EXHIBIT 10.8.2
SATCOM INTERNATIONAL GROUP PLC
PUT AGREEMENT
This Agreement is made and entered into as of February 17, 2004, by
and between ORBCOMM Inc., a Delaware corporation (the "Company"), ▇▇▇ ▇▇▇▇▇▇
("DF") and Europa Holdings Limited ("Europa" and, together with DF, the
"Investors").
RECITALS
WHEREAS, the Investors own the ordinary shares nominal value
(pound)1.00 per share (the "Satcom Shares") issued by Satcom International Group
plc, a public limited company organized under the laws of England and Wales
("Satcom"), set forth on Schedule A;
WHEREAS, upon the occurrence of a Liquidating Transaction (as
defined herein) and pursuant to the terms hereof, the Company has agreed to
purchase the Satcom Shares from the Investors;
In consideration of the mutual representations, warranties,
covenants and agreements, and upon the terms and subject to the conditions
hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms have the
meanings specified or referred to in this Article I:
"Agreement" - this Agreement, as the same may be amended, modified
or supplemented from time to time in accordance with its terms.
"Governmental Entity" - any: (i) federal, state, local, foreign or
international government; (ii) court, arbitral or other tribunal or governmental
or quasi-governmental authority of any nature (including any governmental
agency, political subdivisions, instrumentalities, branch, department, official,
or entity); or (iii) body exercising, or entitled to exercise, any
administrative, executive, judicial, legislative, police, regulatory, or taxing
authority or power of any nature pertaining to government.
"Laws" - means all laws, principles of common law, statutes,
constitutions, treaties, rules, regulations, ordinances, codes, rulings, Orders
and determinations of all Governmental Entities.
"Liquidating Transaction" - means (i) an acquisition of the Company
by another entity by means of any transaction or series of related transactions
(including, without limitation, any reorganization, merger or consolidation)
that results in the transfer
of fifty percent (50%) or more of the outstanding voting power of the Company or
a sale of all or substantially all of the assets of the Company, or (ii) an
initial public offering of the Company.
"Order" - any award, decision, stipulation, injunction, judgment,
order, ruling, subpoena, writ, decree or verdict entered, issued, made or
rendered by any Governmental Entity.
"Person" - any individual, sole proprietorship, firm, corporation
(including any non-profit corporation and public benefit corporation), general
or limited partnership, limited liability partnership, joint venture, limited
liability company, estate, trust, association, organization, labor union,
institution, entity or Governmental Entity, including any successor (by merger
or otherwise) of such entity.
"Satcom Contribution Agreement" - means the Satcom Contribution
Agreement, dated February 17, 2004 entered into among ORBCOMM LLC, Satcom, DF,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and Europa.
"Stock Purchase Agreement" - means the Stock Purchase Agreement,
dated February 17, 2004 entered into among the Company, ORBCOMM LLC, and the
investors listed therein.
ARTICLE II
SALE OF THE SATCOM SHARES
2.01 Purchase Price of the Satcom Shares. (a) Subject to the prior
occurrence of the Closing under the Satcom Contribution Agreement of each date
herewith, upon the occurrence of a Liquidating Transaction, at the Closing (as
defined below), each Investor shall sell and assign all right, title and
interest in and to their respective Satcom Shares to the Company pursuant to the
terms and conditions of this Agreement and, upon receipt of the closing
deliveries set forth in Section 2.03 hereof, the Company shall pay the Investors
the following amounts, in cash:
(i) in the event of a Liquidating Transaction with gross
proceeds to the Company as a result of such Liquidating Transaction of less than
or equal to $250,000,000, $1.00;
(ii) in the event of a Liquidating Transaction with gross
proceeds to the Company as a result of such Liquidating Transaction of more than
$250,000,000 but less than or equal to $300,000,000, $2,000,000 plus $1 for each
$50 that the amount of the gross proceeds to the Company as a result of such
Liquidating Transaction exceeds $250,000,000;
(iii) in the event of a Liquidating Transaction with gross
proceeds to the Company as a result of such Liquidating Transaction of more than
$300,000,000 but less than or equal to $500,000,000, $3,000,000 plus $3 for each
$200
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that the amount of the net proceeds to the Company as a result of such
Liquidating Transaction exceeds $300,000,000; or
(iv) in the event of a Liquidating Transaction with gross
proceeds to the Company as a result of such Liquidating Transaction of more than
$500,000,000, $6,000,000.
(b) The gross proceeds of a Liquidating Transaction shall be based
upon the valuation of the proceeds received by the Company as a whole. In the
event all or any portion of the consideration paid in a Liquidating Transaction
is paid other than in cash, such consideration shall be valued as provided in
Section 2(c)(ii) in the Amended and Restated Certificate of Incorporation of the
Company as of the date of this Agreement (without giving effect to any
subsequent amendments thereto).
(c) The payment of the consideration in paragraph (a) above shall
be paid by the Company by wire transfer of immediately available funds to the
accounts designated in writing by the Investors upon receipt by the Company of
the proceeds of the relevant Liquidating Transaction.
2.02 Closing. The closing (the "Closing") of the transactions
contemplated by this Agreement (the "Transaction") will take place at the
offices of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ the
closing date of the relevant Liquidating Transaction, or such other date as the
parties may agree.
2.03 Closing Deliveries. At the Closing, the Investors shall
deliver to the Company:
(a) duly executed transfer forms in the form of Exhibit A hereto
for the Satcom Shares owned by the Investors in favor of the Company (or as the
Company may direct), together with the relevant share certificates and any power
of attorney under which any transfer is executed on behalf of an Investor; and
(b) such waivers or consents as the Company may require to be
signed by the Investors to enable the Company or its nominee to be registered as
a holder of the Satcom Shares owned by the Investors.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
3.01 The representations and warranties made jointly and severally
by the Investors pursuant to the Satcom Contribution Agreement are hereby
incorporated by reference herein.
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ARTICLE IV
COVENANTS OF THE PARTIES
4.01 Cooperation. Each of the Investors will cooperate with the
Company and use all commercially reasonable efforts to take all actions and do
all things necessary or advisable under this Agreement and applicable Laws or
reasonably requested by the Company to complete the transactions contemplated
herein.
4.02 Satcom Approvals. Prior to the Closing, the Company shall
procure a resolution of the board of directors of Satcom approving the
registration of the transfer of the Ordinary Shares owned by the Investors to
the Company, subject only to such Ordinary Shares being duly stamped by or on
behalf of the Company.
4.03 Stamp Taxes. The Company shall pay all stamp and other transfer
taxes payable in connection with the transfer of the Satcom Shares hereunder.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.01 Survival of Representations and Covenants. The representations,
warranties and covenants of the Investors will survive for a period of ninety
(90) days after the Closing and will thereupon expire together with any right to
commence any suit, action, arbitration or other proceeding for breach thereof.
5.02 Offset. In the event of any breach of any representation,
warranty or covenant made by the Investors herein, the amount any loss or
liability actually incurred by the Company as a result of such breach may be
offset against the amount of any payment to be made to the Investors pursuant to
Section 2.03; provided, that nothing in this Section 5.02 is intended to waive
or preclude any claims, rights or remedies which the Company may have at law or
in equity with respect to the matters covered by this Agreement; and provided
further that the maximum liability of the Investors shall not exceed the amount
of any such payment which shall become payable.
5.03 Notices. All notices, consents, waivers and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written or electronic
confirmation of receipt), (b) sent by facsimile (with written confirmation of
receipt), provided, that a copy is mailed by registered mail, return receipt
requested, or (c) when received by the addressee, if sent by a nationally
recognized overnight delivery service (receipt requested), in each case to the
appropriate addresses and facsimile numbers set forth below (or to such other
addresses and facsimile numbers as a party may designate by notice to the other
parties):
(a) If to the Company:
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ORBCOMM Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Facsimile No.: 703-433-6400
with a copy to:
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ San ▇▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to Satcom:
Satcom International Group Plc.
▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
(c) If to the Investors:
to the addresses set forth on the signature pages.
5.04 Governing Law. This Agreement will be construed in accordance
with and governed by the internal laws of the State of Delaware applicable to
agreements made and to be performed entirely within such State without regard to
conflicts of laws principles thereof.
5.05 Entire Agreement and Modification. This Agreement constitutes a
complete and exclusive statement of the terms of the agreement between the
parties with respect to the subject matter contained herein and therein and
supersede all prior agreements between the parties.
5.06 No Oral Modification. This Agreement may not be amended except
by a written agreement executed by the Company and the Investors. Any attempted
amendment in violation of this Section 5.06 will be void ab initio.
5.07 Assignments, Successors, and No Third-Party Beneficiaries. No
party may assign any of its rights under this Agreement without the prior
written consent of the other parties to this Agreement; provided, however, that
no assignment will limit or affect the assignor's obligations hereunder. Subject
to the preceding sentence, this Agreement will apply to, be binding in all
respects upon, and inure to the benefit of the successors and permitted assigns
of the parties. Nothing expressed or referred to in this Agreement will be
construed to give any Person other than the parties to this Agreement any legal
or equitable right, remedy or claim under or with respect to this Agreement.
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Subject to the preceding sentence, this Agreement and all of its provisions and
conditions are for the sole and exclusive benefit of the parties to this
Agreement and their successors and assigns.
5.08 Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
5.09 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which will be deemed to be an original copy of
this Agreement and all of which together will be deemed to constitute one and
the same agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties as of the date first written above.
ORBCOMM Inc.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title:
Europa Holdings Limited
/s/ ▇▇▇ ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
---------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Address:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address: Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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SCHEDULE A
SATCOM SHARES
INVESTOR SATCOM SHARES
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▇▇▇ ▇▇▇▇▇▇ 1,000
Europa Holdings Limited 1,000
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