EXHIBIT 10.7
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CONVERTIBLE NOTE AND STOCK PURCHASE AGREEMENT
By and Among
ORBCOMM Inc.,
ORBCOMM LLC,
PCG Satellite Investments, LLC
and
MH Investors Orbcomm LLC
and, for purposes of Section 13.16 only,
CALPERS/PCG Corporate Partners, LLC
and, for purposes of Section 13.17 only,
MH Private Equity Fund LLC
Dated as of December 30, 2005
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS.................................................... 1
ARTICLE II SALE AND TRANSFER OF NOTES AND SHARES......................... 10
2.01 Sale and Purchase of Convertible Notes and Shares............... 10
2.02 Convertible Note Closing, Initial Share Closing and
Subsequent Closing.............................................. 11
ARTICLE III REPRESENTATIONS AND WARRANTIES............................... 12
3.01 Organization and Good Standing.................................. 12
3.02 Capitalization; Title to Shares and Structure................... 13
3.03 Subsidiaries and other Investments.............................. 15
3.04 Due Authorization; Enforceability............................... 16
3.05 No Violation.................................................... 16
3.06 Financial Statements............................................ 16
3.07 Absence of Certain Changes...................................... 17
3.08 Litigation...................................................... 18
3.09 Compliance with Laws; Permits................................... 18
3.10 Environmental Matters........................................... 19
3.11 Taxes........................................................... 19
3.12 Employee Benefit and Labor Matters.............................. 20
3.13 Real Property Owned or Leased; Title to Assets.................. 21
3.14 Sufficiency and Condition of Assets............................. 21
3.15 Material Contracts.............................................. 22
3.16 Insurance....................................................... 25
3.17 Intellectual Property........................................... 25
3.18 Customers....................................................... 26
3.19 Disclosure...................................................... 26
3.20 Transactions With Affiliates.................................... 26
3.21 Brokers or Finders.............................................. 26
3.22 Registration Rights............................................. 27
3.23 Employee Matters................................................ 27
3.24 Side Letters.................................................... 27
3.25 FCC/Regulatory Matters.......................................... 27
3.26 ITAR Matters.................................................... 29
3.27 Minute Books.................................................... 29
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE INVESTORS............... 30
4.01 Organization and Good Standing.................................. 30
4.02 Due Authorization; Enforceability............................... 30
4.03 No Violation.................................................... 30
4.04 Investment Intent............................................... 31
4.05 Brokers or Finders.............................................. 31
4.06 Liability to Co-Investors....................................... 31
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ARTICLE V COVENANTS OF THE COMPANY....................................... 32
5.01 Consents and Approvals.......................................... 32
5.02 Notice of Certain Events........................................ 32
5.03 Use of Proceeds................................................. 32
5.04 FCC Matters..................................................... 32
5.05 Further Assurances.............................................. 32
5.06 Conduct......................................................... 33
5.07 Delivery of Audited 2006 Financial Statements................... 33
5.08 Chief Operating Officer......................................... 33
5.09 Directors and Officers Insurance................................ 33
ARTICLE VI COVENANTS OF INVESTORS........................................ 33
6.01 Cooperation by the Investors.................................... 33
ARTICLE VII COVENANTS OF THE PARTIES..................................... 33
7.01 Reasonable Efforts.............................................. 33
7.02 Further Assurances.............................................. 34
7.03 Representation and Warranties................................... 34
7.04 Public Announcements............................................ 35
7.05 Confidentiality................................................. 35
7.06 Supplements to Disclosure Schedule.............................. 36
7.07 Application of Series A Dividends............................... 36
ARTICLE VIII CONDITIONS TO THE OBLIGATIONS OF COMPANY.................... 37
8.01 Representation, Warranties and Covenants........................ 37
8.02 Governmental Consents........................................... 37
8.03 No Injunction................................................... 37
8.04 Other Agreements................................................ 37
8.05 No Qualified Public Offering or Qualified Sale.................. 38
8.06 Change of Control............................................... 38
ARTICLE IX CONDITIONS TO THE OBLIGATIONS OF INVESTORS WITH RESPECT TO
THE INITIAL CLOSING................................................... 38
9.01 Representations, Warranties and Covenants....................... 38
9.02 Consents........................................................ 38
9.03 No Litigation................................................... 39
9.04 No Prohibition.................................................. 39
9.05 No Material Adverse Change...................................... 39
9.06 Legal Opinion................................................... 39
9.07 Management Rights Letter........................................ 39
9.08 Board Composition............................................... 39
9.09 Director's Indemnification Agreement............................ 39
9.10 Amendment of By-Laws............................................ 40
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9.11 Effectiveness and Amendment of Initial Tranche Series B
Preferred Stock Documents....................................... 40
9.12 Stockholder Approval and Effectiveness of Amendments to
Transaction Documents........................................... 40
9.13 Convertible Noteholder Approval................................. 40
9.14 Satcom Acquisition.............................................. 40
9.15 Stock Option Plan............................................... 40
ARTICLE X CONDITIONS TO THE OBLIGATIONS OF THE INVESTORS WITH RESPECT TO
THE SUBSEQUENT CLOSING................................................ 41
10.01 Representations, Warranties and Covenants....................... 41
10.02 Consents........................................................ 41
10.03 No Litigation................................................... 42
10.04 No Prohibition.................................................. 42
10.05 No Material Adverse Change...................................... 42
10.06 No Qualified Public Offering or Qualified Sale.................. 42
10.07 Legal Opinion................................................... 42
10.08 Insolvency Event................................................ 42
10.09 Change of Control............................................... 42
10.10 Subscribers..................................................... 42
10.11 Net Revenue..................................................... 42
10.12 2006 Financial Statements....................................... 42
ARTICLE XI INTENTIONALLY DELETED......................................... 43
ARTICLE XII SURVIVAL AND INDEMNIFICATION................................. 43
12.01 Survival and Indemnification.................................... 43
12.02 Limitations on Liability........................................ 44
ARTICLE XIII MISCELLANEOUS PROVISIONS.................................... 45
13.01 Fees and Expenses............................................... 45
13.02 Notices......................................................... 45
13.03 Jurisdiction; Service of Process................................ 46
13.04 Governing Law................................................... 47
13.05 Waiver.......................................................... 47
13.06 Entire Agreement and Modification............................... 47
13.07 Amendment and Waiver............................................ 47
13.08 Assignments, Successors, and No Third-Party Beneficiaries....... 47
13.09 Severability.................................................... 48
13.10 Captions; Currency.............................................. 48
13.11 Exhibits and Schedules.......................................... 48
13.12 Specific Performance............................................ 48
13.13 Interpretation.................................................. 49
13.14 Time of Essence................................................. 49
13.15 Counterparts.................................................... 49
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13.16 Limited CALPERS/PCG Guaranty.................................... 49
13.17 Limited MH Guaranty............................................. 50
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CONVERTIBLE NOTE AND STOCK PURCHASE AGREEMENT
This Agreement is made and entered into as of December 30, 2005, by
and among ORBCOMM Inc., a Delaware corporation (the "Company"), ORBCOMM LLC, a
Delaware limited liability company, ("ORBCOMM LLC"), PCG Satellite Investments,
LLC ("PCG") and MH Investors Orbcomm LLC ("MH") and, solely for purposes of
Section 13.16 and Section 13.17, respectively, CALPERS/PCG Corporate Partners,
LLC ("CALPERS/PCG") and MH Private Equity Fund LLC ("MH PEF"). Each of PCG and
MH is referred to herein individually as an "Investor" and collectively as the
"Investors".
RECITALS
A. The Company is a satellite-based telecommunications company that
provides narrowband, two-way monitoring, tracking and messaging services (the
"Business");
B. The Investors desire to purchase from the Company, and the Company
desires to sell to the Investors, Convertible Notes which are convertible into
the Company's Series B Preferred Stock and shares of Series B Preferred Stock,
subject to the terms and conditions of this Agreement; and
C. In consideration of the mutual representations, warranties,
covenants and agreements, and upon the terms and subject to the conditions
hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Article I:
"Action" - any legal, administrative, arbitral, mediation or other
alternative dispute resolution procedure or other action, proceeding, claim,
inquiry or investigation before any court, arbitrator or other Governmental
Entity.
"Affiliate" - with respect to a specified Person: (i) any Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified or any
Affiliate of such Person, including, without limitation, any partner, officer,
director, executor, trustee, member or employee of such Person and any venture
capital or private equity fund now or hereafter existing which is controlled by
or under common control with one or more general partners or shares the same
management company with such Person. For purposes of this definition, "control"
of a Person will mean the possession, directly or indirectly, of the power to
direct or cause the direction of its management or policies, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" - this Agreement, as the same may be amended, modified or
supplemented from time to time in accordance with its terms.
Convertible Note and Stock Purchase Agreement
"Books and Records" - with respect to a specified person, the books of
account and other financial and corporate records and files (including records
and files stored on computer disks or tapes or any other storage medium) of such
person, including minute books, stock record books, books of account, corporate
seals, written contracts and other documents, instruments and papers.
"Business" - shall have the meanings given in the Recitals.
"Business Day" - any day other than a Saturday, Sunday or other day on
which commercial banks located in New York City are authorized or required to be
closed.
"Capitalization Table" - means the pro forma capitalization table of
the Company, after giving effect to (i) the Initial Closing and (ii) the
Subsequent Closing, set forth in Part 3.02(j) of the Disclosure Schedule.
"CERCLA" - the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Change-of-Control" means (i) sale, transfer or other disposition of
all or substantially all of the assets and properties of the Company to, or the
proposed entry into any merger or consolidation agreement with, any third party,
whether in a single transaction or series of related transactions, which results
in the holders of the outstanding voting power of the Company immediately prior
to such transaction or series of transactions owning less than a majority of the
outstanding voting securities in the continuing or surviving company or entity
following such transaction or transactions or (ii) a sale, transfer or exchange
of all of the Company's outstanding capital stock to a third party, whether in a
single transaction or series of related transactions, for cash or, in the case
of a stock-for-stock transaction, which results in the holders of the
outstanding voting power of the Company immediately prior to such transaction or
series of transactions owning less than a majority of the outstanding voting
securities for the election of directors in the continuing or surviving company
or entity following such transaction or transactions.
"Claim" - a written notice, asserting a breach of representation or
warranty, covenant, agreement or other obligation contained in this Agreement or
in any Transaction Document.
"Code" - the Internal Revenue Code of 1986, as amended.
"Common Stock" - common shares, par value $0.001 per share, of the
Company.
"Common Stock Voting Agreement" - means the Second Amended and
Restated Common Stock Voting Agreement entered into among the holders of the
Common Stock, in the form attached as Exhibit E.
"Communications Licenses" - means the licenses referenced on Part
3.09(b) of the Disclosure Schedule.
"Communications Regulation" as defined in Section 7.01(b) of the
Agreement.
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Convertible Note and Stock Purchase Agreement
"Company" - as defined in the preamble of this Agreement.
"Company's Intellectual Property" - as defined in Section 3.17(a) of
the Agreement.
"Company Threshold" - as defined in Section 12.02(c) of this
Agreement.
"Confidential Information" - means information of any kind in written,
documentary or other tangible form disclosed by one party to this Agreement to
any other party to this Agreement clearly identified (whether with a stamp,
legend or other marking or orally) as confidential at the time of the
disclosure, including, but not limited to, (i) information of a financial,
business, planning, marketing or technical nature, (ii) models, tools, hardware
and software, and (iii) any documents, reports, memoranda, notes, files or
analyses prepared by or on behalf of the receiving party that contain, summarize
or are based upon any of the foregoing; provided, however, that "Confidential
Information" shall not include information that: (i) is publicly available prior
to the date of this Agreement; (ii) becomes publicly available after the date of
this Agreement through no wrongful act of the receiving party; (iii) is
furnished to others by the disclosing party without similar restrictions on
their right to use or disclose; (iv) is rightfully known by the receiving party
without any confidentiality restrictions at the time of receipt of such
information from the disclosing party or becomes rightfully known to the
receiving party without confidentiality restrictions from a source other than
the disclosing party; or (v) is independently developed by the receiving party
by persons who did not have access, directly or indirectly, to the Confidential
Information.
"Confidentiality Agreements" - those certain agreements between the
Company and an Investor, if any, regarding the provision of Confidential
Information to each such Investor.
"Consents" - all consents, waivers, approvals, allowances,
authorizations, declarations, filings, recordings, registrations, validations or
exemptions and notifications.
"Convertible Note Closing" - as defined in Section 2.02(a) of this
Agreement.
"Convertible Noteholders" means the holders of the Convertible Notes.
"Convertible Notes" means the 10% Convertible Promissory Notes of the
Company due February 16, 2010 in the form of Exhibit I hereto issued to the
purchasers identified on Schedule II hereto in the principal amounts set forth
on Schedule II hereto.
"Damages" - all losses, Liabilities, claims, damages, deficiencies,
obligations, fines, payments (including incidental and consequential damages),
expenses (including costs of investigation and defense and reasonable attorneys'
fees and expenses), actions, causes of action, assessments, judgments or amounts
paid in settlement, whether or not involving a third party claim.
"Disclosure Schedule" - the Disclosure Schedule delivered by the
Company to the Investors concurrently with the execution and delivery of this
Agreement, as supplemented or amended as provided herein.
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Convertible Note and Stock Purchase Agreement
"Encumbrance" - any charge, claim, "adverse claim" (as defined in
Section 8-102(a)(1) of the New York Uniform Commercial Code), community property
interest, condition, equitable interest, easement, encumbrance, option, lien,
pledge, hypothecation, assignment, deposit arrangement, security interest
(preference, priority or other security agreement or preferential arrangement of
any kind), mortgage, deed of trust, retention of title agreement, right of first
refusal, right of first offer, preemptive right, or other restriction or
granting or any rights of any kind (including any restriction on, or right
granted with respect to, the use, voting, transfer, receipt of income or
exercise of any other attribute of ownership).
"Environmental Laws" - any and all applicable Laws and Permits issued,
promulgated or entered into by any Governmental Entity relating to the
environment, the protection or preservation of human health or safety, including
the health and safety of employees, the preservation or reclamation of natural
resources, or the management, Release or threatened Release of Hazardous
Materials.
"ERISA" - the Employee Retirement Income Security Act of 1974, as
amended.
"Facilities" - any buildings, plants or structures, owned, operated or
leased by the Company and its Subsidiaries or located on any Real Property.
"FCC" - means the United States Federal Communications Commission.
"Financial Statements" - as defined in Section 3.06(a) of this
Agreement.
"Foreign Licenses" - as defined in Section 3.25(c) of this Agreement.
"GAAP" - generally accepted accounting principles of the United States
as in effect from time to time.
"Governmental Entity" - any: (i) federal, state, local, foreign or
international government; (ii) court, arbitral or other tribunal or governmental
or quasi-governmental authority of any nature (including any governmental
agency, political subdivisions, instrumentalities, branch, department, official,
or entity); or (iii) body exercising, or entitled to exercise, any
administrative, executive, judicial, legislative, police, regulatory, or taxing
authority or power of any nature pertaining to government.
"Guaranteed MH Obligations" as defined in Section 13.17 of the
Agreement.
"Guaranteed PCG Obligations" as defined in Section 13.16 of the
Agreement.
"Hazardous Materials" - those hazardous materials, substances or
wastes that are regulated by, or form the basis of liability under, any
Environmental Law, including PCBs, pollutants, explosive or regulated
radioactive materials or substances, hazardous wastes or chemicals, petroleum
(including crude oil or any fraction thereof) or petroleum distillates, asbestos
or asbestos containing materials, materials listed in 49 C.F.R. Section 172.101
and materials defined as hazardous substances pursuant to Section 101(14) of
CERCLA.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976.
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Convertible Note and Stock Purchase Agreement
"Indemnified Party" - as defined in Section 12.01(b) of the Agreement.
"Initial Closing" - as defined in Section 2.02(a) of this Agreement.
"Initial Closing Date" - as defined in Section 2.02(a) of this
Agreement.
"Initial Share Closing" as defined in Section 2.02(b) of this
Agreement.
"Initial Tranche Series B Preferred Stock" as defined in Section
2.01(a) of this Agreement.
"Insolvency Event" means (i) the Company or any Material Subsidiary of
the Company shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or (ii) an involuntary case or other
proceeding shall be commenced against the Company or any Material Subsidiary of
the Company (which shall not have been dismissed) seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property; or (iii) an
order for relief shall be entered against the Company or any Material Subsidiary
of the Company under the federal bankruptcy laws as now or hereafter in effect.
"Insurance Policies" - as defined in Section 3.16 of this Agreement.
"Intellectual Property" - all United States and foreign (a) patents,
patent applications, patent disclosures and inventions and discoveries which may
be patentable and improvements thereto, (b) registered and unregistered
trademarks, service marks, logos, trade names and corporate names and
registrations and applications for registration thereof, including all marks
registered in the United States Patent and Trademark Office, (c) copyrights in
both published and unpublished works and registrations and applications for
registration thereof, (d) computer software, data and documentation, (e) trade
secrets and confidential business information (including ideas, formulas,
compositions, inventions (whether patentable or unpatentable and whether or not
reduced to practice), know-how, manufacturing and production processes and
techniques, research and development information, drawings, specifications,
designs, plans, proposals, technical data, copyrightable works, financial,
marketing and business data, pricing and cost information, business and
marketing plans and customer and supplier lists and information) (collectively,
"Trade Secrets") and (f) copies and tangible embodiments thereof (in whatever
form or medium).
"Investors" - as defined in the preamble of this Agreement.
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Convertible Note and Stock Purchase Agreement
"IRS" - the United States Internal Revenue Service or any other
successor agency, and, to the extent relevant, the United States Department of
the Treasury.
"ITAR" means International Traffic in Arms Regulation, 22 C.F.R.
Sections 120-130.
"Latest Audited Balance Sheet" - means the audited consolidated
balance sheet of the Company as of December 31, 2004 as set forth on Part 3.06
of the Disclosure Schedule (after giving effect to the adjustments set forth on
Part 3.06(b) of the Disclosure Schedule).
"Latest Balance Sheet" - means the unaudited consolidated balance
sheet of the Company as of November 30, 2005 as set forth on Part 3.06 of the
Disclosure Schedule. For purposes of the representations and warranties made on
and as of the Subsequent Closing Date, Latest Balance Sheet shall mean the
consolidated balance sheet of the Company as of December 31, 2006 audited by an
independent accounting firm of recognized national standing (or, if the Majority
Holders elect to waive the condition that the Latest Balance Sheet be audited by
an independent accounting firm of recognized national standing prior to the
Subsequent Closing, the unaudited balance sheet as of December 31, 2006)
provided in the updated Disclosure Schedule delivered pursuant to Section 7.06
on the Subsequent Closing Date.
"Laws" - means all laws, principles of common law, statutes,
constitutions, treaties, rules, regulations, ordinances, codes, rulings, Orders
and determinations of all Governmental Entities.
"Leased Property" - as defined in Section 3.13(a) of this Agreement.
"Leases" - all leases, subleases, rights to occupy or use and other
arrangements with respect to Real Property, including, in each case, all
amendments, modifications and supplements thereto and waivers and consents
thereunder.
"Liability" - all debts, liabilities and obligations whether known or
unknown, asserted or unasserted, fixed, absolute or contingent, matured or
unmatured, accrued or unaccrued, liquidated or unliquidated, due or to become
due, whenever or however arising (including, whether arising out of any contract
or tort based on negligence, strict liability or otherwise).
"Majority Holders" - means the Investors (or their assignees) holding
a majority of shares of Series B Preferred Stock (or Common Stock or other
securities issued upon conversion or exchange thereof) issued pursuant to this
Agreement (including shares of Series B Preferred Stock issued upon conversion
of Convertible Notes purchased hereunder).
"Material Adverse Change" means a material adverse change, or any
development(s) that would, with the passage of time, reasonably be expected to
result in a material adverse change (in each case, individually or in the
aggregate with all such changes or developments), in the condition, financial or
otherwise, business, assets, results of operations or prospects of the Company
and its Subsidiaries, taken as a whole. Any determination as to whether any
change or development is a Material Adverse Change shall only be made after
taking into account all insurance coverages and indemnifications (to the extent
the Company has received payment with respect thereto to which the Company is
entitled and taking into account
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Convertible Note and Stock Purchase Agreement
the likelihood and timing of any payments (if any) to be received under such
insurance coverages and/or indemnifications and the creditworthiness of the
insurer and/or indemnitor).
"Material Adverse Effect" - When used in connection with the Company
or its Subsidiaries, any change or effect that, individually or in the aggregate
with any such other changes or effects, is materially adverse to the condition,
financial or otherwise, business, assets, results of operations or prospects of
the Company and its Subsidiaries taken as a whole which, individually or in the
aggregate, results in a diminution in the value of the Series B Preferred Stock
issued to the Investors on the Initial Closing Date in excess of five hundred
thousand dollars ($500,000) (assuming, for this purpose that all outstanding
shares of Series B Preferred Stock and Series A Preferred Stock were converted
to Common Stock). Any determination as to whether any change or effect has a
Material Adverse Effect shall only be made after taking into account all
insurance coverages and indemnifications (to the extent the Company has received
payment with respect thereto to which the Company is entitled and taking into
account the likelihood and timing of any payments (if any) to be received under
such insurance coverages and/or indemnifications and the creditworthiness of the
insurer and/or indemnitor).
"Material Contract" - as defined in Section 3.15 of this Agreement.
"Material Subsidiary" - means ORBCOMM LLC, ORBCOMM License Corp.,
Stellar Communications Ltd. and any other Subsidiary of the Company that would
constitute a "significant subsidiary" as defined in Rule 1-02(w) of Regulation
S-X of the promulgated under the Securities Act (excluding Satcom and ORBCOMM
Europe).
"Options" - all options to purchase Common Stock.
"ORBCOMM Europe" - ORBCOMM Europe, LLC, a Delaware limited liability
company, and its Subsidiaries.
"ORBCOMM LLC" - ORBCOMM LLC, a Delaware limited liability company.
"Order" - any award, decision, stipulation, injunction, judgment,
order, ruling, subpoena, writ, decree or verdict entered, issued, made or
rendered by any Governmental Entity.
"Owned Property" - as defined in Section 3.13 of this Agreement.
"PCG Entities" - means collectively PCG Satellite Investments, LLC,
CALPERS PCG Corporate Partners, LLC and any Affiliate(s) of either of the
foregoing.
"Permit" - all licenses, permits, certificates, Consents or other
authorizations, issued, granted, given or otherwise made available by or under
the authority of any Governmental Entity or pursuant to any Law.
"Permitted Encumbrances" - means (i) in respect of real property,
Encumbrances consisting of zoning or planning restrictions, easements,
covenants, Permits or other restrictions or limitations on the use of real
property or irregularities in title thereto which do not materially detract from
the value of, or impair the use of, such real property as currently operated,
(ii) Encumbrances for Taxes, assessments or governmental charges or levies on
property not yet due
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Convertible Note and Stock Purchase Agreement
and payable or which are being contested in good faith and for which appropriate
reserves are maintained, (iii) Encumbrances of landlords, carriers,
warehousemen, mechanics and other Encumbrances imposed by law and incurred in
the ordinary course of business, (iv) for personal property, Encumbrances for
purchase money obligations incurred in the ordinary course of business
consistent with past practice, (v) Encumbrances set forth on any section of Part
3.14 of the Disclosure Schedule and (vi) other Encumbrances (other than
mortgages, deeds of trust, title retention agreements or similar security
interests) which, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
"Person" - any individual, sole proprietorship, firm, corporation
(including any non-profit corporation and public benefit corporation), general
or limited partnership, limited liability partnership, joint venture, limited
liability company, estate, trust, association, organization, labor union,
institution, entity or Governmental Entity, including any successor (by merger
or otherwise) of such entity.
"Preferred Stock Voting Agreement" - means the Second Amended and
Restated Preferred Stock Voting Agreement to be entered into among the holders
of the Series A Preferred Stock and the Series B Preferred Stock, in the form
attached hereto as Exhibit D.
"Purchase Price" - as defined in Section 2.01(b) of this Agreement.
"Qualified Public Offering" - shall have the meaning set forth in the
Restated Certificate.
"Qualified Sale" - shall have the meaning set forth in the Restated
Certificate.
"Real Property" - as defined in Section 3.13 of this Agreement.
"Registration Rights Agreement" - the Second Amended and Restated
Registrations Rights Agreement to be entered into between the Company, certain
stockholders of the Company and the Investors in the form attached hereto as
Exhibit B.
"Release" - defined in Section 101(22) of CERCLA.
"Representative" - with respect to a particular Person, any director,
officer, employee, agent, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial advisors.
"Restated Certificate" - the Third Amended and Restated Certificate of
Incorporation of the Company in the form attached hereto as Exhibit A.
"Satcom" - Satcom International Group Plc, an English public limited
company, and its Subsidiaries.
"Satellite and Ground Earth Station Assets" - as defined in Section
3.14(a) of the Agreement.
"Securities Act" - the Securities Act of 1933, as amended.
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Convertible Note and Stock Purchase Agreement
"Securities Exchange Act" - the Securities Exchange Act of 1934, as
amended.
"Series A Preferred Stock" - means the Series A Convertible Redeemable
Preferred Stock, par value $0.001 per share of the Company.
"Series B Preferred Stock" - means the Series B Convertible Redeemable
Preferred Stock, par value $0.001 per share, of the Company.
"Settlement" - as defined in Section 7.01(c) of the Agreement.
"Stockholders Agreement" - means the Second Amended and Restated
Stockholders Agreement to be entered into among the Company, the Investors and
other stockholders of the Company in the form attached hereto on Exhibit C.
"Shares" - means shares of the Company's Series B Preferred Stock.
"Subsequent Closing" - as defined in Section 2.02(c).
"Subsequent Closing Date" - as defined in Section 2.02(c).
"Subsequent Closing Termination Date" shall mean (i) March 12, 2007 if
the Company has delivered the 2006 Audited Financial Statements to Investors on
or prior to February 15, 2007 or if the Majority Holders otherwise waive the
condition in Section 10.12 prior to March 12, 2007, (ii) the date that is 15
days after delivery by the Company of the 2006 Audited Financial Statements to
Investors if such 2006 Audited Financial Statements are delivered to Investors
after February 15, 2007 and the Majority Holders do not waive the condition in
Section 10.12 or (iii) any date after March 12, 2007 designated by the Majority
Holders prior to the date that is contemplated by clause (ii) if the Majority
Holders waive the condition in Section 10.12 after March 12, 2007; provided,
however, that the Majority Holders may, in their sole discretion, designate any
date on or after April 30, 2007 as the Subsequent Closing Termination Date
irrespective of whether the condition in Section 10.12 is waived (it being
understood that if the Majority Holders designate a date pursuant to this
proviso and the Company delivers the 2006 Audited Financial Statements prior to
such date, the Subsequent Closing Termination Date shall be the earlier of (a)
the date so designated and (b) 15 days after delivery of the 2006 Audited
Financial Statements).
"Subsidiary" - any corporation, limited liability company,
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the partnership
or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more Subsidiaries of the Person
or a combination thereof; for purposes hereof, a Person or Persons shall be
deemed to have a majority ownership interest in a limited liability company,
partnership, association, or other business entity if such Person or Persons
shall be allocated a majority of limited liability company, partnership,
association or other business entity gains or losses or shall be or control
9
Convertible Note and Stock Purchase Agreement
any managing member or general partner of such limited liability company,
partnership, association or other business entity. For purposes of this
Agreement (other than Section 3.06) Satcom International Group plc and Orbcomm
Europe LLC shall be deemed to be Subsidiaries of the Company, but only with
respect to matters, conditions, events or circumstances occurring or arising
after October 7, 2005.
"Taxes" - all taxes, charges, duties, fees, levies or other
assessments, including, without limitation, income, excise, property, sales,
use, gross receipts, recording, insurance, value added, profits, license,
withholding, payroll, employment, net worth, capital gains, transfer, stamp,
social security, environmental, occupation and franchise taxes, imposed by any
Governmental Entity, and including any interest, penalties and additions
attributable thereto.
"Third Party Licenses" as defined in Section 3.25(a) of this
Agreement.
"Threshold" - as defined in Section 12.02(b) of this Agreement.
"to the knowledge" - means the actual knowledge of the executive
officers of a Person after reasonable inquiry.
"Transaction" or "Transactions" - means the transactions contemplated
by this Agreement and the Transaction Documents, including, without limitation,
the transactions contemplated by Section 2.01(a), (b) and (c).
"Transaction Documents" - means this Agreement, the Restated
Certificate, the Stockholders Agreement, Registration Rights Agreement, the
Preferred Stock Voting Agreement, the Common Stock Voting Agreement, the
Convertible Notes and any certificate, schedule, agreement or other document
required to be delivered pursuant to this Agreement.
"Warrant" - means the warrants of the Company issued to the purchasers
in connection with the issuance of the Convertible Notes.
ARTICLE II
SALE AND TRANSFER OF NOTES AND SHARES
2.01 Sale and Purchase of Convertible Notes and Shares.
(a) On the basis of the representations, warranties, covenants
and agreements and subject to the satisfaction or waiver of the conditions
set forth in Articles VIII and IX of this Agreement, at the Convertible
Note Closing, the Company will sell to the Investors, and the Investors
will purchase from the Company, the Convertible Notes and Warrants in the
form set forth as Exhibit I and Exhibit I-A hereto in the principal amounts
set forth opposite such Investors name on Schedule I hereto. The principal
amount of the Notes purchased shall be paid at the Convertible Note Closing
in cash. The Convertible Notes purchased on the Initial Closing Date by the
Investors shall automatically convert into 136,476 shares of Initial
Tranche Series B Preferred Stock immediately following the Convertible Note
Closing pursuant to the terms of Section 6(c) of each Convertible Note. The
Series B Preferred Stock issued pursuant to the automatic conversion of the
Convertible
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Convertible Note and Stock Purchase Agreement
Notes as described in this Section 2.01(a) shall be the "Initial Tranche
Series B Preferred Stock."
(b) On the basis of the representations, warranties, covenants
and agreements and subject to the satisfaction or waiver of the conditions
set forth in Articles VIII and IX of this Agreement, at the Initial Share
Closing, the Company will sell to the Investors, and the Investors will
purchase from the Company, the number of Shares set forth opposite such
Investor's name on Schedule I hereto under the heading "Initial Closing" at
a price of $4.03 per Share (the "Purchase Price"). The Purchase Price shall
be paid at the Initial Closing in cash.
(c) On the basis of the representations, warranties, covenants
and agreements and subject to the satisfaction or waiver of the conditions
set forth in Articles VIII and X of this Agreement and subject to the last
sentence of Section 2.02(c), unless otherwise agreed to by the Company and
the Majority Holders, at the Subsequent Closing, the Company will sell to
the Investors, and the Investors will purchase from the Company, the number
of Shares set forth opposite such Investor's name on Schedule I under the
heading "Subsequent Closing" at the Purchase Price.
(d) The obligations of Investors to purchase Shares and
Convertible Notes allocated to them on Schedule I hereto are several and
not joint.
2.02 Convertible Note Closing, Initial Share Closing and
Subsequent Closing.
(a) Convertible Note Closing. The closing of the transactions
contemplated by Section 2.01(a) of this Agreement and the Transaction
Documents (the "Convertible Note Closing") will take place at the offices
of Chadbourne & Parke LLP, 30 Rockefeller Plaza, New York City, at 10:00
a.m. Eastern time, on December 30, 2005 subject to the satisfaction or
waiver of all the conditions set forth in Articles VIII and IX hereof or
such other date, place or time agreed to by the Company and the Majority
Holders (such date of the Convertible Note Closing being hereinafter
referred to as the "Initial Closing Date"). The Company shall deliver to
each Investor a Convertible Note, a certificate representing Warrants and a
certificate representing such shares as the Convertible Notes purchased by
such Investor convert in to, against payment of the purchase price therefor
by wire transfer of immediately available funds to such bank and account
specified by the Company, cancellation of indebtedness (including by way of
crediting the Transaction Expenses described in Section 13.01 against
payment of the purchase price), or any combination thereof.
(b) Initial Share Closing. The closing of the transactions
contemplated by Section 2.01(b) of this Agreement and the Transaction
Documents (the "Initial Share Closing" and together with the Convertible
Note Closing, the "Initial Closing") will take place on the Initial Closing
Date immediately following the Convertible Note Closing. The Company shall
deliver to each Investor a certificate representing the Shares purchased by
such Investor against payment of the purchase price therefor by wire
transfer of immediately available funds to such bank and account specified
by the Company, cancellation of indebtedness, or any combination thereof.
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Convertible Note and Stock Purchase Agreement
(c) Subsequent Closing. Subject in all respects to the last
sentence of this paragraph, the subsequent closing (the "Subsequent
Closing") of the transactions contemplated by this Agreement and the
Transaction Documents will take place at the offices of Chadbourne & Parke
LLP, 30 Rockefeller Plaza, New York City, at 10:00 a.m. Eastern time, on
March 1, 2007 (or on a date designated by the Majority Holders (upon no
less than two (2) business days written notice to the Company) that is on
or prior to the Subsequent Closing Termination Date if the Audited 2006
Financial Statements have not been delivered to Investors prior to February
15, 2007), subject to the satisfaction or waiver of all conditions set
forth in Articles VIII and X hereof, or such other date, place or time
agreed to by the Company and the Majority Holders (such date of the Closing
being hereinafter referred to as the "Subsequent Closing Date"). The
Company shall deliver to each Investor a certificate representing the
Shares such Investor is purchasing at the Subsequent Closing, against
payment of the purchase price therefor by wire transfer of immediately
available funds to such bank and account specified by the Company,
cancellation of indebtedness, or any combination thereof. Notwithstanding
any of the foregoing, the obligation of the Investors to purchase Shares
and the Company's obligation to sell Shares under Section 2.01(c) hereof
shall terminate in full (i) upon consummation of a Qualified Sale or
Qualified Public Offering or (ii) on the Subsequent Closing Termination
Date (unless the Company and the Majority Holders agree otherwise) if the
Subsequent Closing has not occurred on or by such date (provided that the
Company's obligation to sell such Shares shall not terminate if the
Subsequent Closing has not occurred as a result of a breach by the Company
of its obligations under this Agreement and an Investor's obligation to
purchase such Shares shall not terminate if the Subsequent Closing has not
occurred as a result of a breach by such Investor of its obligations under
this Agreement).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company and ORBCOMM LLC hereby jointly and severally
represent and warrant to each of the Investors on each of the date hereof,
the Initial Closing Date and if the Subsequent Closing occurs, the
Subsequent Closing Date as follows:
3.01 Organization and Good Standing. The Company is a
corporation, duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, and has full power and
authority to conduct its business in the manner in which it is presently
being conducted, except where the failure to be so organized, existing and
in good standing or to have such power or authority would not have a
Material Adverse Effect. The Company is duly qualified or licensed to do
business and in good standing in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by
it makes such qualification or licensing necessary except in such
jurisdictions where the failure to be so qualified, licensed and in good
standing, individually or in the aggregate, would not, individually or in
the aggregate, be reasonably expected to have a Material Adverse Effect.
ORBCOMM LLC is a limited liability company, duly formed, validly existing
and in good standing under the laws of its jurisdiction of formation, and
has full power and authority to conduct its business in the manner in which
it is presently being conducted, except where the failure to be so
organized, existing and in good standing or to have such power or authority
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Convertible Note and Stock Purchase Agreement
would not, individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect. ORBCOMM LLC is duly qualified or licensed to do
business and in good standing in each jurisdiction in which the property owned,
leased or operated by it or the nature of the business conducted by it makes
such qualification or licensing necessary except in such jurisdictions where the
failure to be so qualified, licensed and in good standing, individually or in
the aggregate, would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect. Part 3.01 of the Disclosure Schedule
lists each jurisdiction in which the Company or ORBCOMM LLC is qualified to do
business. True and complete copies of the Certificate of Incorporation and
Bylaws, as amended to date, of the Company and the Certificate of Formation and
Limited Liability Company Operating Agreement, as amended to date, of ORBCOMM
LLC have previously been delivered or made available to the Investors.
3.02 Capitalization; Title to Shares and Structure.
(a) As of the execution of this Agreement, the authorized capital
stock of the Company consists of seventy five million (75,000,000) shares
of Common Stock and fifteen million (15,000,000) shares of Series A
Preferred Stock. Immediately prior to the Initial Closing, eight million
five hundred thirty five thousand twenty six (8,535,026) shares of Common
Stock and fourteen million fifty three thousand six hundred eleven
(14,053,611) shares of Series A Preferred Stock were issued and outstanding
all of which were validly issued, fully paid and non-assessable.
Immediately prior to the Convertible Notes Closing, Convertible Notes with
a principal balance of twenty four million four hundred sixty nine thousand
dollars ($24,469,000) were outstanding, which are convertible into six
million seventy one thousand six hundred twenty two (6,071,687) shares
(after eliminating fractional shares) of Initial Tranche Series B Preferred
Stock. Schedule II hereto sets forth a true and accurate list of all of the
Convertible Noteholders and the principal balance of the Convertible Notes
held by each Convertible Noteholder as of the date of this Agreement and
prior to the Convertible Note Closing.
(b) Effective as of the Convertible Note Closing and prior to the
Initial Share Closing, the authorized capital stock of the Company shall
consist of 75,000,000 shares of Common Stock, 15,000,000 shares of Series A
Preferred Stock and 13,000,000 shares of Initial Tranche Series B Preferred
Stock. Effective as of the Convertible Note Closing and prior to the
Initial Share Closing 8,535,026 shares of Common Stock, 14,053,611 shares
of Series A Preferred Stock and 6,208,163 shares of Initial Tranche Series
B Preferred Stock shall be issued and outstanding, and no Convertible Notes
or Warrants shall be outstanding except for the subscription of Marble Arch
Group Ltd. to purchase $250,000 of Convertible Notes, which shall be
automatically converted into 62,034 shares of Series B Preferred Stock upon
payment of the subscription.
(c) Effective as of the Initial Share Closing, the authorized
capital stock of the Company shall consist of 105,000,000 shares of Common
Stock, 15,000,000 shares of Series A Preferred Stock and 30,000,000 shares
of Series B Preferred Stock. Effective as of the Initial Share Closing (i)
8,535,026 shares of Common Stock, 14,053,611 shares of Series A Preferred
Stock and 17,629,999 shares of Series B Preferred Stock shall be issued and
outstanding and an additional 62,034 shares of Series B Preferred Stock
shall be reserved for issuance to Marble Arch Group Ltd. upon the payment
of the subscription price therefor, (ii)
13
Convertible Note and Stock Purchase Agreement
10,297,767 shares of Series B Preferred Stock will be reserved for issuance
to the Investors upon the Subsequent Closing; (iii) 45,000,000 shares of
Common Stock will be reserved for issuance upon conversion of the Series A
Preferred Stock and the Series B Preferred Stock; (iv) 7,351,905 shares of
Common Stock will be reserved for issuance under the Company's Stock Option
Plan, (v) 478,393 shares of Series A Preferred Stock shall be reserved for
issuance upon the exercise of warrants to purchase Series A Preferred Stock
and 2,876,993 shares of Common Stock shall be reserved for issuance upon
exercise of warrants to purchase Common Stock.
(d) The authorized capital of ORBCOMM LLC consists of 8,486,901
common membership interest units all of which are owned by the Company.
(e) Part 3.02(e) of the Disclosure Schedule contains a true and
complete list of the holders of the securities of the Company as of the
date of this Agreement, indicating each holder's name, the type and amount
of securities held, the exercise or conversion price, if any, and the
redemption or repurchase price, if other than the nominal amount.
(f) Except for (i) issuances of Shares pursuant to this Agreement
and (ii) as otherwise disclosed on Part 3.02(e) of the Disclosure Schedule,
there are no outstanding options, warrants, rights (including conversion or
preemptive rights and rights of first refusal), or agreements of any kind
for the purchase or acquisition from the Company of any of its securities.
The Company is not a party or subject to any agreement or understanding,
and, except as set forth in the Transaction Documents or as otherwise
disclosed on Part 3.02(f) of the Disclosure Schedule, to the best of the
Company's knowledge, there is no agreement or understanding between any
persons that affects or relates to the voting or giving of written consents
with respect to any security or the voting by a director of the Company.
The Company is not subject to any obligation (i) to repurchase, redeem or
otherwise acquire any shares of capital stock or securities convertible
into capital stock of the Company, or (ii) to vote or to dispose of any
shares of capital stock of the Company or other equity securities except
for the sale of Shares pursuant to this Agreement or as set forth in the
Transaction Documents.
(g) There are no options, warrants, convertible notes,
convertible securities or other rights to acquire interests of ORBCOMM LLC
outstanding.
(h) All issued and outstanding shares of Common Stock, Series A
Preferred Stock, Series B Preferred Stock and Convertible Notes of the
Company have been as of the date of this Agreement or will be as of the
Initial Share Closing and the Subsequent Closing, duly authorized and
validly issued, fully paid and nonassessable, and issued in accordance with
the registration or qualification provisions of the Securities Act and any
relevant state securities laws or pursuant to valid exemptions therefrom.
The Shares being purchased by the Investors hereunder, and the Shares
issuable to the Investors pursuant to the conversion of the Convertible
Notes purchased by the Investors hereunder, when issued or sold, and
delivered in accordance with the terms of this Agreement for the
consideration expressed herein, will be duly authorized, validly issued,
fully paid and nonassessable (assuming payment of the purchase price
thereof), and will be free of restrictions on transfer
14
Convertible Note and Stock Purchase Agreement
other than restrictions on transfer expressly stated in the Transaction
Documents and under applicable state and federal securities laws. The
Common Stock issuable upon conversion of the Shares will be as of the
Initial Closing and the Subsequent Closing duly and validly reserved for
issuance and, upon issuance in accordance with the terms of the Restated
Certificate and upon payment therefor as provided in this Agreement, will
be duly authorized, validly issued, fully paid and nonassessable and will
be free of restrictions on transfer other than restrictions on transfer
expressly stated in the Transaction Documents and under applicable state
and federal securities laws.
(i) Assuming each Investor's representations set forth in Section
4.04 of this Agreement is true and correct, the offer, sale and issuance of
the Convertible Notes and Shares as contemplated by this Agreement are
exempt from the registration requirements of the Securities Act and the
qualification requirements of all applicable state securities laws, and
neither the Company nor any authorized agent acting on its behalf will take
any action hereafter that would cause the loss of any such exemption.
(j) The capitalization of the Company, (i) after giving effect to
the Initial Closing and (ii) after giving effect to the Subsequent Closing,
is set forth in the capitalization table set forth in Part 3.02(j) of the
Disclosure Schedule (the "Capitalization Table"). Except as set forth in
the Capitalization Table, Part 3.02(e) of the Disclosure Schedule or in the
Transaction Documents, there are no outstanding securities of the Company
or rights to acquire securities of the Company, including without
limitation any options, warrants, rights (including conversion or
preemptive rights and rights of first refusal), or agreements of any kind
for the purchase or acquisition from the Company of any of its securities.
(k) The Convertible Notes purchased on the Initial Closing Date
by the Investors shall automatically convert into 136,476 shares of Initial
Tranche Series B Preferred Stock immediately upon purchase pursuant to
Section 6(c) of each Convertible Note. The other Convertible Notes issued
by the Company prior to the Initial Closing Date shall automatically
convert into 6,071,687 shares of Initial Tranche Series B Stock pursuant to
Section 6(c) of each Convertible Note on the Initial Closing Date. The
Warrants shall automatically be terminated and cancelled upon the
Convertible Note Closing pursuant to Section 10(b) thereof. The exercise
price of each Series A Preferred Stock Warrant and each Common Stock
Warrant as set forth in the column marked "Strike Price" on Part 3.02(e) of
the Disclosure Schedule is the currently effective exercise price for such
security and has not been amended, modified, adjusted (including any
adjustment pursuant to anti-dilution provisions) or otherwise changed.
3.03 Subsidiaries and other Investments. Part 3.03 of the
Disclosure Schedule contains a true and complete list of each Subsidiary of the
Company and sets forth for each: (i) its name and jurisdiction of incorporation
or organization; (ii) its authorized capital stock or share capital; (iii) the
number of issued and outstanding shares of capital stock or share capital; and
(iv) the holder or holders of record of such shares. All of the issued and
outstanding membership interests of ORBCOMM LLC are owned of record and
beneficially by the Company, free and clear of all Encumbrances. Except as set
forth on Part 3.03 of the Disclosure Schedule, all of the issued and outstanding
shares of capital stock of each Subsidiary of ORBCOMM LLC are owned of record
and beneficially by ORBCOMM LLC, free and clear of
15
Convertible Note and Stock Purchase Agreement
all Encumbrances. Except as set forth on Part 3.03 of the Disclosure Schedule,
all of such shares are duly authorized, validly issued, fully paid and
non-assessable and were not issued in violation of, and are not subject to, any
preemptive rights. Except as disclosed in Part 3.03 of the Disclosure Schedule,
neither the Company nor any Subsidiary of the Company owns beneficially or
otherwise, directly or indirectly, any capital stock or other securities or
other ownership interest of any Person. Neither the Company nor any Subsidiary
of the Company has any obligation to provide any funds to or invest additional
capital in any Person in which the Company or any Subsidiary of the Company
holds capital stock.
3.04 Due Authorization; Enforceability. The Company has all
requisite power and authority (corporate or otherwise) to execute, deliver and
perform this Agreement and each of the Transaction Documents to which it is a
party and to consummate the Transactions. The execution, delivery and
performance of this Agreement and the Transaction Documents and the consummation
of the Transactions by the Company have been duly authorized by all necessary or
appropriate action (corporate or otherwise) and no other proceedings (corporate
or otherwise) are necessary to authorize this Agreement or the Transaction
Documents or to consummate the Transaction. This Agreement and those Transaction
Documents executed or delivered on or prior to the date of this Agreement
constitute, and prior to the Initial Closing the remaining Transaction Documents
required to be executed after the date of this Agreement will constitute when
executed, the valid and legally binding obligations of the Company (to the
extent each is a party) (assuming that this Agreement and the Transaction
Documents constitute the valid and binding obligations of the Investors)
enforceable against the Company, in accordance with their terms, except as
enforceability may be limited by applicable (i) bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and (ii) Laws relating to the availability of
specific performance, injunctive relief or other equitable remedies.
3.05 No Violation. Except for filings, Consents and Permits as
are set forth in Part 3.05 of the Disclosure Schedule or that have been obtained
prior to the Initial Closing, neither the execution, delivery or performance of
this Agreement by the Company, nor the consummation by the Company of the
Transactions, will, with or without the giving of notice or lapse of time or
both: (a) violate, conflict with or result in any breach of any provision of the
Certificate of Incorporation or By-laws or similar organizational documents of
the Company or any of its Subsidiaries; (b) require any Permit of any
Governmental Entity or violate, conflict with or constitute a default under any
of the terms or requirements of any Permit that is held by the Company or any of
its Subsidiaries; or (c) result in a violation or breach of, or constitute a
default (or give rise to any rights of termination, amendment, cancellation or
acceleration) under, any of the terms, conditions or provisions of any contract
or instrument to which the Company or any of its Subsidiaries is a party or any
of their respective assets is subject; (d) violate, conflict with or result in
any breach of any Law applicable to (i) the Company or any of its Subsidiaries;
or (e) create any Encumbrance on any assets of the Company or any of its
Subsidiaries, except, in the case of clauses (b), (c), (d) and (e) above, as
would not have a Material Adverse Effect.
3.06 Financial Statements.
(a) The Company will have delivered to the Investors prior to the
date of this Agreement true and correct copies of (i) an audited
consolidated balance sheet of
16
Convertible Note and Stock Purchase Agreement
ORBCOMM LLC and its Subsidiaries as of December 31, in each of the years
2002 and 2003, together with consolidated statements of income, and changes
in shareholders' equity, and cash flow for the years then ended, including,
in each case, the notes thereto and the reports of independent certified
public accountants, (ii) an audited consolidated balance sheet of the
Company and its Subsidiaries as of December 31, 2004, together with
consolidated statements of income, and changes in shareholders' equity and
cash flow for the year then ended, including, in each case, the notes
thereto and the reports of independent certified public accountants and
(iii) an unaudited consolidated balance sheet of the Company and its
Subsidiaries as of March 31, June 30, September 30 and November 30, 2005
(other than, in the case of November 30, 2005, Satcom), together with
consolidated statements of income and changes in shareholders' equity and
cash flow, including notes thereto, if any for each such quarterly period
(collectively, the "Financial Statements").
(b) The Financial Statements were prepared from and in accordance
with the Books and Records of the Company and its Subsidiaries and/or
ORBCOMM LLC and its Subsidiaries, as the case may be, in accordance with
GAAP consistently applied (except as indicated in the notes thereto) and
fairly present the financial condition, results of operations, changes in
shareholder's equity and cash flow of the Company and its Subsidiaries
and/or ORBCOMM LLC and its Subsidiaries, as the case may be, in all
material respects as of and for the periods indicated or as of the
respective dates set forth therein, subject, in the case of interim
financial statements, to normal and recurring year-end adjustments and, if
applicable, the absence of notes thereto and, except in the case of all of
the year ended audited Financial Statements, for the adjustments set forth
in Part 3.06(b) of the Disclosure Schedule (together with the corresponding
adjustments to the notes thereto) and, in the case of the interim financial
statements, for such adjustments as may be necessary to apply adjustments
of a substantially similar nature as are set forth in Part 3.06(b) of the
Disclosure Schedule with respect to the year end audited Financial
Statements to such interim financial statements and for the absence of
consolidating Satcom International Group plc as of November 30, 2005. For
purposes of delivery of this representation on the Subsequent Closing Date,
"Financial Statements" shall be deemed to refer to (i) the audited
consolidated balance sheet of the Company and its Subsidiaries as of
December 31, 2006 and as of December 31, 2005, together with audited
consolidated statements of income, and changes in shareholders' equity and
cash flow for the years then ended, including, in each case, the notes
thereto and the reports of independent certified public accountants and
(ii) the unaudited consolidated balance sheet of the Company and its
Subsidiaries dated as of March 31, June 30, September 30, and December 31,
2006 together with consolidated statements of income and changes in
shareholders' equity and cash flow, including notes thereto, if any for
each such quarterly period.
(c) As of the date of this Agreement and the Subsequent Closing
Date, as applicable, the Company and its Subsidiaries do not have any
Liabilities of a nature required by GAAP to be reflected on a balance sheet
or described in the footnotes thereto that were not adequately reflected or
reserved for in the Latest Balance Sheet, except (i) as set forth in the
Disclosure Schedule, (ii) for current liabilities incurred in the ordinary
course of business consistent with past practice since the date of the
Latest Balance Sheet or (iii) which, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
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Convertible Note and Stock Purchase Agreement
(d) The Company has delivered to the Investors true and correct
copies of the statutory financial statements of Satcom for the year ended
December 31, 2004 filed with the applicable Governmental Entity in the
United Kingdom in the ordinary course of business.
(e) On November 30, 2005, there were 111,362 billable subscriber
communicators provisioned on the ORBCOMM system.
3.07 Absence of Certain Changes. Except as set forth in Part 3.07
of the Disclosure Schedule or as expressly permitted by this Agreement or the
Transaction Documents, since the date of the Latest Balance Sheet, the Company
and its Subsidiaries have been operated only in the ordinary course of business
and the Company and its Subsidiaries have not suffered any Material Adverse
Effect, and no condition or event, change or development has occurred which,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect. As of the date of this Agreement and the Subsequent
Closing Date, as applicable, except (i) as set forth in the Disclosure Schedule,
(ii) as reflected or reserved against on the Latest Balance Sheet or (iii) for
current liabilities incurred in the ordinary course of business consistent with
past practice since the date of the Latest Balance Sheet, the Company has no
Liabilities that individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect.
3.08 Litigation. None of the Company or any of its Subsidiaries
are subject to any Order that prevents any of them from entering into this
Agreement or consummating the Transactions, or that materially restricts the
right or ability of the Company or any of its Subsidiaries to carry on their
business as now conducted or proposed to be conducted. Except as set forth in
Part 3.08 of the Disclosure Schedule, none of the Company or any of its
Subsidiaries, or any officer or director of any such entities is a party to or
engaged in any Action, nor is there any Action, suit, proceeding, or
investigation pending or, to the knowledge of the Company or any of its
Subsidiaries, threatened against the Company or any of its Subsidiaries, or any
officer or director of any such entities, which (i) questions the validity of
this Agreement or any of the Transaction Documents, (ii) questions the right of
the Company or any officer or director of any such entities to enter into such
agreements, (iii) questions or restricts the ability of the Company, any
Subsidiary, or any officer or director of any such entities to consummate the
Transactions, or (iv) would reasonably be expected to result, either
individually or in the aggregate, in a Material Adverse Effect or in any
material impairment of the right or ability of the Company or any of its
Subsidiaries, taken as a whole, to carry on their business as now conducted or
proposed to be conducted. Except as set forth in Part 3.08 of the Disclosure
Schedule, none of the Company, any Subsidiary of the Company, or any officer or
director of any such entities is a party to, named in or subject to, and none of
their assets are bound by, any order, writ, injunction, judgment, or decree of
any court, government, agency, or instrumentality. Except as set forth in Part
3.08 of the Disclosure Schedule, there is no action, suit, proceeding or
investigation initiated by the Company or any Subsidiary of the Company or any
officer or director of any such entities currently pending or that the Company
or any of its Subsidiaries currently intends to initiate.
3.09 Compliance with Laws; Permits.
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Convertible Note and Stock Purchase Agreement
(a) Except as set forth in Part 3.09(a) of the Disclosure
Schedule, each of the Company and its Subsidiaries is, and has been, in
compliance in all material respects with all Laws and Orders applicable to
them or to the conduct or operation of the Business or the ownership or use
of any of their respective assets, except for such violations or
non-compliance as would not individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Except as set forth on Part
3.09(a) of the Disclosure Schedule, no investigation or review by any
Governmental Entity with respect to the Company or any of its Subsidiaries
is pending or, to the knowledge of the Company or any of its Subsidiaries,
threatened, nor has any Governmental Entity indicated an intention to
conduct any such investigation or review.
(b) The Company and each of its Subsidiaries has or will have as
of the Initial Closing and the Subsequent Closing, as applicable, all
Permits which are required in order to conduct the Business as presently
conducted and as it will be conducted immediately following the closing and
to own and operate their respective properties and assets, except for such
Permits which if not obtained or held, would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Part
3.09(b) of the Disclosure Schedule contains a complete and accurate list of
material Permits held by the Company and its Subsidiaries. The Company and
each of its Subsidiaries is in compliance with each such Permit, except
where the failure to comply would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(c) The Company is not required to register any class of its
securities under or pursuant to the Securities Exchange Act.
3.10 Environmental Matters. The Company and each of its
Subsidiaries are, in compliance with, and are not in violation of or liable
under, any Environmental Law, including in connection with the acquisition,
storage, handling, transportation, processing, use, disposal or recycling of any
goods or materials, whether as raw materials, work-in-process, finished goods or
otherwise, except as would not reasonably be expected to have a Material Adverse
Effect.
3.11 Taxes.
(a) Except as set forth on Part 3.11(a) of the Disclosure
Schedule, all federal, state, local and foreign tax returns required to be
filed by or on behalf of the Company and its Subsidiaries or any
consolidated, combined, affiliated or unitary group of which the Company
and its Subsidiaries are or have ever been a member (including without
limitation any information returns or other statements relating to Taxes)
have been timely filed or requests for extensions have been timely filed
and any such extensions have been granted and have not expired. Except as
set forth on Part 3.11(a) of the Disclosure Schedule, all Taxes with
respect to taxable periods covered by such tax returns and all other
material Taxes for which the Company and its Subsidiaries otherwise liable
that are due have been paid in full (and if applicable properly withheld),
and adequate reserves have been established in accordance with GAAP with
respect to all unpaid Taxes that are not yet due and payable.
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Convertible Note and Stock Purchase Agreement
(b) Except as set forth on Part 3.11(b) of the Disclosure
Schedule, all Taxes with respect to any completed and settled audit,
examination or deficiency litigation with any taxing authority for which
the Company and its Subsidiaries are or might otherwise be liable have been
paid in full or adequate reserves have been established in accordance with
GAAP. Except as set forth on Part 3.11(b) of the Disclosure Schedule, there
is no audit, examination, deficiency or refund Action pending or, to the
knowledge of the Company or any of its Subsidiaries, threatened with
respect to any Taxes and no taxing authority has given written notice of
the commencement of any audit, examination or deficiency litigation with
respect to any Taxes.
(c) Except as set forth on Part 3.11(c) of the Disclosure
Schedule, no Encumbrances for Taxes exist with respect to any of the assets
of the Company or its Subsidiaries, except for item (ii) of the definition
of Permitted Encumbrances.
(d) There is no tax sharing agreement or other agreement, order
or obligation, written or verbal, binding upon the Company or any of its
Subsidiaries relating to the payment of federal or state income,
withholding or other taxes, including taxes of a foreign jurisdiction.
3.12 Employee Benefit and Labor Matters.
(a) Neither the Company nor any of its Subsidiaries is a party to
any contract regarding collective bargaining or other contract with any
labor union or association representing any employee employed by the
Company or any of its Subsidiaries or otherwise engaged in the Business,
nor does any labor union or collective bargaining agent represent any
employee employed by the Company or any of its Subsidiaries or otherwise
engaged in the Business. No contract regarding collective bargaining has
been requested by, or is under discussion between management of the Company
or its Subsidiaries (or any management group or association of which the
Company or its Subsidiaries is a member or otherwise a participant) and,
any group of employees employed by the Company or its Subsidiaries or
otherwise engaged in the Business, nor are there any representation
proceedings or petitions seeking a representation proceeding presently
pending against the Company or its Subsidiaries with the National Labor
Relations Board or any other labor relations tribunal, nor are there any
other current activities known to the Company or any of its Subsidiaries to
organize any employees of the Company or its Subsidiaries into a collective
bargaining unit. Except as set forth on Part 3.12(a) of the Disclosure
Schedule, there is no unfair labor practice charge or complaint pending or,
to the knowledge of the Company or its Subsidiaries, threatened. Except as
set forth on Part 3.12(a) of the Disclosure Schedule, since April 23, 2001,
there has been no labor strike, slow-down, work stoppage, arbitration,
grievances or other work-related dispute involving the Company or any of
its Subsidiaries or otherwise related to the Business, and no such dispute
is now pending or, to the knowledge of the Company or any of its
Subsidiaries, threatened against the Company or any of its Subsidiaries.
(b) Part 3.12(b) of the Disclosure Schedule sets forth a true,
accurate and complete list of each pension, retirement, savings, profit
sharing, deferred compensation, medical, vision, dental and other health
plan, disability, accident and life insurance plan,
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Convertible Note and Stock Purchase Agreement
bonus, stock option, stock purchase, incentive and special compensation and
other plan and each other employee benefit plan, program, and contract
(whether written or oral) which is related to the Business and to which the
Company or any of its Subsidiaries or any of their respective Affiliates
contributes or is required to contribute, or which the Company or any of
its Subsidiaries, or any of their respective Affiliates, sponsors,
maintains or administers or which is otherwise applicable to employees or
categories of employees of the Company or any of its Subsidiaries
(hereinafter referred to collectively as the "Plans"). Except as set forth
on Part 3.12(b) of the Disclosure Schedule, to the knowledge of the Company
or any of its Subsidiaries, the Plans have been in compliance in all
material respects with the requirements of ERISA and the Code.
(c) Except as set forth on Part 3.12(c) of the Disclosure
Schedule, none of the Plans is subject to Title IV of ERISA or Section 412
of the Code.
(d) None of the Company, any of its Subsidiaries or any of their
Affiliates has ever sponsored, maintained, participated or contributed to
or incurred any liability under any "multiemployer plan" (as defined in
Section 4001(a)(3) of ERISA or a "multiple employer plan" as defined in
Section 4.13(c) of the Code).
(e) Except as required under Section 4980B of the Code, none of
the Company or any of its Subsidiaries or any of their respective
Affiliates has any obligation to provide post-retirement health benefits to
employees of the Company or any of its Subsidiaries.
(f) Part 3.12(f) of the Disclosure Schedule sets forth a true,
accurate and complete list of each employment, consulting, termination,
retention and severance contract. All such contracts are valid and
enforceable, and no employee is in default in any material respect under
any thereof. Except as set forth on Part 3.12(f) of the Disclosure
Schedule, neither the execution, delivery or performance of this Agreement
or the Transaction Documents nor the consummation of the Transactions will
result in any obligation of the Company or any of its Subsidiaries to pay
any employees of severance pay, or termination, retention or other
benefits.
3.13 Real Property Owned or Leased; Title to Assets.
(a) Part 3.13(a) of the Disclosure Schedule contains a complete
and accurate list of all real property owned by the Company and its
Subsidiaries (the "Owned Property") and all real property leased,
subleased, occupied or used by the Company and its Subsidiaries (the
"Leased Property" and collectively with the Owned Property the "Real
Property"), indicating in each case, the ownership, street address and use
of each such property. The Company has previously delivered or made
available to the Investors, true and complete copies of all deeds for the
Owned Property.
(b) Except as set forth in Part 3.13(b) of the Disclosure
Schedule, and to the knowledge of the Company and its Subsidiaries, the
Company and its Subsidiaries have good and marketable title to all of the
Owned Property, free and clear of all Encumbrances, and are not subject to
any rights of way, building use restrictions, exceptions, variances,
reservations or limitations of any nature, except (i) liens for Taxes not
yet due or payable,
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Convertible Note and Stock Purchase Agreement
(ii) inchoate mechanic and materialmen liens for construction in progress,
and (iii) inchoate workmen's, repairmen's, warehousemen's and carrier's
liens arising in the ordinary course of business and minor imperfections of
title which do not, individually or in the aggregate, materially detract
from the value or impair the use, occupancy, value or marketability of such
Owned Property or impair the operations of the Company and its
Subsidiaries.
3.14 Sufficiency and Condition of Assets.
(a) The properties, assets and rights owned or leased by the
Company and its Subsidiaries constitute all properties (whether real or
personal or tangible or intangible), assets and rights necessary for the
Company and its Subsidiaries to conduct the Business after the Closing as
it is presently being conducted and as it will be conducted on the Closing
Date.
(b) The Company and its Subsidiaries have good and marketable
title to, or a valid leasehold interest in, all of their respective
personal property, free and clear of all Encumbrances, other than Permitted
Encumbrances except as set forth in Part 3.14(b) of the Disclosure
Schedule. The Facilities owned or leased by the Company and its
Subsidiaries are in good operating condition and repair and free from any
material defects, reasonable wear and tear excepted, and are suitable for
the uses for which they are being used and are performing the functions for
which they were intended.
(c) Part 3.14(c) of the Disclosure Schedule contains a list of
the Company's material tangible assets.
(d) Part 3.14(d) of the Disclosure Schedule contains a list of
(i) the location of each ground earth station (consisting of land,
building, fixtures, improvements and telemetry, tracking and control
equipment) and (ii) the number of satellites owned or leased by the Company
or any Subsidiary (collectively referred to as the "Satellite and Ground
Earth Station Assets"). Except as set forth in Part 3.14 of the Disclosure
Schedule, the improvements to the Satellite and Ground Earth Station Assets
and all material components used in connection therewith are in good
operating condition and repair, reasonable wear and tear excepted, and are
suitable for their intended purposes taking into account the satellite
constellation as a whole and its ability to provide coverage and service to
the Company, its customers and its business.
3.15 Material Contracts.
(a) Part 3.15(a) of the Disclosure Schedule identifies all of the
following written agreements, contracts, obligations or commitments to
which the Company or any of its Subsidiaries is a party or by which any of
their respective properties or assets is bound or affected:
(i) all agreements for the employment or retention of any
officer, employee or consultant which is not terminable by, the
Company or any of its Subsidiaries on less than 60 days' notice
without penalty or which provides for severance or other termination
payment to any such officer, employee or consultant if terminated
(except as imposed by Law);
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Convertible Note and Stock Purchase Agreement
(ii) all lease agreements pursuant to which the Company or any of
its Subsidiaries is the lessee of, or holds or uses, or is the lessor
of, or makes available for use, (A) any Real Property or (B) any
machinery, equipment, vehicle or other tangible personal property,
which has an aggregate annual future liability or receivable, as the
case may be, in excess of $25,000 and is not terminable by the Company
or any of its Subsidiaries by less than 60 days' notice without
penalty;
(iii) all agreements for the purchase by the Company or any of
its Subsidiaries of inventory, materials, equipment, supplies or
services (including any obligation to "take or pay" for such purchases
or sales) which call for an aggregate consideration of more than
$250,000 during the twelve month period ended December 31, 2005, or
more than $500,000 over the remaining term of such contract or group
of related contracts;
(iv) all value added reseller agreements entered into by the
Company or any of its Subsidiaries;
(v) all service license agreements and country representative
agreements entered into by the Company or any of its Subsidiaries;
(vi) all agreements (other than those provided for in clause (iv)
and (v) above) for the sale by the Company or any of its Subsidiaries
or services or pursuant to which the Company or any of its
Subsidiaries grants to any other Person a right or license to market
or sell the services of the Company or any Subsidiary;
(vii) all agreements relating in whole or in part to Intellectual
Property (including any option, license or other contract under which
the Company or any of its Subsidiaries is licensee or licensor of any
such Intellectual Property and contracts with current or former
employees, consultants or contractors regarding the appropriation or
nondisclosure of any Intellectual Property) other than commercial
software and hardware license agreements entered into in the ordinary
course of business;
(viii) all agreements evidencing indebtedness for borrowed money
in an amount in excess of $50,000 and all agreements constituting
guarantee or indemnities of obligations of third parties;
(ix) all agreements providing for or containing any mortgage,
pledge, security agreement, deed of trust, financing lease or similar
instrument granting an Encumbrance upon any Real Property or personal
property owned or used by the Company or any of its Subsidiaries;
(x) all agreements evidencing any loans made to any Persons or to
any officer, director or employee;
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Convertible Note and Stock Purchase Agreement
(xi) all stockholder agreements, joint venture agreements, joint
marketing agreements, research and development agreements, and any
other similar contracts;
(xii) all agreements between or among the Company or any of its
Subsidiaries, on the one hand and any of their Affiliates, on the
other hand;
(xiii) all agreements containing confidentiality or
non-disclosure obligations to or from the Company or any of its
Subsidiaries other than those entered into in the ordinary course of
business;
(xiv) all agreements for the purchase or sale (through the
acquisition of shares, assets or by merger, reorganization, or
otherwise) of any business, corporation, partnership, joint venture,
association or other business organization or any division, material
assets, operating unit or product line thereof;
(xv) all agreements which limit or purport to limit the ability
of the Company or any of its Subsidiaries to compete in any line of
business or with any Person or in any geographic area;
(xvi) all agreements with any Governmental Entity;
(xvii) all agreements containing any restrictions with respect to
payment of dividends or any other distributions in respect of the
capital stock of the Company or any of its Subsidiaries;
(xviii) all agreements providing for a power of attorney to or
from any Person;
(xix) all open purchase orders in excess of ten thousand dollars
($10,000) for modems as of and since the Latest Balance Sheet; and
(xx) all agreements which are otherwise material and is not
described in any of the categories specified in this Section.
Each item set forth or required to be set forth on Part 3.15(a) of the
Disclosure Schedule is referred to herein as a "Material Contract."
(b) Each Material Contract is in full force and effect and is
legal, valid, binding and enforceable in accordance with its terms, except
as enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws of general application relating
to or affecting creditors' rights and (ii) laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies. Neither the Company nor any of its Subsidiaries is in breach or
default of or, to the knowledge of the Company, alleged to be in breach or
default under any Material Contract except for such breaches and defaults
that, individually or in the aggregate would not reasonably be expected to
have a Material Adverse Effect. Except as set forth in Part 3.15(b) of the
Disclosure Schedule, to the knowledge of the Company and its Subsidiaries,
the other parties thereto
24
Convertible Note and Stock Purchase Agreement
have complied in all material respects with the obligations required to be
performed by them thereunder. Except as set forth in Part 3.15(b) of the
Disclosure Schedule, to the knowledge of the Company and its Subsidiaries,
no event has occurred or circumstance exists that (with or without lapse of
time or the giving of notice) may contravene, conflict with or result in a
violation or breach of or give the Company or any of its Subsidiaries or
any other Person the right to declare a default or exercise any remedy
under or to accelerate the maturity of or to cancel, terminate or modify,
any Material Contract, except for such as, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect. The Company and its Subsidiaries has previously delivered or made
available to the Investors, true and complete copies of all Material
Contracts.
(c) The Company is not a party to any written agreement, contract
obligation or commitment except for this Agreement, the Transaction
Documents, the Material Contracts and such other agreements, contracts,
obligations or commitments which are not material to the business
operations or prospects of the Company.
3.16 Insurance. Part 3.16 of the Disclosure Schedule contains a
true and complete list of all policies to which the Company and its Subsidiaries
are a party or which provides insurance coverage to or for the benefit of or
with respect to the Company and its Subsidiaries or any director or employee of
the Company and its Subsidiaries (the "Insurance Policies"). The Company has
previously delivered to the Investor, true and complete copies of all Insurance
Policies.
3.17 Intellectual Property.
(a) Part 3.17(a) of the Disclosure Schedule contains a true and
complete list of all material registrations and applications for
Intellectual Property owned by the Company or its Subsidiaries. In each
case, the registration number, date of issuance or registration, and the
title of such property is set forth in Part 3.17(a) of the Disclosure
Schedule. The property referenced in Part 3.17(a) of the Disclosure
Schedule, together with all designs, methods, inventions and know-how
related thereto, and all trademarks, tradenames, service marks and
copyrights owned by the Company or its Subsidiaries which have not been
registered, is referred to as the "Company's Intellectual Property." Part
3.17(a) of the Disclosure Schedule lists all material licenses held by the
Company or its Subsidiaries authorizing the use by the Company or its
Subsidiaries of computer software, patents, trademarks, servicemarks,
tradenames, copyrights, trade secrets or other items of intellectual
property used or useful to the Company's business (other than commercially
available over-the-counter "shrinkwrap" or "clickwrap" software). Part
3.17(a) of the Disclosure Schedule lists any material licenses, purchase
options, or other interests held by any Person in the Company's
Intellectual Property. There are no outstanding material options or
agreements of any kind held or entered into by the Company or any of its
Subsidiaries (other than the licenses listed in Part 3.17(a) of the
Disclosure Schedule) with respect to the patents, trademarks, service
marks, trade names, copyrights, trade secrets, licenses, information,
proprietary rights and processes of any other person or entity.
(b) Except as set forth in Part 3.17(b) of the Disclosure
Schedule, all of the Intellectual Property listed on Part 3.17(a) of the
Disclosure Schedule is currently in
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Convertible Note and Stock Purchase Agreement
compliance with Law in all material respects (including payment of filing,
examination, and maintenance fees and proofs of working or use), and is not
subject to any maintenance fees or Taxes or actions falling due within
ninety days after the Initial Closing Date or the Subsequent Closing Date,
as applicable.
(c) Except as set forth in Part 3.17(c) of the Disclosure
Schedule, no Intellectual Property owned by the Company or any of its
Subsidiaries or in which the Company or any of its Subsidiaries has any
rights has been or is now involved in any interference, reissue,
reexamination, or opposition proceeding.
(d) Except as set forth in Part 3.17(d) of the Disclosure
Schedule, to the knowledge of Company and its Subsidiaries, no Intellectual
Property owned by the Company or any of its Subsidiaries is being infringed
by any third party. Except as set forth in Part 3.17(d) of the Disclosure
Schedule, none of the Company or any of its Subsidiaries has received
written notice that any products manufactured and sold, or any process or
know-how used, by the Company and its Subsidiaries infringes any
Intellectual Property rights or other proprietary right of any other
Person.
(e) The Company and its Subsidiaries have taken reasonable
security measures to protect the secrecy, confidentiality, and value of its
Intellectual Property.
3.18 Customers. Part 3.18 of the Disclosure Schedule sets forth a
list of the twenty most significant customers in terms of revenues to the
Company and its Subsidiaries during the twelve month period ended September 30,
2005, showing the approximate total revenues of the Company and its Subsidiaries
from each customer during the period then ended. Except to the extent set forth
in Part 3.18 of the Disclosure Schedule, none of the Company or any of its
Subsidiaries have received any notice or have any reason to believe that any
significant customer of the Company or its Subsidiaries has ceased, or will
cease, to use the products, equipment, goods or services of the Company or its
Subsidiaries, or has substantially reduced or will substantially reduce, the use
of such products, equipment, goods or services at any time. No purchase order
listed on Part 3.15(a) of the Disclosure Schedule has been cancelled or reduced,
and the Company and its Subsidiaries, to the knowledge of the Company, have not
been notified of any reason that any purchaser will not fully perform and pay
the purchase price pursuant thereto.
3.19 Disclosure.
(a) No representation or warranty of the Company in this
Agreement and no statement contained in any Transaction Document contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements made herein or therein, in light of the
circumstances under which they were made, not misleading.
(b) No notice given pursuant to Section 5.02 will contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
3.20 Transactions With Affiliates. Except as set forth on Part
3.20 of the Disclosure Schedule or as set forth in the notes to the Financial
Statements, there are no
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Convertible Note and Stock Purchase Agreement
contracts, agreements or commitments between (a) the Company or (b) any of its
Subsidiaries, on the one hand, and any other respective Affiliates, on the other
hand. Except as set forth on Part 3.20 of the Disclosure Schedule or as set
forth in the Notes to the Financial Statements, since January 1, 2004, all
transactions and business dealings between the Company and its Subsidiaries, on
the one hand, and any of their Affiliates, on the other hand, have been on an
arms-length basis and on substantially prevailing market terms. For purposes of
this Section 3.20, the term "Affiliates" shall be deemed to include (but not be
limited to) any company in which any member, former member, executive officer or
director of the Company or any Subsidiary of the Company holds a five percent
(5%) or greater equity interest, individually or in combination with other
executive officers or directors of the Company.
3.21 Brokers or Finders. Except for UBS Securities LLC, L&L
Capital Partners LLC and Certified Advisory Corp., neither the Company nor any
of its Subsidiaries nor any of its or their respective Representatives has
incurred any Liability payable by the Company or any of its Subsidiaries for
brokerage or finders' fees or agents' commissions or other similar payment in
connection with the negotiation, preparation, delivery or execution of this
Agreement or the consummation of the Transactions, nor is there any basis, to
the knowledge of the Company, for any such fee, commission or similar payment to
be claimed by any Person.
3.22 Registration Rights. Except as provided in the Registration
Rights Agreement, the Company is not under any obligation to and has not granted
any rights to register under the Securities Act any of its presently outstanding
securities or any of its securities that may subsequently be issued.
3.23 Employee Matters. As of the date hereof, the Company employs
79 full-time employees and zero part-time employees and engages seven
consultants or independent contractors. Part 3.23 of the Disclosure Schedule
sets forth a detailed description of all compensation, including salary, bonus,
and deferred compensation paid or payable for each officer, employee, consultant
and independent contractor of the Company who received compensation in excess of
$200,000 for the fiscal year ended December 31, 2004 or is anticipated to
receive compensation in excess of $200,000 for the fiscal year ending December
31, 2005.
3.24 Side Letters. Except as set forth on Part 3.24 of the
Disclosure Schedule and other than the Transaction Documents, neither the
Company, any of its Subsidiaries or any of their Affiliates has any written
understandings, arrangements, or agreements with any stockholder of the Company.
3.25 FCC/Regulatory Matters.
(a) The Company and its Subsidiaries have all licenses, permits,
certificates, franchises, consents, waivers, registrations or other
regulatory authorizations from each Governmental Entity that regulates
telecommunications in each applicable jurisdiction, including without
limitation, (i) the appropriate foreign Governmental Entities (together
with any renewals, extensions, or modifications thereof and any additions
thereto made as of the Closing Date, the "Foreign Licenses"); and (ii) the
FCC (together with any renewals, extensions or modifications thereof and
any additions thereto made as of the Closing Date, the "FCC Licenses") in
each case that are required for the conduct of the
27
Convertible Note and Stock Purchase Agreement
business of the Company and its Subsidiaries as presently conducted, except
for Communications Licenses which if not obtained or held, would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Authorizations held by the Company's or any of its
Subsidiaries' Regional Licensees, Country Representatives, Subscriber
Communicator Manufacturers, U.S. Value Added Resellers, or International
Value Added Resellers are referred to as "Third Party Licenses." The FCC
Licenses, Foreign Licenses and Third Party Licenses are hereafter
collectively referred to as the "Communications Licenses." All of the
Communications Licenses held by the Company and any Subsidiary are set
forth in Schedule Part 3.09(b).
(b) Each of the FCC Licenses and Foreign Licenses, and, to the
knowledge of the Company, the Third Party Licenses, was duly issued, is
valid and in full force and effect, has not been suspended, canceled,
revoked or modified in any materially adverse manner and is not subject to
conditions or requirements that are not generally imposed on such
authorizations.
(c) Each holder of an FCC License and Foreign License and, to the
knowledge of the Company, a Third Party License, has operated in compliance
with all terms thereof; and each holder of a Communications License is in
compliance with, and the conduct of its business has been and is in
compliance with, the Communications Act and any applicable non-U.S.
regulations, and each such holder has filed all registrations and reports
and paid all required fees, including any renewal applications, required by
the Communications Act, any non-U.S. laws or regulations, except for such
noncompliance which would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(d) There is no pending or, to the knowledge of the Company,
threatened action by or before the FCC or any foreign Governmental Entity
to revoke, cancel, suspend, modify or refuse to renew any of the FCC
Licenses or Foreign Licenses, or, to the knowledge of the Company (without
any obligation to make a present inquiry or investigation), any of the
Third Party Licenses, and there is not now issued, outstanding or, to the
knowledge of the Company, threatened, any notice by the FCC or any foreign
Governmental Entity of any violation or complaint, or any application,
complaint, or proceeding (other than applications, proceedings, or
complaints that generally affect the Company's industry as a whole)
relating to the business or operations of the Company or any Subsidiary or,
to the knowledge of the Company, the business or operations of any holder
of a Third Party License.
(e) No event has occurred which permits the revocation or
termination of any material FCC License or Foreign License or the
imposition of any restriction thereon, or that would prevent any FCC
License or Foreign License from being renewed on a routine basis or in the
ordinary course.
(f) The execution, delivery and performance of this Agreement and
the other Transaction Documents, the consummation of the transactions
contemplated thereby, and the issuance and delivery of the Convertible
Notes and the Shares at the Initial Closing and the Subsequent Closing do
not require any registration, filing, application or notice by the Company
to the FCC or any foreign Governmental Entity, or any transfer, consent,
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Convertible Note and Stock Purchase Agreement
approval, audit, qualification, waiver or other action of any kind by the
FCC or any foreign Governmental Entity, except that in the subsequent
applications filed with the FCC it may be necessary to disclose any
shareholders owning of record or voting ten (10) percent or more of the
voting stock of the Company.
(g) The issuance and sale of the Convertible Notes and the Shares
on the date hereof by the Company and the compliance by the Company with
all of the provisions of this Agreement and the consummation of the
transactions contemplated thereby, do not and will not result in any
violation of the provisions of (a) the Communications Act or (b) any order
or decree of the FCC.
(h) Part 3.25(h) of the Disclosure Schedule contains a summary of
the status of frequency registration at the International
Telecommunications Union, including the frequency bands covered and any
system that may claim priority for any frequency bands in use by the
Company or any Subsidiary. To the knowledge of the Company, no person or
entity has asserted that it has rights to operate a spacecraft in a manner
that would result in interference with respect to any satellite operated by
the Company or any Subsidiary or any satellite for which the Company or any
Subsidiary has applied for a Communications License. To the knowledge of
the Company, there are no asserted disputes with any third party
(including, but not limited to, the FCC or any foreign Governmental Entity)
with respect to the Company or any Subsidiary's continued ability to
utilize any satellite in the manner that such satellite has been used in
connection with the business of the Company and any Subsidiary to date.
3.26 ITAR Matters.
(a) ORBCOMM LLC's ITAR Registration, identified in Part 3.26 if
the Disclosure Schedule, is presently in full force and effect in
accordance with 22 C.F.R. Section 122, with the next renewal submission due
on or before June 30, 2006;
(b) The Company is the holder of 4 approved and active ITAR
export authorizations, one approved but inactive ITAR export authorization
and have now pending 2 additional export authorization requests, as
identified in Part 3.26 of the Disclosure Schedules;
(c) The ORBCOMM LLC ITAR Registration and the ORBCOMM LLC ITAR
authorization and pending ITAR submissions listed in Part 3.26(a) of the
Disclosure Schedule constitute the only licenses, permits, and
authorizations presently required under ITAR to facilitate ORBCOMM's
conduct of business, as such business has been conducted to date, other
than such licenses, permits and authorizations which if not obtained or
held, would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect;
(d) There is no proceeding, complaint or investigation against
the Company or any of its Subsidiaries with respect to the Company's or any
of its Subsidiary's ITAR compliance, pending or overtly threatened in
writing by or before the Department of State Office of Defense Trade
Controls, other than proceedings affecting the satellite industry
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Convertible Note and Stock Purchase Agreement
generally, which, if determined adversely to the Company or any of its
Subsidiaries could reasonably be expected to have a Material Adverse
Effect; and
(e) The execution, delivery and performance this Agreement and
the other Transaction Documents, the consummation of the transactions
contemplated thereby, and the issuance and delivery of the Convertible
Notes and the Shares at the Initial Closing and the Subsequent Closing does
not violate any applicable provision of ITAR.
3.27 Minute Books. The minute books of the Company made available
to the Investors or their Representatives contain true and complete copies of
(i) minutes of all formal meetings of directors and stockholders since January
1, 2004 (and reflect all resolutions adopted at such meetings referred to in
such minutes accurately in all material respects) and (ii) all resolutions of
stockholders or directors adopted by written consent.
Except as expressly set forth herein or in the other Transaction Documents, the
Company and ORBCOMM LLC makes no representation or warranty, express or implied,
at equity, common law, by statute or otherwise.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Each Investor hereby severally, and not jointly, represents and
warrants to the Company as follows:
4.01 Organization and Good Standing. Such Investor is a
corporation or entity, duly incorporated or formed, validly existing and in good
standing under the laws of its jurisdiction of incorporation or formation and
has all requisite power and authority (corporate or otherwise) to conduct its
business in the manner in which it is presently being conducted, except where
the failure to be so organized, existing, and in good standing or to have such
power or authority would not prevent the consummation of the Transactions by
such Investor.
4.02 Due Authorization; Enforceability. Such Investor has all
requisite power and authority (corporate or otherwise) to execute, deliver and
perform, this Agreement and the Transaction Documents to which it is a party and
to consummate the Transactions. The execution, delivery and performance of this
Agreement and the Transaction Documents to which it is a party and the
consummation of the Transactions by such Investor has been duly authorized by
all necessary or appropriate action and no other proceedings are necessary to
authorize this Agreement or the Transaction Documents to which it is a party or
to consummate the Transactions. This Agreement and those Transaction Documents
to which it is a party executed or delivered on or prior to the date of this
Agreement constitute, and prior to the Initial Closing, the remaining
Transaction Documents to which it is a party required to be executed after the
date of this Agreement will constitute when executed, the valid and legally
binding obligations of the Investor (assuming that this Agreement and the
Transaction Documents to which it is a party constitute the valid and binding
obligations of the Investor), enforceable against such Investor in accordance
with their terms except as enforceability may be limited by applicable (i)
bankruptcy, insolvency, reorganization, moratorium and similar laws of general
applicability relating to or
30
Convertible Note and Stock Purchase Agreement
affecting creditors' rights and (ii) Laws relating to the availability of
specific performance, injunctive relief or other equitable remedies.
4.03 No Violation. Except for filings, Consents and Permits as
are set forth in Part 4.03 of the Disclosure Schedule, neither the execution,
delivery or performance of this Agreement by the Investor nor the consummation
of the Transactions will, with or without the giving of notice or lapse of time
or both (i) violate, conflict with or result in any breach of any provision of
the Certificate of Incorporation or By-laws or similar organizational documents
of such Investor; (ii) require any Permit or Consent of any Governmental Entity
to which the Investor is subject (except where the failure to obtain such
Permits or Consents would not prevent the consummation of the Transactions);
(iii) result in a violation or breach of, or constitute a default (or give rise
to any right of termination, amendment, cancellation or acceleration) under any
contract of such Investor or to any other obligation of such Investor; (iv)
violate, conflict with or result in any breach of any Order or Law applicable to
such Investor, except, in the cases of subparagraphs (iii) and (iv) for such
violations, breaches and defaults which do not, individually or in the
aggregate, prevent the consummation of the Transactions by such Investor.
4.04 Investment Intent.
(a) Such Investor is acquiring the Convertible Notes and Shares
solely for its own account for investment, and not with a view to
distribution, resale, subdivision or fractionalization thereof in violation
of applicable securities laws, and such Investor has no present plans to
enter into any contract, undertaking, agreement or arrangement for the
distribution, resale, subdivision or fractionalization of the Convertible
Notes and Shares.
(b) Such Investor understands that the Convertible Notes and
Shares are being offered and sold pursuant to an exemption from
registration provided by Section 4(2) of the Securities Act and the
provisions of Rule 506 of Regulation D thereunder. Such Investor (i) is an
"accredited investor" as that term is defined in Rule 501(a) of Regulation
D under the Securities Act; (ii) has the financial ability to bear the
economic risk of such Investor's investment in the Company (including the
complete loss of its investment); (iii) has adequate means of providing for
its current needs and contingencies and has no need for liquidity with
respect to its investment in the Company and (iv) has not taken any action
which would be encountered with or prevent compliance with the requirements
of Rule 506 under Regulation D.
(c) To the knowledge of such Investor, the Company has made
available to such Investor and/or its attorney and/or its accountant and/or
its representative all agreements, documents, books, records and reports
that it or they have requested relating to an investment in the Company.
Such Investor and/or its attorney and/or its accountant and/or its
representative all have had an opportunity to ask questions of and receive
answers from the Company, or a person or persons acting on its behalf,
concerning the terms and conditions of this investment. The foregoing,
however, does not limit or modify the representations or warranties of the
Company expressly set forth in Section 3 of this Agreement (as modified by
the Disclosure Schedule) or the right of the Investors to rely thereon.
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Convertible Note and Stock Purchase Agreement
4.05 Brokers or Finders. Neither such Investors nor any of its
Representatives have incurred any Liability for brokerage or finders' fees or
agents' commissions or other similar payment in connection with the negotiation,
preparation, delivery or execution of this Agreement or the consummation of the
Transaction, nor is there any basis, to the knowledge of such Investor, for any
such fee, commission or similar payment to be claimed by any Person.
4.06 Liability to Co-Investors. Such Investor acknowledges that
it is not relying upon any other Investor in making its investment or decision
to invest in the Company. Such Investor has had the opportunity to request and
obtain from the Company all the information such Investor considers necessary or
appropriate for deciding whether to purchase the Shares. No Investor, nor the
respective controlling persons, officers, directors, partners, agents or
employees of any such Investor, shall be liable to any other Investor in
connection with the information shared among Investors in connection with the
transactions described herein.
ARTICLE V
COVENANTS OF THE COMPANY
5.01 Consents and Approvals. Promptly after the date of this
Agreement, the Company will, and will cause its Subsidiaries to, (a) make all
filings required by Law to be made by it or them in connection with the
Transactions, (b) cooperate with the Investors with respect to all filings that
the Investors elect to make or are required by Law or this Agreement to make in
connection with the Transactions and (c) use commercially reasonable efforts to
obtain all Consents, Permits and Orders of all Persons required to be obtained
in connection with the execution, delivery and performance of this Agreement and
the consummation of the Transactions, including all Consents set forth on Parts
3.05, 3.15 and 4.03 of the Disclosure Schedule.
5.02 Notice of Certain Events. From the date of this Agreement
until the Subsequent Closing Date (or termination of the Company's obligation to
consummate the Subsequent Closing), the Company will promptly notify the
Investors in writing of (i) any notice or other communication from any Person
alleging that the Consent of such Person is or may be required in connection
with the execution, delivery or performance of this Agreement or any Transaction
Document or the consummation of the Transactions; (ii) any notice or other
communication from any Governmental Entity in connection with the Transactions;
(iii) any Actions or investigations commenced or, to the knowledge of the
Company, threatened against, relating to or involving or otherwise affecting the
Company or its Subsidiaries which could reasonably be likely to have a Material
Adverse Effect; (iv) any Order or notification relating to any material
violation or claimed violation of Law involving or otherwise affecting the
Company or any of its Subsidiaries; and (v) any failure of the Company or any of
its Subsidiaries to comply with or satisfy any covenant, condition or agreement
to be complied with or satisfied by it hereunder.
5.03 Use of Proceeds. The proceeds from the sale of the Shares
hereunder shall be used (i) to pay costs associated with launching new
satellites, and expanding and upgrading ground infrastructure, (ii) to pay all
the accrued and unpaid dividends on the Company's Series A Preferred Stock
through and including the Initial Closing Date, (iii) to
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Convertible Note and Stock Purchase Agreement
purchase from Sagamore Hill Hub Fund, Ltd., and its affiliates ("Sagamore"), up
to all of the shares of the Company's Series A Preferred Stock held by Sagamore
as of the Initial Closing Date at a price per share not to exceed $2.84 per
share plus accrued dividends thereon, and (iv) for working capital and other
general corporate purposes of the Company and its Subsidiaries. Part 5.03 of the
Disclosure Schedule sets forth the expected use of the proceeds with respect to
the uses in clause (i) above from the sale of the Convertible Notes and Shares
hereunder.
5.04 FCC Matters. As soon as practicable, and in any event within
thirty (30) Business Days after the date hereof, the Company shall make, or
shall cause its Subsidiaries to make, a filing with or application to the FCC to
ensure that the FCC's records reflect the 10% or greater shareholders of the
Company and clarification of the entities controlling the Company and any
Subsidiary.
5.05 Further Assurances. From and after the date of this
Agreement until the Subsequent Closing Date (or termination of the Company's
obligation to consummate the Subsequent Closing), the Company shall, and shall
cause each of its Subsidiaries to, use commercially reasonable efforts to take
promptly or cause to be taken, all actions, and do promptly, or cause to be
done, all actions necessary, proper and advisable to cause the conditions set
forth in Article X hereof to be satisfied; provided, however that the Company
shall not be required to take any action by this Section 5.05 that would prevent
the Company from consummating a Qualified Public Offering or Qualified Sale.
5.06 Conduct. From and after the date of this Agreement until the
Subsequent Closing Date (or termination of the Company's obligation to
consummate the Subsequent Closing), the Company shall not, and shall cause each
of its Subsidiaries (other than SATCOM or ORBCOMM Europe) not to, issue any
equity securities (other than in a Qualified Public Offering) if the primary
purpose of such issuance is to raise capital for the Company or any of its
Subsidiaries. For the avoidance of doubt, the issuance of equity securities by
the Company (i) pursuant to a employee stock option plan, directors arrangement
or employment or consulting agreement or (ii) to vendors or financial
institutions in connection with contracts or credit facilities, shall not be
deemed to be for the primary purpose of raising capital.
5.07 Delivery of Audited 2006 Financial Statements. The Company
shall use commercially reasonable efforts to deliver to Investors the Audited
2006 Financial Statements as soon as reasonably practicable after the December
31, 2006.
5.08 Chief Operating Officer. The Company shall use its
commercially reasonable efforts to hire a Chief Operating Officer as soon as
reasonably practicable following the date of this Agreement.
5.09 Directors and Officers Insurance. The Company shall use
commercially reasonable efforts to obtain Directors and Officers Insurance
reasonably satisfactory to Investors (with a coverage amount of not less than
$10,000,000) as soon as reasonably practicable following the date of this
Agreement (and in any event within 90 days following the date of this
Agreement).
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Convertible Note and Stock Purchase Agreement
ARTICLE VI
COVENANTS OF INVESTORS
6.01 Cooperation by the Investors. From the date of this
Agreement until the Subsequent Closing Date (or termination of the Investor's
obligation to consummate the Subsequent Closing), the Investors will use
commercially reasonable efforts to cooperate with the Company (i) to secure all
Consents and Permits from Persons identified in Part 3.05, 3.09(a) and 4.03 of
the Disclosure Schedule; (ii) to obtain any required FCC approval; and (iii)
with respect to all filings required to be made by the Company pursuant to Law
in connection with the Transactions.
ARTICLE VII
COVENANTS OF THE PARTIES
7.01 Reasonable Efforts.
(a) Each party will use commercially reasonable efforts to cause
all conditions precedent to its obligations to consummate the Transactions
(upon the terms and conditions set forth in Articles VIII, IX and X, as
applicable, to the Investors and the Company) to be satisfied provided,
however that the parties shall not be required to take any action by this
Section 7.01 that would prevent the Company from consummating a Qualified
Public Offering or Qualified Sale.
(b) In furtherance and not in limitation of the covenants of the
parties contained in this Section 7.01, each party agrees to use
commercially reasonable efforts to address such objections, if any, as may
be asserted with respect to the transactions contemplated hereby under the
Communications Act of 1934, as amended, any rule, regulation or policy of
the FCC, and/or any statute, rule, regulation or policy of any other
Governmental Entity with respect to the operation of channels of radio
communication and/or the provision of communications services
(collectively, "Communications Regulation"). In connection with the
foregoing, each party agrees to cooperate and use commercially reasonable
efforts to assist in any defense by any other party hereto of the
transactions contemplated by this Agreement before any Governmental
Authority reviewing the transactions contemplated by this Agreement,
including by promptly providing such information as may be reasonably
requested by such Governmental Authority or such assistance as may be
reasonably requested by the other party hereto in such defense.
(c) If any objections are asserted with respect to the
transactions contemplated hereby under any Communications Regulation or if
any suit is instituted by any Governmental Authority or any private party
challenging any of the transactions contemplated hereby as violative of any
Communications Regulation, the parties shall use commercially reasonable
efforts to resolve any such objections or challenge as such Governmental
Authority or private party may have to such transactions under such law so
as to permit consummation of the transactions contemplated by this
Agreement. In furtherance of the parties' obligations under this Section
7.01, the Investors and the Company shall be required to (and, to the
extent required by any Governmental Entity, shall cause any
34
Convertible Note and Stock Purchase Agreement
Subsidiary to), propose, negotiate, commit to and enter into one or more
settlements, undertakings, conditions, consent decrees, stipulations and
other agreements with or to one or more Governmental Entity (each, a
"Settlement") in connection with the transactions contemplated by this
Agreement (including obtaining the requisite consent of such Governmental
Entity); provided, however, that none of the parties nor any of their
affiliates shall be required to take (or direct the taking of) any of the
foregoing actions or any other action contemplated by this Section 7.01
that would reasonably be expected to have a Material Adverse Effect.
7.02 Further Assurances. From time to time after the Initial
Closing and the Subsequent Closing, the Company and the Investors will, at the
other's reasonable request, and at the requesting party's expense, execute and
deliver such instruments of transfer, conveyance, assignment and assumption, in
addition to those delivered at the Initial Closing and the Subsequent Closing,
and take such other action as any of them may reasonably request in order to
evidence the consummation of the Transactions.
7.03 Representation and Warranties. None of the Company or any of
the Investors will take or omit to take any action, the effect of which could
reasonably be expected to cause any of its representations and warranties made
herein to be inaccurate on the Initial Closing Date or the Subsequent Closing
Date, as the case may be.
7.04 Public Announcements. No press release or announcement
concerning the Transactions will be issued by any party without the prior
consent of the other parties, except as such release or announcement may be
required by Law, in which case the party required to make the release or
announcement will, to the extent practicable, allow the other party reasonable
time to comment on such release or announcement in advance of such issuance.
7.05 Confidentiality.
(a) If the Transactions are not consummated, the parties will
remain obligated under the Confidentiality Agreements.
(b) The Confidentiality Agreements will be deemed terminated at
and as of the Initial Closing, and the Company and each of the Investors
agree that, from and after the Initial Closing, to protect all of the
disclosing party's Confidential Information as confidential and proprietary
information and, except with the prior written consent of the disclosing
party or as otherwise specifically provided herein, shall not disclose,
copy or distribute such Confidential Information to any other Person;
provided that the Investors may disclose information on a confidential
basis to their Representatives and Affiliates.
(c) It shall not be deemed a breach of this Agreement if the
receiving party produces the Confidential Information under order of a
court of competent jurisdiction or a valid administrative, arbitral or
congressional subpoena, provided that the receiving party promptly notifies
the disclosing party of such event so that the disclosing party may seek an
appropriate protective order.
(d) The receiving party shall not make any use of the disclosing
party's Confidential Information for its own benefit or for the benefit of
any other Person.
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Convertible Note and Stock Purchase Agreement
(e) The receiving party shall not disclose all or any part of the
disclosing party's Confidential Information to any Representative of the
receiving party except on a need-to-know basis. The receiving party agrees
to inform any of its Representatives who receive the disclosing party's
Confidential Information of the confidential and proprietary nature thereof
and of such Representative's obligations with respect to the maintenance of
such Confidential Information in conformance with the terms of this
Agreement.
(f) The receiving party shall use the same degree of care to
protect the confidentiality of the Confidential Information disclosed to it
as it uses to protect its own Confidential Information, but in all events
shall use at least a reasonable degree of care. Each party represents that
such degree of care provides adequate protection for its own proprietary
information.
(g) The receiving party shall immediately advise the disclosing
party in writing of any misappropriation or misuse by any person of the
disclosing party's Confidential Information of which the receiving party is
aware.
(h) All Confidential Information that is furnished by or on
behalf of the disclosing party, including, without limitation, any copies
of such materials, shall be promptly returned by the receiving party to the
disclosing party upon written request by the disclosing party for any
reason. Any documents or materials prepared by or on behalf of the
receiving party (including, without limitation, reports, memoranda, notes,
files or analyses, whether in written or electronic form) which contain
Confidential Information, including all copies, shall promptly be destroyed
by the receiving party upon written request by the disclosing party for any
reason. Such destruction shall be certified by an officer of the receiving
party.
7.06 Supplements to Disclosure Schedule. The Company may, from
time to time after the Initial Closing Date and prior to the Subsequent Closing
Date, by written notice to the Investors, supplement or amend the Disclosure
Schedule (or the Agreement solely to add an appropriate reference to the
Disclosure Schedule) solely for the purposes of the representations and
warranties made by the Company and/or ORBCOMM LLC on and as of the Subsequent
Closing (a) disclose or correct any matter, condition, event or circumstance
occurring or arising after the date of this Agreement necessary or appropriate
to make any representation or warranty of the Company or ORBCOMM LLC in this
Agreement true and correct or (b) disclose or correct any matter, condition,
event or circumstance occurring or arising prior to the date of this Agreement
necessary or appropriate to make any representation or warranty of the Company
in this Agreement that is qualified "to the knowledge" of the Company true and
correct (but only to the extent the Company and/or ORBCOMM LLC did not have
knowledge thereof on the date of this Agreement and only to the extent the
matter, condition, event or circumstances described in such disclosure would not
have a Material Adverse Effect). With respect to any matter disclosed on such
supplements or amendments that is, in each case, necessary or appropriate to
make any representation or warranty true and correct, for all purposes of this
Agreement (including Articles III, X and XII) the Disclosure Schedule shall be
deemed to have been supplemented and amended to include such matters disclosed
on such supplements or amendments for purposes of the Subsequent Closing only,
and any claims with respect to such matters as they relate to the Subsequent
Closing shall be deemed to be waived by the
36
Convertible Note and Stock Purchase Agreement
indemnified parties and the indemnified parties shall not be entitled to make
any claims with respect thereto. For the avoidance of doubt, such supplements or
amendments shall in no way reduce the liability of the Company and/or ORBCOMM
LLC for representations and warranties made on the date of this Agreement or the
Initial Closing Date.
7.07 Application of Series A Dividends. Each party agrees and
acknowledges that SES Global Participations SA and Ridgewood Satellite LLC may
use proceeds from the payment of the accrued dividends on the Series A Preferred
Stock to purchase an amount not to exceed 446,650 shares and 334,988 shares of
Series B Preferred Stock, respectively, at a purchase price of $4.03 per share,
so long as such purchase is consummated within 5 days of the payment of such
accrued dividends by the Company (which payment of accrued dividends shall occur
no later than January 6, 2006). So long as all the conditions set forth in this
Section 7.07 are satisfied, this Section 7.07 shall evidence the consent and
approval of the Investors under the provisions of 6(a)(iv) of the Restated
Certificate with respect to the issuance of Series B Preferred Stock described
in the prior sentence.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF COMPANY
The Company's obligations under this Agreement and the Transaction
Documents to each Investor are subject to the satisfaction, at or prior to the
Initial Closing and the Subsequent Closing, as the case may be, of each of the
following conditions (any of which may be waived by the Company, in writing, in
whole or in part):
8.01 Representation, Warranties and Covenants. The
representations and warranties made by such Investor in this Agreement and the
Transaction Documents (x) that are qualified as to materiality will be true and
correct in all respects and (y) that are not qualified as to materiality will be
true and correct in material respects, in each case as of the date of this
Agreement and on the Initial Closing Date or the Subsequent Closing Date, as the
case may be, with the same effect as if made on and as of each such date
(provided, however, that such representations which are made as of a specific
date shall be so true and correct as of such date).
(a) Such Investor will have performed in all material respects
each of its covenants and agreements required to be performed by it
pursuant to this Agreement and the Transaction Documents on or prior to the
Initial Closing or the Subsequent Closing Date, as the case may be.
(b) The Company will have received a certificate from such
Investor, executed by an officer of such Investor, dated as of the Initial
Closing Date or the Subsequent Closing Date as the case may be, reasonably
satisfactory to the Company and its counsel, certifying that the conditions
set forth in this Section 8.01 have been fulfilled in all material
respects.
8.02 Governmental Consents. All Consents and Permits of all
Persons required to be obtained prior to the Initial Closing and the Subsequent
Closing, as the case may be, in connection with the execution, delivery and
performance of this Agreement and the Transaction Documents shall have been
obtained in form and substance reasonably satisfactory
37
Convertible Note and Stock Purchase Agreement
to the Company and its counsel and will be in full force and effect, including
the applicable Consent and Permits, if any, set forth on Part 3.05 and 4.03 of
the Disclosure Schedule and any approval required under the HSR Act or by the
FCC.
(a) No order from any Governmental entity, or part thereof,
challenges or seeks to prohibit or limit the ownership or operation of all
or any portion of the Business or assets of the Company or ORBCOMM LLC or
the Shares.
8.03 No Injunction. There will not be in effect any Law or Order
issued by any court of competent jurisdiction or other Governmental Entity that
restrains or prohibits the consummation of the Transactions; provided, however,
that if such Order is in effect the Company will use commercially reasonable
efforts to have any such Order vacated or reversed.
8.04 Other Agreements. Such Investor shall have delivered to the
Company the Second Amended and Restated Preferred Stock Voting Agreement, dated
December 30, 2005 in the form attached as Exhibit D and the Second Amended and
Restated Registration Rights Agreement, dated December 30, 2005 in the form
attached as Exhibit B, in each case duly executed by such Investor, on or prior
to the Initial Closing.
8.05 No Qualified Public Offering or Qualified Sale. Since the
date of this Agreement, there shall not have occurred a Qualified Public
Offering or Qualified Sale.
8.06 Change of Control. With respect to the Subsequent Closing
only, since the Initial Closing Date, there shall not have occurred a Change of
Control.
ARTICLE IX
CONDITIONS TO THE OBLIGATIONS OF INVESTORS WITH RESPECT TO THE
INITIAL CLOSING
Each Investor's obligations under this Agreement and the Transaction
Documents are subject to the satisfaction at or prior to each of the Convertible
Note Closing and the Initial Share Closing, of each of the following conditions.
9.01 Representations, Warranties and Covenants.
(a) The representations and warranties made by the Company and
ORBCOMM LLC in this Agreement and the Transaction Documents (x) that are
qualified as to materiality will be true and correct in all respects and
(y) that are not qualified as to materiality will be true and correct in
all material respects, in each case as of the date of this Agreement and on
the Initial Closing Date, with the same effect as if made on and as of each
such date (provided, however, that such representations which are made as
of a specific date shall be so true and correct as of such date).
(b) Each of the Company and ORBCOMM LLC will have performed in
all material respects each of the covenants and agreements required to be
performed by it pursuant to this Agreement and the Transaction Documents on
or prior to the Initial Closing.
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Convertible Note and Stock Purchase Agreement
(c) The Investors will have received the following certificates:
(i) a certificate executed by an officer of the Company,
dated as of the Initial Closing Date, reasonably satisfactory to the
Investors and their counsel, certifying that the conditions set forth
in this Article IX have been fulfilled;
(ii) a certificate of the Secretary of the Company
certifying copies of the Certificate of Incorporation and Bylaws of
the Company, and certifying a copy of all corporate resolutions
required in connection with the transactions contemplated in this
Agreement and the Transaction Documents; and
(iii) a certificate of Good Standing from the Delaware
Secretary of State for the Company and ORBCOMM LLC.
9.02 Consents.
(a) Consents and Permits of all Persons required to be obtained
prior to the Initial Closing in connection with the execution, delivery and
performance of this Agreement and the Transaction Documents by the Company
and its Subsidiaries shall have been obtained in form and substance
reasonably satisfactory to the Investors and their counsel and will be in
full force and effect, including the applicable Consents and Permits set
forth on Part 3.05 of the Disclosure Schedule and any approvals required
under the HSR Act or by the FCC.
(b) No Order from any Governmental Entity, or part thereof,
challenges or seeks to prohibit or limit the ownership or operation of all
or any portion of the Business or assets of the Company or its Subsidiaries
or the Convertible Notes or Shares.
9.03 No Litigation. Since the date of this Agreement, no new
Action will have been threatened, instituted or pending which (a) challenges or
seeks to restrain or prohibit the consummation of the transactions contemplated
by the Transaction Documents or the performance of the Agreement or the
Transaction Documents, (b) challenges or seeks to prohibit or limit the
ownership or operation of all or any portion of the Company, the Business or
assets of the Company or any of its Subsidiaries or the Convertibles Notes or
Shares or compels or seeks to compel the Investors or their Affiliates to
dispose of or hold separate all or any portion of the Business or assets of the
Company or any of its Subsidiaries, or (c) has had, or could reasonably be
expected to have, a Material Adverse Effect on the Company or its Subsidiaries.
9.04 No Prohibition. On or after the date of this Agreement,
there will not exist or have been enacted, entered, enforced, promulgated or
deemed applicable to the Transaction, any Law, Order or any other action taken
by any court or other Governmental Entity that has resulted, or could reasonably
be expected to result, directly or indirectly, in any of the consequences
referred to in Section 9.03.
9.05 No Material Adverse Change. Since the date of this
Agreement, there shall not have occurred a Material Adverse Change.
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Convertible Note and Stock Purchase Agreement
9.06 Legal Opinion. The Investors shall have received opinions of
Chadbourne & Parke LLP, special counsel to the Company, as to corporate matters
and from Wilkinson, Barker & Knauer, LLP as to certain regulatory matters, in
the forms attached hereto as Exhibit K and Exhibit L, respectively.
9.07 Management Rights Letter. The Company and ORBCOMM LLC shall
have entered into a Management Rights Letter in the form of Exhibit F attached
hereto with each of the Investors.
9.08 Board Composition. As of the Initial Closing, the Company's
Board of Directors shall be comprised of: Jerome B. Eisenberg, Don Franco, Marco
Fuchs, Peter Schiff, Leslie Golden, Robert Gold, Robert Bednarek, Tim Kelleher
and Matthew Lesesky.
9.09 Director's Indemnification Agreement. The Company shall have
entered into Indemnification Agreements in the form of Exhibit G attached hereto
with each member of the Company's Board of Directors.
9.10 Amendment of By-Laws. The By-Laws of the Company shall have
been amended to the satisfaction of the Investors.
9.11 Effectiveness and Amendment of Initial Tranche Series B
Preferred Stock Documents. The transaction documents to be entered into in
connection with the First Tranche Series B Preferred Stock including the Amended
and Restated Stockholders Agreement, dated November 18, 2005, (ii) the Amended
and Restated Registration Rights Agreement, dated November 18, 2005, (iii) the
Amended and Restated Preferred Stock Voting Agreement, dated November 18, 2005,
(iv) the Amended and Restated Common Stock Voting Agreement, dated November 18,
2005, and (v) the Second Amended and Restated Certificate of Incorporation,
shall each have become effective.
9.12 Stockholder Approval and Effectiveness of Amendments to
Transaction Documents. The Investors shall have been provided with evidence to
their satisfaction that appropriate majorities of the Company's stockholders
shall have authorized and approved the Company's (i) the Second Amended and
Restated Stockholders Agreement, dated December 30, 2005 in the form attached
hereto as Exhibit C, (ii) the Second Amended and Restated Registration Rights
Agreement, dated December 30 , 2005 in the form attached hereto as Exhibit B,
(iii) the Second Amended and Restated Preferred Stock Voting Agreement, dated
December 30, 2005, in the form attached hereto as Exhibit D, and (iv) the Third
Amended and Restated Certificate of in the form attached hereto as Exhibit A,
and that all such Transaction Documents shall be in full force and effect.
9.13 Convertible Noteholder Approval. The Investors shall have
been provided with evidence to their satisfaction that a majority of the
Convertible Noteholders (determined immediately prior to the Convertible Note
Closing) shall have approved and consented to (i) the Second Amended and
Restated Stockholders Agreement, dated December 30, 2005 in the form attached
hereto as Exhibit C, (ii) the Second Amended and Restated Registration Rights
Agreement, dated December
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Convertible Note and Stock Purchase Agreement
30, 2005 in the form attached hereto as Exhibit B, (iii) the Second Amended and
Restated Preferred Stock Voting Agreement, dated December 30, 2005, in the form
attached hereto as Exhibit D, and (iv) the Third Amended and Restated
Certificate of in the form attached hereto as Exhibit A.
9.14 Satcom Acquisition. The Investors shall have been provided
with evidence to their satisfaction that the transactions contemplated by the
Contribution Agreement, dated February 17, 2004, a copy of which is attached
hereto as Exhibit H, shall have been consummated.
9.15 Stock Option Plan. The Company shall have adopted the 2006
Stock Option Plan attached hereto as Exhibit J and shall have reserved for
issuance thereunder 4,851,905 shares of Common Stock.
ARTICLE X
CONDITIONS TO THE OBLIGATIONS OF THE INVESTORS WITH RESPECT TO THE
SUBSEQUENT CLOSING
Each Investor's obligations under this Agreement and the Transaction
Documents are subject to the satisfaction at the Subsequent Closing, of each of
the following conditions.
10.01 Representations, Warranties and Covenants.
(a) The representations and warranties made by the Company and
ORBCOMM LLC in this Agreement and the Transaction Documents (x) that are
qualified as to materiality will be true and correct in all respects and
(y) that are not qualified as to materiality will be true and correct in
all material respects, in each case as of the date of this Agreement and on
the Subsequent Closing Date, with the same effect as if made on and as of
each such date (provided, however, that such representations which are made
as of a specific date shall be so true and correct as of such date).
(b) The Company and ORBCOMM LLC will each have performed in all
material respects each of the covenants and agreements required to be
performed by each of them pursuant to this Agreement and the Transaction
Documents on or prior to the Subsequent Closing.
(c) The Investors will have received the following certificates:
(i) a certificate executed by an officer of the Company,
dated as of the Subsequent Closing Date, reasonably satisfactory to
the Investors and their counsel, certifying that the conditions set
forth in this Article X have been fulfilled;
(ii) a certificate of the Secretary of the Company
certifying copies of the Certificate of Incorporation and Bylaws of
the Company, and certifying a copy of all corporate and limited
liability company resolutions required in connection with the
transactions contemplated in this Agreement and the Transaction
Documents; and
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Convertible Note and Stock Purchase Agreement
(iii) a certificate of Good Standing from the Delaware
Secretary of State for the Company and ORBCOMM LLC.
10.02 Consents.
(a) All Consents and Permits of all Persons required to be
obtained prior to the Subsequent Closing in connection with the execution,
delivery and performance of this Agreement and the Transaction Documents by
the Company and its Subsidiaries shall have been obtained in form and
substance reasonably satisfactory to the Investors and their counsel and
will be in full force and effect, including the applicable Consents and
Permits set forth on Part 3.05 of the Disclosure Schedule and any approvals
required under the HSR Act or by the FCC.
(b) No Order from any Governmental Entity, or part thereof,
challenges or seeks to prohibit or limit the ownership or operation of all
or any portion of the Business or assets of the Company or its Subsidiaries
or the Shares.
10.03 No Litigation. Since the date of this Agreement, no new
Action will have been threatened, instituted or pending which (a) challenges or
seeks to restrain or prohibit the consummation of the Transactions or the
performance of the Agreement or the Transaction Documents, (b) challenges or
seeks to prohibit or limit the ownership or operation of all or any portion of
the Company, the Business or assets of the Company or any of its Subsidiaries or
the Shares or compels or seeks to compel the Investors or their Affiliates to
dispose of or hold separate all or any portion of the Business or assets of the
Company or any of its Subsidiaries, or (c) is a Material Adverse Change.
10.04 No Prohibition. On or after the date of this Agreement,
there will not exist or have been enacted, entered, enforced, promulgated or
deemed applicable to the Transactions, any Law, Order or any other action taken
by any court or other Governmental Entity that has resulted, or could reasonably
be expected to result, directly or indirectly, in any of the consequences
referred to in Section 10.03.
10.05 No Material Adverse Change. Since the date of this
Agreement, there shall not have occurred any Material Adverse Change (other than
a Material Adverse Change that has been cured or otherwise eliminated such that,
as of the Subsequent Closing Date, the events or circumstances giving rise to
such Material Adverse Change no longer constitute a Material Adverse Change),
including, without limitation, any change(s), matter(s), condition(s), event or
circumstance(s) disclosed by way of amendment, revision or supplement to the
Disclosure Schedule pursuant to Section 7.06 hereof that would constitute,
individually or in the aggregate, a Material Adverse Change.
10.06 No Qualified Public Offering or Qualified Sale. Since the
date of this Agreement there shall not have occurred a Qualified Public Offering
or Qualified Sale.
10.07 Legal Opinion. The Investors shall have received opinions
of Chadbourne & Parke LLP, special counsel to the Company, as to corporate
matters and from Wilkinson, Barker & Knauer, LLP as to certain regulatory
matters, each dated as of and covering
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Convertible Note and Stock Purchase Agreement
matters as of the Subsequent Closing Date and each substantially in the form of
the opinions provided at the Initial Closing with such changes as are reasonably
acceptable to the Investors.
10.08 Insolvency Event. Since the Initial Closing Date, there
shall not have occurred an Insolvency Event.
10.09 Change of Control. Since the Initial Closing Date, there
shall not have occurred a Change of Control.
10.10 Subscribers. The Company shall have at least 150,000
billable subscribers as of the Subsequent Closing Date.
10.11 Net Revenue. The Company and its Subsidiaries on a
consolidated basis shall have net revenue for the fiscal year ended December 31,
2006 of at least $20,000,000.
10.12 2006 Financial Statements. Investors shall have received
the consolidated balance sheet of the Company as of December 31, 2006, together
with the consolidated statements of income and changes in shareholders' equity
and cash flows (including notes thereto), audited by an independent accounting
firm of recognized national standing (the "Audited 2006 Financial Statements").
ARTICLE XI
Intentionally Deleted.
ARTICLE XII
SURVIVAL AND INDEMNIFICATION
12.01 Survival and Indemnification.
(a) The parties may assert claims for breach and indemnification
under this Agreement; provided that the representations and warranties made
in this Agreement, and the right of the parties to assert claims for
indemnification under this Agreement, will survive the Initial Closing
until sixty (60) days following the delivery to the Investors of the
Company's audited financial statements for 2006, and will survive the
Subsequent Closing, if applicable, until the later of (i) sixty (60) days
following the delivery to the Investors of the Company's audited financial
statement for 2007 and (ii) twelve months following the Subsequent Closing
Date, and will thereupon expire together with any right to commence any
Action for breach thereof (except to the extent a written notice asserting
a Claim for breach of any such representation or warranty has been given
prior to such date to the party which made such representation or warranty,
in which case such representation or warranty will survive, to the extent
of such Claim only, until such Claim is resolved). Notwithstanding the
foregoing, (i) the representations and warranties contained in Section 3.02
of this Agreement will survive each of the Initial Closing and the
Subsequent Closing forever, and (ii) the representations and warranties set
forth in Sections 3.01, 3.04, 3.05, 3.09 and 3.11 will survive each of the
Initial Closing and the Subsequent Closing until the expiration of the
applicable statute of limitations. The covenants and agreements contained
in this Agreement
43
Convertible Note and Stock Purchase Agreement
and in the Transaction Documents will survive each of the Initial Closing
and Subsequent Closing until the expiration of the applicable statute of
limitations or such earlier times as expressly set forth in this Agreement
or such Transaction Document.
(b) The Company and ORBCOMM LLC jointly and severally agree to
indemnify and hold harmless each Investor and each of their affiliates and
their respective officers, directors, employees, agents, advisors and other
representatives (each, an "Indemnified Party") from and against (and will
reimburse each Indemnified Party as the same are incurred for) any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, the reasonable fees, disbursements and other charges of
counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of any claim made by a Convertible Noteholder against the
Indemnified Party arising from the transactions contemplated by this
Agreement (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in
connection with such claim).
12.02 Limitations on Liability.
(a) Certain Limitations. (i) No party will be entitled to any
recovery from any other party unless a Claim specifying the factual basis
of that Claim in reasonable detail to the extent then known, is made on or
before the expiration of time period for survival set forth in Section
12.01; and (ii) damages to any party hereunder will be decreased by
insurance proceeds or payments from any other responsible parties actually
received by such party (after deducting costs and expenses incurred in
connection with recovery of such proceeds) and will be increased to take
account of any net tax cost incurred by the party from whom a recovery is
sought arising from the receipt of payments hereunder (grossed up for such
increase).
(b) Limitation on Amount - the Investors. The Investors will not
be entitled to recover any amounts (i) for any breach of any representation
or warranty made by the Company, ORBCOMM LLC or any Transaction Document or
(ii) for any breach of any covenant, agreement or other obligation of the
Company hereunder or in any Transaction Document unless and until the
amount by which the aggregate amount that the Investors would be entitled
to recover in respect of such Claims exceeds $500,000 (the "Threshold"), in
which event the Investor shall be entitled to recover the entire amount in
respect of such Claims together with reasonable actual legal fees and
expenses; provided, however, that the maximum amount recoverable by an
Investor in respect of any such claims hereunder will not, in the
aggregate, exceed the purchase price for the Convertible Notes and Shares
paid by such Investor and provided further, however, that individual
unrelated Claims less than $50,000 may not be aggregated for purposes of
reaching the Threshold. The limitations set forth in this Section 12.02(b)
shall not apply to the provisions of Section 12.01(b).
(c) Limitation on Amount - the Company. The Company will not be
entitled to recover any amounts (i) for any breach of any representation or
warranty made by any Investor in this Agreement or in any Transaction
Document or (ii) for any breach of any covenant, agreement or other
obligation of any Investor in this Agreement or in any
44
Convertible Note and Stock Purchase Agreement
Transaction Document unless and until the amount by which the Company is
entitled to recover in respect of such Claims exceeds $500,000 ("the
Company Threshold") in which event the entire amount in respect of such
Claims will be payable together with its reasonable actual legal fees and
expenses; provided, however, that the maximum amount recoverable from any
Investor in respect of any such claims hereunder will not exceed the
purchase price for the Shares paid by such Investor; provided further,
however, that individual unrelated Claims less than $50,000 may not be
aggregated for purposes of reaching the Company Threshold.
(d) Limitation on Liability. Under no circumstances shall any
party hereunder (or any of their Affiliates or Representatives) be liable
to any other party (or any of their Affiliates or Representatives) for
incidental, special or consequential damages of any kind, including lost
profits, loss of business, damages to reputation whether in contract, tort
or otherwise.
(e) Sole and Exclusive Remedy. Except as set forth in Section
13.12 and except for fraud, the indemnification provisions of this Article
XII shall be the sole and exclusive remedy of each party (i) for any breach
of the other party's representations, warranties, covenants or agreements
contained in this Agreement or (ii) otherwise with respect to this
Agreement or the transactions contemplated by this Agreement.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.01 Fees and Expenses. Subject to the Initial Closing
occurring, on the Initial Closing Date, the Company shall pay to PCG a
transaction fee of $425,000 (the "Transaction Fee"). Such fee shall be
non-refundable to the Company and can be deducted by PCG from any amount owed by
a PCG Entity to the Company hereunder, including, without limitation, the
purchase price of any securities purchased by a PCG Entity hereunder. In
addition to the foregoing, subject to the Convertible Note Closing and/or
Subsequent Closing, as the case may be, occurring, on each of the Initial
Closing Date and the Subsequent Closing Date, (i) the Company shall pay to PCG
all reasonable out-of pocket expenses of the PCG Entities associated with the
transactions contemplated hereby, including, without limitation, the costs
associated with any due diligence investigations and the preparation,
negotiation, execution and delivery of definitive legal documentation including
any fees of legal counsel ("PCG Transaction Expenses"); provided however, that
the Company's obligation to pay PCG Transaction Expenses shall not exceed
$700,000 and (ii) the Company shall pay to MH all reasonable out-of pocket
expenses of MH associated with the transactions contemplated hereby, including,
without limitation, the costs associated with any due diligence investigations
and the preparation, negotiation, execution and delivery of definitive legal
documentation including any fees of legal counsel ("MH Transaction Expenses"
and, together with the PCG Transaction Expenses, the "Transaction Expenses");
provided however, that the Company's obligation to pay MH Transaction Expenses
shall not exceed $50,000. The Transaction Expenses shall be non-refundable to
the Company and can be deducted by PCG and MH from any amount owed by a PCG
Entity and MH (as the case may be) to the Company hereunder, including, without
limitation, the purchase price of any securities purchased by a PCG Entity or MH
hereunder.
45
Convertible Note and Stock Purchase Agreement
The parties agree that all costs, fees and expenses incurred by the Company or
any of its Subsidiaries arising out of or related to the negotiation,
preparation, execution, delivery or performance of this Agreement or the other
Transaction Documents or the consummation of the transactions contemplated
hereby, will be paid by the Company.
13.02 Notices. All notices, consents, waivers and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written or electronic
confirmation of receipt), (b) sent by facsimile (with written confirmation of
receipt), provided, that a copy is mailed by registered mail, return receipt
requested, or (c) when received by the addressee, if sent by a nationally
recognized overnight delivery service (receipt requested), in each case to the
appropriate addresses and facsimile numbers set forth below (or to such other
addresses and facsimile numbers as a party may designate by written notice to
the other parties):
(a) If to the Company:
ORBCOMM Inc.
2115 Linwood Avenue, Suite 100
Fort Lee, NJ 07024
Attention: Chief Executive Officer and General Counsel
Facsimile No.: 703-433-6400
with a copy to:
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, NY 10112
Attention: Alejandro San Miguel
Facsimile No.: 212-541-5369
(b) If to the Investors:
to the addresses set forth on the signature pages.
with a copy to:
In the case of PCG,
Latham & Watkins LLP
633 West Fifth Street
Los Angeles, CA 90071
Attn: W. Alex Voxman
Facsimile No.: 213-891-8763
In the case of MH:
McDermott Will & Emery, LLP
46
Convertible Note and Stock Purchase Agreement
227 West Monroe Street
Chicago, IL 60606
Attn: Mark A. Harris
Facsimile No.: 312-984-7700
13.03 Jurisdiction; Service of Process. Each of the parties
hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the (a) Supreme Court of the State of New York, New
York County and (b) United States District Court for the Southern District of
New York, for any actions, suits or proceedings arising out of or relating to
this Agreement, the Transaction Documents and the Transaction (and agrees not to
commence any action, suit or proceeding relating thereto except in such courts),
and further agrees that service of any process, summons, notice or document by
U.S. registered mail to its respective address set forth in Section 13.02 will
be effective service of process for any action, suit or proceeding brought
against it in any such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of or relating to this Agreement, the Transaction
Documents or the Transaction in the courts of the State of New York or the
United States of America located in the City of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
13.04 Governing Law. This Agreement will be construed in
accordance with and governed by the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such State
without regard to conflicts of laws principles thereof.
13.05 Waiver. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by any party in exercising any right, power or privilege under this Agreement or
the documents referred to in this Agreement will operate as a waiver of such
right, power or privilege, and no single or partial exercise of any such right,
power or privilege will preclude any other or further exercise of such right,
power or privilege or the exercise of any other right, power or privilege. To
the maximum extent permitted by Law, (a) no Claim or right arising out of this
Agreement or the Transaction Documents can be discharged by one party, in whole
or in part, by a waiver or renunciation of the Claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given and will not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure or noncompliance; and (c) no notice to or demand on one party will be
deemed to be a waiver of any obligation of such party or of the right of the
party giving such notice or demand to take further action without notice or
demand as provided in this Agreement or the Transaction Documents.
13.06 Entire Agreement and Modification. This Agreement, the
Transaction Documents and the Confidentiality Agreements constitute a complete
and exclusive statement of the terms of the agreement between the parties with
respect to an investment in the Company and supersede all prior agreements
between the parties.
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Convertible Note and Stock Purchase Agreement
13.07 Amendment and Waiver. This Agreement may be amended or
terminated and the observance of any term of or condition in this Agreement may
be waived with respect to all parties to this Agreement (either generally or in
a particular instance and either retroactively or prospectively), with the
written consent of the Company and the Majority Holders. Notwithstanding the
foregoing, this Agreement may not be amended or terminated and the observance of
any term hereunder may not be waived with respect to any Investor without the
written consent of such Investor unless such amendment, termination or waiver
applies to all Investors in the same fashion. The Company shall give prompt
written notice of any amendment or termination hereof or waiver hereunder to any
party hereto that did not consent in writing to such amendment, termination or
waiver. Any amendment, termination or waiver effected in accordance with this
Section 13.07 shall be binding on all parties hereto, even if they do not
execute such consent. No waivers of or exceptions to any term, condition or
provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
13.08 Assignments, Successors, and No Third-Party Beneficiaries.
No party may assign any of its rights under this Agreement or any Transaction
Document without the prior written consent of the other parties to this
Agreement; provided, however, that an Investor may assign this Agreement to an
Affiliate or any limited partnership, limited liability company or fund with the
same fund manager as such Investor without the prior written consent of the
Company; provided, further, however that such assignee agrees in writing to
assume assignor's obligations hereunder. Subject to the preceding sentence, this
Agreement and the Transaction Documents will apply to, be binding in all
respects upon, and inure to the benefit of the successors and permitted assigns
of the parties. Nothing expressed or referred to in this Agreement or the
Transaction Documents will be construed to give any Person other than the
parties to this Agreement any legal or equitable right, remedy or claim under or
with respect to this Agreement or the Transaction Documents or any provision of
this Agreement or the Transaction Documents, except that members of the Investor
Group and the Company Group will be entitled to the rights set forth in Article
XIII hereof. Subject to the preceding sentence, this Agreement and the
Transaction Documents and all of its provisions and conditions are for the sole
and exclusive benefit of the parties to this Agreement and their permitted
successors and assigns.
13.09 Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
13.10 Captions; Currency. The article, section and paragraph
captions herein and the table of contents hereto are for convenience of
reference only, do not constitute part of this Agreement and will not be deemed
to limit or otherwise affect any of the provisions hereof. Unless otherwise
specified, all references herein to numbered articles and sections are to
articles and sections of this Agreement, all references herein to schedules are
to schedules to this Agreement and all references herein to exhibits are to
exhibits to this Agreement. Unless otherwise specified, all references contained
in this Agreement or in any Transaction Document to dollars or "$" will mean
United States Dollars.
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Convertible Note and Stock Purchase Agreement
13.11 Exhibits and Schedules. All Transaction Documents are
hereby incorporated in and made a part of this Agreement as if set forth in full
herein. Capitalized terms used in the Transaction Documents but not otherwise
defined therein will have the respective meanings assigned to such terms in this
Agreement. Disclosure of any item in any section of or on any schedule to this
Agreement will not constitute disclosure of such item in any other section of or
on any other schedule to this Agreement, whether or not the existence of the
item or its contents should be or is relevant to any other section of or
schedule to this Agreement, unless an explicit cross-reference thereto appears
in such other section or schedule or the context reasonably should be considered
relevant in light of the nature of the item and section.
13.12 Specific Performance. In the event of any actual or
threatened default in, or breach of, any of the terms, conditions and provisions
of this Agreement, the party or parties who are or are to be thereby aggrieved
will have the right of specific performance and injunctive relief giving effect
to its or their rights under this Agreement, in addition to any and all other
rights and remedies at Law or in equity, and all such rights and remedies will
be cumulative. The parties agree that any such breach or threatened breach would
cause irreparable injury, that the remedies at law for any such breach or
threatened breach, including monetary damages, are inadequate compensation for
any loss and that any defense in any action for specific performance that a
remedy at Law would be adequate is waived. The parties further agree that any
requirement under any Law to post security as a prerequisite to obtaining
equitable relief is hereby waived.
13.13 Interpretation. For the purposes of this Agreement, (i)
words in the singular will be held to include the plural and vice versa and
words of one gender shall be held to include the other gender as the context
requires, (ii) the terms "hereof", "herein", and "herewith" and words of similar
import will, unless otherwise stated, be construed to refer to this Agreement as
a whole and not to any particular provision of this Agreement, (iii) the word
"including" and words of similar import when used in this Agreement will mean
"including, without limitation", unless otherwise specified, (iv) the word "or"
will not be exclusive, (v) the term "contract" will mean any written agreement,
understanding, contract, commitment, obligation, promise or understanding, (vi)
the phrase "made available" will mean that the information referred to has been
made available if requested by the party to whom such information is to be made
available, (vii) any reference to any Law referred to in this Agreement will be
deemed to include only the Law and the rules and regulations issued pursuant to
such Laws in effect on the date of this Agreement and the Initial Closing Date
and Subsequent Closing Date, as applicable, (viii) any accounting term used in
this Agreement will have, unless otherwise specifically provided herein, the
meaning customarily given such term in accordance with GAAP, and all financial
computations hereunder will be computed, unless otherwise specifically provided
herein, in accordance with GAAP consistently applied and (ix) a "breach" of a
representation, warranty, covenant, obligation or other provision of this
Agreement or any Transaction Document will be deemed to have occurred if there
is or has been any inaccuracy in or breach of or any failure to perform or
comply with, such representation, warranty, covenant, obligation, or other
provision, and the term "breach" means any such inaccuracy, failure, occurrence
or circumstance. The parties hereto have participated jointly in the negotiation
and drafting of this Agreement and this Agreement will not be construed for or
against any party by reason of the authorship or alleged authorship of any
provision hereof or by reason of the status of the respective parties.
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Convertible Note and Stock Purchase Agreement
13.14 Time of Essence. With regard to all dates and time periods
set forth or referred to in this Agreement, time is of the essence.
13.15 Counterparts. This Agreement may be executed simultaneously
in two or more original or facsimile counterparts, each of which will be deemed
to be an original copy of this Agreement and all of which together will be
deemed to constitute one and the same agreement.
13.16 Limited CALPERS/PCG Guaranty. In order to induce the
Company to enter into this Agreement CALPERS/PCG hereby irrevocably and
unconditionally guarantees full and complete performance of the obligation of
PCG to purchase 7,444,168 of the Shares to be purchased by PCG (for an aggregate
purchase price of $30,000,000) at the Subsequent Closing pursuant to Section
2.02(c) of this Agreement, subject to the satisfaction or waiver of all
conditions set forth in Articles VIII and X hereof and subject to the other
terms and conditions of this Agreement (the "Guaranteed PCG Obligations").
CALPERS/PCG agrees that the Company need not attempt to collect any part of the
Guaranteed PCG Obligations from PCG or others, but may require CALPERS/PCG to
make immediate payment of the Guaranteed PCG Obligations when due or at any time
thereafter. Other than pursuant to the terms of this Agreement, to the fullest
extent permitted by law, CALPERS/PCG hereby waives all defenses, counterclaims,
and all suretyship defenses, other than payment or performance in full of the
underlying obligations. Notwithstanding anything herein to the contrary,
CALPERS/PCG shall have no greater obligations or liabilities with respect to the
Guaranteed PCG Obligations and no lesser defenses or counterclaims than it would
be entitled to if it were an Investor under this Agreement.
13.17 Limited MH Guaranty. In order to induce the Company to
enter into this Agreement MH PEF hereby irrevocably and unconditionally
guarantees full and complete performance of the obligation of MH to purchase
2,481,390 of the Shares (for an aggregate purchase price of $10,000,000) at the
Subsequent Closing pursuant to Section 2.02(c) of this Agreement, subject to the
satisfaction or waiver of all conditions set forth in Articles VIII and X hereof
and subject to the other terms and conditions of this Agreement (the "Guaranteed
MH Obligations"). MH PEF agrees that the Company need not attempt to collect any
part of the Guaranteed MH Obligations from MH or others, but may require MH PEF
to make immediate payment of the Guaranteed MH Obligations when due or at any
time thereafter. Other than pursuant to the terms of this Agreement, to the
fullest extent permitted by law, MH PEF hereby waives all defenses,
counterclaims, and all suretyship defenses, other than payment or performance in
full of the underlying obligations. Notwithstanding anything herein to the
contrary, MH PEF shall have no greater obligations or liabilities with respect
to the Guaranteed MH Obligations and no lesser defenses or counterclaims than it
would be entitled to if it were an Investor under this Agreement.
[Signature pages to follow]
50
IN WITNESS WHEREOF, this Convertible Note and Stock Purchase Agreement
has been duly executed and delivered by the duly authorized officers of the
parties as of the date first written above.
ORBCOMM INC.
By: /s/ Jerome B. Eisenberg
---------------------------------
Name: Jerome B. Eisenberg
Title: Chief Executive Officer
ORBCOMM LLC
By: /s/ Jerome B. Eisenberg
---------------------------------
Name: Jerome B. Eisenberg
Title: Chief Executive Officer
Convertible Note and Stock Purchase Agreement
PCG SATELLITE INVESTMENTS, LLC
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
By: /s/ signature illegible
---------------------------------
Its: Managing Director
2
Convertible Note and Stock Purchase Agreement
MH INVESTORS ORBCOMM LLC
By: /s/ Ronald Gerwig
---------------------------------
Name: Ronald Gerwig
Title: Asst Treasurer
3
Convertible Note and Stock Purchase Agreement
For purposes of Section 13.16 only:
CALPERS/PCG Corporate Partners LLC
a Delaware limited liability company
Managing Member
By: PCG Corporate Partners Investments LLC
Its: Manager
By: Pacific Corporate Group Holdings, LLC
Its: Managing Member
By: /s/ signature illegible
------------------------------------
Its: Managing Director
4
Convertible Note and Stock Purchase Agreement
For purposes of Section 13.17 only:
MH Private Equity Fund LLC
an Indiana limited liability company
By:
---------------------------------
Its:
---------------------------------
By: /s/ signature illegible
---------------------------------
Its:
---------------------------------
5
SCHEDULE I
SCHEDULE OF INVESTORS
NUMBER OF
INVESTMENT AMOUNT NUMBER OF SERIES B SERIES B SHARES
INVESTOR NAME CONVERTIBLE NOTES SHARES INITIAL CLOSING SUBSEQUENT CLOSING
- ------------------------------ ----------------- ---------------------- ------------------
PCG Satellite Investments, LLC $550,000(1) 7,699,752(2) 7,816,377
MH Investors Orbcomm LLC None 3,722,084 2,481,390
- ----------
(1) This amount may be offset against amounts owed to PCG Satellite
Investments, LLC or its Affiliates by the Company including amounts
contemplated by Section 13.01 hereof. Such amount shall convert into
136,476 shares of Series B Preferred upon consummation of the Convertible
Note Closing.
(2) Excluding 136,476 shares of Series B Preferred Stock issuable to PCG
Satellite Investments, LLC upon conversion of $550,000 of Convertible
Notes.
Convertible Note and Stock Purchase Agreement
SCHEDULE II
CONVERTIBLE PROMISSORY NOTEHOLDERS
NO. NOTEHOLDER PRINCIPAL AMOUNT
- --- --------------------------------------- ----------------
1 Arthur Bahr $ 14,000
2 Bukfenc Inc. $ 50,000
3 Steven G. Chrust IRA $ 40,000
4 Steven G. Chrust $ 5,000
5 Bert Cohen $155,000
6 E.B. Griswold IRA $ 10,000
7 Estrin New Ventures II, LLC $ 52,000
8 Eve Chrust, 2001 business Trust $ 6,000
9 Michael Friedman $112,000
10 Christopher Lust $ 12,000
11 Edmund B. Greene $ 20,000
12 E.B. Griswold $ 35,000
2
Convertible Note and Stock Purchase Agreement
13 Hoboken Partners 1 LLC $ 125,000
14 Hans E.W. Hoffmann $ 16,000
15 Jerry Kay $ 25,000
16 Liza Chrust, 2001 Chrust Business Trust $ 6,000
17 Philip Lodewick $ 58,000
18 Christopher Lust $ 28,000
19 Henning Melchers $ 100,000
20 Murray Slimowitz IRA $ 12,000
21 Denis Nayden $ 210,000
22 Albert Nickel $ 93,000
23 Northwood Capital Partners LLC $ 170,000
24 Northwood Ventures LLC $ 830,000
25 OHB Technology A.G. $4,019,000
3
Convertible Note and Stock Purchase Agreement
26 Marble Arch Group Ltd. $ 250,000(3)
27 Richard K. Webel Trust $ 10,000
28 Ridgewood Satellite LLC $5,000,000
29 Robert Loud IRA $ 12,000
30 Dr. Andre-Michasel Schultz $ 66,000
31 Shippan Fund LLC $ 39,000
32 SK Partners $ 50,000
33 Hyung-Jin Song $ 1,000
34 Elizabeth Steele $ 50,000
35 Mark Sullivan $ 242,000
36 Michael Sullivan $ 40,000
37 William Vanden Heuvel $ 116,000
- ----------
(3) Marble Arch Group Ltd. has subscribed for an additional $250,000 of
Convertible Notes.
4
Convertible Note and Stock Purchase Agreement
38 346 Hillcrest F&F Partners LLC $ 1,000,000
39 Orbcomm Ventures, LLC $ 1,215,000
40 Dwaine and Cynthia Willet $ 1,725,000
41 Investment Partners of Orlando, LLP $ 475,000
42 John D. Curtis Revocable Trust $ 1,725,000
43 Mary Higgins Clark $ 75,000
44 William Jaffe $ 25,000
45 Nakoma Investments LLC $ 100,000
46 Northwood Ventures LLC $ 850,000
47 Northwood Capital Partners LLC $ 150,000
48 Ridgewood Satellite LLC $ 5,000,000
49 PCG Satellite Investments, LLC $ 550,000
-----------
Total $25,019,000
===========
5
EXHIBITS
EXHIBIT A - Third Amended and Restated Certificate of Incorporation
EXHIBIT B - Second Amended and Restated Registration Rights Agreement
EXHIBIT C - Second Amended and Restated Stockholders Agreement
EXHIBIT D - Second Amended and Restated Preferred Stock Voting Agreement
EXHIBIT E - Second Amended and Restated Common Stock Voting Agreement
EXHIBIT F - Form of Management Rights Letter
EXHIBIT G - Form of Indemnification Agreement
EXHIBIT H- Contribution Agreement
EXHIBIT I Form of Convertible Note
EXHIBIT- I-A Form of Warrant
EXHIBIT J Form of Stock Option Plan
EXHIBIT K Form of Company Counsel Opinion (Corporate Matters)
EXHIBIT L Form of Company Counsel Opinion (Regulatory Matters)