expense of the Company, a new certificate for the Purchased Shares without the
legend provided for in Section 5.2(a).
(c) All
certificates for Purchased Shares issued upon registration of transfer, division
or combination of, or in substitution for, any other certificates for Purchased
Shares entitled to bear the legend provided for in Section 5.2(a) shall have a
similar legend endorsed thereon.
ARTICLE
VI
MISCELLANEOUS
6.1 Entire
Agreement. This Agreement and the MCSA contain the entire
understanding and agreement between the Investor and the Company concerning the
subject matter hereof.
6.2 Waiver. Compliance
with the provisions of this Agreement may be waived only by a written instrument
specifically referring to this Agreement and signed by the party waiving
compliance. No course of dealing, nor any failure or delay in
exercising any right, shall be construed as a waiver, and no single or partial
exercise of a right shall preclude any other or further exercise of that or any
other right.
6.3 Notices. All
notices and other communications given or made pursuant hereto shall be in
writing and shall be deemed to have been duly given or made as of the date
delivered, mailed or transmitted, and shall be effective upon receipt, if
delivered personally or via Federal Express (or other reputable overnight
courier), mailed by registered or certified mail (postage prepaid, return
receipt requested) to the parties at the addresses as set forth in Section 21.3
of the MCSA.
6.4 Successors and
Assigns. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Neither party shall
assign any rights or delegate any obligations hereunder without the consent of
the other party, except that the Investor may assign any or all of its rights
and/or delegate its obligations to any fund affiliated with Harbinger Master,
Harbinger Special or the Investor, provided that Investor shall remain liable
for the performance of any party to whom it delegates any of its
obligations.
6.5 Severability. In
the event that any provision of this Agreement or the application of any
provision hereof is declared to be illegal, invalid or otherwise unenforceable
by a court of competent jurisdiction, the remainder of this Agreement shall not
be affected.
6.6 Further
Assurances. Each party shall cooperate and take such action as
may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
6.7 Governing
Law. The Agreement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of New York
without giving effect to principles of conflict of laws thereof (other than
Sections 5-1401 and 5-1402 of the New York General Obligations
Law).
6.8 Consent to Jurisdiction;
Waiver of Jury Trial. Each of the parties to this Agreement
consents to submit to the non-exclusive personal jurisdiction of any court
located in the Borough of Manhattan, New York, NY in any action or proceeding
arising out of or relating to this Agreement. EACH PARTY HEREBY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL OR EQUITABLE ACTION (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) AND ANY OBJECTION THAT SUCH PARTY MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE AFOREMENTIONED
COURTS.
6.9 Headings and
Counterparts. The headings in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement,
nor shall they affect its meaning, construction or effect. This
Agreement may be executed in counterparts, each of which when so executed shall
be deemed to be an original, and all of which when taken together shall
constitute one and the same instrument.
6.10 Certain Interpretive
Matters.
(a) Unless
the context otherwise requires: (i) all references to Articles
and Sections, are to Articles and Sections of this Agreement; (ii) words in
the singular include the
plural
and vice-versa; and (iii) the term “including” means
“including without
limitation”. All references to laws in this Agreement will
include any applicable amendments thereunder. All references to $ or
dollar amounts will be to lawful currency of the United States. To
the extent the term “day” or “days” is used, it
will mean calendar days (unless referred to as a “business
day”).
(b) No
provision of this Agreement shall be interpreted in favor of, or against, any of
the parties hereto by reason of the extent to which any such party or its
counsel participated in the drafting thereof or by reason of the extent to which
any such provision is inconsistent with any prior draft hereof or
thereof.
[Signatures
on the Following Page]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
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SKYTERRA
COMMUNICATIONS, INC.
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By:
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/s/ Alexander
H. Good |
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Name:Alexander
H. Good
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Title:
Chairman, CEO & President
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HARBINGER
CO-INVESTMENT FUND, L.P.
By:
Harbinger Co-Investment GP, LLC, as general partner
By:
HMC-New York, Inc., as managing member
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By:
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/s/ William R. Lucas, Jr. |
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Name:
William R. Lucas, Jr.
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Title:
Executive Vice President
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[Signature
Page to Stock Purchase Agreement]