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EXHIBIT 10.8.1
SATCOM INTERNATIONAL GROUP PLC
CONTRIBUTION AGREEMENT
This Agreement is made and entered into as of February 17, 2004, by
and between
ORBCOMM Inc., a Delaware corporation (the "Company"), Satcom
International Group
plc, a public limited company organized under the laws of England
and Wales
("Satcom"), Don Franco ("DF"), Nancy Franco ("NF" and, together
with DF,
"Franco"), Jerome B. Eisenberg ("Eisenberg"), and Europa Holdings
Limited
("Europa" and, together with Franco and Eisenberg, the
"Contributors").
RECITALS
WHEREAS, the Contributors own the securities and instruments
issued
by Satcom and have the claims against Satcom set forth on Schedule
3.03 and
3.04;
WHEREAS, pursuant to the Stock Purchase Agreement (as defined
herein), it is a condition to the financing of the Company that the
Contributors
transfer their interests in Satcom to the Company;
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.
"Encumbrance" - any mortgage, charge, claim, condition, equitable
interest,
lien, option, security interest, right of first refusal or
restriction of any
kind, including any restriction on use, voting, transfer, receipt
of income, or
exercise of any other attribute of ownership.
"Excluded Satcom Interests" - 1,000 Ordinary Shares owned by DF and
1,000
Ordinary Shares owned by Europa.
"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,
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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.
"Order" - any award, decision, stipulation, injunction, judgment,
order, ruling,
subpoena, writ, decree or verdict entered, issued, made or rendered
by any
Governmental Entity.
"Ordinary Shares" - means the ordinary shares of Satcom, nominal
value
(pound)1.00 per share.
"Person" - any individual, sole proprietorship, firm, corporation
(including any
non-profit corporation and public benefit corporation), general or
limited
partnership, limited liability partnership, joint venture, limited
liability
company, estate, trust, association, organization, labor union,
institution,
entity or Governmental Entity, including any successor (by merger
or otherwise)
of such entity.
"Preferred Shares" - the Series A Convertible Redeemable Preferred
Stock of the
Company.
"Satcom Convertible Notes" - means the outstanding convertible
notes, plus
accrued interest thereon, of Satcom as set forth on Schedule
3.03.
"Satcom Demand Notes" - means the outstanding demand notes, plus
accrued
interest thereon, of Satcom as set forth on Schedule 3.03.
"Satcom Interests" - means, for each Contributor, the Ordinary
Shares, Satcom
Convertible Notes and Satcom Demand Notes owned by or the Satcom
Obligations
owed to such Contributor as set forth on Schedules 3.03 and 3.04,
other than the
Excluded Satcom Interests, and, in the case of Eisenberg, no less
than 85% of
the Ordinary Shares owned by Europa Holdings Limited.
"Satcom Obligations" - means the obligations of Satcom for unpaid
compensation
and certain other payables set forth on Schedule 3.04.
"Stock Purchase Agreement" - means the Stock Purchase Agreement,
dated February
17, 2004 entered into among the Company, ORBCOMM LLC, and the
investors listed
therein.
"to the knowledge" - means, with regard to a Person that is an
entity, the
actual knowledge of the executive officers of such Person after
reasonable
inquiry or, with regard to an individual, the actual knowledge of
such
individual, after reasonably inquiry.
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ARTICLE II
CONTRIBUTION AND CLOSING
2.01 Contribution of Membership Interests. Upon the Closing (as
defined below), subject to the terms and provisions of this
Agreement, the
Contributors shall each contribute and assign all of their right,
title and
interest in and to their respective Satcom Interests to the
Company, except for
the Excluded Satcom Interests. In exchange for such contribution,
at the
Closing, the Company will issue and deliver to the Contributors the
number of
Preferred Shares set forth opposite such Contributor's name on
Schedule 2.01
(which Preferred Shares shall equal an aggregate of 620,000
Preferred Shares).
2.02 Closing. The closing (the "Closing") of the transactions
contemplated by this Agreement (the "Transaction") will take place
at the
offices of Chadbourne & Parke LLP, 30 Rockefeller Plaza, New
York City, on the
earlier of (i) one hundred eighty (180) days from the date this
Agreement was
signed by the Company or (ii) the satisfaction of the conditions
set forth in
Article 5 hereof, or such other date as the parties may agree.
Notwithstanding
the foregoing, if the conditions set forth in Article V hereof have
not been
satisfied within one hundred eighty (180) days from the date of
this Agreement,
the Company may elect, in its sole discretion, to reduce the number
of Ordinary
Shares being purchased from the Contributors as deemed appropriate
by the
Company; provided, however, that any such reduction shall not
affect the
consideration payable hereunder. The Company may, in its sole
discretion, extend
such period to two hundred seventy (270) days after the date of
this Agreement
by providing written notices to Satcom and the Contributors
2.03 Deliveries. (a) At the Closing, the Contributors shall
deliver
to the Company:
(i) original versions of the share certificates representing
the
Ordinary Shares owned by the Contributors and original versions of
the Satcom
Convertible Notes and Satcom Demand Notes owned by the Contributors
(other than
the Excluded Satcom Interests);
(ii) duly executed transfer forms for the Ordinary Shares
(other
than the Excluded Satcom Interests) owned by the Contributors in
favor of the
Company (or as the Company may direct), together with any power of
attorney
under which any transfer is executed on behalf of a
Contributor;
(iii) such waivers or consents as the Company may reasonably
require
to be signed by the Contributors to enable the Company or its
nominee to be
registered as a holder of the Ordinary Shares owned by the
Contributors; and
(iv)
duly executed forms of assignment of the Satcom Convertible
Notes owned by the
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Contributors and the Satcom Demand Notes owned by the Contributors
which
comprise the Satcom Interests in such form as the Company shall
reasonably
require.
(b) Upon
signing this Agreement, the Contributors shall cause Chadbourne
&
Parke, a multinational partnership, special counsel to Satcom, to
deliver a
legal opinion to the Company as to certain matters in form and
content
satisfactory to the Company and its counsel.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS
Each of Satcom and the Contributors hereby jointly and severally
represent and
warrant to the Company as follows:
3.01 Organization and Good Standing. Satcom is a public limited
company, duly formed, validly existing and in good standing under
the laws of
England and Wales and has all requisite power and authority
(corporate or
otherwise) to conduct its business in the manner in which it is
presently being
conducted.
3.02 Organization Documents. Attached as Exhibit A is a true
and
complete copy of the Articles of Association and Memorandum of
Association of
Satcom, each as amended to the date hereof and as currently in
effect. Other
than the documents attached hereto as Exhibit A, there are no other
documents
governing the organization or operation of Satcom.
3.03 Capitalization. (a) The authorized capital stock of Satcom
consists of 70,120 ordinary shares, nominal value of (pound)1.00
per share (the
"Ordinary Shares"), of which 70,120 Ordinary Shares are issued and
outstanding
as of the date hereof. Except for the Satcom Convertible Notes set
forth on
Schedule 3.03, there are no bonds, debentures, notes or other
indebtedness of
Satcom convertible into, or exchangeable for, securities having the
right to
vote on any matters on which any shareholders of Satcom may vote.
Except for the
Satcom Convertible Notes set forth on Schedule 3.03, the Satcom
Demand Notes set
forth on Schedule 3.03, the Satcom Obligations set forth on
Schedule 3.04 and
Satcom's obligations as set forth on the Latest Balance Sheet (as
defined
below), Satcom has no material liabilities or obligations. Except
as set forth
above, there are no securities, options, warrants, calls, rights or
other
contracts, including, without limitation, stock appreciation
rights, "phantom"
stock or similar plans or rights, obligating Satcom to issue,
deliver or sell,
or cause to be issued, delivered or sold, additional Ordinary
Shares or other
securities of Satcom. There are no rights or contracts (i) to
repurchase, redeem
or otherwise acquire any Ordinary Shares or other securities of
Satcom, (ii)
requiring Satcom to vote or to dispose of any Ordinary Shares or
(iii) other
than the Satcom Convertible Notes, providing any person or entity
the right to
acquire any Ordinary Shares or other securities of Satcom either
from Satcom or
any other person or entity, including, without limitation, pursuant
to a right
of first refusal.
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3.04 Ownership of Interests.
(a) Each of the Contributors is the record and beneficial owner
of
the Ordinary Shares, Satcom Convertible Notes and Satcom Demand
Notes set forth
opposite their names on Schedule 3.03, free and clear of all liens
and
encumbrances. Franco and Eisenberg are owed the Satcom Obligations
as set forth
on Schedule 3.04. Each of the Contributors further represents and
warrants to
the Company that the securities and obligations set forth opposite
his, her or
its name on Schedule 3.03 and 3.04 constitute all of his, her or
its holdings of
debt or equity securities or other obligations of Satcom. Each of
the
Contributors further represents and warrants to the Company that
the securities
and obligations set forth opposite the Contributors' names on
Schedule 3.03 in
the aggregate constitute a majority of the outstanding voting
securities of
Satcom and a majority of the outstanding debt of Satcom as of the
date hereof.
(b) The sale and delivery of the Satcom Interests to the
Company
pursuant to Article II hereof will vest in the Company all right,
title and
interest in and to such Satcom Interests, free and clear of all
Encumbrances
(other than Encumbrances created or suffered by the Company).
(c) The execution, delivery and performance of this Agreement
by
each of Satcom and the Contributors will not, with or without the
giving of
notice or lapse of time or both, (i) violate, conflict with or
result in a
breach of any provision of the organizational documents of Satcom;
(ii) require
any permit or consent of any Governmental Entity; (iii) violate or
conflict with
any Law or Order applicable to Satcom or the Contributors; or (iv)
violate,
conflict with or result in a default under any of the terms,
conditions or
provisions of any agreement to which Satcom or any of the
Contributors is a
party or by which the Satcom Interests are bound.
3.05 Due Authorization; Enforceability. Each of Satcom and the
Contributors has all requisite power and authority (cor
