EXHIBIT 10.6
ORBCOMM INC.
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Second Amended and Restated Registration Rights Agreement (this
"Agreement") is dated as of December 30, 2005, amends the ORBCOMM Inc. Amended
and Restated Registration Rights Agreement dated as of November 18, 2005 which
amended the ORBCOMM Inc. Registration Rights Agreement, dated as of February 17,
2004, as amended (together with the original Amended and Restated Registration
Rights Agreement, the "Existing Agreement"), by and among ORBCOMM Inc., a
Delaware corporation (the "Company"), and the parties signatories thereto.
RECITALS
WHEREAS, the Company has authorized the issuance of Series B Preferred
Stock and the necessary parties to the Existing Agreement desire to amend the
Existing Agreement and have agreed to amend the Existing Agreement;
Accordingly, the parties agree as follows:
SECTION 1. Definitions; Rules of Interpretation. (a) When used in this
Agreement:
"Affiliate" means, when used with respect to a specified Person, a
limited or general partner of such Person or another Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by or
is under common control with the Person specified, where "control" means
possession, directly or indirectly, of power to direct or cause the direction of
management or policies of the specified Person (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise).
"Common Stock" means the common stock of the Company, $0.001 par value
per share, and any security into which such Common Stock is converted.
"Common Stock Equivalents" means all Common Stock outstanding,
together with all shares of Common Stock issuable upon conversion of the
Preferred Stock or exercise of any stock option, warrant, convertible note or
other security or right of any kind convertible into or exchangeable for Common
Stock.
"Common Stock Holders" means the holders of the Common Stock listed on
Schedule I hereto with respect to shares of Common Stock held by such Holders as
of the date hereof, and shall also include the beneficiaries of the Liquidating
Trust of ORBCOMM Global L.P. (the "Trust"), formerly a Delaware limited
partnership, and the members of ORBCOMM Holdings LLC, a Delaware limited
liability company, upon distribution of the Common Stock by the Trust to its
beneficiaries or by ORBCOMM Holdings LLC to its members.
"Demanding Holders" means the holders of Registrable Securities
representing (a) at least two thirds (2/3rds) of the Registrable Securities
outstanding as of the date of a demand in the case of the Company's initial
public offering or (b)(i) at least 35% of the Registrable
1
Securities outstanding as of the date of a demand or (ii) the Majority of Series
B Preferred Stock in all other cases; provided that Holders with Section 144
Rights shall not be counted in determining the foregoing percentages (but shall
have the right to have their Registrable Securities included in any Demand
Registration).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"Form S-3" means such form under the Securities Act as in effect on
the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC.
"Governmental Authority" means any government, court, administrative
agency or commission or other governmental agency, authority or instrumentality,
domestic or foreign, of competent jurisdiction.
"Holder" or "Holders" shall mean holders of the Company's securities
party to this Agreement.
"Holder with Section 144 Rights" means any Holder whose entire
holdings of Registrable Securities are then eligible for resale without
registration and without being limited by any volume or time limitations under
Rule 144 under the Securities Act within any 90 day period, as such rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"Majority Of Series B Preferred Stock" shall have the meaning ascribed
to it in the Company's Third Amended and Restated Certificate of Incorporation,
dated December 30, 2005.
"New Securities" means any authorized but unissued shares, and any
treasury shares, of capital stock of the Company and all rights, options or
warrants to purchase capital stock, and securities of any type whatsoever that
are, or may become, convertible into capital stock; provided, however, that the
term "New Securities" does not include: (i) equity securities or convertible
debt securities issued pursuant to the acquisition of another corporation or
entity by the Company by merger, purchase of all or substantially all of the
assets or other reorganization or any joint ventures or strategic partnerships
approved by the Board of Directors of the Company, (ii) equity securities or
convertible debt securities issued to vendors or financial institutions as
consideration for or in connection with any contracts or credit facilities
entered into by the Company and approved by the Board of Directors of the
Company, (iii) equity securities or convertible debt securities issued pursuant
to a public offering of the Company's Common Stock registered under the
Securities Act, (iv) equity securities issued in connection with any stock
split, stock dividend or reclassification of Common Stock, Series A Stock or
Series B Stock distributable on a pro rata basis to all holders of such class of
capital stock, (v) equity securities issued or sold pursuant to any employee
stock option plan, directors arrangement or employment or consulting agreement
approved by the Board of Directors of the Company, (vi) the issuance of Series B
Stock (whether at an initial closing or any additional closing) pursuant to the
Purchase Agreement, (vii) the issuance of the Company's Common Stock upon
conversion of the Series A Stock or Series B Stock, (viii) the issuance of
Series A
2
Stock pursuant to the Satcom Contribution Agreement or the Sistron Contribution
Agreement, and the issuance of the Company's Common Stock upon conversion
thereof, or (ix) any other issuance, together with any related issuances,
involving not more than one percent (1%) of the Stock then outstanding to any
Person not then an Affiliate of the Company if approved by the Board of
Directors of the Company.
"PCG Entities" means collectively PCG Satellite Investments, LLC,
CALPERS PCG Corporate Partners, LLC and any Affiliate(s) of any of the
foregoing.
"Person" means any individual, firm, corporation, partnership, limited
liability company, trust, joint venture, Governmental Authority or other entity,
and shall include any successor (by merger or otherwise) of such entity.
"Public Sale" means any sale of Registrable Securities to the public
pursuant to a public offering registered under the Securities Act or to the
public through a broker or market-maker pursuant to the provisions of Rule 144
(or any successor rule) adopted under the Securities Act.
"Purchase Agreement" means the Convertible Note and Stock Purchase
Agreement dated as of December 30, 2005 between, among others, the Company and
PCG Satellite Investments, LLC and MH Investors Satellite LLC.
"register," "registered" and "registration" refers to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
"Registrable Securities" means (i) any Common Stock, (ii) any Common
Stock issued upon the conversion of the Series A Stock or Series B Stock, (iii)
any Common Stock issued upon conversion of the Warrants and (iv) any Common
Stock issued in connection with any stock dividend with respect to the Series A
Stock or Series B Stock, in each case, held at any time by the Holders; provided
that Registrable Securities shall not include Common Stock or other securities
that have been sold in a Public Sale or held by a Holder whose entire holdings
of Registrable Securities are then eligible for resale without registration and
without regard to volume or time limitations under Rule 144 under the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC. For purposes of this Agreement, the
number of Registrable Securities outstanding from time to time shall be
determined on an as-converted to Common Stock basis.
"SEC" means the Securities and Exchange Commission.
"Series A Stock" means the Series A Convertible Redeemable Preferred
Stock of the Company.
"Series A Holders" means the holders of the Series A Stock listed on
Schedule I hereto with respect to the Series A Stock or Common Stock issued upon
conversion of the Series A Stock held by such Holder.
3
"Series B Holders" means the holders of the Series B Stock listed on
Schedule I hereto with respect to the Series B Stock or Common Stock issued upon
conversion of the Series B Stock held by such Holder.
"Series B Stock" means the Series B Convertible Redeemable Preferred
Stock of the Company.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Stock" means, collectively, the Common Stock, the Series A Stock and
the Series B Stock.
"Warrants" means the warrants to purchase Common Stock of the Company
owned by a Holder as of the date hereof.
(b) Headings and Rules of Interpretation. Descriptive headings are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Agreement. Except as otherwise expressly provided in this
Agreement, the following rules of interpretation apply to this Agreement: (i)
the singular includes the plural and the plural includes the singular; (ii) "or"
and "any" are not exclusive and "include" and "including" are not limiting;
(iii) a reference to any agreement or other contract includes permitted
supplements and amendments; (iv) a reference to a law includes any amendment or
modification to such law and any rules or regulations issued thereunder; (v) a
reference to a Person includes its permitted successors and assigns; and (vi) a
reference in this Agreement to an Article, Section, Annex, Exhibit or Schedule
is to the Article, Section, Annex, Exhibit or Schedule of this Agreement.
SECTION 2. Demand Registrations. (a) Exercise of Rights. At any time
after the first to occur of eighteen months from the date of this Agreement or
six months after an initial public offering of the Company's Common Stock, upon
the written demand of the Demanding Holders, or after the fifth anniversary of
this Agreement, upon the written demand of the Majority of Series B Preferred
Stock, the Company shall use its best efforts to effect, as expeditiously as
possible, the registration (a "Demand Registration") under the Securities Act of
(i) all Registrable Securities held by such Demanding Holders which are
requested to be registered in the initial written demand and (ii) any additional
Registrable Securities requested to be registered by any Holders who elect to
include Registrable Securities in such Demand Registration in a written notice
or notices given within five business days of the date the Demand Registration
Notice (as defined below) is given by the Company (together with the Registrable
Securities described in clause (i), the "Included Securities"). Promptly (but in
no event later than five business days) after the receipt by the Company of any
written demand pursuant to clause (i) of the immediately preceding sentence, the
Company will give written notice of such demand to all the Holders (the "Demand
Registration Notice"). The Company shall (x) cause to be filed as soon as
practicable and in no event later than one hundred twenty (120) days after
delivery to the Company of the Demand Registration Notice, a registration
statement covering such Registrable Securities, which the Company has been so
requested to register by the Demanding Holders, (y) effect the registration
under the Securities Act of the Included Securities as expeditiously as
4
possible and use its best efforts to have such registration become and remain
effective as provided in Section 4 hereof, and (z) refrain from filing any other
registration statement, other than pursuant to a registration statement on Form
S-4 or S-8 (or similar or successor forms) with respect to any other securities
of the Company until such date which is sixty (60) days following effectiveness
of the registration statement filed in response to the Demand Registration
Notice. Notwithstanding the foregoing, the Company shall have the right to delay
any Demand Registration for a single period of not more than 90 days after the
date of any request to register the Registrable Securities pursuant to the
Demand Registration, if, at the time of such request, the Company is preparing,
or within thirty days thereafter engages an underwriter, and commences in good
faith to prepare, a Registration Statement for a public offering (other than a
registration relating solely to employee benefit plans) which is in fact filed
and becomes effective within 90 days after the date the Demanding Holders
provided the written registration request, or is engaged in any material
acquisition or divestiture or other business transaction with a third party
which the Board of Directors of the Company reasonably determines in good faith
would be adversely affected by the Demand Registration to the material detriment
of the Company. The Company shall not exercise the delay right provided in the
immediately preceding sentence more than twice in any 12-month period. The
Company shall select the underwriters for a Demand Registration that is to be an
underwritten offering, and the managing underwriter shall be one or more
reputable nationally recognized investment banks reasonably acceptable to the
Demanding Holders. Each Holder of Included Securities shall be permitted to
withdraw all or any part of the Included Securities of such holder from any
Demand Registration at any time prior to the effective date of such Demand
Registration; provided, that such Demand Registration shall count as a Demand
Registration unless the Holders of the Included Securities pay all expenses
referred to in Section 9(a) in connection with the withdrawn registration;
provided, further, that if at the time of such withdrawal, the Holders of the
Included Securities have learned of a material adverse change in the conditions,
business or prospects of the Company from that known to the Holders at the time
of their request and have withdrawn the request with reasonable promptness
following disclosure by the Company of such material adverse change, then the
Holders shall not be required to pay any of such expenses and shall retain their
rights pursuant to this Section 2(a).
(b) Limitations. Notwithstanding Section 2(a), the Company shall be
required to effect no more than two Demand Registrations; provided, that the
Holders shall be entitled to additional Demand Registrations if such additional
Demand Registrations would be eligible for registration on Form S-3 after the
Company qualifies for Form S-3 (any Demand Registration eligible for
registration on Form S-3 shall not be counted toward the two Demand Registration
limit set forth in this sentence); and provided, further, that the Company shall
not be required to effect more than one such Demand Registrations on Form S-3 in
any twelve month period and that the Company shall not be required to effect any
such Demand Registration on Form S-3 if any such Demand Registration on Form S-3
shall result in an offering price to the public of less than $20 million.
Notwithstanding the foregoing, a Demand Registration shall not be counted toward
the two Demand Registration limit set forth in the first sentence of this
Section 2(b) if, as a result of an exercise of the underwriter's cut-back
provisions, less than 50% of the total number of Included Securities that the
Series A Holders and Series B Holders have collectively requested to be included
in a Demand Registration are so included. Notwithstanding the foregoing,
Sagamore Hill Hub Fund Ltd. and its affiliates (collectively, "Sagamore") and
the PCG Entities
5
shall have an independent right to additional Demand Registrations that would be
eligible for registration on Form S-3 after the Company qualifies for Form S-3;
provided, that the Company shall not be required to effect more than one such
Demand Registration requested by Sagamore or the PCG Entities, as the case may
be, on Form S-3 in any twelve month period and that Sagamore or the PCG
Entities, as the case may be, will pay the expenses of such registration if such
registration shall result in an aggregate offering price to the public of less
than $1 million. Any registration requested by Sagamore or the PCG Entities
pursuant to the immediately preceding sentence shall not have the effect of
limiting the number of or timing of any Demand Registration requested pursuant
to the first sentence of this Section 2(b).
(c) Additional Requirements. Any registration initiated pursuant to
Section 2(a) shall not count as a Demand Registration (i) unless and until a
registration statement with respect to all Registrable Securities to be sold in
connection therewith shall have become effective and remained effective for a
period of 180 days, or, if a shorter time until all of the Included Securities
not withdrawn by the Holders from the registration shall have been sold (unless
all Included Securities are withdrawn by the Holders thereof prior to the
effectiveness and the Company has performed its obligations under this Agreement
in all material respects, in which case such registration will count as a Demand
Registration unless the Holders of the Included Securities pay all expenses
referred to in Section 9(a) in connection with the withdrawn registration,
subject to the last clause of Section 2(a)), (ii) if after it has become
effective such registration is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other Governmental Authority for
any reason not attributable to the holders of Included Securities, such that no
sales are possible thereunder for a period of ten consecutive days or more, or
(iii) if the conditions to closing specified in the underwriting agreement, if
any, entered into in connection with such registration are not satisfied or
waived, other than by reason of a failure on the part of the holders of Included
Securities.
(d) Cutbacks. If the managing underwriters of any Demand Registration
advise the Company in writing that in their good faith judgment the number of
securities to be included in the Demand Registration exceeds the number that can
be sold in the offering in light of marketing factors or because the sale of a
greater number would adversely affect the price of the Registrable Securities to
be sold in such Demand Registration, then the total number of securities the
underwriters advise can be included in such Demand Registration shall be
allocated (i) first, to each Holder of Included Securities who is a Series B
Holder in proportion to such holder's ownership of the total number of Included
Securities held by Series B Holders (in their capacity as Series B Holders);
(ii) second, to each Holder of Included Securities who is a Series A Holder in
proportion to such holder's ownership of the total number of Included Securities
held by Series A Holders (in their capacity as Series A Holders); (iii) third to
each Holder of Included Securities who is a Common Stock Holder in proportion to
such holder's ownership of the total number of Included Securities held by
Common Stock Holders (in their capacity as Common Stock Holders); and (iv)
fourth, among any securities of the Company the Company proposes to issue and
sell for its own account or register for sale by any Person (other than a holder
of Included Securities) in such Demand Registration in accordance with any
contractual provisions binding on the Company and/or the holders of such
securities or, if no contractual provisions apply, as the Company may determine.
6
(e) Termination. This Section 2 shall terminate with respect to the
Stock or other securities that have been sold in a Public Sale
SECTION 3. Piggyback Registrations. (a) Exercise of Rights. At any
time should the Company propose to register any of its securities under the
Securities Act for sale for its own account (other than in connection with a
Demand Registration, or the registration of securities issuable pursuant to an
employee stock option, stock purchase or similar plan), the Company shall give
the Holders notice of such proposed registration (a "Piggyback Registration") at
least 30 days prior to the filing of a registration statement in connection
therewith. At the written request of any Holder delivered to the Company within
15 days after the receipt of the notice from the Company, which request shall
state the number of Registrable Securities that such Holder wishes to sell or
distribute publicly in the Piggyback Registration, the Company shall effect the
registration under the Securities Act of the Registrable Securities requested to
be included in the Piggyback Registration (the "Piggyback Securities") as
expeditiously as possible and use its best efforts to have such registration
become and remain effective as provided in Section 4 hereof. Each Holder of
Piggyback Securities shall be permitted to withdraw all or any part of the
Piggyback Securities of such holder from any Piggyback Registration at any time
prior to the effective date of such Piggyback Registration; provided, in the
case of an underwritten offering, that such holder is permitted to do so by the
managing underwriters or pursuant to any agreement with such managing
underwriters.
(b) Additional Requirements. No Holder shall be entitled to include
any securities in any underwritten Piggyback Registration unless such Holder
shall have agreed in writing to sell such securities on the same terms and
conditions as shall apply to the securities (other than Piggyback Securities) to
be included in such Piggyback Registration. If a Piggyback Registration is to
cover, in whole or in part, any underwritten distribution, then the Company
shall use its best efforts to cause all Piggyback Securities to be included in
the underwriting on the same terms and conditions as the securities (other than
Piggyback Securities) being sold through the underwriters.
(c) Cutbacks. If the managing underwriters of any Piggyback
Registration advise the Company in writing that in their good faith judgment the
number of securities to be included in the Piggyback Registration exceeds the
number that can be sold in the offering in light of marketing factors or because
the sale of a greater number would adversely affect the price of the Registrable
Securities to be sold in such Piggyback Registration, then the total number of
securities the underwriters advise can be included in such Piggyback
Registration shall be allocated (i) first, to the securities of the Company the
Company proposes to issue and sell for its own account; (ii) second, to each
holder of Piggyback Securities who is a Series B Holder in proportion to such
Holder's ownership of the total number of Piggyback Securities held by Series B
Holders (in their capacity as Series B Holders) ; (iii) third to each holder of
Piggyback Securities who is a Series A Holder in proportion to such Holder's
ownership of the total number of Piggyback Securities held by Series A Holders
(in their capacity as Series A Holders); (iv) fourth to each holder of Piggyback
Securities who is a Common Stock Holder in proportion to such holder's ownership
of the total number of Piggyback Securities held by Common Stock Holders (in
their capacity as Common Stock Holders); and (v) fifth, among any securities of
the Company the Company proposes to register for sale by any Person (other than
a holder of
7
Piggyback Securities) in such Piggyback Registration in accordance with any
contractual provisions binding on the Company and/or the holders of such
securities or, if no contractual provisions apply, as the Company may determine.
Notwithstanding the foregoing, unless such Piggyback Registration is the initial
public offering of the Company's Common Stock, the number of Piggyback
Securities permitted to be included in such Piggyback Registration shall be at
least 50% of the number of shares of Common Stock included in such registration.
SECTION 4. Registration Covenants of the Company. If any Registrable
Securities of any Holder are to be registered pursuant to Section 2 or Section
3, the Company covenants and agrees that it shall use its best efforts to effect
the registration and cooperate in the sale of the Registrable Securities to be
registered and shall as expeditiously as possible:
(a) (i) prepare and file with the SEC a registration statement with
respect to the Registrable Securities (including all amendments and supplements
thereto, a "Registration Statement") and (ii) use its best efforts to cause the
Registration Statement to become effective;
(b) prior to the filing described above in paragraph (a), furnish to
each Holder participating in such offering copies of the Registration Statement
and any amendments or supplements thereto and any prospectus forming a part
thereof, which documents shall be subject to the review of counsel representing
the Holders;
(c) notify each such Holder, promptly after receiving notice thereof,
of the time when the Registration Statement becomes effective or when any
amendment or supplement or any prospectus forming a part of the Registration
Statement has been filed;
(d) notify each Holder participating in such offering promptly of any
request by the SEC for the amending or supplementing of the Registration
Statement or prospectus or for additional information;
(e) (i) advise each Holder participating in such offering after the
Company shall receive notice or otherwise obtain knowledge of the issuance of
any order by the SEC suspending the effectiveness of the Registration Statement
or any amendment thereto or of the initiation or threatening of any proceeding
for that purpose and (ii) promptly use its reasonable best efforts to prevent
the issuance of any stop order or to obtain its withdrawal promptly if a stop
order should be issued;
(f) (i) prepare and file with the SEC such amendments and supplements
to the Registration Statement and the prospectus forming a part thereof as may
be necessary to keep the Registration Statement effective for a period of time
necessary to permit each Holder participating in such offering to dispose of all
its Registrable Securities and (ii) comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities covered by the
Registration Statement during such period in accordance with the intended
methods of disposition by each such Holder set forth in the Registration
Statement;
(g) furnish to each Holder participating in such offering such number
of copies of the Registration Statement, each amendment and supplement thereto,
the prospectus included in the Registration Statement (including such
preliminary prospectus) and such other documents
8
such Holder may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Holder;
(h) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
determined by the underwriters after consultation with the Company and the
Holders participating in the offering and do any and all other acts and things
which may be reasonably necessary or advisable to enable each Holder to
consummate the disposition in such jurisdictions of the Registrable Securities
(provided, that the Company shall not be required to (i) qualify generally to do
business in any jurisdiction in which it would not otherwise be required to
qualify but for this paragraph (h), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(i) notify each Holder of any Registrable Securities covered by such
Registration Statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, promptly upon the Company's
becoming aware that the prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and within 10 days of such notice, file a supplement to such
prospectus with the SEC (unless the Company is exercising the Black Out Right as
set forth below, in which case such filing shall take place within 50 days of
such notice);
(j) If the Board of Directors of the Company in its reasonable
judgment believes it may possess material non-public information the disclosure
of which in its reasonable judgment would have a material adverse effect on the
Company and its subsidiaries taken as a whole, then no later than 50 days after
first receipt of a Holder's request (a "Black Out Right"), the Company shall
prepare and furnish to such Holders a reasonable number of copies of an amended
or supplemental prospectus as may be necessary so that, as thereafter delivered
to the sellers of such Registrable Securities, such prospectus shall not include
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances then existing; provided, however, that the
Company, during any 12-month period, may not impose more than two Black Out
Rights and the period of such Black Out Rights shall not exceed 50 days in the
aggregate;
(k) if the Registrable Securities are not then listed on a securities
exchange and if the NASD is reasonably likely to permit the reporting of the
Registrable Securities on the Nasdaq National Market (the "NNM"), use its best
efforts, consistent with the then current corporate structure of the Company, to
facilitate the reporting of transactions in the Registrable Securities on the
NNM;
(l) provide a transfer agent and registrar, which may be a single
entity, for all the Registrable Securities and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of the
Registration Statement;
9
(m) enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other action, if any, as the
Holders participating in such offering or the underwriters shall reasonably
request in order to expedite or facilitate the disposition of the Registrable
Securities pursuant to this Agreement;
(n) (i) make available for inspection by the Holders participating in
such offering, any underwriter participating in any distribution pursuant to the
Registration Statement and any attorney, accountant or other agent retained by
such Holders or any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and (ii) cause the
Company's officers, directors and employees to supply all relevant information
reasonably requested by such Holders or any such underwriter, attorney,
accountant or agent in connection with the Registration Statement;
(o) furnish to each Holder participating in the offering a signed
counterpart, addressed to the Holders (or to the underwriters, in the case of
any underwritten offering), of (i) an opinion of counsel for the Company, dated
the effective date of the registration statement, and (ii) a "comfort" letter
signed by the independent public accountants who have certified the Company's
financial statements included in the Registration Statement, covering
substantially the same matters with respect to the Registration Statement (and
the prospectus included therein) and (in the case of the "comfort" letter), as
are customarily covered (at the time of such registration) in opinions of
issuer's counsel and in "comfort" letters, respectively, delivered to the
underwriters in underwritten public offerings of securities;
(p) cause senior representatives of the Company to participate in any
"road show" or "road shows" reasonably requested by any underwriter of an
underwritten or "best efforts" offering of any Registrable Securities;
(q) notify each Holder of any Registrable Securities covered by such
Registration Statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, promptly upon the Company's
becoming aware that the prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such Holder, prepare and furnish to such
Holder a reasonable number of copies of an amended or supplemental prospectus as
may be necessary so that, as thereafter delivered to the sellers of such
Registrable Securities, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing; and
(r) use its best efforts to comply with all applicable rules and
regulations of the SEC.
SECTION 5. Cooperation by the Holders. (a) Lock-Up Agreements. Each
Holder, if and for the period of time the managing underwriters so request in
connection with any underwritten registration of Registrable Securities, will
not, to the extent requested by such underwriters during the time period
specified, effect any Public Sale or other distribution of any
10
equity securities of the Company without the prior written consent of such
underwriters; provided, however, that (i) such market stand-off time period
shall not extend beyond 180 days following the date of the final prospectus and
30 days prior to the date of the final prospectus, (ii) any such market
stand-off or lock-up agreements contains reasonable and customary exceptions,
(iii) each officer and director of the Company and each holder of at least 1% of
the outstanding Common Stock (on a fully-diluted basis) shall enter into similar
lock-up agreements or otherwise be bound by similar provisions, (iv) such
restrictions shall not apply to equity securities purchased in the initial
public offering of the Company's Common Stock or in the open market following
such offering, and (v) any Holder may transfer any such shares to any of its
Affiliates, provided such Affiliates agree to comparable restrictions on
transfer of such shares. As a condition to the obligation of the Holders under
this Section 5(a), the Company agrees to use reasonable best efforts to cause
the "stand off" obligation of the Holders under this Section 5(a), and any
agreement entered into by the Holders as a result of their obligations under
this Section 5(a), to allow for periodic early releases of portions of the
securities subject to such Holders' "stand off" obligations, which may be
conditioned upon the trading price of the Common Stock and shall in any event be
subject to approval of the managing underwriters; provided however, that such
Holders individually own less than 0.50% of the Common Stock Equivalents (and
not to exceed 5.0% of the Common Stock Equivalents in the aggregate) and that
such Holders are not executive officers of the Company (unless, in each case,
the Majority of the Series B Preferred Stock agree otherwise).
(b) Cooperation. Each prospective seller of Registrable Securities
will furnish to the Company in writing such information as the Company may
reasonably require and which is customary in such transactions from such seller,
and otherwise reasonably cooperate with the Company in connection with any
registration statement with respect to such Registrable Securities. The failure
of any prospective seller of Registrable Securities to furnish any information
or documents in accordance with any provision contained in this Agreement shall
not affect the obligations of the Company under this Agreement to any remaining
sellers who furnish such information and documents unless in the reasonable
opinion of counsel to the Company or the underwriters such failure impairs or
may impair the viability of the offering or the legality of the registration
statement or the underlying offering.
(c) Suspension by Company. Holders of Registrable Securities included
in any registration statement will not (until further notice) effect sales of
Registrable Securities included in any registration statement after receipt of
written notice from the Company to suspend sales to permit the Company to
correct or update such registration statement or prospectus (which obligation to
correct or update the Company will satisfy promptly); but the obligations of the
Company with respect to maintaining any registration statement current and
effective shall be extended by a period of days equal to the period such
suspension is in effect.
SECTION 6. Additional Covenants of the Company. (a) Rule 144
Information. After the Company becomes subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, but only for so long as the Company is
so subject, the Company shall take all actions necessary to enable the Holders
to sell the Registrable Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation
11
hereafter adopted by the SEC, including filing on a timely basis all reports
required to be filed by the Exchange Act. Upon the request of any Holder, the
Company shall deliver to such Holder a written statement as to whether it has
complied with such requirements.
(b) Restrictions on Public Sale by the Company. The Company agrees,
unless it obtains the consent of the managing underwriter(s) of any offering of
Registrable Securities pursuant to this Agreement, not to effect any Public Sale
or distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such equity securities, during the period
commencing on the 30th day prior to, and ending on the 180th day following, the
effective date of any underwritten Demand Registration or Piggyback
Registration, except in connection with any such underwritten registration, or
pursuant to any registration statements on Form S-8 or the then equivalent form.
(c) Limitations on Subsequent Registration Rights. The Company shall
not, without the prior written consent of the Majority Of Series B Preferred
Stock, enter into any agreement (other than this Agreement) with any holder or
prospective holder of any securities of the Company which grants such holder or
prospective holder rights to include securities of the Company in any
registration statement, unless (i) such right to include securities in a
registration initiated by the Company or by Demanding Holders are not more
favorable than the rights granted to Common Stock Holders under Section 2 and 3
hereof, and (ii) no rights are granted to initiate a registration, other than a
registration pursuant to a registration statement on Form S-3 in which Holders
are entitled to include Registrable Securities on a pro rata basis with such
holders based on the number of shares of Common Stock (on an as-converted basis)
owned by such holders.
SECTION 7. Preemptive Rights. (a) The Company hereby grants to each
Holder the right to purchase its Pro Rata Share of New Securities which the
Company may, from time to time, propose to sell and issue. A Holder's Pro Rata
Share, for purposes of this purchase right, shall mean the total number of New
Securities to be issued times a fraction the numerator of which is the number of
Common Stock Equivalents owned by such Holder immediately prior to the issuance
of New Securities and the denominator of which is the total number Common Stock
Equivalents outstanding immediately prior to the issuance of New Securities. The
rights preemptive rights granted to each Holder pursuant to this Section 7 shall
terminate upon the consummation of a public offering of the Company's Common
Stock registered under th Securities Act.
(b) In the event the Company proposes to undertake an issuance of New
Securities, it shall give each Holder written notice of its intention (each a
"Notice of Sale"), describing the type of New Securities, the maximum number of
New Securities to be issued, and the price and the general terms upon which the
Company proposes to issue the same. Each Holder shall have twenty (20) days
after such Notice of Sale is mailed or delivered to agree to purchase such
Holder's pro rata share of such New Securities for the price and upon the terms
specified in the notice by giving written notice to the Company and stating
therein the quantity of New Securities to be purchased.
12
(c) The preemptive rights set forth in this Section 7 may be waived,
before or after a Notice of Sale is delivered, (i) (A) as to the Common Stock,
by vote or written consent of holders of a majority of the Common Stock having
preemptive rights under this Agreement, voting as a separate class, (B) as to
the Series B Stock, by vote or written consent of holders of at least two-thirds
of the Series B Preferred Stock having preemptive rights under this Agreement,
voting as a separate class; and (C) as to the Series A Stock, by vote or written
consent of the holders of a majority of the Series A Stock having preemptive
rights under this Agreement, voting as a separate class, or (ii) by affirmative
vote of the board of directors of the Company in which a majority of the
directors designated by each of the holders of Common Stock and Series A Stock,
and all of the directors designated by the Series B Stockholders, agree.
(d) Notwithstanding the foregoing, the provisions of this Section 7
shall only be exercisable by Holders who are accredited investors (as such term
is defined under the Securities Act).
(e) In the event the Holders fail to exercise fully the purchase right
within such twenty (20)-day period, the Company shall have one hundred twenty
(120) days thereafter to sell or enter into an agreement (pursuant to which the
sale of New Securities covered thereby shall be closed, if at all, within one
hundred twenty (120) days from the date of such agreement) to sell the New
Securities respecting which the Holders' purchase right set forth in this
Section 7 was not exercised, at a price and upon terms no more favorable to the
purchasers thereof than specified in the Notice of Sale. In the event the
Company has not sold within such 120-day period or entered into an agreement to
sell the New Securities in accordance with the foregoing within one hundred
twenty (120) days from the date of such agreement, the Company shall not
thereafter issue or sell any New Securities, without first again offering such
securities to the qualifying Holders in the manner provided in this Section 7.
(f) The issuance of the New Securities to the Holders pursuant to this
Section 7 above shall be made at the registered office of the Company upon the
latter of (i) the closing of the sale any New Securities to new investors in the
Company pursuant to Section 7(e) hereof or (ii) a mutually satisfactory date not
later than thirty (30) days after the expiration of the applicable acceptance
period provided for in Section 7(b) hereof. Delivery of a certificate for the
New Securities shall be made against payment of the subscription price therefor.
SECTION 8. Indemnification. (a) Indemnification by the Company. To the
fullest extent permitted by law, in the event of any registration of any
Registrable Securities pursuant to the provisions of this Agreement, the Company
shall indemnify, defend and hold harmless each selling Holder, each other Person
who participates as an underwriter in the offering or sale of such Registrable
Securities, each other Person, if any, who controls such Holder or any such
underwriter within meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act and their respective directors, officers, agents, partners,
employees, stockholders, members and representatives (collectively,
"Indemnitees") from and against any losses, claims, damages or liabilities,
joint or several, to which such Indemnitee may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact
13
contained in any registration statement under which the Registrable Securities
were registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made not misleading,
and the Company shall reimburse each such Indemnitee for any legal or any other
expenses reasonably incurred by it in connection with investigating or defending
any such loss, claim, liability, action or proceeding; provided, that the
Company shall not be liable in any such case to any Indemnitee to the extent
that any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement in reliance upon and in conformity with
written information about such Indemnitee furnished to the Company in a writing
duly provided by or on behalf of such Indemnitee specifically stating that it is
for use in the preparation thereof; and provided further, that the Company shall
not be liable to any Person who participates as an underwriter in the offering
or sale of Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereon) or expense arises out of such Person's failure to send or give
a copy of the final prospectus, as the same may be then supplemented or amended,
to the Person asserting a claim based upon an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or, omission was corrected in such final prospectus. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of any Indemnitee and shall survive the transfer of the Registrable
Securities of each Indemnitee.
(b) Indemnification by Holders. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed pursuant to this Agreement, that the Company shall have received an
undertaking reasonably satisfactory to it from each Holder offering Registrable
Securities under such registration statement, severally and not jointly, to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 8(a)) the Company, each director of the Company, each officer
of the Company signing such registration statement and each other Person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act with respect to (i) any untrue statement or alleged untrue statement in or
(ii) omission or alleged omission from such registration statement, any
preliminary prospectus, final prospectus or summary prospectus contained therein
or any amendment or supplement thereto, if such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information about such Holder as a stockholder of the
Company furnished to the Company in a writing duly executed by such Holder
specifically stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling Person and shall survive the transfer by the
seller of the securities of the Company being registered. Notwithstanding the
foregoing, each Holder's liability under this Section 8(b)
14
with respect to any particular registration shall be limited to an amount equal
to the net proceeds received by such Holder from the Registrable Securities sold
by such Holder in such registration.
(c) Contribution. If the indemnification provided for in Section 8(a)
or Section 8(b) above is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified parties on the other in connection with the
statements or omissions or violations which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and of the indemnified parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the indemnifying party or by the
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 8(c) were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities or actions in respect thereof referred
to in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentations (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligation of any Holder obliged to make contribution
pursuant to this Section 8(c) shall be several and not joint, and no such Holder
shall be obliged to make contribution in excess of an amount equal to the net
proceeds received by such Holder from the Registrable Securities sold by such
Holder in such registration.
(d) Indemnification Procedures. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in Section 8(a) or 8(b), such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party,
give notice to the latter of the commencement of such action; provided, that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under Section 8(a) or 8(b),
except to the extent that the indemnifying party is actually and materially
prejudiced by such failure to give notice. In case any such action is brought
against any indemnified party, unless in the opinion of such indemnified party's
counsel a conflict of interest between such indemnified and indemnifying parties
or other indemnified party may exist or the indemnified party may have defenses
not available to the indemnifying party or any other indemnified party in
respect of such claim, the indemnifying party shall be entitled to participate
in and to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after notice from the
15
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party for any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall be liable for any settlement of any
action or proceeding affected without its written consent. No indemnifying party
shall, without the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation or which
involves relief other than the payment of money damages.
(e) Payments. The indemnification required by this Section 8 shall be
made by periodic payments of the amount thereof during the course of
investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
SECTION 9. Miscellaneous. (a) Expenses. Subject to the last sentence
of Section 2(a), the Company shall pay all expenses of the Holders in connection
with any Demand Registration or Piggyback Registration, including without
limitation all registration, filing and NASD fees, all fees and expenses of
complying with securities or blue sky laws, all word processing, duplicating and
printing expenses, all messenger and delivery expenses, all fees and
disbursements of one counsel for the Holders and the Company and of its
independent public accountants (including the expenses of comfort letters
required by or incident to such performance and compliance) and any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, but excluding any underwriting discounts and commissions, if any,
relating to the Registrable Securities being sold by a Holder, which shall be
paid by such Holder.
(b) Effective Date. This Agreement shall only come into effect upon
the Intial Closing (as defined in the Purchase Agreement).
(c) Specific Performance. The parties acknowledge that the Holders'
damages at law would be an inadequate remedy for the breach or non-performance
of any provision of this Agreement by the Company, and agree in the event of
such breach that the aggrieved party may obtain temporary and permanent
injunctive relief restraining the Company from such breach or compelling
specific performance of such provision, and, to the extent permissible under
applicable statutes and rules of procedure, a temporary injunction may be
granted immediately upon the commencement of any such suit without proof of
actual harm. Nothing contained in this Agreement shall be construed as
prohibiting any party from pursuing other remedies available at law or equity
for such breach or non-performance.
(d) Notices. Notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service
or sent by facsimile as follows:
if to the Holders:
To the address set forth on the relevant counterpart signature
page hereto
16
if to the Company:
ORBCOMM Inc.
2115 Linwood Avenue, Suite 100
Fort Lee, NJ 07924
Attention: Chief Executive Officer and General Counsel
Facsimile: 703-433-6400
with a copy to:
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, NY 10112
Attention: Alejandro R. San Miguel
Facsimile: (212) 541-5369
or to such other address as any party hereto shall have communicated to the
other parties hereto by notice in accordance with this provision. All notices
and other communications given to any party in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt if
delivered by hand or overnight courier service or sent by facsimile in each case
delivered or sent (properly addressed) to such party as provided in this Section
9(c) or in accordance with the latest unrevised direction from such party given
in accordance with this Section 9(c).
(e) Assignment. This Agreement and the rights, interests and
obligations hereunder shall not be assignable or transferable except in
connection with a transfer of a corresponding interest in the Stock or as
otherwise agreed to in writing between the parties.
(f) No Third-Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto and their respective successors and permitted
assigns and nothing herein expressed or implied shall give or be construed to
give to any Person, other than the parties hereto and such successors and
assigns, any legal or equitable rights hereunder, except to the extent otherwise
provided in Article 7.
(g) Waivers and Amendments. No failure or delay of the Holders or the
Company in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Holders and the Company hereunder
are cumulative and are not exclusive of any rights or remedies which the Holders
or the Company would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by the Company therefrom shall in any
event be effective unless the same shall be effected in accordance with this
Section 9(g), and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice or demand on
the Company in any case shall entitle the Company to any other or further notice
or demand in similar or other circumstances. Neither this Agreement nor any
provision hereof may be waived,
17
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Company and the holders of a majority of the Series A Stock
held by the Series A Holders, the Majority Of Series B Preferred Stock and the
holders of a majority of the Common Stock held by the Common Stock Holders;
provided that the demand rightS granted to Sagamore and PCG under Section 2(b)
hereof may not be amended or waived without the prior written consent of
Sagamore or PCG, as appropriate; and provided further, that the thresholds
required to waive the preemptive rights set forth in Section 7 may only be
amended with the consent of the holders necessary to waive preemptive rights
pursuant to Section 7(c).
(h) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof; provided that the
Company and SES are parties to a letter agreement that grants certain additional
preemptive rights to SES. Any previous agreement among the parties with respect
to the subject matter hereof is superseded by this Agreement.
(i) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
(k) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one agreement, and shall become effective
when one or more such counterparts have been signed by each of the parties and
delivered to the other party.
(l) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE
CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.
(m) CONSENT TO JURISDICTION. THE COMPANY HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE
JURISDICTION OF THE STATE COURTS OF NEW YORK STATE SITTING IN THE COUNTY OF NEW
YORK OR ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE
SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
18
CONNECTION WITH THIS AGREEMENT. THE COMPANY MAY NOT MOVE TO (I) TRANSFER ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT TO ANOTHER COURT, (II)
CONSOLIDATE ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT WITH A
SUIT, ACTION OR PROCEEDING IN ANOTHER JURISDICTION OR (III) DISMISS ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT FOR THE PURPOSE OF BRINGING THE
SAME IN ANOTHER JURISDICTION. THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY
SUCH SUIT, ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY
OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. THE COMPANY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT IN ANY NEW YORK COURT SITTING IN THE COUNTY
OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE SOUTHERN DISTRICT OF NEW YORK.
THE COMPANY HEREBY CONSENTS TO THE SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION
OR PROCEEDING BY NOTICE IN THE MANNER SPECIFIED IN SECTION 9(L).
[signature pages follow]
19
IN WITNESS WHEREOF, the parties have duly executed this Second
Amended and Restated Registration Rights Agreement as of the day and year first
above written.
ORBCOMM INC.
By: /s/ Jerome B. Eisenberg
------------------------------------
Name: Jerome B. Eisenberg
Title: Chief Executive Officer
(Signature page to the Second Amended and Restated Registration Rights
Agreement)
(Additional Counterpart Signature Pages to Follow)
20
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: NORTHWOOD CAPITAL PARTNERS LLC
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
Signed by: /s/ Henry T. Wilson
-----------------------------
Name: Henry T. Wilson
Title: Managing Director
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: NORTHWOOD VENTURES LLC
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
Signed by: /s/ Henry T. Wilson
-----------------------------
Name: Henry T. Wilson
Title: Managing Director
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: SK PARTNERS
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
Signed by: /s/ Peter Schiff
-----------------------------
Name:
Title: Gen Partner
---------------------------------
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: Don Franco
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
Signed by: /s/ Don Franco
-----------------------------
Name:
----------------------------------
Title:
---------------------------------
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: ORBCOMM Asset Holding Ltd
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
Signed by: /s/ Don Franco
-----------------------------
Name:
----------------------------------
Title:
---------------------------------
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: Jerome B. Eisenberg
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
Signed by: /s/ Jerome B. Eisenberg
-----------------------------
Name:
----------------------------------
Title:
---------------------------------
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: 346 Hillcrest F & F Partners LLC
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
Signed by: /s/ Jerome B. Eisenberg
-----------------------------
Name:
----------------------------------
Title:
---------------------------------
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: Richard K. Webel Trust
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
Signed by: /s/ Peter G. Schiff
-----------------------------
Name: P.G. Schiff
Title: Trustee
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: Orbcomm Deutschland AG
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
Signed by: /s/ Marco Fuchs
--------------------------
Name:
-------------------------------
Title:
------------------------------
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: OHB Technology AG
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
Signed by: /s/ Marco Fuchs
--------------------------
Name:
-------------------------------
Title:
------------------------------
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: H. STEININGER
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
Signed by: /s/ H. Steininger
--------------------------
Name:
-------------------------------
Title:
------------------------------
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: Ridgewood Satellite LLC
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
Signed by: /s/ Leslie W. Golden
--------------------------
Name: Leslie W. Golden
Title: Managing Director
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: MH INVESTORS ORBCOMM LLC
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
Signed by: /s/ Ronald Gerwig
--------------------------
Name: RONALD GERWIG
Title: ASST TREASURER
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: PC SATELLITE INVESTMENTS, LLC
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
BY: CALPERS/PCG CORPORATE PARTNERS LLC
A DELAWARE LIMITED LIABILITY COMPANY
ITS: MANAGING MEMBER
BY: PCG CORPORATE PARTNERS INVESTMENTS LLC
ITS: MANAGER
BY: PACIFIC CORPORATE GROUP HOLDINGS, LLC
ITS: MANAGING MEMBER
Signed by: /s/ Tim Kelleher
--------------------------
Name: TIM KELLEHER
Title: MANAGING DIRECTOR
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF ORBCOMM INC., DATED AS OF
NOVEMBER 18, 2005, AS AMENDED, BETWEEN ORBCOMM INC. AND CERTAIN OF THE HOLDERS
OF ITS CAPITAL STOCK.
Name of Investor: SES Participations.
(please print)
Notice Address of Investor:
(please complete)
Facsimile:
Signed by: /s/ R. Bednarek
--------------------------
Name:
-------------------------------
Title:
------------------------------
SCHEDULE I
LIST OF SERIES B HOLDERS
INVESTOR
OHB Technology A.G.
Ridgewood Satellite LLC
Northwood Ventures LLC
Northwood Capital Partners LLC
Denis Nayden
Hyung-Jin Song
Hoboken Partners 1 LLC
Mark Sullivan
Estrin New Ventures II LLC
Nakoma Investments LLC
Bert Cohen
Bukfenc Inc.
Mary Higgins Clark
William Vanden Heuvel
Michael Friedman
Steven G. Chrust
Henning Melchers
Albert Nickel
Hans E.W. Hoffmann
Edmund B. Greene
Philip Lodewick
Elizabeth Steele
SK Partners
E. Bulkeley Griswold
William Jaffe
Andre-Michael Schultz
Steven Chrust IRA
Shippan Fund LLC
Mike Sullivan
Christopher Lust
Jerry Kay
Murray Slimowitz IRA
Liza Chrust, Chrust 2001 Business Trust
Eve Chrust, Chrust 2001 Business Trust
Richard K. Webel Trust
Arthur Bahr
E. Bulkeley Griswold IRA
Robert Loud IRA
Marble Arch Group Ltd.
346 Hillcrest F & F Partners LLC
Orbcomm Venture, LLC
John D. Curtis Revocable Trust
Dwaine L. and Cynthia Willet
Investment Partners of Orlando LLP
MH Investors Satellite LLC
PCG Satellite Investments, LLC
23
LIST OF SERIES A HOLDERS
INVESTOR
Arthur S. Bahr
Bukfenc Inc
Steve G. Chrust
Mary Higgins Clark
Patrick A. Clifford
Bert Cohen
John Connelly
Crystal Lake Partners LP
RBC Dain Rauscher Cust.
E. Bulkeley Griswold IRA
1101-7400-6804
E. Anderson Griswold IRA
1101-7400-6796
Cynthia Eisenberg
Jerome B. Eisenberg
Marc Eisenberg
Emmett Hume IRA
Estrin New Ventures LLC
Eve Chrust, 2001 Chrust Business Trust
Don Franco
John and Mary Franco
Joel Friedman
Michael Friedman
Mark and Joan Goldstein
Marilyn H. Gordon
Ronald Gordon and Marilyn H. Gordon, JTWROS
Edmund B. Greene
E. Bulkeley Griswold
James Higby
Hoboken Partners 1 LLC
Hans E. W. Hoffmann
Cara L. Hume
David D. Hume
Emmett Hume
William Jaffe
Douglas K. Jones
Jerry Kay
John Levinson
Liza Chrust, 2001 Chrust Business Trust
Paul Masters IRA
Philip Lodewick
Christopher Lust
Henning Melchers
24
Miller & Wrubel Asset Company
Murray Slimowitz IRA R/O
Nakoma Investments, LLC
Denis Nayden
Albert G. Nickel
Northwood Capital Partners LLC
Northwood Ventures LLC
Oakwood Capital LLC
OHB Technology A.G.
A. Alex Porter
Richard K. Webel Trust
Ridgewood Satellite LLC
Jeffrey C. Riecker
Robert Loud IRA
Sagamore Hill Hub Fund Ltd.
Andre-Michael Schultz
Robert Schultz
SES Global Participations SA
Shippan Fund LLC
SK Partners
Hyung-Jin Song
Walter H. Sonnenfeldt
Elizabeth Steele
Hans Steininger
Steven G. Chrust IRA
Daniel J. Sullivan
Mark Sullivan
Michael Sullivan
William J. Vanden Heuvel
Henry Wilson
LIST OF COMMON STOCK HOLDERS
INVESTOR
Jerome B. Eisenberg
Don Franco
John Franco & Mary Franco, Tenants in Common
Liquidating Trust of ORBCOMM Global L.P.
Beneficiaries of the Liquidating Trust of ORBCOMM Global L.P. (1)
OHB Technology A.G.
Harald D. Berghoefer
James Eagan
Gruenwald Equity Partners GmbH
Hans E. W. Hoffmann
Korea Orbcomm Ltd.
Henning Melchers
25
Miller & Wrubel Asset Company
Northwood Capital Partners LLC
Northwood Ventures LLC
Orbcomm Asia Limited
ORBCOMM Asset Holdings Limited
ORBCOMM Deutschland AG
Kenneth Rind
Andre-Michael Schultz
Hyung-Jin Song
Walter H. Sonnenfeldt
Hans Steininger
Transport International Pool, Inc.
(1) Upon distribution of the Common Stock by the Liquidating Trust of ORBCOMM
Global L.P. to its beneficiaries, such beneficiaries will be deemed to have
been "named" on Schedule I, such that such beneficiaries will constitute
Holders for purposes of this Agreement.
26