EXHIBIT 4.2
Second Amended and Restated Stockholders Agreement EXECUTION COPY
ORBCOMM INC.
SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this
"Agreement") is dated as of December 30, 2005 and amends the ORBCOMM Inc.
Amended and Restated Stockholders Agreement, dated as of November 18, 2005 which
amended the ORBCOMM Inc. Stockholders Agreement, dated as of February 17, 2004
as amended (together with the original Amended and Restated Stockholders
Agreement, the "Existing Agreement") by and among ORBCOMM Inc., a Delaware
corporation (the "Company") and each of the persons and entities signatories
thereto.
WHEREAS, the Company has authorized the issuance of Series B Preferred
Stock and the necessary parties to the Existing Agreement desire to amend the
Existing Agreement and have agreed to amend the Existing Agreement.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree hereto as follows:
1. Definitions.
1.1 "Affiliates" shall mean, with respect to any Person, any Person
which, directly or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with such Person or any Affiliate of
such Person, including, without limitation, any partner, officer, director,
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.
1.2 "Common Stock Equivalents" shall mean the Common Stock and shares
of Common Stock issued or issuable upon conversion of the Preferred Stock or
exercise of any option, warrant or other security or right of any kind
convertible into or exchangeable for Common Stock; provided that, for purposes
of calculating a Stockholder's pro rata participation rights pursuant to this
Agreement, the Common Stock Equivalents held by a Stockholder shall include the
number of Common Stock Equivalents of the Company held by Orbcomm Asset Holdings
allocable to such Stockholder, if any, based on the number of shares of fully
paid capital stock of Orbcomm Asset Holdings held by such Stockholder.
1.3 "Common Stockholders" shall mean the persons and entities listed
on Exhibit C hereto, but shall also include their Permitted Transferees and
Persons required to become additional parties to this Agreement pursuant to
Section 8, and Trust Beneficiaries upon distribution of the Common Stock held by
the Trust.
1.4 "Holdings" shall mean ORBCOMM Holdings LLC, a Delaware limited
liability company.
1.5 "Liquid Security" shall have the meaning ascribed to it in the
Company's Third Amended and Restated Certificate of Incorporation, dated
December 30, 2005.
1.6 "Majority of Series B Preferred Stock" shall have the meaning
ascribed in the Company's Third Amended and Restated Certificate of
Incorporation.
1.7 "Members of Holdings" shall mean the holders of membership
interests in Holdings.
1.8 "MH" shall mean MH Investors Satellite LLC.
1.9 "Notice of Transfer" shall mean, in the case of Sections 3.1 and
3.2, a written notice which shall (i) specifically identify the Third Party to
whom a Stockholder proposes to Transfer Shares pursuant to a bona fide Third
Party Offer, (ii) include a copy of such Third Party Offer and (iii) be
irrevocable for at least the applicable notice periods set forth in Articles 3
and 4 and, in the case of Section 3.3, a written notice which shall propose the
consideration for which a Series B Stockholder offers shares to the Company and
any other material terms on which such shares are offered to the Company.
1.10 "Offered Shares" shall mean the Shares proposed to be Transferred
to a Third Party or the Company by a Stockholder pursuant to a Notice of
Transfer.
1.11 "Orbcomm Asset Holdings" means Orbcomm Asset Holdings Ltd., a
Cayman Islands limited company.
1.12 "PCG Entities" means collectively PCG Satellite Investments, LLC,
CALPERS PCG Corporate Partners, LLC and any Affiliate(s) of either of the
foregoing.
1.13 "Permitted Transferees" shall mean, in the case of a Stockholder
that is a natural person, the spouse (including widow) or issue of the
Stockholder, a trust that benefits the Stockholder and/or his spouse (including
widow), issue or a charity or any Person controlled by such a trust or an entity
controlled directly or indirectly by the Stockholder (including individual
retirement accounts).
1.14 "Person" shall mean a natural person, corporation, limited
partnership, general partnership, joint stock company, joint venture,
association, company, trust, bank, trust company, and trust, business trust or
other organization, whether or not a legal entity, or a government or agency or
any political subdivision thereof.
1.15 "Preferred Stock" shall mean the Series A Preferred Stock and
Series B Preferred Stock and "Preferred Stockholder" shall mean a holder of
Preferred Stock.
1.16 "Qualified Sale" shall have the meaning ascribed to it in the
Company's Third Amended and Restated Certificate of Incorporation dated December
30, 2005.
1.17 "Series A Stockholders" shall mean the Persons listed on Exhibit
B hereto, but shall include their Permitted Transferees and Persons required to
become Additional Parties hereto pursuant to Section 8.
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1.18 "Series B Stockholders" shall mean the Persons listed on Exhibit
A hereto, but shall include their Permitted Transferees and Persons required to
become Additional Parties hereto pursuant to Section 8.
1.19 "Shares" shall mean shares of voting capital stock of the
Company.
1.20 "Stockholder" shall mean the Common Stockholders and Preferred
Stockholders.
1.21 "Third Party" shall mean a reputable offeror, who shall not be an
Affiliate of the Stockholder proposing to Transfer Shares, who has adequate
financial resources to purchase the relevant Offered Shares.
1.22 "Third Party Offer" shall mean a bona fide written offer by a
Third Party to purchase all or a portion of a Stockholder's Shares, which notice
shall specify the terms and conditions of the proposed Transfer, including (i)
the name and address of the Third Party, (ii) the manner in which a disposition
is proposed to be made, (iii) the price or consideration (which shall be cash)
at which and the form in which the proposed Transfer is to be made, and (iv) all
material terms and conditions of and to the Transfer.
1.23 "Transfer" shall mean any sale, assignment, encumbrance,
hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or
descent, or other transfer or disposition of any kind, including, but not
limited to, transfers to receivers, levying creditors, trustees or receivers in
bankruptcy proceedings or general assignees for the benefit of creditors,
whether voluntary or by operation of law, directly or indirectly, of any of the
Shares held by a Stockholder.
1.24 "Trust" shall mean the Liquidating Trust of ORBCOMM Global L.P.,
formerly a Delaware limited partnership.
1.20 "Trust Beneficiaries" shall mean the beneficiaries of the Trust.
2. Restriction on Transfers of Shares.
2.1 Unless approved by the parties necessary to amend this Agreement
and subject to Section 5, no Stockholder shall Transfer any Shares for a period
of eighteen months from the date of this Agreement. Except as expressly
permitted by Sections 3, 4, 5 or 6 hereof, each Stockholder agrees that it will
not directly or indirectly, Transfer any Shares or any interest therein or enter
into any commitment to do any of the foregoing without the prior written consent
of the Company. The Company agrees not to record any Transfer of Shares unless
such Transfer has been completed in compliance with the provisions set forth in
this Agreement. Notwithstanding the eighteen month restriction on transfers, the
parties agree that (a) a distribution or transfer of Common Stock by the Trust
to the Trust Beneficiaries shall be permitted without such approval and, upon
such distribution or transfer, the Trust Beneficiaries will be bound by the
terms of this Agreement and will have all of the rights, benefits and
obligations of this Agreement as if they had been original signatories and (b) a
distribution or transfer of Common Stock by Holdings to the Members of Holdings
shall be permitted without such approval provided that each of the Members of
Holdings has executed a counterpart of this
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Agreement prior to the date of such distribution or transfer, and, upon such
distribution or transfer, each Member of Holdings will be bound by the terms of
this Agreement and will have all of the rights, benefits and obligations of this
Agreement as if they had been original signatories. For the avoidance of doubt,
the foregoing eighteen month period shall begin on the date of this Agreement
for any transferee that is a Trust Beneficiary or a Member of Holdings, without
reference to the ownership period of any such transferee. The Company agrees to
record any transfer or distribution of Common Stock from the Trust to the Trust
Beneficiaries and any transfer or distribution of Common Stock from Holdings to
the Members of Holdings made in accordance with the terms of this Agreement.
2.2 Orbcomm Asset Holdings hereby irrevocably assigns its rights of
refusal and tag-along rights under this Agreement to the Stockholders who are
members of Orbcomm Asset Holdings in proportion to their fully paid membership
interests in Orbcomm Asset Holdings, which are set forth on Exhibit D hereto.
The foregoing assignment shall not affect the enforceability of the other
provisions of this Agreement as to Orbcomm Asset Holdings, and Orbcomm Asset
Holdings, and its Shares, shall remain subject to the restrictions on Transfer,
the Drag-Along provision, and other provisions of this Agreement.
Notwithstanding any provision of this Agreement to the contrary, the provisions
of Section 5.1 of this Agreement relating to Exempt Transfers shall not apply to
Orbcomm Asset Holdings.
3. Right of First Refusal.
3.1 Transfers by Common Stockholders. (i) In connection with a
proposed Transfer of Shares by a Common Stockholder (the "Selling Common
Stockholder"), the Selling Common Stockholder shall first deliver to the
Company, the other Common Stockholders (the "Other Common Stockholders") and the
Preferred Stockholders a Notice of Transfer offering to the Company, the Other
Common Stockholders and the Preferred Stockholders all of the Offered Shares on
the terms and conditions specified in the Notice of Transfer and in the manner
set forth in this Section 3.
(ii) The Company shall have the first right and option for a period of
twenty (20) days after delivery to it of the Notice of Transfer to accept any or
all of the Offered Shares on the terms and conditions specified in the Notice of
Transfer. The Company may exercise its option by delivering to the Selling
Common Stockholder prior to the expiration of such twenty (20) day period a
written notice specifying the number of Offered Shares which the Company has
elected to purchase. If the Company elects to purchase less than all of the
Offered Shares, the Company shall deliver, within two (2) days after termination
of such twenty (20) day period, a written notice to the Other Common
Stockholders and the Preferred Stockholders indicating the number of Offered
Shares which the Company has elected to purchase.
(iii) The Other Common Stockholders shall thereafter have the second
right and option for a period of ten (10) days after delivery to them of such
notice from the Company to elect to purchase any or all of the Offered Shares
which the Company did not elect to purchase on the terms and conditions
specified in the Notice of Transfer. The Offered Shares which the Company did
not elect to purchase shall be allocated among the Other Common Stockholders on
a pro rata basis, based on the number of outstanding shares of Common Stock held
by each Other Common Stockholder. Each of the Other Common Stockholders may
exercise its option by
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delivering a written notice to the Company and the Selling Common Stockholder
prior to the termination of such ten (10) day period specifying the number of
the remaining Offered Shares such Other Common Stockholder has elected to
purchase. In the event that one or more Other Common Stockholders do not elect
to purchase all of the Offered Shares allocated to them, Other Common
Stockholders who have elected to purchase their full allocation within the ten
(10) day period shall have an additional option, for a period of five (5) days
next succeeding the expiration of the ten (10) day period, to purchase all or
any part of the balance of such remaining Offered Shares on the terms and
conditions set forth in the Notice of Transfer, which option shall be exercised
by the delivery of written notice to the Company and the Selling Common
Stockholder prior to the termination of such five (5) day period specifying the
number of additional Offered Shares such Other Common Stockholder has elected to
purchase. In the event there are two or more such Other Common Stockholders that
choose to exercise the last-mentioned option for a total number of remaining
Offered Shares in excess of the number available, the remaining Offered Shares
available for each such Other Common Stockholder's option shall be allocated to
such Other Common Stockholder pro rata based on the number of shares of
outstanding Common Stock owned by the Other Common Stockholders so electing. If
the Company and the Other Common Stockholders elect to purchase less than all of
the Offered Shares, the Company shall deliver, within two (2) days after the
termination of the five (5) day period discussed above, a written notice to the
Preferred Stockholders indicating the number of Offered Shares which the Company
and the Other Common Stockholders have elected to purchase.
(iv) The Preferred Stockholders (for the avoidance of doubt, this
group shall include the Series A Stockholders and Series B Stockholders together
acting in this instance as a single class) shall thereafter have the third right
and option, at their sole discretion for a period of ten (10) days after
delivery to them of such notice by the Company to elect to purchase any or all
of the Offered Shares which the Company and the Other Common Stockholders did
not elect to purchase on the terms and conditions specified in the Notice of
Transfer. The Offered Shares which the Company and the Other Common Stockholders
did not elect to purchase shall be allocated among the Preferred Stockholders on
a pro rata basis, based on the number of shares of Preferred Stock held by each
Preferred Stockholder. Each of the Preferred Stockholders may exercise its
option by delivering a written notice to the Company and the Selling Common
Stockholder prior to the termination of such ten (10) day period specifying the
number of the remaining Offered Shares such Preferred Stockholder has elected to
purchase. In the event that one or more Preferred Stockholders do not elect to
purchase all of the Offered Shares allocated to them, Preferred Stockholders who
have elected to purchase their full allocation within the ten (10) day period
shall have an additional option, for a period of five (5) days next succeeding
the expiration of the ten (10) day period, to purchase all or any part of the
balance of such remaining Offered Shares on the terms and conditions set forth
in the Notice of Transfer, which option shall be exercised by the delivery of a
written notice to the Company and the Selling Common Stockholder prior to the
termination of such five (5) day period specifying the number of additional
Offered Shares such Preferred Stockholder has elected to purchase. In the event
that there are two or more such Preferred Stockholders that choose to exercise
the last-mentioned option for a total number of remaining Offered Shares in
excess of the number available, the remaining Offered Shares available for each
such Preferred Stockholder's option shall be allocated to such Preferred
Stockholder pro rata based on the number of shares of Preferred Stock owned by
the Preferred Stockholders so electing. Within two (2) days following the end
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of such five (5) day period, the Company shall deliver a notice to all of the
Stockholders indicating the total number of Offered Shares which the Company,
the Other Common Stockholders and the Preferred Stockholders have elected to
purchase.
3.2 Transfers by Series A Stockholders.(i) In connection with a
proposed Transfer of Shares by a Series A Stockholder (the "Selling Series A
Stockholder"), the Selling Series A Stockholder shall first deliver to the
Company, the other Preferred Stockholders (the "Other Preferred Stockholders")
and the Common Stockholders a Notice of Transfer offering to the Company, the
Other Preferred Stockholders and the Common Stockholders all of the Offered
Shares on the terms and conditions specified in the Notice of Transfer and in
the manner set forth in this Section 3.
(ii) The Company shall have the first right and option for a period of
twenty (20) days after delivery to it of the Notice of Transfer to accept any or
all of the Offered Shares on the terms and conditions specified in the Notice of
Transfer. The Company may exercise its option by delivering to the Selling
Series A Stockholder prior to the expiration of such twenty (20) day period a
written notice specifying the number of Offered Shares which the Company has
elected to purchase. If the Company elects to purchase less than all of the
Offered Shares, the Company shall deliver, within two (2) days after termination
of such twenty (20) day period, a written notice to the Other Preferred
Stockholders and the Common Stockholders indicating the number of Offered Shares
which the Company has elected to purchase.
(iii) The Other Preferred Stockholders who are also Series A Preferred
Stockholders (the "Other Series A Stockholders") shall thereafter have the
second right and option for a period of ten (10) days after delivery to them of
such notice from the Company to elect to purchase any or all of the Offered
Shares which the Company did not elect to purchase on the terms and conditions
specified in the Notice of Transfer. The Offered Shares which the Company did
not elect to purchase shall be allocated among the Other Series A Stockholders
on a pro rata basis, based on the number of shares of Series A Preferred Stock
held by each Other Series A Preferred Stockholder. Each of the Other Series A
Stockholders may exercise its option by delivering a written notice to the
Company and the Selling Series A Stockholder prior to the termination of such
ten (10) day period specifying the number of the remaining Offered Shares such
Other Series A Stockholder has elected to purchase. In the event that one or
more Other Series A Stockholders do not elect to purchase all of the Offered
Shares allocated to them, Other Series A Stockholders who have elected to
purchase their full allocation within the ten (10) day period shall have an
additional option, for a period of five (5) days next succeeding the expiration
of the ten (10) day period, to purchase all or any part of the balance of such
remaining Offered Shares on the terms and conditions set forth in the Notice of
Transfer, which option shall be exercised by the delivery of written notice to
the Company and the Selling Series A Stockholder prior to the termination of
such five (5) day period specifying the number of additional Offered Shares such
Other Series A Stockholder has elected to purchase. In the event there are two
or more such Other Series A Stockholders that choose to exercise the
last-mentioned option for a total number of remaining Offered Shares in excess
of the number available, the remaining Offered Shares available for each such
Other Series A Stockholder's option shall be allocated to such Other Series A
Stockholder pro rata based on the number of shares of Series A Preferred Stock
owned by the Other Series A Stockholders so electing. If the Company and the
Other Series A Stockholders elect to purchase less than all of the Offered
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Shares, the Company shall deliver, within two (2) days after the termination of
the five (5) day period discussed above, a written notice to the Common
Stockholders and to the Series B Stockholders indicating the number of Offered
Shares which the Company and the Other Series A Stockholders have elected to
purchase.
(iv) The Series B Stockholders shall thereafter have the third right
and option, at their sole discretion for a period of ten (10) days after
delivery to them of such notice by the Company to elect to purchase any or all
of the Offered Shares which the Company and the Other Series A Stockholders did
not elect to purchase on the terms and conditions specified in the Notice of
Transfer. The Offered Shares which the Company and the Other Series A
Stockholders did not elect to purchase shall be allocated among the Series B
Stockholders on a pro rata basis, based on the number of Series B Preferred
shares held by each Series B Stockholder. Each of the Series B Stockholders may
exercise its option by delivering a written notice to the Company and the
Selling Series A Stockholder prior to the termination of such ten (10) day
period specifying the number of the remaining Offered Shares such Series B
Stockholder has elected to purchase. In the event that one or more Series B
Stockholders do not elect to purchase all of the Offered Shares allocated to
them, Series B Stockholders who have elected to purchase their full allocation
with the ten (10) day period shall have an additional option, for a period of
five (5) days next succeeding the expiration of the ten (10) day period, to
purchase all or any part of the balance of such remaining Offered Shares on the
terms and conditions set forth in the Notice of Transfer, which option shall be
exercised by the delivery of a written notice to the Company and the Selling
Series A Stockholder prior to the termination of such five (5) day period
specifying the number of additional Offered Shares such Series B Stockholder has
elected to purchase. In the event that there are two or more such Series B
Stockholders that choose to exercise the last-mentioned option for a total
number of remaining Offered Shares in excess of the number available, the
remaining Offered Shares available for each such Series B Stockholder's option
shall be allocated to such Series B Stockholder pro rata based on the number of
shares of Series B Preferred Stock owned by the Series B Stockholders so
electing. Within two (2) days following the end of such five (5) day period, the
Company shall deliver a notice to all of the Stockholders indicating the total
number of Offered Shares which the Company, the Other Series A Stockholders and
the Series B Stockholders have elected to purchase.
3.3 Transfers by Series B Stockholders. (i) In connection with a
proposed Transfer of Shares by a Series B Stockholder (the "Selling Series B
Stockholder"), the Selling Series B Stockholder shall first deliver to the
Company a Notice of Transfer offering to the Company all of the Offered Shares
on the terms and conditions specified in the manner set forth in this Section 3.
(ii) The Company shall have the first right and option for a period of
twenty-five (25) days after delivery to it of the Notice of Transfer to accept
all (but not less than all) of the Offered Shares on the terms and conditions
specified in the Notice of Transfer, provided, however, that the Company's
acceptance of the Offered Shares may be conditioned on the Company securing
financing for the purchase of the Offered Shares (on terms and conditions
acceptable to the Company in its sole discretion); and provided further, that
such condition be satisfied or waived no later than thirty (30) days after the
Company gives notice of its acceptance of the Offered Shares. The Company may
exercise its option by delivering to the Selling Series
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B Stockholder prior to the expiration of such twenty-five (25) day period a
written notice stating its intent to exercise such right, provided, however,
that (i) if such exercise is subject to the financing condition described above
and such condition is not satisfied or waived within the thirty (30) day period
described above or (ii) if Company fails to consummate the purchase of the
Offered Shares on or prior to the date that is thirty (30) days after the
expiration of the above-referenced twenty-five (25) day acceptance period, then,
in each such case, such exercise notice shall be deemed not to have been given
and the Selling Series B Stockholder shall have the right to transfer the
Offered Shares pursuant to Section 3.4 below.
(iii) If the Selling Series B Stockholder is a PCG Entity (or a
Permitted Transferee thereof), the PCG Entities party to this Agreement agree,
at the request of the Board, to vote the shares of Series B Preferred Stock
owned by them in such a manner as to permit the Company to exercise its rights
pursuant to this paragraph 3.3 in the event any approval is required for such
action under Article 6, Subsection (B)(6)(a)(xx) of the Company's Third Amended
and Restated Certificate of Incorporation, dated December 30, 2005.
3.4 If not all of the Offered Shares are purchased pursuant to
paragraphs 3.1, 3.2 and 3.3 above, the Selling Common Stockholder, Selling
Series A Stockholder or Selling Series B Stockholder, as the case may be (such
person, a "Selling Stockholder"), may Transfer to the Third Party (or in the
case of Transfers by Selling Series B Stockholders, to any third party) all of
the Offered Shares not purchased pursuant to paragraphs 3.1, 3.2 and 3.3 above,
at a purchase price not less than the price and on terms and conditions no more
favorable to the Third Party (or such other third party) than the purchase
price, terms and conditions set forth in the applicable Notice of Transfer at
any time within the one hundred twenty (120) day period following the expiration
of the applicable acceptance periods provided in paragraph 3.1, 3.2 or 3.3
above, subject to the rights of the Stockholders (other than the Selling
Stockholder) set forth in Section 4 hereof. In the event the Selling Stockholder
does not Transfer to the Third Party (or such other third party) within such one
hundred twenty (120) day period, the right of such Selling Stockholder to
Transfer the Offered Shares shall terminate and the obligations of this Section
3 shall be reinstated with respect to the Offered Shares.
3.5 Transfers, if any, of Offered Shares to the Company or any
Stockholders pursuant to the terms of paragraph 3.1, 3.2 or 3.3 above shall be
made at the registered office of the Company (or such other place as the Company
may designate in writing upon three (3) days notice) on a mutually satisfactory
business day within fifteen (15) days after the expiration of the applicable
acceptance period provided for in paragraph 3.1 or 3.2 or within thirty (30)
days after the expiration of the acceptance period in the case of paragraph 3.3.
Delivery of certificates and duly executed instruments of transfer of the
Offered Shares shall be made on such date against payment of the purchase price
therefor, which shall be made in accordance with the terms and conditions of the
Notice of Transfer. If a Selling Stockholder shall fail or refuse to Transfer
any Shares to a purchaser as required hereunder, the Company may authorize any
person to execute and deliver on his or its behalf the necessary Transfer
documents. The Company may receive the purchase money in trust for the Selling
Stockholder and cause the purchaser to be registered as the holder of the
relevant Shares. The receipt by the Company of the purchase money shall be a
good discharge to the purchaser (who shall not be bound to see to the
application thereof). The Company shall not be obliged to earn or pay interest
on any money received by it on behalf of a Selling Stockholder.
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4. Tag-Along Right.
4.1 Tag-Along Rights on Transfers of Common Stock. (i) Subject to
Section 4.3, in the event that the Company, the Other Common Stockholders and
the Preferred Stockholders do not exercise their options to purchase all of the
Selling Common Stockholder's Offered Shares, such Selling Common Stockholder
shall offer each Other Common Stockholder and each Preferred Stockholder
(collectively for the purposes of this paragraph 4.1, the "Remaining
Stockholders"), the opportunity to require that the Transfer by the Selling
Common Stockholder be conditioned upon the Third Party purchasing from such
Remaining Stockholders and from the Selling Common Stockholder a pro rata
portion of each such Stockholder's Shares, based upon the number of Common Stock
Equivalents owned by the Selling Common Stockholder and all Remaining
Stockholders exercising rights pursuant to this paragraph 4.1 (a "Tag-Along
Sale"). The Remaining Stockholders may exercise this right by delivering to the
Company and the Selling Common Stockholder a Tag-Along Notice in accordance with
paragraph 4.1(ii) below. The Remaining Stockholders delivering such a notice are
hereinafter referred to as the "Tag-Along Stockholders." In connection with a
Tag-Along Sale, (i) the only representations, warranties and covenants which any
Tag-Along Stockholder shall be required to 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 liens, encumbrances or adverse claims, its due organization (if applicable),
its due authorization, execution and delivery of definitive purchase agreements
(if applicable), enforceability of such purchase agreement against it and no
conflict of it with such purchase agreement, and (ii) the liability of the
Tag-Along Stockholder with respect to any representation and warranty made in
connection with any Transfer is the several liability of such Tag-Along
Stockholder (and not joint with any other person).
(ii) The Tag-Along Stockholders may exercise their rights pursuant to
clause (i) above by providing written notice (the "Tag-Along Notice") to the
Company and the Selling Common Stockholder no less than thirty (30) days after
the expiration of the final option election period in Section 3.1 above. The
Tag-Along Notice shall set forth the number of Shares each of the Tag-Along
Stockholders has elected to include in the Tag-Along Sale. The Tag-Along Notice
shall constitute the Tag-Along Stockholders' binding agreement to sell the
Shares specified in the Tag-Along Notice on the terms and conditions applicable
to the Tag-Along Sale; provided, however, that in the event there is any
material change in the terms and conditions of such Tag-Along Sale after the
Tag-Along Notice is given, then, notwithstanding anything herein to the
contrary, each Tag-Along Stockholder shall have the right to withdraw from the
Tag-Along Sale with respect to all Shares affected thereby. If the Third Party
does not consummate 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 Selling
Common Stockholder, the Selling Common Stockholder shall not consummate the
Transfer of any of its Shares to the Third Party. If no Tag-Along Notice is
received by the Selling Common Stockholder prior to the end of the thirty (30)
day period specified above, the Selling Common Stockholder shall have the right
to consummate the Transfer to the Third Party, together with any Tag-Along Sale,
without the participation of such Remaining Stockholders on the terms and
conditions set forth in the Notice of Transfer and only if such sale is
consummated within the one hundred twenty (120) day period specified in Section
3.4. If the Tag-Along Sale does not occur within such one hundred
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twenty (120) day period, the Shares that were subject to the Tag-Along Sale
shall continue to be subject to all of the restrictions contained in this
Agreement.
(iii) On the date of the Tag-Along Sale, each Tag-Along Stockholder
shall deliver a certificate or certificates for the Shares to be sold in
connection with the Tag-Along Sale, duly endorsed for transfer, to the Third
Party in the manner and at the address specified in the Tag-Along Notice against
delivery of the purchase price therefor, which shall be in accordance with the
terms of the Notice of Transfer; provided, however, that if the Third Party
objects to the delivery of Preferred Stock in lieu of Common Stock, such
Tag-Along Stockholder delivering Preferred Stock shall convert such Preferred
Stock to Common Stock and deliver Common Stock to the Third Party. The Company
agrees to make the conversion concurrent with the actual Transfer of Shares to
the Third Party.
4.2 Tag-Along Rights on Transfers of Series A Preferred Stock. (i)
Subject to Section 4.3, in the event that the Company, the Series B
Stockholders, the Other Series A Stockholders and the Common Stockholders do not
exercise their options to purchase all of the Selling Series A Stockholder's
Offered Shares, such Selling Series A Stockholder shall offer each other
Stockholder (collectively for the purposes of this paragraph 4.2, the "Remaining
Stockholders"), the opportunity to require that the Transfer by the Selling
Series A Stockholder be conditioned upon the Third Party purchasing from such
Remaining Stockholders and from the Selling Preferred Stockholder a pro rata
portion of each such Stockholder's Shares, based upon the number of Common Stock
Equivalents owned by the Selling Preferred Stockholder and all Remaining
Stockholders exercising rights pursuant to this paragraph 4.2 (a "Preferred
Tag-Along Sale"). The Remaining Stockholders may exercise this right by
delivering to the Company and the Selling Series A Stockholder a Preferred
Tag-Along Notice in accordance with paragraph 4.2(ii) below. The Remaining
Stockholders delivering such a notice are hereinafter referred to as the
"Tag-Along Preferred Stockholders." In connection with a Preferred Tag-Along
Sale, (i) the only representations, warranties and covenants which any Tag-Along
Preferred Stockholder shall be required to make in connection with any Transfer
are representations and warranties with respect to its own ownership of the
shares of Preferred Stock to be sold by it and its ability to convey title
thereto free and clear of liens, encumbrances or adverse claims, its due
organization (if applicable), its due authorization, execution and delivery of
definitive purchase agreements (if applicable), enforceability of such purchase
agreement against it and no conflict of it with such purchase agreement, and
(ii) the liability of the Tag-Along Preferred Stockholder with respect to any
representation and warranty made in connection with any Transfer is the several
liability of such Tag-Along Preferred Stockholder (and not joint with any other
person).
(ii) The Tag-Along Preferred Stockholders may exercise their rights
pursuant to clause (i) above by providing written notice (the "Preferred
Tag-Along Notice") to the Company and the Selling Series A Stockholder no less
than thirty (30) days after the expiration of the final option election period
in Section 3.2 above. The Preferred Tag-Along Notice shall set forth the number
of shares of Series A Preferred Stock each of the Tag-Along Preferred
Stockholders has elected to include in the Preferred Tag-Along Sale. The
Preferred Tag-Along Notice shall constitute the Tag-Along Preferred
Stockholders' binding agreement to sell the Shares specified in the Preferred
Tag-Along Notice on the terms and conditions applicable to the Preferred
Tag-Along Sale; provided, however, that in the event there is any material
change in
10
the terms and conditions of such Preferred Tag-Along Sale after the Preferred
Tag-Along Notice is given, then, notwithstanding anything herein to the
contrary, each Tag-Along Preferred Stockholder shall have the right to withdraw
from the Preferred Tag-Along Sale with respect to all Shares affected thereby.
If the Third Party does not consummate the purchase of all of the Shares
requested to be included in the Preferred Tag-Along Sale on the same terms and
conditions applicable to the Selling Series A Stockholder, the Selling Series A
Stockholder shall not consummate the Transfer of any of its shares of Series A
Preferred Stock to the Third Party. If no Preferred Tag-Along Notice is received
by the Selling Series A Preferred Stockholder prior to the end of the thirty
(30) day period specified above, the Selling Series A Preferred Stockholder
shall have the right to consummate the Transfer to the Third Party, together
with any Preferred Tag-Along Sale, without the participation of such Remaining
Stockholders on the terms and conditions set forth in the Notice of Transfer and
only if such sale is consummated within the one hundred twenty (120) day period
specified in Section 3.4. If the Preferred Tag-Along Sale does not occur within
such one hundred twenty (120) day period, the shares of Preferred Stock that
were subject to the Preferred Tag-Along Sale shall continue to be subject to all
of the restrictions contained in this Agreement.
(iii) On the date of the Preferred Tag-Along Sale, each Tag-Along
Preferred Stockholder shall deliver a certificate or certificates for the shares
of Preferred Stock to be sold in connection with the Preferred Tag-Along Sale,
duly endorsed for transfer, to the Third Party in the manner and at the address
specified in the Preferred Tag-Along Notice against delivery of the purchase
price therefor, which shall be in accordance with the terms of the Notice of
Transfer.
4.3 Tag-Along Rights on Transfers of Series B Preferred Stock. (i)
Notwithstanding the provisions of Sections 4.1 and 4.2, in the event that one or
more Series B Stockholders (whether individually or together with one or more
Common Stockholders or Series A Stockholders (collectively, the "Majority
Selling Stockholders")) propose to Transfer Shares which (together with the
Shares, if any, then held by the proposed purchaser(s))represent 50% or more of
the then outstanding Common Stock of the Company on an as converted basis, to
any Person in one transaction or a series of related transactions, the other
Stockholders of the Company (collectively for the purposes of this paragraph
4.3, the "Remaining Stockholders") shall have the opportunity to require that
the Transfer by the Majority Selling Stockholders be conditioned upon the
purchaser purchasing from such Majority Selling Stockholders and from the
Remaining Stockholders a pro rata portion of each such Stockholder's Shares,
based on the number of Common Stock Equivalents owned by the Majority Selling
Stockholders and all of the remaining Stockholders exercising their rights
pursuant to paragraph 4.2 (a "Series B Tag-Along Sale"). The Remaining
Stockholders may exercise this right by delivering to the Company and the
Majority Selling Stockholder a Series B Tag-Along Notice in accordance with
Section 4.3(ii) below. The Remaining Stockholders delivering such a notice are
hereinafter referred to as the "Tag-Along Series B Stockholders." In connection
with a Series B Tag-Along Sale, (i) the only representations, warranties and
covenants which any Tag-Along Series B Stockholder shall be required to make in
connection with any Transfer are representations and warranties with respect to
its own ownership of the shares of stock to be sold by it and its ability to
convey title thereto free and clear of liens, encumbrances or adverse claims,
its due organization (if applicable), its due authorization, execution and
delivery of definitive purchase agreements (if applicable), enforceability of
such purchase agreement against it and no conflict of it with such purchase
agreement, and (ii) the liability of the Tag-Along Series B Stockholder
11
with respect to any representation and warranty made in connection with any
Transfer is the several liability of such Tag-Along Series B Stockholder (and
not joint with any other person); provided, however, that the foregoing shall
not limit the obligations of the Tag-Along Series B Stockholders under, and such
Tag-Along Series B Stockholders hereby expressly agree to be bound by and
subject to, any escrow or other holdback arrangement (on a pro rata basis based
on the amount of consideration to be received by the Majority Selling
Stockholders and the Tag-Along Series B Stockholders in such transaction)
provided for in the transaction documents for such transaction so long as the
liability of such Stockholder under such escrow or other holdback arrangement
does not exceed the amount of proceeds received by such Stockholder in such
transaction.
(ii) The Tag-Along Series B Stockholders may exercise their rights
pursuant to clause (i) above by providing written notice (the "Series B
Tag-Along Notice") to the Company and the Majority Selling Stockholders no less
than thirty (30) days after the expiration of the final option election period
in Section 3.3 above. The Series B Tag-Along Notice shall set forth the number
of shares of stock each of the Tag-Along Series B Stockholders has elected to
include in the Series B Tag-Along Sale (subject to the limitations in the
paragraph 4.3(ii)). The Series B Tag-Along Notice shall constitute the Tag-Along
Series B Stockholders' binding agreement to sell the shares of stock specified
in the Series B Tag-Along Notice on the terms and conditions applicable to the
Series B Tag-Along Sale (but subject to the allocation and other provisions of
paragraph 4.3(iii)); provided, however, that in the event there is any material
change in the terms and conditions of such Series B Tag-Along Sale after the
Series B Tag-Along Notice is given, then, notwithstanding anything herein to the
contrary, each Tag-Along Series B Stockholder shall have the right to withdraw
from the Series B Tag-Along Sale with respect to all shares of stock affected
thereby. If the purchaser purchasing from the Majority Selling Stockholders does
not consummate the purchase of all of the shares of stock requested to be
included in the Series B Tag-Along Sale as contemplated in this paragraph 4.3,
the Majority Selling Stockholders shall not consummate the Transfer of any of
their shares of stock to such purchaser. If no Series B Tag-Along Notice is
received by the Majority Selling Stockholders prior to the end of the thirty
(30) day period specified above, the Majority Selling Stockholders shall have
the right to consummate the Transfer to such purchaser, together with any Series
B Tag-Along Sale, without the participation of the Remaining Stockholders who
did not so deliver a Series B Tag-Along Notice on the terms and conditions set
forth in the Notice of Transfer and only if such sale is consummated within the
one hundred twenty (120) day period specified in Section 3.3. If the Series B
Tag-Along Sale does not occur within such one hundred twenty (120) day period,
the shares of stock that were subject to the Series B Tag-Along Sale shall
continue to be subject to all of the restrictions contained in this Agreement.
(iii) On the date of the Series B Tag-Along Sale, each Tag-Along
Series B Stockholder shall deliver a certificate or certificates for the shares
of stock to be sold in connection with the Series B Tag-Along Sale, duly
endorsed for transfer, to the purchaser purchasing from the Majority Selling
Stockholders in the manner and at the address specified in the Series B
Tag-Along Notice against delivery of the purchase price therefor, which shall be
in accordance with the terms of the Notice of Transfer.
(iv) At the closing of a Series B Tag-Along Sale, the proceeds from
such Series B Tag-Along Sale (the "Series B Tag-Along Proceeds") shall be
distributed among the
12
Majority Selling Stockholders and the Tag-Along Series B Stockholders as
provided in this clause (iv) unless all of the Majority Selling Stockholders and
Tag-Along Series B Stockholders agree otherwise. The Series B Tag-Along Proceeds
shall be applied among the holders of each class of Shares sold in the relevant
Series B Tag-Along Sale as if (i) the Series B Tag-Along Sale were treated as a
liquidation of the Company pursuant to Section 2 of Article III of the Company's
Third Amended and Restated Certificate of Incorporation and, (ii) all Series B
Tag-Along Proceeds were distributed to the Company's Stockholders in such
liquidation, and (iii) the only Shares of the Company then outstanding were the
Shares being sold in the Tag-Along Sale; provided, however, that if the
Tag-Along Sale is also a Qualified Sale, the proceeds shall be allocated among
all the Shares sold in the Series B Tag-Along Sale on an as converted basis.
4.4 The exercise or non-exercise of the rights of the Stockholders
hereunder to participate in one or more Transfers of a the Selling Stockholder
shall not adversely affect their rights to participate in subsequent Transfers
of Shares subject to the restrictions set forth in this Agreement.
5. Exempt Transfers.
5.1 Notwithstanding the foregoing, the restrictions on transfer,
rights of first refusal and tag-along rights set forth in Sections 2, 3 and 4 of
this Agreement shall not apply to: (i) any transfer by a Preferred Stockholder,
if an entity, to its officers, Affiliates, members (or members of its members),
shareholders, any general or limited partners (or to the direct or indirect
shareholders, general or limited partners or members of any of the foregoing),
or to any Affiliate of any of the foregoing (including any direct or indirect
majority-owned subsidiary), (ii) any transfer by any Stockholder to a Permitted
Transferee, or (iii) any distribution or transfer of Common Stock by the Trust
to the Trust Beneficiaries; provided that in the event any such transfer is made
to any such Person, Trust Beneficiary, or a Permitted Transferee, (A) such
Person, Trust Beneficiary, or the Permitted Transferee shall inform the Company
of such transfer or gift prior to effecting it and (B) such Person, Trust
Beneficiary, or the Permitted Transferee shall furnish the Stockholders and the
Company with a written agreement to be bound by and comply with all provisions
of this Agreement and the Registration Rights Agreement to the same extent as
the transferor. Any purported transfer in violation of this Section 5.1 shall be
void ab initio. Upon such exempt transfer, the Person, Trust Beneficiary, or
Permitted Transferee shall have all of the rights, benefits and obligations of a
Stockholder under this Agreement and the Registration Rights Agreement.
5.2 Notwithstanding anything in this Agreement to the contrary, the
provisions of Sections 3 and 4 shall not apply to the sale of any Common Stock
pursuant to a registration statement filed with, and declared effective by, the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act").
5.3 This Agreement is subject to and shall in no manner limit any
right the Company may have to repurchase securities from any Stockholder
pursuant to a stock restriction agreement or other agreement between the Company
and such Stockholder in connection with his or her employment with the Company
or any Affiliate of the Company. In the event of a right of first refusal held
by the Company on Shares held by any Stockholder, the right of refusal
13
and tag-along provisions shall apply upon the expiration of the right of first
refusal held by the Company.
6. Drag-Along Rights.
6.1 (i) Each of the Stockholders agrees to hold all Shares registered
in its name or beneficially owned by it as of the date hereof and any and all
Shares legally or beneficially acquired by it after the date hereof subject to,
and to vote such Shares in accordance with, the provisions of this Section 6.
Each of the Stockholders further agrees that such Stockholder has not and shall
not enter into any agreement (other than an amendment of this Agreement pursuant
to Section 11.2 hereof) which conflicts with the provisions of this Section 6.
(ii) In the event there shall be authorized an Approved
Transaction (as such term is defined in Section 6.2 below), each Common
Stockholder and each Preferred Stockholder shall (a) vote all of its shares of
Common Stock and Preferred Stock, as the case may be, in favor of such Approved
Transaction, to the extent a vote of the Common Stockholders and/or Preferred
Stockholders (voting either as a single class or as separate classes) is
required for the consummation of the transaction and (b) transfer all of its
shares of Common Stock and Preferred Stock, as the case may be, to the purchaser
or purchasers in such Approved Transaction upon the terms and conditions of such
Approved Transaction.
(iii) In negotiating an Approved Transaction, the Company shall
provide (A) that the only representations, warranties and covenants which each
Stockholder shall be required to make in connection with any Transfer are
representations and warranties with respect to its own ownership of its Shares,
its ability to convey title thereto free and clear of liens, encumbrances or
adverse claims (if applicable), its due organization (if applicable), its due
authorization, execution and delivery of definitive purchase agreements (if
applicable), and enforceability of such purchase agreement against it, (B) that
the liability of the Stockholders with respect to any representation and
warranty made in connection with any Transfer is the several liability of such
Stockholders (and not joint with any other person) and (C) none of the
Stockholders shall be required to provide any indemnification to anyone in
connection with the transaction (other than indemnification for damages
resulting from the breach of any representations or warranties made by such
Stockholders); provided, however, that the foregoing shall not limit the
obligations of the Stockholders under, and such Stockholders hereby expressly
agree to be bound by and subject to, any escrow or other holdback arrangement
(on a pro rata basis based on the amount of consideration to be received by each
such Stockholder in such transaction) provided for in the transaction documents
for such transaction so long as the liability of such Stockholder under such
escrow or other holdback arrangement does not exceed the amount of proceeds
received by such Stockholder in such Approved Transaction.
(iv) Each Stockholder hereby grants to the Chief Executive
Officer of the Company or other person appointed by the Board an irrevocable
proxy, coupled with an interest, to vote such Shares in accordance with this
Section 6, and hereby appoints the Chief Executive Officer or such other
appointee, its attorney in fact, with full power and authority to take any and
all actions on such Stockholder's behalf as may be necessary to approve and
consummate transactions approved pursuant to this provision in the event that
such party fails or refuses to vote or sell its Shares as required by this
Section 6.
14
At the closing of any Approved Transaction, each of the parties
to this Agreement shall (A) execute and deliver such instruments of conveyance
and transfer and take such other actions, including executing any purchase
agreement, merger agreement or related documents, which the Company may
reasonably request to consummate the Approved Transaction and (B) deliver,
against receipt of the consideration payable in such transaction, certificates
representing the Shares which such party holds of record or beneficially, with
all endorsements necessary for transfer. In the event that any Stockholder fails
or refuses to comply with the provisions of this Section 6, the Company and the
purchaser in such transaction, at their option, may elect to proceed with such
transaction notwithstanding such failure or refusal and, in such event and upon
tender of the specified consideration to any such party, the rights of any such
party with respect to the Shares of such party shall cease.
6.2 Approved Transaction. For purposes of this Section 6, the term
"Approved Transaction" shall mean the following:
(i) a proposed 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; provided, however, that (A) if such
transaction or transactions would result in gross proceeds (in cash or Liquid
Securities) to the holders of Series B Preferred Stock (prior to the deduction
of the fees and expenses incurred by such holder in connection with such
transaction or transactions and prior to any deduction for any withholdings or
similar taxes applicable to such holder on account of such transaction) of less
than $4.03 per share of Series B Preferred Stock or, if the Series B Preferred
Stock is to be converted into Common Stock, Common Stock (subject to adjustment
of such amount for any stock splits, stock dividends, combinations,
recapitalizations and the like), the transaction shall have been approved by the
Board of Directors of the Company and the Majority of Series B Preferred Stock;
(B) if such transaction or transactions would result in gross proceeds (in cash
or Liquid Securities to the holders of Series B Preferred Stock (prior to the
deduction of the fees and expenses incurred by such holder in connection with
such transaction or transactions and prior to any deduction for any withholdings
or similar taxes applicable to such holder on account of such transaction) of
$4.03 per share or greater of Series B Preferred Stock or, if the Series B
Preferred Stock is to be converted to Common Stock, Common Stock (subject to
adjustment of such amount for any stock splits, stock dividends, combinations,
recapitalizations and the like), the transaction shall have been approved by (1)
the Board of Directors, including no less than two directors elected by the
holders of the Common Stock (the "Common Stock Directors") (provided, however,
that such action shall only require the approval of not less than one of the
Common Stock Directors (in addition to the approval of the Board of Directors)
(other than the Common Stock Director nominated by OHB Technologies AG or its
Affiliates pursuant to the Second Amended and Restated Common Stock Voting
Agreement, dated December 30, 2005, among the Company and certain holders of the
Company's Common Stock (the "Common Stock Voting Agreement")) where the
principal business of the acquiror is the construction and/or launch of
satellites; and provided further, however, that if three of the Common Stock
Directors abstain from voting on the transaction, such action shall require (in
addition to the approval of the Board of Directors)
15
the approval of only the Common Stock Director voting on such actions; and
provided further, however, that all of the Common Stock Directors abstain from
voting on the transaction, such action shall require the approval of only the
Board of Directors and shall not require the approval of any Common Stock
Director), and (2) by the Majority of Series B Preferred Stock, or (C) if the
transaction is a Qualified Sale, the transaction shall have been approved by the
Board of Directors of the Company; or
(ii) a proposed 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; provided, however, that (A) if such
transaction or transactions would result in gross proceeds (in cash or Liquid
Securities) to the holders of Series B Preferred Stock (prior to the deduction
of the fees and expenses incurred by such holder in connection with such
transaction or transactions and prior to any deduction for any withholdings or
similar taxes applicable to such holder on account of such transaction) of less
than $4.03 per share of Series B Preferred Stock or, if the Series B Preferred
Stock is to be converted into Common Stock, Common Stock (subject to adjustment
of such amount for any stock splits, stock dividends, combinations,
recapitalizations and the like), the transaction shall have been approved by the
Board of Directors of the Company and the Majority of Series B Preferred Stock
or (B) if such transaction or transactions would result in gross proceeds (in
cash or Liquid Securities) to the holders of Series B Preferred Stock (prior to
the deduction of the fees and expenses incurred by such holder in connection
with such transaction or transactions and prior to any deduction for any
withholdings or similar taxes applicable to such holder on account of such
transaction) of $4.03 per share or greater of Series B Preferred Stock or, if
the Series B Preferred Stock is to be converted to Common Stock, Common Stock
(subject to adjustment of such amount for any stock splits, stock dividends,
combinations, recapitalizations and the like), the transaction shall have been
approved by a majority of the Board of Directors of the Company, including no
less than two directors elected by the holders of the Common Stock (the "Common
Stock Directors") (provided, however, that the such action shall only require
approval of one (1) of the Common Stock Directors (in addition to the approval
of the Board of Directors) (other than the Common Stock Director nominated by
OHB Technologies AG) or its Affiliates pursuant to the Common Stock Voting
Agreement) where the principal business of the acquiror is the construction
and/or launch of satellites; and provided further, however, that if three of the
Common Stock Directors abstain from voting on the transaction, such action shall
only require (in addition to the approval of the Board of Directors) the
approval of the Common Stock Director voting on such actions; and provided
further, however, that all of the Common Stock Directors abstain from voting on
the transaction, such action shall only require the approval of the Board of
Directors and shall not require the approval of any Common Stock Director), and
the Majority of Series B Preferred Stock, or (C) if the sale is a Qualified
Sale, the transaction shall have been approved by a majority of the Board of
Directors of the Company.
(iii) In the event any consideration paid in any transaction
described in (i) or (ii) above consists of Liquid Securities, the value of such
consideration shall be determined
16
in the manner provided in Article III, Subsection 2(c)(ii)(A) of the Company's
Third Amended and Restated Certificate of Incorporation, dated December 30,
2005.
7. Additional Transfer Limitations.
7.1 Legend. Each certificate representing Shares now or hereafter
owned by a Stockholder or issued to any person in connection with a transfer
permitted hereunder shall be endorsed with the following legend:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN
STOCKHOLDERS AGREEMENT BY AND BETWEEN THE STOCKHOLDER, THE COMPANY AND
CERTAIN HOLDERS OF STOCK OF THE COMPANY. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY."
7.2 Stop Transfer. The Stockholders agree that the Company may
instruct its transfer agent to impose transfer restrictions on the shares
represented by certificates bearing the legend referred to in Section 7.1 above
to enforce the provisions of this Agreement and the Company agrees to promptly
do so. The legend shall be removed upon termination of this Agreement.
8. Additional Parties. The Company and the Stockholders agree that, as
a condition to the issuance, sale or transfer of Shares to any Person, the
Company and the Stockholders, as appropriate, will require that such Person
execute a counterpart of this Agreement as a "Stockholder" and such Person's
shares of capital stock shall thereafter constitute "Shares" for purposes of
this Agreement, unless the Board of Directors of the Company determines
otherwise.
9. Qualified IPO. Subject to clause (b) below, each of the
Stockholders agrees that, in the event the Board of Directors of the Company
shall have authorized the Company to file, and the Company shall have filed, a
registration statement for an initial public offering of the Common Stock which
is reasonably expected to lead to the consummation of a Qualified Public
Offering (as such term is defined in the Third Amended and Restated Certificate
of Incorporation of the Company), such Stockholder shall reasonably cooperate
with the Company to, do and perform, or cause to be done and performed, all such
reasonable and customary acts and things (including voting such Stockholder's
Shares at a meeting of Stockholders), and shall execute and deliver all such
reasonable and customary agreements, certificates, consents, instruments and
documents, as the Board of Directors shall reasonably request and determine are
reasonably necessary (based on advice from legal counsel or the investment
banking firms acting as book-running underwriters for such offering) for
consummating such Qualified Public Offering; provided, however, that if the
Company shall subsequently abandon such proposed public offering or fail to
consummate such public offering within one hundred eighty (180) days of the
filing of the registration statement, each of the Stockholders agrees to
promptly do and perform, or cause to be done or performed, all such acts and
things (including voting such Stockholder's Shares at a meeting of
Stockholders), and shall
17
execute and deliver, all such agreements, certificates, consents, instruments
and documents as shall be reasonably necessary or advisable to reverse and undo
any action taken in contemplation of such proposed public offering, if any.
(b) Notwithstanding the foregoing, nothing in this Section 9 shall
require any holder of Series B Preferred Stock to agree to, approve or otherwise
vote in favor of (i) any amendment to the Company's Third Amended and Restated
Certificate of Incorporation (as it may be further amended or restated from time
to time, the "Restated Certificate") that does not provide for its effectiveness
to be conditioned upon or delayed until the closing of a Qualified Public
Offering, (ii) any amendment to the Restated Certificate, irrespective of the
filing or effective date, that would adversely affect any economic rights of a
holder of Series B Preferred Stock (other than effects on economic rights
resulting from the actual consummation of a Qualified Public Offering under the
existing terms of the Restated Certificate), including economic rights relating
to the conversion of Series B Preferred Stock (such as the right to receive
accrued and unpaid dividends upon such conversion), (iii) any amendment or
waiver of the provisions of the Purchase Agreement, the Registration Rights
Agreement, this Agreement, or the Second Amended and Restated Preferred Stock
Voting Agreement, dated the date hereof, among the Company and certain of the
holders of the Company's Preferred Stock (the "Preferred Stock Voting
Agreement"), (iv) any action that would require the resignation of or would
otherwise result in the removal of any director designated by such holder of
Series B Preferred Stock, (v) any of the actions or matters described in Section
(6)(a) of Article III of the Restated Certificate, other than actions or matters
to the extent covered by the Designated Clauses (as defined below) (and not by
other clauses of such Section 6(a)) that (1) the Board reasonably determines
(based on advice of legal counsel or the investment banking firms acting as
book-running underwriters for the Qualified Public Offering) are necessary to
consummated a Qualified Public Offering and (2) are not taken or consummated
prior to or are conditioned on the consummation of a Qualified Public Offering,
or (vii) any agreement, undertaking or other action that would impose any
liability (including any contingent liability) on such holder of Series B
Preferred Stock or would otherwise require such holder of Series B Preferred
Stock to assume any liability (including any contingent liability) or make any
payments of any kind.
"Designated Clauses" means the following clauses in Section 6(a)
of Article III of the Restated Certificate: clauses (ix), (x), (xi), (xix) and
(xxi) (but only to the extent that the matter covered by clause (xxi) does not
adversely affect any economic rights of a holder of the Series B Preferred
Stock).
10. Financial Statements and Other Information.
10.1 The Company shall deliver to each Stockholder holding (together
with all of such Stockholder's Affiliates) at least four percent (4%) of the
Common Stock Equivalents then outstanding:
(i) within 90 days after the end of each fiscal year of the
Company, an audited balance sheet of the Company as at the end of such year and
audited statements of income and of cash flows of the Company for such year,
certified by certified public accountants of established national reputation
selected by the Company, and prepared in accordance with generally accepted
accounting principles consistently applied; and
18
(ii) within 45 days after the end of each fiscal quarter of the
Company (other than the fourth quarter), an unaudited balance sheet of the
Company as at the end of such quarter, unaudited statements of income and of
cash flows of the Company for such fiscal quarter and for the current fiscal
year to the end of such fiscal quarter and a quarterly budget and cash flow
projections used in the normal management of the Company's affairs;
(iii) within 30 days after the end of each month (other than the
last month of any fiscal quarter), an unaudited balance sheet of the Company as
at the end of such month and unaudited statements of income and of cash flows of
the Company for such month and for the current fiscal year to the end of such
month, setting forth in comparative form the Company's projected financial
statements for the corresponding periods for the current fiscal year and a
monthly budget and cash flow projections used in the normal management of the
Company's affairs;
(iv) as soon as available, but in any event 30 days prior to the
commencement of each new fiscal year, an operating plan, budget and projected
financial statements, including the Company's revenues, expenses and cash
position on a quarter-to-quarter basis, for such fiscal year;
(v) within five days after the Company learns of any material
claim or commencement of any legal or equitable proceeding, written notice of
such claim or proceeding;
(vi) within five days of discovery, notice of any material
default in any material agreement to which the Company is a party;
(vii) upon transmission, copies of all reports and communications
with any other class or series of the Company's securities, or any communication
to or from the Commission (other than Regulation D and similar routine exemption
filings); and
(viii) with reasonable promptness, such other information and
data as such Preferred Stockholder may from time to time reasonably request.
10.2 The foregoing financial statements shall be prepared on a
consolidated basis with the Company's subsidiaries. The financial statements
delivered pursuant to clauses (ii) and (iii) of Section 10.1 shall be
accompanied by a certificate of the chief financial officer of the Company
stating that such statements have been prepared in accordance with generally
accepted accounting principles consistently applied (except as noted) and fairly
present the financial condition and results of operations of the Company at the
date thereof and for the periods covered thereby.
11. Term and Termination.
11.1 Term. This Agreement shall continue in full force and effect from
the date hereof through the earliest of the following dates, on which date it
shall terminate in its entirety:
(a) the effective time of the closing of the initial public
offering (as such term is defined in the Company's Second Amended and
Restated Registration Rights Agreement of even date herewith);
19
(b) the effective time of the closing of a sale, lease or other
disposition of all or substantially all of the Company's assets or the
Company's merger into or consolidation with any other corporation or
other entity, or any other corporate reorganization, in which the
holders of the Company's outstanding voting stock immediately prior to
such transaction own, immediately after such transaction, securities
representing less than fifty percent (50%) of the voting power of the
corporation or other entity surviving such transaction, provided that
this Section 11.1(b) shall not apply to a merger effected exclusively
for the purpose of changing the domicile of the Company; and
(c) the date of termination as determined in accordance with
Section 12.2.
12. Miscellaneous.
12.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Delaware, without regard to principles of
conflicts of laws.
12.2 Amendment and Waiver. This Agreement may be amended 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,
the holders of no less than two-thirds of the Series B Preferred Stock, the
holders of a majority of the Preferred Stock (voting as a single class) and the
holders of a majority of the Common Stock, provided, however (a) Exhibits A, B
or C hereto may be amended by the Company from time to time to add information
regarding additional Stockholders made party to this Agreement pursuant to
Section 8 hereof or otherwise, (b) this Agreement may not be amended or
terminated and the observance of any term hereunder may not be waived with
respect to any Stockholder without the written consent of such Stockholder
unless such amendment, termination or waiver applies to all Stockholders 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 Stockholders in the same fashion
if such waiver or amendment does so by its terms, notwithstanding the fact that
certain Stockholders are affected differently by virtue of differences in their
shareholdings) and (c) that the Company may amend or supplement this Agreement
without the consent of any of the Stockholders to cure or correct immaterial
errors and omissions (such as typographical errors or the names and titles of
signatories) provided that such amendments or supplements do not adversely
affect any Stockholder's rights hereunder. 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
12.2 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.
12.3 Assignment of Rights. This Agreement and the rights and
obligations of the parties hereunder shall inure to the benefit of, and be
binding upon, their respective successors, assigns and legal representatives.
20
12.4 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed facsimile if sent during
normal business hours of the recipient; if not, then on the next business day,
(iii) five (5) days after having been sent by certified mail, return receipt
requested, postage prepaid, or (iv) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the party to be
notified at the address as set forth on the signature page to this Agreement or
at such other address as such party may designate by ten (10) days advance
written notice to the Company.
12.5 Severability. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
12.6 Entire Agreement. This Agreement and the Exhibits hereto
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and no party shall be liable or bound to any
other in any manner by any representations, warranties, covenants and agreements
except as specifically set forth herein and therein and except for the letter
dated of even date herewith between the Company, PCG Satellite Investments, LLC,
MH Investors Satellite LLC and certain other Stockholders.
12.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.8 Conflicting Agreements. Each Stockholder represents and warrants
to the Company and the other Stockholders that it is not a party to or bound by
any agreement relating to the voting of its Shares or that otherwise directly or
indirectly conflicts with the provisions of this Agreement, other than the
Preferred Stock Voting Agreement and the Common Stock Voting Agreement of even
date herewith. The Stockholders agree not to enter into any agreement with any
other Stockholder relating to the voting of Shares, and agree not to amend the
Preferred Stock Voting Agreement or the Common Stock Voting Agreement, on terms
that conflict with the terms of this Agreement. In the event of a conflict
between the provisions of this Agreement and the provisions of any other
agreement to which any Stockholder is bound, then, as among parties to this
Agreement, the terms of this Agreement shall control.
12.9 Effective Time. This Agreement shall come into effect upon the
Initial Closing (as defined in the Purchase Agreement).
[Signature Page Follows]
21
IN WITNESS WHEREOF, the parties have executed this Second Amended and
Restated Stockholders Agreement as of the date above first written.
ORBCOMM INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
(Signature page to the Second Amended and Restated Stockholders Agreement)
(Additional Counterpart Signature Pages to Follow)
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC., DATED AS OF NOVEMBER 18, 2005,
BETWEEN ORBCOMM INC., ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: 346 Hillcrest F&F Partners LLC
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
Signed by:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name:
Title:
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC., DATED AS OF NOVEMBER 18, 2005,
BETWEEN ORBCOMM INC., ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
Signed by:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC., DATED AS OF NOVEMBER 18, 2005,
BETWEEN ORBCOMM INC., ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: ▇▇▇ ▇▇▇▇▇▇
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
Signed by:
/s/ ▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name:
Title:
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC., DATED AS OF NOVEMBER 18, 2005,
BETWEEN ORBCOMM INC., ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: M H Investors ORBCOMM LLC
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
Signed by:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Asst Treasurer
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC., DATED AS OF NOVEMBER 18, 2005,
BETWEEN ORBCOMM INC., ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: Northwood Capital Partners LLC
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
Signed by:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC., DATED AS OF NOVEMBER 18, 2005,
BETWEEN ORBCOMM INC., ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: Northwood Ventures LLC
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
Signed by:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC., DATED AS OF NOVEMBER 18, 2005,
BETWEEN ORBCOMM INC., ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: OHB Technology AG
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
Signed by:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name:
Title:
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC., DATED AS OF NOVEMBER 18, 2005,
BETWEEN ORBCOMM INC., ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: ORBCOMM Asset Holdings Ltd.
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
Signed by:
/s/ ▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name:
Title:
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC., DATED AS OF NOVEMBER 18, 2005,
BETWEEN ORBCOMM INC., ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: ORBCOMM Deutschland AG
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
Signed by:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name:
Title:
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005,
AMENDING THE AMENDED AND RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC.,
DATED AS OF NOVEMBER 18, 2005 BETWEEN ORBCOMM INC.,
ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: PCG Satellite Investments, LLC
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
BY: CALPERS/PCG CORPORATE PARTNERS LLC
A DELAWARE LIMITED LIABILITY COMPANY
ITS: MANAGING MEMBER
BY: PCG CORPORATE PARTNERS INVESTMENTS LLC
ITS: MANAGER
BY: PACIFIC CORPORATE GROUP HOLDINGS, LLC
ITS: MANAGING MEMBER
Signed by:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC.,
DATED AS OF NOVEMBER 18, 2005, BETWEEN ORBCOMM INC.,
ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
Signed by:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Trustee
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC.,
DATED AS OF NOVEMBER 18, 2005, BETWEEN ORBCOMM INC.,
ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: Ridgewood Satellite LLC
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
Signed by:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC., DATED AS OF NOVEMBER 18, 2005,
BETWEEN ORBCOMM INC., ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: SES Participations S.A.
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
Signed by:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name:
Title:
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC., DATED AS OF NOVEMBER 18, 2005,
BETWEEN ORBCOMM INC., ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: SK Partners
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
Signed by:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Gen Partner
THIS IS A COUNTERPART SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 30, 2005, AMENDING THE AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT OF ORBCOMM INC., DATED AS OF NOVEMBER 18, 2005,
BETWEEN ORBCOMM INC., ITS COMMON STOCKHOLDERS AND ITS PREFERRED STOCKHOLDERS.
Name of Investor: ▇. ▇▇▇▇▇▇▇▇▇▇
(please print)
Notice Address for Investor: __________________________
(please complete) __________________________
__________________________
Facsimile: __________________________
Signed by:
/s/ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name:
Title:
Second Amended and Restated Stockholders Agreement
EXHIBIT A
LIST OF SERIES B STOCKHOLDERS
NAME OF STOCKHOLDER SHARES
------------------- ---------
OHB Technology A.G 997,270
Ridgewood Satellite LLC 2,481,389
Northwood Ventures LLC 416,876
Northwood Capital Partners LLC 79,404
▇▇▇▇▇ ▇▇▇▇▇▇ 52,109
Gene Song 248
Hoboken Partners 1 LLC 37,220
▇▇▇▇ ▇▇▇▇▇▇▇▇ 60,049
Estrin New Ventures LLC 12,903
Nakoma Investments LLC 24,813
▇▇▇▇ ▇▇▇▇▇ 38,461
Bukfenc Inc. 12,406
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 18,610
▇▇▇▇▇▇▇ Vanden Heuvel 28,784
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 27,791
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ 1,240
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 24,813
▇▇▇▇▇▇ ▇▇▇▇▇▇ 23,076
▇▇▇▇ ▇▇▇▇▇▇▇▇ 3,970
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 4,962
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 14,392
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 12,406
SK Partners 12,406
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 8,684
▇▇▇▇▇▇▇ ▇▇▇▇▇ 6,203
▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 16,377
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ 9,925
Shippan Fund LLC 9,677
▇▇▇▇ ▇▇▇▇▇▇▇▇ 9,925
▇▇▇▇▇▇▇▇▇▇▇ Lust 9,925
▇▇▇▇▇ ▇▇▇ 6,203
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ 2,977
▇▇▇▇ ▇▇▇▇▇▇, Chrust 2001 Business Trust 1,488
Eve Chrust, Chrust 2001 Business Trust 1,488
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust 2,481
▇▇▇▇▇▇ ▇▇▇▇ 3,473
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ 2,481
▇▇▇▇▇▇ Loud ▇▇▇ 2,977
Marble Arch Group Ltd. 124,069
346 Hillcrest F & F Partners LLC 248,138
Orbcomm Venture, LLC 307,692
▇▇▇▇ ▇. ▇▇▇▇▇▇ Revocable Trust 428,039
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 428,039
Investment Partners of Orlando LLP 117,866
MH Investments Satellite LLC 3,722,084
PCG Satellite Investments, LLC 7,836,228
EXHIBIT B
LIST OF SERIES A STOCKHOLDERS
NAME OF PREFERRED STOCKHOLDER SHARES
----------------------------- ---------
▇▇▇▇▇▇ ▇▇▇▇▇▇ 70,373
A. ▇▇▇▇ ▇▇▇▇▇▇ 149,402
▇▇▇▇▇▇ ▇▇▇▇ 10,553
▇▇▇▇ ▇▇▇▇▇ 117,400
Bukfenc Inc. 94,992
▇▇▇▇▇▇▇▇▇▇▇ Lust 21,107
Crystal Lake Partners 92,201
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 42,213
▇▇▇▇▇ ▇▇▇▇▇▇ 158,453
▇▇▇ ▇▇▇▇▇▇ 361,131
▇▇▇▇ ▇▇▇▇▇ 9,673
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ 22,867
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 41,343
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ 9,673
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 51,015
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 50,666
Estrin New Ventures LLC 114,875
Eve Chrust, Chrust 2001 Business Trust 5,102
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 99,542
▇▇▇▇▇-▇▇▇ Song 61,909
▇▇▇▇▇ ▇▇▇▇▇▇ 15,834
Hoboken Partners 1 LLC 106,449
▇▇▇▇▇ ▇▇▇▇▇ 38,694
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 11,673
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 333,425
▇▇▇▇▇ ▇▇▇ 19,241
▇▇▇▇ ▇▇▇▇▇▇▇▇ 8,802
▇▇▇▇ ▇▇▇▇▇▇▇▇ 50,310
▇▇▇▇ ▇▇▇▇▇▇▇▇ 84,429
▇▇▇▇ ▇▇▇▇▇▇, Chrust 2001 Business Trust 5,102
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 21,108
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 17,941
▇▇▇▇ ▇▇▇▇▇▇▇▇ 182,961
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 100,257
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 84,429
▇▇▇▇ ▇▇▇▇▇▇▇▇ 22,868
▇▇▇▇▇▇ & ▇▇▇▇▇▇ Asset Company 94,878
Nakoma Investments LLC 142,499
Northwood Capital Partners LLC 283,123
Northwood Ventures LLC 1,328,377
Oakwood Capital LLC 47,494
OHB Technology A.G 1,844,314
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 29,020
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ 77,387
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 43,973
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust 10,553
Ridgewood Satellite LLC 2,256,856
▇▇▇▇▇▇ Loud ▇▇▇ 9,673
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 43,251
▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, JTWROS 17,934
Sagamore Hill Hub Fund Ltd. 1,504,571
SES Global Participations S.A 3,000,001
Shippan Fund LLC 29,909
SK Partners 42,213
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ 9,673
▇▇▇▇▇▇ ▇▇▇▇▇▇ 3,870
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ 30,515
▇▇▇▇▇▇▇ ▇▇▇▇▇ 40,463
▇▇▇▇▇▇▇ Vanden Heuvel 87,394
▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇ 34,180
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ 35,211
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 25,799
Hans ▇.▇. ▇▇▇▇▇▇▇▇ 10,744
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ 75,915
▇▇▇▇▇ ▇. ▇▇▇▇ Trust 65,140
▇▇▇▇ ▇. ▇▇▇▇ Trust 65,140
▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 20,337
▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 20,000
▇▇▇▇▇▇ ▇▇▇▇ 5,281
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 30,000
EXHIBIT C
NAME OF COMMON STOCKHOLDER SHARES
-------------------------- ---------
▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇, Tenants in Common 325,820
▇▇▇ ▇▇▇▇▇▇ 1,408,766
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 622,019
OHB Technology A.G. 1,182,100
Liquidating Trust of Orbcomm Global L.P. 500,000
ORBCOMM Asset Holdings Ltd. 1,714,526
Orbcomm Asia Limited 1,179,882
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ 69,041
▇▇▇▇▇▇ & ▇▇▇▇▇▇ Asset Company 60,035
ORBCOMM Deutschland A.G. 114,835
▇▇▇▇▇-▇▇▇ Song 201,087
▇▇▇▇▇ ▇▇▇▇▇ 90,804
Northwood Ventures LLC 255,151
Northwood Capital Partners LLC 45,027
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 165,097
▇▇▇▇▇▇▇▇▇ Equity Partners GmbH 120,071
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 90,053
▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 30,018
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 90,053
Hans ▇. ▇. ▇▇▇▇▇▇▇▇ 60,035
Korea Orbcomm Ltd. 97,965
▇▇▇▇▇▇▇ ▇▇▇▇ 64,516
Transport International Pool, Inc. 48,125
EXHIBIT D
SCHEDULE OF MEMBERS OF ORBCOMM ASSET HOLDINGS
SHAREHOLDER SHARES
----------- --------
▇▇▇ ▇▇▇▇▇▇ 1,473.75
▇▇▇▇▇ ▇▇▇▇▇ 151.25
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 788.75
▇▇▇▇▇▇ & ▇▇▇▇▇▇ Asset Company 100.00
Northwood Capital Partners LLC 75.00
Northwood Ventures LLC 425.00
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ 115.00
