EXHIBIT 10.8.3
Dated October 7, 2005
THE PARTICIPATORS
AND
SATCOM INTERNATIONAL GROUP PLC
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REORGANISATION AGREEMENT
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Regis House, 45 King William Street, London EC4R 9AN
TEL 020-7337-8000 FAX 020-7337-8001
Table of Contents
1. Definitions and interpretation..................................................... 2
2. Subscription....................................................................... 6
3. Pre-Completion Matters............................................................. 6
4. Conditions......................................................................... 7
5. Completion......................................................................... 8
6. Warranties......................................................................... 9
7. Management......................................................................... 9
8. Rights of first refusal............................................................ 10
9. Tag-along and drag-along........................................................... 13
10. New members........................................................................ 14
11. Shareholder consent................................................................ 14
12. Duration of obligations............................................................ 15
13. Confidentiality.................................................................... 15
14. New Articles....................................................................... 16
15. General............................................................................ 16
Schedule 1 (Particulars of the Investors)................................................ 28
Schedule 2 (Particulars of the Company).................................................. 31
Schedule 3 (Board Minutes)............................................................... 32
Schedule 4 (Notices of Extraordinary General Meeting).................................... 35
Schedule 5 (Subscription Application Form)............................................... 37
Schedule 6 (Warranties and Representations).............................................. 38
Schedule 7 (Deed of Adherence)........................................................... 40
Schedule 8 (Deed of Consent)............................................................. 41
Schedule 9 (Deed of Release)............................................................. 42
Schedule 10 (Consent to Short Notice).................................................... 44
Schedule 11 (Beneficial Owners).......................................................... 45
Schedule 12 (Existing Shareholders)...................................................... 46
Schedule 13 (Forms of Proxy)............................................................. 47
THIS REORGANISATION AGREEMENT is made the 7 day of October, 2005.
BETWEEN:
(1) THE PERSONS whose names and addresses or registered offices are set out in
Schedule 1 (the "PARTICIPATORS"); and
(2) SATCOM INTERNATIONAL GROUP PLC, a public limited company registered in
England under Number 3133496 whose registered office is at 7 Spa Road,
London SE16 3QQ; (the "COMPANY").
RECITALS:
(A) The Company is to undergo a reorganisation (the "REORGANISATION") so that
each of the holders of convertible notes and demand notes issued by the
Company and certain other creditors (including directors) will be issued
new fully paid ordinary shares of (pound)1 each in the capital of the
Company in exchange for the release of certain actual and contingent
liabilities of the Company and a general release in respect of acts or
omissions of the Company, Orbcomm Inc, Orbcomm Holdings LLC, and Orbcomm
LLC and their respective directors, officers, employees and advisers
insofar as they relate to the current or former business, operations,
assets or liabilities of the Company.
(B) Certain Investors (as defined below) were entitled to receive from the
Company payments by way of interest on loans, and/or accrued salary and
expenses, but in the interest of recapitalising the Company to allow it to
continue in business and grow and, also raise further monies, they have
agreed to forgive such debts.
(C) Each Investor has agreed to subscribe for the number, if any, of
Subscription Shares (as defined below) set forth next to each such
Investor's name in Schedule 1 in the share capital of the Company upon the
terms and conditions hereinafter contained.
(D) The number of Subscription Shares is based on calculations carried out as
at 30 June 2005.
(E) The books and records of the Company currently show some inconsistencies
with the parties' understanding of the actual position and accordingly the
Beneficial Owners (as defined below) by signing this Agreement agree to
instruct the relevant Existing Shareholders, who are holding shares
beneficially owned by others to act in accordance with this Agreement so
as to give effect to its provisions and the relevant Existing Shareholders
by signing this Agreement agree to do so.
(F) In reaching the terms set out below, the Directors have had to balance the
interests and rights of each Investor, against the needs of the Company to
improve its financial position and to attract new investors.
NOW IT IS HEREBY AGREED as follows:
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1. DEFINITIONS AND INTERPRETATION
In this Agreement (which expression shall be deemed to include the
Schedules hereto):
1.1 unless there be something in the subject or context inconsistent
therewith, the following expressions have the following meanings:
"AFFILIATE" means , in relation to a person, (i) any corporate person, any
Subsidiary or Ultimate Holding Company of that person and any other
Subsidiary of that Ultimate Holding Company, and (ii) any natural person
who is a shareholder, director or officer of the entities referred to in
(i) hereof (together with their close relatives and related trusts);
provided always that neither the Company, any of its Subsidiaries nor any
shareholder, director or officer of the Company or its Subsidiaries shall
be regarded as being an Affiliate of any Shareholder for the purposes of
this Agreement;
"ARTICLES" means the articles of association from time to time of the
Company (and any reference to an "Article" shall be a reference to that
article of the Articles);
"AUDITORS" means the auditors from time to time of the Company;
"BENEFICIAL OWNER" means each person, listed in Schedule 10, who is
beneficially entitled to Shares currently registered in the name of
Existing Shareholders;
"BOARD MINUTES" means the draft minutes of a meeting of the board of
directors of the Company in the form set out in Schedule 3 or as approved
by the Directors;
"BUSINESS DAY" means any day other than a Saturday, a Sunday, a public
holiday and any other day on which banks in London, England and New York,
United States of America are closed for retail business;
"COMPANIES ACT" means the Companies Act 1985 as amended by the Companies
Act 1989;
"COMPLETION" means the performance by the parties of the obligations
assumed by them respectively under clause 5;
"CONDITIONS" means the conditions to Completion set out in clause 4.1;
"CONFIDENTIAL INFORMATION" means all information used in or relating to
the business, customers, financial, know-how or other affairs of the
Company but not publicly known, including information relating to:
(i) the marketing of goods and services, customer names and other
details of customers, sales targets, sales and market share
statistics, prices, market research reports and surveys and
advertising or other promotional material; and
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(ii) future projects, business development or planning, commercial
relationships and negotiations; and
(iii) all secret processes in the possession of or under the control
of the Company.
"CONSENT TO SHORT NOTICE" means the text set out in Schedule 10 forming
part of or annexed to or referring to a Notice of Meeting and consenting
to such meeting being convened and held on less than the usual period of
notice or such other text as the Directors may approve;
"DEED OF ADHERENCE" means a deed in the form set out in Schedule 7, or a
deed in such other form or comprising such other terms as the Company and
each person who becomes a Shareholder after Completion may agree;
"DEED OF CONSENT" means a deed in the form set out in Schedule 8 or
comprising such other terms as the Company and the Existing Shareholders
may agree;
"DEED OF RELEASE" means a deed in the form set out in Schedule 9, or a
deed in such other form or comprising such other terms as the Company and
the relevant Investors may agree;
"DIRECTORS" means the directors of the Company from time to time;
"ENCUMBRANCE" means and includes any interest, right or equity of any
person (including, without prejudice to the generality of the foregoing,
any right to acquire, option or right of pre-emption) or any mortgage,
charge, pledge, lien or assignment or any other encumbrance, priority or
security interest or arrangement of whatsoever nature over or in the
relevant property;
"EXISTING SHAREHOLDERS" means the holders of record of existing Shares at
the Relevant Time, at the date of this Agreement being those persons
listed in Schedule 12;
"HOLDING COMPANY" has the meaning given in sub-clause 1.12;
"INVESTOR" means each person, whether or not an Existing Shareholder, who
agrees, pursuant to sub-clause 2.1, to subscribe for Subscription Shares;
"INDEBTEDNESS" means any loan, bond, note, loan stock or debenture or
other obligation for borrowed monies, any liability in respect of any
acceptance credit or note or bill discounting facility, any amount of
consideration left outstanding by way of loan under any agreement for the
sale of assets and/or the supply of services and any guarantee or
indemnity in respect of any of the foregoing, the amount thereof in each
case being taken for this purpose to be the maximum amount capable of
being outstanding from the Company thereunder whether or not then due or
owing or advanced at the time of calculation including all interest and
charges;
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"NOTICE OF MEETING" means the notice of an extraordinary general meeting
of the Company in the form set out in Schedule 4 or such other form as the
Directors may approve;
"PARTICIPANTS" or "PARTIES HERETO" means the Existing Shareholders, the
Beneficial Owners, the Investors, and, after Completion, the Shareholders
and the Company;
"PERMITTED TRANSFEREE" means in the case of a Shareholder that is a
natural person, the spouse (including widow or widower) or issue of the
Shareholder, a trust that benefits the Shareholder or his spouse
(including widow or widower) or both, his or their issue or a charity or
any person controlled by such a trust or an entity controlled directly or
indirectly by the Shareholder and, in the case of a Shareholder that is a
body corporate, any body corporate that is wholly owned by that
Shareholder and any natural person, trust or body corporate that controls
the majority of the voting rights of the Shareholder;
"PROXY FORM" means the form of proxy in the form set out in Schedule 13 or
such other form as the Directors may approve;
"RELEVANT TIME" means 5pm Eastern Standard Time on the date of the Notice
of Meeting;
"QUALIFYING DEBT" means the aggregate amount of principal debt owing by
the Company to the holders of convertible notes, holders of demand notes,
directors (in respect of their salaries, fees and expenses) and SEC
Orbcomm Middle East, Ltd.; CEC Bosphorous Communications Inc., and Europe
America Limited (in respect of amounts claimed in respect of certain
territorial rights);
"SHARES" means the ordinary shares of (pound)1 each in the share capital
of the Company;
"SHAREHOLDERS" means all those Participants that remain or become
registered holders of Shares after Completion together any person that
becomes a registered holder of Shares after Completion after signing a
Deed of Adherence;
"SUBSCRIPTION APPLICATION FORM" mean the application form in the form set
out in Schedule 5, or such other form as the Directors may approve;
"SUBSCRIPTION SHARES" means the new Shares to be subscribed by the
Investors as referred to below;
"SUBSIDIARY" has the meaning given in sub-clause 1.12;
"ULTIMATE HOLDING COMPANY" means a Holding Company which is not also a
Subsidiary; and
"WARRANTIES" means the warranties and representations of the Company and
the Participants are referred to in clause 6.
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1.2 subject as herein otherwise expressly defined, words and phrases defined
in the Companies Act and in the Articles bear the same respective
meanings;
1.3 unless otherwise specified, words importing the singular include (where
appropriate) the plural, words importing any gender include (where
appropriate) every gender, and words importing persons include bodies
corporate and unincorporate; and (in each case) vice versa;
1.4 reference to clauses and other provisions are references to clauses and
other provisions of this Agreement and any reference to a sub-clause is,
unless otherwise stated, a reference to a sub-clause of the clause in
which the reference appears;
1.5 all warranties, representations, agreements and obligations given or
entered into by the Participants are given or entered into severally
unless otherwise specified;
1.6 the headings shall not affect the interpretation of this Agreement;
1.7 the expressions "hereunder", "hereto", "herein", "hereof" and similar
expressions relate to this entire Agreement and not to any particular
provision thereof;
1.8 any undertaking by any of the parties hereto not to do any act or thing
shall be deemed to include an undertaking not to permit or suffer the
doing of that act or thing;
1.9 references to this Agreement or any other document shall, where
appropriate, be construed as references to this Agreement or such other
document as varied, supplemented, novated and/or replaced in any manner
from time to time;
1.10 references to any English legal or accounting term for any action, remedy,
method of judicial proceeding, insolvency proceeding, event of incapacity,
legal or accounting document, legal or accounting status, court,
governmental or administrative authority or agency, accounting body,
official or any legal or accounting concept practice or principle or thing
shall in respect of any jurisdiction other than England be deemed to
include what most approximates in that jurisdiction to the English legal
or accounting term concerned;
1.11 except where used for definitional purposes, any reference to a statute or
to a statutory provision shall be to that provision as modified, replaced
or re-enacted from time to time; and
1.12 a company is a Subsidiary of another company, its Holding Company if that
other company:
(a) holds a majority of the voting rights in it, or
(b) is a member of it and has the right to appoint or remove a
majority of its board of directors, or
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(c) is a member of it and controls alone, pursuant to an agreement
with other shareholders or members, a majority of the voting
rights in it,
or if it is a Subsidiary of a company which is itself a Subsidiary of that
other company.
2. SUBSCRIPTION
2.1 Each Investor shall subscribe for the number of Subscription Shares set
out next to such person's name in Schedule 1 hereto, for the Consideration
(as defined below) upon the terms and conditions hereinafter contained.
2.2 The Subscription Shares shall be issued free from any Encumbrance and with
all rights attaching thereto and thereafter accruing thereto, including
the right to receive all dividends or other distributions which may be
declared after the date of Completion.
2.3 Each of the Existing Shareholders hereby waives and each of the Beneficial
Owners agrees to procure the waiver of any restrictions (including
pre-emption rights on new share issues) which may exist in relation to the
Subscription Shares under the Articles or otherwise.
2.4 The consideration ("CONSIDERATION") for the Subscription Shares, payable
by each Investor, shall be the amount (representing par value and the
relevant, agreed, premium (if any)) set out next to each Investor's name
in Schedule 1, which shall be satisfied in each case by the release, to be
effected by the execution and delivery to the Company of a Deed of Release
by each such Investor of the outstanding amount owed by the Company to
such Investor, as shown next to the person's name in Schedule 1.
3. PRE-COMPLETION MATTERS
3.1 Contemporaneously with executing this Agreement:
(a) each Investor shall deliver to the Company the following
documents, each of which shall have been duly completed and
executed but, unless otherwise stated below, not dated:
(i) Subscription Application Form; and
(ii) Deed of Release;
and if an Investor is also a Shareholder:
(iii) Dated Proxy Forms; and
(iv) Dated Consent to Short Notice; and
(b) each Existing Shareholder (that is not also an Investor) shall
deliver to the Company the following documents, each of
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which shall have been duly completed and executed, but, unless
otherwise stated below, not dated:
(i) Deed of Consent;
(ii) Dated Proxy Forms; and
(iii) Dated Consent to Short Notice
each of which shall be held in escrow ("ESCROW") by the Company until the
earlier of Completion occurring and 1 November 2005.
3.2 The terms of the Escrow are that:
(a) all Deeds of Consent, Consents to Short Notice and Proxy Forms
shall immediately be released to the Company for use in
satisfying conditions in sub-clauses 4.1 and 4.3 of this
Agreement; and
(b) all Subscription Application Forms and all Deeds of Release
shall be released to the Company for the purpose of effecting
Completion
and if Completion does not occur on or before 31 October 2005 all the
above documents will be returned to the relevant parties hereto unless
otherwise agreed prior to such date.
3.3 To give effect to the above each Participant hereby irrevocably appoints
each Director severally, not jointly, so that any Director may act alone,
as his agent to insert, where appropriate, the relevant date in each
relevant document and to deliver and use such documents for the above
referred to purposes.
4. CONDITIONS
4.1 This Agreement shall come into effect immediately following its execution
by the holders of not less than 95% of the Qualifying Debt, calculated as
set out in sub-clause 4.1.2 but on the date the Company executes this
Agreement, the Beneficial Owners and Existing Shareholders together
holding or being interested in Shares carrying not less than 75% of the
votes attributable to the Shares in issue on the date the Company executes
this Agreement but the obligations of the parties to complete the
subscription envisaged by this Agreement (the "SUBSCRIPTION") and the
obligations contained in clauses 7 - 12 (inclusive) and clause 14 are
conditional upon the following:
4.1.1 the passing at a duly convened and held general meeting of the
Company (or by equivalent, permitted, written resolution of all
shareholders entitled to attend and vote at such general meeting) of
the ordinary resolutions set out in the Notice of Meeting or such
other ordinary resolutions, to the same substantive effect, as the
Directors may approve);
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4.1.2 the holders of not less than 95% of the Qualifying Debt, as finally
determined by the Directors at 5pm (Eastern Standard Time) on the
day prior to that scheduled for Completion shall have consented, to
the proposed Reorganisation as contemplated by this Agreement, such
consent being evidenced by signature of this Agreement;
4.1.3 the Existing Shareholders and Beneficial Owners holding or owning
not less than 75% of the Shares at the Relevant Time shall have
executed a Deed of Consent.
4.2 The parties shall use their respective best endeavours to satisfy or
procure satisfaction of each of the above conditions before 1 October
2005.
4.3 The Company may, by written instrument, waive (in whole or in part) the
condition contained in sub-clauses 4.1.2 or 4.1.3 provided that if the
Company waives the condition contained in sub-clause 4.1.2 then each
Investor that has signed this Agreement shall have the right, at any time
prior to the Completion, to revoke its execution and delivery of this
Agreement and any related documents hereto by providing the Company
written notice thereof prior to the Completion.
5. COMPLETION
5.1 Completion shall take place at the offices of Chadbourne & Parke LLP, 30
Rockefeller Plaza New York, NY 10112-0127 not later than the third
Business Day next following satisfaction, or waiver, of the Conditions, or
if the condition in sub-clause 5.2.1 has not been met, at the third
Business Day after the date of the Notice of Meeting.
5.2 On Completion:
5.2.1 the Subscription Application Forms shall be released to the Company.
5.2.2 the Deeds of Release shall be released to the Company.
5.2.3 the Company shall procure the following to be done:
(a) a meeting of the directors shall be held at which the business
referred to in the Board Minutes shall be transacted and all
documents and forms referred to therein shall be executed and
signed;
(b) the register of members of the Company shall be written up to
reflect the allotment and issue of the relevant number of
Subscription Shares and definitive certificates in respect of
such Subscription Shares shall be issued in favour of and
delivered to the Investors; and
(c) the register of members of the Company shall be written up to
reflect the transfers of the shares referred to in paragraph 6
of the Board Minutes, provided the same shall have been duly
stamped.
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5.3 The Company shall procure that within the time limits prescribed by the
Companies Act, those documents and forms referred to in the Board Minutes
which require filing with the Registrar of Companies shall be so filed.
6. WARRANTIES
6.1 The Company warrants and represents to each Participant on the date hereof
and again immediately prior to Completion, that each of the provisions of
Schedule 6, Part I is true and correct or (as the case may be) has been
wholly performed.
6.2 Each of the Investors severally warrants and represents to the Company and
to each of the other Participants on the date hereof and again immediately
prior to Completion, in respect only of their own situation that each of
the provisions of Schedule 6, Part II is true and correct or (as the case
may be) has been wholly performed.
6.3 Each of the Existing Shareholders severally warrants and represents to the
Company and each of the other Participants on the date hereof and again
immediately prior to Completion, in respect only of their own situation
that each of the provisions of Schedule 6, Part III is true and correct or
(as the case may be) has been wholly performed.
6.4 Each of the Beneficial Owners severally warrants and represents to the
Company and each of the other Participants on the date hereof and again
immediately prior to Completion, in respect only of their own situation
that each of the provisions of Schedule 6, Part IV is true and correct or
(as the case may be) has been wholly performed.
6.5 The Warranties shall continue in full force and effect notwithstanding
Completion and are given subject to any matter expressly provided for
under the terms of this Agreement.
6.6 The Company shall indemnify each of the Participants in respect of any
breach of sub-clause 6.1 and each Participant severally shall indemnify
the Company and each other Participant in respect of any breach of
sub-clause 6.2, 6.3 or 6.4 (as appropriate) by that first mentioned
Participant.
7. MANAGEMENT
7.1 The Company undertakes with each Shareholder that (save as otherwise
provided or contemplated in this Agreement), it will not without a vote in
favour of the relevant proposal by the holders of not less than 66-2/3% of
the votes attributable to the Shares:
7.1.1 sell, transfer, lease, licence or in any way (including by way of
merger) dispose of all or substantially all of its undertaking,
assets or business, except in the ordinary course of its business;
7.1.2 acquire another company, body corporate, partnership (limited or
general) at an aggregate cost of US$100,000 or more per acquisition;
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7.1.3 incorporate any subsidiary; or
7.1.4 change the business of the Company or acquire or make any investment
in a business engaged in substantially different business activities
to the Company.
7.2 The Shareholders hereby severally agree amongst themselves (as an
enforceable right actionable by each Shareholder individually against each
other Shareholder) that they will at all times vote their Shares so as to
ensure that the board of the Company is comprised of not more than five
(5) Directors and that the holder of a majority of the votes attributable
to the Shares may appoint, remove and replace three (3) Directors and each
holder or holders of not less than 20% of the remaining Shares may
appoint, remove and replace one (1) Director.
7.3 For the avoidance of doubt, the parties hereto acknowledge that Part X of
the Companies Act 1985 (Enforcement of Fair Dealings by Directors) applies
to the Company including, in particular, section 320 (Substantial property
transactions involving directors and persons connected with them).
7.4 The Company shall provide to each Shareholder holding at least 5% of the
then outstanding Shares:
(a) quarterly statements of profit and loss, balance sheets and
statements of cash flow within 45 days of the close of each
calendar quarter, and within 90 days of the end of a fiscal
year, such statements to be prepared in accordance with
English GAAP and accompanied with a summary management
discussion on the results of operations; and
(b) a copy of the financial statements of ORBCOMM Europe LLC
received by the Company.
7.5 The Company hereby agrees with each of the Shareholders, that it will, as
a shareholder in Orbcomm Europe LLC use all reasonable endeavours to
ensure that no person who is, at the relevant time, or who later becomes
an officer, director or paid consultant to either the Company or OHB
Technology AG (or any Affiliate of OHB Technology AG) shall be appointed,
or remain (as appropriate) an employee of Orbcomm Europe LLC without the
consent of the Shareholders.
7.6 The Company hereby agrees with each of the Shareholders, that it shall not
appoint or maintain (as appropriate) as an employee of the Company, any
director of, or paid consultant to, the Company without the consent of the
Shareholders.
8. RIGHTS OF FIRST REFUSAL
8.1 Except as provided in sub-clause 8.2 below and except as suspended in
respect of any transfer by a resolution passed by the holders of not less
than 66-2/3% of the votes attributable to the Shares (excluding for this
purpose the Transferor's
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Shares) no holder of Shares with aggregate votes attributable to such
Shares equalling or exceeding 2% (two per cent) of the total votes,
calculated at the time a Transfer Notice (as defined below) would, if
required, have to be issued, attributable to all Shares then in issue
shall be entitled to transfer or otherwise dispose of its Shares or of any
interest in them (including by creating any Encumbrance or trust over
them) without first offering such Shares for transfer to the other
Shareholders.
8.2 A Shareholder (the "TRANSFEROR") may transfer any or all of its Shares
(the "SALE SHARES") to:
8.2.1 a person approved in writing by the holders of not less than 66-2/3%
of the votes attributable to the Shares (excluding for this purpose
the Transferor's Shares);
8.2.2 a Permitted Transferee;
8.2.3 (if the Transferor is an entity) to its members (or members or its
members), partners or any wholly-owned subsidiary;
8.2.4 a person entitled to the shares by operation of law;
provided that in the case of any transfer to be effected pursuant to
sub-clauses 8.2.2, 8.2.3 or 8.2.4, the Transferor or the proposed
transferee, in the case of transmission by operation of law shall inform
the Company of such transfer before it is effected and the Permitted
Transferee, or proposed transferee shall execute a Deed of Adherence,
provided further that in the case of any transfer under either sub-clause
8.2.2 or 8.2.3 to a person that meets the relevant criteria on the day
that the transfer is registered, if at any time that person ceases to meet
such criteria, that person shall be deemed to have issued a notice under
sub-clause 8.3, with the Specified Terms being such terms as the Directors
determine to be fair at the time they receive actual notice of the facts
giving rise to the deemed notice and the Offer Period being 90 Business
Days of the Directors becoming so aware.
8.3 (a) A Transferor that wishes to transfer its Shares (other than as
permitted in sub-clause 8.2 above) shall give notice to the other
Shareholders (the "ONGOING SHAREHOLDERS") specifying the details of
the proposed transfer, including the identity of the proposed
transferee and the price and other terms (the "SPECIFIED TERMS") for
the Sale Shares offered to it by a person (the "OFFEROR"), whether
or not a Shareholder, under a bona fide offer, capable of
unconditional acceptance by the Transferor in the next 90 Business
Days and shall invite the Ongoing Shareholders to notify the
Transferor during the Offer Period (as defined below) whether they
are willing to purchase the Sale Shares (a "TRANSFER NOTICE"). A
copy of the Transfer Notice shall be served on the Company.
(b) A Transfer Notice may not be revoked and shall remain open for
acceptance by the Ongoing Shareholders for a period (the "OFFER
PERIOD") of 30 Business Days from the date of the Transfer Notice.
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(c) Within 30 Business Days of the date of the Transfer Notice, each
Ongoing Shareholder wishing to purchase Sale Shares, shall give a
notice to the Transferor saying such Ongoing Shareholder wishes to
purchase all, but not any lesser part of the number of Sale Shares
equal to the proportion of the Sale Shares in the Transfer Notice
which the number of Shares held by such Ongoing Shareholder at the
date of the Transfer Notice bears to the total number of Shares held
by the Ongoing Shareholders at the date of the Transfer Notice, on
terms at least as favourable to the Transferor as the Specified
Terms.
(d) If at the expiry of the Offer Period, all the Sale Shares have not
been applied for by the Ongoing Shareholders, the Transferor shall
be entitled (but not obliged) to offer (by means of a further
Transfer Notice (the "EXCESS TRANSFER NOTICE") the Excess Shares to
those Ongoing Shareholders that have indicated that they will
purchase their due proportion of the Sale Shares by reference to
their holdings at the date of the Transfer Notice and the Offer
shall, for this second offer remain open (the "SECOND OFFER PERIOD")
for a further 10 Business Days from the date of the Excess Transfer
Notice.
(e) On the expiry of the Second Offer Period, if an Ongoing Shareholder
has notified the Transferor that it wishes to purchase a portion of
the Sale Shares, such Ongoing Shareholder shall be bound to pay the
purchase price for, and to accept a transfer of, such portion of the
Sale Shares and the Transferor shall be bound, on payment of the
purchase price, to transfer such portion of the Sale Shares to the
Transferee provided that the Transferor shall not be bound to sell
to any Ongoing Shareholder unless all the Sale Shares have been
agreed to be purchased by one or more Ongoing Shareholders.
(f) If at the expiry of the Second Offer Period, the Ongoing
Shareholders have not notified the Transferor that they wish to
purchase the remaining Sale Shares ("THE EXCESS SHARES") on the
Specified Terms, the Transferor, may at any time within a period of
30 Business Days after the expiry of the Second Offer Period
transfer all (or any part) of the Sale Shares to the Offeror on
terms at least as favourable to the Transferor as the Specified
Terms under a bona fide sale to the Offeror without any deduction,
rebate or allowance to the Offeror.
8.4 If, as a result of the valid transfer of the Shares of the Shareholder
under this Clause, a person would hold for the first time or cease to
hold, any Shares, then:
8.4.1 (other than in the case of an existing Shareholder) the transfer
will not take effect until the transferee has executed and delivered
to the Company a Deed of Adherence; and
8.4.2 the Transferor shall notify the Company of such transfer as soon as
practicable after the transfer takes effect.
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8.5 If, as a result of the valid transfer of a Shareholder's Shares, a person
ceases to hold any Shares, then:
8.5.1 the Transferor, who ceases to hold any Shares as a result of a
transfer of Shares will cease to be a Shareholder;
8.5.2 the rights of the Transferor under this Agreement will be passed to
the transferee (without prejudice to any obligation in this
Agreement expressed to be ongoing and without prejudice to liability
for any prior breach).
9. TAG-ALONG AND DRAG-ALONG
9.1 (a) If the Ongoing Shareholders do not exercise their options to
purchase all of the Transferor's Sale Shares and the Transferor
still intends to proceed with the proposed transfer of the Sale
Shares to the Offeror, the Transferor shall offer each Ongoing
Shareholder the opportunity to require that completion of the
Transfer by the Transferor shall be conditional upon the Offeror
purchasing from such Ongoing Shareholders a pro rata portion of each
such Ongoing Shareholders' Shares, based upon the number of Shares
owned by the Transferor and the Ongoing Shareholders exercising
rights pursuant to this sub-clause 9.1 (a "TAG-ALONG SALE"). The
Ongoing Shareholders may exercise this right by delivering to the
Transferor a Tag-Along Notice (as defined below) in accordance with
sub-clause 9.1(c) below. The Ongoing Shareholders delivering such a
notice are hereinafter referred to as the "TAG-ALONG SHAREHOLDERS".
(b) In connection with a Tag-Along Sale, (i) the only representations
and warranties which any Tag-Along Shareholder shall be required to
make, and shall make, in connection with any Transfer are
representations and warranties with respect to its own ownership of
the Shares to be sold by it and its ability to convey title thereto
free and clear of Encumbrances and adverse claims, its due
organisation (if applicable), its due authorisation (if applicable),
execution and delivery of the relevant stock transfer form, and the
enforceability of such stock transfer forms against it and (ii) the
liability of the Tag-Along Shareholder with respect to any
representation and warranty made in connection with any Transfer
is the several liability of such Tag-Along Shareholder (and not
joint with any other person).
(c) The Tag-Along Shareholders may exercise their rights pursuant to
this sub-clause 9.1 by providing notice (the "TAG-ALONG NOTICE") to
the Transferor no less than 10 and no more than 20 Business Days
after the expiration of the Second Offer Period. The Tag-Along
Notice shall set out the number of Shares each of the Tag-Along
Shareholders has elected to include in the Tag-Along Sale. The
Tag-Along Notice shall constitute the relevant Tag-Along
Shareholder's binding agreement to sell the Shares specified in the
Tag-Along Notice on the terms and conditions applicable to the
Tag-Along Sale provided that if there is any material change in the
terms and conditions of such Tag-along
13
Sale after the Tag-Along Notice is given, then each Tag-Along
Shareholder shall have the right to withdraw from the Tag-Along Sale
with respect to all Shares affected thereby.
(d) If the Offeror does not complete the purchase of all of the Shares
requested to be included in the Tag-Along Sale on the same terms and
conditions applicable to the Transferor, the Transferor shall not
complete the Transfer of any of its Shares to the Offeror and the
Directors shall not register such Transfer. If no Tag-Along Notice
is received by the Transferor prior to the end of the 20 Business
Day period specified above, the Transferor shall have the right to
complete the Transfer to the Offeror, together with any valid
Tag-Along Sale, without the participation of an Ongoing Shareholder
that has not provided the relevant Tag-Along Notice on the terms and
conditions set out in the Notice of Transfer and only if such sale
is completed within the 90 Business Day period specified in
sub-clause 8.3(a). If any Tag-Along Sale does not occur within such
90 Business Day period, the Shares that were subject to such
Tag-Along Sale shall continue to be subject to all of the provisions
contained in this Agreement.
(e) On the date of the Tag-Along Sale, each Tag-Along Shareholder shall
deliver a certificate or certificates for the Shares to be sold in
connection with the Tag-Along Sale, together with a duly completed
and executed stock transfer form in favour of the Offeror (or any
permitted person nominated by it).
9.2 If the holder of a majority of the votes attributable to the Shares agrees
to sell all its Shares to a person other than one or more other
Shareholders, that majority holder shall be entitled to require all other
Shareholders to sell all their Shares to the same person at the same price
provided that such majority holder may only exercise this right with the
consent of the holders of not less than 66-2/3% of the votes attributable
to the Shares.
10. NEW MEMBERS
10.1 The parties hereto shall procure that before any person (other than an
Existing Shareholder) is registered as a holder of any share in the
Company, such person shall enter into a Deed of Adherence. The Company
shall not register any such person as the holder of any Share until such a
deed has been executed. Upon being so registered, that person shall be
deemed to be a party to this Agreement.
11. SHAREHOLDER CONSENT
11.1 Where this Agreement provides that any particular transaction or matter
requires the consent, approval or agreement of the Shareholders such
consent, approval or agreement will be effected by written resolution of
the holders of at least 66-2/3% of the votes attributable to the Shares or
by a resolution passed by the holders of at least 66-2/3% of the votes
attributable to the Shares at a meeting of Shareholders convened by the
Directors for such purpose on such
14
notice as the Directors, acting reasonably, consider to be appropriate,
and such meeting may take place by any mechanism permitted by the Articles
for conducting meetings of members of the Company or Directors, and may be
given subject to such terms and conditions as the Shareholder may impose
by the terms of the relevant resolution and any breach of such terms and
conditions by any person subject thereto shall ipso facto be deemed to be
a breach of the terms of this Agreement.
11.2 If the consent, approval or agreement of the Shareholder is required under
more than one provision of this Agreement for any one transaction or
matter, any consent, approval or agreement given in relation to that
transaction or matter by the Shareholder shall be deemed to cover all
consents, approvals or agreements required for that transaction or matter
unless otherwise specified by the Investors in the relevant resolution.
12. DURATION OF OBLIGATIONS
12.1 Subject to sub-clause 15.12, the obligations of each Shareholder shall
continue for so long as such Shareholder remains a holder of Shares but,
upon Shareholder ceasing to be a Shareholder, their obligations hereunder
shall cease and determine save for any provision hereof which in relation
to such Shareholder is expressly or by implication intended to come into
force on or to continue in force after such cessation, and without
prejudice to the due performance by such Shareholder of all their
obligations up to the date of such cessation and the remedies of any of
the other parties hereto in respect of a breach thereof.
12.2 Subject to sub-clause 15.12, the provisions of this Agreement shall remain
in full force and effect with respect to a Shareholder until such time as
such Shareholder is no longer the holder of any Shares in the Company,
whereupon the obligations and liabilities of the Shareholder this
Agreement shall forthwith cease and determine provided that such cesser or
determination shall be without prejudice to any obligations or rights of
any of the parties hereto which have accrued prior thereto.
13. CONFIDENTIALITY
13.1 Each Shareholder undertakes to each of the other Shareholders and to the
Company that such Shareholder will not at any time hereafter use or
divulge or communicate to any person other than to officers or employees
of the Company whose province it is to know the same or on the
instructions of the Directors any Confidential Information which may come
to such Shareholder's knowledge and such Shareholder shall use its best
endeavours to prevent the publication or disclosure of any Confidential
Information.
13.2 The obligations in sub-clause 13.1 shall continue to apply after such
Shareholder shall cease to be a party to this Agreement or otherwise
involved in the affairs of the Company without limit in point of time but
shall cease to apply to information which shall come into the public
domain other than by a breach of this clause or which for any other
reason, other than through the default of that Shareholder, shall have
ceased to be confidential.
15
13.3 Each of the parties hereto shall use its best endeavours to procure that
the Company observes and ensures that the officers, employees and agents
of each of them observe a corresponding obligation of confidence to that
set out in sub-clause 13.1 in relation to the Shareholders themselves.
13.4 No announcement or publicity concerning the terms of this Agreement or the
interests of any Shareholder in the Company shall be made or issued by any
of the parties hereto without the prior written approval of the Directors
in the case of the Company or, in the case of the Shareholders as a body,
by a resolution in accordance with such clause 11.1 and in the case of an
individual Shareholder by that Shareholder, other than as required by law
or by the rules of any regulatory organisation to which any of the parties
hereto is subject (in which case the Shareholders and the Company shall
promptly, and to the extent practicable, consult with each other on the
form of the announcement).
14. NEW ARTICLES
14.1 In order to give further effect to the provisions of clause 8, the
Shareholders will on, or as soon as practicable following, Completion,
pass a special resolution adopting new Articles of Association in
substitution for the existing Articles, containing the relevant
substantive provisions of clause 8 as is appropriate for a publicly
available document.
14.2 In order to give effect to the above the Shareholders will execute and
deliver to the Company the following documents:
(a) Dated Proxy Forms
(b) Date Consent to Short Notice
each of which shall be held in escrow (the "SECOND ESCROW") by the Company
until 1 November 2005.
14.3 The terms of the Second Escrow are that all such Proxy Forms and Consents
to Short Notice shall be released to the Company on, and as part of,
Completion and if Completion does not occur on or before 31 October 2005
all such documents will be returned to the relevant Shareholders unless
otherwise agreed prior to such date.
14.4 To give effect to the above, each Participant hereby irrevocably appoints
each Director severally, not jointly, so that any Director may act alone,
as his agent to deliver and use such documents for the above referred to
purpose.
15. GENERAL
15.1 COSTS
Each of the Investors and the Company shall pay their own costs and
disbursements incurred in relation to the negotiation, preparation and
implementation of this Agreement.
16
15.2 NOTICES
15.2.1 All notices which are required to be given hereunder shall be in
writing and shall be sent to the address of the recipient set out
in this Agreement or in any Deed of Adherence or such other address
as the recipient may designate by notice given in accordance with
the provisions of this sub-clause.
15.2.2 Any such notice may be delivered personally or by prepaid airmail
letter or facsimile transmission and shall be deemed to have been
served if by personal delivery when delivered, if by prepaid
airmail letter 72 hours after posting and if by facsimile
transmission when despatched.
15.2.3 Notice given under this Agreement shall not be validly served if
sent by e-mail.
15.3 SUCCESSORS BOUND
This Agreement shall be binding on and shall enure for the benefit of the
successors and assigns and personal representatives (as the case may be)
of each of the parties hereto.
15.4 ASSIGNMENT
None of the parties hereto may assign their rights or obligations in whole
or in part hereunder without the prior written consent of the other
parties hereto, provided that this sub-clause shall not prevent a lawful
transfer of Shares pursuant to clauses 8 or 9.
15.5 THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Agreement but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
15.6 CONTINUING AGREEMENT
All provisions of this Agreement shall, so far as they are capable of
being performed and observed, continue in full force and effect
notwithstanding Completion, except in respect of those matters then
already performed.
15.7 FURTHER ASSURANCE
15.7.1 The parties hereto shall, and shall use their respective best
endeavours to procure that any necessary Affiliates shall, do,
execute and perform all such further deeds, documents, assurances,
acts and things as any of the parties hereto may reasonably require
by notice in writing to the others to carry the provisions of this
Agreement and the Articles into full force and effect.
17
15.7.2 Without limiting the generality of sub-clause 15.7.1, each of the
Beneficial Owners hereby instructs each of the Existing
Shareholders, in respect of the relevant Shares registered in the
name of the relevant Existing Shareholder, and each of the Existing
Shareholders hereby agrees in respect of such Shares to do
everything that is required to give effect to this Agreement and
the transactions envisaged by it, including bringing the Company's
books and records completely up to date, providing missing
information and correcting any errors.
15.8 TIME OF THE ESSENCE
Any date or period mentioned in this Agreement may be extended by
agreement between the parties hereto (following completion, the
Shareholders acting by resolution as envisaged in sub-clause 11.1),
failing which, as regards any such date or period, time shall be of the
essence of this Agreement.
15.9 ENTIRE AGREEMENT
This Agreement constitutes the whole agreement between the parties or
between any persons that are associates of either party relating to its
subject matter.
This Agreement replaces, supersedes and extinguishes any prior drafts,
agreements, undertakings, representations, warranties, assurances,
understandings and arrangements of any nature, whether in writing or oral,
relating to such subject matter.
Each party acknowledges that except as set out in Schedule 6 it has not
been induced to enter into the Agreement by any representation, warranty,
promise or assurance by the other party or any other person.
Each party agrees that (except in respect of fraud) it shall have no right
or remedy in respect of any other representation, warranty, promise or
assurance save for those contained in this Agreement.
15.10 VARIATION
This Agreement may be varied or terminated and the observance of any term
of 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 those Shareholders holding at least 66-2/3% of the votes attributable
to the Shares held by the Shareholders, provided, however this Agreement
may not be amended or terminated and the observance of any term hereunder
may not be waived with respect to any Shareholder without the written
consent of such Shareholder unless such amendment, termination or waiver
applies to all Shareholders in the same fashion (it being agreed that a
waiver or amendment of the provisions of this Agreement shall be deemed to
apply to all Shareholders in the same fashion if such waiver or amendment
does so by its terms, notwithstanding the fact that certain Shareholders
are affected differently by virtue of differences in their shareholdings).
The Company
18
shall give prompt written notice of any amendment or termination hereof or
waiver hereunder to any Shareholder that did not consent in writing to
such amendment, termination or waiver. Any amendment, termination or
waiver effected in accordance with this sub-clause 15.10 shall be binding
on all Shareholders, even if they do not execute such consent.
15.11 WAIVER
No failure to exercise and no delay in exercising on the part of any of
the parties hereto any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise of any right,
power or privilege or such exercise against one or more (but not all) of
the parties preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
15.12 EXCLUSIVE REMEDIES
The rights and remedies provided in this Agreement are exclusive of any
rights or remedies otherwise provided by law provided that no such
exclusion shall apply in the event of fraud or fraudulent
misrepresentation.
15.13 RELEASES AND COMPROMISES
Each of the parties hereto may release or compromise the liability of any
of the other parties hereto under this Agreement or grant to such party
time or other indulgence without affecting the liability of any other of
the parties hereto under this Agreement.
15.14 NO PARTNERSHIP
Nothing in this Agreement shall constitute or be deemed to constitute a
partnership between any of the parties hereto and none of them shall have
any authority to bind the others in any way.
15.15 SEVERABILITY
(a) Notwithstanding that the whole or any part of any provision of this
Agreement may prove to be illegal or unenforceable, the other
provisions of this Agreement and the remainder (if any) of the
provision in question shall continue in full force and effect. In
relation to any illegal or unenforceable part of this Agreement, the
parties hereto agree to amend such part in such manner as may be
requested from time to time by any of the parties hereto provided
that such proposed amendment is legal and enforceable and to the
maximum extent possible carries out the original intent of the
parties in relation to that part.
(b) If any part of this Agreement or the Articles shall be held by any
court of competent jurisdiction to be unenforceable against or by
the Company, such part shall be treated as being severable from the
remainder of this Agreement or, as the case may be, the Articles and
the Shareholders shall promptly exercise their powers in relation to
the Company to procure (insofar as they have the power lawfully to
do so) that the severable part
19
is nevertheless put into or given effect in accordance with, or to
the maximum extent possible in accordance with, the original intent
of the parties hereto in relation to that part.
15.16 COUNTERPARTS
(a) This Agreement may be executed in any number of counterparts, and by
each party on a separate counterpart, but the Agreement shall not be
effective until at least the parties required by sub-clause 4.1 have
executed at least one counterpart. All the executed counterparts
shall together constitute one and the same instrument.
(b) Delivery of an executed counterpart of a signature page by fax shall
take effect as delivery of an executed counterpart of this Agreement
provided that, if such method is adopted, each party shall provide
the other with the original of such page as soon as reasonably
practicable thereafter.
15.17 LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with
English law and the parties hereto irrevocably submit to the non-exclusive
jurisdiction of the English courts in respect of any dispute or matter
arising out of or connected with this Agreement.
EXECUTED and DELIVERED as a deed the day and year first before written
EXISTING SHAREHOLDERS
By:
----------------------------------
Stephen Bart Haberman
In the presence of:
Europa Holdings Limited
By: /s/ Jerome B. Eisenberg
----------------------------------
Director
By:
----------------------------------
Director/Secretary
20
By: /s/ Nancy Franco
---------------------------------
Nancy Franco
In the presence of: /s/ signature illegible
Wireless Telco
By: /s/ Nancy Franco
----------------------------------
Director
By:
----------------------------------
Director/Secretary
By: /s/ Don Franco
---------------------------------
Don Franco
In the presence of: /s/ signature illegible
By:
----------------------------------
T Nicholas
In the presence of:
21
Broadband Wireless Access Services
By: /s/ signature illegible
----------------------------------
By:
----------------------------------
Wireless T1
By: /s/ J. Daniel Bariault
----------------------------------
By: /s/ J. Daniel Bariault
----------------------------------
By: /s/ Paul Likins
----------------------------
Paul Likins
In the presence of:
By: /s/ Kenneth Rind
----------------------------
Kenneth Rind
In the presence of: /s/ signature illegible
WinStar Communications Inc.
By:
----------------------------------
By:
----------------------------------
By: /s/ Linda A. Custer
----------------------------
Linda A. Custer
In the presence of:
22
By: /s/ Sandra K. Shelton
----------------------------
Sandra K. Shelton
In the presence of:
Columbus Wireless
By: /s/ signature illegible
-----------------------------
By: /s/ signature illegible
-----------------------------
By: /s/ William Custer
----------------------------
William Custer
In the presence of: /s/ Cynthia A. Grizzle 9/23/05
Administrative Assistant
Custer Capital, Inc.
BENEFICIAL OWNERS (if not already listed as Existing Shareholders)
By: /s/ John Franco
----------------------------
John Franco
In the presence of:
By: /s/ Mary Franco
----------------------------
Mary Franco
23
In the presence of:
Eurovest Holdings Limited
By: /s/ signature illegible
----------------------------------
Director
By:
----------------------------------
Director/Secretary
INVESTORS (if not already listed as Existing Shareholders)
SEC Orbcomm Middle East, Ltd.
By: /s/ signature illegible
----------------------------------
Director
By:
----------------------------------
Director/Secretary
CEC Bosphorus Communications, Inc.
By: /s/ signature illegible
----------------------------------
Director
By:
----------------------------------
Director/Secretary
Europe American Limited
By: /s/ signature illegible
----------------------------------
Director
By:
----------------------------------
Director/Secretary
24
Northwood Ventures LLC
By: /s/ Peter Schiff
----------------------------------
Pres.
By: /s/ signature illegible
----------------------------------
Director/Secretary
By: /s/ Jerome B. Eisenberg
---------------------------------
Jerome B. Eisenberg
In the presence of: /s/ signature illegible
Northwood Capital Partners LLC
By: /s/ Peter Schiff
----------------------------------
Pres.
By: /s/ signature illegible
----------------------------------
Director/Secretary
By: /s/ Walter Sonnenfeldt
---------------------------------
Walter Sonnenfeldt
In the presence of: /s/ Deborah Sonnenfeldt
25
Megeneva Ltd.
By:
----------------------------------
Director
By:
----------------------------------
Director/Secretary
Foreign Mortgage Corp.
By:
----------------------------------
Director
By:
----------------------------------
Director/Secretary
By: /s/ David Wrubel
---------------------------------
David Wrubel
In the presence of:
By: /s/ Joel Miller
---------------------------------
Joel Miller
In the presence of:
By: /s/ Cornelius T. Ryan
---------------------------------
Cornelius T. (Neil) Ryan
In the presence of:
By:
---------------------------------
Elliott Epstein
In the presence of:
26
Brooks Trust
By:
----------------------------------
By:
----------------------------------
Cindy Eisenberg Pension Trust
By:
----------------------------------
By:
----------------------------------
By:
------------------------------
Henry Wilson
In the presence of:
By:
------------------------------
Martin Honig
In the presence of:
THE COMPANY
Satcom International Group PLC
By: /s/ Don Franco
----------------------------------
Director
By:
----------------------------------
Director/Secretary
27
SCHEDULE 1
(PARTICULARS OF THE INVESTORS)
OUTSTANDING DEBT
PURCHASE PRICE NUMBER OF SHARES PRINCIPAL TO BE
NAME CONSIDERATION (US$) TO BE ISSUED RELEASED (US$)
- ----------------------------- ------------------- ---------------- ----------------
Don Franco 6,250,800.00 61,144 6,250,800.00
12 Hickory Hill Road
Saddle River, NJ 07458
USA
SEC Orbcomm Middle East, Ltd. 2,000,000.00 13,873 2,000,000.00
c/o Gerrard de Cerjat
29 Rue Sautter
PO Box 244
Geneva 12
Switzerland
CEC Bosphorus 1,700,000.00 11,792 1,700,000.00
Communications, Inc.
c/o Gerrard de Cerjat
29 Rue Sautter
PO Box 244
Geneva 12
Switzerland
Europe American Limited 2,200,000.00 15,261 2,200,000.00
c/o Gerrard de Cerjat
29 Rue Sautter
PO Box 244
Geneva 12
Switzerland
Northwood Ventures LLC 1,700,000.00 18,005 1,700,000.00
485 Underhill Blvd.
Suite 205
Syosset, NY 11791
USA
Attn: Peter Schiff
Jerome B. Eisenberg 50,000.00 3,912 50,000.00
346 Hillcrest Road
Englewood, NJ
07631
USA
28
OUTSTANDING DEBT
PURCHASE PRICE NUMBER OF SHARES PRINCIPAL TO BE
NAME CONSIDERATION (US$) TO BE ISSUED RELEASED (US$)
- ----------------------------- ------------------- ---------------- ----------------
Northwood Capital Partners 300,000.00 3,177 300,000.00
LLC
485 Underhill Blvd.
Suite 205
Syosset, NY 11791
USA
Attn: Peter Schiff
Walter Sonnenfeldt 602,398.88 3,072 602,398.88
83 Thackery Road
Rochester, NY 14610
USA
Megeneva Ltd. 101,000.00 1,130 101,000.00
c/o Gerrard de Cerjat
29 Rue Sautter
PO Box 244
Geneva 12
Switzerland
Foreign Mortgage Corp. 100,000.00 1,046 100,000.00
c/o Gerrard de Cerjat
29 Rue Sautter
PO Box 244
Geneva 12
Switzerland
David Wrubel 100,000.00 1,030 100,000.00
c/o Miller & Wrubel P.C.
250 Park Avenue
New York, NY 10177-0699
USA
Joel Miller 100,000.00 1,030 100,000.00
c/o Miller & Wrubel P.C.
250 Park Avenue
New York, NY 10177-0699
USA
Neil Ryan 100,000.00 961 100,000.00
c/o Oxford Partners
315 Post Road
Westport, CT 06880
USA
29
OUTSTANDING DEBT
PURCHASE PRICE NUMBER OF SHARES PRINCIPAL TO BE
NAME CONSIDERATION (US$) TO BE ISSUED RELEASED (US$)
- ----------------------------- ------------------- ---------------- ----------------
Elliott Epstein 75,000.00 833 75,000.00
488 Madison Avenue
11th Floor
New York, NY 10022-5910
Brooks Trust 50,000.00 555 50,000.00
c/o Cindy Eisenberg
346 Hillcrest Road
Englewood, NJ 07631
USA
Cindy Eisenberg Pension Trust 34,941.44 431 34,941.44
c/o Jerome B. Eisenberg
346 Hillcrest Road
Englewood, NJ 07631
USA
Henry Wilson 25,000.00 252 25,000.00
c/o Northwood Ventures LLC
485 Underhill Blvd.
Suite 205
Syosset, NY 11791
USA
Martin Honig 20,000.00 218 20,000.00
35 Pine Lawn Road
Suite 204W
Melville, NY
USA
30
SCHEDULE 2
(PARTICULARS OF THE COMPANY)
Type of company: Public company limited by shares
Date of incorporation: 4 December 1995
Place of incorporation: England and Wales
Registered number: 3133496
Registered office: 7 Spa Road, London SE16 3QQ
Authorised share capital: (pound)1,000,000 divided into 1,000,000 ordinary
shares of (pound)1 each
Issued share capital: 70,120 ordinary shares of (pound)1 each, fully paid
Directors: J. Eisenberg; D. Franco; M. Goldstein; P.G. Schiff; K. Rind; W.H.
Sonnenfeldt; J. Franco
Secretary: J. Eisenberg
Nature of business: Satellite Communication
Accounting reference date: 31 December
Auditors: PJW Accounting Limited
Date of latest accounts filed: 31 December 2003
Date of latest annual return filed: 4 December 2004
31
SCHEDULE 3
(BOARD MINUTES)
SATCOM INTERNATIONAL GROUP PLC
MINUTES of a meeting of the Board of Directors held at 30 Rockefeller Plaza, New
York NY 10112, New York [ ] on 2005 at m (Eastern Standard Time).
Present:
In attendance:
1. CHAIRMAN
[ ] took the Chair, noted that a quorum was present and declared the
meeting open.
2. DECLARATION OF INTERESTS
In accordance with Section 317 of the Companies Act 1985 and Article 15,
Mr - and Mr - declared that they were included in the arrangements by
reason of their holding notes and releasing liabilities of the Company in
respect of accrued salary or fees and expenses.
3. INVESTMENT AGREEMENT AND ANCILLARY DOCUMENTS
The following documents were produced:
(a) a Reorganisation Agreement (the "REORGANISATION AGREEMENT") proposed
to be entered into today between the Company and each of the persons
identified therein including namely shareholders and certain
creditors;
(b) revised articles of association of the Company ("NEW ARTICLES").
IT WAS REPORTED that the existing members of the Company and certain
creditors including holders of various notes issued by the Company (the
"INVESTORS") had agreed the terms upon which they would subscribe for
[137,722] new ordinary shares of (pound)1 each in the capital of the
Company as set out next to each Investors name in Schedule 1 hereto. It
was noted that all persons other than the Company had executed the
Reorganisation Agreement. The chairman stated that he felt that it was in
the best interests of the Company that the Company co-operate in giving
effect to such arrangements as it improved the strength of the Company's
balance sheet, benefiting the non-participating creditors and also making
the Company more attractive to potential investors.
IT WAS RESOLVED that each of the documents produced be noted, approved or,
as the case may be, adopted and that:
32
(a) any director be authorised to execute on behalf of the Company
any such document which required to be so executed;
(b) any such document as required execution as a deed by the
Company be so executed; and
(c) all steps to be taken by the Company pursuant to any of the
documents tabled be taken forthwith.
4. EXTRAORDINARY GENERAL MEETING(S)
It was reported that:
(a) two notices of Extraordinary General Meeting had been issued, as
attached to these minutes;
(b) the first extraordinary general meeting was being held on the
requisite notice but the second extraordinary general meeting was
[being held using the consent to short notice][not being held];
(c) notice of each extraordinary general meeting had been given to the
Auditors;
(d) although as permitted by the Companies Act and reflected in the
existing Articles there was no obligation to give notice to any
member who had not provided to the Company a registered address
within the United Kingdom, the Directors had made a good faith
attempt to notify all members based on information known to the
Company accordingly IT WAS RESOLVED to proceed with [both
extraordinary general meetings so that one immediately follows the
other] [the first extraordinary general meeting only and to convene
the second extraordinary general meeting for no later than 30 days
later, subject to complying with the requirements of the Companies
Act and the Articles].
5. ADJOURNMENT AND RESUMPTION OF MEETING
The meeting was adjourned. On the resumption of the meeting, it was
reported that those documents which required execution by the Company had
been so executed and that the [the] [both] extraordinary general
meeting[s] had been duly convened and held [on short notice] and that the
ordinary [and special] resolutions proposed at such meeting[s] had been
duly passed.
6. SUBSCRIPTION FOR SHARES
It was reported that subscription application forms had been received from
the Investors in respect of an aggregate of [137,722] ordinary shares of
(pound)1 each in the Company. It was further reported that the Company had
(pound)929,880 of authorised but unissued share capital. IT WAS RESOLVED
that subject to the passing of the ordinary resolution referred to in
section 4 above, new ordinary shares of (pound)1 each be allotted and
issued to the Investors as set out next to each Investors name in Schedule
1 hereto credited as fully paid in
33
accordance with such applications, that the names of the Investors be
entered in the Register of Members and that share certificates be issued
in favour of the Investors in respect of the new Shares.
7. ADJOURNMENT AND RESUMPTION OF MEETING
The meeting was adjourned. On the resumption of the meeting, it was
reported that the Register of Members and the Register of Allotments had
been amended to reflect the issues and allotments described in section 6
above.
8. TRANSFERS
There were produced to the meeting the following duly executed stock
transfer forms:
TRANSFEROR TRANSFEREE NO. SHARES
- ---------- ------------ ----------
Don Franco Orbcomm Inc. 65,244
Jerome Eisenberg Orbcomm Inc. 2,912
Europa Holdings Limited Orbcomm Inc. 29,240
Nancy Franco Orbcomm Inc. 5,950
IT WAS RESOLVED that subject only to the due stamping of such stock
transfer forms, each of the transfers be, and is hereby, approved for
registration in the books of the Company and that the Secretary, be and is
hereby authorised to make such entries immediately following receipt of
each such stamped transfer form.
9. NOTICES, ETC TO REGISTRAR OF COMPANIES
IT WAS RESOLVED that the secretary be instructed to deliver the following
to the Registrar of Companies, as soon as the extraordinary general
meeting[s] [has][have] been held and assuming the relevant resolutions are
duly passed:
(a) a copy of the New Articles.
(b) a print of the special resolution.
(c) a print of part (a) of the ordinary resolution.
(d) a Return of Allotments form (Form 88(2)).
10. CLOSE OF MEETING
There being no further business, the meeting terminated.
CHAIRMAN
34
SCHEDULE 4
(NOTICES OF EXTRAORDINARY GENERAL MEETING)
PART A
NOTICE OF EXTRAORDINARY GENERAL MEETING
SATCOM INTERNATIONAL GROUP PLC
TO Shareholders and, for information only, to known beneficial owners of certain
shares, and certain creditors and interested parties.
NOTICE IS HEREBY GIVEN that an Extraordinary General Meeting of the Company will
be held at 30 Rockefeller Plaza, New York, NY 10112, New York on 30 September
2005 at 10:00am (Eastern Standard time) for the purpose of considering and, if
thought fit, passing the following resolution which will be proposed as a
single, composite, ordinary resolution:
RESOLUTION
"(a) The directors be generally and unconditionally authorised pursuant to
section 80 of the Companies Act 1985 to allot and issue up to 929,880
ordinary shares of (pound)1 each in the capital of the Company before the
expiry of 5 years from the date of this resolution (on the expiration of
which this authority shall expire);
(b) any acts or omissions of the current and former directors, individually
and collectively, regarding the allotment, issue and transfers of ordinary
shares in the capital of the Company and the issue of notes convertible
into shares and the recognition of certain former intellectual property
and other rights holders as creditors of the Company in each case prior to
the date hereof be and are hereby approved; and
(c) utilising the authority granted in paragraph (a) of this Resolution, to
allot and issue to SEC Orbcomm Middle East, Ltd., CEC Bosphorus
Communications, Inc. and Europe American Limited, 13,873, 11,792 and
15,261 respectively new ordinary shares of (pound)1 each in the capital of
the Company credited as fully paid (in cash) in consideration of the
release by each of the three above named entities of the liabilities of
the Company recorded in the books of the Company, and any other
liabilities owed to them."
Note: Any member may attend the meeting in person or by proxy. A valid proxy
shall be deposited at the offices of Chadbourne & Parke LLP, 30 Rockefeller
Plaza, New York, NY 10112, New York (marked for the attention of Alexander San
Miguel, Esq.) not less than 48 hours before the time appointed for holding the
meeting.
DATED 9 September, 2005
BY ORDER OF THE BOARD
Secretary
REGISTERED OFFICE: 7 Spa Road, London SE16 3QQ, England
35
SCHEDULE 4
PART B
NOTICE OF EXTRAORDINARY GENERAL MEETING
SATCOM INTERNATIONAL GROUP PLC
TO Shareholders and, for information only, to known beneficial owners of certain
shares, and certain creditors and interested parties.
NOTICE IS HEREBY GIVEN that an Extraordinary General Meeting of the Company will
be held at 30 Rockefeller Plaza, New York, NY 10112, New York on 30 September
2005 at 10:10am (Eastern Standard time) for the purpose of considering and, if
thought fit, passing the following resolution which will be proposed as a
special resolution:
SPECIAL RESOLUTION
"To adopt with effect from 1 October 2005 in substitution for the Company's
existing Articles of Association, new Articles of Association (the "NEW
ARTICLES") in the form produced at the meeting and initialled by the chairman of
the meeting, for the purposes of identification only."
Note: Any member may attend the meeting in person or by proxy. A valid proxy
shall be deposited at the offices of Chadbourne & Parke LLP, 30 Rockefeller
Plaza, New York, NY 10112, New York (marked for the attention of Alexander San
Miguel, Esq.) not less than 48 hours before the time appointed for holding the
meeting.
DATED 9 September, 2005
BY ORDER OF THE BOARD
Secretary
REGISTERED OFFICE: 7 Spa Road, London SE16 3QQ, England
36
SCHEDULE 5
(SUBSCRIPTION APPLICATION FORM)
To: The Secretary,
Satcom International Group PLC.
7 Spa Road
London SE16 3QQ
Dated: September 2005
Dear Sir,
Satcom International Group PLC.
We, [Investor] of [ ] hereby apply for [ ] ordinary shares of (pound)1 each in
the above company at a premium and we enclose a deed of release in respect of
US$- (being the aggregate amount of moneys owed to us by the Company at the date
hereof) in consideration for the issue to us of such ordinary shares credited as
fully paid.
We agree to take such shares subject to the Company's memorandum and articles of
association and to the terms of a Reorganisation Agreement to be made between
(1), ourselves and others and (2), the Company no later than 31 October 2005 and
request you to enter our name in the Company's register of members as the holder
of such shares.
Yours faithfully,
[Investor]
(Duly Authorised)
37
SCHEDULE 6
(WARRANTIES AND REPRESENTATIONS)
PART I (BY THE COMPANY)
1. THE SHARES
The Shares will at Completion be validly issued free from Encumbrance except as
contained in this Agreement and the New Articles and, assuming execution of a
deed of release referred to in sub-clause 4.1.3, fully paid.
2. THE COMPANY
The information set out in Schedule 2 is complete and accurate in all respects.
3. CONSEQUENCES OF SUBSCRIPTION
Entry into and compliance with the terms of this Agreement does not require the
consent or agreement of any person who is not a party to this Agreement, will
not cause the Company to lose any interest in or the benefit of any contract,
asset, right, licence or privilege it presently owns or enjoys, will not relieve
any person of any obligation to the Company, will not cause the Company to be in
breach of any of its obligations, will not result in any present or future
Indebtedness of the Company becoming due prior to its stated maturity and will
not give rise to or cause to become exercisable any option or right of
pre-emption, conversion or termination.
4. CAPACITY
The Company has full power and authority to enter into and perform its
obligations under this Agreement and the agreements and deeds to be entered into
pursuant hereto which will, when executed, constitute binding obligations on the
Company.
PART II (BY THE INVESTORS)
1. OWNERSHIP OF QUALIFYING DEBT
The Investor is the sole legal and beneficial owner of the amount of Qualifying
Debt listed against his name in Schedule 1, free from any Encumbrances except
that certain of the Qualifying Debt may be beneficially owned by Orbcomm Inc.
2. CAPACITY
The Investor has full power and authority to enter into and perform its
obligations under this Agreement and the agreements and deeds to be entered into
pursuant hereto which will, when executed, constitute binding obligations on the
Investor.
3. NO CONFLICT
Entry into and compliance with the terms of this Agreement by the Investor does
not require the consent of any person who is not a party to this Agreement, will
not cause the Investor to lose any interest in or the benefit of the Qualifying
Debt except in
38
exchange for the issue of the relevant number of Subscription Shares and does
not conflict with the terms of any other agreement to which the Investor is a
party or any applicable law or regulation.
4. NO LITIGATION
The Investor is not engaged in, or the subject of any litigation, arbitration,
adjudication, mediation, administrative or criminal proceedings, whether as
claimant or defendant or otherwise, which adversely affects, or is likely
adversely to affect, its ability to enter into or its obligations under the
Agreement.
PART III (BY THE EXISTING SHAREHOLDERS)
1. OWNERSHIP OF THE SHARES.
Each Existing Shareholder is either the legal and beneficial owner of the Shares
listed against their name in Schedule 12, free from any Encumbrances, or is the
legal owner of such Shares, subject only to the beneficial ownership being
vested in one or more Beneficial Owners or in Orbcomm Inc.
2. CAPACITY
Each Existing Shareholder has full power and authority to enter into and perform
its obligations under this Agreement and the agreements and deeds to be entered
into pursuant hereto which will, when executed, constitute binding obligations
on such Existing Shareholder.
PART IV (BY THE BENEFICIAL OWNERS)
1. OWNERSHIP OF SHARES
Each Beneficial Owner is the beneficial owner of some Shares listed against the
names of some Existing Shareholders in Schedule 12, free from Encumbrances.
2. CAPACITY
Each Beneficial Owner has full power and authority to enter into and perform its
obligations under this Agreement and the agreements and deeds to be entered into
pursuant hereto which will, when executed, constitute binding obligations on
such Beneficial Owner.
39
SCHEDULE 7
(DEED OF ADHERENCE)
THIS DEED OF ADHERENCE is made the [ ] day of [ ] by [ ] of [ ] (hereinafter
called the "COVENANTOR")
SUPPLEMENTAL to a reorganisation agreement dated [ ] 2005 and made between
Satcom International Group PLC (the "COMPANY") and certain investors [as
modified by [here set out the details of any instrument modifying the original
agreement]] (the "REORGANISATION AGREEMENT").
WITNESSES as follows:
1. The Covenantor hereby confirms that he has been supplied with a copy of
the Reorganisation Agreement and hereby covenants with each of the other
parties to the Reorganisation Agreement from time to time to observe,
perform and be bound by all the terms of the Reorganisation Agreement
(other than clauses 2, 3, 4 and 14 thereof) which are capable of applying
to the Covenantor and which have not been performed at the date hereof to
the intent and effect that the Covenantor shall be deemed with effect from
the date on which the Covenantor is registered as a member of the Company
to be a party to the Reorganisation Agreement and to be a Shareholder (as
defined in the Reorganisation Agreement).
2 This Deed shall be governed by and construed in accordance with the laws
of England and the Covenantor hereby submits to the non-exclusive
jurisdiction of the Courts of England and Wales.
EXECUTED AND DELIVERED as a deed the day and year first before written.
40
SCHEDULE 8
(DEED OF CONSENT)
THIS DEED OF CONSENT is made the [ ] day of 2005 by [ ] of [ ] (hereinafter
called the "COVENANTOR")
SUPPLEMENTAL to a reorganisation agreement dated [ ], 2005 and made between
Satcom International Group PLC (the "COMPANY") and certain investors (the
"REORGANISATION AGREEMENT").
WITNESSES as follows:
1. The Covenantor, an existing shareholder in the Company, hereby confirms
that he has been supplied with an Execution Copy of the Reorganisation
Agreement and hereby consents to the Reorganisation and covenants with
each of the other parties to the Reorganisation Agreement from time to
time to observe and be bound by the terms of the Reorganisation Agreement
(other than clauses 2, 3 and 4 thereof) which are capable of applying to
the Covenantor and which have not been performed at the date hereof to the
intent and effect that the Covenantor shall be deemed with effect from the
date on which the Covenantor is registered as a member of the Company to
be a party to the Reorganisation Agreement and to be a Shareholder (as
defined in the Reorganisation Agreement).
2. The Covenantor hereby (i) releases the current and former directors,
officers, employees, agents and advisers of the Company, Orbcomm Inc.,
Orbcomm Holdings LLC and Orbcomm LLC individually and collectively and the
Company, Orbcomm Inc, Orbcomm Holdings LLC and Orbcomm LLC themselves from
any and all legal, equitable or other claims, counterclaims, demands,
setoffs, defences, contracts, accounts, suits, debts (including in respect
of salary, fees and interest, if any), agreements, actions, causes of
action, sums of money, reckoning, bonds, bills, specialties, covenants,
promises, variances, trespasses, damages, extents, executions, judgments,
findings, controversies and disutes, and any past, present or future
duties, responsibilities or obligations, to the date hereof, whether known
or unknown, arising out of, concerning or related to, directly or
indirectly, any dealings between the parties prior to the date hereof
including, without limitation, any acts or omissions that may have
occurred in relation to the current or former or liabilities (actual or
contingent) of the Company, the business or operations as currently or
previously carried on and (ii) undertakes not to initiate any form of
legal proceeding (which term shall include mediation, alternative dispute
resolution and arbitration) in any jurisdiction in relation to the same or
to such acts or omissions as a defence or counterclaim to any action
brought against the Covenantor by any of the above mentioned persons.
3. This Deed shall be governed by and construed in accordance with the laws
of England and the Covenantor hereby submits to the non-exclusive
jurisdiction of the Courts of England and Wales.
EXECUTED as a deed the day and year first before written.
41
SCHEDULE 9
(DEED OF RELEASE)
THIS DEED OF RELEASE is made the [ ] day of [ ] 2005 by [ ] of [ ] (hereinafter
called the "CREDITOR")
WITNESSES as follows:
1. In consideration of the issue to the Creditor of [ ] new ordinary shares
of (pound)1 each in the capital of Satcom International Group PLC (the
"COMPANY") credited as fully paid up as to par value and the premium
thereon, the Creditor hereby:
(a) confirms that he has been supplied with an Execution Copy of the
Reorganisation Agreement and hereby consents to the Reorganisation
and covenants with each of the other parties to the Reorganisation
Agreement from time to time to observe and be bound by the terms of
the Reorganisation Agreement which are capable of applying to the
Covenantor and which have not been performed at the date hereof to
the intent and effect that the Covenantor shall be deemed with
effect from the date on which the Covenantor is registered as a
member of the Company to be a party to the Reorganisation Agreement
and to be a Shareholder (as defined in the Reorganisation
Agreement);
(b) confirms and agrees that US$[ ] (the "DEBT") represents the total of
all amounts owing to him (contingent or otherwise and whether of
principal or interest) and hereby releases and extinguishes the
Debt; and
(c) (i) releases the current and former directors, officers, employees,
agents and advisers of the Company, Orbcomm Inc., Orbcomm Holdings
LLC and Orbcomm LLC individually and collectively and the Company,
Orbcomm Inc, Orbcomm Holdings LLC and Orbcomm LLC themselves from
any and all legal, equitable or other claims, counterclaims,
demands, setoffs, defences, contracts, accounts, suits, debts
(including in respect of salary, fees and interest, if any),
agreements, actions, causes of action, sums of money, reckoning,
bonds, bills, specialties, covenants, promises, variances,
trespasses, damages, extents, executions, judgments, findings,
controversies and disputes, and any past, present or future duties,
responsibilities, or obligations, to the date hereof, whether known
or unknown, arising out of, concerning or related to, directly or
indirectly, any dealings between the parties prior to the date
hereof including, without limitation, any acts or omissions that may
have occurred in relation to the current or former or liabilities
(actual or contingent) of the Company, the business or operations as
currently or previously carried on and (ii) undertakes not to
initiate any form of legal proceeding (which term shall include
mediation, alternative dispute resolution and arbitration) in any
jurisdiction in relation to the same or to such acts or
42
omissions as a defence or counterclaim to any action brought against
the Creditor by any of the above mentioned persons.
2 This Deed shall be governed by and construed in accordance with the laws
of England and the Creditor hereby submits to the non-exclusive
jurisdiction of the Courts of England and Wales.
EXECUTED AND DELIVERED as a deed the day and year first before written.
43
SCHEDULE 10
(CONSENT TO SHORT NOTICE)
CONSENT TO SHORT NOTICE
WE, the undersigned, being, together with others who have also given such
consent, a majority in number of the members together holding 95 per cent or
more in nominal value of the shares giving a right to attend and vote at the
Meeting convened by the Notice of Extraordinary General Meeting dated 9
September 2005, convening a meeting of Shareholders for 30 September 2005 at
10.10 am (Eastern Standard Time) for the purpose of adopting new Articles of
Association of the Company, hereby agree to it being convened for the date and
place mentioned therein and to the passing at the Meeting, as a Special
Resolution of the Resolution set out in the Notice notwithstanding that shorter
notice than that specified in the Companies Act 1985 or the Company's Articles
of Association has been given.
DATED: 2005
Member Signature
44
SCHEDULE 11
(BENEFICIAL OWNERS)
Europa Holdings Ltd
John Franco
Mary Franco
Eurovest Holdings Ltd
45
SCHEDULE 12
(EXISTING SHAREHOLDERS)
Stephen Bart Haberman/Europa Holdings Ltd
Nancy Franco/Wireless Telco
Don Franco
T Nicholas
Broadband Wireless Access Services (formerly AA&T
Wireless Services)
Wireless TI
P Likins
Kenneth Rind
Winstar Communications Inc.
Linda Custer
William Custer
Columbus Wireless
Sandra Shelton
46
SCHEDULE 13
(FORMS OF PROXY)
PART A
SATCOM INTERNATIONAL GROUP PLC
I/We of being a
member/members of the above-named company, hereby appoint Don Franco of 12
Hickory Hill Road, Saddle River, NJ, 07458,USA or failing him Jerome Eisenberg
of 364 Hillcrest Road, Englewood, NJ, 07631, USA as my/our proxy to vote in
my/our name[s] and on my/our behalf in favour of the Ordinary Resolution to be
proposed at the extraordinary general meeting of the company to be held on 30
September 2005 at 10.00 am (Eastern Standard Time) convened by the notice dated
9 September 2005 and at any adjournment thereof.
Signed on 2005
47
SCHEDULE 13
PART B
SATCOM INTERNATIONAL GROUP PLC
I/We of being a
member/members of the above-named company, hereby appoint Don Franco of
12 Hickory Hill Road, Saddle River, NJ, 07458,USA or failing him Jerome
Eisenberg of 364 Hillcrest Road, Englewood, NJ, 07631, USA as my/our proxy to
vote in my/our name[s] and on my/our behalf in favour of the Special Resolution
to be proposed at the extraordinary general meeting of the Company to be held on
30 September 2005 at 10.10 am (Eastern Standard Time) convened by the notice
dated 9 September 2005 and at any adjournment thereof.
Signed on 2005
48